Robert Gonzales v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00448-CR
ROBERT GONZALES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury found Appellant Robert Gonzales guilty of injury to a child and
assessed his punishment at fifty-five years‘ confinement. The trial court
sentenced him accordingly. In three issues, Gonzales argues that he is entitled
to a new trial because, at the guilt-innocence phase of the trial, the trial court
1
See Tex. R. App. P. 47.4.
erroneously admitted hospital photos of the child and the testimony of Jan
Arbuckle; Gonzales contends both alleged errors were harmful.2
II. FACTUAL BACKGROUND3
One day when C.H. was five months old, his mother Kristen had a job
interview. C.H.‘s biological father Danny had spent the night with C.H. at
Kristen‘s house the night before Kristen‘s job interview so that Kristen could get a
good night‘s sleep. Danny left at about 9:30 on the morning of the interview and
testified at trial that C.H. was normal and happy when he left. Kristen bathed,
fed, and dressed C.H. and planned to take him to her sister‘s house while she
went to the job interview. Gonzales, who was Kristen‘s boyfriend, stopped by
while Kristen was getting ready to leave and offered to watch C.H. while Kristen
went to the job interview. Kristen agreed and left at around 11:30 a.m.; she said
that C.H. was normal and healthy when she left. Kristen returned home at
approximately 1:00 p.m. Gonzales told Kristen that he had fallen with C.H.; she
rushed to C.H.‘s crib and discovered him limp, nonresponsive, and having
difficulty breathing. Kristen called 9-1-1.
2
We address Gonzales‘s three issues in the order they are argued in his
brief although they are numerically labeled differently in his brief‘s ―issues
presented.‖
3
Because Gonzales does not challenge the legal or factual sufficiency of
the evidence to support his conviction, we set forth only an abbreviated factual
background.
2
C.H. was near death when paramedics arrived, and he was care-flighted to
the hospital. At the hospital, C.H. was diagnosed with traumatic brain injuries—
including bleeding around the surface of his brain, brain swelling, and large areas
of dead brain tissue; rib fractures; massive subretinal hemorrhages; a fractured
heel; a laceration on the inside of his lip; lacerations and bruising on and around
his penis; and fresh petechiae on his right ear, forehead, nose, and upper arms.
Dr. Matthew Cox testified that C.H. would have been symptomatic immediately
after his injuries and that his distress would have been obvious. Dr. Cox
explained that C.H.‘s injuries were most likely caused by a severe and violent
traumatic event such as repetitive and violent shaking followed by a deceleration-
type impact. According to Dr. Cox, C.H. was neurologically devastated; he was
unable to roll, sit, or stand by himself and would in probability never be able to
walk, talk, feed himself, or recover from his cortical blindness.
Gonzales denied causing C.H.‘s injuries, saying that he fell while carrying
C.H. and that they bumped heads. Gonzales later admitted that he shook C.H. a
little bit to try to console him and to get him to stop crying. Still later in a recorded
interview that was played for the jury, Gonzales apologized for lying before and
admitted that he had become angry and frustrated because C.H. would not stop
crying and that he had shaken C.H., had freaked out, and had done things that
he should not have done.
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III. STANDARD OF REVIEW
We review evidentiary rulings under an abuse of discretion standard.
Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App.), cert. denied, 534
U.S. 855 (2001); Aguilera v. State, 75 S.W.3d 60, 64 (Tex. App.––San Antonio
2002, pet. ref‘d). The trial court abuses its discretion when it acts without
reference to any guiding rules and principles or acts in a manner that is arbitrary
or capricious. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1991). A trial court does not abuse its discretion if its ruling was at least within
―the zone of reasonable disagreement.‖ Salazar, 38 S.W.3d at 153–54.
IV. HOSPITAL PHOTOS
During the guilt-innocence phase of trial, the trial court admitted over
Gonzales‘s objection photographs of C.H. in the intensive care unit at the
hospital. In his first issue, Gonzales claims that the admission of all of the
hospital photos was error and was harmful. Gonzales argues that the photos
were ―not at all probative‖ but were ―highly prejudicial.‖
Danny testified that the photos accurately depicted C.H. as he appeared in
the hospital intensive care unit. The photos all show C.H. lying in the hospital
bed. They are taken from various angles and at varying degrees of closeness; in
some, C.H. is covered with a blanket––with only his head and face exposed––
and in some, he is not. Although the photos depict various tubes and monitors
attached to C.H., they are not gruesome in the sense of depicting bodily
mutilation or a bloody injury.
4
In reviewing whether the trial court abused its discretion by determining
that the photos were relevant, we note that––as argued by the State––the
photographs were probative of the violent trauma inflicted on C.H. and of the fact
that serious bodily injury was inflicted. See Tex. R. Evid. 401; Salazar, 38
S.W.3d at 151. In reviewing whether the trial court abused its discretion by
determining that the probative value of the photos was not substantially
outweighed by the danger of unfair prejudice, we note that when the power of
visible evidence emanates from nothing more than what the defendant himself
has done, the trial court does not abuse its discretion merely by admitting the
evidence. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); see
also Williams v. State, 301 S.W.3d 675, 693 (Tex. Crim. App. 2009) (explaining
that although photos, ―particularly the close-ups of the bullet wounds, are
gruesome[,] . . . they portray no more than the gruesomeness of the injuries
inflicted by appellant‖), cert. denied, 130 S. Ct. 3411 (2010); Gallo v. State, 239
S.W.3d 757, 763 (Tex. Crim. App. 2007) (holding that appellant did not preserve
error concerning admission of photos, but noting ―that all three photographs show
no more than the injuries that the victim suffered shortly before her death at a
time when appellant was the only adult with her‖), cert. denied, 553 U.S. 1080
(2008).
We have reviewed the objected-to photos here; they show no more than
the treatment of the injuries that C.H. suffered shortly before his arrival at the
hospital. Based on the record before us, we cannot say that the trial court
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abused its discretion by determining that the photos were relevant or that the
probative value of the photos was not substantially outweighed by the danger of
unfair prejudice to Gonzales. We overrule Gonzales‘s first issue.
V. JAN ARBUCKLE’S TESTIMONY
Jan Arbuckle was C.H.‘s caregiver at the time of trial, fourteen months
after his injuries. She testified as to C.H.‘s condition at the time of trial, the
various physicians C.H. was required to see, the medicines prescribed for C.H.,
and how C.H. was transported. Jan‘s total testimony comprises four pages in the
over one-thousand-page reporter‘s record. Gonzales objected to Jan‘s
testimony, claiming that it was improper victim impact testimony and was not
relevant. In his second issue, Gonzales argues that the trial court erred by
admitting Jan‘s testimony. In his third issue, Gonzales contends that the errors in
the admission of the photos and the admission of Jan‘s testimony were both
harmful.
Victim impact evidence is generally recognized as evidence concerning the
effect that the victim's death will have on others, particularly the victim's family
members. Tex. Code Crim. Proc. Ann. art. 56.03(b) (West Supp. 2011)
(describing information to be included in a victim impact statement); Mathis v.
State, 67 S.W.3d 918, 928 (Tex. Crim. App. 2002); see also Garcia v. State, 126
S.W.3d 921, 929 (Tex. Crim. App. 2004) (holding medical records of victim shot
by defendant did not constitute victim impact evidence). Jan testified briefly as to
C.H.‘s medical condition at the time of trial, fourteen months after he had
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sustained his injuries. Her testimony did not mention how C.H.‘s injuries
impacted Kristen‘s or Danny‘s lives or comment on the psychological impact (as
opposed to the physical aspect) of C.H.‘s injuries on him. Instead, Jan‘s
testimony was limited to describing the continuing physical impact of C.H.‘s
injuries on C.H. Accordingly, we cannot say that the trial court abused its
discretion by overruling Gonzales‘s improper-victim-impact objection to Jan‘s
testimony. See Garcia, 126 S.W.3d at 929 (holding ―trial court did not abuse its
discretion in overruling appellant‘s objection to the records‖ on the ground that
they constituted improper victim impact evidence).
As pointed out by the State on appeal, Jan‘s testimony was relevant; it was
probative of the ―violent nature of the assault, Appellant‘s intent, and the fact that
‗serious bodily injury‘ was inflicted even though Appellant admitted to only a mild
shaking of the baby.‖ Jan‘s testimony was relevant and probative for the State to
meet its burden of proving that C.H. had sustained serious bodily injury, as
alleged in the indictment and as defined in section 1.07 of the penal code. See
Tex. Penal Code Ann. § 1.07(46) (West Supp. 2011) (defining serious bodily
injury as ―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‖). Accordingly, we cannot say that the
trial court abused its discretion by overruling Gonzales‘s relevancy objection to
Jan‘s testimony.
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We overrule Gonzales‘s second issue. Because we have overruled
Gonzales‘s first and second issues claiming error in the admission of the hospital
photos and Jan‘s testimony, we need not address his third issue claiming that
both of the errors alleged in his first and second issues were harmful. See Tex.
R. App. P. 47.1 (requiring appellate court to address only issues necessary to
final disposition of the appeal).
VI. CONCLUSION
Having overruled Gonzales‘s first and second issues and having
determined that we need not address Gonzales‘s third issue, we affirm the trial
court‘s judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 22, 2011
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