Shawntrell Dawkins v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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SHAWNTRELL DAWKINS, No. 08-13-00012-CR
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Appellant, Appeal from the
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v. 409th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20090D05205)
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OPINION
In three issues, Appellant Shawntrell Dawkins appeals her conviction for the murder of
Milayna Harris. We affirm.
BACKGROUND
Factual History
In late 2007, Sherrie Harris signed a power of attorney granting Shawntrell Dawkins the
ability to act as legal guardian for Harris’ two children: Milayna, a two-year-old girl, and J.H., a
four-year-old boy.1 Harris had befriended and become close to Appellant and her husband Nakia
while the three were stationed at a United States Army post in Germany, even going so far as to
name the Dawkinses as her children’s godparents. When the Army ordered Harris to return to
1
Although we are not required to use initials, Harris’ son is a still-living minor, therefore, we will refer to him by his
initials. See TEX.R.APP.P. 9.10.
Germany after a stint at a military base in Kentucky, Shawntrell Dawkins and her husband, who
was stationed at Fort Bliss in El Paso, Texas, offered to care for the children for several months
while Harris settled in to her new assignment. The last time Harris saw her children before
departing for Europe in the fall, Milayna was a normal toddler with no health problems except
for some chronic ear infections. By spring, Milayna Harris was dead.
An autopsy performed by El Paso County Medical Examiner Dr. Juan Contin revealed a
subarachnoid hemorrhage, a subdural hematoma, swelling of the brain, ten bruises underneath
Milayna’s scalp, and blood in Milayna’s spinal fluid, all caused, in Dr. Contin’s opinion, by
blunt force trauma to the head. Dr. Contin concluded Milayna Harris died of a head injury. Dr.
Contin also noted in his report that 40 percent of Milayna’s body was covered with
“innumerable” bruises and abrasions. When Dr. Contin removed the skin around Milayna’s
back, gluteal muscles, and thighs as part of the autopsy, he found a “significant, if not a
tremendous amount of hemorrhage deep in the fat.” After opening up her abdominal cavity via
incision, Dr. Contin saw bruises on her small and large intestines that corresponded with bruises
seen on the surface of her skin. The large intestine wall was filled with blood. Dr. Contin would
later testify that the marks, bruising, and abrasion patterns appeared to show that Milayna was
beaten with a long, narrow object, possibly a belt with a buckle. He could not accurately
determine when Milayna sustained those injuries or if she sustained all those injuries at the same
time; he could only say that they did not cause her death.
Police separately questioned both Appellant and her husband Nakia following Milayna’s
death. Both Appellant and Nakia maintained that Milayna accidentally fell down a steep set of
stairs while playing with the dog. They both denied causing Milayna’s death, but did admit to
using corporal punishment on her.
2
Two videos of Nakia appear in the record and were published to the jury at Appellant’s
trial. In the first, Nakia is sitting in the back of a squad car, waiting to be questioned by police.
Nakia calls his supervisor, and is heard making statements including “it doesn’t look good for
me,” “she suffered a bad head injury,” and “[g]oddamn, I am going to fucking jail.”
In the second video taken at police headquarters, Nakia is Mirandized, waives his right to
remain silent, and is interrogated by El Paso Police Department Detective Gonzalo Chavarria and
another officer. Nakia told police that his wife had received legal custody of the children from
Sherrie Harris and that Appellant had moved into the apartment in October. He later moved into
the apartment in February, when he returned home from a deployment in Iraq. Nakia then stated
that the couple disciplined Milayna using two methods: time-outs and “whoopings.” Time-outs
involved having Milayna stand still with her feet apart and her hands pointed up in the air for ten
minutes at a time. Whoopings involved either striking her with a hand or with Milayna’s own
belt. Both Nakia and Appellant would use the belt to discipline Milayna, although Nakia
believed he was the more “heavy-handed” person. He related that two days before Milayna’s
death, he had been using the belt against Milayna because she soiled herself in spite of the fact
that she was already toilet-trained, and one of the blows broke the skin on Milayna’s back. He
stopped immediately after he realized he had been hitting her too hard. However, Nakia had
whooped her again a few hours before she died because she had soiled herself again.
Nakia maintained that at least some of the bruises on Milayna’s body were self-inflicted
when she threw herself down during tantrums, but he admitted that many of the bruises were
caused by the belt, and that he felt frustrated because he knew Milayna would do things she
knew were wrong. Nakia also stated that the reason she had bruises on her hands, arms, feet, and
legs was because she would try to cover herself from the belt and would move during his
3
whoopings. When asked who hit Milayna more between him and his wife, Nakia answered that
it was probably “half and half.” In the days before she died, the only other person Milayna had
seen was the Dawkinses’ family friend, Linda Rodriguez. Nakia said he and his wife would send
Milayna to Linda’s house as “punishment” because she did not like to go there, but that Linda
had never hit Milayna or her brother, and that he and his wife were the only people who hit the
children.
Nakia told police that the night Milayna died, he had taken some Nyquil and headed to
bed. Milayna was in time-out, and his wife was playing on the computer. He then said that he
had been in the upstairs bedroom with his wife, and she had put Milayna in a time-out in the
room with them for about ten minutes. He was lying on his side, but could hear Appellant telling
Milayna to keep her hands up. Once time-out was over, Milayna went outside to go play with
the dog. All of a sudden, he heard a loud boom. When asked if his wife had hit the girl, Nakia
said that Appellant could not have done that, because she was in the room with him when they
both heard the boom. He could not say what happened because he did not see, but he speculated
that Milayna could have fallen down a raised step on the top floor where the grandfather clock
was, or she could have fallen backwards down the stairs, but he did not think she had fallen far.
He then put her in the shower to try and revive her, and told his wife to call 911. He noticed that
Milayna’s breathing was shallow. Once the ambulance took her to the hospital, he got in his car
and tried to follow. However, his wife did not have her cell phone with her, and he did not know
which hospital they were at. As a result, he turned around, went home, and called his supervisor
from work to let him know he would not be at work tomorrow.
Appellant did not testify at trial, but the State offered, and the trial court admitted, a video
recording of Appellant’s video statement to police into evidence. The police officer who
4
sponsored the video conceded that the recording did not include a fifteen-minute “preinterview”
police conducted with Appellant. In the video, Appellant is Mirandized and also interrogated by
Detective Chavarria. She admitted that the day of Milayna’s death, she had whooped Milayna for
not eating her food, and Nakia had whooped her for urinating on the floor. She denied that
anyone had hit Milayna on Saturday, but did agree that someone had whoopped her on Friday,
but she could not remember who. She explained that whooping the children involved beating
them with her hand or a belt, and that while she would try to “get her on the butt,” if Milayna
was kicking or rolling around on the floor, then she would get hit “wherever the belt lands.”
Appellant told police that the night of Milayna’s death, Milayna and the dog were playing
upstairs when she fell down the stairs. Appellant did not see Milayna fall, but heard the sounds,
although Milayna did not yell. Nakia was asleep, so Appellant got up and went to see what
happened and caught Milayna before she fell down all the steps. When asked how many stairs
Milayna fell down, Appellant stated that she did not know because she was not there. Appellant
assumed the fall killed Milayna because before the fall, she was fine.
Procedural History
The State indicted Appellant on two counts of murder. In Count I, the State alleged that
Dawkins committed capital murder by intentionally and knowingly causing Milayna’s death by
either striking her about the head with an unknown object, or by striking her head against an
unknown objection. In Count II, the State alleged that Dawkins committed felony murder, with
Milayna’s death resulting from Dawkins’ commission or attempted commission of felony injury
to a child, either as a principal or an accomplice.2
Autopsy Photographs and Medical Examiner Testimony
2
The indictment also contained a third count that was severed out into a separate case.
5
At issue in this appeal are State’s Exhibits 68 through 90,3 twenty-three photographs
depicting Milayna’s body at different stages of the autopsy performed by Dr. Contin. Because
the admissibility of the photographs has been challenged, we describe each photo individually
and relate them to Dr. Contin’s trial testimony.
SXs 68 to 83 depict Milayna’s body as it was received by the medical examiner’s office
before Dr. Contin performed any internal examinations. Dr. Contin referenced these
photographs4 to show the jury various bruises, cuts, and abrasions depicted in the photographs.
 Facial and Head Pictures: SX 68 depicts Milayna’s face from the right side
at an oblique angle. SX 69 shows her face from the left side at an oblique
angle. SX 78 is another picture of the left side of Milayna’s face in profile.
SX 83 is the right side of Milayna’s face in profile. SX 70 is a frontal view of
Milayna’s face, with her head tilted downward and the focus of the
photograph on her head and hairline. SX 71 is Milayna’s head from another
frontal perspective, but this time with her face centered.
 Torso Pictures: SX 72 is a picture of the front of Milayna’s naked body from
the shoulder to the mid-thigh, including the pubic region. The body presents
with five Skintact-brand EKG stickers placed at the chest, upper abdomen,
and lower abdomen. SX 82 depicts the same area of Milayna’s body with the
EKG stickers removed. SX 79 is a close-up of Milayna’s abdomen and hips,
depicting discoloration and bruising. Dr. Contin referenced this picture in his
testimony to show that abrasion came from a blunt, not sharp instrument. SX
80 is a picture of Milayna’s entire back, from shoulder blade to buttocks. Dr.
Contin testified that the picture showed many linear injuries and abrasion.
 Limb Pictures: SX 73 is a picture of Milayna’s legs from mid-thigh to her
feet. Her knees are bandaged. The right knee has medical tubing inserted
below the knee at the bandaged area. SX 75 is a close-up of the top of
Milayna’s right foot. SX 76 another close-up of Milayna’s left foot. SX 77
depicts her left arm. SX 81 depicts the back of both legs and feet. SX 74 is a
picture of Milayna’s right arm.
The remaining seven photographs that Dr. Contin discussed with the jury—SXs 84
through 90—depict Milayna’s body after the medical examiner performed various dissections to
3
We will refer to the State’s Exhibits as SX, followed by their designation number.
4
State’s Exhibit 83 was admitted into evidence, but it does not appear that Dr. Contin ever referenced it in his
testimony.
6
detect any internal injuries. SX 84 is a picture of Milayna’s lower back, gluteal area, and the
back of her thighs with the skin peeled back, exposing the underlying soft tissue. Dr. Contin
referenced this picture to show the presence of blood in the fat tissue, which demonstrated
impact with a hand or an instrument. Dr. Contin testified that this was a significant injury, and
that he only performs this type of dissection when there are significant injuries present.
SX 85 consists of two pictures from the dissection of Milayna’s abdomen. The first
picture depicts the torso from about shoulder level to the hips. The skin has been completely
peeled back from midline, exposing the entire abdominal cavity. Much of the overlying ribcage
has been removed. Visible in the picture are Milayna’s heart, intestines, and other internal
organs. The second picture is a close-up of her intestines. Dr. Contin asserted that these pictures
showed a bruise on the midportion of the small bowel that was apparent from discoloration. He
testified that the discoloration was not normal, and that it could have only resulted from impact.
He further testified that this bruise was consistent with bruising he had observed externally on
the surface of Milayna’s abdomen. SX 86 is another two-picture exhibit in which a portion of
the large intestine, still attached to the remainder of the intestinal tract, was removed and placed
on a white surface next to the body. Dr. Contin testified that this picture showed Milayna’s large
intestine and explained that when he examined it, he found blood inside the intestinal wall. In
his opinion, the only thing that could have caused that blood in the intestine wall was an injury,
not a pre-existing medical condition.
SX 87 is a picture of the top of Milayna’s head with the scalp peeled back and the soft
tissue under the skin exposed. Milayna’s face is not visible in this picture. Dr. Contin explained
how he made an incision through the top-middle of Milayna’s scalp, then pulled one half of the
scalp backwards and one part forward to look for any injuries under the skin. Dr. Contin
7
testified that he found nine separate bruises on the top of Milayna’s head. SX 88 is another
picture of Milayna’s head, from the back, again with scalp peeled back. Dr. Contin asserted that
this picture showed a tenth bruise at the back of the head caused by blunt force, which could
have been a fist, a stick, or banging the child’s head against the wall.
The final exhibit Dr. Contin discussed concerned his internal examination of Milayna’s
head. SX 89 is an overhead view of the top of Milayna’s head. The skullcap has been cracked
open, unhinged from the front of the skull, and pulled backwards, exposing the brain. Dark
discoloration is easily visible on the surface of the brain. Dr. Contin testified that the picture
showed that blood was present inside of Milayna’s head. He then explained to the jury that
inside the skull, the brain is surrounded by several protective membranes. The outermost,
hardest layer sitting just beneath the skull is the dura; the membrane beneath that is the
arachnoid. Dr. Contin then stated that he found a subdural hematoma and subarachnoid
hemorrhaging, which indicated that Milayna’s blood had filled the spaces between the dura and
the arachnoid, and the arachnoid and the brain. He testified that this type of bleeding is often
fatal, and that he believed it was the cause of death in this case.5
At that point in Dr. Contin’s testimony, the trial court indicated that “the Court needs to
take a break at this time.” Following the break, the trial court held the following discussion with
counsel outside the presence of the jury:
THE COURT: At this point we need to put some things on the record and I am
going to allow the attorneys for both sides to put things on the
record.
The Court indicated it was taking a break during the direct
examination of Dr. Juan Contin. What was actually occurring is
that juror number five had begun weeping loudly. And the Court
thought best to take a break.
5
Although SX 90, another autopsy photo, was admitted into evidence, Dr. Contin never discussed SX 90 in his
testimony. It is unclear to us what is depicted in this picture, though the State asserts the picture is of the interior
portion of Milayna’s skull cap.
8
The record should reflect that we are at the portion of the
jury trial where autopsy photographs are coming out and these
photographs—some of them, not all—are as graphic as any other
type of autopsy photograph can be, but no more graphic. The
Court is not saying these are not graphic photographs. Two or
three that we have been discussing right before the break they are
as graphic as any other criminal trial where autopsy photographs
come in.
Having said that, there have been several jurors who have
begun weeping with regard to some photographs that weren’t of
the autopsy nature. So this has happened from the beginning of this
trial, to include juror number five. Juror number five has been one
that has constantly had concerns with some of the photographs that
have taken place.
We have taken a break. And the Court with the permission
of both parties went to the jury room to indicate to the jury that this
case would be going forward, and that I wanted some guidance
from this jury as to whether or not we could continue today or
whether they felt that they needed to conclude or attempt to
conclude this trial beginning tomorrow. And it was the jury’s
wishes to go forward at this time.
But prior to bringing the jury in, I do want to put those
matters on the record and give both parties the opportunity to put
whatever matters they wish to put on the record before we bring
this jury in. Ms. Hamilton, Ms. Rodriguez, anything from the
State?
MS. HAMILTON: Your Honor, nothing from the State with the exception of just
a notation. I was doing the direct examination of Dr. Contin
during this situation so I wasn’t expressly specifically looking at
the jury. However, during the publishing of the photographs I did
happen to note from time to time the jury’s demeanor. At one
point I did publish a photograph to the jury specifically not using
the overhead, but with the Court’s permission walked over to the
jury box on one photograph that was very difficult to see. At that
time I did observe each and every juror taking the time to examine
the evidence.
The State has seen nothing to indicate aside from this one
juror who did become upset that the jurors have been unable to
listen to the evidence, to look at the evidence. And after the
Court’s inquiry of the jury whether or not they wanted to continue,
the State is certainly read to move forward.
THE COURT: Mr. Leeds, Mr. Parra, anything you wish to put on the record on
behalf of the accused.
9
MR. LEEDS: Yes, Your Honor. I mean, we still have some concepts of
fundamental fairness in this courthouse. I am asking for a mistrial
at this time. There is no way that my client can get a fair trial from
this jury anymore. It is over for her. Juror number five had her
head down.
And I would point out to the Court that right at the
beginning of Dr. Contin’s testimony I specifically objected to these
particular autopsy photos. I said that the – assisting the jury is not
a standard for getting these photos in. I said that the State already
got in all the photos that they legally need. I said this was
cumulative, highly prejudicial, unimaginably and wildly
inflammatory, irrelevant[,] and the prejudicial effect outweighs the
probative value. I was overruled. The Court allowed the
prosecution to show those photos. We are talking about external
and internal photos of an autopsy report. Juror number five is
crying – weeping with her head down, not looking at the evidence.
As they walked to the jury room she is sobbing hysterically so that
you can hear her in the back of the courtroom. This is not the first
time this happened in the case. Although this is the most egregious
time. And her conduct has tainted the rest of the jury as far as my
client is concerned. I move for a mistrial.
THE COURT: Your motion for mistrial at this time is denied. Before I bring the
jury in, counsel, come just approach up front.
The trial court and counsel then had an off-the-record discussion at the bench before the
jury was readmitted to the courtroom and trial was resumed. Dr. Contin then testified that the
cause of death was a blunt force injury to the head with subarachnoid hemorrhage, subdural
hematoma, and swelling of the brain, and the manner of death was homicide. The State asked if
a hammer could cause the type of injury Milayna suffered. Dr. Contin said yes. However, a fall
down carpeted stairs would not cause those injuries, and on uncarpeted stairs, the only way
Milayna could have gotten the injuries she sustained was if she had fallen down each of the ten
steps on the top of her head. Dr. Contin also opined that the abuse had been going on for a
period of days before her death, given that some cuts had already begun healing over. He also
stated that it was possible some of the bruises on her body could have been inflicted at the same
time she sustained her head injury. He admitted that neither he nor anyone else at the Medical
10
Examiner’s Office performed a toxicology report.
On cross-examination, Dr. Contin admitted that he had previously been dismissed and
terminated as El Paso County’s chief medical examiner for unsatisfactory performance. He also
admitted that the Texas Medical Board had found he violated the law by committing
unprofessional conduct that was likely to deceive, defraud, or injure the public. He received
probation from the medical board. Dr. Contin also testified that he performed this autopsy as a
contractor working under the supervision of former El Paso County Medical Examiner Dr. Paul
Shrode, who was fired for lying on his resume. Dr. Contin testified that he amended the original
death certificate, which originally listed “Decedent bludgeoned by assailants” under the section
labeled “Describe how the injury occurred,” because the letter S in the word assailants should
have been in parenthesis and this came to light through questioning in a previous hearing in
another case. Dr. Contin conceded that he had little independent recollection of the autopsy and
that he was reliant on what he had said in the report, but he denied ever changing anything on an
autopsy report at Dr. Shrode’s request, and maintained he would only do so if Dr. Shrode “had a
point.”
Dr. Contin also clarified that while Milayna had several bruises on her head, he could not
tell whether she had received all those bruises at the same time. He also testified that he did not
personally inspect the stairs at the Dawkinses’ apartment, and he could not remember seeing a
picture of those stairs. Dr. Contin was unaware that Milayna had been taking prednisolone or
any other medications until reviewing hospital records a year after her death, and he conceded
that prednisolone could cause “thin skin” and easy bruising even with slight trauma, as well as
weakness, a “[f]eeling of a whirling motion,” sleeplessness, hives, itching, and easy bleeding,
among other side effects. Dr. Contin also admitted that children bruise more easily than adults
11
and that blood diseases like Henoch-Schonlein purpura or a low platelet-count caused by
thrombocytopenia could cause bleeding into the skin and could complicate analysis of the
contusion. He did not rule either condition out. He also explained that lividity after death could
cause blood to look like a bruise, and that skin color changes after death. Dr. Contin also
testified that Milayna’s injuries were consistent with the way Nakia Dawkins had said he had
beaten her in the police interrogation video. On redirect, Dr. Contin also stated that if Appellant
had admitted to beating the child with her hand and a belt, that would also be consistent with
Milayna’s injuries.
Verdict
The jury acquitted Appellant of capital murder in Count I, but convicted her of murder in
Count II. She was sentenced to thirty-three years in prison. This appeal followed.
DISCUSSION
Appellant raises three points on appeal.6 First, in Issues One and Two, Appellant asserts
that the admission of twenty-three autopsy photos prejudiced her right to a fair trial because the
pictures were irrelevant or, alternatively, substantially more prejudicial than probative—so much
so that jurors began openly weeping during Dr. Contin’s testimony. She contends that in light of
the jury’s emotional reactions, prejudice was obvious and the trial court should have granted a
mistrial. Second, Appellant maintains in Issue Three that the trial evidence was insufficient to
prove beyond a reasonable doubt that she murdered Milayna Harris. Because legal sufficiency is
a rendition point, we address it first.
Legal Sufficiency
Standard of Review
6
As a threshold matter, the State urges us to disregard arguments related to the autopsy photos as inadequately
briefed. We decline to do so, as the briefing here adequately cites both the record and legal authority, and the
arguments have sufficiently appraised the Court of the relevant issues.
12
On legal sufficiency review, we assess all trial evidence “in the light most favorable to
the prosecution,” to determine whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Emphasis omitted]. Clayton v. State, 235
S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979). We review all record evidence—direct or circumstantial,
properly admitted or not. Clayton, 235 S.W.3d at 778. “Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Hooper v. State, 214
S.W.3d 9, 13 (Tex.Crim.App. 2007). We measure legal sufficiency based on the statutory
elements of the offense as modified by the allegations set out in the indictment. Malik v. State,
953 S.W.2d 234, 239 (Tex.Crim.App. 1997).
In this procedural posture, we are not permitted to sit as “thirteenth juror” and substitute
our judgment for that of the fact finder, and we generally defer to the jury when the record
evidence paints conflicting pictures of innocence and guilt. Isassi v. State, 330 S.W.3d 633, 638
(Tex.Crim.App. 2010), Goodman v. State, 66 S.W.3d 283, 286 n.4 (Tex.Crim.App. 2001). Even
so, we act as a procedural failsafe against irrational verdicts, and we may reverse a conviction on
legal sufficiency grounds where no rational juror could find guilt beyond a reasonable doubt
based on the evidence presented at trial. Clayton, 235 S.W.3d at 778; Amaro v. State, No. 08-12-
00198-CR, 2014 WL 1663162, at *2 (Tex.App.--El Paso Apr. 23, 2014, no pet.)(not designated
for publication). This encompasses both situations in which the State has failed to prove an
essential element of the crime as a matter of law and situations in which some evidence exists on
every element, but no reasonable person could convict in light of the state of evidence as a
whole, even when viewed most favorably to the prosecution. See Jackson, 443 U.S. at 320, 99
13
S. Ct. at 2789 (constitutional legal sufficiency standard in criminal cases higher than “mere
modicum” evidence standard); Brooks v. State, 323 S.W.3d 893, 906-07 (Tex.Crim.App. 2010).
Where the evidence is legally insufficient to support the defendant’s conviction, and
reformation to a lesser-included offense is not appropriate, the court must render a judgment of
acquittal. Thorton v. State, 425 S.W.3d 289, 299-300 (Tex.Crim.App. 2014); Casanova v. State,
383 S.W.3d 530, 532-23 (Tex.Crim.App. 2012).
Analysis
The record evidence here is sufficient to uphold the jury’s verdict for felony murder as
alleged in Count II. That count alleged that Appellant caused Milayna’s death in the course of
committing injury to a child, either directly or as a party criminally responsible for another’s
actions. The evidence is sufficient to support a guilt finding under either theory.
Appellant is correct that there is no direct evidence in the record that would conclusively
establish she inflicted the fatal blow. However, circumstantial evidence may be legally sufficient
to uphold a murder conviction. “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Hooper, 214 S.W.3d at 13.
Here, the circumstantial evidence is enough to allow a jury to infer that Appellant
Shawntrell Dawkins caused Milayna’s death. Both Nakia and Appellant admitted to police that
they had repeatedly hit Milayna with a belt on various parts of her body, and the autopsy
revealed external bruising over 40 percent of her body and internal bruising and bleeding. That
is sufficient to establish the felony predicate of injury to a child. Dr. Contin’s testimony
establishes that the type of head injury that killed Milayna could not have been caused by a
simple fall down the stairs. Instead, the subdural and subarachnoid bleeding she experienced
14
could have only been caused by substantial blunt force trauma, and Dr. Contin testified that the
only way Milayna could have sustained those injuries was by falling down the stairs was if she
fell down multiple, uncarpeted stairs directly on the top of her head. The autopsy also
demonstrated that Milayna had ten separate bruises on the top of and back of her head. In light
of that testimony and evidence, it would be rational for a jury to reject an innocent, accidental
explanation for Milayna’s death.
As for identity, the evidence shows that in the hours leading up to Milayna’s death, only
Appellant and Nakia had care, custody, and control over the children. Dr. Contin’s medical
testimony established that Milayna would have suffered the head injury close in time to when
she fell unconscious and had trouble breathing, meaning that she could have only sustained those
injuries at the hands of Appellant or Nakia. Nakia insisted that his wife was in the room with
him when they both heard a loud boom and Appellant found Milayna unconscious. However,
his story contains inconsistencies about where Appellant and Milayna were at various times of
the evening. A rational jury could conclude that Nakia’s testimony vouching for his wife’s
whereabouts immediately preceding the purported fall were not credible.
Even if we are incorrect that circumstantial evidence can establish beyond a reasonable
doubt that Shawntrell Dawkins herself caused Milayna’s death in the course of committing child
abuse, the evidence is legally sufficient to convict her as a party to Milayna’s murder even if
Nakia Dawkins caused the injury. Appellant correctly asserts that “mere presence of a person at
the scene of a crime, or even flight from the scene, without more, is insufficient to support a
conviction as a party to the offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex.Crim.App.
2012). However, where a person has a legal duty to act, failure to do so may render her
criminally liable under law of the parties. See TEX.PENAL CODE ANN. § 7.02(a)(3)(West
15
2011)(establishing that a person is a criminally responsible party if, “having a legal duty to
prevent commission of the offense and acting with intent to promote or assist its commission, he
fails to make a reasonable effort to prevent commission of the offense”). Cases from this Court
and our sister courts make clear that a breach of a parent’s duty to intervene and stop known
physical child abuse may render that parent criminally liable for the consequences of another’s
actions.
Late last term, in a case with similar facts, this Court affirmed the capital murder
conviction of a mother who failed to protect her three-year-old daughter from physical abuse at
the hands of a live-in boyfriend. Perez v. State, No. 08-12-00340-CR, 2015 WL 4940375, at *7-
*8 (Tex.App.--El Paso Aug. 19, 2015, no pet. h.)(not designated for publication). We held that
the mother was a party to her boyfriend’s murderous conduct based on a duty theory of criminal
liability because she was aware of abuse but failed to intervene. Id.
In Sandoval v. State, Nos. 14-12-00879-CR & 14-12-00880-CR, 2014 WL 3870504, at
*6 (Tex.App.--Houston [14th Dist.] Aug. 7, 2014, no pet.)(mem. op., not designated for
publication), the Houston Fourteenth Court, also relying on a breach of duty theory of party
liability, upheld an injury to a child conviction where a mother alleged that it was actually her
live-in domestic partner who struck and killed her daughter. The Court rejected that narrow
approach to liability, holding that a desire to maintain domestic harmony did not excuse the
mother from the duty to protect her daughter. The Court also held that it would be reasonable for
a jury to disbelieve the mother’s claim that she believed the injuries were not the result of abuse:
“[e]ven if appellant never personally witnessed Judith or anyone else seriously injuring the
complainant, each significant injury the complainant collected in her relatively short life made
belief in an innocent explanation less and less reasonable.” Id.
16
Finally, in Carson v. State, 422 S.W.3d 733, 743 (Tex.App.--Texarkana 2013, pet. ref’d),
the Texarkana Court of Appeals affirmed the capital murder conviction of a mother who said and
did nothing to prevent her boyfriend from torturing her baby daughter to death while he
attempted to “exorcise” a “demon” that possessed the baby. While the facts in that case are more
extreme than those present here, the underlying principal is the same: a parent, who has a duty to
protect a child, is criminally liable for harm that befalls the child as a party to the offense if they
knew a domestic partner is physically abusing the child and they fail to make reasonable efforts
at intervention. Carson, 422 S.W.3d at 743.
Here, although Appellant was not Milayna’s mother, Appellant was acting in loco
parentis as she had express consent of Harris to act as Milayna’s parent as evidenced by the
power of attorney.7 As such, she had a legal duty, same as Milayna’s mother, to ensure Milayna
stayed healthy and safe. While it is impossible to tell if Appellant or Nakia struck the blow that
caused Milayna’s death, the severity of the head injuries would make it rational for the jury to
reject the innocent explanation offered by the Dawkinses, particularly in light of their
inconsistent statements to police and the medical evidence and testimony. It would be rational
for a jury to conclude that either Appellant or Nakia struck Milayna in the head.
We cannot say that no rational juror would convict on this record. On the contrary,
Appellant’s conviction rests on legally sufficient evidence and the reasonable inferences drawn
7
Although neither party disputes that Appellant had a legal duty, we note that Section 9.61(a)
states: “The use of force, but not deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child” and “in
loco parentis” is defined as “anyone who has express or implied consent of the parent . . . .”
TEX.PENAL CODE ANN. § 9.61(a)(1), (b)(West 2011). The Court of Criminal Appeals in Rey v.
State, stated in loco parentis “means ‘in the place of the parent’ and refers to a person who
assumes the duties of a parent.” 280 S.W.3d 265, 269 (Tex.Crim.App. 2009), citing Schrimpf v.
Settegast, 36 Tex. 296, 302–03 (1871–1872); Coons–Andersen v. Andersen, 104 S.W.3d 630,
634–35 (Tex.App.--Dallas 2003, no pet.). The person standing in loco parentis has the same
rights, duties, and liabilities as a parent to the child. Coons-Anderson, 104 S.W.3d at 635.
17
therefrom. Issue Three is overruled.
Autopsy Photos: Admissibility and Prejudicial Effect
We next turn to Appellant’s objections to the autopsy photos. Appellant challenges the
admission of the photographs both as a distinct appellate error, and as the predicate basis for a
mistrial the lower court should have granted. Under either an evidentiary error or mistrial
approach, we review the trial court’s rulings for abuse of discretion. Archie v. State, 221 S.W.3d
695, 699 (Tex.Crim.App. 2007)(mistrial standard); Torres v. State, 71 S.W.3d 758, 760
(Tex.Crim.App. 2002)(evidentiary error standard). Where the trial court does abuse its
discretion in admitting evidence, we will disregard the error unless it affected the defendant’s
“substantial rights.” TEX.R.APP.P. 44.2(b). If harmful error is present in the record, we must
reverse the defendant’s conviction and remand for a new trial. We cannot grant an acquittal
based on evidentiary error. See Watson v. State, 204 S.W.3d 404, 420 (Tex.Crim.App.
2006)(acquittal only appropriate in meritorious legal sufficiency challenge); Adams v. State, 639
S.W.2d 942, 943 (Tex.Crim.App. 1982)(proper remedy for trial error is reversal and remand).
As stated previously, the twenty-three photos in question depict Milayna’s body at
various stages of the autopsy process. Appellant objected on relevance grounds at trial. The
State contends the photographs were relevant under TEX.R.EVID. 401. We agree. “Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.” Id. “The identity of
the victim and the manner and means of death are certainly facts that are of consequence to the
determination of the action.” Penry v. State, 903 S.W.2d 715, 751 (Tex.Crim.App. 1995). The
autopsy photos were relevant both to establish Milayna’s identity and to help the jury decide
cause of death. See id. (admitting pre- and post-death photos of the deceased). The trial court
18
properly overruled Appellant’s relevancy objections.
Appellant maintains that even if the photographs were relevant, the trial court abused its
discretion by admitting them because the graphic photos were substantially more prejudicial that
probative. As such, they were inadmissible under TEX.R.EVID. 403. We disagree.
The trial court has the discretion to exclude relevant evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX.R.EVID. 403. “Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial.” Gallo v. State, 239
S.W.3d 757, 762 (Tex.Crim.App. 2007). Generally speaking, “if a verbal description of the body
and the scene would be admissible, a photograph depicting the same is admissible.” Erazo v.
State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). But that rule is not absolute:
A photograph should add something that is relevant, legitimate, and logical to the
testimony that accompanies it and that assists the jury in its decision-making
duties. Sometimes this will, incidentally, include elements that are emotional and
prejudicial. Our case law is clear on this point: If there are elements of a
photograph that are genuinely helpful to the jury in making its decision, the
photograph is inadmissible only if the emotional and prejudicial aspects
substantially outweigh the helpful aspects.
Id. at 491-92.
In a similar case in which a criminal defendant complained about the admission of a
three-year-old victim’s autopsy photos, the Court of Criminal Appeals laid down several factors
to consider in our Rule 403 analysis. “These factors include, but are not limited to: the number
of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white
or color,8 whether they are close-up, and whether the body depicted is naked or clothed.” Gallo,
8
We note that the copies of the photos we have in the appellate record are in black and white, but apparently, the
copies the jury reviewed were in color. “If [Appellant] believed the colors in the actual photographs would have
19
239 S.W.3d at 762. “The availability of other means of proof and the circumstances unique to
each individual case must also be considered.” Id.
We agree with the trial court that these photographs were no more gruesome than
ordinary autopsy photos. The first fourteen pictures only depict Milayna’s body as it was
received by Dr. Contin. While she is unclothed in certain pictures, the pictures also depict
bruising on her body. Although several of the photos depict the same parts of the body, they did
so from separate angles and from separate distances. Each photo depicted injuries, all of which
tended to confirm Milayna Harris was physically abused and that her death from head trauma
could not have been accidental. The most gruesome pictures, which show only her internal
organs inside the abdominal cavity and her brain with the skullcap removed, were necessary to
show internal bruising and bleeding that would otherwise not be visible to the naked eye.
The photographs are highly probative for another reason. By offering Dr. Contin’s expert
testimony, the State implicitly vouched for his qualifications and credibility. Appellant’s
defense, as telegraphed in opening statements, rested heavily on challenging the medical
examiner’s credentials, character, diligence, and truthfulness. The photographs admitted at trial
verified that an autopsy was performed and allowed the jury to not only judge Milayna’s injuries
for themselves, but also assess whether Dr. Contin’s findings could be trusted. Seeing is
believing—or disbelieving. The additional probative value of these pictures in light of
credibility questions weighs in favor of admissibility.
Although certain pictures depicted aspects of the autopsy that an ordinary person would
find gruesome, and the emotional impact of seeing a child’s corpse being clinically dissected
made a difference in our assessment of prejudice, [s]he could have ensured that either the original photographs or
color photocopies were included in the record.” Troncoso v. State, No. 06-03-00065-CR, 2004 WL 573659, at *5
n.1 (Tex.App.--Texarkana Mar. 24, 2004, pet. ref’d)(not designated for publication)(citing applicable Rules of
Appellate Procedure).
20
cannot be denied, this was a trial for murder. Jurors are constitutionally called to assess the guilt
or innocence of their peers, and images of death and tragedy are par for the course. We presume
that such images are admissible, and they can only be excluded if their prejudicial effect
substantially outweighs their probative value. TEX.R.EVID. 403. That was not the case here.
These photos assisted the jury in understanding Dr. Contin’s testimony about the autopsy and
deciding if he was a credible witness. They also helped the jury gauge the severity of Milayna’s
injuries. All things considered, the scales of Rule 403 do not tip outside the zone of reasonable
disagreement here. As such, we uphold the trial court’s evidentiary ruling. Issue Two is
overruled.
However, this does not end our inquiry. One outstanding issue remains. Appellant urges
us to reverse her conviction in light of a juror’s emotional reaction to the pictures, which
demonstrates their prejudicial effect. The State correctly notes that we assess the emotional
impact of evidence from the perspective of a person of normal sensitivity and do not consider
after-the-fact reactions of jurors in deciding threshold admissibility questions. But an emotional
outburst can form the basis for a mistrial separate and apart from an evidentiary ruling. See
Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App. 2010)(nothing that “an outburst from a
bystander or witness which interferes with the normal proceedings of a trial will not result in
reversible error unless the defendant shows that a reasonable probability [exists] that the conduct
interfered with the jury’s verdict.”)[Internal quotation marks omitted]. Nevertheless, we
conclude that the trial court did not abuse its discretion in refusing to grant a mistrial. There is
no evidence of prejudice in the record, and as such, we defer to the trial court’s discretionary
decision in light of the fact that it was in an appreciably better position to determine the
atmosphere of the courtroom and the effect the juror’s weeping actually had. Cf. Troncoso, 2004
21
WL 573659, at *6 (trial court did not abuse its discretion in denying new trial where juror exited
the jury box weeping and attempted to leave courtroom during presentation of autopsy photos).
Issues One and Two are overruled.
CONCLUSION
The evidence was legally sufficient to support Appellant’s conviction, and the trial court
did not abuse its discretion by admitting the autopsy photos and overruling a motion for mistrial.
The judgment of the trial court is affirmed.
October 14, 2016
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, J., and Larsen, Senior Judge
Larsen, Senior Judge (Sitting by assignment)
(Publish)
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