Jose Isaas Herrera AKA Jose Isaas Herrera, Sr. v. State , 2012 Tex. App. LEXIS 2940 ( 2012 )

Affirmed and Opinion filed April 17, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00069-CR
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JOSE ISAAS HERRERA AKA JOSE ISAAS HERRERA, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 08CR3697
OPINION
Jose Isaas Herrera was convicted of intentionally or knowingly causing serious
bodily injury to his six-week-old son, J.H., resulting in the baby’s death. He argues that
the evidence is insufficient to support his conviction; that the trial court reversibly erred in
allowing a State expert rebuttal witnesses to testify during the State’s case in chief; that the
indictment and jury charge failed to adequately specify the manner and means of the
offense; and that the trial court erred in allowing the State to present certain autopsy
photographs to the jury. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant began dating Jessica Trevino when they were in high school. In 2007,
when she was fifteen, Jessica became pregnant with a daughter, B.H. Jessica dropped out
of school and appellant began living with Jessica and her parents. In late 2007, the
Trevinos asked appellant to leave and not to date Jessica anymore.
Over the next few months, Jessica began dating the manager of the McDonald’s
where she was working. Appellant found out about their relationship and was very angry.
He moved back into the Trevinos’ house. When Jessica learned that she was pregnant
with a son, appellant was convinced that the child was not his. After the baby, J.H., was
born in 2008, appellant asked for a paternity test, and his suspicion of J.H.’s paternity
persisted throughout the child’s short life. Although people had told appellant that his
daughter, B.H., looked like him, J.H. did not. According to Jessica, appellant was not
affectionate with J.H. as he had been with B.H. Appellant told Jessica that the baby was a
“faggot” and was not his child. He also said that J.H. was a “momma’s boy” and would
grow up to be a “little pussy.”
Jessica testified that on one occasion, she left J.H. alone with appellant and when
she returned she saw that the baby had a bruise on his forehead. Appellant told Jessica
that he had accidentally bumped J.H.’s head against the bathtub while giving him a bath,
but he did not generally bathe J.H.
On October 27, 2008, at about 10:30 p.m., Jessica put J.H. to bed. She testified that
she always put J.H. on his back when she left him unsupervised and that the baby could not
turn over from that position unassisted. At about 5:00 a.m., J.H. started to make noises,
waking the couple up. Appellant got up to feed the baby, and Jessica went back to sleep.
At 10:15 that morning, Jessica woke up and went to check on J.H. She found him lying
2
face-down, stiff, cold and pale. Appellant tried to perform CPR, but the baby had been
dead for hours.1
Several police officers who responded to the Trevinos’ home that day noted that
appellant did not seem very emotional about J.H.’s death. When she went into appellant’s
and Jessica’s room the night after J.H. died, Nancy, Jessica’s mother, found appellant
stacking J.H.’s clothes on his crib. Nancy and Jessica told appellant to stop, but appellant
stated simply, “Well, he’s not here no more and it needs to be put up.” At the funeral later
that week, according to the Trevinos, appellant did not seem perturbed. As the baby’s
casket was about to be lowered into the ground, appellant told Jessica to stop crying.
According to Jessica’s brother, who had paused in front of the casket, appellant told him,
“Hurry up so we can get this over with.” Maria Medina, a co-worker of Nancy Trevino’s,
testified that she approached appellant at the funeral to offer her condolences. According
to Medina, appellant told her that “it was his fault, that he did it.” 2 Medina tried to
reassure appellant that the baby had died a “crib death,” but, according to Medina,
appellant continued to repeat that it was his fault.
The day after J.H.’s death, the Galveston County Medical Examiner’s office
conducted an autopsy of J.H.’s body. The autopsy showed that the baby had suffered
fourteen fractures, including several broken ribs and a broken spine. Two of these were
“old fractures,” but twelve occurred at or around the time of death. There were also
abrasions between the baby’s shoulder blades and hemorrhaging in the baby’s chest,
abdomen, the front left side of his head, and the back of his head. Additionally, there was
a deep scratch above J.H.’s right eye.
1
Dr. Stephen Pustilnik, Chief Medical Examiner for Galveston County, testified that the
symptoms Jessica and appellant observed occur only several hours after death. They include rigor mortis
(a stiffening of muscular flexors and extensors due to lack of oxygen), lividity (the settling of the blood due
to lack of oxygen and circulation), and a steep drop in body temperature.
2
On cross-examination, Medina read from an earlier statement she had given the police in which
she had described appellant saying “it’s my fault, it’s my fault” but not “I did it.”
3
A Child Protective Services investigator, David Henry, interviewed appellant three
days after J.H. died. Appellant said that he may have dropped or shaken J.H. while
administering CPR, a possibility he had not mentioned in earlier interviews with the police.
In any case, according to Dr. Stephen Pustilnik, Galveston County’s Chief Medical
Examiner, the hemorrhaging around the fractures indicated that they could not have been
inflicted post-mortem.
Appellant was initially charged with murder on December 17, 2008. The
indictment alleged that appellant
intentionally or knowingly cause[d] the death of an individual, namely,
[J.H.], by then and there shaking the said [J.H.] with the hand or hands of
[appellant], or by throwing the said [J.H.], or by causing the spinal cord
and/or spinal column to extend or bend until it broke in a manner which is
unknown to the Grand Jury . . . and [appellant] . . . used or exhibited a deadly
weapon, to-wit: the hand or hands of [appellant], or an object which is
unknown to the Grand Jury, during the commission of the said offense.
Appellant was re-indicted for murder on September 16, 2010. The
re-indictment omitted the possibility that appellant had caused J.H.’s death by
shaking and added two other possible means of causing his death: the infliction of
blunt force trauma (with appellant’s hand or hands or an unknown object), and the
dropping of J.H. It was otherwise identical to the first indictment. Appellant
moved to quash the re-indictment on the ground that it described as “unknown to the
Grand Jury” the object used to inflict blunt force trauma on J.H., the manner in
which J.H.’s back was broken, and the deadly weapon used or exhibited. At a
hearing on appellant’s motion to quash, the State represented that
[w]e have tried to give as good a notice as we can on a very complicated
infant death. . . . Essentially what the Medical Examiner could tell us and
we could then in turn tell the Grand Jury is that these multiple injuries,
essentially the cause of death was blunt force injuries. . . . [T]he evidence
may show that it is unknowable by virtue of the fact that we do not have a
confession. We do not have an eyewitness. We have multiple traumas to a
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six-week-old infant. So, it is a circumstantial case. We do not have a
confession.
The trial court denied appellant’s motion to quash without explanation. Three days later,
the State re-indicted appellant for murder. The only substantial change was the
reinsertion of “shaking” as a possible cause of death, but appellant again moved to quash
the re-indictment.3 In this motion, he also requested a pretrial hearing to “ensure that the
‘unknown’ allegation was truly unknown to the grand jury and is not being used to surprise
or manipulate the defendant. . . . [and elicit] all evidence that is now known so that the
‘unknown’ aspect of the case can be eliminated.” At a hearing on this second motion, the
State represented that
[e]ssentially what we have is due diligence on the part of the State and on the
part of the Medical Examiner to try to piece together the evidence and come
up with a conclusion beyond a reasonable doubt of what we can prove as to
the manner and means. We know that it was blunt force trauma. We know
that there are old injuries, that there are new injuries. We know that it could
be consistent with hand or hands or vigorous shaking. But quite frankly, it’s
unknown and it may be unknowable because this was a six-week-old infant.
And the only person that we believe was present was the Defendant. . . .
And he did not give a confession.
The trial court again denied appellant’s motion to quash. In appellant’s final
re-indictment, dated November 4, 2010, the charge was changed from murder to
intentionally or knowingly causing serious bodily injury to J.H.
by then and there inflicting blunt force trauma to the head and/or torso of the
said [J.H.] with the hand or hands of [appellant], and/or with or against an
object unknown to the Grand Jury, and/or by shaking, and/or throwing,
and/or dropping the said [J.H.], and/or by causing the spinal cord and/or
3
Between appellant’s first and second motions to quash, the Court of Criminal Appeals decided Sanchez v.
State, No. PD-0961-07, 2010 WL 3894640, at *1 (Tex. Crim. App. Oct. 6, 2010) (motion for rehearing
pending). Sanchez provides for a pretrial hearing to determine if the defendant has been given proper
notice to prepare for trial and to determine whether the “unknown” aspect of the case can be minimized or
eliminated by amending the indictment or presenting a superseding indictment. Id., 2010 WL 3894640, at
*5.
5
spinal column of the said [J.H.], to extend and/or bend until broken in a
manner which is unknown to the Grand Jury.
The indictment also contains a notice of intent to seek a deadly weapon finding in which it
is alleged that appellant
used or exhibited a deadly weapon, to-wit: the hand or hands of [appellant] or
an object which is unknown to the Grand Jury, during the commission of the
said offense.
Appellant moved to quash the re-indictment on the same grounds as in his earlier
motions, and the trial court denied his motion without a hearing.
Dr. Pustilnik and Dr. Nobby Mambo, Deputy Medical Examiner for Galveston
County, were the State’s primary medical experts. Both testified that they believed J.H.’s
death was a homicide and that the cause of death was blunt force trauma. Dr. Mambo
stated that he believed the trauma was caused by vigorous shaking. According to Dr.
Pustilnik, J.H.’s injuries were consistent with his having been slammed, thrown, dropped
“from a height onto some object across its back,” or “an injurious shake, one where the
head is going back and forth so far that you’re thinking the neck is going to snap off . . . .”
Dr. Pustilnik also said that the injuries could have been caused by someone applying force
to J.H.’s back as he lay face-down, hyper extending J.H.’s back to the point that the spine
broke.
The State also designated two rebuttal witnesses who would primarily testify that
J.H.’s rib and back fractures could not have occurred post-mortem. Dr. Randall Frost is
the Chief Medical Examiner of Bexar County and one of the State’s rebuttal witnesses. At
the end of the first week of trial, the State approached the bench to request that Dr. Frost be
allowed to testify the next week before Dr. Pustilnik had been cross examined. The State
represented that Dr. Frost would base his testimony on slides taken at J.H.’s autopsy.
Because Dr. Frost was not present at the autopsy, however, the State would rely on Dr.
Pustilnik to validate the slides. Due to scheduling issues, the State requested that Dr. Frost
be allowed to testify before the State had completed Dr. Pustilnik’s direct examination.
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Appellant asked the trial court to exclude Dr. Frost’s testimony because appellant was
entitled to cross examine Dr. Pustilnik about the slides before Dr. Frost testified to
conclusions based on them. Appellant also objected to allowing a rebuttal witness to
testify during the State’s case in chief, asserting that this would violate a discovery order in
which the trial court had required the State to provide appellant with “a list of all the names
of prospective prosecution witnesses who . . . likely will be used a[t] the guilt/innocence
phase . . . with a continuing duty on the part of the State to disclose the names of rebuttal
witnesses as soon as they become known.” The State had identified Dr. Frost as a rebuttal
witness but not as a primary witness. Finally, appellant argued that Dr. Frost’s testimony
was hearsay and cumulative. The trial court denied appellant’s motion to exclude Dr.
Frost’s testimony, with the proviso that “should the state not be able to prove up those
slides as coming from the deceased victim in this case, then I will give an instruction to the
jury to disregard any and all testimony by Dr. Frost.”
When the State introduced Dr. Frost’s testimony midway through Dr. Pustilnik’s
testimony the following week, appellant raised the same objections as at the previous
week’s bench conference. He additionally argued that he was unfairly surprised by Dr.
Frost’s testimony because the State had listed Dr. Frost’s first name as “Robert” rather than
“Randall.” The trial court allowed appellant two hours to “review whatever you need”
before Dr. Frost testified. After two hours, appellant did not request more time and Dr.
Frost testified. During his testimony, the slides were admitted with the instruction that
they were not to be considered for the purpose of proving J.H. suffered the injuries shown.
During the next part of Dr. Pustilnik’s direct examination, the slides were admitted in full.
The State also introduced the testimony of Christopher Altizer, who met appellant
when the two were in jail together after appellant’s arrest. Altizer testified that appellant
approached him one day in the recreation yard and said he needed to get something off his
chest. According to Altizer, appellant told him that “he was on drugs and his baby
wouldn’t stop crying and he hit it.” Appellant denied that this conversation took place.
7
The trial court submitted, in relevant part, the following jury charge:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 27th day of October, A.D., 2008, in Galveston County, Texas
[appellant] did then and there intentionally or knowingly cause serious
bodily injury to [J.H.], a child 14 years of age or younger, by then and there
inflicting blunt force trauma to the head and/or torso of the said [J.H.], with
the hand or hands of the said [appellant], and/or with or against an object
unknown to the Grand Jury, and/or by shaking, and/or throwing, and/or
dropping the said [J.H.], and/or by causing the spinal cord and/or spinal
column of the said [J.H.] to extend and/or bend until broken in a manner
which is unknown to the Grand Jury, then you will find the Defendant guilty
of Intentional or Knowing Serious Bodily Injury to a Child.
Appellant asked the trial court to strike those portions of the jury charge referencing
matters “unknown to the Grand Jury.” The trial court denied appellant’s motion. The
jury convicted appellant of intentionally or knowingly causing serious bodily injury to a
child, sentenced him to life in prison, and assessed a $10,000 fine. Appellant’s motion for
new trial was denied and he timely appealed.
II. ISSUES PRESENTED
In five issues, appellant contends that (1) the evidence is insufficient to support his
conviction; (2) the trial court erred in allowing the State to call Dr. Frost out of order; (3)
the indictment was not specific enough about the manner and means of the offense; (4) the
trial court erred in incorporating the language of the indictment into the jury charge; and (5)
the trial court erred in allowing the jury to see autopsy photographs.
III. ANALYSIS
A. Sufficiency of the Evidence
Appellant first argues that the evidence is insufficient to support his conviction. In
evaluating this challenge to the sufficiency of the evidence, we consider all the evidence in
the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010) (plurality op.); id at 912–13 (Cochran, J. concurring). If, when viewed in this
8
light, any rational factfinder could have found the essential elements of the offense beyond
a reasonable doubt, then the evidence is sufficient to support the verdict. Jackson, 443
U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
A person commits injury to a child if he intentionally, knowingly, recklessly, or
with criminal recklessness causes a child serious bodily injury. TEX. PENAL CODE ANN. §
22.04(a)(1) (West 2011). Serious bodily injury is a “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.” Id.,
§1.07(a)(46). A person who causes such an injury intentionally or knowingly commits a
felony of the first degree. Id. § 22.04(e). A person acts intentionally with respect to a
result of his conduct when it is his conscious objective or desire to cause the result. Id., §
6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware
that his conduct is reasonably likely to cause the result. Id., § 6.03(b).
Viewed in the light most favorable to the verdict, the evidence shows as follows:
When Jessica put J.H. to bed, he had not yet suffered the severe injuries found in the
autopsy. Appellant got up to feed J.H. at 5:00 a.m.., some five hours before J.H.
was found dead. Dr. Pustilnik testified that based on J.H.’s physical condition, J.H.
had been dead for several hours by the time he was found at about 10:15 a.m., five
hours later, with the injuries. Thus, he must have died no earlier than 5:00 a.m. but
at least several hours before 10:15 a.m. The injuries also must have occurred
around the time of J.H.’s death, as Dr. Pustilnik testified that the hemorrhaging
around the fractures indicated that they could not have been inflicted post-mortem
(such as by the CPR appellant conducted several hours after the baby’s death) and
that the baby did not survive long after sustaining them. There is no evidence that
anyone else was up with the baby between 5:00 a.m. and 10:15 a.m., when J.H. was
found dead, and J.H. could not have caused the injuries to himself. This evidence
points to appellant as the likely perpetrator. See Martin v. State, 246 S.W.3d 246,
9
262 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing, among other
circumstances, the fact that defendant was alone with baby during the time in which
the baby suffered blunt force trauma as legally sufficient evidence of guilt).
Appellant told Christopher Altizer that he was on drugs and hit the baby because the
baby would not stop crying.
Appellant told Maria Medina, a co-worker of Nancy Trevino’s, that “it was his
fault, that he did it.”
Appellant stacked J.H.’s clothes in his crib the day J.H. died. The Trevinos were
disturbed by this behavior, and the police also found it unusual.
Appellant apparently believed that J.H. was not his child and sought to have
paternity tests. He called J.H. a “faggot” and insisted that the baby was not his.
Jessica and her brother testified that he showed little affection for J.H. compared
with B.H.
The Trevinos testified that appellant did not seem very emotional about the baby’s
death or at the funeral. At the funeral, he told Jessica to stop crying. He also told
Jessica’s brother, who had stopped at the casket, “Hurry up so we can get this over
with.”
Taken together in the light most favorable to the verdict, this record supports the
jury’s finding that appellant caused serious bodily injury to J.H. See Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007) (circumstantial evidence alone is sufficient to
establish guilt); Martin, 446 S.W.3d at 262 (citing as legally sufficient evidence appellant’s
failure to call 9–1–1 and her delay in getting victim to the emergency room, several
witnesses’ testimony regarding her demeanor and behavior in the ambulance and at the
emergency room, child’s father’s testimony that victim’s crying got on appellant’s nerves,
appellant’s past statements to child’s father threatening to drown victim in the bathtub if he
did not pick her up, medical testimony that child suffered from malnutrition, and testimony
10
appellant was a violent and untruthful person); see also Alexander v. State, 229 S.W.3d
731, 739 (Tex. App.—San Antonio 2007, pet. ref’d) (evidence legally sufficient to support
murder where appellant had demonstrated abusive relationship with child, appellant had
been seen hitting child with vacuum cleaner attachment earlier in the day, child was found
fatally injured after being alone with appellant, and medical testimony supported finding
that child was killed with the attachment).
The severity and number of J.H.’s injuries also support a finding that appellant
caused them intentionally or knowingly. Intent can be inferred from the extent of the
injuries to the victim, the method used to produce the injuries, and the relative size and
strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).
Appellant, a grown man, was with J.H. at the approximate time the baby sustained
extremely severe injuries. According to Dr. Pustilnik, J.H.’s injuries were consistent with
his having been slammed, thrown, dropped “from a height onto some object across its
back,” or “an injurious shake, one where the head is going back and forth so far that you’re
thinking the neck is going to snap off . . . .” See Montgomery v. State, 198 S.W.3d 67, 87
(Tex. App.—Fort Worth 2006, pet. ref’d) (using the severity of the injuries sustained by
the infant as evidence of the appellant’s intent).
Finally, with respect to the deadly weapon finding, Dr. Pustilnik testified as follows:
[STATE]: Now, in your experience of having done hundreds of the
autopsies, do you have an opinion as to whether or not somebody’s hand or
hands, depending on how it’s used, can be deadly weapons?
[DR. PUSTILNIK]: Yes.
[STATE]: And can they be deadly weapons?
[DR. PUSTILNIK]: They most certainly can.
[STATE]: Hypothetically if you use your hand or hands to strike someone or
to punch someone, could they—if they then cause death, could that be a
deadly weapon?
[DR. PUSTILNIK]: Yes, the hands could be a deadly weapon in that
situation.
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This testimony permitted the jury to find that appellant used or displayed his hands
as a deadly weapon. Appellant nonetheless argues that the evidence is insufficient to
support his conviction because the State failed to prove the means by which appellant
injured J.H. and could only prove that the death resulted from blunt force trauma.
According to appellant, “the means . . . is the entire crux of the trial.” But for the purpose
of appellant’s conviction (as opposed to the specificity required in the indictment or jury
charge, which we address later), the means by which appellant injured J.H. is
irrelevant—what matters is that he intentionally or knowingly caused a serious bodily
injury by at least one of the means listed in the indictment. See Kitchens v. State, 823
S.W.2d 256, 258–59 (Tex. Crim. App. 1991) (when jury returns general “guilty” verdict on
an indictment charging alternative theories of committing the same offense, the verdict
stands if evidence supports any of the theories alleged). Viewed in a light most favorable
to the verdict, the evidence supports such a finding. We overrule appellant’s first issue.
B. Expert Testimony
Appellant next argues that the trial court erred in allowing Dr. Frost to testify during the
State’s case in chief before appellant had cross examined Dr. Pustilnik. At trial and on
appeal, appellant argues that (1) the trial court deprived appellant of his Sixth Amendment
right to confront Dr. Pustilnik, whose staff created the slides for the autopsy report, before
Dr. Frost could testify based on the slides; and (2) the State violated the trial court’s
discovery order by calling Dr. Frost during the State’s case in chief even though he had
been designated as a rebuttal witness. Appellant also argues that the trial court erred in
allowing another State rebuttal witness, Dr. Harrell Gill-King, to testify “out of order as a
rebuttal witness” during appellant’s case in chief. We apply an abuse-of-discretion
standard of review to all of these issues except for appellant’s Sixth Amendment issue.
See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (a trial court’s ruling
admitting or excluding evidence is reviewed for an abuse of discretion). As to appellant’s
Sixth Amendment issue, we review the trial court’s ruling de novo. See Wall v. State, 184
12
S.W.3d 730, 742 (Tex. Crim. App. 2006) (a trial court’s ruling as to whether a statement is
testimonial or non-testimonial for Sixth Amendment purposes is reviewed de novo).
The Sixth Amendment right to confront witnesses applies not only to in-court
testimony but also to out-of-court statements that are testimonial in nature. Crawford v.
Washington, 541 U.S. 36, 50–51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004). The
Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is
unavailable to testify and the defendant had a prior opportunity to cross-examine the
declarant. Id., 541 U.S. at 68, 124 S. Ct. at 1374. In Melendaz-Diaz v. Massachusetts,
the Supreme Court held that reports prepared by analysts at a state crime laboratory stating
that a substance was cocaine were testimonial statements, and that the analysts who
prepared the report were therefore witnesses whom the defendant had the right to
cross-examine under the Sixth Amendment. 557 U.S. 305, 310, 129 S. Ct. 2527, 2532,
174 L. Ed. 2d 314 (2009). As the Court explained, the reports issued were
“incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing
or proving some fact . . .’” and therefore testimonial. Id. (quoting Crawford, 541 U.S. at
51, 124 S. Ct. 1354). Appellant argues that that the autopsy slides were similarly
testimonial in nature because Dr. Pustilnik’s office used them in preparing the autopsy
report, and he therefore had a right to cross-examine Dr. Pustilnik before Dr. Frost
testified. An autopsy photograph, however, is not a testimonial statement. See Wood v.
State, 299 S.W.3d 200, 214–15 (Tex. App.—Austin 2009, no pet.) (“The admission in
evidence of the [autopsy] photographs, Dolinak’s descriptions of the injuries shown in the
photographs, and Dolinak’s conclusions as to likely causes of those injuries did not
disclose to the jury any testimonial hearsay and thus did not violate the Confrontation
Clause.”); Hamilton v. State, 300 S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref’d)
(expert opinion based on data generated by scientific instruments operated by other
scientists not testimonial hearsay); accord TEX. R. EVID. 801(a) (a photograph is not an
out-of-court statement for hearsay purposes). Because the autopsy photographs were not
testimonial and Dr. Frost was subject to cross-examination about his own interpretation of
13
the slides, appellant fully enjoyed his Sixth Amendment rights as to all testimonial
evidence introduced against him. Moreover, appellant ultimately did have the
opportunity to cross-examine Dr. Pustilnik. The opportunity to do so did not arise until
after Dr. Frost had testified, but in the interim, the trial court instructed the jury not to
consider Dr. Frost’s testimony as evidence that J.H. suffered the injuries shown in the
slides unless and until their admissibility was established. See Moore v. State, 822
S.W.2d 844, 847 (Tex. Crim. App. 1994) (we presume that the jury follows the trial court’s
instructions and that a limiting instruction cures any harm).
We next turn to appellant’s argument that the trial court should have excluded Dr.
Frost’s testimony because the State violated the trial court’s discovery order by introducing
Dr. Frost’s testimony during its case-in-chief after designating him as a rebuttal witness.
Appellant argues that this designation deprived him of time to prepare for Dr. Frost’s
testimony. When appellant objected at trial, the trial court allowed appellant two hours to
prepare for Dr. Frost’s testimony. At the end of this time, appellant did not request a
further continuance or voice any objection. We conclude that appellant has waived
further complaint about this issue. See Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim.
App. 1985) (“It is well settled that the proper procedure when alleging surprise due to
violation of a trial court’s order for discovery is to object or ask for a postponement or
continuance of the trial.”).
Finally, appellant argues that the trial court erred in allowing Dr. Gill-King to testify
“out of order as a rebuttal witness.” The State designated Dr. Gill-King as a rebuttal
witness before trial and called him to the stand after appellant had cross-examined Dr.
Pustilnik and called his own expert witness. The following exchange took place:
[THE STATE]: State would request being able to call a witness out of order
for rebuttal, if we may.
[THE COURT]: Is that okay with you, Mr. Verret?
[APPELLANT]: Yes.
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Thus, appellant failed to preserve error as to this point. We overrule appellant’s
second issue.
C. Indictment
Appellant next contends that the trial court erred in denying his motion to quash the
indictment. After his first two motions to quash were denied at hearings, appellant moved
to quash his final re-indictment for causing serious bodily injury to J.H. The trial court
denied his motion by written order. Appellant argues that the trial court erred in denying
his motion to quash the final indictment because it failed to give him adequate notice of the
manner and means of the charged offense.
We review de novo a trial court’s denial of a motion to quash an indictment.
Lawrence v. State, 240 S.W.3d 912 915 (Tex. Crim. App. 2007). A motion to quash
should be granted only where the language concerning the defendant’s conduct is so vague
or indefinite as to deny the defendant effective notice of the acts he allegedly committed.
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). A charging instrument
which tracks the language of a criminal statute possesses sufficient specificity to provide a
defendant with notice of a charged offense in most circumstances. State v. Edmond, 933
S.W.2d 120, 128 (Tex. Crim. App. 1996) (citing Bynum v. State, 767 S.W.2d 769, 778
(Tex. Crim. App. 1988)).
The indictment in this case tracked the language of the statute. As noted above, the
statute provides that a person commits injury to a child if he intentionally, knowingly,
recklessly, or with criminal recklessness causes a child serious bodily injury. TEX. PENAL
CODE ANN. § 22.04(a)(1). The indictment charges that appellant
did then and there intentionally or knowingly cause serious bodily injury to
[J.H.], a child 14 years of age or younger, by then and there inflicting blunt
force trauma to the head and/or torso of the said [J.H.] . . . .
See Perez v. State, 261 S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)
(where appellant was charged with causing serious bodily injury to a child “by causing
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forceful trauma to the Complainant’s head in a manner and means unknown to the Grand
Jury, and during the course of the offense the Defendant did use a deadly weapon, the
nature and description of which is unknown to the Grand Jury,” court held that the
indictment provided adequate notice to appellant).
Appellant cites a recent Court of Criminal Appeals case, Sanchez v. State, as proof
that the State can no longer allege that the manner and means of committing an offense are
unknown. See Sanchez, No. PD-0961-07, 2010 WL 3894640, at *1 (Tex. Crim. App. Oct.
6, 2010) (motion for rehearing pending). However, the Sanchez court expressly
disavowed appellant’s interpretation of its opinion. See id., 2010 WL 3894640, at *6
(“Our opinion should not be read to restrict or alter the use of the “unknown” allegation in
an indictment. This new standard merely provides the opportunity to avoid confusion and
error in the jury charge with respect to unknown allegations.”). Under Sanchez, appellant
is only entitled to a pretrial hearing to determine if he had been given proper notice to
prepare for trial and to clarify whether the “unknown” aspect of the case could be
minimized or eliminated by amending the indictment or presenting a superseding
indictment. Id., 2010 WL 3894640, at *5. Appellant essentially obtained two such
hearings on his motions to quash the two murder re-indictments, which contained
substantially the same language as his final re-indictment for causing a serious bodily
injury.4 Appellant did not obtain a hearing on his final motion to quash, which pertained
to the re-indictment for causing serious bodily injury to a child, but the contested language
was common to all of the indictments. We overrule appellant’s third issue.
D. Jury Charge
In his fourth issue, appellant argues that the trial court erred in incorporating into the
jury charge the language in the indictment describing as “unknown to the Grand Jury” the
means by which appellant inflicted blunt force trauma on J.H., the manner in which J.H.’s
4
The State did not produce evidence at these hearings, but it represented to the trial court that the
unknown matters could not be clarified by the State’s witnesses at that time.
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spine broke, and the deadly weapon appellant used or displayed. In our review of a jury
charge, we first determine whether error occurred. See Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994). If error occurred, we then evaluate whether sufficient
harm resulted from the error to require reversal. Id.
The trial court charged the jury as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 27th day of October, A.D., 2008, in Galveston County, Texas
[appellant] did then and there intentionally or knowingly cause serious
bodily injury to [J.H.], a child 14 years of age or younger, by then and there
inflicting blunt force trauma to the head and/or torso of the said [J.H.], with
the hand or hands of the said [appellant], and/or with or against an object
unknown to the Grand Jury, and/or by shaking, and/or throwing, and/or
dropping the said [J.H.], and/or by causing the spinal cord and/or spinal
column of the said [J.H.] to extend and/or bend until broken in a manner
which is unknown to the Grand Jury, then you will find the Defendant guilty
of Intentional or Knowing Serious Bodily Injury to a Child.
The jury was also asked to return a deadly weapon finding as to “the hand or hands of
[appellant] or an object which is unknown to the Grand Jury.”
We understand appellant to argue that the “unknown” matters became known by the
time the judge charged the jury, and that this language should have been replaced
accordingly. First, we disagree that the evidence at trial in fact clarified the unknown
matters. But we need not address whether it did, because any charge error was harmless
given that the evidence supports a conviction under one or more of the other theories
charged in the indictment and submitted to the jury. When a jury returns a general
“guilty” verdict on an indictment charging alternative methods of committing the same
offense, the verdict stands if the evidence is sufficient to support a finding under any of the
theories submitted. Kitchens v. State, 823 S.W.2d 256, 258–59 (Tex. Crim. App. 1991).
If the evidence is sufficient to support a finding of guilt based on at least one of the
alternative theories, then the verdict stands. Rosales v. State, 4 S.W.3d 228, 231 (Tex.
Crim. App. 1999); Kitchens, 823 S.W.2d at 258–59. Thus, even if one of the alternative
theories was erroneously submitted to the jury, a conviction still may stand if found under
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another submitted theory. In the case under review, the evidence supports a conviction
based upon a finding that appellant committed the offense by shaking, throwing, or
dropping J.H. The jury could have convicted on any one of these theories without ever
reaching the “unknown” language. Similarly, the jury could have concluded that
appellant inflicted the trauma with his hands rather than with an unknown object, and that
he used or exhibited his hands—rather than an unknown weapon—in the commission of
the offense. In no part of the indictment was an “unknown” matter the sole basis on which
the jury could convict. Thus, even if there were error in the charge as alleged by appellant,
that error would be harmless because the evidence is sufficient to support a finding of guilt
on at least one of the alternative theories. See Rosales, 4 S.W.3d at 231; Kitchens, 823
S.W.2d at 258–59. We overrule appellant’s fourth issue.
E. Autopsy Photographs
Finally, appellant argues that the trial court erred in admitting photographs from
J.H.’s autopsy because they were “cumulative and inflammatory.” Under Texas Rule of
Evidence 403, a photograph is admissible if it has probative value that is not substantially
outweighed by the photograph’s inflammatory nature. TEX. R. EVID. 403; Williams v.
State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). Rule 403 favors the admission of
relevant evidence and carries a presumption that relevant evidence will be more probative
than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
Analysis under the rule should generally consider: (1) how probative the evidence is, (2)
the potential of the evidence to impress the jury in some irrational, but nevertheless
indelible way, (3) the time the proponent needs to develop the evidence; and (4) the
proponent's need for the evidence. Id. A number of additional factors may also be
relevant in determining whether the probative value of photographs is substantially
outweighed by the danger of unfair prejudice, including: the number of photographs
offered, their gruesomeness, their detail, their size, whether they are in color or
black-and-white, whether they are close-up images, whether the body depicted is clothed
or naked, the availability of other means of proof, and other circumstances unique to the
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individual case. Williams, 301 S.W.3d at 690 (citing Long v. State, 823 S.W.2d 259, 272
(Tex. Crim. App. 1991)). Autopsy photographs are generally admissible unless they
depict mutilation of the victim caused by the autopsy itself. Id. However, mutilation
caused during an autopsy is not necessarily fatal to the admissibility of a photograph if the
photograph is highly probative of the medical examiner’s findings and conclusions or
when it allows the jury to see an internal injury. See Gallo v. State, 239 S.W.3d 757, 763
(Tex. Crim. App. 2007); Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim. App. 1983).
We review a trial court’s decision to admit or exclude evidence under an abuse-of
-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We
will uphold the trial court’s ruling as long as it was within the zone of reasonable
disagreement. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2004).
During Dr. Pustilnik’s testimony, the State tendered several photographs for him to
identify and explain to the jury. Of these, appellant objected to those marked as exhibits
61, 69, 75, and 76, and the trial court overrruled his objections. Exhibit 61 is a frontal
picture of J.H. with several marks on his body. Exhibit 69 is a frontal picture of the baby’s
body with much of the skin flayed back to show internal damage. Exhibit 75 is a picture
of J.H.’s skull with the skullcap removed, and Exhibit 76 is a picture of the exposed skull
with the skin around it flayed back. Having examined each contested photograph and Dr.
Pustilnik’s testimony, we conclude that the trial court did not abuse its discretion in
admitting the photographs. Dr. Pustilnik testified that he had chosen these pictures from a
much larger set in order to identify and explain J.H.’s injuries to the jury. He used each
photograph to explain J.H.’s injuries to the jury in ways that were probative of appellant’s
guilt. Exhibit 61, for example, shows “the pattern of lividity around the face and the
paleness on the right side of the face, nose, right cheek area. That is where the face
rested . . . after the heart stopped beating and the blood stopped circulating.” Jessica
testified that she put J.H. on his back when she put him to bed and that J.H. could not move
himself from that position. Exhibit 61 demonstrates that the baby was on his side or back
after his death, meaning either that Jessica was wrong or that someone else turned the baby
19
over. Exhibit 69 shows hemorrhaging that, according to the State’s medical experts, is not
consistent with a post-mortem injury, indicating that J.H’s ribs were not broken by
appellant’s CPR after the baby’s death. Exhibit 75 shows no subdural hemorrhaging,
meaning, according to Dr. Postilnik, that the baby likely did not die from being shaken
back and forth repeatedly. Exhibit 76 shows hemorrhaging on the back of the head, which
Dr. Pustilnik testified is independent evidence of blunt force trauma.
The images are gruesome, but autopsy photographs often will be; sometimes it is
impossible to show an injury that the defendant caused without altering the body in some
way. See, e.g., Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010) (photograph
of cross-sectioned tongue was admissible because it showed an injury that was not
otherwise visible); Gallo, 239 S.W.3d at 763 (concluding trial court did not err by
admitting photographs of the decedent's rib, skull cap, and brain, all visible due to the
decedent’s autopsy, because they were necessary to show the injuries sustained); Harris,
661 S.W.2d at 108 (concluding trial court did not err by admitting photograph of decedent's
skull with skin refracted because it was necessary to show a skull fracture); Drew v. State,
76 S.W.3d 436 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (where relevant to
explain injuries, trial court did not err in admitting autopsy photographs showing victim’s
head with the top part of the skull sawed off, exposing the brain; the skull with the scalp
pulled over victim’s face; the interior part of the skull with the brain removed; the brain
outside the skull; and the excised windpipe).
We hold that the trial court did not abuse its discretion by concluding that the
probative value of the photographs was not substantially outweighed by the potential for
unfair prejudice and overrule appellant’s final issue.
IV. CONCLUSION
We conclude that the evidence is sufficient to support appellant’s conviction; that
the trial court did not err in allowing Dr. Frost to testify during the State’s case in chief; that
the trial court did not err in denying appellant’s motion to quash the indictment; that even if
20
the charge contains error as alleged by appellant, that error is harmless; and that the trial
court did not abuse its discretion in admitting J.H.’s autopsy photographs. Accordingly,
we affirm.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Brown, and Christopher.
Publish — TEX. R. APP. P. 47.2(b).
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