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Opinion filed March 6, 2008
In The
Eleventh Court of Appeals
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No. 11-06-00151-CR
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PERRY ANDREW PIPPILLION, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 91244
M E M O R A N D U M O P I N I O N
The jury convicted Perry Andrew Pippillion of the first degree felony offense of causing serious injury to a child. Tex. Penal Code Ann. ' 22.04(a)(1) (Vernon Supp. 2007). The jury found that appellant was a repeat offender and assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant challenges his conviction in three issues: ineffective assistance of counsel, legally and factually insufficient evidence, and error of the trial court in denying his requested jury instruction. We affirm.
Background Facts
This case involved a two-month-old baby who starved to death. Captain Eric Paul Chapman of the Beaumont Fire Department testified that he responded to a medical call from 2455 Hemlock in Beaumont on October 24, 2003. When he arrived, the baby was not breathing and did not have a pulse. He tried unsuccessfully to resuscitate the baby who looked malnourished. Captain Chapman could see the baby=s ribs, Athe baby=s skin was hanging off of it,@ and A[t]he baby had sunken eyes.@ He determined that there was no Amechanism of injury, no phlegm.@ In answer to his questions, the mother told him that the baby had not been eating.
Officer Jerome D. Watkins, an officer with the Beaumont Police Department for eighteen years, said that he was dispatched to 2455 Hemlock to assist the E.M.S. with an infant who was not breathing. He described the child as being very emaciated, a skeletal-looking child. He talked to the mother who gave her name as Tamecca Henderson. The prosecutor asked Officer Watkins the following questions:
Q: Did you have contact with anyone in the house who identified himself as the father of the child?
A: Yes, sir, I did.
Q: Did he identify himself by the name as Perry Pippillion?
A: Yes, sir, he did.
Officer Watkins said that appellant accompanied him to a backroom where he spoke with both appellant and Tamecca. Based on the information that they gave, he determined that the baby was approximately two months old. Officer Watkins inquired of the parents if any medical care had been provided to the child up until he arrived at the house. The mother said, with appellant present, that Ashe had not had a chance to take the child back to the doctor since she brought her home from the hospital.@
During cross-examination, Officer Watkins testified that appellant had lived at 2455 Hemlock for as long as he could remember. Officer Watkins had dealt with the Pippillions since he first joined the police department eighteen years ago. Officer Watkins did not know how long Tamecca and the baby had lived at 2455 Hemlock, but she introduced herself as the mother and appellant as the father. In addition, Tamecca told Officer Watkins that Ashe resided there.@ Despite Officer Watkins=s earlier testimony that appellant had identified himself as the father, Officer Watkins on redirect said that he could not say whether appellant stated that he was the father but that appellant Awas standing right there when [Tamecca] said he was the father@ and that appellant did not dispute her statement. Appellant did not state that he was not the father at any time.
Beaumont Police Detective Mark Hogge, a twenty-four-year veteran, testified that, when he arrived at 2455 Hemlock, the baby had been taken from the house. He said that appellant identified himself as the father and identified Tamecca as the mother. Appellant also told Detective Hogge that the name of the child was Monique Pippillion. Tamecca apparently had left when the baby was taken to the hospital. Appellant showed Detective Hogge the bedroom where he and Tamecca slept as well as where the baby had slept. Subsequently, Detective Hogge went to the hospital to see the baby. Detective Hogge had been working crimes involving children for seven years and stated that this was Aone of the most horrific things that [he] had seen.@
The next witness for the State was Ester Griffin, manager of the Southeast Texas Community Health Clinic in Beaumont, an indigent care clinic. At the prosecutor=s request, she had searched their records to see if the baby had been a patient there. There was no record of the baby as a patient, but the clinic had records for Azariah Henderson, Ashuntay Green, and Patyria Green as patients. The clinic=s records reflected that Tamecca was the mother of these three children. Earlier, Detective Hogge and Officer Watkins had stated that other children were living at 2455 Hemlock.
Dr. Uma Knojia specialized in pediatrics and adolescent medicine and was on duty when the baby was born at St. Elizabeth Hospital. He testified that her birth weight was five pounds, six ounces. The baby=s APGAR scores (reflecting the status at birth) were good. The baby had some trouble breathing within an hour or two after her birth, but Dr. Knojia said that situation was not unusual. The baby stayed at the hospital for five days and had gained weight by the time she was discharged. Dr. Knojia would have expected the baby to gain a minimum of two pounds and a maximum of five pounds during the next two months; however, the baby=s weight at autopsy was four pounds ten ounces, way below what Dr. Knojia expected. Dr. Knojia pointed out that the autopsy showed no disease and that it would not have taken a doctor to know something was wrong with the baby.
Dr. Knojia further testified that he knew Tamecca was taking the other three children to Dr. Manuel and that, in his discharge summary, he told Tamecca that she could also take this baby to Dr. Manuel. If she could not go to Dr. Manuel, she could always go to the Southeast Texas Community Health Clinic at any time. There was free formula at the clinic, and all this baby needed was formula.
Dr. Tommy J. Brown, a forensic pathologist, performed the autopsy. His first impression was that it was an unusual and extreme case of malnourishment. There was no sign of disease, the baby=s organs exhibited signs of malnutrition, and there was no evidence of recent feedings. Dr. Brown ruled the death as a homicide. His opinion was that Athe cause of death was starvation from nutritional, deprivation and neglect.@
The last witness for the State was Detective Jason Hughes with the Beaumont Police Department. He testified that he went to the hospital while Detective Hogge went to 2455 Hemlock. At the hospital, Charlotte Pippillion Ainformed [Detective Hughes] that she was the paternal grandmother.@
The record reflects that appellant had expected to call Tamecca as his first witness. Outside the presence of the jury, appellant=s attorney showed the trial court a letter that he had received from Tamecca=s attorney. In the letter, her attorney stated that, because her case was pending on appeal, he would advise her not to testify in any proceedings other than her own. The trial court advised Tamecca of her rights, and she declined to testify. The record then indicates that the trial court ruled that it would allow appellant to offer portions of Tamecca=s testimony in her trial and the State to offer other portions of that testimony under the rule of optional completeness. However, the record does not contain that testimony. There is only a statement by the trial court to the jury on the following morning that Tamecca had exercised her right not to testify and Aso her testimony will not be presented in this trial.@
Appellant also introduced a copy of the baby=s birth certificate. The birth certificate for the baby identified her name as AMonique Jeanette Pippillion@; thus, Monique had the same last name as that of appellant. Tamecca was listed as the mother, but no father was listed.
Ineffective Assistance of Counsel
In appellant=s first issue, he contends that he received ineffective assistance of counsel at trial because counsel failed to file any pretrial motions until the day of trial, failed to ask sufficient questions of the prospective jurors during voir dire, and failed to adequately cross-examine the State=s witnesses. After a review of the entire record, we find that appellant=s contentions are not supported by the record.
In order to determine whether trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In assessing counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
Appellant speculates that his counsel could have made a more thorough investigation if he had filed the pretrial motions earlier. Yet, he does not tell us what that investigation would have revealed. As an appellate court, we cannot reverse based on speculation. An assertion of ineffective assistance of counsel will be sustained only if the record affirmatively supports such a claim. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim. App. 1978); Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.CHouston [14th Dist.] 1992, no pet.). The same can be said of appellant=s contentions that his counsel failed to ask sufficient questions during voir dire and failed to adequately cross-examine the State=s witnesses. The principal contention of appellant at the end of the trial and on this appeal (in his second and third issues) is that the State did not carry its burden to show that appellant had a legal duty to act or had assumed care, custody, or control of the child victim. See Tex. Penal Code Ann. ' 22.04(b) (Vernon Supp. 2007). Thus, it is not surprising that counsel limited his cross-examination of the State=s witnesses. Nor do we know what his own investigation revealed on this question. We only know that the record does not reflect that appellant produced any testimony to counter the State=s evidence that appellant was the father of the victim and, thus, owed a duty to provide medical care and food to the victim. See Tex. Fam. Code Ann. ' 151.001(a)(2), (3) (Vernon Supp. 2007). In his argument, appellant points out that the indictment did not name appellant as a parent. Having failed to object to this alleged defect in the indictment before the trial on the merits commenced, appellant has not preserved a complaint for appellate review. Tex. R. App. P. 33.1. It may be, however, that counsel for appellant did not want to emphasize the duty element before the trial began because the State would have been put on notice to put on more evidence that appellant was the victim=s father and owed a statutory duty to provide food and medical care to the victim.
Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). That is true in this case. Appellant=s first issue is overruled.
Legal and Factual Sufficiency of the Evidence
In appellant=s second issue, he contends that the evidence was insufficient to find appellant guilty. His specific argument is that there was insufficient evidence to prove beyond a reasonable doubt that he owed any duty to the child. We will treat his argument as encompassing both legal and factual sufficiency.
In order to determine if the evidence is legally sufficient, we must review all of the 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. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8-9.
Appellant was charged with injury to a child by failing to provide medical care and food. A parent has a duty of care, control, and protection of his or her child and a duty to provide medical care. Section 151.001(a)(2), (3). Section 22.04(a)(1) of the Texas Penal Code provides that a person commits an offense if, with the requisite mental state, he by omission causes serious bodily injury to a child. Omissions constitute an offense if the person has a legal or statutory duty to act or has assumed care, custody, or control of the child. Section 22.04(b).
Officer Watkins testified that appellant identified himself as the father of the child before later qualifying his first answer; however, even then Officer Watkins stated that appellant was Astanding right there@ when Tamecca said that appellant was the father and that appellant never denied that he was the father. Tamecca said that she resided at 2455 Hemlock. Detective Hogge also testified that appellant identified himself as the father. At the hospital, appellant=s own mother identified herself to Detective Hughes as the paternal grandmother of the child. Finally, the child=s last name on her birth certificate was appellant=s. As to the omission, Dr. Brown testified that the cause of the child=s death was starvation, deprivation, and neglect over the two-month period and ruled the death to be a homicide. The evidence was legally and factually sufficient to support appellant=s conviction. As a parent, appellant had a statutory duty to feed and provide medical care to Monique Pippillion. Appellant=s second issue is overruled.
The Court=s Charge
In appellant=s third and final issue, he contends that the trial court erred in denying his Arequested . . . instruction that addressed whether [a] legal duty was owed to the child or, in the alternative, that the [appellant] had a statutory duty to provide care, custody or control of the child.@
An appellate court reviews an alleged charge error by determining (1) whether error existed in the charge and (2) if there was error, whether sufficient harm resulted from the error to compel reversal. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). Thus, we must first decide whether error exists.
Objections to the charge must be in writing, but this requirement can be met by dictating the objection to the court reporter in the presence of the court and the State=s counsel. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). There is no written instruction in the record, and the recorded request of appellant at the charge conference only referred to appellant having assumed care, custody, or control of the child. Appellant=s counsel acknowledged that appellant had waived any defect in the indictment and that he did not address Section 22.04(b)(1), which provides that an omission that causes serious bodily injury is conduct constituting an offense under Section 22.04(b)(1) Aif the actor has a legal or statutory duty to act@ (e.g., as a parent). An objection must distinctly specify the ground upon which it is based. Article 36.14. Appellant=s objection at the charge conference B whether appellant had assumed the duty of care B does not comport with his objection on appeal that the issue of whether appellant owed a legal duty as a parent should have been made part of the jury charge. Rule 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Appellant did not preserve the issue he now urges on appeal.
As to appellant=s actual objection during the charge conference B that he wanted the jury to decide whether appellant Ahad assumed care, custody, or control of Monique Pippillion@ B the jury charge contained the following definitions:
OMISSION:
An omission that causes serious bodily injury to a child is conduct constituting an offense if the defendant has assumed care, custody, or control of a child.
ASSUMED CARE:
A person has assumed care, custody and control if he has by acts, words or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter and medical care for a child.
Appellant=s closing argument concentrated on emphasizing that there was not enough evidence to show that appellant had assumed care, custody, or control of the child. Appellant also argued that the State had not proved the paternity of the child. The jury found appellant guilty of the offense of intentionally and knowingly causing serious bodily injury to a child as alleged in paragraph one of the indictment. There was evidence that appellant had assumed care, custody, or control of Monique. There was ample evidence for the jury to find that appellant was the father of Monique and that Tamecca and her children resided with him at 2455 Hemlock. A reasonable person could have concluded that appellant had accepted responsibility for protection, food, shelter, and medical care for Monique. The trial court did not err in denying appellant=s objection at the charge conference. The charge instruction was adequate under Section 22.04(b)(2) even though it omitted the language in Section 22.04(b)(1). Appellant=s third issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
March 6, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.