NO. 12-05-00329-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
HERBERT HUNT, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Herbert Hunt appeals his conviction for the offense of injury to a child. In two issues, Appellant contends that the trial court erred when it overruled his objections to the assembled petit jury and that the evidence was insufficient to sustain the conviction. We affirm.
Background
T.K. was four years old when he first came to a preschool in the Whitehouse School District. He was in the special education program, and his teacher noticed that his back was almost completely covered in bandages. Several days later he came back to school without the bandages. His teacher inspected his back and observed significant injuries. Specifically, his back had many long cuts or lacerations. The wounds on his back ranged from very recently inflicted and still bleeding wounds to nearly healed wounds with raised scars. He had similar, but less serious, wounds on his face and arms. The injuries to his back, which were photographed that day, are not amenable to written description but two witnesses likened them to something from the movie “Roots.” A police officer with more than twenty years of experience almost lost his composure on the witness stand when asked to recount the first time he saw the injuries.
T.K.’s sister, who was in the first grade, told the school officials that her mother’s boyfriend, Appellant, had beaten T.K. An investigation began, and Appellant and the child’s mother were both arrested and subsequently indicted for the felony offense of injury to a child. The mother’s trial was conducted first, and Appellant testified at that trial against the advice of his attorney. Appellant told that jury that he had inflicted most of the injuries to T.K., although he downplayed the violence of the attack and suggested that the injuries had worsened because the child had gone horseback riding or rubbed against something.
Appellant pleaded not guilty at his own trial. The jury found him guilty and assessed punishment at fifty years of imprisonment. This appeal follows.
Batson Challenge
In his first issue, Appellant complains that the State engaged in purposeful racial discrimination in its use of peremptory challenges. Racial discrimination in the use of peremptory challenges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 84, 106 S. Ct. 1712, 1716, 90 L. Ed. 2d 69 (1986); Strauder v. West Virginia, 100 U.S. 303, 310, 25 L. Ed. 664 (1880). In Batson, the Supreme Court left it to the lower courts and the state legislatures to determine how to implement its decision. Batson, 476 U.S. at 99, n.24, 106 S. Ct. at 1725, n.24. In response, the Texas Legislature enacted article 35.261 of the Texas Code of Criminal Procedure. Article 35.261 is the appropriate mechanism to raise and resolve claims that venire members have been peremptorily challenged on the basis of race. Hill v. State, 827 S.W.2d 860, 863 (Tex. Crim. App. 1992).
For a Batson objection to be timely under article 35.261, it must be made after the parties have delivered their lists to the clerk under article 35.261 and before the court has impaneled the jury. Hill, 827 S.W.2d at 864; Saldivar v. State, 980 S.W.2d 475, 482-84 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d). A jury is “impaneled” when the members of the jury have been selected and sworn. Hill, 827 S.W.2d at 864.
Appellant’s objection was made after the jury had been impaneled and sworn. Therefore, his objection was not timely, and nothing is preserved for our review. Cf. Redman v. State, 848 S.W.2d 710, 715 (Tex. App.–Tyler 1992, no pet.) (Objection raised before petit jury sworn.). We overrule Appellant’s first issue. See Saldivar, 980 S.W.2d at 484.
Sufficiency of the Evidence
In his second issue, Appellant argues that the evidence was legally and factually insufficient to show that the victim suffered serious permanent disfigurement.
Standard of Review–Legal Sufficiency
The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). Examined in a light most favorable to the jury’s verdict, evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
As authorized by the indictment, the State was required to prove that Appellant intentionally or knowingly caused serious bodily injury to a person fourteen years of age or younger. Tex. Pen. Code Ann. § 22.04(a)(1), (e) (Vernon 2005).
Standard of Review–Factual Sufficiency
In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.
As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Analysis
Appellant does not contest that he caused injury to T.K. or that T.K. was a child at the time of the injuries. On appeal, his only contention is that the evidence is insufficient to prove that the injury T.K. sustained was a serious bodily injury as that term is defined.1 Serious bodily injury is defined by statute as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or any protracted loss or impairment of the function of any bodily member or organ. Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2006).
In support of his argument, Appellant directs us to Bueno v. State, 996 S.W.2d 406 (Tex. App.–Beaumont 1999, no pet.). In Bueno, the State conceded that a knife injury which left a two inch scar on the victim’s abdomen was not life threatening and did not cause the loss or impairment of the function of a bodily member or organ. Id. at 408. Furthermore, there was no evidence or testimony in Bueno as to “the extent or permanence of the scarring,” which caused the court to conclude that the cut was not a serious bodily injury. Id.
This case is readily distinguishable from Bueno both in the extent of the injury and with respect to the expert testimony offered about the permanent scarring the child would suffer. Several of the State’s witnesses testified that the scarring would be significant and permanent. Additionally, an expert witness called by the State testified that, because of a medical condition T.K. suffered from and because of the force of the blows, the injuries Appellant inflicted put T.K. at significant risk of suffering a spinal fracture or an injury to his kidneys. The expert witness also testified that the keloid scars that crisscrossed the victim’s back and the scars to his face and arm would not go away.
The court of criminal appeals has recognized that the determination of serious bodily injury must, on occasion, be made on an ad hoc basis. See Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987). The expert witness’s testimony about the risk of fracture or “hematoma or laceration” of the kidney, without more, might not be sufficient to prove that the injury caused a substantial risk of death. The expert’s conclusory statement that the injuries were serious bodily injury is similarly lacking.
The evidence, however, is compelling with respect to whether the injury was a serious and permanent disfigurement. Appellant is correct that not every scar is a serious bodily injury. See, e.g., McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.–Fort Worth 1996, pet. ref’d)(“slight scar” on mouth not serious bodily injury). Instead, there must be evidence of some significant cosmetic deformity caused by the injury. Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.–El Paso 1997, no pet.). The injuries to T.K.’s back and face are significant cosmetic deformities. The injuries at the time they were discovered and the uncontroverted testimony that the child would be badly scarred for the remainder of his life are sufficient evidence upon which the jury could have rationally concluded, beyond a reasonable doubt, that the injury caused serious and permanent disfigurement. Furthermore, the evidence supporting that conclusion is neither too weak to sustain the verdict nor is it outweighed by contrary evidence. We overrule Appellant’s second issue.
Disposition
We affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered August 16, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)
1 The State respectfully submits that this claim is waived because Appellant’s counsel suggested that the jury convict his client of negligently causing the injury but did not contest the issue of serious bodily injury. It is true, generally, that a complaint must be made in the trial court as a prerequisite to presenting it on appeal. See Tex. R. App. P. 33.1. Complaints about the sufficiency of the evidence, however, may always be raised on appeal. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004)(“If a defendant challenges the legal sufficiency of the evidence to support his conviction on direct appeal, the appellate court always has a duty to address that issue, regardless of whether it was raised in the trial court.”).