*1 error. petent happened, cumulative evidence is not reversible evidence as what later, Lind- Fire & maybe year or two or three Reina v. General Accident Life Ltd., sey Corp., Mclnnes remembers that he thinks Assurance shimmied, you (Tex.1981). motorcycle Mclnnes’ account of what may weigh want to that to see how via- caused his accident was corroborated testimony and credible it is. ble of other witnesses—Hu- two Smith, only eyewitness to the acci- bert statement, Yamaha’s During opening dent, Nelson, Randy expert in mo- this assertion: counsel made torcycle design and accident reconstruction. continuously told his doc- He [Mclnnes] point out that the excluded state- We memory of the acci- tors that he had no motorcycle Mclnnes that “the ment of dent, day after the and two forced me off the road” does not necessari- accident, Corpo- sues the Yamaha Motor testimony ly confirm Mclnnes’ that an un- had manufactured a saying ration that it motorcycle controllable wobble though his product, defective and even is obvi- caused his accident. statement says virtually impossible it doctor is ously subject interpretation. to some To anyone would remember .... admissible to hold that this statement was exchange during following occurred charge of recent fabrication is one rebut Mclnnes Yamaha: cross-examination of proba- thing; that its admission to conclude Q. person you told Who was the first bly have led the to believe would your bike had shimmied? quite Mclnnes’ account of accident person I the first told A. Who was that the exclu- We do not believe another. my had shimmied? Who was bike Mclnnes testimo- sion of Jean Saldamarco’s my I seen that bike was first rights ny to such a denial of the amounted shimmying, you said? reasonably calculated to of Mclnnes as was Yes, Q. sir. probably did cause the rendition cause and you A. I don’t know what mean. judgment. TEX.R.CIY.P. improper of an Q. Was Mr. Mattioni [counsel person you first told that Mclnnes] errors of the trial We conclude that the your had shimmied? bike such, separately or cumula- court were not No, A. sir. a new trial of this case. tively, require as to court the trial court and judgments Q. Getting my question, Mr. back appeals are affirmed. you tell Dr. Frank Mar- Mclnnes. Did you had amnesia for the acci- tin that anything
dent and could not remember accident?
about the No,
A. sir. the ac-
Q. always remember You could cident? JOHNSON, Appellant, Karl D. everything before A. I remember everything af- everything after —not Texas, Appellee. The STATE of the accident. ter—not after No. 031-83. Yamaha
Clearly, fabrication, recent Mclnnes with Texas, Appeals Court Criminal excluding testimony trial court erred En Banc. to rebut which was offered of Saldamarco 20, 1984. June However, charge. hold that the we excluding court committed error the trial not such as to statement Saldamarco’s The exclusion
require a new trial. *2 Hall, Lubbock,
Mark C. for Darnell, Atty. Jim Bob Dist. and Hollis Lubbock, Browning, M. Atty., Asst. Dist. Austin, Huttash, Atty., Robert State’s the State. ON APPELLANT’S PETITION
OPINION FOR DISCRETIONARY REVIEW ONION, Presiding Judge. appeal
This is an from a conviction for Code, V.T.C.A., injury to a Penal § 22.04(a)(1) (b), as amended 1979.1 assessed at 20 Punishment was years’ imprisonment. appeal
On the convictionwas affirmed unpub- Appeals the Amarillo Court of in an per opinion. lished curiam Johnson 07-81-0196-CR, 17, State, No. November 1982.
Appellant petition filed for discretion- ary contending Ap- review the Court of peals holding erred in the evidence suffi- He con- to sustain the conviction. cient tends there was not as a matter law delicti, corpus sufficient prove insufficient to an knowingly perpetrated intentional and act, Appeals criminal and the Courts of holding merely erred evidence which negated that the death was the result of an thus also sufficient to sustain accident was Appellant urges the his conviction. holding Appeals Court of erred the trial court did not abuse its discretion in allow- ing testify expert as an and to Dr. Mires express opinion as to an ultimate fact granted discretionary issue. We review to 27, Leg., Aug. p. eff. § 1. Acts 66th ch.
determine the correctness the Court outside the car fallen off was underneath the vehicle. Appeals’ decision. Diaz-Esquivel, pathol- Dr. Jose a forensic upon Count two indictment2 performed autopsy child. ogist, proceeded pertinent part trial reads in reflecting scalp the doctor On observed day on or about the 2nd of Febru- “... *3 right a contusion to the rear of the skull 1980, ary, the A.D. and anterior to underlying and an hematoma. He describ- indictment, presentment of this fresh, injury this as no time frame ed aforesaid, County and State Karl John- injury of for the occurrence the was estab- ston,3 intentionally then there did and Diaz-Esquivel lished. Dr. testified the in knowingly engage and conduct hemorrhage, cause of death was mid-brain Brandon bodily injury caused serious to secondary hematoma, to a subdural second- Fansler, younger than 14 of a child ary skull, secondary to fractured to trau- the said age, by striking then and there stated, in Diaz-Esquivel opin- ma. Dr. head, Fansler on the manner Brandon ion, injuries the the sustained child were to the and means of which is unknown falling a not consistent with car and strik- ” grand jurors.... ing the child.5 When asked within reason- probability medical what caused the able it was We shall trace the evidence as death, the trauma which resulted the initially Dr. presented. The State called replied: doctor staff, Eugene Methodist of the Stalnaker “A a with blow with blunt surface —or 1980, Hospital, February On Lubbock. very a surface or with a blunt instru- emergency the when he was called to room ‘very By ment. blunt’ I mean almost flat brought 19-month-oldBrandon Fansler was I not find—it was surface because did a.m. child hospital to the about 11:40 The surface, put not a let’s it that curved breathing adequately not the doc- was and away. to sort of a flat sur- It had be tor observed fresh4 on the child’s abrasions face.” x-rays chin. He ordered and forehead and attorney investigator Steve Fifty District attempted to resuscitate the child. February Holmes testified on (12:30 p.m.) child minutes after arrival the Peoples Ranger went he and Texas Jackie was dead. sup- park the where the incident to trailer Chaffin, radiologist Dr. at the Cadman posedly They occurred. observed a x-rays Hospital, the Methodist examined parked the at Pontiac LeMans automobile a linear taken the and observed question. they Later ob- house in trailer right the rear He testi- fracture to skull. returned about a search warrant and tained fied the fracture could have caused death. p.m. district attor- 11:15 with assistant Drewell, County deputy Bill Lubbock attorney dep- a ney. the district and Later sheriff, responded to a call went They found uty others arrived. sheriff and Hospital February 1980. Methodist on the jack jack near car. a car stand appellant, There the he encountered jack bent. “lip” “tab” trying happened, determine what had Peoples Ernest deputy Holmes stated stated the asked the out somewhat straightened Rector they the little jacked up jack, he had his car to work on had a “tab” it, muffler, he inside trailer with but thereafter the car was trouble went despite it fall up, and would not jacked he came get house to some tools murder, appel- Dr. said the abrasions had occurred 4. Stalnaker 2. The first count but the observed to two hours before he upon 15 minutes tried this count. lant was not them. suggested Appellant name was that his correct doctor’s conclusion was based 5. Part amended the indictment was later Johnson and injury part major a to the face or on the lack of correct to reflect his name. front of the deceased's head. up ground level pushing rocking several of the men on the and the dimensions above not away by undercarriage of the car would car. The car hauled wreck- move the car. permit er child to underneath service. admitted On cross-examination Mires Peoples Ranger generally corroborated a child undercarriage if the was raised testimony. they related Holmes’ He get the under- could his head underneath night, found an old the car that near carriage. “tip” or and the “teat” was bent the side vertical,” “a half inch off but it was used moved for an instructed anyone bending case-in- without it “back out verdict at the close of State’s stage he car chief at Atten- straight” recalled. The the trial. rocked, pushed allegations but it did not come off tion was called to the jack. support lack of indictment and the same; corpus that the delicti was Deputy sheriff Rector testified he was *4 proven, The motion etc. was overruled. present jack a when was found and that Ricky “prong” slightly right Appellant Sharp, was to the called who testi- the bent he, jack January, did the fied that in Kevin and that he not bend to late it; straighten jack appellant driving was used Bacon were in Calvin the with- and difficulty. pushed car and Evans’ Pontiac LeMans automatic when out The was rocked, jack slip the not or the car a snow clod and broke the but did fall. hit Evans, airman, the car muffler testified again Rector testified that he saw loose. yard at the of the Wrecker that he his Pontiac LeMans Lubbock Ser- loaned November, (Evans) up by the car jacked appellant vice where use of in as he was in jack jack duty the same and the on going temporary would not to be 28, 1980, slip fall after he January or the car was rocked. He North Dakota. On did and appellant telephone observe underneath the car the talked to over the pile muffler was disconnected from the told a and that tailpipe. was the car hit of snow the from the muffler was broken loose Captain Alton Hobbs of the sheriff’s of- to tailpipe. Appellant planned told him he fice testified that present he was with oth- Saturday. repair himself the next the car night ers the trailer park at on the lip jack the of his was not Evans stated car 5, 1980; February the in that he saw car to Dakota. bent when he went North question jacked up and that he tried to push jack it off the could He Manual the car and not. Owner’s that the to use observed muffler was disconnected introduced. It cautioned the owner tires, get pipe. jack only change from the exhaust did find the and not to Hobbs to blood, jack any indicating hair or the use. dents the car under the car while anyone.6 on had fallen Campbell, Baptist Carlisle Reverend J.F. Church, Raymond Mires, February on he Physics W. Professor of testified nearby Country Town Mo- University, at Texas Tech testified on Feb- went to the ad 7, 1980, upon appellant he to call the ruary park went to the trailer bile Home Park (Rector deputies Drewell) urge to come to church the next with two and him to day. area He his at 11:05 a.m. observed the there and then went to estimated arrival appellant He the came to the door the Lubbock Wrecker Service where the related trailer, the course of the question car in was located. He had the dislodge it, (appellant) him jacked up and to conversation told that he car tried Camp- on putting on was a muffler his car. took numerous measurements. Based expressed yard jacked up saw at the he the conclusion the bell a car his tests jack jacked time. not fall while the car was would any testimony dispels head. Fur- medical notion that find contusion on deceased’s ther, car, hemorrhaging open, had an the deceased wound under the the deceased when found that would have left blood at the scene of the jacket covering had hood the head. fact, injury. In Dr. had to search to Stalnaker meager The evidence is Danny testified for the de- Weatherford away trailers from There was relationship
fense that he lived two with the child. appellant, whose name he did not know with inference that lived some 2,1980. February morning That he was on Fansler, show no evidence to Rhonda but waxing his car about 11:15 or 11:20 a.m. There was relationship to the child.8 her approached and Johnson child showing any prior abuse of the no on help saying his car had fallen asked his assaults, beatings, appellant, no no by the appel- baby. rushed with his Weatherford any atti- any showing of hostile or even the car and Weatherford observed lant to weapon was tude. No instrument car, Fansler, Brandon under found. past the tailpipe just his head under the the law of court request- mid-portion Appellant the car. Han See and cf. circumstantial evidence. up. Weath- jack the ear ed Weatherford (Tex.Cr.App. kins v. jack, car but grabbed nearby erford 1981). “lip.” He “clip” or noticed it had a bent up, jacked the car got ran and the offense under The elements of child from un- appellant removed the (2) (1) (appellant) indictment are observed der the car. Weatherford (3) knowingly engaged intentionally and over his jacket had on a with the hood (5) (4) bodily injury causing serious conduct the hood and saw pushed head. He back (Brandon Fansler) a child grass in its breathing the child was (6) striking the child on the younger *5 jack, got in the back He lowered the teeth. grand (7) to the by manner and means head the car with the seat of jury unknown. the car hospital. He stated drove to the § 2.01, Code, provides: V.T.C.A., Penal had noise which he made a loud muffler inno- presumed to be persons “All are appellant had driven previously heard may convicted no be cent and park. into the trailer unless each element an offense fellow testified she was a Mary Gomez a reasonable proved beyond offense is Rhonda Fan- employee Optical at Lee with he has been arrest- The fact that doubt. sler; February Rhonda that on for, otherwise ed, confined or indicted a.m.; 10 that be- arrived at work about with, gives no rise to the offense Rhonda received a tween 11 and 11:30 a.m. guilt at his trial.” See inference of drove phone began crying. call and Gomez 38.03, Article Y.A.C.C.P. saw the hospital where she Rhonda appellant and appellant. She described proof in a criminal The burden upset. Rhonda State, on incumbent and it is is on the case testify nor did appellant did not every element of prove the State to Fansler. Rhonda doubt. beyond a reasonable offense (Tex.Cr. State, 838 603 S.W.2d Wright v. rested, re- the State After the defense State, 924 623 S.W.2d App.1980); Evans v. he Peoples, who testified Ranger called this is true whether (Tex.Cr.App.1981),and during his Campbell to the Rev. talked upon circumstantial relying the State him Campbell told and that investigation, State, 573 v. direct evidence. See Crocker he up when jacked had not been the car State, (Tex.Cr.App.1978). S.W.2d 190 he Peoples admitted visited in the indict by allegations its being bound statement Campbell’s had not included ment, beyond a reasonable prove must report recalled it. but penalty support At the opin- that fact. Appeals’ evidence to the Court of The indication in testified that stage is in father a State’s witness of the trial Weatherford was ion that February, appellant married "Rhonda.” error. was married to appellant testified he Later opinion Rhonda Appeals’ states Court of 8. The "Rhonda J. Johnson.” mother, direct there is no was Brandon’s
195
State,
doubt. Butler v.
State,
Freeman
rehearing);
ted.
In other
a conviction cannot
(Tex.Cr.App.1984).
if
be sustained
any
evidence leaves
reasonable
guilt
doubt as to the
Thus, it is still clear that a convic
Tex.Jur.3rd,
Law,
accused.” 24
Criminal
tion based on circumstantial
can
§ 2987, p. 71.
not be sustained if the circumstances do
every
hypoth
not exclude
other reasonable
Since this is a circumstantial evidence
except
esis
that of the
of the defend
case, we note
recently
discussed stan
State,
ant. Pickering v.
596
124
S.W.2d
dard of review in such cases.
In Wilson v.
State,
Bryant v.
(Tex.Cr.App.1980);
State,
(Tex.Cr.App.
Schershel v.
(Tex.Cr.App.1978);
S.W.2d 109
1983) (opinion on rehearing) this court stat
State, (Tex.Cr.App.1979).
S.W.2d 548
ed:
Thus
only
strong
which amounts
to a
“It
follows that circumstantial
evi-
suspicion or mere probability is insuffi
dence
should not be tested
an ultimate
State,
cient. Ford v.
(Tex.
trier
or
if
circum
cannot be sustained
dence
testimony
all
Ables v.
of the
adduced.
every other rea
do not exclude
464,
stances
(Tex.Cr.App.
State, 519
465
S.W.2d
hypothesis except
sonable
613,
State,
1975); Esquivel v.
506 S.W.2d
accused; proof amounting
v.
(Tex.Cr.App.1974).
Reese
615
See
suspicion is insufficient.
only
strong
ato
State,
(Tex.App
550
653 S.W.2d
. —Beau
(Tex.Cr.
State,
421
544 S.W.2d
Young v.
however,
1983).
may
jury,
A
mont —
in this
is
The evidence
case
App.1976).
speculation.
reach a verdict based
ap
insufficient to show
clearly
jury
State, supra. The fact the
v.
Reese
(Empha
pellant stabbed the deceased.”
disregard appellant’s state
was entitled to
supplied.)
sis
justify a convic
to Drewell does not
ment
tion in this case.
jury in the instant case
The fact the
story to
(Tex.
disregard the accident
State,
entitled to
In
Wright v.
State)
(and
by the
origi
deputy
offered
Drewell
panel of this court on
Cr.App.1980),a
missing elements of
mean that the
does not
nal submission wrote:
supplied by
offense are
knowledge
this
accused’s
wrongdoing
rejection. Wright
controlling.
is here
way
flight,
agree
same
as is
I
State has failed to show that the victim’s
We do not conclude that the State
act,
death was the result of an intentional
sufficiently
alleged
showed the crime
and a fortiori that it was the result of an
someone,
by
did,
committed
or if it
it did
by
intentional act
not sufficiently
appellant’s
show the
com
plicity in
presence
the offense. Mere
alone
I
point
appellant’s
write to
out that
own
State,
is not sufficient. Moore v.
appear
sup-
this case would
S.W.2d 333 (Tex.Cr.App.1976). Proof
port
criminally
a conviction
negligent,
only
which
strong
amounts
to a
or mere
perhaps
reckless,
injury
even
to a
probability
Ford,
enough.
supra.
is not
both of
which are condemned
the same
Further, there
showing
is no
that the act
statute
under which
was committed intentionally
knowing-
charged.1
ly.
State,
Stuebgen
Cf.
v.
alleged
indictment in the instant case
(Tex.Cr.App.1977),
Pfleging
only
injury, however,
intentional
and the
(Tex.Cr.App.1978).
S.W.2d 517
As re-
charge
of course authorized
luctant as we are
jury’s
to set aside a
only upon
conviction
theory.2
verdict,
case,
this circumstantial evidence
light
In
of the failure of the State to
facts,
tested
its own
is not sufficient to
plead in the alternative a mode of commit-
support conviction when the standard of
ting the offense
supported by
which was
review discussed in
applied.
Wilson is
proof, I join
majority
in finding the
We need not
reach
other con-
evidence insufficient.
tention.
light
In
States,
Burks v. United
CAMPBELL, J., joins.
1,
2141,
(1978),
U.S.
98 S.Ct.
entitled acquittal. to an judgments Appeals Court of
and trial court are reversed and remanded
to the trial court for an entry judg- of a acquittal.
ment of DAVIS, Judge,
W.C. concurring.
Although I believe it should be noted fabrication, although hardly sufficient support conviction, probative of an offense, V.T.C.A., alleged 1. changed At the time of the explicitly provides statute for the Code, provided: Penal Sec. 22.04 use of the old scheme for offenses committed prior to the effective date of the new statute. (a) A commits an offense if he inten- Leg., p. Acts 67th ch. tionally, knowingly, recklessly, or with crimi- negligence engages nal in conduct that causes provide 2. Unlike those included offenses which bodily injury, physical serious serious or men- *8 punishment, alleged lesser offense deficiency impairment, deformity tal or way mitigat- instant case would have been in no age younger. a child who is 14 (b) by proof culpability, ed ante, of the lesser see fn. felony An offense under this section is a charg- and the State was thus bound its degree. of the second ing instrument. The court would not have been statute, legislature replaced effective charging upon authorized in the included of- 1, 1981, which, September with a new scheme fense, because it is not a lesser offense. Cf. Art. alia, provides inter injury that the offense of reckless 37.09, case, V.A.C.C.P. In the instant the of- degree felony, to a child is now a third requiring fense and the offense lesser degree, criminally negli- rather than second gent injury culpability misdemeanor, were the same offense. is now a class A