Wright, Laci Rena ( 2015 )

PD-1500-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/23/2015 2:41:17 PM
December 23, 2015 Accepted 12/23/2015 2:46:28 PM
ABEL ACOSTA
CLERK
PD-1500-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
***************************************************************
THE STATE OF TEXAS,
Appellant,
v.
LACI RENA WRIGHT,
Appellee.
***************************************************************
On Appeal From The Court of Appeals, Eleventh Judicial
District, Eastland, Texas
Cause Number 11-13-00061-CR
The 42nd District Court of Taylor County, Texas
Honorable John Weeks, Presiding Judge
Trial Court Cause Number 24602-A
***************************************************************
STATE'S PETITION FOR DISCRETIONARY REVIEW
***************************************************************
James Eidson
Criminal District Attorney
Taylor County, Texas
300 Oak Street, Suite 300
Abilene, Texas 79602
325-674-1261
325-674-1306 FAX
BY: Britt Lindsey
Assistant District Attorney
400 Oak Street, Suite 120
Abilene, Texas 79602
State Bar No. 24039669
LindseyB@taylorcountytexas.org
THE STATE REQUESTS ORAL ARGUMENT
No. 11-13-00061-CR
IN THE COURT OF APPEALS
ELEVENTH SUPREME JUDICIAL DISTRICT
AT EASTLAND, TEXAS
***************************************************************
THE STATE OF TEXAS, APPELLANT
v.
LACI RENA WRIGHT, APPELLEE
***************************************************************
IDENTITY OF PARTIES AND COUNSEL
Appellee: Laci Rena Wright Appellant: The State of Texas
Attorney for Appellee at trial: Attorney for State:
Stan Brown James B. Hicks, III
Attorney at Law Assistant District Attorney
P. 0. Box 3122 300 Oak St., Suite 300
Abilene, Texas 79604 Abilene, Texas 79602
Attorney for Appellee on Appeal: Attorney for State on Appeal:
Stan Brown Britt Lindsey
Attorney at Law Assistant District Attorney
P. 0. Box 3122 400 Oak St., Suite 120
Abilene, Texas 79604 Abilene, Texas 79602
Trial Court Judge:
Honorable John Weeks
42"d District Court, Taylor County Courthouse
300 Oak St.
Abilene, Texas 79602
I
TABLE OF CONTENTS
Identity of Parties and Counsel.. ......................................................... i
Table of Contents ................................................................................ ii
Index of Authorities ........................................................................... iii
Statement Regarding Oral Argument ............................................... 1
Statement of Procedural History ................................................ 2
Statement of the Case .............................................................. 3
Grounds for Review One ..................................................................... 3
1. Did the Eastland Court of Appeals misapply the
standard for legal sufficiency and for recklessness in
reversing a conviction for injury of a child by omission
by recklessly causing serious mental impairment or
injury?
State's Argument ................................................................................ 3
Prayer ................................................................................................ 20
Certificate of Compliance ................................................................. 22
Certificate of Service ......................................................................... 22
Appendix: Opinion of the Eleventh Court of Appeals ................... 23
11
INDEX OF AUTHORITIES
CASES
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ................. 6
Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) ................. 20
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) .............. 7
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .................... 16
Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000) .................. 6
Jackson v. Virginia, 443 U.S. 307 (1979) ........................................... 6
Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ............. 20
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) ............ 20
Will. v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ......... 5, 14
Wright v. Texas, --- S.W.3d ---,No. 11-15-00061-CR (Tex. App. -Fort
Worth, delivered September 17, 2015) ........................................... 2
STATUTES
TEX. PENAL CODE ANN. § 6.03 ........................................................... 14
TEX. PENAL CODE ANN. § 22.04(a) ..................................................... 12
TEX. PENAL CODE ANN.§ 22.04(a)(l), (e) .......................................... 12
TEX. PENAL CODE ANN. § 22.04(a)(2), (e) .............................. 12, 13, 14
111
PD-1500-15
IN THE TEXAS COURT OF CRIMINAL APPEALS
***************************************************************
LACI RENA WRIGHT,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
***************************************************************
On Appeal From The Court of Appeals
Eleventh Judicial District, Eastland, Texas
Cause Number 11-13-00061-CR
The 42nd Judicial District Court of Taylor County, Texas
Honorable John Weeks, Presiding Judge
Trial Court Cause Number 24602-A
***************************************************************
STATE'S PETITION FOR DISCRETIONARY REV1EW
***************************************************************
TO THE HONORABLE COURT OF APPEALS:
Now comes The State of Texas, by and through the
undersigned Assistant District Attorney and submits this Petition
for Discretionary Review pursuant to TEX. R. APP. PROC. 68. The
State further requests oral argument.
STATEMENT REGARDING ORAL ARGUMENT
This case presents a novel question regarding the application
of the criminal charge of recklessly causing serious mental
1
impairment or serious mental injury to a child by omission. Because
of the- unusual issues presented in this case and its possible
implications in future jurisprudence across the State involving the
culpable standard of recklessness, the State believes oral argument
would benefit the Court and respectfully requests the same.
STATEMENT OF PROCEDURAL HISTORY
The Eleventh Court of Appeals in Eastland, Texas issued an
opinion reversing the trial court on September 17, 2015. Wright v.
Texas, --- S.W.3d ---, No. 11-15-00061-CR (Tex. App. -Fort Worth,
delivered September 17, 2015). The State filed a motion for
rehearing on October 2, 2015, which was denied on October 22,
2015.
STATEMENT OF THE CASE
In the opinion issued on September 17, 2015, the Eastland
Court of Appeals found that the evidence was insufficient to find
Appellee guilty of recklessly causing serious bodily injury to B.R.,
and further the evidence was insufficient to find Appellee guilty of
intentionally, knowingly or recklessly causing serious mental injury
or serious mental impairment to B.R. The State now appeals the
2
last issue only: whether the evidence was legally insufficient to find
that the Appellee recklessly caused serious mental impairment and
injury to B.R. as alleged in Count Two, paragraph two of the
indictment.
GROUNDS FOR REVIEW
1. Did the Eastland Court of Appeals misapply the
standard for legal sufficiency and for
recklessness in reversing a conviction for
injury of a child by omission by recklessly
causing serious mental impairment or injury?
STATE'S ARGUMENT
In the opinion issued on September 17, 2015, the Eastland
Court of Appeals found that the evidence was legally insufficient
to support the jury's finding that the Appellee was guilty of Injury
to a Child by Omission by recklessly causing serious bodily injury
to B.R. as alleged in Count One, paragraph two of the indictment,
and that the evidence was legally insufficient that the Appellee
was guilty of a second count of Injury to a Child by omission by
intentionally or knowingly causing serious mental impairment
and injury to B.R. as alleged in Count Two, paragraph one of the
indictment. The Court further found that the evidence was
3
insufficient to find that the Appellee was guilty of Injury to a
. .
Child by omission by recklessly causing serious mental
impairment and injury to B.R. as alleged in Count Two, paragraph
two of the indictment. The State asks for a rehearing on the last
issue only: whether the evidence was legally insufficient to find
that the Appellee recklessly caused serious mental impairment
and injury to B.R. as alleged in Count Two, paragraph two. The
State believes the evidence to be legally sufficient on that charge
and urges the court to reexamine the issue.
The opinion of the Eastland Court states that Appellee did
not act knowingly because there is no evidence in the record that
Appellee was aware that her failure to act was reasonably certain
to cause serious mental impairment or injury. Court's opinion at
17. Addressing separately whether Appellee's actions reached the
level of recklessness, the court notes that recklessness requires a
person to foresee the risk involved and consciously decide to ignore
it (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007), ultimately concluding that even in a light most favorable to
the verdict the evidence was insufficient for a rational jury to
4
conclude that she had the requisite mental state. Court's opinion
at 19-20. It is the State's position that, taken in a light most
favorable to the verdict, there was ample evidence for the jury to
infer that the Appellee was consciously aware that her conduct
carried the risk of causing or exacerbating the mental trauma
suffered by B.R. and chose to disregard it. The State further takes
the position that a reasonable jury could find that Appellee's
failure to obtain medical care caused or exacerbated B.R.'s serious
mental injury.
Standard of Review
Legal sufficiency of the evidence is reviewed in a light most
favorable to the verdict and the appellate court must determine
whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson u.
Virginia, 443 U.S. 307 (1979); Jackson u. State, 17 S.W.3d 664 (Tex.
Crim. App. 2000). The evidence is examined to determine if any
rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Adames u. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). "In
determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in
5
the light most favorable to the verdict and determine whether,
based on that evidence and reasonable inferences therefrom, a
rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt." Gear u. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011).
Factual background
The victim in this case is Appellee's then four year old
daughter, B.R. (RR4: 71) Appellee's daughter was sexually
assaulted by Appellee's boyfriend Daniel Crippen in the early
morning of November 11, 2009. At issue in this case is Appellee's
conduct after learning of the sexual assault.
At approximately 2 am, Crippen woke Appellee and told her
that he had just come home from work and found B.R. in her
bedroom screaming and crying. (RR4: 7 4) Appellee found the child
bleeding from a laceration in her vagina; she stated her vagina
was a "purple/red color" and had what she described as a "chunk
of skin missing." (RR4: 76) Appellee's statement to the police
stated that B.R. told her that a strange man had come into her
bedroom and sexually assaulted her. (RR4: 75) When the Appellee
noticed the bleeding and lacerations on the child's vagina, instead
6
of immediately seeking medical attention she took photographs of
her vagina and put Vagisil on it. (RR4: 76- 77) Appellee did not
take the child to the hospital, but instead examined her injuries,
wiped off the blood, and took a video of B.R. explaining what
happened. (RR4: 76- 77) She used her video camera in her digital
phone to videotape B.R. saying that a bad man "poked her" and
stuck his hand inside he panties and twisted it, and that the man
snuck out of the house and ran home because he knew "you
(Appellee) and Daniel were there." (RR4: 75) Afterwards Appellee
cleaned B.R. up and put her in bed with her and Daniel Crippen,
the man who sexually assaulted her. (RR4: 34, 78) A spiral
notebook was later found in the Appellee's home containing
everything Crippen, the Appellee and B.R. said in the video and to
police. (RR4: 91)
The following morning Appellee contacted a friend who was
an Abilene police officer to ask how she should go about making a
report of child molestation; the officer texted her back "need 2 go 2
hospital." (RR4: 79) Instead of taking B.R. to get medical help,
she took her to daycare to drop her off. (RR4: 20, 79) At her
7
daycare Appellee spoke with B.R.'s daycare teacher, Candace
South. (RR4: 24) South testified that Appellee told B.R. "now
remember, I said don't talk about it and I will tell Ms. Candice
what happened." (RR4: 21) Appellee told South that Crippen had
found her "hysterical and crying and upset" the previous night.
(RR4: 21) Appellee also told South that when she went to the
child's room she found B.R. with blood on her underwear,
nightgown, and sheets. (RR4: 22) She told South that she was
going to make a doctor's appointment and then left. (RR4: 22-23)
After Appellee left, South saw that B.R. had "blood all in her
panties." (RR4: 23) South told daycare director Sandy Grisham
what had taken place; they then notified CPS and took B.R. to the
hospital and waited with her while attempts to locate Appellee
were made to obtain parental consent for an examination. (RR4:
25-26) They waited for approximately an hour to two hours. (RR4:
27)
B.R. was examined by Susie Butz, a SANE nurse at the
hospital. (RR5: 79-81) The examination revealed that B.R. had
lacerations, cuts, and tears in her vaginal region and a complete cut
8
all the way through the hymen. (RR5: 87-88; RR9: SX 57) The
wounds were still oozing blood, the tissue was torn, and there was
extensive bruising. (RR5: 91-93, 100-102) In Butz's words, the skin
in the vagina was "purple, red and there were chunks of skin
missing." (RR5: 90) Butz testified that from age two until puberty
touching the hymen would be very painful to touch. (RR5: 80-82)
She stated that without training it would be very painful to
separate the lips of the vagina and could cause more tearing in the
area. (RR5: 90-92) She stated that the tearing would leave a scar
that would be much worse and more painful than an episiotomy
scar. (RR5: 93-94) Butz testified that the pain B.R. endured for
those hours after the assault could have been relieved to some
degree if B.R. had been given sitz baths and Tylenol and that she
told Appellee the importance of sitz baths. (RR5: 95, 104-105)
On November 11, 2009, the same evening that Crippen was
arrested, Appellee's children were placed with the maternal
grandparents, Buddy and Sherry Morgan. (RR6: 5-8, 10-12)
Sherry testified at trial that B.R was still bleeding when they took
her home that evening. (RR6: 12, 16-17) She testified that B.R.
9
was terrified, had nightmares, and would only sleep on the living
room floor. (RR6: 12) Sherry kept B.R. out of school until her
bleeding stopped on November 16. (RR6: 17)
On November 19, CPS arranged for Appellee to speak to the
children by telephone. (RR6: 18) Sherry Morgan later testified
that the call upset B.R. and that her stomach began hurting her
the next morning. (RR6: 19-21) Shortly thereafter she began
vomiting, which resulted in her being hospitalized for vomiting,
gastritis, and abdominal pain from November 22 to November 27.
(RR6: 19-24) A letter written by B.R.'s pediatrician and dated July
8, 2010 stated that while it is impossible to be certain that it was
"highly likely probable that her gastritis was secondary to the
stress of her sexual assault." (RR9: DX 3, p.31)
Sherry Morgan described B.R. as a "happy kid, seemed
normal, happy child" before the assault, but said since then her
behavior changed. (RR6: 12) She has "meltdowns" and will throw
herself to the floor, pull her hair out and pick at her toe nails until
they bleed. (RR6: 15-16) Morgan testified that she initially had
meltdowns almost every day, but that she has improved since she
10
began counseling with her counselor, Monica Reid. (RR6: 24-25)
South also testified that she noticed a change in B.R. (RR4: 19-21)
She stated B.R. was a bubbly, outgoing little girl until the assault.
(RR4: 19-20) After the assault, B.R. is scared, cautious, and has
become very attached to her. (RR4: 19-20)
Analysis
Appellee was charged in an amended indictment with two
counts of injury to a child by omission for failing to provide medical
care. TEX. PENAL CODE ANN. § 22.04(a). (CR2: 501-503) Count one,
paragraph one alleged intentionally and knowingly causing serious
bodily injury to a child by omission. TEX. PENAL CODE ANN. §
22.04(a)(l), (e). (CR2: 502) Count One, paragraph two alleged
recklessly causing serious bodily injury to a child by omission. Id.
(CR2: 502) Count Two, paragraph one alleged intentionally or
knowingly causing serious mental impairment or serious mental
injury to a child by omission TEX. PENAL CODE ANN. § 22.04(a)(2),
(e). (CR2: 502) Count Two, paragraph two alleged recklessly
causing serious mental impairment or serious mental injury to a
child by omission. TEX. PENAL CODE ANN. § 22.04(a)(2), (e). (CR2:
11
503) The jury found Appellee guilty on Count one, paragraph two
and guilty on Count two, paragraph one. (CR2: 523-524; RR8: 106-
108) The trial court assessed punishment at five years on each
count probated for eight years. (CR2: 528-535; RR9: 80)
The Eastland Court found that even in the light most
favorable to the state that there was no evidence in the record
that Appellee was aware that her failure to act was reasonably
certain to cause B.R. serious mental impairment or injury or that
B.R.'s PTSD would have been prevented had she provided such
care. Court's Opinion at 17. The Eastland Court further found
that there was insufficient evidence that if the Appellee had
provided medical care to B.R. that the medical care would have
prevented B.R. from suffering PTSD in light of the sexual assault
committed by Crippen. Id. The State would address each in turn.
I. Appellee's Conscious Disregard of the Risk
The Eastland Court noted that committing the offense of
injury to a child with the culpable mental state of recklessness
would be a lesser included offense of Appellee's conviction for
intentionally or knowingly committing injury to a child by causing
12
serious mental impairment or injury. Court's opinion at 19; TEX.
PENAL CODE ANN. § 22.04(a)(2), (e). The court noted that "[a]
person acts recklessly ... when he is aware of but consciously
disregards a substantial and unjustifiable risk that the
circumstances exist or that the result will occur" and that the risk
"must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as
viewed from the actor's standpoint." Id. § 6.03.
The court further noted that recklessness requires a person
to foresee the risk involved and consciously decide to ignore it
(citing Williams u. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). "[A]n inference is a conclusion reached by considering other
facts and deducing a logical consequence from them. Speculation
is mere theorizing or guessing about the possible meaning of facts
and evidence presented." Id. at 16.
The Eastland Court found that "[w]hile the National Center
for PTSD declares the proposition that '[t]he best predictor of
recovery [for victims of child sexual abuse] is support and love
13
from. their main caregiver,' there is no evidence that this fact was
known by (Appellee) or the public at large." Court's opinion at 18
(brackets in original). The State would urge that it is not
necessary to impute a professional level of knowledge to Appellee
to find that she was consciously aware of the risk; there was
ample evidence in the record for a reasonable jury to make that
finding. It is not mere speculation to find that a person in that
circumstance knows that a child expects medical care from. her
primary caregiver, and that they are disregarding the risk of
traumatizing them. when they do not provide it. B.R. herself
confirmed this in play therapy when she said that her babies were
sick and that she was going to take them. to the hospital. (RR7: 98)
Given the evidence and testimony presented to the jury. It is not
mere speculation that Appellee consciously disregarded a
substantial risk, but a logical inference from. the evidence.
II. Evidence that Appellee's failure to obtain medical care
caused or exacerbated B.R.s serious mental injury:
The Court further states in its opinion that "the evidence
that Appellee's acts and omissions caused B.R. serious mental
14
impairment or injury is also insufficient. Based upon the evidence
offered at trial, the conclusion that Appellee's conduct caused
mental injury over and above that caused by Crippen's aggravated
sexual assault is a matter of conjecture and speculation." Court's
opinion at 18 (citing Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.
Crim. App. 2007). The State would respectfully urge that an
examination of the witnesses' testimony regarding the trauma
suffered by B.R. in a light most favorable to the verdict,
particularly that of the counselor who treated her, shows that this
is not the case.
Several witnesses testified as to the emotional trauma
suffered by B.R. Her daycare worker said that before the sexual
assault she was a bubbly, outgoing little girl, but after the assault
became scared, cautious, and very attached to her. (RR4: 19-20)
B.R.'s grandparents said that she would only sleep on the floor for
several weeks and suffered emotional upheavals, nightmares and
meltdowns. (RR6: 12-16) After the assault, B.R. had periods of
incessant vomiting; the last five day session of vomiting coincided
with her last conversation with the Appellee. (RR6: 9-11, 19-26)
15
B.R.'s counselor, Monica Reid, diagnosed her with post-
traumatic stress disorder (PTSD). (RR6: 63) When asked whether
Crippen or the Appellee caused her PTSD, Ms. Reid stated that
they both did. (RR6: 68) When she was asked whether she thought
Appellee contributed to B.R.'s stress disorder, Ms. Reid replied
"yes, absolutely I do." (RR6: 68) She stated that love and care after
acute stress disorder is "profoundly important," and went on to
explain that "the key factor in how kids might - how if they're
going to recover from the traumatic event is how the primary
caregiver or the kind of response they have from the nurturing
adults around them." (RR6: 77- 78) She stated that getting none of
this sort of care raises the risk factors for PTSD drastically. (RR6:
78) She stated that she believed the Appellee bore a great deal of
responsibility. (RR6: 81) She testified that it was her opinion that
the post-traumatic stress disorder that B.R. suffered could have
been alleviated or eliminated if Appellee had gotten her medical
care. (RR7: 77) She testified that when she they discussed her
mother B.R.'s mood would shift; she would be anxious, her play
would change, and she would show confusion, ambivalence, and
16
uncertainty. (RR7: 87-88) Based on what she saw, Monica Reid
recommended to CPS that visitation between B.R. and Appellee be
terminated until B.R. was more emotionally and psychologically
stable. (RR7: 91-92) She stated she believed that the mother's
reaction was more distressing to B.R. than the sexual assault
itself because she could talk boldly about Daniel Crippen but her
presentation was more distressing in discussion of her mother.
(RR7: 105) Even the expert witness called by Appellee, Dr. John
Crowley, agreed that the reaction of a parent to the traumatic
event would be a factor in the development of the syndrome and
its severity. (RR8: 25) Given this testimony the State does not
believe it can be fairly said that no reasonable jury could find that
the serious mental injury suffered by B.R. could be attributed to
Appellee.
The opinion of the Eastland Court of Appeals, if allowed to
stand as precedent, significantly raises the bar on the proof
required to find that a criminal defendant acted with a conscious
disregard of the risk. In saying that no reasonable jury could find
that the Appellee acted recklessly, the court essentially disallows
17
the jury the right to make reasonable inferences from a
defendant's behavior and the descriptions of that behavior from
witnesses. This will make it next to impossible to find that a
defendant acted recklessly except for those rare circumstances in
which a defendant actually verbalizes that they are consciously
aware of the risk. The State would respectfully urge that the
Eastland Court has disregarded the evidence that a reasonable
jury could rely on to find that Appellee recklessly caused serious
mental impairment or injury to B.R. and taken the legally
impermissible step of substituting the court's findings and
judgment for the findings and judgment of the jury. See Marshall
v. State, 210 S.W.3d 618, 624 (Tex. Crim. App. 2006).
As the Eastland Court notes, there are instances where the
courts of appeal may modify and render a judgment of conviction
for a lesser included offense when the court determines the
evidence insufficient for the greater inclusive offense. Bowen v.
State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012); Thornton v.
State, 425 S.W.3d 289 (Tex. Crim. App. 2014). The State urges
18
that that is the appropriate resolution in this case as to Appellee's
conviction for Count Two of the indictment.
PRAYER FOR RELIEF
The State respectfully requests that this Court grant oral
argument and prays that this Court reverse the ruling of the
Court of Appeals and modify and render judgment to reflect that
Appellee is guilty of recklessly causing serious mental impairment
or serious mental injury to a child by omission. See TEX. R. APP. P.
78.1.
Respectfully submitted,
James Eidson
Criminal District Attorney
Taylor County, Texas
300 Oak Street
Abilene, Texas 79602
325-674-1261
325-674-1306 FAX
BY: Isl Britt Lindsey
BRITT LINDSEY
Assistant District Attorney
Appellate Section
400 Oak Street, Suite 120
Abilene, Texas 79602
325-674-1376
325-674-1306 FAX
19
State Bar No. 24039669
Attorney for the State
20
CERTIFICATE OF COMPLIANCE
I, Britt Lindsey, affirm that the above brief is in compliance
with the Rules of Appellate Procedure per my computer generated
word count. The font size in the brief is 14 pt. with the exception of
footnotes that are 12 pt. The word count is 3129, excluding the
exceptions listed in Rule 9.4. The word count of the entire brief is
4193.
Isl Britt Lindsey
BRITT LINDSEY
CERTIFICATE OF SERVICE
I certify that on this 23rd day of December, 2015, a true copy of
the foregoing State's Brief was served on the Attorney for Appellee
and State Prosecuting Attorney according to the requirements of
law by first class mail, email or hand delivery to:
Stan Brown
Attorney at Law
P. 0. Box 3122
Abilene, Texas 79604
Attorney for Appellee, Laci Rena Wright
Email: mstrb@aol.com
21
Lisa C. McMinn
State Prosecuting Attorney
209 W. 14th Street
Austin, Texas 78701
Email: information@SPA. texas. gov
Isl Britt Lindsey
BRITT LINDSEY
22
APPENDIX: OPINION OF THE llTH COURT OF APPEALS
23
Opinion filed September 17, 2015
In The
443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.
App.-Eastland 2010, pet. ref d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder's role as the sole judge of the witnesses' credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
9
prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. We are responsible for ensuring "that the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged."
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Appellant was indicted for two counts of injury to a child by omission. See
TEX. PENAL CODE ANN. § 22.04 (West Supp. 2014). Count One alleged that
Appellant caused "serious bodily injury" to B.R. by omission by failing to provide
medical treatment to B.R. See id. § 22.04(a)(l). Count One contained two
paragraphs alleging different culpable mental states. The first paragraph alleged that
Appellant "intentionally and knowingly" caused serious bodily injury by omission.
The second paragraph alleged that Appellant "recklessly" caused serious bodily
injury by omission. Count Two alleged that Appellant caused "serious mental
impairment and injury" to B.R. by omission by failing to provide medical treatment
to B.R. See id. § 22.04(a)(2). Count Two also contained two paragraphs with the
first paragraph alleging the culpable mental states of "intentionally and knowingly"
and the second paragraph alleging the culpable mental state of"recklessly." 4
The trial court submitted both counts alleged in the indictment with each of
the alleged culpable mental states to the jury. The jury found that Appellant
recklessly caused serious bodily injury under Section 22.04(a)(l) as alleged in Count
One, paragraph two of the indictment. The jury also found that Appellant
intentionally or knowingly caused serious mental impairment or injury under
Section 22.04(a)(2) as alleged in Count Two, paragraph one. "Injury to a child is a
result-oriented offense requiring a mental state that relates not to the specific conduct
but to the result of that conduct." Williams, 235 S.W.3d at 750 (citing Alvarado v.
4
Under Section 22.04(e), an offense under subsection (a)(l) or (2) is a felony of the first degree
when the conduct is committed intentionally or knowingly. PENAL§ 22.04(a)(l), (a)(2), (e). An offense
under subsection (a)(l) or (2) is a felony of the second degree when the conduct is engaged in recklessly.
Id.
10
State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985)). The State has the burden to prove
that the defendant caused a child's serious bodily injury with the requisite criminal
intent. Id.
In her first issue, Appellant challenges the sufficiency of the evidence to
support her conviction under Count One for recklessly causing serious bodily injury
to B.R. She focuses her evidentiaiy challenge to the sufficiency of the evidence on
the proposition that she "recklessly caused some additional and identifiable serious
bodily injury" to B.R. by not getting her prompt medical treatment. Appellant
contends that the jury's finding as to this element was not rational based upon the
evidence presented at trial. We agree.
The existence or nonexistence of a causal connection is a question for the
jury's determination. Fountain v. State, 401 S.W.3d 344, 358-60 (Tex. App.-
Houston [14th Dist.] 2013, pet. refd); see Dorsche v. State, 514 S.W.2d 755, 757
(Tex. Crim. App. 1974). Count One of the indictment alleged that Appellant caused
serious bodily injury by omission by failing to provide medical treatment to B.R.
after an injury that caused bleeding to her female sexual organ. "Serious bodily
injury" means bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ. PENAL § l.07(a)(46). The State asserts
that B.R. suffered serious bodily injury based upon the scarring that Butz testified
that B.R. will have as a result of the sexual assault. The State asserts in its briefthat
Appellant's acts of inspecting B.R.'s injury and photographing it "could have
reasonably caused more physical injury to B.R." (emphasis added). In an attempt
to tie these matters together, the State additionally contends that, "[b]ecause Butz
could not say with certainty that appellant did not further injure B.R., the resulting
scarring can be partially attributed to appellant's actions."
11
Even if one assumes that B.R. 's scarring constitutes serious bodily injury, 5 the
evidence that Appellant caused the scarring is not sufficient. Under the Penal Code,
"[a] person is criminally responsible ifthe result would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of the
actor clearly insufficient." PENAL§ 6.04(a) (West 2011). "But for" causation, as
referred to in Section 6.04(a), must be established between an accused's conduct and
the resulting harm. See Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App.
1986). When concurrent causes are present, the "but for" requirement is satisfied
when either (1) the accused's conduct is sufficient by itself to have caused the harm
or (2) the accused's conduct coupled with another cause is sufficient to have caused
the harm. Id. If an additional cause--Qther than an accused's conduct-is clearly
sufficient by itself to produce the result and if the accused's conduct by itself is
clearly insufficient, then the accused cannot be convicted. Id.
The State's case against Appellant is one involving concurrent causes. It is
undisputed that Crippen's aggravated sexual assault ofB.R. was the initial, primary
cause ofB.R.'s injuries. In this regard, Crippen's sexual assault was a heinous act
that no doubt caused a significant, traumatic injury to B.R. Crippen's sexual assault
was obviously sufficient by itself to produce the result in the form of the physical
injuries and mental injuries that B.R. suffered. Appellant's criminal culpability for
injury to a child by omission under both counts hinges on her response to Crippen's
acts.
'Simply that an injury causes scarring is not sufficient, on its own, to establish serious permanent
disfigurement. Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.-Amarillo 2012, pet. refd);
Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.-El Paso 1997, no pet.). A reviewing court must find
more than mere scarring alone; instead, it must find in the record evidence of "some significant cosmetic
deformity" in order to conclude that the evidence of serious bodily injury was sufficient. Sizemore, 387
S.W.3d at 828 (quoting Hernandez, 946 S.W.2d at 113) (internal quotation marks omitted).
12
The facts in this appeal are similar to other cases in Texas involving charges
of injury to a child by omission based upon a failure to provide medical care. An
analysis of some of these cases is instructive to the issues in this appeal. The
defendant in Dusek v. State was convicted of intentionally or knowingly causing
serious bodily injury to a child by omission by, among other things, failing to provide
prompt medical treatment for the child's broken leg. 978 S.W.2d 129, 133 (Tex.
App.-Austin 1998, pet. ref'd). The court noted in its analysis that the child's
broken leg was a serious bodily injury. Id. The court further noted, however, that
injury to a child is a "result of conduct" offense. Id. (citing Alvarado, 704 S.W.2d
at 39). Accordingly, under Section 22.04, it was not sufficient for the State to prove
that the defendant failed to provide medical care for a serious bodily injury. Id.
Instead, it was necessary to prove that the child suffered serious bodily injury
because the defendant failed to provide medical care. Id. In determining that the
evidence was insufficient to support a conviction for failing to provide medical
treatment, the Dusek court noted that there was no evidence that any omission on the
defendant's part aggravated the seriousness of the injury. Id.
In Payton v. State, the defendant was convicted of recklessly causing serious
bodily injury to his eighteen-month-old grandson by failing to obtain reasonable
medical care for him. 106 S.W.3d 326, 327-28 (Tex. App.-Fort Worth 2003, pet.
ref' d). The defendant observed his grandson crying in the hallway and lying in the
floor at approximately 8:30 a.m. Id. at 328. He noticed that the child was having
difficulty holding a bottle and that his feet were cold. Id. He called a friend that was
a nurse who arrived at his house in approximately fifteen minutes. Id. The friend
determined that the child needed emergency medical attention because he was
nonresponsive and had possibly aspirated. Id. The emergency medical personnel
and physicians that subsequently treated the child determined that the child had
bruises all over his body and suffered from internal bleeding. Id. The child died a
13
short time later. Id. A physician testified that the child's injuries would have
occurred between ten to twelve hours before his death and that the child would have
been showing symptoms from his injuries. Id. at 329.
The defendant in Payton challenged the sufficiency of the evidence to
establish that he caused serious bodily injury by failing to seek reasonable medical
care. Id. Citing Dusek, the court held that, under Section 22.04, it is not sufficient
for the State to prove that the defendant failed to provide medical care for a serious
bodily injury. Id. "Instead, it is necessary to prove that [the child] suffered serious
bodily injury because [the defendant] failed to provide him medical care." Id. The
court determined that the evidence was sufficient with regard to causation because
there was evidence that the child might have lived had the defendant called for
emergency care earlier. Id. at 330.
Thus, under Section 22.04, it was not sufficient for the State to prove that
Appellant failed to provide medical treatment for a serious bodily injury. See
Payton, 106 S.W.3d at 329; Dusek, 978 S.W.2d at 133. Instead, it was necessary to
prove that B.R. suffered serious bodily injury because Appellant failed to provide
her with medical treatment. See Payton, 106 S.W.3d at 329; Dusek, 978 S.W.2d at
133. The State alleged in the indictment that Appellant committed injury to a child
by omission by failing to provide medical treatment to B.R. after an injury. In the
context of the allegation alleged in the indictment, the evidence did not show that
any delay in medical treatment attributable to Appellant caused B.R. any additional
physical injuries because no medical treatment was given to B.R. when Butz
examined her at the hospital.
14
The State expanded its theory of the case at trial by asserting that Appellant's
actions in examining and photographing B.R. contributed to B.R.'s injuries. 6 The
State continues this argument on appeal. However, there is no evidence that
anything Appellant did or did not do aggravated the seriousness of the physical
injuries inflicted by Crippen. At best, the evidence does nothing more than suggest
that Appellant "could have reasonably caused more physical injury to B.R." as noted
by the State in its brief. "While juries are permitted to draw multiple reasonable
inferences as long as each inference is supported by the evidence presented at trial,
'juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions."' Winfrey, 393 S.W.3d at 771
(quoting Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)). "[A]n
inference is a conclusion reached by considering other facts and deducing a logical
consequence from them," while "[s]peculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented." Hooper, 214 S.W.3d at 16.
"A conclusion reached by speculation . . . is not sufficiently based on facts or
evidence to support a finding beyond a reasonable doubt." Id. The conclusion that
Appellant caused B.R. to suffer a serious bodily injury or that she might have
6
Modem legal theory and the Texas Penal Code recognizes a conceptual distinction between an
"act" and an "omission." Hill v. State, 913 S.W.2d 581, 589-90 (Tex. Crim. App. 1996). As noted by the
court in Hill:
Our Penal Code provides that a person commits an offense only if he commits an act or an
omission. TEX. PENAL CODE ANN.§ 6.0l(a). An "act" is defined as "a bodily movement,
whether voluntary or involuntary, and includes speech." TEX. PENAL CODE ANN.
§ l .07(a)(l). By contrast, an "omission" is defined as a "failure to act." TEX. PENAL CODE
ANN.§ l.07(a)(34). Clearly, the two are antithetical concepts: while an "act" encompasses
an affirmative action on the part of a person, an omission encompasses a forbearance of
action. Typically, an offense committed by omission involves a failure of the defendant to
perform an affirmative action when he has a legal duty to do so. See generally,
Billingslea v. State, 780 S.W.2d 271, 271-277 (Tex. Crim. App. 1989).
Id. Despite the legal distinction between an act and an omission, the jury does not have to agree
unanimously that a defendant caused an injury by act or by omission to convict a person of injury to a child
under Section 22.04. Jefferson v. State, 189 S.W.3d 305, 306 (Tex. Crim. App. 2006).
15
aggravated B.R.'s injuries is a conclusion reached by speculation. As such, it is not
sufficiently based on facts or evidence to support a finding beyond a reasonable
doubt. See id. We sustain Appellant's first issue.
In her second issue, Appellant challenges the sufficiency of the evidence
supporting the jury's finding that she intentionally or knowingly caused serious
mental impairment or injury. As noted previously, the offense of injury to a child is
a result-oriented offense requiring a mental state that relates not to the specific
conduct but to the result of that conduct. Williams, 235 S.W.3d at 750. A person
acts intentionally with respect to a result of his conduct when it is his conscious
objective or desire to cause the result. PENAL§ 6.03(a). A person acts knowingly
with respect to a result of his conduct when he is aware his conduct is reasonably
likely to cause the result. Id. § 6.03(b). Therefore, the State had to prove that
Appellant intentionally or knowingly caused the resulting mental injuries to B.R.
See Johnston v. State, 150 S.W.3d 630, 634 (Tex. App.-Austin 2004, no pet.). "The
formulated distinction between intentional and knowing, as to results, is thus
between desiring the result and being reasonably certain that it will occur." Id. at
635 (quoting Dusek, 978 S.W.2d at 134). When the State charges a defendant with
conduct by omission, proof that the defendant knowingly caused the result requires
evidence that the defendant had a reasonably certain awareness that the injury would
have been prevented had the defendant performed the act that was omitted.
Patterson v. State, 46 S.W.3d 294, 302 (Tex. App.-Fort Worth 2001, no pet.). The
jury may infer both intent and knowledge from any facts that tend to prove the
existence of these mental states, including the defendant's acts, words, or conduct,
and from the nature of the injury inflicted on the victim. Hart v. State, 89 S.W.3d
61, 64 (Tex. Crim. App. 2002).
Appellant contends that there is no evidence upon which a rational jury could
conclude that she intentionally or knowingly caused B.R. to suffer serious mental
16
impairment or mJury. She supports this contention m large part upon Reid's
response to the following question: "Did you ever form an opinion as to whether
[Appellant] intentionally or knowingly caused mental injury to her daughter?" Reid
began her response with: "Not in those legal terms." The State argues that "Reid
testified that the outcome of the trauma could have been significantly different had
appellant acted on B.R.'s medical needs and trauma" (emphasis added). In support
of this proposition, the State cites a publication from the U.S. Department of
Veterans Affairs' "National Center for PTSD" pertaining to "child sexual abuse,"
which states: "Children can recover from sexual abuse and go on to live good lives.
The best predictor of recovery is support and love from their main caregiver."
Even in the light most favorable to the State, our review of the record leads us
to conclude that the record is devoid of evidence that Appellant failed to act because
she desired B.R. to suffer serious mental impairment or serious mental injury.
Further, we conclude that there is no evidence in the record that Appellant was aware
that her failure to act was reasonably certain to cause B.R. serious mental impairment
or injury or that B.R.'s PTSD would have been prevented had she provided such
care. Moreover, there is insufficient evidence to the effect that, if Appellant had
provided medical care for B.R., the medical care would have prevented B.R. from
suffering PTSD in light of the sexual assault committed by Crippen.
As was the case with Count One pertaining to serious bodily injury, the State
also alleged in the indictment that Appellant caused mental injury to a child by
omission by failing to provide medical treatment for B.R. after an injury. The same
analysis is applicable to Count Two; the evidence did not show that any delay in
medical treatment attributable to Appellant caused B.R. any additional mental
injuries because no medical treatment was given to B.R. when Butz examined her at
the hospital. At trial and on appeal, the State expands its contention to assert that
Appellant is guilty of injury to a child by omission by failing to provide a "nurturing
17
environment" for B.R. The State additionally contends that Appellant engaged in
this conduct intentionally and knowingly.
There is no doubt that the vast majority of parents in Appellant's position
would have acted in a very different manner than she did. Despite the absurdity of
her conduct, there is no evidence that Appellant undertook this course of conduct
with the conscious objective or desire to cause B.R. to suffer serious mental
impairment or injury or that she was aware that her conduct was reasonably likely
to cause serious mental impairment or injury. See PENAL§ 6.03(a), (b). While the
National Center for PTSD declares the proposition that "[t]he best predictor of
recovery [for victims of child sexual abuse] is support and love from their main
caregiver," there is no evidence that this fact was known by Appellant or the public
at large. Additionally, the evidence that Appellant's acts and omissions caused B.R.
serious mental impairment or injury is also insufficient. Based upon the evidence
offered at trial, the conclusion that Appellant's conduct caused mental injury over
and above that caused by Crippen's aggravated sexual assault is a matter of
conjecture and speculation. See Hooper, 214 S.W.3d at 15-16. We sustain
Appellant's second issue.
We must now determine the appropriate disposition in this case. In Bowen v.
State, the Texas Court of Criminal Appeals determined that there are instances when
a court of appeals may modify a judgment and render a judgment of conviction for
a lesser included offense when the court of appeals has found the evidence
insufficient to support an appellant's conviction for a greater-inclusive offense. 374
S.W.3d 427, 432 (Tex. Crim. App. 2012). This step may be taken even ifthe lesser
included offense was not submitted to the jury. Id. In Thornton v. State, the court
subsequently clarified the holding in Bowen as follows:
[A]fter a court of appeals has found the evidence insufficient to support
an appellant's conviction for a greater-inclusive offense, in deciding
18
whether to reform the judgment to reflect a conviction for a lesser-
included offense, that court must answer two questions: 1) in the course
of convicting the appellant of the greater offense, must the jury have
necessarily found every element necessary to convict the appellant for
the lesser-included offense; and 2) conducting an evidentiary
sufficiency analysis as though the appellant had been convicted of the
lesser-included offense at trial, is there sufficient evidence to support a
conviction for that offense? If the answer to either of these questions
is no, the court of appeals is not authorized to reform the judgment. But
if the answers to both are yes, the court is authorized-indeed
required-to avoid the "unjust" result of an outright acquittal by
reforming the judgment to reflect a conviction for the lesser-included
offense.
425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014) (footnote omitted).
With respect to Count One pertaining to Appellant's conviction for recklessly
causing serious bodily injury by omission to B.R., her conduct in recklessly causing
nonserious bodily injury by omission would be a lesser included offense. See PENAL
§ 22.04(a)(3), (f). However, the lack of evidence that she caused any physical injury
to B.R. by omission precludes us from determining that the evidence is sufficient to
support a conviction for the lesser included offense.
As for Count Two pertaining to Appellant's conviction for intentionally or
knowingly causing serious mental impairment and injury, committing the offense
with the culpable mental state of recklessness would be a lesser included offense.
See id. § 22.04(a)(2), (e). "A person acts recklessly ... when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances
exist or the result will occur." Id. § 6.03(c). The risk created "must be of such a
nature and degree that its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the circumstances as viewed
from the actor's standpoint." Id. Recklessness requires the defendant to actually
foresee the risk involved and to consciously decide to ignore it. Williams, 235
S.W.3d at 751. Determining whether an act or omission involves a substantial and
19
unjustifiable risk requires an examination of the events and circumstances from the
viewpoint of the defendant at the time the events occurred, without viewing the
matter in hindsight. Id. at 753. "[M]ere lack of foresight, stupidity, irresponsibility,
thoughtlessness, ordinary carelessness, however serious the consequences may
happen to be," does not rise to the level of criminal recklessness. Id. at 751 (quoting
People v. Carlson, 26 N.Y.S.2d 1003, 1005 (N.Y. Cnty. Ct. 1941)) (internal
quotation marks omitted).
Even viewing the evidence in the light most favorable to the State, the
evidence was insufficient for a rational jury to find beyond a reasonable doubt that
Appellant was subjectively aware of and consciously disregarded a substantial and
unjustifiable risk that B.R. would suffer serious mental impairment and injury as a
result of her conduct. The lack of subjective awareness at the time of her conduct
precludes a finding that the evidence is sufficient to support a conviction for the
lesser included offense based on recklessness.
b
This Court's Ruling
We reverse the trial court's judgments of conviction and render judgments of
acquittal on both counts.
JOHN M. BAILEY
JUSTICE
September 17, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
20