*2 the home of Lillian Cameron Mapel, Angleton, appellee. Jim for abuse investigate allegation lant SMITH, Before JACK and CO- BASS Kenneth, Ms. became extreme- *3 HEN, JJ. purpose ly when informed of upset the visit. OPINION when Kenneth’s Green stated that Ms. SMITH, Justice. JACK cry to picked up, began him he mother was indicted Jimmy Mack Short for pain. severe She appeared very to be trial, a injury offense of child. At pulled his mother his stated that when guilty pun- found him and assessed his injuries that her the shorts down show at confinement. On years ishment eleven collapsed pain. from very nearly Kenneth grounds he raises seven of error. appeal, one of Kenneth’s Ms. observed that Green Abel, complainant, Kenneth Alan larger times than testicles was two or three 23, 1981, was years April On he four old. the appellant she asked other. She said Community Hospital taken to Alvin where he an- this and say what he had about recommended that he be trans- doctor swered, say.” have “I don’t Sealy Hospital ferred to John in Galveston. observed Ms.' also stated that she Green Sealy, pedatric At John he underwent sur- on Kenneth’s several and abrasions bruises a gery injury for rectal tear. The chin, head and neck. resulting required a infection that colosto- Ms. Camer- suggested When Ms. Green June, 1981, the my performed. be be taken on Kenneth should arrested Kenneth’s inflicting lant was for argument an injury, because of his hospital injuries and with the offense charged an ultima- issued finally ensued. Ms. Green injury of a child. Cameron, you “Either stating, tum to Ms. trial, At Josie Martinez testified child, Because of the I will.” take the or eve- babysat early she for Kenneth deputy had a sher- Green disagreement, Ms. she ning 1981. said that She appellant to Cameron and the iff follow Ms. appeared pain to be in noticed Kenneth hospital. was difficulty walking. and had He fever- Kenneth, he not use the the doctors at ish and cried because could examining After family restroom. several members She and recommended Hospital, Community Alvin swelling around large observed bruises and Sealy John he transferred be groin his area. penis and in ordered Ms. Green in Galveston. Hospital that Ms. feared an because she ambulance parents and her Deborah Sanchez take would not Ken- babysat when she present with Josie objection, Over Sealy. John Kenneth to Josie’s They neth. corroborated told Ms. testified Green told them and further stated that Kenneth he and Ms. Cameron her both that “his hit him. daddy” occasion. children” on “whipped the Moreno, lived door who next Mary Lou baby- family normally his Kenneth and neigh- old year a fifteen Eugene Lyons, Kenneth, Ken- sat testified that she saw for Ken- with played he had bor, testified that before he went day neth at 4:00 P.M. on the or hit kicked he never past neth in the but Kenneth hospital. stated that She Kenneth rocks at he threw him. He said hardly could very walking slowly rocks at they threw and other kids bruises on had observed move. Moreno foot- touch played He him. stated previous Kenneth on occasions. Kenneth but children younger ball with several He stated football. worker, play touch Green, a tes- child welfare Margo hit Kenneth kicked or that he never request I times Priority received a tified she or other child. He also testified that he Ms. that she Cameron testified did not had seen Kenneth and believe that the had hurt Kenneth another child about provider and had good because a age get fight. into a always been her children. said good to She Three doctors for the State re- that he took care kids on his off day extent, garding the severity and treatment them and was new clothes or always buying of Kenneth’s injuries. His injury diag- toys. nosed as rectal tear which had abcessed On cross-examination Ms. Cameron stat- causing an infection. surgery, Immediate ed question that she continued to Kenneth including a colostomy, performed by regarding injuries at the insistence of the doctors. The doctors testified that the the child agency. welfare She said she injury was caused perfora- a traumatic feared take her agency would children tion the rectum and colon. In their she away. questioned At one time when opinion, was non-accidental and *4 Kenneth, put he his three daddy stated that was inconsistent with the insertion of a fingers “in On other my butt”. occasions rectal thermometer or a kick in the but- Eugene he continued to that Lyons state tocks. kicked him. mother, Kenneth’s Cameron, Ms. testified Ms. Cameron further testified that her for both the State and the appellant. had from her away children been taken testifying When for the she stated appellant once before because the had acci- gave that she Kenneth a bath on the eve- dently leg. broken ex- She ning 21, of April time, 1981. At that she that had been plained climbing Kenneth notice any bruises on his buttocks or family leg over the seats in the car and his groin. The following morning approxi- at stuck seats. When got between the mately A.M., 10:00 appellant drove Ms. loose, appellant pulled get him Kenneth Cameron to work. Kenneth was with them leg appellant broke. Once appeared and to be normal and healthy. abuse, charges had been absolved of Ken- While Ms. work, Cameron was at the appel- neth and his brother returned to Ms. babysat lant for Kenneth and his brother. Cameron. that she Cameron stated
That afternoon, when the appellant appellant because she be- arguments had picked up Ms. work, from Ken- disciplined that appellant lieved neth was in the car and Ms. Cameron no- children too stated that Ken- harshly. She ticed that he had trouble and sit- walking daddy neth told her that choked him” “his ting. She stated that he had a large bruise day inju- on the that he received rectal in the middle of his buttocks and com- ry. plained several times that his bottom hurt. witness, She said that when she asked the When as a appellant by called the defense what was most wrong son, story with her Ms. Cameron stated that he stated her consistently Kenneth came son was that home reiterated complaining that his Eugene Lyons kicked him. She stated that bottom hurt. He said he that looked at it a normal father acted as and couldn’t see wrong, but he hospital. at the when visited Kenneth given had Kenneth medicine for the pain. cross-examination, Ms. Cameron stated On Ms. Cameron further that she saw since not ill before his Kenneth was a red mark across the middle of Kenneth’s for the injury, there was no occasion buttocks which though looked as Kenneth temperature with a lant take the child’s had been kicked. stated that when She supposito- insert a rectal thermometer or to they took hospital Kenneth to the Kenneth ry into the child’s rectum. told her Eugene him Lyons “kicked the butt”. She said she believed this be- ruling earlier changed Court its Eugene cause “picked on Kenneth” and she to testify Kenneth competent was not had wit- had trouble in with as the Court’s past Eugene. permitted testify him to bruises, of the witness-
ness. Kenneth told counsel caused the none opinion. mommy. four old lived with his es offered an years address, but He did know his knew babysitters The evidence that tell mommy it was bad to a lie. He said his forehead, on Kenneth’s observed bruises if He spanked him he told a lie. stated because it chin and neck admissible mommy spanked his “butt” was his where injured bears condition Kenneth him and that his “butt” had been hurt. those witnesses. Evidence as observed butt, happened When asked what to his prior of the bruises observed first Kenneth stated that he didn’t remem- case never attributed to the instant ber, Eugene but then stated that “stuck fact, witness who had know or spoon in there”. He did not that the bruises stated prior observed the that Eugene where this but happened appeared friendly his pulled pants spoon down and “stuck a very well. treat the children He said there”. that this occurred the Court of the cases where Most of park trailer where he lived. has held that evidence of Appeals Criminal his daddy Kenneth stated that had have in- offenses inadmissible extraneous choked him with towel. He said his dad- had pre- that an volved not hurt and did his dy did his butt not stick in some other crime involved viously been finger there. He also said he did Albrecht, See, supra; activity. or criminal mommy Eugene daddy tell or his State, 159 Tex.Cr.R. Young v. Eugene him or what did to him. kicked *5 Prior v. (Tex.Cr.App.1953); S.W.2d 836 rebuttal, deputy In the called a State (Tex.Cr.App.1983) State, 956 647 S.W.2d who the guarded sheriff had cases are distin- (not These yet reported). and Ms. appellant When asked whether the case in the the instant guishable from the in his Cameron had ever discussed case does as- present the case testimony the talked presence, deputy they stated an extra- committed appellant sert that the plea bargain- about the sentence and some no testimony is As there neous offense. ing. This line of ended when questioning relationship be- a causal which establishes in- objected the to the appellant’s counsel and no appellant and the bruises the tween of plea bargaining troduction evidence of the opin- were of they witness testified objection the and was sustained. injuries, those the caused appellant ion that error is over- of first contends, appellant The in his first ruled. error, ground of the court erred admitting error, extraneous offenses. evidence of the second of specifically complains He of in admit- erred that the court lant asserts were forehead and cheeks made testimony of the statements ting the argues argues bruised. He that the bruises did He babysitter. by Kenneth to bodily hearsay constitute serious are the statements of hearsay not an element of the offense which the rule. to the exception an within charged. these state urges that The State spontaneous as are admissible ments general is that an accused rule The of suffering pain reaction to is entitled to be tried on accusation to the made statement was This victim. and that the pleading made State’s examining Ken she was babysitter should tried for some collat not be because crying had been neth after he or for a criminal being generally. eral crime or eat. the bathroom could not use 97 State, (Tex.Cr. Albrecht 486 S.W.2d App.1972). utter- spontaneous of a requirements The ance are: although first note witnesses We stimulating, (1) exciting, emotionally Kenneth, An none seeing bruises painful event. or physically if the had of the witnesses knew
255
(2) The assertion must be made soon af-
entering judgment against him because the
ter the event so that the declarant is still
evidence was circumstantial and does not
in its emotional grip.
exclude every
except
reasonable hypothesis
(3) The assertion must
relate
that of
The reasonable
appellant’s guilt.
event.
hypothesis
by appellant
offered
was that
Eugene
injured
Lyons had
Kenneth.
State,
Graham v.
(Tex.Cr.
S.W.2d 92
App.1972).
sufficiency
of
is
the evidence
Although the time
impor
element is
to be
light
presumption
viewed in
of the
tant
in determining
an ut
admissibility of
that the accused
is innocent where
con
terance,
it
is not
the controlling factor.
viction is based on circumstantial evidence.
paramount
factor is
person
whether the
State,
(Tex.Cr.
Carlsen v.
By his error, fourth of appellant the The did not tell that Ken- appel- anyone lant asserts that the trial court erred in neth Eugene Lyons kicking had accused of
him until after Kenneth was admitted to refusing grant a mistrial when a witness hospital the for treatment. that he heard the appellant testified plea talk about bargaining. the On date of his injury, Kenneth contention, In this support appellant of the blamed his he stepfather. Although later (5th Ross, cites v. F.2d 771 Cir. U.S. him, Eugene said that kicked medical testi- Ross, 1974). testi government agent In a mony injury showed that Kenneth’s was not arrange plea fied the tried to a being consistent with was kicked but caused bargain every admit whereby he would the object. insertion of a His blunt thing government released his wife. if mother her testified that Kenneth told The that he had dis agent further stated daddy his three his put fingers in “butt”. The prosecutor. this offer cussed with response In counsel’s ques- case stating Fifth Circuit reversed tion, Kenneth’s mother testified that inherently government it unfair for appellant previously had broken Kenneth’s negotiations only plea bargain engage leg. She testified also that she and the weapon a the defendant against use it as appellant argued because the dis- Id. at failed. 775. negotiations ciplined the roughly. children too case, plea In discussion of present Kenneth put testified a Eugene and Ms. bargain was between the “butt”; however, spoon his we note that the witness Cameron. statement this as testimony came a result of state- non-responsive answer and was a ment reportedly which Kenneth made to his jury objection was sustained and lant’s mother after had doctors testified that Ken- it. There is disregard was instructed neth’s with injury inconsistent his hav- to indicate that nothing record ing been Eugene kicked. Finally, Lyons this was even aware of conversation State twice that did not kick Kenneth an- non-responsive to the prior witness’s or insert a spoon into Kenneth’s rectum. witness as swer. The called this State had cites Pickering a rebuttal witness to (Tex.Cr.App.1980), sup- S.W.2d 124 with his not discuss case he did port contention the evidence in the parents. instant case is insufficient. Aside from the elicit the testimo- Since the did not State similarity injuries, the facts Pick- of, no other there is ny complained ering are distinguishable from the facts of in- the court’s plea bargaining, evidence of the instant Pickering, case. the State disregard the testi- struction failed show who.the victim was with at mony proper. In view the court’s time injury and when the we are of jury, immediate instruction to the case, occurred. In the instant the State non-respon- witness’s opinion showed uninjured that Kenneth was before *7 prejudi- harmful or sive answer was not so the appellant left with between new require as to a cial to the defendant 10:00 A.M. 22. Af- and 2:00 P.M. on ground of error appellant’s trial. fifth The him, P.M., 2:00 ter when his mother saw is overruled. showing injury Kenneth was of the signs which to until he was get continued worse error of ground sixth appellant’s The taken to hospital. the variance be- alleges that there is a fatal he is proof the and pleadings tween the When the circumstances surround alleged variance The acquittal. entitled to ing the in their totali injury are considered tear rectal alleges indictment the is that the ty, we hold that the evidence was State’s whereas and infection” caused an “abscess sufficient the convic appellant’s to sustain pre- the infection the that doctor testified ground tion. The fourth of er appellant’s hours. ceded a few by the abscess ror is overruled. is which contends, one A fatal variance by The fifth rights of the error, in the substantial of that the trial court erred affects ground
257 Honor, a that s com- him of MR. Your insufficiently informing either RICE: testify failure to on the defendant’s ment charges against by affording the him or testify. to right he has a protection against reprose- him insufficient that ob- Plessinger cution. I will overrule S.W.2d THE COURT: ahead, Counsel. jection. Go (Tex.Cr.App.1976). The fact that the in- rath- dictment read “infection and abscess” statement does An indirect infection”, than as estab- er “abscess and to right a defendant’s infringe upon doctor, the lished the did not affect implication from testify necessary unless a The rights substantial of the used, viewed from the language the sufficiently appel- indictment informed the is a on the standpoint jury, of a comment him, lant of the charges against Hicks v. testify. accused’s failure to in required proved elements and facts to be (Tex.Cr.App.1975). 525 S.W.2d each of the statements are the same. The shown above refer prosecutor’s arguments is over- the wit testimony sixth of error to elicited from State’s to be a refer appear nesses. His remarks ruled. of consistency ence to the of error, By his final of witnesses, are an and at most State’s lant that the trial court erred in alleges appellant’s failure upon indirect comment failing objection to sustain his state- that, are of the testify. opinion We ments by prosecutor arguments. in final jury, standpoint viewed from He asserts arguments that were com- not a com statements were prosecutor’s ments upon appellant’s failure to testi- testify. ment the accused’s failure upon fy. The first comment about which complains next appellant complains is: prosecutor: following argument by MR. “I DIES: don’t have to sit down and going MR. I’m DIES: A say”. really father who loves truly just a few minutes. Common up shut or even an truly really adult who crime, this kind of you sense tells with, loves a little boy living that’s knows child, with alot to a doesn’t occur for a fact that another child stuck a it. You watching, witnessing people spoon up going his butt is not to tell you I have to tell know that. didn’t somebody who is there to take the child sense tells here. Common you got before “I away, nothing say”. you have And crime, kind of a that kind you Gosh, know you that. common sense tells act, going occur criminal that. I you And didn’t have to tell you I area. And submit private some here, you before but I’ve got got argue the facts particular in this instance silly it like a fool. private it was within indicate that custody confines of the home under Short, Jimmy Mack and control of Eugene Lyons, 14-year per- old sexual you sense tells defendant. And common vert. Eugene Lyons kicked him witnesses, and only two there’s butt. on now. make Come Does that every what one of them told we’ve heard sense? Does it all fit? An it’s from his body. [emphasis added] it Eugene Lyons mouth. Does fit? If Honor, have to I will RICE: Your MR. spoon up had stuck a his butt at *8 the defend- a comment on object. That’s in time point knowing consequences right testify. ant’s you don’t think he have told would Objection overruled. THE COURT: Thacker that? And I didn’t ask for that evidence, strong interpreting comment. That’s ladies in employed The test to be whether the lan- gentlemen. strong That’s evidence. remarks is prosecutor’s intended or manifestly And that’s factual circumstances that has guage used was would neces- jury that the not been contradicted or controverted of such character called, the accused’s comment on take it as a [emphasis sarily witness I added] 258 State,
failure to Bird v. 527 testify. S.W.2d trial, At (Tex.Cr.App.1975). 891 several NEAGLE, Bobby Appellant, witnesses as to remarks testi- concerning injury, but Kenneth’s did mony implicate NELSON, M.D., George et C. Therefore, prosecutor’s argument al., Appellee. imply necessarily No. 13-82-023-CV. only person charge. who could deny judge We note that trial instructed Texas, Appeals of Court of they were not consider Corpus Christi. appellant’s testify any pur- failure for pose. We further note that the 1, 1983. Sept. investigate
referred to the State’s failure to (overruled). Rehearing Oct. 1983 Denied suspects, other referred to lack the State’s witnesses, and also referred to as a suspect. mother Under these circum- we opinion pros-
stances are of the that the
ecutor’s about two witnesses was a remarks
response argument the defendant’s not a comment on the defendant’s fail- See, Nickens v. testify.
ure ). (Tex.Cr.App.1980, en banc S.W.2d appellant’s error is seventh trial judgment
overruled and the of the
court is affirmed.
COHEN, Justice, concurring.
I reluctantly join disposition the court’s
of the final of error com-
plaining argu- the prosecutor’s jury
ment an on improper constituted comment testify.
the failure the accused I such required major-
believe action is
ity opinion in Nickens v. 604 S.W.2d ). Although (Tex.Cr.App.1980, en banc in this prosecutor’s argument
I believe slightly specific calling
case is more
jury’s attention to failure of the testify prosecutor’s argu- than was the Nickens, I supra,
ment say cannot great
the difference is to distin- enough the two cases. If we
guish writing slate,
a clean I would be as inclined to hold Nickens;
did the three dissenters in how-
ever, the I am law is to the contrary
bound follow it. judg-
I concur in the affirmance
ment.