Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00489-CR
Jonathan Paul FINCHER a/k/a Jonathan Fincher,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the Criminal District Court 1, Tarrant County, Texas
Trial Court No. 1250605D
The Honorable Sharen Wilson, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: September 25, 2013
AFFIRMED
Jonathan Paul Fincher was convicted by a jury of injury to a child. On appeal, Fincher
contends: (1) the trial court erred in admitting hearsay statements made by a detective while
interviewing Fincher; (2) the evidence is legally insufficient to support the jury’s finding that
Fincher acted knowingly; and (3) the jury charge omitted a crucial sentence from the definition of
reckless. We overrule Fincher’s issues and affirm the trial court’s judgment.
04-12-00489-CR
BACKGROUND
Fincher was left to care for his girlfriend’s nine-month-old daughter, Serenity. While in
Fincher’s care, Serenity suffered serious head trauma. Fincher gave several different versions of
the events resulting in the injury.
Fincher was indicted for knowingly causing serious bodily injury to a child. At trial,
Fincher sought to establish that he acted recklessly, as opposed to knowingly. The jury found
Fincher guilty of knowingly causing the injury and assessed his punishment at 15 years’
imprisonment and at $10,000 fine.
HEARSAY
In his first issue, Fincher contends the trial court erred in admitting hearsay statements
made by a detective while interviewing Fincher. The detective interviewed Fincher on three
occasions, and the State offered a redacted videotape of the three interviews. Defense counsel
objected to the admissibility of hearsay statements made by the detective during the second and
third interviews. Specifically, defense counsel objected to the detective’s statements referencing:
(1) multiple skull fractures because Serenity suffered only one skull fracture; (2) what the police
officer or CPS heard from the doctors or medical staff; (3) the need for the police to know the truth
regarding what happened to Serenity to assist in her medical treatment; (4) the existence of two
kinds of people, and the jury throwing the book at the kind of person that lies; and (5) Serenity’s
injuries not being accidental.
In his brief, Fincher contends the hearsay statements were not admissible either as adoptive
admissions or as non-hearsay statements offered to show their effect on him during the interviews.
In its brief, the State does not contend the statements were admissible as adoptive admissions.
Instead, the State counters that the statements were not hearsay or, if they were, their admission
was harmless.
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A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of
discretion standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
We uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Id.
“Hearsay” is defined as a “statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID.
801(d). Both Fincher and the State rely on Kirk v. State, 199 S.W.3d 467 (Tex. App.—Fort Worth
2006, pet. ref’d), to support their positions.
In Kirk, the appellant argued statements made by a detective while taking the appellant’s
statement were inadmissible hearsay, while the State asserted the statements were not hearsay
because they were not offered to prove the truth of the matter asserted. 199 S.W.3d at 478. The
detective’s statements being challenged by the appellant were the following:
“There is no evidence that exists right now that Landon was involved in
this,” and “I feel like maybe you’ve been a little untruthful with me. We went out
and we picked up Landon….” … “If we had a person who — if we had a person
who was telling me that they saw you walking alone to this house. What would
you think about that…. If we had a person that saw you leaving that house with
that vehicle what would you think of that?”
Id. at 478-79. The Fort Worth court held “the trial court did not abuse its discretion in admitting
the statements because they were not offered to prove the truth of the matter asserted.” Id. at 479.
The court then explained the statements were questions that the detective asked the appellant and
were admitted to give context to the appellant’s replies. Id. The court further explained that
redacting the detective’s statements from the recordings so that the appellant’s statements still
made sense to the jury would be difficult. Id.
Fincher relies on the Fort Worth court’s explanation to contend a detective’s statements
during an interview are non-hearsay only if they are admitted “to give context to Appellant’s
replies.” Id. This contention ignores the Fort Worth court’s actual holding that the statements
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were admissible because they were not offered to prove the truth of the matter asserted; therefore,
they did not meet the definition of “hearsay.” Id. Similarly, the detective’s statements in this case
were not offered to prove the truth of the matter asserted, but simply as statements made during
Fincher’s interviews in an effort to ascertain the true cause of Serenity’s injuries. Because the
detective’s statements were not hearsay, the trial court did not abuse is discretion in overruling
Fincher’s hearsay objection. Fincher’s first issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Fincher contends the evidence is insufficient to support the jury’s
finding that he acted knowingly.
In appeals in criminal cases, the only standard a reviewing court applies in reviewing
sufficiency challenges is the Jackson v. Virginia legal sufficiency standard. Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we view all of the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Adames v. State, 353 S.W.3d
854, 860 (Tex. Crim. App. 2011). As a reviewing court, we defer to the jury’s credibility and
weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight
to be given their testimony. Id. We also defer to the responsibility of the trier of fact to draw
reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
Fincher was charged with knowingly causing serious bodily injury to a child. “Injury to a
child is result-oriented offense requiring a mental state that relates not to the charged conduct but
to the result of the conduct.” Baldwin v. State, 264 S.W.3d 237, 242 (Tex. App.—Houston [1st
Dist.] 2008, pet. ref’d). “A person acts knowingly, or with knowledge, with respect to the result
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04-12-00489-CR
of his conduct when he is aware that his conduct is reasonably certain to cause the result.” TEX.
PENAL CODE ANN. § 6.03(b) (West 2011).
A factfinder may infer a culpable mental state from the accused’s acts, words, and conduct,
as well as the surrounding circumstances. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.
2004); Baldwin, 264 S.W.3d at 242. “[I]nconsistent statements [] and implausible explanations to
the police are probative of wrongful conduct and are also circumstances of guilt.” Guevara, 152
S.W.3d at 50. “A reasonable inference also arises in the presence of proof that the defendant tried
to conceal the conditions that led to the victim’s injuries.” Baldwin, 264 S.W.3d at 242. A culpable
mental state also can be “inferred from the extent of the [victim’s] injuries and the relative size
and strength of the parties.” Patrick v. State, 906 S.W.3d 481, 487 (Tex. Crim. App. 1995).
In this case, the jury heard Fincher provide several different versions of the events that
resulted in Serenity’s injuries, including his testimony at trial that he stood four or five feet away
from a partially-deflated air mattress and tossed Serenity eight to nine feet into the air and onto the
air mattress. In response to the prosecutor’s question about whether Fincher knew he could cause
serious bodily injury by tossing a child in that manner on a deflated mattress, Fincher responded,
“Yes.” In another version of the events, Fincher told a CPS investigator that he was upset at a
noise made by his dogs and he threw Serenity aggressively and violently toward the air mattress,
but her head hit the concrete floor. 1 Finally, the jury heard the detective’s testimony that Fincher
returned after one interview and asked him what would happen if he did punch or hit Serenity but
could not remember.
The jury also heard testimony from David Donahue, M.D., the pediatric neurosurgeon who
treated Serenity, regarding the extent of Serenity’s head injuries and the force that would be
1
The room was a converted garage.
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necessary to cause those injuries. Serenity had sustained at least one skull fracture with bleeding
under and within the scalp. The damage to Serenity’s brain caused it to protrude outside the scalp.
In response to whether Serenity’s injury was a type of fracture that would result from an
unintentional accident, Dr. Donahue responded only if she fell out of a second or third-story
window or had her head caught in an elevator door, but not from falling off a bed unless the bed
was twenty to fifty feet off the ground. Dr. Donahue stated the injuries could not have been caused
by Serenity falling in her crib or playpen. Dr. Donahue also stated the injuries could not have
resulted from throwing Serenity onto an air mattress unless the mattress was two or three stories
below and deflated. Dr. Donahue further stated the injuries could not have been caused by carrying
Serenity by her head or by Serenity falling onto a concrete floor. On the other hand, Dr. Donahue
testified Serenity’s injuries could have been caused by grabbing Serenity by her feet and hitting
her against a wall, by a strong person squeezing her head very tightly, or by placing her on the
ground and stomping on her head. Dr. Donahue also stated that Serenity’s injuries could have
been caused by someone’s hands if the person was very strong or very angry. Dr. Donahue’s
testimony made Fincher’s various versions of the events implausible, with the possible exception
of his having aggressively and violently thrown Serenity to the ground.
From the forgoing evidence, the jury could reasonably infer that Fincher was aware that
his conduct was reasonably certain to cause serious bodily injury to Serenity. Fincher’s second
issue is overruled.
JURY CHARGE
In his final issue, Fincher contends he suffered egregious harm because the jury charge
omitted a crucial sentence from the definition of reckless. Section 6.03(c) of the Texas Penal Code
states as follows:
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A person acts recklessly, or is reckless, with respect to … the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the … result will occur. 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.
TEX. PENAL CODE ANN. § 6.03(c) (West 2011). The jury charge in the instant case omitted the
second sentence of the statutory definition. Because defense counsel did not object to the charge,
Fincher is required to show that he suffered egregious harm as a result of the omission. Vega v.
State, 394 S.W.3d 514, 521 (Tex. Crim. App. 2013). “Harm is egregious if it deprives the appellant
of a ‘fair and impartial trial.’” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).
The jury in the underlying cause was properly charged on the offense of knowingly causing
injury to a child, and the jury found Fincher guilty of that offense. Fincher’s “conviction for the
greater inclusive offense nullifies any possible harm that might have derived from the defective
lesser included offense instruction.” Saunders v. State, 913 S.W.3d 564, 569 (Tex. Crim. App.
1995). In fact, the jury charge in this case conditioned the jury’s consideration of the offense of
reckless injury to a child as follows:
Unless you so find from the evidence beyond a reasonable doubt, or if you
have a reasonable doubt thereof, or if you are unable to unanimously agree, you
will find the defendant not guilty of knowing injury to a child as charged in the
indictment and next consider whether the defendant is guilty of the lesser included
offense of reckless injury to a child.
We presume the jury followed the trial court’s instructions in the manner presented. Thrift v. State,
176 S.W.3d 221, 224 (Tex. Crim. App. 2005). In this case, because the jury found Fincher guilty
of knowing injury to a child, the jury never considered the trial court’s instructions with regard to
reckless injury to the child. Because Fincher did not suffer egregious harm based on the jury
charge’s omission of a portion of the statutory definition of reckless, Fincher’s third issue is
overruled.
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CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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