Affirmed and Memorandum Opinion filed September 28, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00441-CR
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RAQUEL SADE GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1000029
M E M O R A N D U M O P I N I O N
A jury found appellant, Raquel Sade Green, guilty of injury to a child. Appellant was sentenced to seven years= incarceration. In five issues, appellant contends the trial court erred in submitting a jury charge that permitted a non-unanimous verdict, and the evidence is legally and factually insufficient to support the conviction and the affirmative finding of use of a deadly weapon. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.
I. Background
At approximately 2:00 a.m. on September 6, 2004, appellant gave birth to a baby boy in her home. Later that day, appellant was admitted to the hospital for vaginal bleeding. Appellant told the examining physicians she had experienced a miscarriage and flushed the product of the miscarriage down the toilet. Physiological evidence suggested to the doctors that appellant had not experienced a miscarriage, but had undergone a full-term delivery. Despite repeated questioning from one of the physicians about where the baby might be located, appellant responded that she miscarried and flushed the fetus down the toilet. At approximately 10:00 p.m. that night, after a telephone conversation with appellant, appellant=s mother discovered the deceased baby, wrapped in towels in the trunk of appellant=s car.
Doctors Iouri Boiko and Morna Gonsoulin of the Harris County Medical Examiner=s Office conducted an autopsy on the baby=s body and determined the baby was born alive and breathed at least one time before he died. The cause of death was determined to be due to complications of Aprenatal neglect@ or Apara neonatal neglect@ with suffocation and environmental exposure. The medical examiners did not discover any disease or congenital defect that contributed to the baby=s death.
At the conclusion of the guilt-innocence phase, the jury was charged with determining whether appellant intentionally, recklessly, or with criminal negligence, caused serious bodily injury to the baby by not seeking or providing appropriate medical care or assistance, by placing and leaving the baby inside the trunk of a motor vehicle, by suffocating the baby with her hand, or by suffocating the baby with an unknown object, or by a manner and means unknown. The jury found appellant guilty of Arecklessly causing serious bodily injury to a child younger than fourteen years of age.@
II. Jury Charge
In her first issue, appellant contends the trial court permitted a less than unanimous verdict because the jury charge did not instruct the jurors that they must unanimously agree on the theory by which appellant caused serious bodily injury to her child. In analyzing a jury charge issue, our first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we then analyze the error for harm. Id. The degree of harm necessary for reversal depends on whether the defendant preserved error by objection. Id. Reversal is required for jury charge error when the defendant has properly objected to the charge and we find Asome harm@ to the defendant=s rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). When the defendant fails to object or states that she has no objection to the charge, we will not reverse for jury‑charge error unless the record shows Aegregious harm@ to the defendant. Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171. Thus, we review alleged charge error by considering: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).
A person commits the offense of injury to a child if she intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes serious bodily injury to a child. Tex. Pen. Code Ann. ' 22.04 (Vernon Supp. 2006). Appellant contends the jury charge is defective because it authorized a conviction if the jury determined appellant harmed the child by act or omission. Appellant contends the charge permitted a non-unanimous verdict because some of the jurors could have found appellant committed injury to a child through an affirmative act and some of the jurors could have found appellant committed injury to a child by omission.
The Texas Constitution requires jury unanimity in all felony cases, and the Texas Code of Criminal Procedure requires unanimity in all criminal cases. Ngo v. State, 175 S.W.2d 738, 745 (Tex. Crim. App. 2005). While jury unanimity is required on the essential elements of the offense, when the statute in question establishes different modes or means by which the offense may be committed, unanimity is generally not required on the alternate modes or means of commission. Richardson v. United States, 526 U.S. 813, 817B19 (1999); Ngo, 175 S.W.3d at 747. Therefore, if the Legislature intended to make Aact or omission@ in section 22.04 separate elements of the offense, the jury charge in this case is erroneous. On the other hand, if the Legislature intended that Aact or omission@ constitute the means of committing the course of conduct element of injury to a child, the jury charge in this case was proper. The Court of Criminal Appeals has determined that Aact or omission@ are not separate elements of an injury to a child offense about which a jury must be unanimous, but merely alternate means of committing the offense of injury to a child. Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006). Therefore, the jury charge in this case permitting conviction if the jury found appellant acted by act or omission was not erroneous. Appellant=s first issue is overruled.
III. Legal and Factual Sufficiency of the Evidence
In her second and third issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding that she recklessly caused serious bodily injury to the child. In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found every element of the offense beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light and will set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004)
It is undisputed that appellant gave birth to a baby boy at approximately 2:00 a.m. on September 6, 2004, and that by 10:00 p.m. that night the baby was dead. Appellant contends the evidence is insufficient to prove that she caused the baby=s death, either by covering his mouth, placing him in the trunk of the car, or by failing to obtain appropriate post-natal care.
In appellant=s first statement to police officers, she stated that when the baby was born he was not breathing and did not cry. She wrapped the baby in a towel and placed him in the trunk of the car at approximately 7:00 a.m. In her second statement to police officers, appellant changed her story and said that the baby cried for about five minutes after he was born. After the baby stopped crying, appellant wrapped him in a towel and placed him in the car trunk at approximately 3:30 a.m. Appellant then went to work as usual.
Rochelle Clampton, an acquaintance of appellant, testified that she spoke with appellant on the telephone the morning the baby was born. Clampton testified she heard a newborn crying during their first telephone conversation. In their conversation later in the morning, appellant told Clampton that the baby was alive, she had wrapped him in a sheet, and she put him in the car. Clampton further testified that she notified appellant=s mother that appellant had given birth. Appellant=s mother testified that Clampton reported that appellant had experienced a miscarriage. Appellant=s mother picked up appellant from work and took her to the hospital informing the attending physicians that appellant had experienced a miscarriage.
All three physicians who examined appellant at the hospital found appellant=s physical condition inconsistent with her story of experiencing a miscarriage. Each physician determined that the position of appellant=s uterus was consistent with someone who had recently delivered a full-term baby. Dr. Jauo-Chen Huang thought it impossible that appellant could have flushed the fetus down the toilet and repeatedly asked what else appellant could have done with the baby. After talking with appellant later that evening, appellant=s mother ascertained where appellant had left the baby and retrieved him from the trunk of the car. When she found the baby, he was dead.
The medical examiners who conducted the autopsy agreed the child=s cause of death was due to complications of Aprenatal neglect@ or Apara neonatal neglect@ with suffocation and environmental exposure. Dr. Boiko testified that the autopsy revealed the baby was born alive and had breathed at least one time before he died. There was no evidence of external injuries or disease or congenital defect that could have caused the baby=s death. The autopsy further revealed the baby had a tan mucous in its stomach, which was consistent with the mucous that is ordinarily suctioned away from a baby=s mouth at birth. The medical examiners were unable to determine whether suffocation had resulted from a hand being placed over the baby=s mouth, the towels being wrapped too tightly, or the lack of oxygen in the trunk of the car.
Having reviewed all of the evidence both in favor of the verdict and in a neutral light, we find the evidence legally and factually sufficient to support the conviction. The evidence shows appellant gave birth to a live baby boy, who breathed and cried after he was born. There is evidence that she placed her hand over his mouth to prevent her mother from hearing his cries. Further, she wrapped him in towels and placed him in the trunk of a car on a late summer day. By the time the baby was discovered, he was dead. We find a rational trier of fact could have found appellant guilty of injury to a child beyond a reasonable doubt. We further find the evidence supporting the verdict, if taken alone, is not too weak to sustain the finding of guilt beyond a reasonable doubt, and (2) the contrary evidence is not so strong that the State could not have met its burden beyond a reasonable doubt. Appellant=s second and third issues are overruled.
IV. Deadly Weapon Finding
In her fourth and fifth issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding of the use of a deadly weapon. In reviewing these issues, we apply the well-known standards recited above. See Wesbrook, 29 S.W.3d at 111; Zuniga, 144 S.W.3d at 484B85. Appellant contends that because no one witnessed the birth or death of the baby, the jury=s finding of the use of a deadly weapon is not supported by proof beyond a reasonable doubt.
A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon Supp. 2006). An object qualifies as a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001). The deadly character of a weapon may be shown by the character of the wound inflicted. Mixon v. State, 781 S.W.2d 345, 346B47 (Tex. App.CHouston [14th Dist.] 1989) aff=d, 804 S.W.2d 107 (Tex. Crim. App. 1991). When a child is injured while in the care of one person and there are no witnesses as to what occurred to cause the child=s injury, the primary evidence of the manner of use of an object causing injury or death is evidence about the severity, scope, and nature of the child=s injuries. Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.CFort Worth 2005, no pet.).
In this case, the jury was instructed to enter a deadly weapon finding if it found beyond a reasonable doubt that the appellant used or exhibited a deadly weapon, Anamely, the trunk of a motor vehicle, the defendant=s hand, or an unknown object, during the commission of the offense.@ The record reflects that appellant wrapped the baby in a towel or a sheet and placed him in the trunk of the car at some time between one to five hours after his birth. Further evidence reflects that the baby=s death was caused by suffocation and poor neonatal care with environmental exposure. This evidence supports the conclusion that appellant employed the trunk to cause the baby=s death. Not only was the baby exposed to the harsh environment of a motor vehicle trunk in late summer, but he was concealed, thus greatly reducing the possibility that someone might discover him and provide appropriate care. Dr. Boiko of the medical examiners= office testified that under these circumstances, the trunk could serve as a deadly weapon.
Moreover, there was sufficient evidence for the jury to determine that appellant used her hand as a deadly weapon. To support a deadly weapon finding regarding the use of hands, the State must show that the accused=s hands in the manner of their use were capable of causing death or serious bodily injury. Brooks v. State, 900 S.W.2d 468, 472 (Tex. App.CTexarkana 1995, no pet.). One of the causes of death listed was suffocation. Appellant told the police she held her hand over the baby=s mouth to prevent her mother from hearing his cries. Dr. Boiko testified that under these circumstances, appellant=s hand could have been used as a deadly weapon. Having reviewed the evidence in favor of the verdict and in a neutral light, we find legally and factually sufficient evidence to support the jury=s finding that appellant used a deadly weapon. Appellant=s fourth and fifth issues are overruled.
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed September 28, 2006.
Panel consists of Justices Hudson, Fowler, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).