Katrina Fergerson v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-391 CR ____________________

KATRINA FERGERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 87912

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MEMORANDUM OPINION

A jury convicted Katrina Fergerson of Capital Murder. Fergerson's indictment alleged, in pertinent part, that on or about November 24, 2002, she "intentionally and knowingly cause[d] the death of an individual, namely, [B.J.F.], hereafter styled the Complainant, by failing to remove Complainant from a toilet containing water, and at the time of Complainant's death, Complainant was an individual under six (6) years of age[.]" The salient facts, which are not in dispute, indicate that Fergerson gave birth to a baby in the bathroom of a private residence. Fergerson gave birth to the infant, [B.J.F.], while apparently seated on the toilet. When Fergerson emerged from the bathroom, she informed one of her friends that she believed she had miscarried. The friend, Carolyn Walker, ran to the bathroom and observed an infant in the toilet, still in a fetal position, with its head toward the bottom of the bowl. Walker also observed that the infant's umbilical cord "was wrapped around the neck," and the placenta had been deposited into a plastic bag and placed on the side of the toilet. Emergency medical personnel were called to the scene and found the infant's body still inside the toilet bowl. Subsequent efforts to resuscitate the infant proved futile and the infant was pronounced dead at the hospital.

The State's theory of prosecution, as evidenced by the indictment language, was that Fergerson's failure to rescue the infant from the toilet and/or seek help with greater alacrity and diligence was intentional because Fergerson, already a mother of three other children, had been unhappy about her fourth pregnancy from its inception. Apart from acquittal, the defense focused its trial strategy toward securing a jury-verdict on a lesser culpable mental state. By its verdict, the jury rejected the four lesser-included offenses submitted to it in the trial court's instructions. As the State did not seek the death penalty, Fergerson received the only other possible punishment: life in the Texas Department of Criminal Justice - Correctional Institutions Division. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.31, 1993 Tex. Gen. Laws 3586, 3602 (amended 2005) (current version at TEX. PEN. CODE ANN. § 12.31 (Vernon Supp. 2005)).

Fergerson raises four issues for our consideration, viz:

1. The jury charge as to offense of capital murder was so misleading as to cause egregious harm to appellant as a matter of law.

2. Reversible error occurred when the court admitted irrelevant evidence that appellant's parental rights were terminated.

3. Reversible error occurred when the court admitted prejudicial evidence that appellant's parental rights were terminated.

4. The trial court abused its discretion in excluding the testimony of appellant's expert witness, Dr. Edward Gripon, concerning the effects of alcohol on appellant.

Fergerson's first issue complaining of jury-charge error focuses on the fact that the trial court provided the jury with statutory definitions of "murder" under both Tex. Pen. Code Ann. § 19.02(b)(1), (b)(2) (Vernon 2003), while the Penal Code limits conviction for capital murder to "murder as defined under Section 19.02(b)(1) ." See Tex. Pen. Code Ann. § 19.03(a) (Vernon Supp. 2005). In the trial court's charge, the abstract definitions begin by defining "Capital Murder" as follows: "A person commits Capital Murder if he commits murder and the individual killed is under six (6) years of age." Additional definitions follow on separate pages, with the definitions of "intentionally," "knowingly," "injury to a child" (by intentional or knowing conduct, and by reckless conduct), and "manslaughter" appearing immediately before the separate "murder" definitions.

"Murder," taken from section 19.02(b)(2) of the Penal Code, is next defined and reads: "A person commits an offense of murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that caused the death of an individual." This is not the definition of "murder" that authorizes conviction for capital murder under section 19.03(a). The second "murder" definition follows, and is taken from section 19.02(b)(1) of the Penal Code which reads: "A person commits the offense of murder if he intentionally or knowingly causes the death of an individual." This "intentional/knowing murder" is the only type that will support a conviction for capital murder under section 19.03(a).

Fergerson argues that, as contained in the jury instructions, the two "murder" definitions allowed the jury to convict Fergerson of capital murder by two different means: (1) by causing the death of a person under six years of age while intending only to cause serious bodily injury but committing an act clearly dangerous to human life that caused the death of the person under six years of age, or (2) by intentionally or knowingly causing the death of a person under six years of age. In its reply, the State appears to argue that appellate review on this issue was not preserved as Fergerson's trial counsel failed to lodge any objection to the jury instructions. The State's position is incorrect under the continued viability of the holding in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g). Recently, the Court of Criminal Appeals reiterated the standard for reviewing claims of jury-charge error in Ex parte Smith, 185 S.W.3d 455 (Tex. Crim. App. 2006), viz:

The usual method by which we assess purported jury instruction or charge errors is set out in Almanza v. State. The Almanza standard applies both on direct appeal and on the review of habeas corpus applications. Almanza applies to federal constitutional errors contained within the jury charge. Under that familiar standard, we must decide:

1. Was there error in the jury charge?

2. If so, "the next step is to make an evidentiary review . . . as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused." If the defendant failed to object to the jury charge, he must show that the error caused him such egregious harm that he did not have "a fair and impartial trial."

Id. at 463-64 (footnotes omitted). Thus, should error be found in the instructions to the jury, Fergerson's failure to object does not forfeit appellate review of the error but does require the record to show the error resulted in egregious harm to Fergerson before reversal of the conviction is necessitated.

A closer examination of the entire jury charge in the instant case indicates that the only offense to which the "clearly dangerous to human life" murder definition was applied was the lesser-included "murder" charge instructed for the jury's consideration should it have acquitted Fergerson of the capital murder charge. Additionally, the only offense to which the "intentional/knowing murder" definition was applied was the capital murder charge. As we noted in Thompson v. State, 12 S.W.3d 915 (Tex. App.--Beaumont 2000, pet. ref'd):

It is the application paragraph of a jury charge which authorizes conviction, and an abstract charge on a theory of law which is not applied to the facts is insufficient to bring that theory before the jury. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996), cert. denied, [519] U.S. [1119], 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). An abstract statement of the law that goes beyond the allegations in the indictment ordinarily will not present reversible error because ordinarily [sic] such expansions on the indictment's allegations are effectively restricted by the charge's application of the law to the facts, which limits the jury's deliberations to the allegations in the indictment supported by evidence. Sandig v. State, 580 S.W.2d 584, 586 (Tex. Crim. App. 1979).

Id. at 921-22 (quoting Ramirez v. State, 967S.W.2d 919, 922 (Tex. App.--Beaumont 1998,

no pet.).

In the instant case, the abstract definitions in question tracked the Texas Penal Code provisions. Thereafter, the application paragraphs for capital murder and for the lesser-included murder offense clearly limited the jury's consideration of the two murder definitions to only the proper murder charge (capital versus lesser-included) in question. Considered in its entirety, the jury instructions are not erroneous as they authorized the jury to convict Fergerson of capital murder only if it found she committed "intentional/knowing murder" as defined under section 19.02(b)(1). See Tex. Pen. Code Ann. § 19.03(a). Finding no jury-charge error, we overrule issue one.

Fergerson argues issues two and three together. Fergerson contends the trial court erred in permitting the State to introduce the judgment terminating her parental rights to three of her children in that said judgment was not relevant (issue two) and was more prejudicial than probative (issue three). At the outset, we agree with the State that Fergerson's objection at trial to the judgment, State's Exhibit 17, did not include a complaint that the judgment was prejudicial. As such, Fergerson has not properly preserved her complaint under issue three for appellate review. See Tex. R. App. P. 33.1(a). Issue three is overruled.

Fergerson argued to the trial court that the termination judgment was not relevant because the termination of her parental rights was adjudicated subsequent to the offense date of the capital murder charge. She also argues this before us. Her appellate argument also alludes to trial court error in violation of Tex. R. Evid. 404(b).

"Under Rule 401, evidence is relevant if it makes the existence of a fact that is of consequence to the determination of the action more probable than it would be without the evidence." Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Under Tex. R. Evid. 402, "there is a presumption of admissibility of relevant evidence." Id. "The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion." Id. at 627. So long "as the trial court's ruling was within the zone of reasonable disagreement," an appellate court should uphold it. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)).

One long-recognized basis for finding evidence relevant is where a party proffers it in rebuttal of a defensive theory such as mistake or accident. Id. at 626; see also Tex. R. Evid. 404(b). As noted above, the issue for the jury to decide was whether Fergerson's actions (or inactions) were intentional/knowing, or reckless, or done with criminal negligence. Initially, we reject Fergerson's argument that because the termination judgment was entered after the offense date of the instant charge the termination judgment had no relevance to Fergerson's criminal prosecution. An extraneous offense/bad act that takes place subsequent to the offense for which a defendant is on trial does not make the extraneous offense/bad act inadmissible per se. See Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997) (holding evidence of "abuse of a corpse" which followed defendant's murder of the victim was admissible as it was relevant to the State's proof of the elements of the capital murder charge for which defendant was on trial).

Furthermore, State's Exhibit 17 was introduced by the State after Fergerson had testified that the infant's death on the night in question was not the result of any intentional or knowing conduct on Fergerson's part. The termination judgment contains findings by the trial judge that Fergerson, inter alia, "knowingly placed or knowingly allowed the child(ren) to remain in conditions or surroundings which endanger the physical or emotional well-being of the child(ren)[.]" (Emphasis added). A judicial finding that Fergerson "knowingly" placed or allowed her other children to remain in conditions dangerous to their physical or emotional well-being at least arguably makes it more probable that Fergerson's acts or omissions on the night in question were done either intentionally or knowingly. As such, State's Exhibit 17 was relevant under Rule 401, and had relevance apart from mere proof of character conformity in compliance with Rule 404(b). See Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). The trial court's decision to admit the termination judgment was within the zone of reasonable disagreement, therefore no abuse of discretion occurred. Moses, 105 S.W.3d at 627; Santellan, 939 S.W.2d at 169. Issue two is overruled.

Fergerson's final issue complains of the trial court's exclusion of the testimony of her expert witness, Dr. Edward Gripon. At the State's request, the trial court conducted a hearing outside the presence of the jury apparently to determine the nature of Dr. Gripon's testimony. The State elicited the fact that Dr. Gripon had met with Fergerson and had reviewed Fergerson's records as to the medical treatment she received subsequent to the birth of [B.J.F.]. From this information, Dr. Gripon was prepared to testify as to the effect of Fergerson's consumption of a large amount of alcohol on the day of the offense with regard to "her ability to respond both physically as well as verbally." When asked if he would testify as to Fergerson's remorsefulness, Dr. Gripon replied:

A. Well, I can state what I saw when I visited with her in August of this year. I cannot tell you anything about the day of the offense because I wasn't there other than what impact any substance used might have had on a person's appearance to a person without substantial training in that area.

Counsel for Fergerson asked no questions of Dr. Gripon. The State objected to the doctor's testimony on the ground that intoxication is not a defense to criminal activity, and Dr. Gripon's testimony would be an attempt to circumvent the law in this area. Fergerson's trial counsel responded in the following manner:

[Trial Counsel]: Your Honor, we don't feel that the doctor testifying about the effects of alcohol in any way raises a defense but explains the condition and the blood alcohol level of Ms. Fergerson on the night in question. There's been extensive testimony as to her emotions, her reactions, her [affect] - - that flat [affect] she had to everyone; and he can render an expert opinion as to the effect of alcohol on that. He's not going to say in any way that it's a defense to any of her actions. It's merely [an] explanation we feel would aid and assist the jury.

The trial court sustained the State's objection. Dr. Gripon was thereafter released as a witness at Fergerson's request. Fergerson offered no further details or any specific facts concerning Dr. Gripon's expert opinion testimony as to effects, if any, of alcohol ingestion on Fergerson's appearance on the night in question.

Although Texas does not recognize the doctrine of "diminished capacity" as an affirmative defense, i.e., a lesser form of the defense of insanity, under certain circumstances, a defendant may present relevant evidence for the jury to consider in an attempt to negate the mens rea element alleged in the indictment. See Jackson v. State, 160 S.W.3d 568, 573-74 (Tex. Crim. App. 2005). However, because the record before us indicates that Fergerson failed to preserve this issue for appellate review, we must overrule it. Tex. R. Evid. 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. An offer of proof may be in the form of questions and answers, or by a concise statement by counsel. See Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (citing Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993)). The Court in Warner explained further:

An offer of proof to be accomplished by counsel's concise statement must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible. Love v. State, 861 S.W.2d at 901; 1 J. McLaughlin, et al., Weinstein's Federal Evidence § 103.20[2] (2nd ed. 1997); 1 J. Strong, et al, McCormick on Evidence § 51 (4th ed. 1992); Annot., Ruling on Offer of Proof as Error, 89 A.L.R. 2d 279, 282 (1963); 88 C.J.S. Trial § 80 (1955).

Warner, 969 S.W.2d at 2. In the instant case, there is no adequate offer of proof following the very general responses given by Dr. Gripon during questioning by the State. Trial counsel's response was merely an attempt to reply to the State's objection, and did not provide a "reasonably specific summary" of what Dr. Gripon's expert testimony would contain. We therefore overrule issue four. The judgment of the trial court is affirmed.

AFFIRMED.  

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CHARLES KREGER

Justice

Submitted on April 19, 2006

Opinion Delivered July 26, 2006

Do not publish

Before Gaultney, Kreger and Horton, JJ.