Charles Craig SKIDMORE, Appellant, v. The STATE of Texas, Appellee.
No. 6-90-035-CR.
Court of Appeals of Texas, Texarkana.
Aug. 31, 1992.
Discretionary Review Refused Jan. 13, 1993.
838 S.W.2d 748
Accordingly, I would reverse the summary judgment and remand the cause for trial on the merits of Cooper‘s affirmative defenses for a reconsideration of the attorney‘s fees, if any, to be awarded to Scott.
See also, 808 S.W.2d 708.
Robert Newsom, Asst. Dist. Atty., Sulphur Springs, for appellee.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
CORNELIUS, Chief Justice.
Charles Craig Skidmore appeals his conviction for bodily injury to a child. In nine points of error, he contends that the State did not prove the culpable mental state required for the offense; that the great weight and preponderance of the evidence does not support his conviction; that the trial court‘s voir dire instructions were erroneous; that photographs and hearsay evidence werе erroneously admitted; and that the prosecutor‘s closing argument impermissibly commented on his failure to testify. Skidmore also complains that the jury charge erroneously contained a reference to injury by omission and allowed a conviction based on his conduct rather than the result of the conduct, and that the charge should have included a requested instruction on temporary insanity.
The State‘s evidence showed the following: On January 22, 1989, Charles Skidmore and his companion, Kayla Shortnacy, gave a Super Bowl party at Skidmore‘s home. Skidmore drank beer and whiskey and smoked marihuana during the party. Skidmore went to sleep about 10:00 p.m. At about 11:00 p.m., he awoke abruptly and went in the kitchen to get something to eat. Kayla Shortnacy‘s three-year-old child, Susan, was in the kitchen. Skidmore started “patting” her on the stomach with his foot and then started kicking her. He then went to the bedroom and took Susan‘s covers and pillow. Kayla Shortnacy told Skidmore that Susan was using the pillow and the covers, and Skidmore said, “By God, I‘ll show her,” and then grabbed Susan and dragged her down the hall. He took her to the bedrоom and got on top of her. Kayla Shortnacy went to call for help, but could hear Susan crying in the bedroom and returned. She then went into the bedroom and tried to get Skidmore away from Susan, but Skidmore threw her (Kayla) across the room. Ultimately, Kayla Shortnacy got Susan away from Skidmore and out of the house. There was testimony from several witnesses that the child had swollen lips, a cut inside her upper lip, and bruises on her face, stomach, buttocks, and pubic area. There were both photographs and medical testimony showing the child‘s injuries. Skidmore relied on an insanity defense. The jury rejected his defense and set his punishment at ten years’ confinement, probated.
Skidmore first contends that the State failed to prove he possessed the mental state required for this offense, and therefore his motion for instructed verdict should have been granted. In reviewing a ruling on a motion for instructed verdict, we view the evidence in the light most favorable to the judgment and affirm the conviction if any rational trier of fact could have found from the evidence the essential elements of the offense beyond a reasonable doubt. Harris v. State, 783 S.W.2d 253, 255 (Tex.App.-Dallas 1989, no pet.). The required culpable mental state for this offense is that of either intentionally or knowingly causing bodily injury to a child.
Skidmore contends that much of the evidence of the child‘s injuries was erroneously admitted. However, as we discuss later, the photographs and the testimony about the child‘s statements to her mother were properly admitted. Furthermore, Kayla Shortnacy testified that she saw Skidmore kicking the child. Skidmore also relies on Kayla Shortnacy‘s testimony that she told several people that Skidmore did not know what he was doing. However, the child‘s statements, the photographs showing her bruises, the medical testimony concerning the child‘s injuries, Kayla Shortnacy‘s testimony of her observations, Skidmore‘s admission to the doctor that he had “beaten up” a child, and the State‘s psy-
Skidmore also argues that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. We treat this as a factual sufficiency attack on the jury‘s rejection of Skidmore‘s only defensive theory—insanity. Insanity is an affirmative defense that must be proven by a preponderance of the evidence.
The medical testimony was conflicting. Skidmore‘s expert, Dr. John Goodman, a licensed psychiatrist, opined that Skidmore had an illness known as “mixed seizure with complex symptomology.” He also opined that Skidmore had a seizure at the time of the offense in which he lost consciousness. He based his opinion on Skidmore‘s prior history, observations during his hospitalization, and prior evaluations by another physician. Goodman believed that Skidmore could not have committed the injurious acts either intentionally or knowingly.
The State, on the other hand, relied on a psychologist, Dr. Henry Landrum, who testified that Skidmore‘s drug and alcohol abuse played a major role in his behavior. Landrum testified that Skidmore did not have a mental disease or defect consistent with any insanity defense. The State presented evidence that Skidmore used a great amount of alcohol and some marihuana shortly before the incident. Tests performed at the hospital were positive for both alcohol and marihuana. Kayla Shortnacy testified to Skidmore‘s use that day of drugs and alcohol. She also testified to his anger. In light of this evidence concerning sanity, any rational trier of fact could have found that Skidmore did not prove his defense of insanity by a preponderance of the evidence.
In his fifth point of error, Skidmore contends that the trial court erred during voir dire by instructing the jury about offenses not charged in the indictment. A trial judge‘s actions in voir dire instructions are grоunds for reversal only when the comments are reasonably calculated to benefit the State or prejudice the defendant. Beets v. State, 767 S.W.2d 711, 744-45 (Tex.Crim.App.1987), cert. denied, 492 U.S. 912 (1989). Skidmore did not timely object to the instructions, thereby waiving any complaint. Montoya v. State, 744 S.W.2d 15, 19 (Tex.Crim.App.1987); Rideau v. State, 751 S.W.2d 248, 249 (Tex.App.-Beaumont 1988, no pet.);
Even had Skidmore properly preserved error, his contention is without merit. He argues that by including the word “omission” when discussing a parent‘s right to discipline a child and outlining the defense of in loco parentis, neither of which was mentioned in the indictment or in any pretrial pleadings, the trial court went beyond the bounds of properly qualifying the jury under
Skidmore also asserts that the trial court erred in admitting certain photographs. The photographs, State‘s Exhibits 1-5, were taken of the child on the night of the incident. An officer testified that he was there when other pictures were taken, but not when these pictures were taken. The officer also testified that he examined the child and that each of the pictures fairly depicted the child as she appeared that night. Skidmore contends that the officer was not comрetent to authenticate the photographs because he was not present when they were taken. A photograph‘s admissibility does not depend on whether the witness was present at the time the photograph was taken. DeLuna v. State, 711 S.W.2d 44, 46 (Tex.Crim.App.1986). Since he had personal knowledge of the child‘s appearance on that occasion, the officer was competent to authenticate the photographs.
In his seventh point of error, Skidmore alleges that the trial court erred in admitting hearsay statements by the victim. This evidence cаme in through the child‘s mother, Kayla Shortnacy, who testified that the child stated that Skidmore hit her. Skidmore‘s counsel objected on the basis of hearsay and subsequently took the witness on voir dire to determine the foundation of her statement. During this examination, Kayla Shortnacy testified that she was the first person the child talked to about the incident and that the child did not have an opportunity to talk to anyone else previously.
Skidmore contends that this testimony was inadmissible because it did not meet the admissibility or notice requirements of
Even assuming his complaint was preserved, this evidence was admissible as an exception to the hearsay rule. Article 38.072, and its notice requirements, applies only to statements otherwise inadmissible because of the hearsay rule.3 The child‘s statement here was admissible as an exception to the hearsay rule as a present sense impression or as an excited utterance.
In the eighth point of error, Skidmore contends the trial court erred in permitting the State to comment on his failure to testify. The following statement was made by the prosecutor while seated in the witness stand:
And he says something. And good Dr. Goodman says that during this time he would be basiccally (sic) incoherent and anything he said would just be illogical. But his statement is, take her back to Randy. I don‘t want the little whore here anymore. I‘m sorry to have to say that, too. Terrible thing to say about a child. There‘s folks among us right here in this courtroom who say things like that, folks, about a three year old child.
Skidmore contends that this statement was harmful because the prosecutor assumed his “persona” by speaking in the first person while he was seated in the witness stand.
The permissible аreas of jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4) a plea for law enforce-
This case is distinguishable from Marable v. State, 802 S.W.2d 3 (Tex.App.-Texarkana 1990, pet. ref‘d), in which the prosecutor specifically referred to defenses which were not asserted. Id. at 4-5. In the argument before us, the prosecutor used the first person pronoun “I” in summing up the testimony of Kayla Shortnacy, not the supposed story that Skidmore would tell if he took the stand. In context, the argument was an attempt to undermine Skidmore‘s insanity defense by showing that he was coherent when making thе statements just after the incident. Although the prosecutor was seated in the witness stand when speaking, at the worst, the comments only amounted to an implied or indirect allusion to Skidmore‘s failure to testify, rather than the necessary implication required for such argument to be error. Jones v. State, 693 S.W.2d 406, 407 (Tex. Crim.App.1985); Brown v. State, 814 S.W.2d 477, 479 (Tex. App.--Dallas 1991, pet. ref‘d).
We now turn to points of error dealing with the court‘s charge. In these points Skidmore contends that the trial court erred in charging the jury that the offense may be committed by omission. He contends that, since this offense concerned a specific act, mentioning omissiоn in the charge was improper and invited the jury to find him guilty if he omitted some act concerning the child. He asserts that the charge is improper because it is not confined to the law applicable to the case. See
Skidmore next argues that the charge was fundamentally erroneous because it allowed the jury to convict on the basis of conduct rather than the results of that conduct.4 Becausе no objection was made to this alleged defect in the charge,
The definitional portion of the charge reads,
A person acts intentionally, or with intent, with respеct to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
These definitions track the penal code.
Skidmore argues that the definition allowed the jury to find him guilty merely of conduct rather than the result of the conduct, as required under
It is clear that application paragraphs, if properly objected to, are erroneous when they do not clearly constrain the jury to base guilt on the resultive nature of the offense. Alvarado v. State, 704 S.W.2d 36 (Tex.Crim.App.1985). Although Skidmorе does not specifically complain on appeal about the application paragraph, we will consider it in our analysis. Banks v. State, 819 S.W.2d at 679.
In Spang v. State, 781 S.W.2d 713 (Tex. App.-Austin 1989, no pet.), the court stopped short of taking the position Skidmore urges here. That court commented,
Alvarado does not hold, and we are cited to no case holding, that the definitions of the culpable mental states should be tailored to the particular offense on trial even if no request or objection is made. While this might be the better practice, it does not necessarily follow from Alvarado that a charge that, without objection, tracks
§ 6.03 in defining the culpable mental states is erroneous.
Spang v. State, 781 S.W.2d at 715; see also Alvarado v. State, 704 S.W.2d 36. The Spang court went on to assume error in this definitional portion of the charge and, since there was no objection, conducted an egregious harm analysis. In finding no egregious harm, the court noted that the defendant offered no evidence that he was unaware that his conduct would cause serious bodily injury. Spang v. State, 781 S.W.2d at 715.
In Sandow v. State, 787 S.W.2d 588 (Tex. App.-Austin 1990, pet. ref‘d), the court viewed an instruction that did not limit the culpable mental state to the result of the conduct as error, despite the lack of an objection. That court engaged in an analysis similar to Spang, finding that intent was not really an issue and that the jury argument did not impropеrly emphasize the instructions. The court concluded that there was no egregious harm. Sandow v. State, 787 S.W.2d at 596-97.
In Banks v. State, 819 S.W.2d 676, the court considered a charge virtually identical to that given here and found egregious harm. There, however, the defendant testified repeatedly that he did not intend to injure the child but only to discipline him. Additionally, the prosecutor in argument specifically told the jury that “the intent .. goes to conduct, not to the intent to cause bodily injury.”
Unlike the situation in Banks, in our case the prosecutor did not urge the jury to use the definitions contained in the charge and did not urge that intent went to conduct only and not harm. In view of the fact that Skidmore‘s only defensive theory was insanity, i.e., that he did not know harming the child was wrong, and that such defense was fairly and thoroughly presented by the court‘s charge, we find beyond a reasonable doubt that the error in the court‘s charge regarding intent did not contribute to the conviction or the punishment.
Skidmore‘s last point of error asserts that the trial court erred in refusing his requested charge on temporary insanity. The statement of facts reflects the defense attorney‘s statement that he had filed one special requested charge and the court denied the request. However, the transcript reflects that nо such request was ever filed. While it is questionable whether counsel‘s trial objection was specific enough to preserve error, see
This judgment is affirmed.
GRANT, J., concurs.
BLEIL, Justice, concurring.
I agree that there is no error requiring that the case be reversed, but write separately to express my disapproval of one aspect of the trial of this case. The trial court erred in allowing the State‘s attorney to make a part of the State‘s argument from the witness stand.5
There are four categories of active participants in a legal proceeding: the judge, the jurors, the attorneys, and the witnesses. The roles and purpose of each are distinct and unique.6 While the State‘s attorney‘s taking the witness stand does not amount to giving testimony, it may well lend a particular type of credibility or authority to statements made in argument.
Unfortunately, the Texas Code of Criminal Procedure fails to set forth basic rules concеrning an attorney‘s courtroom deco-
The State‘s attorney‘s conduct in seating himself in the witness stand during the jury argument was manifestly improper and obviously was intended to be a nonverbal communication. The physical conduct of counsel, as opposed to verbal statements, may constitute nonverbal communication and thus be an independent basis for error.9 It has been posited that ten percent of spoken communication is by the words we say, thirty percent by the sounds wе make and sixty percent by body language, or nonverbal communication. See STEPHEN R. COVEY, THE SEVEN HABITS OF HIGHLY EFFECTIVE PEOPLE 241 (1989). The State‘s attorney intended to communicate to the jury something that would not be reviewable by looking to the words uttered. At oral argument, the State‘s attorney conceded that his assumption of the witness stand was “theatrics,” designed to make a point to the jury.
As I have indicated, this conduct alone was improper, and the trial court erred in failing to sustain the objection to the conduct. The assumption of the witness stand by the State‘s attorney, coupled with the uttеrance of words which the defendant had spoken to Dr. Goodman, appears to have been a communication emphasizing the fact that the defendant did not testify.
Only because the relevant part of the State‘s attorney‘s argument was based on testimony from a witness other than the defendant, I can agree with the majority
WILLIAM H. CORNELIUS
CHIEF JUSTICE