Bobby Lee Hranicky v. State

NUMBER 13-00-431-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BOBBY LEE HRANICKY, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of DeWitt County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Wittig

Memorandum Opinion by Justice Castillo

Bobby Lee Hranicky appeals his conviction for the second-degree felony offense of recklessly causing serious bodily injury to a child. A jury found him guilty, sentenced him to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $5,000 fine. On the jury's recommendation, the trial court suspended the sentence and placed Hranicky on community supervision for ten years.

In seven issues, Hranicky asserts: (1) the trial court should have quashed the indictment; (2) the evidence is legally insufficient; (3) the evidence is factually insufficient; (4) the trial court improperly interlineated amending language on the face of the indictment; (5) the amended indictment did not give him the statutory ten days' notice before trial and charged a different offense than the original; (6) the trial court submitted an erroneous jury charge; and (7) the trial court abused its discretion by allowing autopsy photographs into evidence. The trial court has certified that Hranicky has the right of appeal. See Tex. R. App. P. 25.2(a)(2). We affirm.

I. RELEVANT FACTS

This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A newspaper advertisement offering tiger cubs for sale caught the eye of eight-year-old Lauren Villafana. She decided she wanted one. She expressed her wish to her mother, Kelly Dean Hranicky, and to Hranicky, her stepfather. Over the next year, the Hranickys investigated the idea by researching written materials on the subject and consulting with owners of exotic animals. They visited tiger owner and handler Mickey Sapp several times. They decided to buy two rare tiger cubs from him, a male and a female whose breed is endangered in the wild. They brought the female cub home first, then the male about a month later.

Sapp trained Hranicky in how to care for and handle the animals. In particular, he demonstrated the risk adult tigers pose for children. Sapp escorted Hranicky, Kelly Hranicky, and Lauren past Sapp's tiger cages. He told the family to watch the tigers' focus of attention. The tigers' eyes followed Lauren as she walked up and down beside the cages.

The Hranickys raised the cubs inside their home until they were six or eight months old. Then they moved the cubs out of the house, at first to an enclosed porch in the back and ultimately to a cage Hranicky built in the yard. The tigers matured into adolescence. The male reached 250 pounds, the female slightly less. Lauren actively helped Hranicky care for the animals.

By June 6, 1999, the tigers were two years old. Lauren was ten. She stood 57 inches tall and weighed 80 pounds. At dusk that evening, Lauren joined Hranicky in the tiger cage. Suddenly, the male tiger attacked her. It mauled the child's throat, breaking her neck and severing her spinal cord. She died instantly.

The record reflects four different versions of the events that led to Lauren's death. Hranicky told the grand jury Lauren and he were sitting side-by-side in the cage about 8:00 p.m., petting the female tiger. A neighbor's billy goat cried out. The noise attracted the male tiger's attention. He turned toward the sound. The cry also caught Lauren's attention. She stood and looked at the male tiger. When Lauren turned her head toward the male tiger, "that was too much," Hranicky told the grand jury. The tiger attacked. Hranicky yelled. The tiger grabbed Lauren by the throat and dragged her across the cage into a water trough. Hranicky ran after them. He struck the tiger on the head and held him under the water. The tiger released the child.

Kelly Dean Hranicky testified she was asleep when the incident occurred. She called for emergency assistance. Through testimony developed at trial, she told the dispatcher her daughter had fallen from a fence. She testified she did not remember giving that information to the dispatcher. However, police officer Daniel Torres, who responded to the call, testified he was told that a little girl had cut her neck on a fence.

Hranicky gave Torres a verbal statement that evening. Torres testified Hranicky told him that he had been grooming the female tiger. He asked Lauren to come and get the brush from him. Lauren came into the cage and grabbed the brush. Hranicky thought she had left the cage because he heard the cage door close. Then, however, Hranicky saw Lauren's hand "come over and start grooming the female, start petting the female cat, and that's when the male cat jumped over." The tiger grabbed the child by the neck and started running through the cage. It dragged her into the water trough. Hranicky began punching the tiger in the head, trying to get the tiger to release Lauren.

Justice of the Peace James Dawson performed an inquest at the scene of the incident. Judge Dawson testified Hranicky gave him an oral statement also. Hranicky told him Lauren went to the cage on a regular basis and groomed only the female tiger. He then corrected himself to say she actually petted the animal. Hranicky was "very clear about the difference between grooming and petting." Hranicky maintained that Lauren never petted or groomed the male tiger. Hranicky told Dawson that Lauren asked permission to enter the cage that evening, saying "Daddy, can I come in?"

Sapp, the exotic animal owner who sold the Hranickys the tigers, testified Hranicky told him yet another version of the events that night. When Sapp asked Hranicky how it happened, Hranicky replied, "Well, Mickey, she just snuck in behind me." On the day of Hranicky's grand jury testimony, Hranicky admitted to Sapp he had allowed Lauren to enter the cage. Hranicky told Sapp he had lied because he did not want Sapp to be angry with him.

Hranicky told the grand jury that Sapp and other knowledgeable sources had said "there was no problem in taking a child in the cage." He did learn children were especially vulnerable because the tigers would view them as prey. However, Hranicky told the grand jury, he thought the tigers would view Lauren differently than they would an unfamiliar child. He believed the tigers would not attack her, he testified. They would see her as "one of the family." Hranicky also told the grand jury the tigers' veterinarian allowed his young son into the Hranickys' tiger cage.

Several witnesses at trial contradicted Hranicky's assessment of the level of risk the tigers presented, particularly to children. Sapp said he told the Hranickys it was safe for children to play with tiger cubs. However, once the animals reached forty to fifty pounds, they should be confined in a cage and segregated from any children. "[T]hat's enough with Lauren, any child, because they play rough, they just play rough." Sapp further testified he told the Hranickys to keep Lauren away from the tigers at that point because the animals would view the child as prey. He also said he told Lauren directly not to get in the cage with the tigers. Sapp did not distinguish between children who were strangers to the tigers and those who had helped raise the animals. He described any such distinction as "ludicrous." In fact, Sapp testified, his own two children had been around large cats all of their lives. Nonetheless, he did not allow them within six feet of the cages. The risk is too great, he told the jury. The Hranickys did not tell him that purchasing the tigers was Lauren's idea. Had he known, he testified, "that would have been the end of the conversation. This was not for children." He denied telling Hranicky that it was safe for Lauren to be in the cage with the tigers.

Charles Currer, an animal care inspector for the United States Department of Agriculture, met Hranicky when Hranicky applied for a USDA license to exhibit the tigers. Currer also denied telling Hranicky it was permissible to let a child enter a tiger's cage. He recalled giving his standard speech about the danger big cats pose to children, telling him that they "see children as prey, as things to play with."

On his USDA application form, Hranicky listed several books he had read on animal handling. One book warned that working with exotic cats is very dangerous. It emphasized that adolescent males are particularly volatile as they mature and begin asserting their dominance. Big cat handlers should expect to get jumped, bit, and challenged at every juncture. Another of the listed books pointed out that tigers give little or no warning when they attack. The book cautioned against keeping large cats such as tigers as pets.

Veterinarian Dr. Hampton McAda testified he worked with the Hranickys' tigers from the time they were six weeks old until about a month before the incident. McAda denied ever allowing his son into the tigers' cage. All large animals present some risk, he testified. He recalled telling Hranicky that "wild animals and female menstrual periods . . . could cause a problem down the road" once both the animals and Lauren matured. Hranicky seemed more aware of the male tiger, the veterinarian observed, and was more careful with him than with the female.

Robert Evans, the Curator of Mammals at the San Antonio Zoo, testified that it is zoo policy to enter a tiger's cage only after anesthetizing the animal. Otherwise, entering the cage is too dangerous. However, Evans conceded on cross-examination, these zoo policies are not known to the general public.

James Boller, the Chief Cruelty Investigator for the Houston SPCA, testified that tigers, even those raised in captivity, are wild animals that act from instinct. Anyone who enters a cage with a conscious adult tiger should bring a prop to use as a deterrent. Never take one's eyes off the tiger, Evans told the jury. Never make oneself appear weak and vulnerable by diminishing one's size by crouching or sitting. Never bring a child into a tiger cage. The danger increases when the tigers are in adolescence, which begins as early as two years of age for captive tigers. Entering a cage with more than one tiger increases the risk. Entering with more than one person increases the risk further. Entering with a child increases the risk even more. Tigers' activity level depends on the time of day, Boller told the jury. They tend to be more active during the early morning, twilight, and late evening. Thus, the time of day one enters a cage also can increase the risk factor. Boller identified eight o'clock on a summer evening as a high activity time. A child should never enter a tiger cage in the first place, Boller testified. Taking a child into a tiger cage "during a high activity time for the animal is going to increase your risk dramatically."

Dr. Richard Villafana, Lauren's biological father, told the jury he first learned of the tigers when his daughter told him over the phone she had a surprise to show him at their next visit. When he came to pick her up the following weekend, he testified, she took him into the house and showed him the female cub. Villafana described his reaction as "horror and generalized upset and dismay, any negative term you care to choose." He immediately decided to speak to Kelly Hranicky about the situation. He did not do so in front of Lauren, however, in an effort to avoid a "big argument." Villafana testified he later discussed the tigers with Kelly Hranicky, who assured him Lauren was safe. Villafana "always had lingering doubts," however. He did not learn of the second tiger until a month or two after he saw the first one. The jury heard that Villafana was not comfortable around either animal, but that he had a "little bit more fear" of the male than the female, as "the male tiger seemed much more aggressive or excitable."

As the tigers matured, no one told Villafana the Hranickys allowed Lauren in the cage with them. Had he known, he "would have talked to Kelly again" and "would have told her that [he] was greatly opposed to it and would have begged and pleaded with her not to allow her in there." He spoke to his daughter about his concerns about the tigers "almost every time" he saw her.

Kelly Hranicky told the jury Lauren was a very obedient child. Villafana agreed. Lauren would not have gone into the tiger cage that evening without Hranicky's permission.

II. THE INDICTMENT AND JURY CHARGE CHALLENGES

Hranicky groups his fourth and fifth issues together. He complains that the trial court, not the prosecutor, physically interlineated amending language on the face of the indictment. He asserts that the amended indictment did not provide him ten days' notice before trial and charged a different offense than the original. He also argues he was entitled to ten days' notice between the State's second and third amendments. In his first issue, Hranicky contends the trial court abused its discretion in denying his motion to quash the indictment. In his sixth issue, he urges that the trial court erroneously charged the jury in the disjunctive when the State alleged in the conjunctive in the indictment.

A. Procedural Background

The original indictment alleged:

On September 8, 1999, Hranicky filed a motion to quash the indictment, claiming:

the indictment fails to allege an offense with the degree of certainty that would give the defendant notice of the particular offense with which he is charged, fails to inform the defendant of the nature and cause of the accusation against him, and fails to state facts sufficient to ensure a bar to a subsequent prosecution for the same offense. Specifically, the indictment does not give notice of the reckless or negligent acts which allegedly caused the injury to a child. The allegation that "allowing" a child to enter a cage is criminal conduct does not give fair notice of the act defendant committed.

On March 2, 2000, the State filed a motion for leave to amend the indictment. The trial court granted the motion on March 16, 2000. The order read:

The indictment is amended by omitting the word "Siberian," by changing the word "Tigers" to "tigers," and by changing "his" to "its" and the indictment will read in part ". . . cage occupied by two (2) tigers wherein one of the said tigers did attack LAUREN CASEY VILLAFANA by biting her and by grabbing her about the neck with its mouth. . ." in the charging paragraph.

In open court, the trial court directed the prosecutor in interlineating the amended language. This first amendment to the indictment was not responsive to Hranicky's motion to quash.

On April 6, 2000, Hranicky filed a brief in support of his motion to quash. The State responded on April 17, 2000. On April 19, 2000, the State filed a second motion for leave to amend the indictment:

by inserting into the indictment after the words "two (2) tigers" the following: ", by allowing the said LAUREN CASEY VILLAFANA to enter a cage occupied by two (2) tigers, by asking and directing her to assist the defendant in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage. . . ."

On May 8, 2000, before the trial court held a hearing on the State's second motion to amend, the State filed a third motion, this time seeking to amend the indictment:

by inserting into the indictment after the words "two (2) tigers" the following: ", by asking and directing her to assist the said BOBBY LEE HRANICKY in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage. . . ."

On May 11, 2000, after a hearing, the trial court ordered the indictment to be amended again, so that as amended it read in its entirety:

BOBBY LEE HRANICKY on or about the 6th day of June, A.D. 1999, and anterior to the presentment of this Indictment, in DeWitt County, Texas, did then and there recklessly and with criminal negligence by an act, cause serious bodily injury to LAUREN CASEY VILLAFANA, a child, by allowing the said LAUREN CASEY VILLAFANA to enter a cage occupied by two (2) tigers, by asking and directing her to assist the said BOBBY LEE HRANICKY in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage wherein one of the said tigers did attack LAUREN CASEY VILLAFANA by biting her and by grabbing her about the neck with his mouth and did thereby cause serious bodily injury to the said LAUREN CASEY VILLAFANA.

In open court on May 11, 2000, in the presence of all parties after the trial court granted the State's motion to amend, the trial judge physically interlineated the amendments on the face of the indictment. Hranicky did not object to the procedure at the time.

Also at the May 11th hearing on the State's motion to amend, defense counsel referenced Hranicky's motion to quash, stating:

Judge Kilgore ruled or considered – had under advisement the motion to quash. As a result of a – basically, a conditional ruling on our motion to quash, that is, he basically said, I think the indictment as written fails to give adequate notice under due process of what's charged. The State amended the indictment a second time.

As a result, the trial court did not hear the motion to quash on May 11. Hranicky re-asserted the motion as a pretrial matter on May 22, 2000. At that time, he also objected to the procedure by which the trial judge had interlineated the State's amendments on the face of the indictment. Finally, he objected that the May 11 amendment did not give him the requisite ten days' notice. The trial court denied the motion to quash and overruled Hranicky's procedural objections. The jury panel was seated and sworn that day.

B. The Indictment Issues

1. Interlineation

"All amendments of an indictment or information shall be made with the leave of the court and under its direction." Tex. Code Crim. Proc. Ann. art. 28.11 (Vernon 1989). Physical interlineation of the original indictment is an acceptable means of effecting an amendment to an indictment. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). Article 28.11 does not specify who physically must make the interlineation. However, the court of criminal appeals expressed no concern when analyzing an interlineation to an amendment that "was apparently done by the trial court, although the initials [were] not entirely clear." Wright v. State, 28 S.W.3d 526, 531 n.4 (Tex. Crim. App. 2000).

We are not troubled by the procedure, either. Hranicky "need go no further than the 'face of the charging instrument' itself to be informed" of the charges against him, regardless of who wrote the amendments. See Knapp v. State, 942 S.W.2d 176, 184 (Tex. App.–Beaumont 1997, pet. ref'd.) (quoting Ward v. State, 829 S.W.2d 787, 793 n.14 (Tex. Crim. App. 1992)). Moreover, we do not see how the involvement of the trial judge in making the interlineation personally instead of directing the prosecutor to do it affected Hranicky's substantial rights. See Tex. R. App. P. 44.2(b). We hold harmless any error in the trial judge's personal interlineation of the amendment on the face of the indictment. See id.

2. Notice

"On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information." Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989). The computation of deadlines provided in the code of criminal procedure is controlled by the code construction act. Scott v. State, 634 S.W.2d 853, 854-55 (Tex. Crim. App. [Panel Op.] 1982). In computing a period of days, we exclude the first day. Tex. Gov't Code Ann. § 311.014(a) (Vernon 1988). We include the last day. Id. If the last day of any period is a Saturday, Sunday, or legal holiday, we extend the period to include the next day that is not a Saturday, Sunday, or legal holiday. Tex. Gov't Code Ann. § 311.014(b) (Vernon 1988).

A trial on the merits commences when jeopardy attaches. Carpenter v. State, 952 S.W.2d 1, 6 (Tex. App.–San Antonio 1997), aff'd, 979 S.W.2d 633 (Tex. Crim. App. 1998). Jeopardy attaches when a jury is impaneled and sworn. Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.–Corpus Christi 1994, no pet.). The trial court interlineated the amendment on the face of the indictment on May 11, 2000. Excluding the first day and including the last, the tenth day fell on Sunday, May 21, 2000. Hranicky argues that section 311.014(b) extends the tenth day to Monday, May 22, 2000, the day the trial started with the impanelment and swearing of the jury. Thus, he concludes, the amendment gave him only nine days' notice before trial, not ten. Finally, he argues that violation of article 28.10(a) is reversible error not subject to a harm analysis, citing Sodipo v. State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1990).

However, Sodipo held that amendments on the date of trial violated subsection (b) of article 28.10, not subsection (a). See State v. Toney, 979 S.W.2d 642, 646 (Tex. Crim. App. 1998) (citing Sodipo, 815 S.W.2d at 554). The Sodipo court held that the error was not subject to a harm analysis. Sodipo, 815 S.W.2d at 554. Conducting a harm analysis, the court of criminal appeals reasoned, prevents giving effect to the full meaning and intent of an unambiguous statute. Toney, 979 S.W.2d at 646 (citing Sodipo, 815 S.W.2d at 554.).

However, subsection (a) of article 28.10, unlike subsection (b), is subject to a harm analysis:

The thrust of appellant's argument is that because he was not properly notified of the amendment to the indictment, he was entitled to no less than a ten-day period to address the change and prepare for trial. We need not determine whether the amendment to the indictment was indeed effective or whether the trial court erred in denying appellant ten days to prepare for trial. Rather, we hold that appellant was not harmed by these events. See Tex. R. App. P. 44.2; Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).

Wright, 28 S.W.3d at 531-32. Likewise, we are unpersuaded that the timing of the amendment here affected Hranicky's substantial rights. See Tex. R. App. P. 44.2(b). Only the calculation mandated by the interplay of article 28.10(a) with section 311.014(b) permits Hranicky to argue that the amendment gave him less than ten days' notice. In point of calendar fact, he received the full ten days. We hold harmless any error in the timing of the amendment. See Wright, 28 S.W.3d at 531-32.

Also within the argument under his fourth and fifth issues, Hranicky asserts that the original indictment charged him with an omission. The amendment, he argues, improperly changed the offense to an act, entitling him to a re-indictment. "An indictment may not be amended over the defendant's objection as to form or substance if the amended indictment charges an additional or different offense or if the substantial rights of the defendant are prejudiced." Tex. Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989).

We first note that a "different offense," as article 28.10(c) uses the term, means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991). Injury to a child by act and injury to a child by omission are included in the same statutory offense. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003)). The original indictment charged Hranicky with reckless injury to a child by an act by allowing Lauren to enter the tiger cage. Hranicky sought to quash the indictment, complaining that the State did not provide adequate notice to him of the reckless act it relied on in charging him. The State amended to include specific allegations of the reckless acts it intended to prove. We conclude that the amendment did not allege a different or additional offense. See Flowers, 815 S.W.2d at 728.

Nonetheless, even if an amendment did not charge an additional or different offense, it may be objectionable if it prejudices substantial rights of the accused. Flowers, 815 S.W.2d at 729. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). To determine if a substantial right has been violated, we look retrospectively and review the record. Flowers, 815 S.W.2d at 729. On this record, we cannot conclude that the amendment prejudiced Hranicky's substantial rights.

Further, we note that the law of invited error estops a party from making an appellate error of an action it induced. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999); Gonzalez v. State, 115 S.W.3d 278, 286 (Tex. App.–Corpus Christi 2003, pet. ref'd). We conclude that Hranicky is estopped from complaining that the State amended the indictment to include the specific allegations of recklessness he requested. See Prystash, 3 S.W.3d at 531; see also Carpenter, 952 S.W.2d at 7 (finding amendment that conformed to accused's complaint was invited error and precluded appellant from complaining about it on appeal).

Finally, also within the argument following his fourth and fifth issues, Hranicky complains he did not receive ten days' notice between the State's second and third amendments. He argues he is entitled to adequate time to compare the amendments and determine if they affect his substantial rights. He notes that a motion to amend cannot be served on the accused at the hearing on the motion, implying the contemplation of some right to preparation time. He suggests that ten days is a reasonable time. Hranicky cites no authority that requires the State to provide the accused study time to compare amendments. We have found none. We decline Hranicky's invitation to impose a timing requirement on the State's right to sequentially amend a charging instrument.

We overrule Hranicky's fourth and fifth issues. We turn to his motion to quash.

3. Motion to Quash

In his first issue, Hranicky asserts that the indictment, even as amended, does not allege an offense. He argues that the State's use of the word "allowing" in the indictment charged him with an omission, not an act. Reckless injury to a child is an act of commission, he contends, not omission. Injury of a child by omission requires an allegation in the indictment that the accused had a duty to act. See Hawkins v. State, 910 S.W.2d 176, 179 (Tex. App.–Fort Worth 1995, no pet.). Hranicky concludes that the trial court should have quashed the indictment and dismissed the charges against him.

a. Standard of Review

This Court reviews a trial court's ruling on a motion to quash an indictment under an abuse-of-discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981) (en banc); Hankins v. State, 85 S.W.3d 433, 436 (Tex. App.–Corpus Christi 2002, no pet.). As a general rule, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). The State need not allege facts that are merely evidentiary in nature. Bynum v. State, 767 S.W.2d 769, 778 (Tex. Crim. App. 1989).

b. Recklessness

An accused is entitled to notice of the acts or omissions the State alleges the accused committed. Daniels v. State, 754 S.W.2d 214, 217 (Tex. Crim. App. 1988). When recklessness is an element of an offense, the charging instrument must allege, with reasonable certainty, the acts relied on to constitute recklessness. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). Article 21.15 imposes two requirements on a charging instrument alleging reckless misconduct. Hankins, 85 S.W.3d at 436 (citing State v. McCoy, 64 S.W.3d 90, 92 (Tex. App.–Austin 2001, no pet.)). First, the indictment must allege the act or acts relied on to constitute the forbidden conduct committed with recklessness. Hankins, 85 S.W.3d at 436. Second, the indictment must allege the acts or circumstances relied on to demonstrate that the forbidden conduct was committed in a reckless manner. Id. "[I]n no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence." Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989); see Hankins, 85 S.W.3d at 437.

Here, the amended indictment alleged what acts constituted the forbidden conduct by alleging the acts of:

asking and directing her to assist [him] in the cage, and by nodding his head in the affirmative when [she] requested to enter the cage, and by verbally giving [her] permission to enter the cage, and by walking towards [her] to make sure a tiger did not go into the containment area and closed the door after she entered the cage.

We find that the indictment, as amended, alleged acts the State relied on to constitute the forbidden conduct Hranicky committed with recklessness. See Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989); see also Hankins, 85 S.W.3d at 436. Further, the amended indictment alleged not merely that Hranicky acted recklessly in causing serious bodily injury to the child, but that he did so by allowing her to "enter a cage occupied by two (2) tigers." We also find that the indictment, as amended, gave sufficient notice to Hranicky of the reckless manner in which he engaged in the prohibited conduct. See Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989); see also Hankins, 85 S.W.3d at 436.

c. Act or Omission

An "act" is "a bodily movement, whether voluntary or involuntary and includes speech." Tex. Pen. Code Ann. § 1.07(a)(1) (Vernon 2003). An "omission" is a failure to act. Tex. Pen. Code Ann. § 1.07(a)(34) (Vernon 2003). For his proposition that the indictment charges an omission and not an act and is therefore fatally defective, Hranicky relies on Herring v. State, 633 S.W.2d 905, 909 (Tex. App.–Dallas 1982), aff'd on other grounds, 659 S.W.2d 391 (Tex. Crim. App. 1983). The State charged the accused in Herring with "allowing" another man to touch his genitals. Id. The court of appeals found that the charging instrument charged the accused with not preventing the touching. Id. at 909. Since not preventing the touching is not an offense, the allegations did not charge a penal offense. Herring v. State, 659 S.W.2d 391, 392 (Tex. Crim. App. 1983) (en banc).

Here, the State did not charge Hranicky with failing to prevent Lauren's entry into the tiger cage. As amended, the indictment charged Hranicky with acts that granted Lauren access to the cage. The appellants in Hill v. State made an argument similar to Hranicky's. See Hill v. State, 881 S.W.2d 897, 901 (Tex. App.–Fort Worth 1994), aff'd, 913 S.W.2d 581(Tex. Crim. App. 1996). The State charged the Hills, parents of a 13-year-old boy, with intentional injury to a child by omission. At trial, the State proved they kept their son chained up and denied him food as punishment. Id. at 901. The son eventually starved to death. Id. at 903. On appeal, the Hills asserted that the State charged an omission but proved only their actions. Id. at 901-02. The court of appeals disagreed, characterizing the "appellant's argument [as] simply a battle waged in semantics." Id. at 902. Even though the evidence "may have been sufficient to support a conviction for injury to a child by actions," the Hill court concluded, "it does not prevent the State from establishing the offense of injury to a child by omission." Id. The State proved that the Hills acted in restraining their child and also failed to act by not providing adequate nourishment. Id. at 902-93.

Applying the rationale of Hill to this case, the State had the option of choosing whether to charge Hranicky with injury to a child by act or omission. See id. While there may be sufficient evidence to support a conviction of injury to a child by omission, it does not prevent the State from establishing the offense of injury to a child by action. See id. Thus, while Hranicky might have failed to act by not preventing Lauren's entry into the tiger cage, he also acted by asking her to assist him in the cage, or by affirmatively giving her permission to enter the cage by either nodding his head, verbally granting entry, or by closing the gate after Lauren entered the cage. See id. We conclude that the indictment, as amended, charged Hranicky with reckless acts, not an omission. Accordingly, it was unnecessary for the State to allege Hranicky had a duty to act.

Finally, we note that the amended indictment substantially tracks the language of section 22.04 of the penal code. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003)). Alternate pleading of the differing methods of committing an offense may be charged in one indictment. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

We find that the amended indictment was sufficient to apprise Hranicky of the offense with which he was charged. See Daniels, 754 S.W.2d at 217. We also find that the amended indictment set forth in plain and intelligible language sufficient information to enable Hranicky to prepare his defense. See id. Accordingly, we hold that the trial court did not abuse its discretion in denying his motion to quash. See Hankins, 85 S.W.3d at 436. We overrule Hranicky's first issue.

C. The Jury Charge

In the relevant portion of the charge, the trial court asked the jury if Hranicky:

did then and there recklessly, by an act, cause serious bodily injury to Lauren Casey Villafana, a child, by allowing the said Lauren Casey Villafana to enter a cage occupied by two (2) tigers, by asking or directing her to assist the said Bobby Lee Hranicky in the cage, or by nodding his head in the affirmative when Lauren Casey Villafana requested to enter the cage, or by verbally giving Lauren Casey Villafana permission to enter the cage, wherein . . . .

[Emphasis added.] The jury charge tracked the allegations in the amended indictment that found support in the evidence. The trial court may charge the jury in the disjunctive even if the indictment alleges in the conjunctive. See Kitchens, 823 S.W.2d at 258. We hold there is no error in the disjunctive charge. See id. We overrule Hranicky's sixth issue.

III. SUFFICIENCY ANALYSES

In issues two and three, Hranicky challenges the legal and factual sufficiency of the evidence to support his conviction. We first address the standards and scope of our legal-sufficiency review.

A. Legal-Sufficiency Analysis

1. Legal-Sufficiency Standard and Scope of Review

A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).

Legal sufficiency in this case is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "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 was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex. App.–Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). It also may accept portions of a witness's testimony and reject others. Id.; Butts, 835 S.W.2d at 151.

If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

2. The Hypothetically Correct Jury Charge
One of the ways a person commits injury to a child is by recklessly or with criminal negligence, by act, causing a child serious bodily injury. Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003)). Therefore, the hypothetically correct jury charge for this case, as modified by the amended indictment, would ask the jury if Hranicky: (1) recklessly or with criminal negligence, (2) asked or directed Lauren to assist him in the cage, or (3) nodded his head in the affirmative when Lauren requested to enter the cage, or (4) verbally gave Lauren permission to enter the cage, (5) wherein one of the tigers did attack Lauren by biting her about the neck with its mouth; (6) causing serious bodily injury to Lauren.

Injury to a child is a "result-oriented" or "result of conduct" offense. Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990); Alvarado v. State, 704 S.W.2d 36, 38-39 (Tex. Crim. App. 1985); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. [Panel Op.] 1980); Patterson v. State, 46 S.W.3d 294, 301 (Tex. App.–Fort Worth 2001, no pet.). Therefore, the culpable mental state relates to the result of the conduct and not to the nature or the circumstances surrounding the conduct. Haggins, 785 S.W.2d at 828. The definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state should be limited to the result of the conduct, rather than the nature or the circumstances surrounding the conduct. Banks v. State, 819 S.W.2d 676, 678-79 (Tex. App.–San Antonio 1991, pet. ref'd).

A person acts recklessly with respect to the result of conduct when the person is "aware of but consciously disregards a substantial and unjustifiable risk" the result will occur. Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). Further, "the risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. Criminal responsibility arises if the result would not have occurred but for the conduct, "operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Tex. Pen. Code Ann. § 6.04(a) (Vernon 2003).

For a concurrent cause to excuse liability, the accused's conduct must be clearly insufficient, by itself, to produce the result. Id.; Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). Further, the concurrent cause must be clearly sufficient, by itself, to produce the result. Tex. Pen. Code Ann. § 6.04(a) (Vernon 2003); Robbins, 717 S.W.2d at 351.

A fact finder may infer the accused's mental state from the acts, words, and conduct of the accused and from the circumstances surrounding the acts in which the accused engaged. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). An accused rarely facilitates conviction by admitting to the requisite intent or knowledge. It seldom is possible to prove by direct evidence what an accused intended or knew at the time of the incident. Thus, the fact finder usually must infer intent and knowledge from circumstantial evidence rather than direct proof. See Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.–Dallas 1987), aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989); see also Hernandez, 819 S.W.2d at 810; Dillon, 574 S.W.2d at 94-95.
Further, the fact finder may draw an inference of guilt from the accused's acts, words, and conduct before, during, and after the incident. See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (presentation of false identification during arrest indicated "consciousness of guilt" and awareness of need to conceal identity from law enforcement); see also Butler v. State, 936 S.W.2d 453, 459 (Tex. App.–Houston [14th Dist.] 1996, pet. ref'd) (corrected op.) (giving false identification and engaging in violent outburst after arrest indicated accused's "guilty knowledge" of assault for which he had been arrested).

In his second issue, Hranicky challenges the sufficiency of the evidence on legal-sufficiency grounds. With a hypothetically correct jury charge in mind that reflects the correct instructions and elements of the offense as modified by the indictment, we turn to our legal-sufficiency analysis.

3. Measuring the Legal Sufficiency of the Evidence

against the Hypothetically Correct Jury Charge

Hranicky focuses his legal-sufficiency argument on causation. He contends that the tiger's attack was a concurrent cause sufficient by itself to produce the result. Conviction of a result-oriented offense cannot be based solely on a finding that the accused intentionally or knowingly engaged in conduct that happened to cause the result. Banks, 819 S.W.2d at 680. Instead, "what matters is that the conduct (whatever it may be) is done with the required culpability to effect the result the legislature has specified." Traxler v. State, 712 S.W.2d 268, 269 (Tex. App.–Beaumont 1986, no pet.). With a result-oriented offense, a person is criminally responsible if the result would not have occurred "but for" the actor's conduct. Tex. Pen. Code Ann. § 6.04(a) (Vernon 2003); Umoja v. State, 965 S.W.2d 3, 8-9 (Tex. App.–Fort Worth 1997, no pet.). "But for" causation can be established in two ways: (1) when the accused's conduct is clearly sufficient to produce the result; or (2) when the accused's conduct plus another cause is sufficient to produce the result. Robbins, 717 S.W.2d at 351.

Hranicky relies on Patterson, which states that convictions cannot stand merely because a defendant is associated with the actual perpetrator of a crime. See Patterson, 46 S.W.3d at 294. In Patterson, the defendant's boyfriend kidnapped her children and murdered one of them. Id. at 298-99. The defendant delayed notifying authorities and withheld her suspicion that her boyfriend had taken them. Id. She was convicted of knowingly causing injury to a child by omission for failing to aid and protect her children while they were being kidnapped, for failing to report to law enforcement authorities and summon aid immediately when she knew the children had been kidnapped, or for failing to report to the authorities that her boyfriend had kidnapped the children. Id. at 299. The appellate court reduced her conviction to that of reckless injury to a child after finding there was no evidence that she knew "to a reasonable certainty that she could stop [the boyfriend] and thus prevent injury to the children." Id. at 303-04.

We first distinguish Patterson by noting that the State had charged the accused in that case with an omission. Id. at 299. Further, the State charged her with intentional injury to a child, not recklessness. Id. The facts of this case present a circumstance more like that in Traxler. See Traxler, 712 S.W.2d at 269. There, the accused kept, at a home occupied by a child, a dog known to be vicious and dangerous to humans. Id. at 269. The dog bit the child about the head and neck. Id. The defendant was found guilty of reckless injury to a child. Id. In one of his issues on appeal, he contended that his conduct was insufficient to produce the injuries. Id. The court of appeals overruled his causation issue, holding that an animate object, such as a dog, could be the manner and means for accomplishing an assault. Id. at 270 (citing Garret v. State, 619 S.W.2d 172, 175 (Tex. Crim. App [Panel Op. 1981)).

Applying Traxler to the facts of this case, a tiger, like a dog, is an animate creature that could be the manner and means for accomplishing injury to a child. See Traxler, 712 S.W.2d at 270. As with the defendant in Traxler, Hranicky was aware of the risk. See id. at 269. The dog was known to be dangerous to humans; the tiger was known to view children as prey. See id. Accordingly, we find that Hranicky's actions, in conjunction with the tiger, were the "but for" causes of Lauren's death. See Robbins, 717 S.W.2d at 351. Viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Hranicky caused Lauren's death. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. Accordingly, we hold the evidence legally sufficient to support Hranicky's conviction for reckless injury to a child. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. We overrule Hranicky's second issue.

B. Factual-Sufficiency Analysis

1. Factual-Sufficiency Standard and Scope of Review

This Court measures the factual sufficiency of the evidence in this case against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref'd); see Malik, 953 S.W.2d at 240. We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual- sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.

We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97. In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.– Houston [14th Dist.] 2003, pet. denied); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

2. Measuring the Factual Sufficiency of the Evidence

against the Hypothetically Correct Jury Charge

a. The Main Factual-Sufficiency Arguments

In his factual-sufficiency challenge, Hranicky reasserts the causation issue he raised in his legal-sufficiency claim. He also raises the issue of intent, arguing that his conduct does not represent a gross deviation from the standard of care.

(1) Awareness of Risk

Viewing all the evidence neutrally, favoring neither the prosecution nor Hranicky, in addition to the evidence analyzed in our legal-sufficiency analysis, the record reflects that each of the witnesses who came into contact with Hranicky in connection with the tigers testified they told him that: (1) large cats, even those raised in captivity, are dangerous, unpredictable wild animals; and (2) children were particularly at risk from adolescent and adult tigers, especially males. Expert animal handlers whom Hranicky consulted and written materials he claimed to have read warned Hranicky that the risks increased with adolescent male tigers, with more than one person in the cage, with more than one tiger in the cage, at dusk during the animals' heightened activity period, and when diminishing one's size by sitting or crouching on the ground. They each cautioned that tigers attack swiftly, without warning, and are powerful predators.

Further, Hranicky's initial story to Sapp that Lauren had sneaked into the cage evidences Hranicky's awareness of the risk. The jury also could have inferred his awareness of the risk when he concealed from Sapp that the family was purchasing the tigers for Lauren. See Felder, 848 S.W.2d at 98. The jury also could have inferred Hranicky's consciousness of guilt when he gave several different versions of what happened. See id.

On the other hand, the record shows that before buying the tigers, Hranicky researched the subject and conferred with professionals. He received training in handling the animals. Further, Kelly Hranicky testified she also understood the warnings about not allowing children in the tiger cage to apply to strangers, not to Lauren. Hranicky told the grand jury he did not think the warnings applied to children, like Lauren, who had helped raise the animal. He said he had seen other handlers, including Sapp and McAda, permit Lauren and other children to go into tiger cages. He testified Currer told him it was safe to permit children in tiger cages. Further, while the State's witness described zoo policies for handling tigers, those policies were not known to the general public. Finally, none of the significant figures in Lauren's life fully appreciated the danger the tigers posed for Lauren. Hranicky was not alone in not perceiving the risk.

(2) Substantial and Unjustifiable Risk and Gross Deviation

from the Standard of Care

Hranicky testified to the grand jury he did not view the risk to be substantial because he thought the tigers were domesticated and had bonded with the family. He claimed not to have any awareness of any risk. The tigers were acting normally. Lauren had entered the cage numerous times to pet the tigers with no incident. Further, he asserted, other than a minor scratch by the male as a cub, the tigers had never harmed anyone. Thus, he argues, he had no knowledge of any risk.

Viewing all the evidence neutrally, favoring neither Hranicky nor the State, we find that proof of Hranicky's guilt of reckless injury to a child is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593-94. Nor do we do not find that the proof of his guilt is greatly outweighed by contrary proof. See id. We overrule Hranicky's third issue.

IV. AUTOPSY PHOTOGRAPHS

In his seventh issue, Hranicky contends the trial court abused its discretion by allowing autopsy photographs into evidence. The State introduced the photographs during the testimony of Dr. Robert J. Bayardo, chief medical examiner for Travis County. Bayardo performed the autopsy on Lauren.

A. Bayardo's Testimony

Using the autopsy photographs, the medical examiner described Lauren's injuries. She had a large tear in her throat and multiple puncture wounds on her neck from the tiger's canine teeth. She had scrapes and bruises on her head and face. She also suffered superficial internal puncture wounds from the tiger's front fangs, a "through and through" wound on her left lower lip, another wound under her chin, and a tear wound above her left clavicle. She also had sustained smaller incisor tip wounds in between the larger wounds and on the back of her neck and upper back. Her legs showed multiple scrapes on the knees and feet consistent with "somebody being dragged over rough pavement." Bayardo described the throat wound as being two inches in length and penetrating all the way down to the spine. The child's spine had been snapped and the spinal cord severed. Bayardo did not believe she survived the severance of her spinal cord. Lauren died from "tiger bites of the neck, which fractured the neck, transected the spinal cord, and punctured the throat."

B. Preservation of Error

By motion in limine and objection, Hranicky sought to keep autopsy photographs of Lauren out of evidence. He first objected that the photographs had no relevance to any contested issue of fact in the case. He asserted he tendered a stipulation of evidence of the only issues to which the photographs were relevant, that is, that the tiger attacked Lauren, caused serious bodily injury by biting her in the neck, and killed her. He also argued that the photographs were more prejudicial than probative. See Tex. R. Evid. 403.

The trial court sustained Hranicky's objections to four photographs and initially overruled them as to three others. Bayardo testified from the three admitted photographs in explaining Lauren's fatal wounds. He showed the photographs to the jury during his testimony, apparently from the witness chair. He explained to the jury that one of the photographs depicted the large wound to Lauren's neck. Another showed the puncture wounds in Lauren's body and smaller wounds from the tiger's front fangs. The third portrayed the scrapes on Lauren's knees, ankles, and feet inflicted when the tiger dragged her across the cage. At the conclusion of the medical examiner's testimony, the State moved to publish the photographs to the jury. The trial court denied the State's request.

Later, after the jury had delivered its guilty verdict and before the punishment phase, the trial court struck the photographs from the record. Hranicky did not ask the court to instruct the jury not to consider the photographs for any purpose during the punishment phase. He did not move for a mistrial. On appeal, Hranicky contends the trial court abused its discretion in admitting the photographs into evidence in the first place.

C. Evidentiary Standard of Review

We review a trial court's admission or exclusion of evidence under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Id. at 380. In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Id. A trial court has a "limited right to be wrong." Id. Our inquiry on appeal is whether the result was reached in an arbitrary or capricious manner. Id.

D. Analysis

1. Admissibility

To be admissible, evidence must be relevant. Tex. R. Evid. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). In other words, rule 403 favors the admission of relevant evidence and carries the presumption that relevant evidence will be more probative than prejudicial. Tex. R. Evid. 403; Rivera v. State, 130 S.W.3d 454, 460 (Tex. App.–Corpus Christi 2004, no pet. h.) (citing Phelps v. State, 5 S.W.3d 788, 795 (Tex. App.–San Antonio 1999, pet. ref'd)). In reviewing the trial court's balancing of probative value with prejudice, we reverse the trial court's judgment "rarely and only after a clear abuse of discretion." Rivera, 130 S.W.3d at 460 (citing Montgomery, 810 S.W.2d at 378-80).

2. Relevancy

Evidence is presumed relevant on its face. Resse v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). A photograph is relevant if it is used to show injuries and the cause of death. See Tex. R. Evid. 401; Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000); see Lander v. State, 868 S.W.2d 417, 426 (Tex. App.–Tyler 1993, pet. ref'd) (noting that autopsy or post-autopsy photographs can be used to illustrate injuries and reveal cause of death). "Like other demonstrative evidence, photographs should assist the jury with its decision, whether that be deciding guilt or punishment." Erazo v. State, No. 2206-02, 2004 Tex. Crim. App. LEXIS 1007, at *11 (Tex. Crim. App. June 16, 2004). "A photograph should add something that is relevant, legitimate, and logical to the testimony that accompanies it and that assists the jury in its decision-making duties." Id.

When an accused pleads not guilty to an offense and puts the State to the burden of proving all essential facts, we do not consider the accused's admission of an essential fact in determining the relevancy of any particular piece of evidence. Blackburn v. State, 820 S.W.2d 824, 826 (Tex. App.–Waco 1991, pet. ref'd). Further, we are mindful that where there is room for reasonable disagreement on the issue of relevance, "an appellate court that reverses a trial court's ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court." Montgomery, 810 S.W.2d at 391. We hold that the trial court did not abuse its discretion in finding the three autopsy photographs relevant in the culpability phase of the trial. See id. However, Hranicky's stipulations do factor into our balancing of the probative value of the photographs against their possible prejudicial effects. See Blackburn, 820 S.W.2d at 826.

3. The Balancing of Probative Value with Prejudice

Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. We employ a four-prong test in reviewing a trial court's evidentiary ruling under rule 403: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at *4; Montgomery, 810 S.W.2d at 389-390. In the context of photographs, we also consider the number of photographs, their size, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at *4; Wyatt, 23 S.W.3d at 29. We are not limited to this list. We also consider the availability of other means of proof and the circumstances unique to each individual case. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at *4.

The State argues it offered the photographs to explain the events of June 6, 1999. It also offered the photographs to show from which direction the tiger attacked and what happened to Lauren after the initial attack. Color autopsy photographs that accompany the testimony of a pathologist generally are more probative than prejudicial. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Hranicky argues that: (1) the photographs merely corroborated the medical examiner's testimony; and (2) their probative value was insignificant compared to their inflammatory nature. See id.

We first note that the court of criminal appeals has rejected "the premise that visual evidence accompanying oral testimony is cumulative of the testimony or that it is of insignificant probative value." Id. at 236-37. Next, within his motion in limine with regard to the photographs, Hranicky offered a stipulation that he did not dispute that the tiger attacked Lauren and caused her serious bodily injury that resulted in her death. He stipulated that "the jury can be instructed that the State need not prove the serious bodily injury, the attack by the tiger, or the biting in the throat." Although the photographs may have probative value, they must also assist the jury in deciding a disputed fact issue. Krishnan v. Ramirez, 42 S.W.3d 205, 219 (Tex. App.–Corpus Christi 2001, pet. denied). Hranicky's counsel argued at trial, and continues to argue on appeal, that since Hranicky tendered a stipulation of the evidence as to the only issues to which the photographs may be relevant (that the tiger attacked Lauren, bit her in the neck, and killed her), the photographs' prejudicial effect outweighed their probative value.

However, "stipulation" is a technical term. Article 1.15 of the code of criminal procedure provides that evidence may be stipulated if the defendant consents in writing and waives, in open court, the appearance, confrontation, and cross-examination of witnesses and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statement of witnesses, and any other documentary evidence in support of the judgment of the court. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 1977). Further, the waiver and consent must be approved by the court in writing and be filed with the court's papers of the cause. Id. "However, stipulations, oral or written, in criminal cases where the plea of not guilty is entered before the jury do not have to comply with Art. 1.15." McClain v. State, 730 S.W.2d 739, 742 n.1 (Tex. Crim. App. 1987) (citing Messer v. State, 729 S.W.2d 694, 699 (Tex. Crim. App. 1987)). Stipulations documented in the reporter's record that clearly indicate the trial court considered the stipulations are treated as evidence. Lara v. State, 962 S.W.2d 148, 149-50 (Tex. App.–San Antonio 1998, no pet.).

In Lara, the prosecutor asked the court to take judicial notice of the stipulations. Id. at 149. The stipulations did not appear in the appellate record. Id. Lara argued there was no evidence in the record to support the trial court's judgment. Id. However, the reporter's record showed that the trial court considered the stipulations. Id. at 150. Accordingly, the court of appeals held the evidence sufficient to support the State's allegation. Id. at 151.

Here, the jury charge did not instruct the jury that the parties had stipulated to and did not contest the facts that Hranicky argues were removed from contention by his stipulation. On the other hand, we note that "serious bodily injury," to which Hranicky argues he stipulated, was defined in the jury charge. Also, the other elements of the State's case Hranicky argues were covered by the stipulation also appear in the jury charge. Nonetheless, we conclude that the trial court considered the stipulation offered in Hranicky's motion in limine, since there was no dispute about how the child died. The question is whether the probative value of the photographs outweighed their prejudicial effect.

Photographs that prove death have probative value. Juhasz v. State, 827 S.W.2d 397, 402 (Tex. App.–Corpus Christi 1992, pet ref'd). Further, photographs sufficiently tied to the facts of the case that aid the jury in resolving jurors' questions are probative. Krishnan, 42 S.W.3d at 219. Here, the photographs aided the medical examiner in explaining the manner of Lauren's death. The photographs assisted the jury in visualizing the events. They depicted horrific wounds on the nude body of a child and were no doubt disturbing to the jurors. Nonetheless, they also showed how small Lauren was in comparison to the size of the wounds and teeth marks left by the tiger. Finally, the photographs illustrated the power and ferocity of the tiger more than any mere verbal description could.

4. The Potential to Impress the Jury in Some Irrational Yet Indelible Way

When images appeal to a jury's emotions and encourage the jurors to make a decision on an emotional basis, the evidence weighs strongly in favor of exclusion. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at *22; Resse, 33 S.W.3d at 242. In Resse, the trial court admitted a photograph of the victim and her unborn child lying in a casket together. Resse, 33 S.W.3d at 239. The photograph did not show the manner or method of the victim's death. Id. at 240. It did not show the way or process by which the victim was killed. Id. One cannot tell from the picture how the victim died. Id. at 242 ("The unborn child in the photograph appears tiny, innocent, and vulnerable."). The court held that the photograph had an impact that encouraged the jury to make a decision on an emotional basis and not on the basis of the other relevant evidence introduced at trial. Id.

Unlike Resse, the photographs here show the manner of the victim's death. The jury was undoubtedly affected emotionally by the photographs. We cannot conclude, however, that the photographs had such an impact that the jury's decision was made on an emotional basis and not on the basis of the other relevant evidence introduced at trial. See id. We note that the trial court minimized the emotion effect of the photographs by limiting them in number and by not permitting the State to publish the photographs to the jury.

5. The Time Needed to Develop the Evidence

When the State takes little time to introduce photographs, admissibility is favored. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at *22-*23; Resse, 33 S.W.3d at 242-243. Here, it took the State very little time to lay the foundation for the photographs and introduce them into evidence. See Reese, 33 S.W.3d at 242. The State introduced them during the medical examiner's testimony as demonstrative evidence to assist visually in the witness's explanation of Lauren's wounds. The medical examiner's testimony covered 17 pages in the record. The presentation of evidence in the whole trial spanned over 360 pages. Thus, only five percent of the jury's time was occupied with the testimony about the photographs. Therefore, the jury's attention was not significantly diverted by the photographs because of the time involved in presenting the medical examiner's testimony. See Horton v. State, 986 S.W.2d 297, 303 (Tex. App.–Waco 1999, no pet.) (holding that 18 pages out of 332 pages of evidence did not significantly divert jury's attention from central issue).

6. The State's Need for the Evidence

We ask three questions when analyzing the State's need for the evidence: "(1) Does the proponent have other available evidence to establish the fact of consequence that the [photograph] is relevant to show? (2) If so, how strong is that other evidence? (3) And is the fact of consequence related to an issue that is in dispute?" Erazo, 2004 Tex. Crim. App. LEXIS 1007, at*23; Reese, 33 S.W.3d at 242.

In Resse, the State had other photographs, admitted during the culpability phase, which served proper purposes. Resse, 33 S.W.3d at 242. The State offered and the jury saw photographs from the crime scene and from the autopsies of the victims. Id. The court of appeals held, because the State had other photographs that would have been proper to use in depicting the death of the victims, that the balance weighed in favor of excluding photographs depicting the victim and her unborn child in a coffin. Id. at 242-243. Similarly, in Erazo, the photograph at issue depicted a fetus on a table. Erazo, 2004 Tex. Crim. App. LEXIS 1007, at*24-*25. Testimony from the medical examiner and photographs of the victim had established during the guilt phase that the victim was pregnant and that the fetus had died. Id. at *24. Furthermore, the facts of consequence that the photograph was admitted to show were not in dispute. Id. at *24. Therefore, the court of criminal appeals concluded that the photograph of the fetus was inadmissable. Id. at *24-*25.

Here, the State offered the autopsy photographs to show the manner or method of Lauren's death. Resse held similar photographs admissible. Resse, 33 S.W.3d at 242. Although testimony from the medical examiner had established the fact that Lauren died, the burden rested with the State to prove all the elements of the crime. The strength of the evidence available to the State was not as strong without the photographs.

Finally, we note that the photographs were not enlargements but small prints. The medical examiner did refer to the photographs during his testimony. However, we again note that the trial court did not permit the prosecution to publish the photographs to the jury.

Accordingly, we conclude, through a thorough analysis of the relevant factors, that the autopsy photographs were more probative than prejudicial. We hold that the trial court did not abuse its discretion in admitting the photographs. See Montgomery, 810 S.W.2d at 391. We overrule Hranicky's seventh issue.

V. CONCLUSION

Having overruled each of Hranicky's seven issues, we affirm the judgment and sentence of the trial court.

ERRLINDA CASTILLO

Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.

Bobby Lee Hranicky v. State

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