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NUMBER 13-01-00402-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
DAVID CORONA GUAJARDO, Appellant,
v.
STATE OF TEXAS, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Yañez and Castillo
Opinion by Justice Castillo
By indictment, the State of Texas charged appellant David Corona Guajardo with intentionally and knowingly causing serious bodily injury to a child.[1] A jury convicted appellant of the lesser offense of recklessly causing serious bodily injury to a child and sentenced him to ten years incarceration.[2] From this conviction, Guajardo appeals two issues: (1) a fatal variance between the allegations in the indictment and the proof at trial; and (2) the sufficiency of the evidence to support his conviction. We overrule the first issue, hold that appellant waived the second, and affirm.
PROCEDURAL HISTORY
The State indicted appellant as follows:
David Corona Guajardo, hereinafter called the Defendant, on or about the 14th day of October, 2000, and anterior to the presentment of this indictment, in the County of Cameron and State of Texas, did then and there intentionally or knowingly, cause serious bodily injury to David Guajardo, Jr., a child younger than 15 years of age, by striking the head of David Guajardo, Jr. with an object unknown to the Grand Jury or by causing the head of David Guajardo, Jr. to strike an object unknown to the Grand Jury or by shaking or squezzing [sic] the neck of David Guajardo, Jr. with his hands.
Appellant pled not guilty, and the case was tried to a jury. After the conclusion of the State=s case-in-chief, appellant moved for an instructed verdict, asserting a fatal variance between the indictment and the proof at trial in that the State did not present evidence regarding the grand jury=s diligence in finding out what caused the injury to the child. The trial court denied the motion. Appellant later testified in his own defense that he accidentally injured the child. After both sides rested and closed, appellant re-urged his motion for instructed verdict. The trial judge again denied the motion and submitted the court=s charge containing application paragraphs for each of the three possible culpable mental states for the offense of serious bodily injury to a child: (1) intentional and knowing; (2) reckless; and (3) criminally negligent. Appellant did not object to submission of the lesser offenses.[3] The application paragraphs for each tracked the language of the indictment.
The jury found appellant guilty of recklessly causing serious bodily injury to a child, and this appeal ensued.
THE RELEVANT EVIDENCE AT TRIAL
The injured child=s mother testified that appellant is the child=s father. At 7:00 a.m. on October 14, 2000, appellant came home from his fourth straight day of twelve-hour shifts on his job as a correctional officer. The child=s mother left for work a short while later, leaving the child (at the time six months old) and the baby=s two half-siblings (ages six and seven) in appellant=s care. The mother testified that the baby had no visible injuries and was in good condition when she left for work that morning.
One of the baby=s half-siblings testified that the two older children played in another room after their mother left for work while appellant and the baby went to bed. Several hours later, the half-sibling heard loud banging noises coming from the bedroom in which appellant was sleeping with the baby. He also testified that appellant told him not to tell his friends about the loud bangs.
The baby=s mother testified that appellant called her early the afternoon of October 14, 2001 and told her that the baby was in the emergency room at the hospital. She said he told her that he had put the baby on the bed next to him and that they had both fallen asleep. He told her that he had been awakened by the baby=s cries in the early afternoon, only to discover that the child had fallen off the bed onto the carpeted floor.
The baby=s medical records, introduced at trial, reveal the following interview and treatment notes:
Father states he was sleeping with the infant on the bed and heard the baby cry and found the baby on the floor, bruising to the right side of the face, swelling, shallow and slow respirations. . . . Diagnostic impression: 1. Acute closed head injury with non-depressed right parietal skull fracture. . . .
* * *
6 month old child brought in by parents unresponsive and Aalmost@ intubated on arrival. Told that father found him on floor of bed. Child sleeps on bed [with] parents. Dad awoke to sound of crying. Child was on floor ([approximately] 3' bed). Floor is carpeted (thin carpet). . . .
* * *
obvious injury greater than expected from fall onto floor (carpet) from 3' bed. . . .
* * *
Principal Diagnosis: Closed fracture, skull vault with subarachnoid/subdural/extradural hemorrhage, unconsciousness, unspecified duration; Secondary Diagnoses: . . . shaken infant syndrome. . . . child and adult battering and maltreatment by father or stepfather. . . .
* * *
Shaken Impact Syndrome - Non Accidental Closed Head Trauma
* * *
This child has a very significant skull fracture and retinal hemorrhages. There is no question this is child abuse. This did not occur by falling off the bed, and his injuries are all quite acute and I have no doubt occurred this morning after the mother had left the child alone.
* * *
The nature & extent of this baby=s injuries is not possible from [history] provided
* * *
Diagnosis: . . . suspected child abuse . . . Condition: critical . . . .
* * *
Father stated to me that Ahe might have hit the baby during his sleep but could not remember.@ . . .
* * *
[The child=s mother] stated when she arrived at the hospital, the father told her that he had fallen asleep on the bed with the Pt at approximately 9:00 AM. She stated the father told her that he heard the Pt crying, however, he was too sleepy to realize that they [sic] baby was crying. She stated he told her he work [sic] up around 12:30 PM or 1:00 PM, and found the Pt on the floor unconscious. She stated he told her he tried to move the Pt=s hands, and they were limp. She stated the father stated he started Alight CPR,@ and heard Awheezing sounds@ from the Pt. She stated the father then Apanicked@ and Atook off to the hospital@ with the Pt. She stated the father left the 2 siblings alone in the home when he left with the Pt. . . . Assessment: The injuries the Pt has received are not consistent with the explanation of the injury give by the parents. I feel that the Pt is a victim of child abuse. . . .
The authorities took appellant into custody on October 17, 2001. On October 18, 2001, in a voluntary statement that the State also introduced into evidence, appellant gave the following account of the way in which the baby was injured:
I don=t know for sure what time it was when I woke up. I don=t know who woke up first. David or me. David was crying. He wanted his bottle. I started playing with him to make him quit crying. I was going to go get the bottle. I got up and picked him up. I started tossing him in the air. I was between the bed and the dresser towards the hallway going out of the bedroom. I tossed him into the air a number of times. David was smiling. I was tossing him way up in the air. The last time I missed his hands, or he slipped through my hands and he hit the dresser, and went to the floor. After that I went down and grabbed him about the same time he was hitting the floor. I don=t know, his eyes did something. Maybe he had a seizure or was unconscious. I got scared and I panicked. I knew something happened. I felt for a pulse and found none. I gave him CPR the first time on the bed. I got something like a response. His stomach would start doing something. I then grabbed him up and was holding him talking to him. I took him to the red sofa. I don=t know if I shook him before I gave him CPR on the red sofa or not. I did shake him. I remember I shook him to see if he would wake up. I was trying to wake him up, I was not trying to hurt him. I had given him CPR twice and when nothing happened I just took off to the hospital. I almost got in a wreck on the way out. My car turned off. When I stopped David slid forward on the seat. I caught him, and I gave him CPR again. I got the car going and I sped to the hospital. I didn=t want to wait minutes for the ambulance. I could get there quicker. . . .
The baby=s mother testified appellant told her after his arrest that Ahe was like throwing [the baby] up in the air and he had fallen and hidden [sic] himself on a shelf that was in the room.@
Investigating officers testified that appellant initially told them that the baby had fallen off the bed. The State introduced photographs one of the officers took of the bedroom where the child was injured. The photographs showed several pieces of furniture in the room as well as a baseball bat leaning against one wall.
One of the baby=s treating physicians testified as an expert witness during the State=s case-in-chief. He testified that the child had sustained a life-threatening injury and that his injuries included a Avery significant@ skull fracture, bruising of his head and face, bleeding in the back of his eyes, and paralysis on the right side of his body. The doctor stated that the symptoms the child exhibited in the emergency room would have become noticeable Aimmediately@ after the injury occurred and that there was no way the child sustained the injuries the night before. The doctor compared the baby=s injuries to those inflicted by Abeing ejected from a high speed automobile accident,@ and concluded that the injuries could have been caused by A[a] blow to the head with a fist, a baseball bat.@ The prosecutor asked the doctor if he could tell from examining the baby what had caused his injuries:
Q. Can you tell from looking at the baby if the baby was struck against something, or something struck the baby?
A. I can=t tell.
Q. You know that something impacted that baby, or the baby impacted something?
A. Yes.
The doctor further testified that the baby suffered permanent brain damage and Asevere@ impairment, is developmentally delayed, and will never fully recover. AMost adults with this degree of damage,@ the doctor concluded, Awould not live. This baby very easily could have died.@ On cross-examination, he stated his opinion unequivocally, ALet me go on record. This child was beaten to a pulp, and is a victim of child abuse. I won=t beat around the bush any more.@
After the State rested, appellant testified to the following version of events the afternoon of October 14, 2000:
Q. Okay. And being, when you heard the baby cry, did that somewhat bother you?
A. It woke me up, but it didn=t bother me.
Q. Okay. And what did you do when the baby woke up and was crying? What did you do?
A. I got up.
Q. Okay?
A. And I B I grabbed him.
Q. Okay.
A. (Indicating)
Q. And was he on the bed at that time?
A. Yes, sir.
Q. Okay. And when you picked him up, what did you do? Where did you go?
A. I started playing with him, and talking with him B making baby noises.
Q. Okay. And what were you trying to do at that time? Why were you playing with him?
A. Because I love him B he=s my son. I was trying to give him attention.
Q. Okay. What happened next?
A. I got up, I started playing with him, and then? Well, I picked him up; I lifted him up.
Q. And then?
A. I tossed him in the air.
Q. Now, can you tell the jury when you say Atossed him up,@ what were you doing? Show them. They need to know. (Indicating)
A. I had him, you know, like this (indicating) in the air. And, then, I was playing with him and B you know B doing baby noises and stuff, and he was laughing at me, and he was happy (Speaks in Spanish) I found it easy, you know, just to throw him up B just playing with him. And the second time, you know, (Speaks in Spanish) he fell.
Q. And where were you when you were doing this?
A. In the room.
Q. Were you close to something?
A. To the shelf B I mean B the dresser.
Q. And what happen [sic] when he fell through your arms B when you missed him?
A. He hit the dresser.
Q. With what?
A. What do you mean, with what?
Q. What hit the dresser, Mr. Guajardo?
A. I didn=t see it; his head.
Q. You didn=t see what hit?
A. His head hit the dresser.
Q. And what happened next? What did you do as a result of that?
A. Well, I got scared.
Q. Okay. Did the baby actually fall to the floor B to the ground?
A. Yes, he did.
Q. And, what was the baby doing at that time?
A. (Speaks in Spanish) Nothing, sir. He was just laying there.
Q. What do you mean, just laying there?
A. Lifeless.
We address first appellant=s challenge to the sufficiency of this evidence to support his conviction.
THE SUFFICIENCY ISSUE
Appellant did not object to inclusion of the lesser offenses in the jury charge. A defendant who does not object to submission of a lesser offense to the jury accepts the benefit of that instruction and is estopped from complaining on appeal that the evidence is legally insufficient to establish all the elements of the lesser offense. State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991) (plurality op.), disapproved on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998); Tamez v. State, 865 S.W.2d 518, 519-20 (Tex. App.BCorpus Christi 1992, pet. ref=d); see State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993) (op. on reh=g) (citing Lee in holding that a defendant who accepted the benefit of a jury submission on a lesser charge was estopped from attacking his conviction of that lesser charge on statute of limitations grounds).[4]
Appellant argues Aalternatively@ that the evidence is factually insufficient to support his conviction. Appellant=s failure to object to the lesser charge similarly estops him from asserting factual insufficiency. Otting v. State, 8 S.W.3d 681, 686 (Tex. App.BAustin 1999, pet. ref=d, untimely filed); Bisco v. State, 964 S.W.2d 29, 30 (Tex. App.BTyler 1997, pet. ref'd). Therefore, we hold that appellant, by not objecting to submission of the lesser charge to the jury, waived his second issue challenging the legal and factual insufficiency of the evidence to support his conviction for recklessly causing serious bodily injury to a child.[5]
THE VARIANCE ISSUE
In his first issue, appellant contends that the State failed in its proof because it was required to offer evidence that the grand jury did not know the manner or means appellant used to injure the child and did not do so. Thus, appellant argues, the State did not prove that the grand jury diligently tried to determine the manner or means before concluding that the object used to inflict the child=s injuries was unknown.
The indictment alleged that appellant caused serious bodily injury to his son by striking the baby=s head with an object unknown to the grand jury, by causing the baby=s head to strike an object unknown to the grand jury, or by shaking or squeezing the baby=s neck with his hands. If a charging instrument alleges that the manner or means used to inflict an injury is unknown, and the evidence at trial does not show a specific manner or means, the State makes a prima facie showing that the manner and means were unknown to the grand jury. Matson v. State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991); Garcia v. State, 880 S.W.2d 189, 190 (Tex. App.BTexarkana 1994, pet. ref=d). Only if evidence at trial shows the manner or means must the State prove that the grand jury did not know them and diligently tried to ascertain what they were. Matson, 819 S.W.2d at 847.
At trial, appellant first moved for an instructed verdict at the close of the State=s case-in-chief on the ground that the State had not proved the exercise of due diligence by the grand jury in determining the manner or means used by appellant in injuring the baby. After the close of all the evidence, appellant again moved for an instructed verdict on the same ground, urging that the State had proved, through introduction of appellant=s confession that he had dropped the baby on the dresser, how the injuries occurred. In his brief, appellant argues that the evidence at trial Aindicated that the injuries suffered by the child were caused by use of a baseball bat.@ At trial, the jury heard a number of possible explanations of how the child=s injuries occurred, both in the form of expert medical testimony and in several different versions of events recounted by appellant to medical personnel and investigating authorities, each of which was inconsistent with the others and each of which the medical evidence showed to be inconsistent with the child=s injuries. As a consequence, the State presented no definitive proof of exactly what manner or means appellant used to injure the baby. The State was not required, therefore, to prove that the grand jury did not know the manner or means of injury or that it had used diligence to discover them. Id. We overrule appellant=s first issue.[6]
CONCLUSION
Having rejected both of appellant=s issues, we affirm the judgment of the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 24th day of October, 2002.
[1] Tex. Pen. Code Ann. ' 22.04(a)(1) (Vernon Supp. 2002).
[2] Id.
[3] Reckless injury to a child and criminally negligent injury to a child are both lesser offenses in section 22.04 of the penal code. Tex. Pen. Code Ann. '' 22.04(e), (g) (Vernon Supp. 2002).
[4] The defendants in Yount and Lee also submitted their own proposed lesser charge in addition to not objecting to submission of the lesser charge to the jury. State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993) (op. on reh=g); State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991) (plurality op.), disapproved on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). We do not find that distinction dispositive.
[5] Moreover, even if appellant=s failure to object to the lesser charge did not bar him from challenging the sufficiency of the evidence to support his conviction, appellant=s second issue is without merit. We have closely examined the facts presented to the jury. Applying to those facts the legal sufficiency standard of review under Jackson v. Virginia, 443 U.S. 307, 319 (1979) and the factual sufficiency standard under Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim. App. 2000), we find the evidence contained in the record excerpts quoted above legally and factually sufficient to support appellant=s conviction for recklessly causing serious bodily injury to a child.
[6] Our conclusion is the same even if we read appellant=s first issue as fairly raising a claim of material variance between the indictment and the proof at trial. In a variance situation, the State has proved the defendant guilty of a crime but has proved its commission in a manner that varies from the allegations in the indictment. Thus, a variance analysis first requires an examination of whether there was a variance. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). Then, if there was a variance, we are required to examine its materiality. Id. at 257-58. Appellant argues on appeal that the evidence proved use of a baseball bat to injure the child, but he argued to the trial court that his confession proved use of the dresser in the bedroom. Appellant=s inconsistent arguments at trial and on appeal underscore our conclusion that there was no variance in this case; the State did not prove exactly how appellant injured his child, only that he did so. Accordingly, we do not reach the question of materiality.