Jefferson, Raymond v. State ( 2004 )

Affirmed and Memorandum Opinion filed November 24, 2004

Affirmed and Memorandum Opinion filed November 24, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01050-CR

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RAYMOND JEFFERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 948,877

M E M O R A N D U M   O P I N I O N

A jury found appellant Raymond Jefferson guilty of injury to a child.  Appellant argues that the jury charge permitted a finding of guilt on less than a unanimous verdict.  We affirm.

Appellant and Connie Knight lived together in Houston with Knight’s children, including Knight’s daughter Raysate Knight (“Raysate”).  Because of Knight’s drug use early in Raysate’s life, Raysate lived in foster care and with relatives until she was about four years old. Raysate then lived with appellant and Knight for about two years.  During this time, Raysate was subjected to extreme physical abuse and deplorable living conditions, including often being required to sleep in a closet.  On September 7, 2001, appellant apparently kicked Raysate, who fell, hit her head, possibly began having a seizure, and ultimately died.  Appellant and Knight disposed of Raysate’s body in a ditch and subsequently fled to Louisiana, where they were eventually caught.  Appellant was convicted of injury to a child on August 22, 2003, and sentenced to life in prison.

In the sole issue presented for our review, appellant contends that the jury charge permitted a finding of guilt on less than a unanimous verdict.  Under the charge submitted by the trial court, the jury could return a verdict of guilty if it found that appellant caused serious bodily injury to Raysate by any one of the following:  (1) striking her with his foot; (2) causing her head to strike an unknown object; (3) while having assumed custody or care of Raysate, by failing to stop the physical abuse of Raysate by Knight; or (4) while having assumed custody or care of Raysate, by failing to provide proper medical care to Raysate.  Appellant argues that this charge allows for less than a unanimous verdict because some members of the jury could find that the injury resulted from an act by appellant while other members of the jury could find that the injury resulted from a failure to act by appellant or a failure by appellant to provide medical care. In essence, appellant argues that the jury charge presents three distinct offenses.  The State contends that appellant was charged with one offense and that the jury was given multiple alternatives of the manner or means in which the offense was committed.

We must first determine whether appellant preserved charge error.  Francis v. State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000).  In order to preserve charge error, an appellant’s objection or written instruction must “‘call the trial court’s attention to the omission in the court’s charge.’”  Id. (quoting Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986)); see also Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2004–2005) (providing the procedure to be followed to preserve charge error).  Before the charge was read to the jury, appellant argued that the charge should be changed so that injury to a child based on omission and injury to a child based on committing an act were charged as separate offenses. Appellant contended that this change was necessary to ensure a unanimous verdict.  Because appellant’s objection sufficiently apprised the trial court of the potential charge error, we believe that appellant’s objection preserved error. See Francis, 36 S.W.3d at 123.

The Court of Criminal Appeals has held that “[i]t is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.”^[1]  Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).  Further, there is no requirement that the jury specify which alternate theory it believes was proved.  Murchison v. State, 93 S.W.3d 239, 258 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  In the instant case, appellant was charged with one offense (injury to a child), and alternate theories of committing this offense were submitted to the jury.  See Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003) (providing that “[a] person commits an offense if he . . . by act or . . . by omission, causes to a child . . . serious bodily injury”).  Because it is proper to charge a jury in the disjunctive with multiple theories of committing a single offense, appellant’s right to a unanimous verdict was not violated in this case.  See Kitchens, 823 S.W.2d at 258; Murchison, 93 S.W.3d at 257–58.

Appellant relies on Francis v. State in support of his argument that the jury charge permitted conviction on less than a unanimous verdict.  We agree with the State that Francis is distinguishable from the instant case.  In Francis, the Court of Criminal Appeals reversed a conviction for indecency with a child because the jury charge allowed conviction on less than a unanimous verdict.  36 S.W.3d at 125.  In that case, the State introduced evidence of four separate incidents between the defendant and the victim, two involving the touching of the victim’s breasts and two involving the touching of the victim’s genitals.  Id. at 124.  The incidents occurred on different dates, and there was no evidence that any single incident involved both the touching of the breasts and the genitals of the victim.  Id. at 122, 124.  However, the jury charge permitted a finding of guilt if the jury believed that on one particular date, the defendant touched the breasts or the genitals of the victim.  Id. at 124.  The Court of Criminal Appeals held that two separate offenses were submitted to the jury in the disjunctive, not one offense with alternate theories of commission. Id.  The court theorized that six members of the jury might have believed that the defendant had only committed the breast-touching offense, while the other six members might have believed that the defendant had only committed the genital-touching offense.  See id. at 125.  This would have permitted a non-unanimous verdict.  Id.  Unlike in Francis, appellant in the instant case was charged with a single offense.  In order for the jury to have convicted appellant, all the members had to unanimously agree that appellant caused serious bodily injury to Raysate. Accordingly, the holding in Francis does not govern this case.

Because the jury charge did not deny appellant a unanimous verdict in this case, we overrule appellant’s sole issue for review and affirm the judgment of the trial court.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed November 24, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]  Appellant has not challenged the sufficiency of the evidence.