Carman, Patricia v. State

NO. 07-94-0166-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 30, 1996
______________________
PATRICIA CARMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
______________________
FROM THE 364TH JUDICIAL DISTRICT COURT OF LUBBOCK COUNTY;
NO. 92-415352; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
______________________
Before DODSON, BOYD and QUINN, JJ.
In eight points of asserted error, appellant Patricia Carman challenges her conviction of
intentionally or knowingly, by omission, causing serious bodily injury to a child and the
consequent jury-assessed punishment of 50 years confinement in the Texas Department of
Criminal Justice, Institutional Division. Appellant’s prosecution arose out of the death of her
seven-year-old stepdaughter, Stephanie Carman, on June 8, 1992. The State alleged her death was
the result of malnutrition. She and her husband, Steven Carman, Stephanie' s natural father, were
charged and tried before a jury in a joint trial that lasted five weeks. The trial involved extensive
expert testimony bearing on Stephanie’s condition and the cause of her death. For reasons we
later express, we affirm the judgment of the trial court.
In her eight points, appellant contends 1) the evidence is legally insufficient; 2) the
evidence is factually insufficient; 3) the trial court erred in admitting Steven’s statement in
violation of appellant’s Sixth amendment right of confrontation; 4) she was entitled to a new trial
based on misconduct of a juror; 5) there was improper admission of reputation evidence at the
punishment phase; 6) the trial court erred in refusing to instruct the jury on the lesser-included
offense of endangering a child; 7) the trial court erred in admitting opinion testimony by an
unqualified expert witness; and 8) the trial court erred in refusing an instruction on criminal
negligence.
The nature of appellant' s challenge in her first two points requires us to recount the
relevant evidence in some detail. It also requires us to review the standards by which such
challenges are measured. When reviewing the legal sufficiency of the evidence, we are to apply
the standard articulated in Jackson v. Virginia, 433 U.S. 307, 99 S.Ct 2781, 61 L. Ed. 2d 560
(1979), and Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Under this standard,
evidence is legally sufficient to sustain a conviction if, when viewed in the light most favorable
to the verdict, a rational factfinder could find the essential elements of the offense beyond a
reasonable doubt. Jackson, 433 U.S. at 319. This standard of review is applied whether the
conviction is based on direct or circumstantial evidence. Alexander v. State, 740 S.W.2d 749,
757 (Tex.Crim.App. 1987), cert. denied, ___ U.S. ___, 114 S. Ct. 1869, 128 L. Ed. 2d 490
(1994).
The recent Court of Criminal Appeals decision in Clewis v. State, No. 450-94
(Tex.Crim.App. January 31, 1996), instructs that when the factual as well as the legal sufficiency
of the evidence is challenged, if, after applying the Jackson v. Virginia test we determine the
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evidence was legally sufficient, we must proceed to examine the evidence without the prism "in
the light most favorable to the prosecution. " Clewis, slip op. at 11. We are, rather, to examine
all the evidence, and if our review convinces us that the jury verdict is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust, we remand the case to
the trial court for retrial before another jury. Id.
We are cautioned to give proper deference to the decision of the jury and not to attempt
to reweigh the evidence and set aside a jury verdict merely because a different result seems more
reasonable. Indeed, the Clewis court quoted and adopted the requirement set out by the Texas
Supreme Court in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986), that courts of appeals,
when reversing on factual insufficiency grounds, must detail the evidence relevant to the issue in
consideration and clearly state why evidence is so insufficient that the jury' s verdict is manifestly
unjust, why it shocks the conscience or clearly demonstrates bias, and in what regard the contrary
evidence outweighs the evidence in support of the verdict. Clewis, slip op. at 14. It is under the
standards for both legal and factual sufficiency that we review the evidence in this case.
The State presented the testimony of Wilma Manning, an employee of the Texas
Department of Protective Services. She described a telephone call she received from appellant
between 4:00 and 4:30 p.m. on June 8, 1992. According to Manning, appellant repeatedly
described Stephanie' s medical and mental problems, including an eating disorder, compulsive
behavior and Attention Deficit Disorder. Manning described appellant’s speech as loud and
continuous, with little opportunity for Manning to talk. In response to Manning’s suggestion to
take Stephanie to a doctor, appellant expressed concern about being accused of misconduct. The
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call ended when Manning heard a male voice yelling and appellant said, “Oh, my God, I have got
to call 911,” at which time appellant hung up the phone.
The State also presented the testimony of the paramedics who initially responded to
appellant’s 911 call. Lloyd Cody, the first paramedic, described Stephanie as “malnourished”
because her eyes were sunken and all of her ribs were clearly visible. His initial opinion was that
she had some serious medical problem or had not been eating. When he first saw her, Stephanie
was not breathing and her heart was not beating. Cody described the room Stephanie was in as
“barren” with just a few articles of furniture. When shown photographs of the room taken on
June 10, 1992, he said the toys and some of the furniture shown in the photographs were not
present on June 8 when he saw the room.
A second paramedic called by the State, Robert Mello, also described the room in which
Stephanie was found as dark and barren with only a bed, a nightstand, some empty shelves and
a chair. Mello’s description of Stephanie was “emaciated,” “like one of the kids from like a
concentration camp or something.” He characterized appellant as very calm. This description
of appellant was not consistent with the EMS (emergency medical services) report written by
paramedic Tommy Crawford which described appellant as distraught. Appellant told Mello that
Stephanie had not been eating for two weeks. In his testimony, Mello described some of the
medical procedures taken with Stephanie, including the administration of intravenous fluids (IV).
The State next called Jeanette Whalen, an officer with the Lubbock Police Department who
responded to the Carmans’ call for help. She also testified that many of the items in the
photographs taken two days later, such as the dolls and other toys, were not present on June 8.
She stated that the reason she remembered the toys shown in front of a window in some of the
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photographs were not there on June 8 was because she specifically remembered another officer
walking to the window and opening the blinds to provide more light for the EMS personnel;
however, she did identify a dresser that Mello testified was not present as being in the room on
June 8.
Whalen described appellant as crying but not hysterical. When Whalen sought to obtain
some medical history, appellant told her that Stephanie suffered from Post-Traumatic Stress
Disorder as a result of mistreatment by her natural mother. Appellant also related that she “had
not been able to get Stephanie to eat at all” the previous week. Stephanie was taken to University
Medical Center where she was soon pronounced dead. Because of the circumstances surrounding
her death, an autopsy was requested by a Justice of the Peace.
Wayne Casey, another officer of the Lubbock Police Department and the principal
investigator in the case, described his involvement beginning with his attendance at Stephanie’s
autopsy on the evening of June 8, 1992. In addition to Casey, others present at the autopsy were
Sergeant Bill Hubbard, Dr. David Hoblit (who performed the autopsy), his assistant, an
ophthalmologist, and Dr. Garcia, who had seen Stephanie as a patient on previous occasions.
Casey described Stephanie as very thin with visible ribs and sunken eyes. Her skin was “very,
very pale,” she had abrasions and bruises on various parts of her body and very thin hair with
some patches missing. It was his impression that she had a long term illness or had been abused.
Casey, Hubbard, and another officer went to the Carmans’ home on June 10, 1992 to
investigate her death. Granted permission to inspect the home, the officers noticed that both the
door to Stephanie’s room and the door to her closet had chain-type locks mounted very high on
the doors, well out of a seven-year-old’s reach. Hubbard took photographs of Stephanie’s room.
5
The Carmans told the officers that Stephanie had been very disturbed and difficult to handle.
They explained that several stains on the carpet were due to the fact that Stephanie would urinate
and defecate in her room. The Carmans also provided the officers with a written record of what
Stephanie had eaten the previous week, from Monday, June 1 through Saturday, June 6, with two
notations labeled only Sunday and “Today, Mon.” This information was written on an envelope
postmarked in Hobbs, New Mexico on June 5, 1992.
Through Casey, the State introduced a chart that the family had on the wall of Stephanie’s
room that was used to record her height and weight. A notation on the chart showed that
Stephanie weighed 57½ pounds when she was seven years and nine months old. At the time of
her autopsy approximately a month later, Stephanie’s weight was 43½ pounds. Concerning the
toys he found in Stephanie’s room, Casey described them as brand new. He also found additional
new, unopened toys in her closet along with new dresses that still had store tags on them.
Casey interviewed and took written statements from appellant and Steven Carman. In
appellant’s statement, she described Stephanie as stubborn and willful and admitted that she had
occasionally locked Stephanie in her room. Appellant also stated she had “used food items as an
incentive with [Stephanie].” According to her, appellant had to “force feed [Stephanie] for about
a week.” Concerning the day that Stephanie died, appellant’s statement described Stephanie as
“mopey” as though she were seeking sympathy. The statement provided that Stephanie did eat
some pudding while appellant' s sister-in-law Carla was there that afternoon, and described the
events that followed:
[S]he got on the edge of the chair and just slid out of the chair and her butt hit the
floor and she just went [] onto her back hard. She was just laying there looking.
She didn’t look like she was sick. She got up in that mopey kind of way and got
some water. She did it like she was faking because she had faked it before.
6
...
Carla left and when I checked on Steph she was laying on her back in her room
holding her knees in the air. I mixed an Ensure shake for her and I took it to her
and she sat in her blue plastic chair. She drank a little of the shake and half a glass
of water. I decided to take her to the hospital. I asked her if she was hurting
anywhere but she wouldn’t answer me. She was leaning in the chair. I was
looking at her to see if she was faking. I told her if she didn’t answer me I was
going to take her to the hospital. She told me no, she was tired and wanted to rest.
When I left the room she was still in the chair but was acting like she was fixing
to get up. I called Christine at Social Service but she wasn’t there but I talked to
her supervisor. I was nervous that something was wrong, that Stephanie was
faking it but the water and the fact she wouldn’t answer me scared me and she was
hurting but wouldn’t tell me. She didn’t appear sick. I’m not sure what I said.
Steve came home while I was on the phone and walked in the back. He ran up the
hallway and said, “call 911, I think she’s dead.” I dialed 911.
Casey admitted that although appellant had described using M&M candy as a reward when
Stephanie would complete a school lesson, when he wrote the statement he only included that
appellant used food as a reward and incentive. He did not record any part of appellant’s oral
statement and disagreed with the idea that a tape recording “would be a good way to check and
make sure everything is accurate. ”
Casey also interviewed the couple’s other daughter, Loretta Carman, while she was staying
with family friends in New Mexico. Before that interview, the attorneys representing appellant
and Steven Carman requested to listen to the interview by telephone, to have the interview
recorded, or to allow JoAnn Jackson, the family friend with whom Loretta was staying, to be
present. Casey refused all three requests. He described Loretta’s responses during the interview
as “coached.” He said that she was flippant and used words that were not typical for her age but
were used by her parents.
Casey also disagreed with the view, even if it came from Dr. Hoblit, that any of the
bruises on Stephanie’s body were natural rather than the result of abuse. On cross-examination,
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Casey went so far as to say that it was possible for him to determine whether a child has been
abused based on what is present in or absent from a child’s room.
Stephanie’s natural mother, Myrtis Carman, described Stephanie’s early childhood. The
State introduced several photographs of Stephanie which Myrtis identified. She characterized
Stephanie as “chubby” in several of the photographs and denied ever giving Stephanie alcohol in
her bottle so she would sleep. According to Myrtis, Steven Carman talked her into letting Loretta
and Stephanie stay with him to attend school for one year. At the end of the year she reluctantly
permitted Steven Carman and appellant to keep the girls.
The State called Tammy Fowler, a special education teacher at Parsons Elementary where
Stephanie Carman attended school. Fowler taught a class designated as a “social adjustment”
class for students diagnosed as emotionally disturbed. Fowler described Stephanie as a very sweet
girl who loved attention. She felt that most of Stephanie’s misconduct was an effort to get more
attention from her. She said that Stephanie never had a problem with wetting her pants at school.
The teacher said appellant was involved in Stephanie’s education and would communicate with
her on a regular basis; however, Fowler did not always agree with appellant’s view of what was
in Stephanie’s best interest.
Fowler stated that she used food as part of a program of “rewards and consequences.”
This involved occasionally giving treats like candy to students for good work and making them
complete projects before having lunch. She said that appellant instructed her not to allow
Stephanie to participate in other student’s birthday parties at school. While she was in Fowler’s
class, Stephanie usually brought her lunch to school. Sometimes it was just a sandwich with a
note from appellant that Stephanie was not to have anything else.
8
The State presented several notes appellant had written to Fowler. These notes included
requests that Fowler not give Stephanie rewards such as candy or small gifts (such as an eraser),
or that Stephanie not brush her teeth at school because “this is very unsanitary with all the
diseases going around. ” Another note instructed Fowler to limit the time in which Stephanie was
allowed to eat her lunch stating, “She is very able to eat what I put in her lunch box within 15 to
30 minutes. She should not have any food left over. The only reason she would is she is being
distracted from the task of eating - and she must be focused!!” Fowler also commented that
appellant told her that they had guarded the refrigerator to keep Stephanie out of it.
In describing her opinion of the relationship between Stephanie and appellant, Fowler
thought that Stephanie was somewhat afraid of appellant. She never saw the two touch each other
and sometimes appellant was very abrupt with Stephanie. Stephanie was only in Fowler’s class
from August of 1992 to the following February, when the Carmans took her out of school to teach
her at home.
The State next called Christy Brabec, a friend of Stephanie’s older sister Loretta. Brabec
described the two times she visited the Carmans’ home. One occasion was to go swimming in the
Carmans’ swimming pool and another was a birthday party for Loretta. On the first occasion,
Brabec was only in the house a few minutes but on the second occasion, she and other guests
stayed overnight. Brabec said that she did not see Stephanie on either occasion but did see a door
that was closed while she was there. She conceded that Stephanie could have been visiting one
of her friends at the time.
Shelly Carman, Stephanie’s cousin, related her experiences when visiting Stephanie’s
home. According to Shelly, Stephanie did not play with the other children and was not allowed
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to eat with the family. She remembered appellant would fix a small plate for Stephanie after the
others had eaten. Shelly also said that Stephanie did not participate with the rest of the family in
opening presents on Christmas. Shelly also described playing with Stephanie in her room the
Christmas before her death. She also averred that almost all the toys and furniture shown in the
photographs taken June 10, 1992 were present the previous Christmas.
Harold Marlowe, a pharmacist at a pharmacy near the Carmans’ home in June 1992,
testified that appellant came to his store on June 3, 1992 and asked what to give her child who had
not eaten in four days. Marlowe recommended Ensure, which appellant purchased. Apparently
seeking to cast doubt on his memory concerning the date of the purchase, the defense produced
a receipt dated June 8 showing the purchase of a case of Ensure from Marlowe’s store and signed
by appellant’s mother, Phyllis Reynolds. The State next called Dominga Bates, who visited her
mother, a neighbor of the Carmans, on a daily basis. She described seeing appellant and Steven
Carman with their older daughter Loretta on many occasions, but she had never seen Stephanie
with them.
The State also called Barbara Pence as an expert witness. Dr. Pence held a Ph.D. and is
an associate professor of pathology in Lubbock. She studies and teaches nutrition. Dr. Pence
began by explaining charts used by doctors to plot the growth of children. She described that in
their early years children typically grow at a predictable rate and maintain an approximately
constant position relative to their peers. A child whose size and weight put her in the 50th
percentile at one year old would normally be expected to be very near the 50th percentile at six
years old. According to Dr. Pence, a significant change in the percentile ranking of a child would
indicate a problem of some type. The State produced a chart showing that Stephanie’s weight at
the time of her autopsy was below the 5th percentile based on her height. Dr. Pence also
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reviewed medical records of Stephanie’s growth from ages 10 months through 31 months. During
that time the records indicated Stephanie was between the 80th and 95th percentile of weight for
her height and that growth was normal.
Dr. Pence next discussed the process of malnutrition. She described two types of
malnutrition which may both exist in varying degrees. The first, Marasmus, is a decrease in the
total number of calories needed, the second, Kwashiorkor, is a severe protein deficiency. She
described the symptoms of Marasmus as a “wasted” appearance where bones are clearly visible.
This is a result of the body breaking down fat, and eventually muscle, for energy. Symptoms of
Kwashiorkor include altered pigmentation of a person’s hair, a buildup of fat in the liver, and
anemia.
Dr. Pence examined the autopsy records and photographs and was questioned concerning
her opinion of whether Stephanie suffered from malnutrition. Dr. Pence opined that Stephanie
was “very poorly nourished” based on her physical appearance including visible bones, bruises
and loss of hair. However, Stephanie’s physical appearance was also consistent with other
conditions, such as cancer. By using other information from the autopsy such as anemia, low
blood protein levels and fat changes in the liver, she concluded that Stephanie was suffering from
a combination of Marasmus and Kwashiorkor, and that it was the result of at least six months of
malnutrition.
Dr. Pence described a syndrome called Psychosocial Deprivation Dwarfism where parents
describe their children as eating excessively. Parents will restrict the child’s diet to the point
where the child becomes malnourished. The child will exhibit behavioral problems as a result of
inadequate nutrition often leading to further restrictions of food.
11
Over appellant’s objection, Dr. Pence testified that a sudden increase in food intake could
cause a severely malnourished person to experience heart failure. This is the result of a weakened
heart being unable to supply the blood needed by the stomach and intestines. The autopsy
indicated that Stephanie had a significant amount of food in her stomach when she died. In her
review of the blood analysis from the autopsy report, Dr. Pence noted several unusual values,
including low red blood cell count and blood proteins, albumin in particular. Stephanie also
exhibited a high value for creatinine which indicated to her the breakdown and use of muscle
tissue for energy. Dr. Pence felt that a person with the low amount of albumin present in
Stephanie’s blood would have been very lethargic and probably unable to walk in the hours before
the blood sample was taken. She also agreed that it is possible in some circumstances that a child
could lose well over half their body weight yet survive. She distinguished those cases from
Stephanie’s condition, citing the low blood protein levels and anemia.
In cross-examining Dr. Pence, the defense cited an article on Psychosocial Deprivation
Dwarfism relied on by Dr. Pence. In that article, the doctor discussed several tests and
background information required to diagnose that condition. While Dr. Pence conceded that the
tests had not been performed, she also asserted that the tests could not be performed after death.
She also rejected the defense' s contentions that the blood tests were distorted by the IV solution.
Dr. David Hoblit performed the autopsy on Stephanie. His testimony began with a
description of his background and training. Dr. Hoblit recounted that his residency included work
in forensic pathology and that he worked as an associate medical examiner in Corpus Christi. He
taught pathology at the University of California in the early 1970s and had an article published
in 1974. Although Dr. Hoblit was board certified in clinical pathology but not forensic pathology,
he estimated that he had performed some 800 autopsies, 400 of which were forensic autopsies.
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He described his familiarity with research on deaths related to malnutrition, which were typically
the result of improper efforts at weight reduction. He also stated that he participated in the
autopsies of two women who died from misuse of diet pills. Dr. Hoblit helped design the
laboratory monitoring portion of a weight reduction program operated in California.
Dr. Hoblit described the steps he took in conducting the autopsy of Stephanie Carman.
He began by obtaining the records made in the emergency room. Before conducting the autopsy,
Dr. Hoblit contacted Dr. Garcia, a pediatrician and director of a child abuse center, an
ophthalmologist, and a photographer. He also requested x-rays of Stephanie' s entire body. When
he weighed her on a scale provided by the University Medial Center, Dr. Hoblit found that
Stephanie weighted 43.8 pounds. 1 According to measurements made about 18 months prior to her
death, her weight put her between the 50th and 75th percentiles. Based on continued growth at
a normal rate, Hoblit estimated that Stephanie should have weighed between 58 and 66 pounds.
Dr. Hoblit found that Stephanie had only 0.5 centimeters of subcutaneous fat. He had
never seen a person with a measurement of less than 1.2 centimeters. He also found 25 to 35
percent hair loss. According to the medical literature upon which he relied, hair loss begins four
to six weeks after significant nutritional deprivation. Stephanie’s hair also exhibited
hypopigmentation (loss of pigment) which results from periods of severe protein deprivation.
1
In response to defense challenges to the accuracy of the scale, the State called the Nursing
Supervisor at University Medical Center, Nancy Smith. She provided the scale that Dr. Hoblit
used to weigh Stephanie before the autopsy. Smith described how the scale is stored and
calibrated before use. She was also present when Dr. Hoblit weighed Stephanie twice. She
calibrated the scale between the first and second weighings and remembered that the scale
indicated the same weight both times.
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In examining x-rays of Stephanie, Dr. Hoblit found “growth arrest” lines in the long
bones. Malnutrition is one of the causes of growth arrest. Dr. Hoblit described Stephanie’s heart
weight as 22 to 26 percent less than what it should have been. He stated flatly that that condition
was life threatening and caused Stephanie’s death. He also stated that her hemoglobin value of
4.5, less than half a normal value, could have independently caused her death. Malnutrition can
also cause a reduction in hemoglobin. He found such a reduction in Stephanie’s blood.
Stephanie’s serum protein was 2 grams when a normal value is between 6 and 8 grams, which the
doctor also attributed to malnutrition. According to Dr. Hoblit, Stephanie’s blood pH of 6.8 was
significantly below the normal of 7. 4 and was also a life threatening condition. He attributed the
low pH value to the use of fat stores for energy. His tests revealed no drugs in Stephanie’s body
at the time of her death. He also stated that the IV fluids given would not have altered these
findings.
Dr. Hoblit described Stephanie as exhibiting all ten symptoms listed in medical texts for
Kwashiorkor. He also described two types of malnutrition: primary, where there is an inadequate
diet; and secondary, where the malnutrition results from an inability to absorb or use nutrients.
His examination of numerous internal organs convinced him that there was no possibility of
secondary malnutrition. He described Stephanie’s heart as “ absolutely 100 percent diagnostic of
[Kwashiorkor].” Examination of Stephanie’s lungs did not show that aspiration of food particles
was a cause of her death; however, he did find extensive loss of muscle in her diaphragm, which
would have affected her ability to breath.
Dr. Hoblit also described the examination of Stephanie’s stomach. He determined it was
40 to 50 percent full and specifically noted that it contained identifiable cubes of potatoes that
showed no sign of having been chewed; however, it did not contain any pills. The stomach
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contents he examined were not consistent with the list of Stephanie’s meals that appellant gave the
police. In response to a hypothetical question from the State, Dr. Hoblit opined that even if
aspiration of food was the actual cause of Stephanie’s death, her other conditions were extremely
life threatening.
On cross-examination, the defense initially explored the relationship between Dr. Hoblit
and Lubbock County. Beginning in May 1992, Dr. Hoblit negotiated with Lubbock County to
hire forensic pathologists to perform autopsies for the County. On July 16, 1992, the County
entered into a $200,000 per year contract with Dr. Hoblit’s association. After having offers
rejected by two candidates, he hired Dr. Jody Nielsen, who left for a job in Beaumont shortly
after arriving. When asked why she left, Dr. Hoblit gave specific examples of problems. He
recounted three incidents where Dr. Nielsen objected to his scheduling autopsies she was to
perform, rather than directing requests for autopsies to her to schedule. She objected to law
enforcement officers “ looking over her shoulder” when performing autopsies. Dr. Hoblit also
described her as being friends with Sergeant Bill Hubbard of the Lubbock Police Department.
This friendship caused additional tension when Hubbard became the target of an investigation by
the Lubbock County District Attorney.
The defense then re-examined the possible IV contamination of the blood samples. Dr.
Hoblit stated that the amount of calcium in Stephanie’s blood was high, contrary to what would
be expected in a malnourished person; however, one of the IV solutions administered to Stephanie
contained calcium. Because he characterized non-congenital thyroid disease before adolescence
as “almost nonexistent,” he examined the thyroid only generally and did not dissect it or prepare
slides from it. Finally, he described malnourishment as a diagnosis of exclusion only to the
degree that secondary malnutrition must be excluded to diagnose primary malnutrition.
15
The State’s next witness was Dr. Ewell Clarke, a pediatric radiologist who teaches at the
University of Texas at San Antonio. Dr. Clarke examined the x-rays of Stephanie taken after her
death. He described two abnormal findings present in the x-rays. First, there was no detectable
subcutaneous fat which is normally visible, although the muscles were within normal limits.
Second, there were several growth arrest lines present in the bones of Stephanie’s legs. These
growth arrest lines indicate some severe stress such as cancer, a surgery, deprivation of food or
inability to absorb food. He indicated that the causal stress occurred within the previous 9 to 12
months.
Although he acknowledged on cross-examination that he had seen hyperthyroidism in a
seven year old, he was not asked whether those cases involved congenital conditions. He opined
that he had never seen a case where growth arrest lines were the result of emotional disturbance,
although he was aware of the possibility of such cases through his perusal of medical literature.
Dr. Clarke estimated that he would expect to find growth arrest lines in about 10 percent of
children.
The State then called Nina Stolzenberg, an intern in child psychology who saw Stephanie
from August 1990 through July 1991. She described Stephanie at that time as thin, but not so thin
as to cause concern. One of the tools Stolzenberg used to evaluate a new patient was to ask what
they would wish for if they had three wishes. Stephanie’s wish was for a fork, a knife and a
spoon. Stolzenberg testified that Stephanie did very poorly on some standardized tests. The
Carmans had expressed concern to Stolzenberg that Stephanie had been given strong alcohol and
been undernourished when she was an infant and that may have impaired her development.
Stolzenberg described the Carmans’ participation as minimal, giving as an example their canceling
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or failing to show up for at least 20 percent of the appointments that were made. The therapy
ended at the request of appellant.
The State next called Dr. Robert Bux, a medical examiner from Bexar County certified in
anatomical, clinical and forensic pathology. Dr. Bux examined the results of Stephanie’s autopsy
and gave his opinion as to her death. He began by noting several abnormalities in the blood tests,
specifically high calcium, low sodium, and extremely low protein, hematocrit and hemoglobin.
Dr. Bux dismissed the calcium and sodium values on the basis that the samples could have been
affected by the IV solution or an error in the operation of the testing equipment. Because other
values such as the enzyme levels were normal, he felt the blood samples were “valid.”
Dr. Bux also noted the absence of subcutaneous fat in the x-rays and photographs taken
at the autopsy and the growth arrest lines in the x-rays. The condition of the food found in
Stephanie’s stomach indicated to him that she had eaten just before she died. Because of the lack
of inflammation in the lungs, Dr. Bux believed that any aspiration of food occurred essentially
at the time of her death and was probably a result, rather than a cause, of her death. He also
noted the loss of muscle in her diaphragm and the fibrosis in her heart, both of which are
consistent with malnutrition. The autopsy information did not show any form of cancer or other
medical problem that might have accounted for Stephanie’s emaciated condition. Dr. Bux
concluded that Stephanie suffered solely from starvation and malnutrition due to lack of food.
This was so even though the autopsy showed several organs, including the spleen, thyroid, adrenal
glands, and the endocrine system were normal.
In response to defense evidence suggesting the existence of other causes of Stephanie’s
condition, the State called Dr. Wilhelmina Tengco, a child psychiatrist who had treated Stephanie
17
in 1990. Based on her examination and treatment of Stephanie, Dr. Tengco determined that she
did not suffer from an eating disorder, hyperthyroidism, leukemia or inability to absorb nutrients.
However, on cross-examination she admitted that she did not perform any laboratory tests for any
of these conditions. When queried, Dr. Tengco disagreed with the proposition that emotional
problems affected physical growth.
The defense began its case in chief by calling Tommy Debs Crawford, another paramedic
who responded to appellant’s 911 call. He was the first emergency medical person at the scene
and wrote the emergency medical service report on the event. When he first arrived, Steven
Carman was attempting to clear Stephanie’s mouth so she could breath. When Crawford began
working on Stephanie she had no pulse and a “huge” amount of vomit in her mouth had to be
cleared away. With the assistance of other paramedics, Crawford was able to force oxygen into
Stephanie’s lungs using a tube; however, the low level of oxygen subsequently found in
Stephanie’s blood indicated that the CPR was generally not effective.
Crawford’s report described Stephanie as “unresponsive, ” meaning there was no reaction
to any stimuli, including pain. It was his opinion that Stephanie had been in that condition for
“awhile” before they were called. He described appellant as “tearful and distraught.” When he
questioned appellant about Stephanie’s doctor, she replied that Stephanie did not have one.
Crawford also confirmed the other paramedics’ description of the room as very bare, with only
a bunk bed and a chest.
The defense also presented the testimony of Irwin Okun, the Carmans’ neighbor.
Although he admitted having Alzheimer’s disease, Okun remembered seeing Stephanie on two
18
specific occasions and that she seemed normal. Loretta visited the Okuns on several occasions
but Stephanie and her parents did not.
Cora Colleen Riley Carman, who goes by "Carla," is married to Steven Carman’s brother
and has worked as a nurse’s aid. She visited appellant’s home at least once or twice a week, often
accompanied by her children. Carla’s family would often celebrate holidays at Steven and
appellant' s home. Many of these visits included having meals together. On those occasions
Stephanie ate with the rest of the family. She directly contradicted the testimony of Shelly
Carman, stating that appellant and Steven Carman never deprived Stephanie of food or kept her
locked in her room. According to Carla, the only time Stephanie was required to stay in her room
was to finish schoolwork. She also stated that Shelly had never been at appellant’s home without
Carla and also contradicted Shelly’s description of Stephanie’s exclusion from the Carmans’
Christmas Day activities.
Carla testified that she had been in Stephanie’s room on many occasions, including the
week before her death, and that the room was always as it appeared in the photographs taken
shortly after Stephanie’s death. She described Stephanie as having a short attention span,
developing slowly and more likely to have emotional outbursts than most children. As long as
she had known Stephanie, she was “ just a little, skinny, little kid” and had not suffered any
noticeable weight loss.
On the day Stephanie died, Carla left work at 3:15 p.m. and went to appellant’s house.
Upon greeting her at the door, appellant told Carla that Stephanie would not eat and had not eaten
all day. Although Stephanie would not talk to Carla, she did eat some pudding at Carla’s request.
After eating, Stephanie went to the sink and got a glass of water. Carla described Stephanie’s
19
walk to the sink as skipping or hopping. After drinking the water, she returned to the table and
“lowered herself down” to the floor and sat there. 2 Carla and appellant discussed taking Stephanie
to a doctor because of Stephanie’s failure to eat, and appellant told Carla that she would probably
take Stephanie to a doctor after Steven got home. When Carla left the house at about 4 p. m.,
Stephanie was lying on the floor by her bedroom, but that did not strike her as unusual. Shortly
after she arrived home, Steven Carman called to tell her that Stephanie had been taken to the
hospital. Carla, her son, and her husband went to appellant' s house and then to the hospital with
Steven Carman. She described Steven as being in a “state of numbness.”
Daniel Carman, Carla and Michael Carman' s son and Stephanie’s cousin, spent the last
six weeks of the 1991-1992 school year at appellant and Steven Carman’s home, returning to his
own home a week before Stephanie’s death. He testified that during his stay he ate with the
Carmans and Stephanie always ate with the family. He also played with Stephanie in both the
front and back yards of the house, although he did say she spent most of her time in her room.
Daniel had been in Stephanie’s room on many occasions and said that it always appeared as it did
in the June 10 photographs. Daniel also contradicted Shelly’s account of the previous Christmas,
saying Stephanie was not excluded from the family’s activities. On the day Stephanie died, Daniel
was at the Carmans' house from early morning until his mother took him home at about 4 p. m.
He saw Stephanie walking around the house earlier in the day and said she was acting normally
at that time.
Daniel’s sisters, Sybil and Paulette, echoed much of his testimony. They had also visited
the Carmans’ house on many occasions, often spending the night. Both stated that Stephanie
2
Carla acknowledged that there was a slight discrepancy between her account and appellant' s,
which described Stephanie slumping out of a chair onto the floor.
20
regularly ate with the rest of the family. They remembered Stephanie’s room being as it appeared
in the June 10 photographs. The only time Sybil was aware that Stephanie was required to stay
in her room was when she was “in trouble” with her parents. The sisters last saw Stephanie a
week before her death and did not perceive that anything was wrong with her.
Stephanie’s sister, Loretta, testified that she saw their natural mother put Everclear in
Stephanie’s bottle on many occasions. Loretta described the bottle and recalled reading the label.
She also contradicted Shelly Carman’s claim that Stephanie did not eat with the rest of the family.
Loretta also disputed the State’s evidence that Stephanie’s room was barren. A videotape
introduced through Loretta showed Stephanie participating in Christmas activities in 1990 and
1991; however, the tape purported to be the Christmas 1991 tape showed only members of the
immediate family and did not show Loretta and Stephanie’s cousins, or Carla and Michael
Carman, as being present that day. In response to questions by the State, Loretta could not
identify any photographs or videotapes made between Christmas 1991 and Stephanie’s death the
following June. Loretta also testified that on June 8, 1992, Stephanie looked and acted normally.
When Steven came home from work that day, Steven asked Loretta to make coffee for him,
walked toward the master bedroom, and saw Stephanie lying on the floor of her room. Steven
then ran back to the kitchen and told appellant to call 911.
Describing her interview with Wayne Casey in New Mexico, Loretta denied that she had
been told what to say and said Casey was the only person who pressured her to make particular
statements. 3 She described previous occasions when Stephanie would refuse to eat for a few days
3
In response, the State called Ann Garton, an employee of a New Mexico social service agency
who was present during Loretta’s interview with Detective Casey. She testified that Casey did
not make any attempt to intimidate or pressure Loretta into giving particular answers to his
questions.
21
and told Casey that on occasion Stephanie would eat too much. Loretta knew that there was a
lock on Stephanie’s door that was used to keep her from getting up at night and eating “a lot.”
Loretta then denied initialing the pages of her statement and suggested that Casey put them on the
statement.
A family friend, JoAnn Jackson, testified that she and her family spent the Memorial Day
weekend before Stephanie died with the Carmans. Jackson, who had raised nine children,
described Stephanie’s appearance as normal. The only difference she observed in Stephanie’s
appearance between Memorial Day 1992 and the previous visit in April 1991 was that Stephanie
was taller; however, as the State pointed out, Stephanie had grown less than an inch in that period.
Jackson described Stephanie’s room as it appeared after her death. She also stated that Stephanie
ate with the family and occasionally ate a large amount.
The defense medical expert was Dr. Jody Nielsen, a forensic pathologist working in
Beaumont. Dr. Nielsen examined the autopsy report and much of the evidence on which it was
based. She was of the opinion that the small abrasions pointed out by the State’s experts actually
occurred after death. She discounted the hair loss saying it was consistent with Stephanie pulling
her hair out and that there was evidence of new hair growth. Dr. Nielsen was critical of Dr.
Hoblit’s failure to preserve a hair sample that illustrated the loss of pigmentation he found
indicative of malnourishment, suggesting instead that the photographs of Stephanie’s hair merely
showed reflections of light. Concerning the exclusion of secondary malnutrition through an
inability to absorb nutrients, Dr. Nielsen stated that the slides made of Stephanie’s intestine no
longer showed the structures needed to make that determination. She made a similar assertion
22
with regard to excluding the existence of leukemia, contending that a bone marrow sample was
necessary.
Dr. Nielsen disagreed that there was fatty metamorphosis in Stephanie’s liver. She found
that the fat layer around the heart was normal for a child and that the heart weight was normal.
She said these findings were inconsistent with malnutrition. She also suggested that Dr. Hoblit
“doesn’t know what a child’s heart look[s] like normally” and even suggested that he was
“manipulating the studies to say what he wanted it to say.” She challenged the electrolyte results
obtained from the blood samples on the basis that blood is not an accurate indicator after death
and opined that testing the vitreous fluid was required. According to Dr. Nielsen, Stephanie' s
subcutaneous fat measurement of 0.5 centimeters was normal. In her opinion, none of the autopsy
findings are pathonomic or diagnostic of malnutrition.
In Dr. Nielsen' s opinion, hyperthyroidism could account for both increased activity level
and metabolic rate resulting in weight loss. One of the hormones that would indicate
hyperthyroidism, T4, could be tested after death, but this test was not performed on Stephanie.
She also noted that no samples of the thymus, adrenal glands, or pancreas were taken, although
each would show evidence of malnutrition. In her opinion, because of Stephanie’s psychiatric
problems and eating disorder, the growth charts described by Dr. Pence did not apply to
Stephanie. Suggesting that Stephanie’s death could have been the result of another disease, Dr.
Nielsen pointed to a blood culture that indicated the presence of beta strep group b, an infectious
organism that “ has caused death . . . even in normal healthy people.”
On cross-examination, the State elicited the fact that Dr. Nielsen had never performed an
autopsy where malnutrition was determined to be the cause of death nor had she received training
23
in the field of nutrition. She also declined to estimate the number of autopsies she had performed
on children. Dr. Nielsen admitted that she was not familiar with Stephanie’s previous medical
history, but she did not think knowledge of that history was significant in determining the cause
of Stephanie' s death. She also admitted she had not reviewed all of the autopsy results and, in
particular, she had not examined the x-rays relied on by Drs. Clarke and Bux.
The defense called Steven Carman’s mother, Lodina Kelly. She related that although he
is large as an adult, he was very thin as a child. After Loretta and Stephanie went to live with
appellant and Steven Carman, Lodina questioned Myrtis about putting Everclear in Stephanie’s
bottle and, according to Lodina, Myrtis did not deny it.
In her legal insufficiency argument and citing Clark v. Procunier, 755 F.2d 394 (5th Cir.
1985), appellant advances the proposition that if the evidence, viewed in the light most favorable
to the prosecution, gives equal or nearly equal circumstantial support to guilt or innocence, then
a jury must entertain a reasonable doubt. Id. at 396. This proposition has recently been
reaffirmed by the Fifth Circuit in United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996);
however, as we have stated above, in measuring the legal sufficiency of the evidence, both direct
and circumstantial, we apply the Jackson v. Virginia test. See Geesa v. State, 820 S.W.2d 154
(Tex. Crim.App. 1991). Moreover, even assuming, arguendo, that the Clark test is applicable
here, we believe the differences in the nature of the evidence presented in Clark and in this case
are so significant as to make Clark inapplicable. In Clark, a business was burglarized and a safe
containing motor vehicle inspection stickers was moved to a back door of the building.
Apparently, part of the safe was outside the building. Some time later, stolen inspection stickers
were found in Clark’s wallet and his palm print was found on part of the safe. Thus, his
conviction depended upon an inference, based on meager evidence, that he entered the building,
24
moved the safe, and stole its contents. The court held the evidence was no more supportive of
that inference than of the inference that Clark only touched the safe after it had been moved to the
door; thus, was not sufficient to support a burglary conviction.
In this case, the jury’s findings were more dependent upon its resolution of the conflicting
evidence before it than upon inferences drawn from relatively undisputed evidence. It is well
established that determining the credibility of witnesses and the weight to be given their testimony
is within the peculiar province of the factfinder. McFarland v. State, No. 71,557 (Tex.Crim.App.
Feb. 21, 1996); Billey v. State, 895 S.W.2d 417, 419 (Tex.App.--Amarillo 1995, pet. ref’d).
This deference to the factfinder goes so far as to permit consideration of testimony that an
appellate court might find incredible. Cacy v. State, 901 S.W.2d 691, 703 (Tex.App.--El Paso
1995, no pet.). It is only when testimony is factually impossible that it must be ignored. United
States v. Casel, 995 F.2d 1299, 1304 (5th Cir. 1993).
The jury in this case was presented highly contradictory evidence; however, appellant has
failed to identify any testimony from the State’s witnesses that was factually impossible or
otherwise incredible. When viewed in the light most favorable to the prosecution, the evidence
was sufficient to permit a rational factfinder to find that appellant intentionally or knowingly, by
omission, caused serious bodily injury to Stephanie Carman; thus, it is legally sufficient to require
submission to the jury for a guilt or innocence determination and the trial court acted properly in
doing so. Appellant’s first point of error is overruled.
Reiterated, consideration of appellant' s challenge to the factual sufficiency of the evidence
requires a review of all the evidence without viewing it in the light most favorable to the
prosecution. If that review convinces us that the jury verdict is so contrary to the overwhelming
25
weight of the evidence as to be clearly wrong and unjust, we must remand the case for retrial
before another jury. Clewis, supra, slip op. at 11.
We are instructed that in conducting such a review, we must not substitute our judgment
for that of the jury. Clewis, slip op. at 12-14. Appellant argues that we “should review the
evidence of Dr. Nielsen to determine whether the testimony is a more plausible explanation for
Stephanie’s death and/or serious bodily injury.” (emphasis added). However, that of necessity
involves a determination of the credibility of the witness and the weight to be given her testimony.
This is precisely the type of review the Clewis court instructed us to avoid; indeed, it quoted with
approval the Supreme Court' s comment in Pool v. Ford Motor Co., 715 S.W.2d at 634, that
courts undertaking a factual sufficiency review “ are not free to reweigh the evidence and set aside
a jury verdict merely because the judges feel that a different result is more reasonable.” Clewis,
slip op. at 13-14. We are bound by that instruction.
It is only when an appellate court reverses a judgment based on factual sufficiency that it
must detail the relevant evidence and explain why that evidence is factually insufficient. Clewis,
slip op. at 14 (citing Meraz v. State, 785 S.W.2d 146, 154 n.2 (Tex.Crim.App. 1990); Pool, 715
S.W.2d at 635. Suffice it to say that we have carefully reviewed the evidence recounted above.
The jury' s resolution of the conflicts in that evidence was well within their province and was not
against the overwhelming weight of the believable or credible evidence. Appellant' s second point
is overruled.
In her third point, citing and relying upon Bruton v. United States, 391 U.S. 123, 88 S. Ct.
1620, 20 L. Ed. 2d 476 (1968), appellant assigns error to the admission of Steven’s written
statement in violation of her sixth amendment right of confrontation. In response to that
26
proposition, the State argues that 1) appellant waived any complaint about the admission of
Steven’s statement, 2) Steven’s statement was merely cumulative, and 3) a ”Bruton error may not
occur when both [defendants’] statements are entered.”
In Bruton, the United States Supreme Court held that the admission of a non-testifying co-
defendant’s statements incriminating the defendant violates the defendant’s sixth amendment right
of confrontation. 391 U.S. at 126. See also Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065,
13 L. Ed. 2d 923 (1965). Based on its holding in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774,
12 L. Ed. 2d 908 (1964), that an instruction to the jury to disregard a defendant’s confession if it
found the confession to have been given involuntarily was insufficient to safeguard the defendant’s
due process rights, the Bruton Court reasoned that an instruction limiting the purposes for which
a jury could consider a non-testifying co-defendant’s statements afforded no greater protection.
Bruton, 391 U.S. at 135. This holding was soon applied by the Court of Criminal Appeals to
invalidate a prior rule allowing statements of a principal to be used in the prosecution of an
accomplice. Schepps v. State, 432 S.W.2d 926, 943 (Tex.Crim.App. 1968) (op. on reh' g).
The relationship between co-defendants' statements was further explicated in Cruz v. New
York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987). In that case, the Court overruled
previous authority to the contrary and held that admission of a non-testifying co-defendant’s
incriminating statement was error regardless of a limiting instruction or the admissibility of a
corroborating statement made by the defendant. 481 U.S. at 193-94. Consequently, the State’s
third argument challenging this point is without merit; however, the Cruz Court did acknowledge
the possibility that the defendant’s statements could render admission of a co-defendant’s
incriminating statements harmless. 481 U.S. at 194.
27
As we note, the State also argues that appellant waived any error that might have occurred
when Steven’s statement was admitted by failing to object to its admission. The record shows that
when the officer who took the defendant’s statements began to testify concerning the statements,
the following colloquy occurred:
The Court: Is there anything we need to take up before we have the jury back in?
Defense: Yes, Your Honor.
Court: All right.
Defense: There are certain matters contained in each statement of Steve Carman
that we feel like should be redacted. There is the original, and here is [sic] some
of the things that we’re pointing out to the court.
Court: All of the highlighted portions?
Defense: Well -- And let me point out to you, Judge, that this sentence right here
probably needs to be -- the entire thing needs to be redacted, because if you redact
one word, it’s going to be pretty obvious. You know, they can fill in the blank
type thing is what I’m saying. So, I think those entire sentences need to be taken
out. 4
Court: All right. Have you all seen this [proposed redacted statement]?
Prosecutor 1: No, your Honor.
* * *
Prosecutor 2: The second page, we don’t have any problem at this point with
“when we lived in New Mexico,” [being taken out] but we do have a problem with
“I had a concern about Pat using food as an incentive with Steph.” That goes to
the heart of our proof, our issue here.
Court: Well, it' s pretty clear what time frame he’s talking about, though. I mean,
when we lived in New Mexico is the time frame.
4
At issue were two portions of Stephen’s statement concerning appellant’s fear of “Social
Services becoming involved again.” Appellant sought to exclude the entire sentence rather than
just the word “ again.”
28
Defense: Judge, this problem comes up a lot in federal court, and it’s called the
Bruton problem. And what happens is if Steve Carman didn’t testify, and you all
let that in, then I get to comment on his failure to testify to impeach this. And
then, we’ve got two mistrials is why it should be redacted in my opinion.
The trial court removed the entire sentence about Steven’s concerns when the family lived in New
Mexico. It also removed two occurrences of the word “again” as described in the objection
quoted below, but declined to remove all of the sentences. When the State sought to introduce
Steven’s statement, appellant made the following objection:
Defense: All right. Your Honor, if I need to state my objection again, I’m looking
at page two on Stephen [sic] Carman’s statement, wherein it says, “I remember Pat
saying that she was concerned about taking Stephanie to the doctor because she
thought Social Service would get involved, ” and then there’s a blank. I object to
that statement as a 404(b) matter, that it shows or attempts to show an act of
misconduct. It’s an attempt to show unfair prejudice, other than the charge we
have.
Then I object, “I think it was Tuesday of last week that Pat told me she was force
feeding Stephanie because she didn’t want Social Services becoming involved.”
There is no period after it. There’s just a blank. So, once again, there will be no
doubt what this jury will interpret from reading this. And we submit its 404(b)
matters that are -- that the Court has previously ruled are not admissible, and that
therefore, Pat Carman’s right to due process under the United States Constitution,
Fifth and Fourteenth amendments, Article I, Section 19 of the Texas Constitution,
Article 1.04 of the Texas Code of Criminal Procedure will be violated by allowing
this in. I also object that it violates Bruton versus U.S. And that in final argument,
there could be a requirement that I point out if Mr. Carman does not testify.
Court: All right. The objections are overruled.
Prosecutor 1: Very quickly before the jury comes back in, it’s my intent - -
Defense: Your Honor, I also just ask that there be a period put after those
sentences.
Court: Fine. I don’t have any problem with that, and I’ll just put a period. *
**
29
In support of its position, the State makes several arguments: 1) that the objections were
only to the cited portions of Steven’s statement rather than to the statement as a whole, 2) she
failed to make a pretrial motion to suppress the statement, 3) she failed to seek a severance, 4) she
failed to request a limiting instruction.
In order to preserve error for appellate review, a party must make a timely request,
objection or motion stating the specific grounds for the ruling he desires the court to make if the
specific grounds are not apparent from the record. Tex. R. App. P. 52(a). The purpose of this
rule is to allow the trial court to make a determination and ruling and then proceed with the trial
under the proper procedural and substantive manners, as appropriately corrected by the trial court.
Janecka v. State, 823 S.W.2d 232, 243-44 (Tex.Crim.App. 1990) (op. on reh' g). Requiring that
an objection be made at a time when there is an opportunity to respond and cure any error is
dictated by considerations of fairness and judicial economy. Young v. State, 826 S.W.2d 141, 149
(Tex.Crim.App. 1991). Those are the justifications for the rule that in instances where a
defendant’s objection at trial does not comport with her complaint on appeal, nothing is preserved
for review. Cravens v. State, 687 S.W.2d 748, 752 (Tex.Crim.App. 1985).
It is apparent that appellant' s complaint on appeal is based directly on the Supreme Court’s
holding in Bruton. Although appellant specifically cited Bruton in making her objection, it
appears clear to us from the objections quoted above and the way in which appellant referred to
Bruton, that the objection was to specific portions of Steven’s statement, not the entire statement.
In the initial objection, appellant referred to Bruton as support for “why it should be
redacted, ” not why the statement should be "excluded." Appellant’s second objection that “it
violates Bruton” is ambiguous when taken by itself; however, when read in conjunction with the
30
rest of the objection identifying specific portions of the statement she found incriminating, the
pronoun it appears to refer to those specific parts of the statement rather than the statement as a
whole. That being so, appellant’s trial objection was not sufficiently definite to preserve her
complaint that the trial court erred in admitting Steven’s statement as it was admitted. Appellant’s
third point is overruled.
In her fourth point, appellant contends the trial court erred in overruling her motion for
new trial based upon alleged juror misconduct. The facts upon which appellant bases this point
involved juror Robert York and the State’s witness Lloyd Cody. During voir dire, the jury panel
was asked to complete a questionnaire. One of the questions asked if the panel member knew any
of the potential witnesses on a one-page list. Lloyd Cody was the eighteenth of 98 names. When
questioned individually, York stated that he did not know anyone on the list. At the close of voir
dire, appellant renewed several challenges for cause which were denied. After using peremptory
challenges to remove several panel members, appellant sought additional peremptory challenges
to remove, inter alia, York. This request was also denied.
After Lloyd Cody testified, York notified the trial court that he knew Lloyd Cody. This
resulted in a hearing on the matter. At that hearing, York described his relationship with Cody
as limited to “casual contact” at church activities. Based on York’s answers at that hearing, the
parties made no objection to his continued participation as a juror.
In appellant' s post-trial motion for new trial, she urged juror misconduct. The trial court
held another hearing at which appellant presented additional evidence of York’s relationship with
Cody. Cody testified that his wife was York' s cousin. 5 Although some years earlier they had
5
Robert York’s grandmother was the sister of Lloyd Cody’s father-in-law.
31
attended family gatherings together, he said their recent relationship was primarily through church
activities and they had not visited each other’s homes. He and York were first acquainted through
the church well before they became related. On one occasion when Cody was seventeen and York
was about seven, their families had taken a vacation together. Juror York testified at the hearing
that he had not seen Lloyd Cody’s name on the witness list when he completed the questionnaire.
Although he remembered the vacation with Cody’s family, York claimed he was about 4 and did
not remember Lloyd Cody being present. According to York, they had not attended a family
gathering together for approximately 10 years. He averred their recent relationship had been
limited to “casual” contact at church events.
It is the rule that when a juror withholds material information during voir dire, the juror
denies the parties an opportunity to intelligently exercise their challenges and obtain an impartial
jury. Jones v. State, 596 S.W.2d 134, 136 (Tex.Crim.App. 1980). Several decisions of the
Court of Criminal Appeals hold that information is not “withheld” unless the juror is “ask[ed]
questions calculated to bring out that information which might be said to indicate a juror’s
inability to be impartial and truthful.” Armstrong v. State, 897 S.W.2d 361, 363-64
(Tex.Crim.App. 1995).
Initially, we disagree with the State’s argument that defense counsel did not ask properly
focused questions concerning this matter. The question on voir dire was simple and direct: "Do
you know anyone on the one-page witness list?" When juror York became aware that he did
know one of the witnesses, his negative answer to the question amounted to the withholding of
evidence and required the court hearings to determine the effect of that error. Whether intentional
or not, York withheld information.
32
We initially note the language in Von January v. State, 576 S.W.2d 43, 45
(Tex.Crim.App. 1978), that the significance of a juror’s relationship with other participants in a
trial is for defense counsel and not the juror to determine and, in order to make that
determination, counsel is entitled to know the facts concerning that relationship. In Von January,
a murder case, the foreman of the jury failed to reveal a close and long acquaintance with the
family of the victim, and even though the juror recognized the victim' s grandfather when he
entered the court room, failed to respond to defense counsel' s question whether any of the juror' s
knew members of the victim' s family. The juror admitted he may have erred in not answering
the question, but rationalized his failure to answer by saying that although he knew and recognized
the victim' s family, he did not answer "because he did not have any close personal dealings with
the family." Id. at 45. Based on these facts, the appellate court determined reversible error was
shown. In doing so, the court placed emphasis on the fact that the juror' s acquaintance was with
the family of the victim and, additionally, that the juror served as foreman of the trial jury, "a
position of influence."
In reaching its conclusion, the Von January court contrasted the facts before it with those
before the court in Babin v State, 149 Tex. Crim. 339, 194 S.W.2d 563 (1946). In Babin, which
also involved the foreman of the trial jury, the juror also failed to disclose the degree of his
relationship with the victim. Although he had said that he "only knew him when he saw him [the
deceased]," he failed to mention that he and the deceased were neighbors in a very small town.
Id. at 566. The appellate court concluded the jury foreman' s answer on voir dire "was not so
palpably misleading or intentionally deceptive as to require reversal." Von January, 576 S.W.2d
at 45.
33
The facts before us are more nearly akin to those in Babin than those in Von January.
Here, the juror' s relationship was with a minor witness, virtually all of whose testimony was
echoed by other witnesses. Additionally, the variance between the nature of the juror' s
relationship and what was not revealed was minimal. The trial court did not abuse its discretion
in refusing to grant the motion for new trial. Appellant' s fourth point is overruled.
In her fifth point, appellant assigns error to the admission of testimony concerning her
reputation for being law abiding while living in Moriarity, New Mexico, approximately three
years before Stephanie’s death. In support of this point appellant initially cites Smith v. State, 162
Tex. Crim. 237, 283 S.W.2d 936, 938-39 (1955), which defines general reputation as “what is
generally said about him in the community in which he lives . . . .” Appellant acknowledges but
seeks to distinguish Arocha v. State, 495 S.W.2d 957, 958 (Tex.Crim. App. 1973), which held
“[a] person’s community is not limited to the locale where the case is tried nor his residence at
the date the offense was committed.” Appellant' s attempt to distinguish Arocha is unavailing.
In Arocha, the defendant was being prosecuted in Austin for the sale of marijuana. The
witness was asked if he had heard that Arocha was charged with possession of marijuana in
Houston. The appellant argued the question was improper because it did not inquire as to his
reputation "in the community" and Houston could not be consider "in the community" of Austin.
In overruling that contention, the court commented, "[A] person' s community is not limited to the
locale where the case is tried nor his residence at the date the offense was committed." Arocha,
495 S.W.2d at 958.
34
Although Arocha supports the trial court’s decision here, article 37. 07, § 3(a) of the Code
of Criminal Procedure is dispositive of this point. This statute governs the types of evidence
admissible at the punishment phase of trial. In relevant part, it provides:
evidence may be offered by the state and the defendant as to any matter the court
deems relevant to sentencing, including but not limited to . . . his general
reputation, his character, [and] an opinion regarding his character . . . .
Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 1996).
Nothing in the foregoing statute limits evidence of a defendant’s general reputation to a
particular community. See also Tompkins v. State, 774 S.W.2d 195, 216-17 (Tex.Crim.App.
1987), aff’d, 490 U.S. 754, 109 S. Ct. 2180, 104 L. Ed. 2d 834 (1989) (holding defendant’s
reputation in Virginia admissible in Texas prosecution). Appellant’s fifth point is overruled.
In his sixth point, appellant contests the trial court’s refusal to submit a jury instruction
on the offense of endangering a child. It is well established that upon timely request, a defendant
is entitled to an instruction on a lesser-included offense if two conditions are met. First, the lesser
offense must be within the proof necessary to establish the offense charged. Second, the record
must contain some evidence that would permit a jury rationally to find that if the defendant is
guilty, she is guilty of only the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672
(Tex.Crim.App. 1993), cert. denied, __ U.S. __, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993).
Examination of the elements of the Penal Code offenses of injury to a child (§ 22. 04(a))
and endangering a child (§ 22.041(c)) suggests that endangering a child is a lesser-included
offense of the second and third methods by which one may commit injury to a child (causing
serious mental deficiency, impairment or injury or by causing bodily injury), but not of the first
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method (causing serious bodily injury). The most significant distinction between the two offenses
is that endangering a child does not require an actual injury. Here, appellant was indicted for
causing serious bodily injury and serious mental deficiency and impairment. The jury charge
contained instructions on all three methods of committing injury to a child.
Having determined that endangering a child can be a lesser included offense of injury to
a child, we must next determine whether there was some evidence that would have permitted a
jury to rationally find that if appellant was guilty, she was guilty only of the lesser offense. In
order to make such a finding, the jury would have to find that appellant failed to provide
Stephanie with proper nutrition, but neither her bodily injury nor her death were the result of that
malnutrition.
The only evidence that Stephanie’s injury or death might have been caused by something
other than malnutrition came from Dr. Nielsen, who also testified that Stephanie was not suffering
from malnutrition. Consequently, the jury would have to disbelieve the State’s experts who said
Stephanie was malnourished, disbelieve the State' s experts on the issue of causation, and believe
Dr. Nielsen’s speculative theory of causation while rejecting her testimony concerning
malnutrition. Given the nature of the evidence, which we have recited in rather exhaustive detail,
we do not agree that the jury could rationally engage in such mental gymnastics. We overrule
appellant’s sixth point.
In her seventh point, appellant assigns error to the admission of the testimony of one of
the State’s expert witnesses, Dr. Pence. Appellant characterizes the testimony as presenting novel
theories and opinion although she “lacked the expertise to make them admissible.” The admission
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of expert testimony is governed by Rule 702 of the Texas Rules of Criminal Evidence. That rule
provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
The decision of whether to permit the testimony of an expert witness is within the discretion of
the trial court, Duckett v. State, 797 S.W.2d 906, 910 (Tex.Crim.App. 1990), and will not be
overturned absent an abuse of that discretion. Amos v. State, 819 S.W.2d 156, 163
(Tex.Crim.App. 1991), cert. denied, 504 U.S. 917, 112 S. Ct. 1959, 118 L. Ed. 2d 561 (1992).
The primary consideration is whether the expert’s specialized knowledge will assist the trier of
fact. Pierce v. State, 777 S.W.2d 399, 414 (Tex.Crim.App. 1989), cert. denied, 496 U.S. 912,
110 S. Ct. 2603, 110 L. Ed. 2d 283 (1990). Rule 702 is not satisfied when the witness' s knowledge
or expertise is unlikely to exceed the common knowledge or reasoning of the jurors. Id; Alba v.
State, 905 S.W.2d 581, 592 (Tex.Crim.App. 1995).
Careful examination of appellant’s argument in support of this point fails to reveal any
reference to testimony presenting the “novel theories” she seeks to challenge. There are,
however, specific references to testimony that appellant argues was beyond the expertise of Dr.
Pence.
As recited above, Dr. Pence held a Ph.D. and was an associate professor of pathology who
studies and teaches nutrition. Appellant complains that Dr. Pence’s statements that children who
are not fed properly often have behavioral problems because they are constantly hungry,
were improperly admitted because she was not a psychologist or medical doctor. We cannot
agree. Logic would support the testimony of Dr. Pence that those engaged in the study of
nutrition and the effects of malnutrition also study the effects of nutrition on behavior. Admission
of this testimony was proper.
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Appellant also complains of Dr. Pence’s testimony that overfeeding a severely
malnourished person can cause heart failure. Appellant asserts that admission of this testimony
was improper because Dr. Pence was not a medical doctor or cardiologist. In response to defense
questions on voir dire, Dr. Pence testified that the issue of heart failure was one of the topics she
teaches to medical students. We are unprepared to hold that a person qualified to teach a topic
to medical students is not qualified to give expert testimony on that same topic. Appellant’s
seventh point is overruled.
In her eighth and final point, appellant challenges the trial court’s refusal to submit a
requested instruction to the effect that if the jury found that appellant’s culpable mental state was
merely criminal negligence, they must acquit. Since the indictment only alleged an offense by
omission, an examination of the text of Section 22.04(a) shows this is indisputably an accurate
statement of the law:
A person commits an offense if he intentionally, knowingly, recklessly, or with
criminal negligence, by act or intentionally, knowingly, or recklessly by omission,
causes to a child . . . serious bodily injury.
Tex. Penal Code § 22.04(a) (Vernon 1994).
However, it is established law that an instruction that merely denies an element of the offense need
not be given. Moore v. State, 736 S.W.2d 682 (Tex.Crim.App. 1987). Because the State was
required to prove that appellant acted intentionally, knowingly, or recklessly, the requested
instruction that criminal negligence was insufficient simply sought to negate an element of the
offense.
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Appellant cites Troyer v. State, 516 S.W.2d 163, 164 (Tex. Crim.App. 1974), for the
proposition that the failure to give a defensive charge on the issue of culpability is reversible
error. In Troyer, the trial court failed to give any instruction on culpability in spite of a specific
request. Here, however, the court’s charge included instructions on intentionally, knowingly and
recklessly, making Troyer inapplicable. See Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.--
Houston [1st Dist.] 1989, pet. ref’d). Appellant’s eighth point is overruled.
In summary, all of appellant' s points are overruled and, finding no reversible error in the
proceeding below, we affirm appellant’s conviction.
John T. Boyd
Justice
Do not publish.
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