IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 28, 2002
______________________________
PARTINA RHENEE CLEMONS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 405th DISTRICT COURT OF GALVESTON COUNTY;
NOS. 00CR0214, 00CR0215 & 00CR0216; HONORABLE HENRY G. DALEHITE, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
Following her pleas of not guilty, appellant Partina Rhenee Clemons was convicted by a jury of injury to a child in three separate causes and punishment was assessed at 40 years confinement in cause number 00CR0214 and confinement for life in cause numbers 00CR0215 and 00CR0216. Presenting five issues, appellant contends (1) the trial court erred by failing to grant her motion to quash the indictments which she claimed were in violation of the Texas and United States Constitutions; (2) the evidence is legally and factually insufficient to support a finding that she intentionally and knowingly committed injury to a child; (3) the jury was biased because Juror Allums failed during voir dire to disclose her knowledge regarding facts of the case; (4) the trial court erred in admitting into evidence inadmissible testimony of Joy Blackman because it failed to have a scientific basis as required by Rule 702 of the Texas Rules of Evidence; and (5) the trial court improperly admitted a tape recorded statement made by complainant because it did not meet the statutory requirements of an outcry statement. Based upon the rationale expressed herein, we affirm.
In 1999, when complainant was in the fourth grade, his teachers noticed he was sleeping excessively, eating out of the trash in the cafeteria, and stealing from others. Although one of his teachers testified that he was not a discipline problem, she noticed that his level of attentiveness changed. School staff and the assistant principal noticed that he was not walking normally and according to one teacher, complainant walked as if he was in pain with his posterior pushed out and his legs spread out. Scars and marks were also noticeable on his head, face, and legs. The school nurse testified that she first visited with complainant in September 1999 for his difficulty in walking. He told her he was sore from a bicycle accident. She saw him again in November for an injury to the left ear. Appellant claimed complainant's ear was swollen from a sting or bite. In December, as complainant's sleeping habit became worse, the assistant principal was called to one of his classes to wake him. As he placed his hand on his back, he felt a mass the size of a baseball between complainant's shoulder blades. He was sent to the school nurse and when she raised his shirt she noticed a protrusion on his back as well as linear and pox-like scars, scratches, and bruises. She described what she observed as "quite sickening." Complainant told her he had fallen backwards.
Appellant, complainant's adoptive mother, was contacted by the school and upon meeting with the nurse, she agreed that medical attention was necessary. However, according to the nurse, appellant's response to complainant's injuries was, "it's really getting rough at the bus stop." The school nurse scheduled a doctor's appointment and alerted the doctor's nurse that she suspected child abuse and recommended a full examination. On December 3, 1999, complainant was taken to a pediatric facility and examined by nurses and Dr. James Lukefahr. Complainant reluctantly undressed and put on a paper gown; however, he was adamant about not having his injuries photographed. Although his vision, throat, and eardrums were normal, his left earlobe was hard and swollen. Multiple bruises, scars, lacerations, and lesions were observed on his upper body. His skin had a shiny appearance as if from healed burns. Appellant did not permit an examination of the victim's legs or genitalia. She also refused to give a street address for medical records and was vague when questioned. Child Protective Services (CPS) was notified of the suspected abuse and after an investigation, complainant was removed from appellant's care and taken into custody. On December 6, 1999, he was taken to Dr. Lukefahr by a caseworker for a complete examination and tests. At trial expert testimony established that complainant suffered many injuries and burns and Dr. Lukefahr explained that they were not accidental, but were inflicted by deliberate force.
Officer Richard Rennison testified that in late 1999 he received a referral from CPS to investigate the suspected abuse. He questioned complainant's stepfather and went to the home to conduct tests on water temperature and other matters. After his investigation he met with the district attorney to file charges against appellant and the stepfather and arrest warrants were issued for both. Appellant was tried separately and convicted of three separate counts of injury to a child.
By her first issue, appellant contends the trial court erred by failing to grant her motion to quash the indictments which were in violation of the Texas and United States Constitutions. We disagree. The standard of review of a trial court's ruling on a motion to quash an indictment is abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Cr.App. [Panel Op.] 1980) (on reh'g). The Sixth Amendment to the United States Constitution guarantees an accused the right to be informed "of the nature and cause of the accusation," and Article I, Section 10 of the Texas Constitution provides that an accused "shall have the right to demand the nature and cause of the accusation against him . . . ." See also Tex. Code Crim. Proc. Ann. arts. 21.02(7), 21.03, and 21.04 (Vernon 1989). Notice in an indictment must be with sufficient clarity and detail to enable the defendant to anticipate the State's evidence and prepare a proper defense. Eastep v. State, 941 S.W.2d 130, 132 (Tex.Cr.App. 1997) (en banc), overruled on other grounds, Riney v. State, 28 S.W.3d 561 (Tex.Cr.App. 2000). An indictment must allege on its face the facts necessary to (1) show that the offense was committed, (2) bar a subsequent prosecution for the same offense, and (3) give the defendant notice of what he is charged with. State v. Edmond, 933 S.W.2d 120, 131 (Tex.Cr.App. 1996) (en banc). A motion to quash should be granted when the language in an indictment concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts allegedly committed. Daniels v. State, 754 S.W.2d 214, 217 (Tex.Cr.App. 1988) (en banc). The State is not required to plead evidentiary facts that are not essential to provide notice to the defendant. Id. at 218.
The indictments in cause numbers 00CR0214, 00CR0215, and 00CR0216 provide, respectively, that appellant:
did then and there intentionally and knowingly cause serious bodily injury to [complainant] . . . by then and there striking and hitting the said [complainant] with an object which is not known to the Grand Jury
did then and there intentionally and knowing cause serious bodily injury to [complainant] . . . by then and there burning the skin of the said [complainant] with a liquid which is not known to the Grand Jury; and
did then and there intentionally and knowingly cause serious bodily injury to [complainant] . . . by then and there burning the skin of the said [complainant] with a curling iron.
By her motion to quash in cause number 0214, appellant alleged the indictment did not comply with article 21.02 of the Texas Code of Criminal Procedure. By her motions to quash in cause numbers 0215 and 0216, she challenged the portions of the indictments alleging serious bodily injury as being insufficient and in violation of the guarantees of the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. The State argues that because her challenge below to the indictment in cause number 0214 does not comport with her argument on appeal, it is not preserved for review. See Trevino v. State, 991 S.W.2d 849, 855 (Tex.Cr.App. 1999) (holding that to preserve an issue for appellate review, the complaint on appeal must at least minimally comport with the complaint at trial). We agree, and review only her contentions regarding the indictments in cause numbers 0215 and 0216.
An indictment must set forth everything necessary to be proved in plain and intelligible words. See Tex. Code Crim. Proc. Ann. arts. 21.02(7) and 21.03 (Vernon 1989). Appellant was charged with causing serious bodily injury to complainant by burning his skin with a liquid (0215) and with a curling iron (0216). Appellant contends that the indictments should have alleged which definition of serious bodily injury the State intended to prove. However, because serious bodily injury is defined in section 1.07(46) of the Texas Penal Code Annotated (Vernon 1994), any further allegations of the nature of the injury are merely evidentiary and are not required. Montgomery v. State, 704 S.W.2d 359, 363 (Tex.App.--Corpus Christi 1985, pet. ref'd); see also McKinney v. State, 59 S.W.3d 304, 310 (Tex.App.-Fort Worth 2001, pet. ref'd) (holding that an indictment alleging that causing serious bodily injury to a child by hot liquid provided adequate notice of the charges against which the defendant must defend). We conclude the allegations contained in the indictments were sufficient to notify appellant of the nature and cause of the accusations and thus, the trial court did not abuse its discretion in denying her motions to quash. Issue one is overruled.
By her second issue, appellant challenges the legal and factual sufficiency of the evidence to support a finding that she intentionally and knowingly committed the charged offense and that complainant suffered serious bodily injury. We disagree. When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). In conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).
After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. The Court of Criminal Appeals has directed us to ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact finder's determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).
A person commits injury to a child by intentionally, knowingly, recklessly, or with criminal negligence, acting to cause serious bodily injury. Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon Supp. 2002). Serious bodily injury is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Pen. Code Ann. § 1.07(46) (Vernon 1994). The culpable mental states of intentionally and knowingly are defined as follows:
A person acts intentionally . . . with respect 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 . . . 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 . . . with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Tex. Pen. Code Ann. § 6.03(a) and (b) (Vernon 1994). In determining the legal sufficiency of the evidence to show appellant's intent or knowledge, and faced with a record that supports conflicting inferences, we must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution. Couchman v. State, 3 S.W.3d 159, 163 (Tex.App.-Fort Worth 1999, pet. ref'd), citing Mason v. State, 819 S.W.2d 839, 846 (Tex.Cr.App. 1991). Further in circumstantial evidence cases it is not necessary that every fact point directly and independently to the accused's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1579, 128 L. Ed. 2d 222 (1994); Armstrong v. State, 958 S.W.2d 278, 283 (Tex.App.-Amarillo 1997, pet. ref'd).
Injury to a child is a result-oriented crime for which the Legislature intended to punish the result of the defendant's conduct, not the conduct itself. Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Cr.App. 1985) (en banc); Assiter v. State, 58 S.W.3d 743, 748 (Tex.App.-Amarillo 2000, no pet.). Intent may be inferred from the acts and the words of the accused as well as the surrounding circumstances. Ledesma v. State, 677 S.W.2d 529, 531 (Tex.Cr.App. 1984) (en banc); Hill v. State, 883 S.W.2d 765, 769 (Tex.App.-Amarillo 1994, pet. ref'd).
Appellant has been complainant's adoptive mother since he was an infant. In 1999, when complainant was in the fourth grade, he began falling asleep during classes. Teachers also noticed that he was stealing snacks and lunch money and eating out of the trash in the cafeteria. Although he was not characterized as a discipline problem, he did not follow directions. Phone calls were made to appellant and discipline referrals were sent home. School staff also noticed that complainant was walking with difficulty as if he were in pain. In November, complainant was sent to the school nurse with an injury to his left ear, which she characterized as "cauliflower ear." Joy Blackman, a physician's assistant, testified at trial that "cauliflower ear" is caused by repetitive blows and is common in boxers. She also testified that the condition persists for a long period of time. Appellant told the school nurse that complainant had probably been stung in the ear; however, medical testimony confirmed that the injury was not consistent with a bite or sting, which would have healed quickly.
Complainant's sleeping habit worsened, and on December 2, one of his teachers asked the assistant principal to wake him. As he placed his hand on complainant's back, he felt a large mass between his shoulder blades. He was sent to the school nurse to have his spine checked and as the nurse raised his shirt, she observed the lump as well as other scars, bruises, and scratches on his upper body. Appellant was scheduled to meet with school staff the following day regarding tests to be conducted on complainant and the nurse decided to wait until then to talk about the mass on complainant's back. On December 3, when appellant met with the nurse, she agreed that complainant required medical attention. The school nurse scheduled an appointment with a pediatric facility and alerted the nurse about suspected abuse and suggested a thorough examination. Upon arriving at the doctor's office, appellant indicated complainant was seeing the doctor for a possible problem with his spine and for excessive sleeping. After the examination, the doctor's office referred the matter to CPS to investigate and complainant was removed from appellant's care.
On December 6, complainant returned to the doctor's office with a caseworker for a bone scan, x-rays, and an MRI. At trial, Blackman, who assisted Dr. Lukefahr when he examined complainant, testified to the following injuries found on complainant:
- cauliflower ear which was not consistent with a sting or bite;
- looped scars to the head which are caused by being struck with a cord or strap that has been doubled over;
- healed scars on either sides of the eyes;
- four linear almost healed cuts on the neck that looked like fingernail scratches;
- healed looped scars on the right lateral thigh and buttock;
- healed linear and looped scars on the back of the left thigh;
- a round scar consistent with a cigarette burn on the top of the right hand;
- healed linear and looped scars on the left hand;
- healed burn scars from a hot liquid underneath the arms;
- healing abrasion on the right shoulder with a firm bony prominence;
- healed cuts on the front of the chest;
- overlapping injuries which could be either abrasions or burns;
- a lesion on the front of the right shoulder;
- healed burns on the right pelvic bone and groin area;
- healed contact burns to the scrotum and shaft of the penis; and
- an inverted V-scar on the chest most likely caused by a knife or similar sharp object.
Blackman also testified that looped scars are not accidental and are consistent with child abuse from a looped belt or cord. The burns to the groin area had sharp margins and clean borders, and thus were caused by contact. A bone scan showed post-traumatic changes-healing scars-from fractures or trauma. She concluded complainant was the victim of child abuse. A follow-up visit in April 2000 indicated a better attitude in complainant and better eating and sleeping habits while living in a children's home. In those few months complainant gained over ten pounds and grew six and one-half centimeters. The injury to his ear, however, remained unchanged from December and she testified it could be permanent.
Doctor Lukefahr testified that complainant was ten years old when he examined him and that he exhibited an inordinate number of injuries for a child that age. He further testified that complainant's scars are permanent. He described the injuries as non-accidental. He explained that the burns to complainant's flank area under his arms could not have been caused by a hot shower. They were more rounded and had a "sort of flow" whereas burns from a hot shower leave a salt and pepper appearance because of the drops. Moreover, an ambulatory person would make an effort to get away from the hot water before being burned. He also testified that "cauliflower ear" is caused by a blow strong enough to cause bleeding under the skin and form a blood clot that attaches itself to the cartilage and becomes permanent. He explained that the mass on complainant's back was caused by either a healed fracture to the shoulder blade or was a benign growth, but could not reach a conclusion on what caused it. Regarding the contact burns to complainant's genital area, he categorized them as deep second degree burns which must have been extremely painful and would have caused him to walk with his legs spread to minimize contact with his clothes. He did not believe that such burns could be caused by falling on a hot object; rather, he was of the opinion that a small clothes iron could have been applied to the scrotum and also could not rule out the possibility that a curling iron was used.
On April 3, 2000, while the victim was residing in a children's home, he was visited by Rennison and Meredith Shropshire, a caseworker who had met with complainant during the preceding months. According to Shropshire, up until April 3, the victim had not revealed the name of the person who abused him. Rennison was not in uniform and was driving an unmarked patrol car. Complainant sat in the front seat with Rennison and Shropshire sat in the back. They took him for ice cream and spent time trying to make him comfortable before questioning him. Rennison asked a few questions about the injuries before making an audio tape of complainant's statement. Complainant was aware he was being taped and told Rennison that appellant had heated water in a microwave oven and thrown it on him because he was "bad." He also claimed that burns to his genital area were made by appellant with a curling iron.
At the time of trial, complainant testified that he had not seen appellant in over a year and that he loved her and wanted to live with her. He could not recall falling asleep during classes and could not remember his visit to Dr. Lukefahr in 1999. He also denied that appellant ever injured him. He claimed never to have observed scars on his body, but did acknowledge burns to his genital area which he testified were the result of jumping into a tub full of hot water twice. He could not explain why his knees and feet were not burned. When questioned about his difficulty in walking, he claimed he injured his knee in a fight. Regarding the injury to his ear, he testified that he woke up one day and his ear was swollen.
The only witness for the defense was complainant's biological father. Complainant had been living with him at the time of trial and had been doing so for a month and a half. Although he had not been involved in complainant's life on a regular basis, he could not recall appellant hurting complainant. Approximately one week before trial, he took it upon himself to photograph complainant's body. The photographs were introduced into evidence and according to the father's testimony showed no permanent scars.
Based on the evidence presented and the combined and cumulative force of all the incriminating circumstances and deferring to the jury's resolution of appellant's intent or knowledge, we conclude the evidence established appellant's culpable mental state that she desired to engage in conduct reasonably certain to cause serious bodily injury. Thus, under Jackson, 443 U.S. at 318, the evidence is legally sufficient to establish that appellant intentionally and knowingly committed injury to a child. Both Blackman and Dr. Lukefahr testified that complainant's "cauliflower ear" could be permanent and Dr. Lukefahr also concluded that complainant's scars were permanent. Complainant's father testified, however, that based on his observations, complainant did not have any permanent scars. The photographs taken by complainant's father depicting complainant's face, upper body, and frontal genital area do not show the extensive injuries testified to by the State's witnesses; however, the unauthenticated photographs were taken several years after the investigation of abuse. Thus, the jury as the sole trier of fact was free to resolve conflicts or inconsistencies in the evidence and believe all, some, or none of the evidence. Hitt v. State, 53 S.W.3d 697, 709 (Tex.App.-Austin 2001, pet. ref'd), citing Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982) and Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App. 1991). We conclude the evidence is legally sufficient to show that appellant inflicted serious bodily injury upon complainant.
Concluding that the evidence is legally sufficient to support the verdict, we must now determine, after a neutral review of all the evidence, whether it is factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact finder to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).
In addition to the evidence reviewed under our legal sufficiency analysis, the State also presented evidence that appellant had previously injured complainant. Doctor Lukefahr testified that according to medical records, when complainant was six he was taken to the emergency room by appellant for a fracture to his left arm. She claimed he had fallen from a couch, but according to Dr. Lukefahr, it was unusual for a child to have a fracture so close to the shoulder and that the injury was probably caused by a substantial amount of force in a wrenching, pulling, or twisting manner. According to a nurse's assessment dated July 22, 1996, complainant claimed appellant twisted his arm. Five years later at trial, however, complainant testified that he broke his arm when a bicycle fell on him. A CPS caseworker testified that following the injury to the arm, complainant was removed from appellant's home for a year until she completed psychological testing and therapy.
A former friend and neighbor of appellant's testified that when complainant was between seven and nine months old, she entered appellant's small apartment to find complainant confined to a dining room table by duck tape across his ankles, legs, arms, and mouth. According to the witness, appellant complained that the baby had been crying all day and was getting on her nerves. When complainant was two years old, appellant and the witness worked at a small daycare. On one occasion, complainant noticed appellant and ran up to her with outstretched arms crying out, "mama, mama" and appellant "popped" him in the head with a cordless telephone and told him to get away. After a neutral review of all the record evidence under Johnson, 23 S.W.3d at 11, and without substituting our own judgment, we conclude the evidence is factually sufficient to support the verdict. Issue two is overruled.
By her third issue, appellant complains the jury was biased because juror Mary Allums failed to disclose during voir dire knowledge of facts of the case. We disagree. By her motions for new trial, appellant alleged the following:
Newly discovered evidence.
There is newly discovered evidence which would effect the outcome of the case in that Juror Mary Allums had a prejudice against the defendant and a bias for the state which she failed to disclose during voir dire when she was questioned. Juror Allums would have been struck for cause, if she had answered truthfully concerning her knowledge of the defendant and/or the case.
Attached to the motion is a verification by trial counsel; however, no affidavit in support of the allegation is attached. See generally McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App. 1985) (en banc) (holding that a motion for new trial alleging juror misconduct must be supported by the affidavit of a juror or some other person in the position to know the facts). Although no record references were provided in her argument as required by Rule 38.1(h) of the Texas Rules of Appellate Procedure, our review of the voir dire proceedings reveals that the State asked at least seven questions of Allums, none of which indicated knowledge of the facts of the case that would show bias toward appellant. During defense counsel's voir dire examination no questions were asked of Allums.
The Court of Criminal Appeals has indicated great reluctance in engaging in speculation regarding bias, if any, of a juror in favor of or against a defendant. Jackson v. State, 548 S.W.2d 685, 697 (Tex.Cr.App. 1977). In Jackson, the Court noted that it was incumbent upon appellant to establish bias during voir dire and that failure to do so and present a challenge for cause waived any error. Id. Appellant's conclusion in her motion for new trial that when questioned during voir dire Allums failed to disclose a bias against her is not supported by the record. The State's questions to Allums were not designed to elicit bias and the defense did not question the panel, specifically Allums, regarding bias. Without a bill of exception demonstrating that Allums was biased or an affidavit showing the same, appellant has not preserved her complaint for appeal. See Roberts. v. State, 172 Tex. Crim. 500, 360 S.W.2d 883, 886 (1961); Henson v. State, 650 S.W.2d 432, 434-35 (Tex.App.-Houston [14th Dist.] 1982), aff'd 683 S.W.2d 702 (Tex.Cr.App. 1984). Issue three is overruled.
By her fourth issue, appellant contends the trial court erred in admitting the testimony of physician assistant Blackman because it failed to have a scientific basis and was inadmissible under Rule 702 of the Texas Rules of Evidence. She further argues that the trial court erred in denying her request to voir dire Blackman on her qualifications as an expert regarding burns. We disagree. When Blackman testified that complainant's burn scars were in a liquid pattern, i.e., caused by hot liquid or scalding, defense counsel requested to voir dire the witness on her "expertise in the area of burns." After the trial court denied the request, Blackman testified about complainant's healed burn injuries as well as other injuries for approximately eight pages of the reporter's record. After an off-the-record bench conference, defense counsel announced that "[b]ased upon counsel's next question we really do not have a voir dire challenge concerning the qualifications of this witness." Based upon appellant's withdrawal of her request to voir dire Blackman, we conclude that trial court error, a question we do not decide, was waived. See generally Lemos v. State, 27 S.W.3d 42, 47 (Tex.App.-San Antonio 2000, pet. ref'd) (holding that counsel's comment, "I withdraw my objection to that" waived any complaint. Issue four is overruled.
By her final issue, appellant contends the trial court improperly admitted complainant's tape recorded statement because it did not meet the statutory requirements of an outcry statement. We disagree. A trial court has broad discretion in determining the admissibility of evidence and its ruling will not be disturbed on appeal absent a clear abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Cr.App. 1990) (en banc). An outcry statement is one made by the child against whom the offense was allegedly committed to the first person, 18 years of age or older, other than the defendant. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a) (Vernon Supp. 2002). An outcry statement is not inadmissible if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.
Art. 38.072 § 2(b). Compliance with the statute is mandatory for the statement to be admissible. Long v. State, 800 S.W.2d 545, 547 (Tex.Cr.App. 1990).
On the 14th day before trial, the State filed its notice of intent to use complainant's outcry statement made to Officer Rennison about the alleged abuse. A written summary of the statement provided:
I was burned from hot water my Mom put on me. She heated it up in the microwave. She was not making soup or coffee. It happened because I was acting bad. The only reason she heated up the water is to put it on me. She hurt my hip when she was spanking me, she did it on accident, she was trying to whoop me. She was meaning to hit me on my butt and I kept moving. She was hitting me with a belt. My Mom Tina Clemons burned me on my privates from a curling iron. My Mom poured hot water on me and burned me. She never burned me with anything else.
Outside the jury's presence, Rennison testified that prior to making the audio tape of complainant's statement, he and caseworker Shropshire spent approximately one hour trying to make him feel comfortable. Afterward, he initiated a conversation about complainant's injuries and the burns to his genital area. He explained that he had conducted tests at his home on water temperature and that it was very important that he tell the truth. After complainant claimed that appellant inflicted the burns with a curling iron, Rennison told him he was activating the tape recorder. Complainant told him that appellant had heated up water in the microwave and put it on him for acting bad. When asked how his "private parts" became burned, complainant answered that appellant had used a curling iron. He also told Rennison that most of his injuries were caused by appellant.
Appellant argues the State violated the statutory notice requirement by not disclosing that Rennison's conversation with complainant prior to making the audio tape was the actual outcry statement. She contends she suffered harm by the admission of the tape which she claims was the result of coaching and coercion and also questions the reliability of the tape. The purpose of requiring notice is to prevent a defendant from being surprised at trial by a victim's outcry statement. Upton v. State, 894 S.W.2d 426, 429 (Tex.App.-Amarillo 1995, pet. ref'd); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd).
The caseworker that accompanied Rennison when he questioned complainant testified that he asked complainant if they could talk about the incidents that led to his injuries and then explained that he needed to record the statement. She believed Rennison's questions were open-ended questions, i.e., they did not suggest an answer. She claimed that complainant seemed comfortable speaking to him and was not threatened or coerced in any manner. Furthermore, appellant's claim of surprise is without merit because the contents of the taped statement were elaborations on the introductory questions asked just prior to activating the recorder. We conclude that the State complied with the requirements of article 38.072 and thus, the trial court did not abuse its discretion in admitting complainant's taped outcry statement. Issue five is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
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NO. 07-10-00308-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 18, 2011
ROY JON, APPELLANT
v.
LESLEY DINWIDDIE, ET AL.
APPELLEES
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-546,985; HONORABLE RUBEN REYES, JUDGE
Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.[1]
MEMORANDUM OPINION
Appellant, Roy Jon, an inmate proceeding pro se sued ten individual defendants and both the Texas Department of Criminal Justice (TDCJ) and the University of Texas Medical Branch (UTMB), alleging a host of claims ranging from assault to use of prison food loaf as cruel and unusual punishment. Jon alleged that these various acts and omissions violated a number of his constitutional and statutory rights. On the defendants motion, the trial court dismissed Jons claims as frivolous. We will affirm the trial courts dismissal.
Factual and Procedural History
Jon alleges that, on October 26, 2008, prison officials at the Montford Unit performed a shakedown during which an officer acted aggressively toward Jon and destroyed some of his personal property. Jon claims that he was sent to a solitary cell for no reason during the search. After the search, what remained of Jons property was returned to him, and Jon was moved to another cell.
Jon announced he was on a hunger strike on October 28, during or after the prison went into lockdown and a second search of the prison cells was performed. Prison staff ordered Jon to carry his property to the gym. Jon maintained that he could not do so because he was ill after haven taken his medication without food and insisted that the staff provide him a cart. The staff refused. Lesley Dinwiddie arrived in response to the disagreement and Jon again expressed that he wanted a cart to carry his property to the gym. According to Jon, Dinwiddie responded by slamming Jon against a wall and placing him in restraints.
Defendant Zulfiquar Hussain then joined in to assist Dinwiddie, and Jon was placed in another cell. In his petition, Jon advances an undeveloped assertion that Hussain, perhaps with the assistance of other unnamed staff members, committed theft.[2] The TDCJ, he claims, was aware of this incident and permitted the staffs negligent use of security devices and premises.
As a result of Jons conduct during the search, disciplinary action was taken against him. Jon claims that he was denied procedural and substantive due process during the disciplinary proceeding by Richard Wathen, Terry Tucker, Joel Guana, and the TDCJ. As a result of the disciplinary procedure, Jon was placed on twenty-five days of commissary and cell restriction. Following the alleged instances of mistreatment during the lockdown, Jon claims, defendants Allen Hanretta and Wendy Heckler were deliberately indifferent to Jons suffering at the hands of prison staff and refused to provide him with necessary medical care.
Jon also complains of a later incident involving a food tray that, he says, was placed in the proper location for it to be picked up following a meal. Defendant Jeremy Boggs apparently wanted Jon to move it elsewhere and, when Jon refused, kicked the tray into the cell and came within five inches of hitting Jon. By Jons account, this close call caused him mental anguish. Jon claims that, by kicking the tray in Jons direction, Boggs violated Jons protection against cruel and unusual punishment and that the TDCJ knew of Boggss behavior and failed to maintain adequate surveillance and inspection that would prevent Boggs from negligently using the food tray as a weapon.
Jon refused to return the kicked tray to prison staff when requested. He demanded that a supervisor come down to get the tray so that Jon could report that Boggs kicked the tray into his cell. As a result of Jons refusal to comply with an order to bring the food tray to the proper location, he was put on food loaf. Jon claims that food loaf was imposed without supervisor or warden approval and that such imposition by defendants Joshua Keeney, Frank Renduf, Guana, Wathen, and Tucker caused him mental and physical anguish and was retaliatory in nature. He maintains that having to eat food loaf for twenty-one meals is cruel and unusual punishment. The TDCJ, Jon claims, knew of and approved this negligent use of food loaf.
Based on these assertions, Jon sued ten individual defendants, the TDCJ, and UTMB for a variety of statutory and constitutional violations. The State responded by filing a motion to declare Jon a vexatious litigant and a motion to dismiss his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. The trial court denied defendants motion to declare Jon a vexatious litigant but granted their motion to dismiss Jons suit as frivolous pursuant to Chapter 14.
Jon appealed the dismissal and, in a forty-six page handwritten brief, brings eleven issues for this Courts review. Through ten of his issues, he reasserts the factual and legal bases of his various claims against defendants. The underlying contention of Jons issues is that the trial court erroneously dismissed his lawsuit. In his final issue, he also complains of error in the discovery process.
Applicable Law and Standard of Review
Chapter 14 of the Texas Civil Practice and Remedies Code applies to an inmates suit in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Among the several grounds on which a trial court may dismiss such a suit is the finding that the inmates suit is frivolous or malicious. See id. § 14.003(a)(2) (West 2002). In determining whether a claim is frivolous or malicious, the trial court may consider whether (1) the claims realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or in fact, (3) it is clear that the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b).
We review a trial courts dismissal of a lawsuit brought by an inmate who had filed an affidavit or declaration of inability to pay costs for an abuse of discretion. In re Douglas, 333 S.W.3d 273, 293 (Tex.App.Houston [1st Dist.] 2010, pet. denied). Under this standard of review, the appellant inmate must show that the trial courts action was arbitrary or unreasonable in light of all the circumstances in the case. Id. While, generally, we review dismissals of inmate litigation under Chapter 14 for an abuse of discretion, we review de novo the specific question whether there was an arguable basis in law for an inmates claims. Id. To determine whether the trial court properly concluded that there was no arguable basis in law for an inmates suit subject to Chapter 14, we must examine the types of relief and causes of action the inmate pleaded in his petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Id.
Analysis
Claim of Assault
Jon claims that, in response to Jons medical complaints during the second search, Dinwiddie used excessive force in such a manner and degree as to constitute an assault.[3] To put Jons contention in its appropriate context, we note that the facility was in lockdown, and Jon admitted that he refused to obey the staffs orders to carry his property to the gym that day, though he maintains that he was physically unable to do so as a result of his illness. In light of the evidence, Jons refusal to obey an order during lockdown invokes security considerations associated with the privileged use of force in a correctional facility:
An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.
Tex. Penal Code Ann. § 9.53 (West 2011).
Dinwiddies written statement concerning the incident cited Jons refusal to leave the open cell for the required search as the basis for the decision to place Jon in restraints. Dinwiddie denied slamming Jon against a wall, squeezing his neck, or twisting his arm and, instead, explained that Jon eventually did comply with his orders to turn around and face the wall. Two correctional officers who witnessed the incident described the incident similarly.
Jon complains that, as a result of the alleged assault by Dinwiddie, he suffered shoulder and back injuries, neck strain, and migraines. We note that medical records that Jon provides do not support his contentions that he sustained injuries as a result of his encounter with Dinwiddie. Medical records pre-dating the incident at issue show that Jon complained of shoulder pain in early October and was treated for that condition. Also inconsistent with Jons account, nurses notes taken during a visit a few days after the encounter with Dinwiddie demonstrate that Jon complained that his back pain was a result of force used against him two years earlier and that his back had been hurting since he had to carry his property to the gym during lockdown. The attending nurse reported that there was no redness or swelling and that Jon had full range of motion. There was no mention of Jons reports of migraines or neck strain.
In the factual context, the trial court could have concluded that it was reasonable to place Jon in restraints. Nothing, other than Jons assertions that conflict with other accounts and evidence, suggest that Dinwiddie used force beyond that which was reasonable under the circumstances. Further, there is no evidence that Jon sustained injuries as a result of his interaction with Dinwiddie on that day. Based on the state of the record, the trial court would have been within its discretion to have found that Jons chances of overcoming Dinwiddies Section 9.53 privilege to use reasonable force on these facts is but slight. Alternatively, the trial court could have found that it was clear that Jon cannot prove facts to support his claim that Dinwiddie assaulted him as alleged.[4] We overrule appellants contentions related to an assault by Dinwiddie.
Claims Related to Disciplinary Action
On appeal, Jon maintains that he was denied procedural and substantive due process during the 2008 disciplinary action related to Jons conduct during the second search. After sorting through and reading the numerous grievances in appendices and in the record, most of which are unrelated to Jons encounter with Dinwiddie, it has become clear that Jon utilizes the grievance system with startling regularity, often filing grievances that overlap in time and topic. Though it does appear that Jon complains on appeal of the disciplinary case related to the encounter with Dinwiddie, his petition identified the case at issue as disciplinary case number 20090131298, which relates to the food tray incident and as a result of which he was placed on food loaf. On appeal, Jon identifies the case at issue as disciplinary case 20090058995, which, according to his allegations, related to the Dinwiddie encounter and for which he was placed on commissary and cell restriction for twenty-five days. Regardless of which case the trial court understood to be at issue, it would have been correct to conclude that either punishmentfood loaf or commissary and cell restrictiondoes not raise due process concerns because such punishments are simply changes in the conditions of Jons confinement.
The Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Sandin v. Conner, 515 U.S. 472, 478, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). A prisoners liberty interest is limited to freedoms from restraint which impose atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life. Id. at 484. Specifically, cell restrictions and loss of commissary privileges are merely changes in the conditions of an inmates confinement and do not implicate due process concerns. Hamilton v. Williams, 298 S.W.3d 334, 341 (Tex.App.Fort Worth 2009, pet. denied) (citing Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000), and Madison v. Parker, 104 F.3d 765, 76768 (5th Cir. 1997)).
Here, the trial court could have concluded that the punishment at issue did not represent an atypical and significant hardship[] and that, therefore, Jons claims relating to due process in his disciplinary hearing had no basis in law. See Sandin, 515 U.S. at 484. We overrule Jons contentions on this issue.
Claims of Cruel and Unusual Punishment
It appears that Jon claims that he was subject to cruel and unusual punishment in violation of the Eighth Amendment when (1) he was forced to eat food loaf as a disciplinary measure, (2) he was denied medical care, and (3) he was nearly hit by the tray a staff member kicked in his direction. See U.S. Const. amend. VIII.
The Eighth Amendment prohibits the infliction of cruel and unusual punishments on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). That is to say, the treatment a prisoner receives and the conditions in which he is confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). As part of the Eighth Amendment protection, prison officials are required to provide humane conditions of confinement by ensuring that inmates receive the basic necessities of adequate food, clothing, shelter, medical care, and personal safety. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
An Eighth Amendment violation exists where the deprivation of even a single identifiable human need, such as food, warmth, or exercise, is caused by prison officials wanton disregard for the prisoner's welfare. See Wilson, 501 U.S. at 304. However, not every deprivation is an Eighth Amendment violation. To establish an Eighth Amendment violation regarding conditions of confinement, an inmate must satisfy two requirements. First, the deprivation alleged must be, objectively, sufficiently serious, and, secondly, a prison official must have been deliberately indifferent to inmate health or safety. See Farmer, 511 U.S. at 834.
Food Loaf
Jon asserts that defendants Keeney, Renduf, Tucker, Guana, and Wathen used food loaf in such a way as to constitute cruel and unusual punishment under the Eighth Amendment. However, Jons claims regarding the food loaf do not rise to the level of an Eighth Amendment violation. Other than his expression of distaste or dissatisfaction with the food loaf, Jon presents no evidence or argument that he suffered a physical or mental injury or developed a physical or mental condition as a result of having to eat food loaf for a week. He does not point to evidence that the food loaf was so nutritionally inadequate or served in a condition that it would constitute a deprivation of a human need. The record shows that food loaf was served in response to Jons reported conduct in the food tray incident. That being so, we cannot say that the food loaf was anything more than a routine discomfort inherent in the prison environment. See Umar v. Price, No. 09-00-00031-CV, 2001 Tex. App. LEXIS 2232, at *12 (Tex.App.Beaumont Apr. 5, 2001, no pet.) (not designated for publication).
The trial court could have reasonably concluded that Jon failed to satisfy the first requirement of an Eighth Amendment violation that there be a sufficiently serious deprivation of an identifiable human need. We overrule Jons contentions regarding cruel and unusual punishment in the form of food loaf.
Medical Needs
Despite the presence of a number of medical records noting Jons complaints about the incident but finding no notable injury, it would appear that, two months after the incident, Jon filed a grievance alleging that he was being denied proper medical attention for physical and mental injuries related to the incident. Still setting aside any considerations that the defendants against whom Jon makes these claims would enjoy immunity, we note that the record suggests that appellant received a number of visits from the prisons medical staff over the days at issue.
Ultimately, it would seem, appellant was unhappy with the medical treatment he received. However, disagreement or dissatisfaction with medical treatment received is not sufficient to serve as deliberate indifference such that the disregard of Jons medical needs would violate the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 10406, 97 S. Ct. 285 50 L. Ed. 2d 251 (1976). Even assuming that Hanretta and Heckler were negligent, a finding which we do not make here, mere negligence is insufficient to establish the deliberate indifference required for an Eighth Amendment violation. See id. at 106.
The trial court could have reasonably concluded that Jon cannot prove facts to support his claim that Hanretta and Heckler acted with deliberate indifference to Jons serious medical needs such that their medical treatment would amount to a violation of the Eighth Amendment. We overrule Jons contentions of deliberate indifference on the part of Hanretta and Heckler.
Kicked Tray
Jon claims that Boggs used excessive force against him when Boggs kicked the tray inside Jons cell in Jons direction. Jon characterizes this action as conduct subjecting Jon to cruel and unusual punishment. Jon made clear to the trial court, both in his petition and at the hearing on the motion to dismiss, that the tray did not hit him.
Whenever prison officials are accused of using excessive force in violation of the Eighth Amendment, the core judicial inquiry is whether [the] force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Wilkins v. Gaddy, 130 S. Ct. 1175, 1178, 175 L. Ed. 2d 995 (2010) (per curiam) (citing Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)). Although lack of an injury does not always defeat an excessive force claim, it is relevant in determining whether a violation occurred. Id. at 117778. The extent of injury may also provide some indication of the amount of force applied. Id. at 1178.
Based on cases dealing with excessive force in the Eighth Amendment context, including Wilkins, the trial court could have concluded that, even if Boggs did kick the tray in Jons direction, such action was not objectively of such a serious nature that it could be said to be done to maliciously and sadistically cause harm. That is, the trial court could have concluded, within its discretion, that the chance of this claims success was slight or that Jon would be unable to prove facts to support his claim. We overrule Jons contentions relating to this issue.
Claims against TDCJ and UTMB
In the absence of a relevant waiver of immunity, these two entities, as units of the State, enjoy sovereign immunity. Jons claims that the TDCJ negligently used tangible personal property in the forms of restraints and food loaf does not invoke an applicable waiver of the TDCJs sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). Though Jons petition attempts to couch allegations against TDCJ in terms of negligence, a careful reading reveals that his allegations more accurately sound in intentional tort. And the Texas Tort Claims Act (TTCA) specifically provides that the negligent use of property exception does not apply when a party claims intentional tort. See id. § 101.057(2) (West 2011). Jons attempts to cast his claims in terms of negligence fail; the true nature of his claims more closely resembles allegations of intentional misconduct.[5]
That said, there does not appear to be a waiver of immunity applicable to Jons claims such that the TDCJ would be subject to suit. Therefore, looking at Jons claims against the TDCJ, the trial court could have reasonably concluded their realistic chance of ultimate success is slight. See id. § 14.003(b)(1). We overrule Jons contentions to the contrary.
The record shows that Jons claims against UTMB would likewise fail in that it appears the TTCA does not provide an applicable waiver by which Jon could successfully pursue his claims against UTMB. From our reading of Jons contentions, it appears he contends that UTMB knew of and approved the alteration of his medical records. He attempts to characterize this practice as negligent use of medical records.[6] His own contentions, however, belie his efforts to characterize this matter as negligence. He unequivocally accuses prison staff and TDCJ of knowingly altering records in furtherance of efforts to cover up an assault by Dinwiddie. It is well established that, if a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. See Petta, 44 S.W.3d at 580; Pineda v. City of Houston, 175 S.W.3d 276, 28283 (Tex.App.Houston [1st Dist.] 2004, no pet.). The trial court did not abuse its discretion by dismissing claims against UTMB as frivolous.
Complaints Regarding Discovery
On appeal, Jon urges that the trial court committed error in some manner associated with the discovery process. But he does not identify an adverse ruling on which he bases his complaint. That being so, there is nothing preserved for our review. See Tex. R. App. P. 33.1(a)(2).
Conclusion
Having overruled appellants points of error, we affirm the trial courts judgment.
Mackey K. Hancock
Justice
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
[2] Though done without a great deal of development, Jon claimed in his petition that Hussain took some of Jons personal property. On appeal, Jon mentions the theft of personal property but does not appear to advance an independent argument regarding the viability of his claim of theft, if any, in relation to the trial courts dismissal.
[3] For the purposes of our analysis and due to the unclear nature of Jons claims against the ten individual defendants, we set aside any considerations regarding immunity as it applies to the individual defendants.
[4] Further, though the trial court could not have concluded that Jons claims had no arguable basis in fact if it had not held a hearing, see Hector v. Thaler, 862 S.W.2d 176, 178 (Tex.App.Houston [1st Dist.] 1993, writ denied), we cannot say that the trial court was so constrained after having held a hearing in which Jon participated by telephone.
[5] That is, the nature of the complained-of conduct sounds more accurately in intentional tort if we assume the conduct would constitute anything at all more than a reasonable use of force in a correctional facility. See Tex. Penal Code Ann. § 9.53.
[6] We would add that information is not considered tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities. State Dept of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). And simply reducing information to writing on paper does not make the information tangible personal property for the purposes of the TTCA. Id. (citing Dallas County v. Harper, 913 S.W.2d 207, 20708 (Tex. 1995)).