In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00234-CR
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DANNY RAY DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 20668
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
A jury convicted Danny Ray Dixon of injury to a child. See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). The sentence was enhanced by a prior felony conviction for burglary of a habitation. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2004–2005). The jury assessed punishment at sixteen years' confinement. Dixon appeals, alleging that 1) the State used an improper jury argument, 2) there is a fatal variance between the indictment and the evidence at trial, and 3) the evidence is legally and factually insufficient. We affirm the judgment of the trial court.
George Warren, an officer with the Leonard Police Department, was dispatched to Dixon's residence in response to a domestic violence call, along with Officer Linda McCrory. At Dixon's residence, Warren interviewed Dixon and his live-in girlfriend, Crimson Wolfe. Wolfe informed Warren that Dixon had poured Tabasco sauce on her two-year-old son, R.M., and that he had hit him in the face and the leg. After observing the red marks on R.M.'s face and leg, Officer Warren arrested Dixon. Wolfe testified at trial that R.M. developed bruises on both his face and his leg which lasted approximately a week and a half. The jury found Dixon guilty, found the enhancement paragraph true, and assessed punishment at sixteen years' confinement. The trial court sentenced Dixon in accordance with the jury's assessment.
Dixon Failed to Preserve Error Concerning Allegedly Improper Jury Argument
Dixon alleges the State made an improper argument during closing. During the closing argument at the guilt/innocence phase of the trial, the State argued:
The children of our county or wherever he might move to, if he gets set free today, deserve that he be found guilty, because there is a lot of hot sauce in the world, and those bottles are heavy, and if pouring it on the next one doesn't help, maybe he'll hit him over the head with it, or put him in a scalding bathtub, or do something else idiotic. Who thinks about pouring hot sauce on a little two year old's head? Its [sic] beyond me.
Dixon alleges that there is no evidence of these allegations and that the statements would invoke strong negative emotions in the minds of the jurors. The State argues Dixon failed to preserve error by failing to make any objection to the argument. In the alternative, the State argues that the argument was a plea for law enforcement or a reasonable deduction from the evidence.
The Texas Court of Criminal Appeals has held that "before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Generally, in order to preserve a complaint for appellate review, the record must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint, and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). If the objection is sustained, counsel must then ask for an instruction to disregard. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.—Texarkana 2001, pet. ref'd). If the instruction is given, counsel must then move for a mistrial. Id. If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991).
Dixon did not object to any part of the State's closing argument. He argues that an objection was not required because the argument is so prejudicial that an instruction to disregard would not cure the harm. Traditionally, an improper jury argument which could not be cured did not require an objection in order to preserve the error for appellate review. Romo v. State, 631 S.W.2d 504, 505–06 (Tex. Crim. App. 1982), overruled, Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Cockrell, 933 S.W.2d at 100 (Baird, J., dissenting). The Texas Court of Criminal Appeals has rejected this approach and has held that a defendant must object to improper jury argument and pursue the objection to an adverse ruling. Because Dixon did not object to the argument and pursue the objection to an adverse ruling or even make a timely motion for mistrial based on the argument, Dixon has not preserved the error, if any, for appellate review. Since error was not preserved, we will not address whether the State's argument is improper.
There is no Fatal Variance
In his second point of error, Dixon alleges there is a fatal variance between the indictment and the evidence at trial. The indictment provides that Dixon "did then and there, intentionally and knowingly cause bodily injury to [R.M.], a child, by hitting the child in the leg with the hand of the defendant." Dixon argues there is a fatal variance because Wolfe testified that Dixon hit R.M. "on the leg." Dixon contends that, since there is no evidence he injured the inside of R.M.'s leg, there is a fatal variance. We do not believe that there is any variance between the indictment and the evidence at trial.
The discrepancy in dispute did not create a variance between the indictment and the evidence presented at trial. "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). The Corpus Christi Court of Appeals rejected a very similar argument in Salinas v. State, 721 S.W.2d 538, 540 (Tex. App.—Corpus Christi 1986, pet. ref'd, untimely filed). In Salinas, the indictment alleged the means of attempted entry was "by opening a hole in the roof," but the State's proof showed an entry "in the ceiling of the building." Id. The court held there was no variance between the indictment and the evidence. Id. The word "in" can be used to indicate a location or to indicate inclusion within another object. See Merriam Webster's Collegiate Dictionary 585 (10th ed. 1993). Dixon's interpretation of the phrase "in the leg" is that R.M.'s leg must be damaged on the inside of the leg. However, an equally valid interpretation, indeed a more reasonable interpretation, is that the phrase "in the leg" refers to the location of the injury. Further, the context surrounding the phrase "in the leg" clearly indicates that "in" refers to the location of the injury. Thus, there is no variance between the indictment and the evidence.
Even if the difference between the phrase "in the leg" and the phrase "on the leg" did result in a variance, such a variance would be immaterial. Only a material variance is fatal and merits a reversal. Gollihar, 46 S.W.3d at 257. "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Id. at 247–48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995); see also Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). Determination of whether a defendant's "substantial rights" have been prejudiced requires consideration of two questions: (1) whether the information, as written, informed the defendant of the charge against him or her sufficiently to allow him or her to prepare an adequate defense at trial, and (2) whether prosecution under the deficiently drafted charging instrument would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). The burden of demonstrating surprise or prejudice rests with the defendant. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). Dixon has not shown that he was surprised or prejudiced by the variance or that he would be subject to additional prosecutions for the same crime. Thus, even if there was a variance, such a variance would be immaterial and not merit a reversal.
The Evidence is Sufficient
Dixon alleges the evidence at trial is not sufficient to support the jury's verdict. Dixon alleges there is insufficient evidence because the evidence did not show how red the child's leg was or whether the child's leg was bruised.
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).
The State was required to prove that Dixon intentionally or knowingly caused bodily injury to R.M., a child, by hitting the child in the leg with his hand. Section 22.04 provides that a person commits an offense "if he intentionally, knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . . bodily injury." Tex. Pen. Code Ann. § 22.04(a). For the purposes of this offense, "child" is defined as "a person 14 years of age or younger." Tex. Pen. Code Ann. § 22.04(c)(1). Bodily injury means physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2004–2005).
Viewed in a light most favorable to the prosecution, a rational juror could have found all the essential elements of injury to a child. Officer Warren, testified that he was dispatched to Dixon's residence in response to a domestic violence call. At Dixon's residence, Officer Warren interviewed Dixon and Wolfe. Wolfe had left her two boys in Dixon's care while she took a friend home. Wolfe testified that, when she returned to the residence, she found R.M., who was two years old at the time, crying and covered with a small amount of Tabasco sauce. Wolfe testified the Tabasco sauce had dripped into his hair and onto the pillow. According to Wolfe, Dixon admitted pouring Tabasco sauce on R.M. While Wolfe was trying to get R.M. to stop crying, Dixon "popped [R.M.] across the face and told him to shut up." Wolfe testified an argument ensued, and Dixon began hitting her. Wolfe asserted that the argument caused R.M. to "[cry] even more," at which point Dixon "reared back and popped [R.M.] on the leg." Warren testified R.M. had a "red mark across the right side of his face," a "knot behind his ear that appeared to be swelling," and "a real large handprint on his leg, thigh area." Wolfe testified R.M. developed bruises on both his face and his leg, which lasted approximately a week and a half. Wolfe testified R.M. was two years old at the time the injury occurred. Photographs of R.M.'s face and thigh which were taken on the night of the incident were introduced into evidence. The evidence that Dixon struck the child and caused the child to cry is sufficient for the jury to infer that the blow caused pain. Contreras v. State, 54 S.W.3d 898, 904 (Tex. App.—Corpus Christi 2001, no pet.).
Although the State did not present photographs of the bruises, a reasonable juror could have believed Wolfe's testimony as to the existence of the bruises. Based on the testimony of Wolfe and Warren, a rational juror could have concluded beyond a reasonable doubt that Dixon intentionally or knowingly caused bodily injury to R.M. by hitting R.M. in the leg with his hand and that R.M. was fourteen years old or younger at the time.
When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).
Viewed in a neutral light, a rational juror could have found Dixon guilty of injury to a child beyond a reasonable doubt. The contrary evidence is not strong enough that the State could not have met its burden of proof. Wolfe admitted she would sometimes "pop" R.M. in the mouth. Wolfe alleged she would only do this when R.M., would cuss. Wolfe testified, though, that she would never slap him across the face. When interviewed at the scene by Officer Warren, Dixon denied ever pouring Tabasco sauce on R.M. or hitting R.M. on the face, but admitted he had "spanked" R.M. on the thigh. Matters concerning an evaluation of credibility and demeanor are the sole province of the jury. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). After weighing the evidence supporting and contravening the conviction, the contrary evidence is not strong enough that the State could not have met its burden of proof. Further, the evidence is not too weak to support the jury's finding of guilt beyond a reasonable doubt.
For the reasons stated, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: August 9, 2004
Date Decided: September 17, 2004
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