Kerry Dean Parks v. State

Affirmed and Opinion filed March 19, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00554-CR
KERRY DEAN PARKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1385381
OPINION
Appellant Kerry Dean Parks was charged with causing serious bodily injury
to a child. A jury found appellant guilty, determined that he used or exhibited a
deadly weapon during the commission of the offense or in immediate flight
therefrom, and assessed his punishment at life in prison. In his first two issues,
appellant contends he received ineffective assistance of counsel because his trial
counsel failed to move to suppress, or request a limiting instruction regarding,
evidence of alleged extraneous conduct. In his third issue, appellant contends the
trial court erred in permitting a testifying psychologist to remain in the courtroom
during the complainant’s testimony. And in his fourth issue, appellant asserts the
court erred in permitting an investigating police officer to explain his feelings
regarding the complainant and the complainant’s injuries. We affirm.
I. Background
Appellant married complainant’s mother in 2010 and subsequently adopted
complainant that same year. Complainant was thirteen years old at the time of trial
in 2013. He testified that appellant required that he clean the family house several
times a day and, when he failed to do so to appellant’s satisfaction, appellant
would spank him with a leather belt. At first, complainant was fully clothed during
the spankings, but appellant subsequently required complainant to strip to his
underwear or even to his bare skin. Complainant stated that appellant sometimes
would tie him to a chair. The spankings hurt and made complainant cry.
According to complainant, appellant would hit him ten to eleven times with a belt
on average during these spankings. By the time school started in the fall of 2011,
appellant was spanking complainant in this manner three to five times a day. The
spankings initially caused only red marks on complainant’s skin, but later they
caused bleeding. At some point, appellant began applying substances to
complainant’s wounds, including rubbing alcohol, Epson salts, table salt, and
vinegar. Complainant testified that the application of the substances to the wounds
caused significant pain.1
During the fall semester, teachers at complainant’s school began noticing
complainant limping when he walked. When asked what was wrong, complainant
1
As will be discussed in more detail below, Dr. Marta Rosenberg, a psychologist who
treated complainant and was also a testifying witness at trial, was permitted to stay in the
courtroom over objection during complainant’s testimony.
2
told them that his dog had bitten him on his bottom and the wound hadn’t healed.
When complainant came back to school after the winter break, in addition to his
limp, he had several open wounds on his head. Complainant told his teachers at
the time that he had had an accident on a scooter, but he testified at trial that the
head wounds were caused by appellant pushing complainant’s head into a column
of sheetrock near the stairs in his home. Concerned, the school’s assistant
principal had the school’s counselor make a report to Child Protective Services
regarding complainant’s injuries. In response to this report, Sergeant William
Barton came to the school and spoke with complainant.
Barton testified that when complainant first entered the room, he declined
Barton’s invitation to sit, saying he preferred to remain standing. Barton noticed
unusual bulges in the back of complainant’s baggy pants. He also noticed a fairly
recent wound on complainant’s head. When Barton questioned complainant about
any injuries he might have, complainant told the officer his dog had scratched him
on the buttocks and he had fallen off an electric scooter he received for Christmas.
Barton said that while giving these answers, complainant’s voice would get very
soft and he would look down and away. Barton explained that in his experience as
a police officer, when someone cannot make direct eye contact while answering a
question, it is an indication they are not telling the complete truth or are trying to
hide something. Barton told complainant that he knew complainant was not telling
the whole truth. According to Barton, complainant then told him about the
spankings he received from appellant.
Barton requested another officer to come to the school with a camera to
record complainant’s injuries. When the time came to take the photographs,
Barton discovered that complainant’s wounds, running from the small of his back
to about halfway down his thighs, were covered in gauze bandages, some of which
3
were stained and stuck to complainant’s skin from the seeping of the wounds. An
ambulance was called and complainant was taken to Texas Children’s Hospital,
where medical personnel worked for several hours to remove the bandages. Over
objections for relevance and nonresponsiveness, Barton testified that he stayed
with complainant until 8 p.m. because he wanted to comfort complainant while he
received treatment.
Complainant was subsequently transferred to Shriner’s Children’s Hospital,
where he received several skin grafts and physical therapy. A physician who
treated complainant’s injuries at Texas Children’s Hospital, Dr. Rohit Shenoi,
testified that for the injuries to have been caused by a belt, the spankings would
have to have occurred over a long period of time and with “extraordinary force.”
At first, he thought the wounds were burns but stated that the “repeated application
of some chemical products” or Epson salts could cause the same effect. He saw no
evidence to support the explanation offered by complainant’s mother that a dog
had bitten complainant.
Another physician, Dr. Carlos Jiminez, who treated complainant at Shriner’s
Hospital, explained that he could tell complainant’s injuries had been inflicted over
a significant period of time because different areas of skin were in different stages
of healing. He described some of the skin as dead and stated that some of the
wounds were infected. According to Jiminez, the wounds covered twelve percent
of complainant’s body. He dismissed the possibility that the injuries were related
to a dog bite and concluded instead that they were consistent with repeated
beatings with a leather belt. Both physicians described complainant’s wounds as
“serious bodily injury.”
Although appellant himself did not testify, defense counsel developed his
theory of the case largely through cross-examination of complainant and other
4
witnesses called by the prosecution. It was the defense’s position that complainant
received bites or scratches on his backside from a dog and that these wounds
subsequently became irritated and infected due to complainant’s chronic bed-
wetting problem during that period of time. The defense further sought to
emphasize the infection as the primary cause of damage to complainant’s skin and
suggested that, while the use of Epson salts on the wounds may not have been a
proper remedy, it was a common one.
The jury found appellant guilty of causing serious bodily injury to a child
younger than fifteen years of age and also found that he “used or exhibited a
deadly weapon, namely, a belt or vinegar or salt or alcohol, during the commission
of the offense . . . or during the immediate flight therefrom.” 2 The jury assessed
appellant’s punishment at life in prison.
II. Assistance of Counsel
In his first issue, appellant contends that he received ineffective assistance of
counsel because his trial counsel failed to move to suppress evidence of an alleged
extraneous act or ask for a limiting instruction regarding the jury’s consideration of
that evidence. In his second issue, appellant asserts counsel’s failures prejudiced
his defense to such a degree that a new trial is warranted.
A. Standards of Review
An appellate court reviews the effectiveness of counsel according to the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668, 689 (1984).
Under this standard, a defendant must (1) demonstrate that trial counsel’s
performance was deficient and fell below an objective standard of reasonableness,
and (2) “affirmatively prove prejudice by showing a reasonable probability that,
2
There was testimony from Barton as well as the treating physicians in support of finding
that appellant used a deadly weapon in committing the offense.
5
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)
Review of a trial counsel’s performance is highly deferential, as there is a
“strong presumption that counsel’s conduct [fell] within the wide range of
reasonable professional assistance; that is, [appellant] must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689. Ordinarily, trial
counsel should be afforded an opportunity to explain his or her actions, and in the
absence of such opportunity, an appellate court should not find deficient
performance unless the challenged conduct was so outrageous that no competent
attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). To establish ineffective assistance of counsel based on a failure
to object, appellant must demonstrate that the trial court would have committed
harmful error in overruling an objection had trial counsel made one. See DeLeon
v. State, 322 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
The appellant bears the burden of proving by a preponderance of the evidence that
counsel was ineffective, and any allegations of ineffectiveness must be firmly
founded in the record. Thompson, 9 S.W.3d at 813.
B. Analysis
Appellant specifically complains about counsel’s failure to react to the
introduction of evidence indicating appellant caused head injuries to complainant
by pushing complainant’s head into a column. This evidence came in through four
sources:
• a teacher at complainant’s school, who noticed complainant came back to
school after the winter break with not only a continuing limp but also
open wounds on his head;
6
• Barton, who testified complainant initially told him the head injuries
were caused when he fell off his scooter but later said appellant pushed
his head into a column;
• a physician, who consulted on complainant’s injuries and was offered as
an expert on child abuse at trial and who testified that he did not believe
complainant’s head injuries were caused either by falling off a scooter or
hitting his head on a column but did believe that complainant was
abused; and
• Dr. Jiminez, who treated complainant at Shriner’s Hospital and opined
complainant’s injuries all resulted from abuse.3
Appellant maintains that such testimony was evidence of an unadjudicated
extraneous offense because he was charged with striking complainant with a belt
and applying certain substances to complainant’s wounds and not with pushing
complainant’s head into a column. Because his trial counsel failed to object to this
evidence or request a limiting instruction concerning its use, appellant contends
that he received ineffective assistance which prejudiced his defense.
Under Texas Rule of Evidence 404(b), evidence of extraneous offenses is
not admissible at the guilt-innocence phase of trial to prove that a defendant
committed the charged offense in conformity with a bad character. Tex. R. Evid.
404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). Such
evidence may be admissible, however, if it has relevance for other purposes apart
from character conformity. Devoe, 354 S.W.3d at 469. Evidence of another crime
may be admissible as “same-transaction contextual evidence,” as when different
crimes are intermixed in such a way that full proof by testimony of any one of
them cannot be given without revealing the others. Id. The jury is entitled to
know all relevant surrounding facts and circumstances of the charged offense. Id.
Only if the facts and circumstances of the charged offense would make little or no
3
Each of the four witnesses was shown photographs of complainant’s head injuries,
which were also admitted into evidence.
7
sense without also bringing in the same-transaction contextual evidence should
such evidence be admitted. Id. The necessity of this narration is an “other purpose
apart from character conformity” for which same-transaction contextual evidence
is admissible under Rule 404(b). Id. When evidence is admitted on this basis, the
defendant is not entitled to any limiting instruction concerning the use of that
evidence under Rule 404(b). Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim.
App. 2007).
A trial court’s ruling on the admissibility of extraneous offenses is reviewed
under an abuse-of-discretion standard. Devoe, 354 S.W.3d at 469. As long as the
trial court’s ruling is within the “zone of reasonable disagreement,” there is no
abuse of discretion and the trial court’s ruling will be upheld. Id. As stated above,
in order to establish ineffective assistance of counsel, appellant must demonstrate
that the trial court would have committed harmful error in overruling an objection
had trial counsel made one. See DeLeon, 322 S.W.3d at 381.
Here, the State argues that the testimony of the first two witnesses to discuss
complainant’s head injuries, the teacher and Barton, was necessary as same-
transaction contextual evidence in order for the jury to understand how the
investigation into complainant’s injuries came about. We agree. It is clear from
the testimony that although teachers had noticed complainant walking with a limp
in the fall of 2011, it was not until he came to school with head injuries after the
winter break that school personnel became concerned enough to report the matter
to authorities. Cf. Greene v. State, 287 S.W.3d 277, 283 (Tex. App.—Eastland
2009, pet. ref’d) (holding extraneous offense evidence that explained why
defendant was under investigation at time police discovered evidence for crime
charged was admissible as same transaction contextual evidence); Victor v. State,
995 S.W.2d 216, 223-24 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)
8
(same). Without this testimony, the jury would have been left without an
explanation as to why Barton came to the school to talk to complainant. Because
admission of this evidence over an objection would not have been error, counsel’s
failure to object did not constitute ineffective assistance. See DeLeon, 322 S.W.3d
at 381. Appellant would not have been entitled to a limiting instruction concerning
the jury’s consideration of the evidence. See Delgado, 235 S.W.3d at 253.
The testimony from the two physicians regarding complainant’s head
injuries was not tied to the impetus for the initial investigation. However, by the
time the physicians testified, appellant’s counsel already had begun developing the
defensive theory that complainant had been scratched or bitten by his new dog and
that the damaged skin had been irritated and become infected due to frequent and
prolonged contact with urine. The physicians’ testimony therefore was admissible
as rebuttal evidence. See Bass v. State, 270 S.W.3d 557, 562-63 (Tex. Crim. App.
2008) (holding extraneous offense evidence was admissible to rebut defensive
fabrication theory); Wheeler v. State, 67 S.W.3d 879, 888-89 & n.22 (Tex. Crim.
App. 2002) (holding extraneous offense evidence was admissible to rebut
defensive theories, including that defendant was framed for charged offense and
lack of opportunity). It is at least within the realm of reasonable disagreement that
evidence indicating complainant also had head injuries caused by child abuse was
relevant to rebutting the defensive theory and therefore admissible. We therefore
cannot say that appellant’s trial counsel was deficient in failing to object to
admission of this evidence. See DeLeon, 322 S.W.3d at 381.
Unlike with same-transaction contextual evidence, when extraneous offenses
are used as rebuttal evidence, the defendant may be entitled to a limiting
instruction. See Mason v. State, 416 S.W.3d 720, 742 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d). Although appellant’s counsel did not request such an
9
instruction in this case, the record is silent as to what reasons he may have had for
failing to do so. Generally, when the record is silent concerning the motives of
trial counsel, we will not speculate on possible motives and the strong presumption
of reasonable performance cannot be overcome unless the challenged conduct was
so outrageous that no competent attorney would have engaged in it. See
Goodspeed, 187 S.W.3d at 392; Green v. State, 191 S.W.3d 888, 895 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d). Appellant argues here that no competent
attorney would have failed to request a limiting instruction under these
circumstances, but on this silent record, appellant has not met his burden of
showing that his counsel’s representation was ineffective.4 See, e.g., Garcia v.
State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (holding trial counsel’s failure
to request a limiting instruction did not constitute ineffective assistance because
counsel did not want to draw more attention to the incriminating evidence); Ali v.
State, 26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.) (holding defendant did
not establish ineffective assistance of counsel where counsel failed to request
4
At least two Texas courts have held contrary to appellant’s contention under similar
circumstances. In Ex parte Varelas, the State presented evidence that the defendant, before
committing the charged offense of capital murder, had committed specific extraneous bad acts
against the child complainant. 45 S.W.3d 627, 630 (Tex. Crim. App. 2001) (orig. proceeding).
On direct appeal, however, the Court declined to speculate regarding why trial counsel may have
failed to request a limiting instruction. Id. at 632. In a subsequent habeas corpus proceeding, the
Court reversed and remanded the case based on an affidavit by trial counsel stating that his
failure to request an instruction was not based on trial strategy but “was simply an oversight.”
Id. In McNeil v. State, the jury also heard testimony concerning extraneous acts of violence
committed against a child complainant. No. 01-13-00234-CR, 2014 WL 6601514, at *1-2, 3-4
(Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. filed); see also id. at 13 (Jennings, J.,
concurring) (detailing evidence at issue). However, the First Court of Appeals in that case dealt
with a record that was not silent but contained a discussion before the bench in which defense
counsel explained that he did not want an instruction because he did not wish to attract any
further attention to the child’s other injuries. Id. at *4-5 (holding in light of this professed trial
strategy that defendant failed to establish the first Strickland prong of deficient performance).
Together, Varelas and McNeil demonstrate that appellant’s counsel may have had strategic
reasons for not requesting a limiting instruction.
10
limiting instruction but record was silent as to reason for that failure).5
Accordingly, we overrule appellant’s first two issues.
III. Witness Sequestration
In issue three, appellant contends the trial court erred in permitting a
testifying psychologist, Dr. Mary Rosenberg, to remain in the courtroom during the
complainant’s testimony. At the beginning of trial, the witness sequestration rule,
requiring the exclusion of witnesses from the courtroom so that they cannot hear
the testimony of other witnesses, was invoked. Tex. R. Evid. 614; see also Tex.
Code Crim. Proc. Art. 36.03 (concerning invocation of the witness sequestration
rule). Before complainant testified, the prosecutor requested that Rosenberg be
permitted to remain because complainant was thirteen years old at the time of trial.
Defense counsel objected based on the rule, indicating that complainant had other
caregivers present in the courtroom. The prosecutor then explained:
The—the other people in the courtroom—I guess he’s talking about
the CPS worker and an aunt, who have really no idea of what
[complainant] has been through at Shriners Hospital. The
psychologist knows exactly what he’s been through. And it is some
level of comfort for the child. Her testimony is not going to be
affected by what the child says. And the CPS worker is a witness and
will be leaving the courtroom.
The trial court overruled the objection and permitted Rosenberg to remain.
5
We additionally note in this case that one of the physicians who spoke regarding
complainant’s head injuries cast doubt on complainant’s later explanation that appellant pushed
his head into a column. Counsel may therefore have not wanted any instruction limiting the
jury’s use of this evidence.
Under his first two issues, appellant also complains that trial counsel did not file a motion
in limine requesting the State approach the bench before offering extraneous offense evidence.
Appellant, however, does not make any arguments specific to this contention or cite relevant
case law. See Tex. R. App. P. 38.1(i) (requiring that appellant’s brief contain “clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record”).
Consequently, we will not address the merits of this contention.
11
The purpose of the rule is to prevent the testimony of one witness from
influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex.
Crim. App. 2005). Rule 614 contains four exceptions to the witness exclusion
requirement, including an exception for “a person whose presence is shown by a
party to be essential to the presentation of the party’s cause.” Id. 614(3). The
party seeking to exempt a witness has the burden of showing that the claimed
exception applies. Russell, 155 S.W.3d at 180. Enforcement of the rule and its
exceptions lies within the sound discretion of the trial court. Caron v. State, 162
S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Appellant contends that the prosecutor made an inadequate showing that
Rosenberg’s presence was essential to the State’s case. Indeed, as set forth above,
the State merely suggested that Rosenberg knew what complainant had undergone
at the hospital and her presence might be of some comfort to the child. This
conclusory statement does not explain how or why her presence was essential to
the State’s case. Cf. Allen v. State, 436 S.W.3d 815, 822-23 (Tex. App.—
Texarkana 2014, pet. ref’d) (holding State’s conclusory statement was inadequate
to show witness’s presence was essential to its case); White v. State, 958 S.W.3d
460, 462 (Tex. App.—Waco 1997, no pet.) (same).6 However, even assuming the
trial court erred in permitting Rosenberg to stay in the courtroom, violation of an
evidentiary rule is non-constitutional error and will be disregarded unless it
affected the appellant’s substantial rights; thus, we need not reverse if, after
examining the record as a whole, we have fair assurance that the error did not
6
At one point during Rosenberg’s testimony, the prosecutor suggested she was permitted
to stay for complainant’s testimony because she was an expert. This basis for exempting
Rosenberg from the rule was not raised at the time she was exempted; moreover, the simple fact
she was to offer expert testimony in addition to fact testimony did not exempt her from the rule.
See Allen, 436 S.W.3d at 823. In addition, although legal guardians of crime victims should
generally be permitted to stay in the courtroom, there is no indication in the record that
Rosenberg was complainant’s legal guardian. See Tex. Code Crim. Proc. art. 36.03(a).
12
influence the jury’s deliberations to appellant’s detriment or had but a slight effect.
See, e.g., Allen, 436 S.W.3d at 823; see also Tex. R. App. P. 44.2(b). A key factor
in determining harm when a witness was erroneously allowed to remain in the
courtroom in violation of the witness sequestration rule is whether the witness’s
testimony was influenced by the testimony the witness heard. Russell, 155 S.W.3d
at 181-82.
Appellant argues that Rosenberg’s subsequent testimony was clearly
influenced by having heard appellant testify. Specifically, he points to the
following exchange during the prosecutor’s direct examination of Rosenberg:
Q. Dr. Rosenberg, you were excluded from the Rule . . . and you
were allowed to be in the room as [complainant] testified. Did you
make any observations of [complainant] during the time that he
testified?
A. I think he handled it very well, but as the questions progressed he
seemed to withdraw more.
Q. And what about his behavior made you think he was withdrawing?
A. He got quiet, he looked down.
Q. And would you characterize that as a normal response?
A. Yes.
[Defense Counsel]: Judge, I’ll object. It’s speculation as to what’s
normal on the part of a specific individual.
THE COURT: Overruled.
We begin our harm analysis by noting that in this excerpt, Rosenberg did not
specifically indicate whether she believed complainant was being truthful in his
testimony; she merely suggested that his apparent withdrawal on the witness stand
was a “normal response” to the circumstances. This brief testimony was neither
dwelt on at the time, nor was it raised at any other point in the proceedings,
including during the State’s closing argument. See Motilla v. State, 78 S.W.3d
13
352, 356 (Tex. Crim. App. 2002) (noting that whether the State emphasized error
can be a factor in harm analysis). More significant by far was Rosenberg’s
subsequent testimony—elicited by defense counsel—that she believed complainant
was telling the truth when he told her that appellant had abused him. The other
testimony elicited by the prosecutor from Rosenberg covered her treatment of
complainant in the hospital, statements made by appellant regarding complainant’s
injuries, and descriptions of complainant’s apparent pain and anxiety while in the
hospital. This testimony was clearly based on Rosenberg’s own observations
during complainant’s stay in the hospital and was not based on his testimony at
trial. See Allen, 436 S.W.3d at 824-25 (holding error in exempting expert from the
rule was harmless in part because focus of expert’s testimony was earlier interview
with child complainant and not complainant’s trial testimony); see also Russell,
155 S.W.3d at 182-83 (holding error in exempting police office from rule was
harmless even though officer corroborated other officer’s testimony and
contradicted appellant’s testimony).
Additionally, the State’s case against appellant was relatively strong, based
primarily on complainant’s own testimony, the history of how his injuries were
discovered, and the testimony of several treating and consulting physicians. The
physicians in particular expressly rejected the defense’s suggestion that the injuries
may have been caused by a dog scratch or bite and subsequent infection and
irritation and, instead, concluded that the injuries were caused by repeated
spankings with a leather belt and application of irritating substances to the wounds.
Considering the record as a whole, we have fair assurance that any error in
exempting Rosenberg from the witness sequestration rule did not influence the
jury’s deliberations to appellant’s detriment or had but a slight effect. See Allen,
436 S.W.3d at 824-25 (holding error in exempting expert from the Rule was
14
harmless in light of entire trial record). Accordingly, we overrule appellant’s third
issue.
IV. Explanation of Officer’s Feelings
Lastly, in issue four, appellant asserts the trial court erred when it permitted
Barton to testify regarding his feelings about complainant and the complainant’s
injuries. Appellant contends that this testimony was not relevant to any issue in the
case and served only to inflame the passions of the jury. Generally, relevant
evidence is admissible and irrelevant evidence is inadmissible. See Tex. R. Evid.
402. Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
or less probable than it would be without the evidence.” Id. 401. We review a trial
court’s determination as to the relevance of evidence under an abuse-of-discretion
standard and will uphold the trial court’s ruling so long as it is within the “zone of
reasonable disagreement.” Allcott v. State, 158 S.W.3d 73, 74-5 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).
Specifically, appellant cites the following exchange during the prosecutor’s
direct examination of Barton:
Q. While they were removing the outer bandages, did you observe
[complainant]’s facial expressions?
A. Yes, ma’am. Numerous times he grimaced in pain.
Q. By the time you left the hospital at 8:00 p.m. that night, had these
bandages been removed?
A. No, ma’am, they had not.
Q. Sergeant, in your 33 years of investigating child abuse cases and
other cases, how would you characterize this case?
[Defense Counsel]: Judge, I’ll object. Relevance as to comparison to
any other cases, as well as no proper designation of this witness as an
expert.
15
THE COURT: Sustained.
Q. Sergeant, why did you stay at Texas Children’s until eight
o’clock?
[Defense Counsel]: Object to relevance as to why he stayed.
THE COURT: Overruled.
You may answer that question, sir.
A. Because I’ve got four kids. They tell you—
[Defense Counsel]: Objection. Nonresponsive to anything after he
has four kids.
THE COURT: Overruled.
You may finish your answer.
[Defense Counsel]: I’ll object to the narrative.
THE COURT: Overruled.
You may finish your answer.
A. They tell you in law enforcement: Don’t get involved, don’t let
your personal feelings get into it. Seeing that, I couldn’t help but stay
and make sure that he’s comforted.
Defense counsel’s only relevance objection which was not sustained in this
exchange was to the question regarding why Barton stayed at the hospital as long
as he did. One of the key issues in this case was the seriousness of complainant’s
injuries, as appellant was charged with causing serious bodily injury to
complainant. See Tex. Penal Code § 22.04(a). The Penal Code defines “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.” Id. § 1.07(46). The fact that Barton
felt the need to stay late at the hospital with complainant speaks to the seriousness
of the child’s injuries. The prosecutor’s question was therefore relevant to a fact
that is of consequence to the determination of the action. See Tex. R. Evid. 401;
Thompson v. State, 274 S.W.3d 776, 778 (Tex. App.—San Antonio 2008, no pet.)
16
(explaining that evidence relating to child’s injuries was relevant to establishing
the offense of injury to a child). The trial court did not abuse its discretion in
overruling defense counsel’s objection. Accordingly, we overrule appellant’s
fourth issue.
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Publish — TEX. R. APP. P. 47.2(b).
17