Darrell Eugene Hutcherson v. State ( 2012 )

NO. 07-11-00127-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 25, 2012
DARRELL EUGENE HUTCHERSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 10-06-7093; HONORABLE PAT PHELAN, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Darrell Eugene Hutcherson, appeals his conviction for the offense of
murder,1 and resulting sentence of confinement in the Institutional Division of the Texas
Department of Criminal Justice for a period of 45 years. We affirm.
Background
On May 13, 2009, Levelland police were called to 306 Avenue E about an
assault. Upon arriving at the location, officers discovered Assie Silva lying on his back
1
See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011).
with several significant injuries to his face. Of greatest concern was that Silva’s tongue
was swollen to such an extent that it was causing him to have difficulty breathing.
Paramedics removed Silva from the scene and took him to the emergency room at
Covenant Hospital in Levelland. By the time he arrived at the hospital, Silva had slipped
into a coma.
Because it was determined that Silva needed to be seen by a neurosurgeon, he
was transported to Covenant Hospital in Lubbock. Silva was diagnosed with a diffuse
axonal injury, which was explained to be an injury to the blood vessels and cells of the
brain that caused Silva’s coma. Silva had also suffered mandible fractures, a broken
cheek, rib fractures, and other injuries. Silva remained on a ventilator and in the coma
for two months following the assault with no signs of improving mental functioning.
Eventually, members of Silva’s family made the decision to withdraw care from Silva.
Silva died within minutes of the removal of the ventilator. Dr. Brian Norkiewicz, one of
Silva’s treating doctors at Covenant in Lubbock, identified the cause of Silva’s death as
being brain injury resulting from the May 13 assault.
Following Silva’s death, Dr. Fernandez2 performed an autopsy examination on
Silva. However, at trial, the State offered the testimony of Dr. Sridhar Natarajan, the
chief medical examiner for Lubbock County and the supervisor of Dr. Fernandez at the
time of the Silva autopsy, rather than offering the testimony of Dr. Fernandez.3 Prior to
2
The record does not identify Dr. Fernandez’s first name.
3
Based on statements made by counsel in a hearing held outside the presence
of the jury, it does not appear that Dr. Fernandez was unavailable to testify; rather, it
2
Dr. Natarajan testifying, appellant objected that Natarajan testifying about the autopsy
performed by Fernandez would violate appellant’s Sixth Amendment right to confront
and cross-examine witnesses against him. After hearing the arguments of counsel, the
trial court overruled appellant’s objection. Dr. Natarajan testified, over appellant’s
confrontation, hearsay, and relevance objections, that the cause of Silva’s death was
delayed medical complications due to blunt force head and facial trauma. Dr. Natarajan
also testified, again over appellant’s confrontation and relevance objections, that the
manner of Silva’s death was homicide.
At the close of evidence, appellant requested the inclusion of an application
paragraph in the jury charge that essentially would have instructed the jury that it could
not find appellant guilty of causing the death of Silva unless it determined that there was
no intervening cause of Silva’s death. The trial court heard the argument of counsel
regarding this requested instruction, and overruled appellant’s request. Appellant also
requested an alternative instruction presenting intervening cause as a defense. This
requested instruction was also rejected by the trial court. The jury found appellant guilty
of the offense of murder. After hearing punishment evidence, the jury sentenced
appellant to 45 years imprisonment. It is from this conviction and sentence that
appellant now appeals.
Appellant presents three issues by his appeal. By his first issue, appellant
contends that the trial court violated his Sixth Amendment right to confront and cross-
examine witnesses against him by allowing Dr. Natarajan to testify as to the cause of
appears that the State did not call Dr. Fernandez because it would have been
inconvenient to have done so.
3
Silva’s death. By his second issue, appellant contends that the trial court erred by
refusing to include an application paragraph about intervening or superseding cause in
the jury charge. By his third issue, appellant contends that the evidence was insufficient
to prove that appellant’s actions caused the death of Silva.
Confrontation Right
By his first issue, appellant contends that the admission of Dr. Natarajan’s
testimony regarding Silva’s cause of death violated appellant’s right to confront and
cross-examine witnesses against him in violation of the Sixth Amendment to the United
States Constitution. The State responds contending that Dr. Natarajan’s testimony
regarding Silva’s cause of death did not violate appellant’s confrontation rights.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI. The confrontation right also applies to out-of-court statements that are
testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 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. at 68. Whether a particular out-of-court
statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680
(Tex.Crim.App. 2008). Generally speaking, a hearsay statement is testimonial when the
surrounding circumstances objectively indicate that the primary purpose of the interview
or interrogation is to establish or prove past events potentially relevant to later criminal
prosecution. Id. Error in admitting evidence in violation of a defendant’s confrontation
4
right is constitutional error, which necessitates reversal unless the reviewing court
determines beyond a reasonable doubt that the error did not contribute to the conviction
or punishment. See TEX. R. APP. P. 44.2(a); Wood v. State, 299 S.W.3d 200, 214
(Tex.App.—Austin 2009, pet. ref’d).
In his argument of this issue, appellant presents a thorough analysis of the
development of the case law relating to claims of confrontation rights violations and
autopsy reports. However, appellant’s contention that the testimony of Dr. Natarajan
violated his confrontation rights is that “it became apparent from several of Dr.
Natarajan’s responses that he had based his conclusions largely upon discussions on
the cause of death with his absent colleague, Dr. Fernandez.” While the record reveals
that Dr. Natarajan’s conclusions were based largely on his discussions with Dr.
Fernandez, it also reflects that Dr. Natarajan did not testify as to what Dr. Fernandez
concluded to be the cause of Silva’s death. Likewise, the State did not offer the autopsy
report prepared by Dr. Fernandez into evidence.4 As such, Dr. Natarajan’s testimony
did not violate appellant’s confrontation rights because it was not testimonial hearsay.
See Crawford, 541 U.S. at 68. Rather, Dr. Natarajan testified about his opinion
regarding the cause of Silva’s death, and was subject to cross-examination regarding
the bases upon which that opinion rested as well as the reliability of the methods utilized
to reach his opinion.
4
For purposes of this opinion, we will assume, without deciding, that Dr.
Fernandez’s identification of Silva’s cause of death, and the autopsy report he prepared
related to Silva were testimonial. See Martinez v. State, 311 S.W.3d 104, 111
(Tex.App.—Amarillo 2010, pet. ref’d) (whether an autopsy report is testimonial must be
determined on a case-by-case basis).
5
Furthermore, as we explained in Martinez, the Confrontation Clause is not
violated merely because an expert bases an opinion on inadmissible testimonial
hearsay. Martinez, 311 S.W.3d at 112 (citing Wood, 299 S.W.3d at 213). This is so
because the testifying expert’s opinion is not hearsay and the testifying expert is
available for cross-examination regarding his opinion. Id. Because Dr. Natarajan did
not disclose the testimonial hearsay upon which his expert opinion was based, the jury
only heard the direct, in-court testimony of Natarajan, and appellant’s confrontation
rights were not violated. See id. Unlike in Martinez, Dr. Natarajan did not disclose to
the jury the testimonial statements contained in Dr. Fernandez’s autopsy report or
obtained by Natarajan from his discussions with Fernandez. See id.
Because Dr. Natarajan’s testimony regarding Silva’s cause of death did not
violate appellant’s confrontation rights, we overrule appellant’s first issue.
Charge Error
By his second issue, appellant contends that the trial court erred by refusing to
instruct the jury in the court’s charge regarding intervening or superseding cause of
Silva’s death.5 The State responds that the defensive theory advanced by appellant
5
Initially, appellant requested that the following be included in the application
paragraph of the court’s charge on murder: “You must first decide if the Defendant
caused the death of Assie Silva without the contribution of an intervening cause. If you
agree that an intervening cause exists, then you must find the Defendant not guilty of
murder.” Similar application paragraph language was requested as to the various
lesser-included offenses of murder included in the charge.
Alternatively, appellant requested an instruction paragraph that would provide,
“You are instructed that it is a defense to caus[ing] a death if you find an intervening
cause, as the term is used herein. And if you so find from the evidence before you that
6
has not been recognized as a defense in Texas, such a theory merely seeks to negate
an element of the charged offense, and the inclusion of the requested instructions would
constitute an improper comment on the weight of the evidence by the trial court.
At trial, appellant elicited testimony from Dr. Norkiewicz that, while it was not
likely that Silva would recover from the injuries inflicted by the assault, he would not
have died when he did if the ventilator had not been removed. Appellant further raised
questions regarding the propriety of Silva’s family making the decision to remove the
ventilator. On appeal, appellant points to the lack of direct evidence establishing that it
would have been medically impossible for Silva to recover from his injuries, and posits
that the removal of the ventilator was an intervening cause of Silva’s death.
When presented with a jury charge complaint, we review the charge under
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh’g). Under
Almanza, we must first determine whether error exists in the charge and, if we find
error, whether such error caused sufficient harm to compel reversal. See Ngo v State,
175 S.W.3d 738, 743–44 (Tex.Crim.App. 2005).
The trial court must provide the jury with “a written charge distinctly setting forth
the law applicable to the case; not expressing any opinion as to the weight of the
evidence, not summing up the testimony, discussing the facts or using any argument in
his charge calculated to arouse the sympathy or excite the passions of the jury.” TEX.
an intervening cause exists as to cause of death, then you will find the Defendant not
guilty.” Like the requested application paragraph, appellant requested that this
instruction be applied to each of the lesser-included offenses of murder included in the
charge.
7
CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Walters v. State, 247 S.W.3d 204, 208
(Tex.Crim.App. 2007). The trial court is required to instruct the jury on statutory
defenses, affirmative defenses, and justifications whenever they are raised by the
evidence. TEX. PENAL CODE ANN. §§ 2.03(d), 2.04(d) (West 2011); Walters, 247 S.W.3d
at 208–09. A defendant is entitled to an instruction on every defensive issue raised by
the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or
contradicted, and even when the trial court thinks the testimony is not worthy of belief.
Walters, 247 S.W.3d at 209.
Generally speaking, neither the defendant nor the State is entitled to a special
jury instruction relating to a statutory offense or defense if that instruction (1) is not
grounded in the Texas Penal Code, (2) is covered by the general charge to the jury, and
(3) focuses the jury’s attention on a specific type of evidence that may support an
element of an offense or a defense. Id. at 212 (relying on rationale of Giesberg v. State,
984 S.W.2d 245, 250 (Tex.Crim.App. 1998)). In such a case, the non-statutory
instruction would constitute a prohibited comment on the weight of the evidence. Id.
Special, non-statutory instructions, even when they relate to statutory offenses or
defenses, generally have no place in the jury charge. Id. at 211. We will evaluate
appellant’s proposed instruction in light of the three considerations outlined in Walters.
(1) Not grounded in the Texas Penal Code
The Texas Penal Code does not specifically provide a defense, affirmative
defense, or justification for intervening cause. See TEX. PENAL CODE ANN. §§ 2.03(a)
(providing that “[a] defense to prosecution for an offense in this code is so labeled by
8
the phrase: ‘It is a defense to prosecution . . . .’”), 2.04(a) (providing that “[a]n affirmative
defense in this code is so labeled by the phrase: ‘It is an affirmative defense to
prosecution . . . .’”), 8.01–.07 (West 2011) (defining general defenses and affirmative
defenses to criminal responsibility), 9.01–.63 (West 2011) (covering justifications
excluding responsibility). Also absent is an offense-specific defense in the nature of the
proposed instructions. See id. §§ 19.02-.06 (West 2011 & West Supp. 2011). As a
general rule, if the instruction is not derived from the Texas Penal Code, it is not “the
law applicable to the case” as contemplated by article 36.14. See Walters, 247 S.W.3d
at 214.
(2) Covered elsewhere in the jury charge
Both of the instructions appellant requested in the charge went to whether there
was an intervening cause of Silva’s death other than the assault committed by
appellant. The jury charge tracked the relevant statutory language identifying the
elements of the charged offenses of murder, manslaughter, and criminally negligent
homicide. As applied, the charge informed the jury that, to find appellant guilty of any of
these offenses, it had to find beyond a reasonable doubt that appellant caused Silva’s
death by hitting him in the head. Furthermore, the charge defined “intervening cause”
as “an event that comes between the initial event in a sequence and the end result,
thereby altering the natural course of events that might have connected a wrongful act
to an injury.”
A requested instruction that does no more than challenge an element of the
offense the State was called on to prove was the type of instruction addressed in
9
Giesberg, 984 S.W.2d at 250. In Giesberg, the Texas Court of Criminal Appeals
explained why the trial court did not err in refusing to include an “alibi” instruction:
A defensive issue which goes no further than to merely negate an element
of the offense alleged by the State in its indictment does not place a
burden of proof upon a defendant to establish it. The burden of proof is
upon the State to prove those allegations. An alibi only traverses those
allegations and casts doubt upon whether the State has met its burden.
As a result, an alibi is sufficiently embraced in a general charge to the jury
that the defendant is presumed innocent until he or she is proven guilty
beyond a reasonable doubt. There is ample room within that instruction
for a defendant to effectively argue his defense of alibi to a jury.
Id. (citations omitted). Accord Barnette v. State, 709 S.W.2d 650, 652 (Tex.Crim.App.
1986) (it is not error to deny requested instruction on “alternative cause” which “is
merely an affirmative submission of a defensive issue which merely denies the
existence of an essential element of the State’s case.”).
In the present case, to prove the offenses of murder, manslaughter, and
criminally negligent homicide, the State had to prove beyond a reasonable doubt that
appellant caused Silva’s death by hitting him in the head. Appellant’s defensive theory
that the removal of Silva’s ventilator was an intervening cause of Silva’s death went
directly to an element on which the State bore the burden of proof beyond a reasonable
doubt. Further, nothing in the jury charge prevented the jury from considering whether
the removal of Silva’s ventilator was an intervening cause of Silva’s death that would
negate the State’s proof that appellant’s assault on Silva was the cause of Silva’s death.
See Walters, 247 S.W.3d at 213. As such, we conclude that the substance of the
instructions requested by appellant was adequately addressed in the jury charge.
(3) Focusing jury’s attention on specific type of evidence
10
Because the defensive issue concerning the cause of Silva’s death was
adequately accounted for within the general charge to the jury, a special instruction on
intervening cause would have needlessly drawn the jury’s attention to the evidence of
the propriety of Silva’s family’s decision to remove the ventilator, rather than on the
causal link between appellant’s assault on Silva and his subsequent death. Therefore,
the special instruction on intervening cause would have constituted an unwarranted
comment by the trial court on the weight of the evidence. See id. at 210; Giesberg, 984
S.W.2d at 250.
As each of the three relevant factors favor the trial court’s refusal of appellant’s
requested instructions, we conclude that the trial court did not err by refusing to include
either of the proposed instructions in its charge to the jury. Accordingly, we overrule
appellant’s second issue.
Sufficiency of the Evidence
By his third issue, appellant contends that the evidence was insufficient to
support the jury’s verdict that appellant was guilty of causing the death of Silva.
Appellant’s contention is that the arguably improper removal of Silva’s ventilator by the
family constitutes improper treatment which breaks the causal chain between
appellant’s assault of Silva and Silva’s death.
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
11
323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a fact finder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
(Cochran, J., concurring). When reviewing all of the evidence under the Jackson
standard of review, the ultimate question is whether the jury’s finding of guilt was a
rational finding. See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting
opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining
the proper application of a single evidentiary standard of review). “[T]he reviewing court
is required to defer to the jury’s credibility and weight determinations because the jury is
the sole judge of the witnesses’ credibility and the weight to be given their testimony.”
Id. at 899.
In a murder prosecution, the State must prove beyond a reasonable doubt that
the injuries inflicted by the defendant caused the death of the decedent. Reeves v.
State, 101 S.W.2d 245, 246 (Tex.Crim.App. 1937). If the injuries caused by the
defendant contributed to the death of the deceased, he is responsible even though
other contributing causes existed. See Wright v. State, 388 S.W.2d 703, 706
(Tex.Crim.App. 1965). This is true even if complications arise during treatment of the
victim unless the evidence shows that those complications can be attributed to gross
neglect or improper treatment. See Jones v. State, 582 S.W.2d 129, 134
(Tex.Crim.App. 1979).
12
Looking to appellant’s specific argument in support of his claim that the evidence
is insufficient to establish that he caused Silva’s death, he simply asserts that Silva’s
family’s decision to have the ventilator removed was done “without proper legal
authorization.” A review of the record establishes that there was enough evidence
admitted to have allowed the jury to make a reasonable inference that the family’s
decision to remove the ventilator was done without proper legal authorization.
However, the record also contains testimony from Dr. Norkiewicz identifying the cause
of Silva’s death as brain injury resulting from the assault, and Dr. Natarajan concluding
that Silva died from “delayed medical complications due to blunt head and facial
trauma” and that his death was a homicide. When, as here, there is a conflict in the
evidence, a reviewing court must defer to the jury’s determination of the credibility and
weight to be afforded to the evidence. See Brooks, 323 S.W.3d at 899. The evidence
from each of the two doctors that appellant’s assault of Silva was the cause of Silva’s
death is sufficient evidence to support the jury’s determination that appellant was guilty
of murder beyond a reasonable doubt.
Because sufficient evidence was admitted to support the jury’s conviction of
appellant for the murder of Silva, we overrule appellant’s third issue.
Conclusion
Having overruled each of appellant’s three issues, we affirm the judgment of the
trial court.
Mackey K. Hancock
Justice
Publish.
13