Wright, Laci Rena

PD-1500-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/23/2015 2:41:17 PM December 23, 2015 Accepted 12/23/2015 2:46:28 PM ABEL ACOSTA CLERK PD-1500-15 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS *************************************************************** THE STATE OF TEXAS, Appellant, v. LACI RENA WRIGHT, Appellee. *************************************************************** On Appeal From The Court of Appeals, Eleventh Judicial District, Eastland, Texas Cause Number 11-13-00061-CR The 42nd District Court of Taylor County, Texas Honorable John Weeks, Presiding Judge Trial Court Cause Number 24602-A *************************************************************** STATE'S PETITION FOR DISCRETIONARY REVIEW *************************************************************** James Eidson Criminal District Attorney Taylor County, Texas 300 Oak Street, Suite 300 Abilene, Texas 79602 325-674-1261 325-674-1306 FAX BY: Britt Lindsey Assistant District Attorney 400 Oak Street, Suite 120 Abilene, Texas 79602 State Bar No. 24039669 LindseyB@taylorcountytexas.org THE STATE REQUESTS ORAL ARGUMENT No. 11-13-00061-CR IN THE COURT OF APPEALS ELEVENTH SUPREME JUDICIAL DISTRICT AT EASTLAND, TEXAS *************************************************************** THE STATE OF TEXAS, APPELLANT v. LACI RENA WRIGHT, APPELLEE *************************************************************** IDENTITY OF PARTIES AND COUNSEL Appellee: Laci Rena Wright Appellant: The State of Texas Attorney for Appellee at trial: Attorney for State: Stan Brown James B. Hicks, III Attorney at Law Assistant District Attorney P. 0. Box 3122 300 Oak St., Suite 300 Abilene, Texas 79604 Abilene, Texas 79602 Attorney for Appellee on Appeal: Attorney for State on Appeal: Stan Brown Britt Lindsey Attorney at Law Assistant District Attorney P. 0. Box 3122 400 Oak St., Suite 120 Abilene, Texas 79604 Abilene, Texas 79602 Trial Court Judge: Honorable John Weeks 42"d District Court, Taylor County Courthouse 300 Oak St. Abilene, Texas 79602 I TABLE OF CONTENTS Identity of Parties and Counsel.. ......................................................... i Table of Contents ................................................................................ ii Index of Authorities ........................................................................... iii Statement Regarding Oral Argument ............................................... 1 Statement of Procedural History ................................................ 2 Statement of the Case .............................................................. 3 Grounds for Review One ..................................................................... 3 1. Did the Eastland Court of Appeals misapply the standard for legal sufficiency and for recklessness in reversing a conviction for injury of a child by omission by recklessly causing serious mental impairment or injury? State's Argument ................................................................................ 3 Prayer ................................................................................................ 20 Certificate of Compliance ................................................................. 22 Certificate of Service ......................................................................... 22 Appendix: Opinion of the Eleventh Court of Appeals ................... 23 11 INDEX OF AUTHORITIES CASES Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ................. 6 Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) ................. 20 Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) .............. 7 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .................... 16 Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000) .................. 6 Jackson v. Virginia, 443 U.S. 307 (1979) ........................................... 6 Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ............. 20 Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) ............ 20 Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ......... 5, 14 Wright v. Texas, --- S.W.3d ---,No. 11-15-00061-CR (Tex. App. -Fort Worth, delivered September 17, 2015) ........................................... 2 STATUTES TEX. PENAL CODE ANN. § 6.03 ........................................................... 14 TEX. PENAL CODE ANN. § 22.04(a) ..................................................... 12 TEX. PENAL CODE ANN.§ 22.04(a)(l), (e) .......................................... 12 TEX. PENAL CODE ANN. § 22.04(a)(2), (e) .............................. 12, 13, 14 111 PD-1500-15 IN THE TEXAS COURT OF CRIMINAL APPEALS *************************************************************** LACI RENA WRIGHT, APPELLANT V. THE STATE OF TEXAS, APPELLEE *************************************************************** On Appeal From The Court of Appeals Eleventh Judicial District, Eastland, Texas Cause Number 11-13-00061-CR The 42nd Judicial District Court of Taylor County, Texas Honorable John Weeks, Presiding Judge Trial Court Cause Number 24602-A *************************************************************** STATE'S PETITION FOR DISCRETIONARY REV1EW *************************************************************** TO THE HONORABLE COURT OF APPEALS: Now comes The State of Texas, by and through the undersigned Assistant District Attorney and submits this Petition for Discretionary Review pursuant to TEX. R. APP. PROC. 68. The State further requests oral argument. STATEMENT REGARDING ORAL ARGUMENT This case presents a novel question regarding the application of the criminal charge of recklessly causing serious mental 1 impairment or serious mental injury to a child by omission. Because of the- unusual issues presented in this case and its possible implications in future jurisprudence across the State involving the culpable standard of recklessness, the State believes oral argument would benefit the Court and respectfully requests the same. STATEMENT OF PROCEDURAL HISTORY The Eleventh Court of Appeals in Eastland, Texas issued an opinion reversing the trial court on September 17, 2015. Wright v. Texas, --- S.W.3d ---, No. 11-15-00061-CR (Tex. App. -Fort Worth, delivered September 17, 2015). The State filed a motion for rehearing on October 2, 2015, which was denied on October 22, 2015. STATEMENT OF THE CASE In the opinion issued on September 17, 2015, the Eastland Court of Appeals found that the evidence was insufficient to find Appellee guilty of recklessly causing serious bodily injury to B.R., and further the evidence was insufficient to find Appellee guilty of intentionally, knowingly or recklessly causing serious mental injury or serious mental impairment to B.R. The State now appeals the 2 last issue only: whether the evidence was legally insufficient to find that the Appellee recklessly caused serious mental impairment and injury to B.R. as alleged in Count Two, paragraph two of the indictment. GROUNDS FOR REVIEW 1. Did the Eastland Court of Appeals misapply the standard for legal sufficiency and for recklessness in reversing a conviction for injury of a child by omission by recklessly causing serious mental impairment or injury? STATE'S ARGUMENT In the opinion issued on September 17, 2015, the Eastland Court of Appeals found that the evidence was legally insufficient to support the jury's finding that the Appellee was guilty of Injury to a Child by Omission by recklessly causing serious bodily injury to B.R. as alleged in Count One, paragraph two of the indictment, and that the evidence was legally insufficient that the Appellee was guilty of a second count of Injury to a Child by omission by intentionally or knowingly causing serious mental impairment and injury to B.R. as alleged in Count Two, paragraph one of the indictment. The Court further found that the evidence was 3 insufficient to find that the Appellee was guilty of Injury to a . . Child by omission by recklessly causing serious mental impairment and injury to B.R. as alleged in Count Two, paragraph two of the indictment. The State asks for a rehearing on the last issue only: whether the evidence was legally insufficient to find that the Appellee recklessly caused serious mental impairment and injury to B.R. as alleged in Count Two, paragraph two. The State believes the evidence to be legally sufficient on that charge and urges the court to reexamine the issue. The opinion of the Eastland Court states that Appellee did not act knowingly because there is no evidence in the record that Appellee was aware that her failure to act was reasonably certain to cause serious mental impairment or injury. Court's opinion at 17. Addressing separately whether Appellee's actions reached the level of recklessness, the court notes that recklessness requires a person to foresee the risk involved and consciously decide to ignore it (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007), ultimately concluding that even in a light most favorable to the verdict the evidence was insufficient for a rational jury to 4 conclude that she had the requisite mental state. Court's opinion at 19-20. It is the State's position that, taken in a light most favorable to the verdict, there was ample evidence for the jury to infer that the Appellee was consciously aware that her conduct carried the risk of causing or exacerbating the mental trauma suffered by B.R. and chose to disregard it. The State further takes the position that a reasonable jury could find that Appellee's failure to obtain medical care caused or exacerbated B.R.'s serious mental injury. Standard of Review Legal sufficiency of the evidence is reviewed in a light most favorable to the verdict and the appellate court must determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson u. Virginia, 443 U.S. 307 (1979); Jackson u. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). The evidence is examined to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames u. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). "In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in 5 the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." Gear u. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Factual background The victim in this case is Appellee's then four year old daughter, B.R. (RR4: 71) Appellee's daughter was sexually assaulted by Appellee's boyfriend Daniel Crippen in the early morning of November 11, 2009. At issue in this case is Appellee's conduct after learning of the sexual assault. At approximately 2 am, Crippen woke Appellee and told her that he had just come home from work and found B.R. in her bedroom screaming and crying. (RR4: 7 4) Appellee found the child bleeding from a laceration in her vagina; she stated her vagina was a "purple/red color" and had what she described as a "chunk of skin missing." (RR4: 76) Appellee's statement to the police stated that B.R. told her that a strange man had come into her bedroom and sexually assaulted her. (RR4: 75) When the Appellee noticed the bleeding and lacerations on the child's vagina, instead 6 of immediately seeking medical attention she took photographs of her vagina and put Vagisil on it. (RR4: 76- 77) Appellee did not take the child to the hospital, but instead examined her injuries, wiped off the blood, and took a video of B.R. explaining what happened. (RR4: 76- 77) She used her video camera in her digital phone to videotape B.R. saying that a bad man "poked her" and stuck his hand inside he panties and twisted it, and that the man snuck out of the house and ran home because he knew "you (Appellee) and Daniel were there." (RR4: 75) Afterwards Appellee cleaned B.R. up and put her in bed with her and Daniel Crippen, the man who sexually assaulted her. (RR4: 34, 78) A spiral notebook was later found in the Appellee's home containing everything Crippen, the Appellee and B.R. said in the video and to police. (RR4: 91) The following morning Appellee contacted a friend who was an Abilene police officer to ask how she should go about making a report of child molestation; the officer texted her back "need 2 go 2 hospital." (RR4: 79) Instead of taking B.R. to get medical help, she took her to daycare to drop her off. (RR4: 20, 79) At her 7 daycare Appellee spoke with B.R.'s daycare teacher, Candace South. (RR4: 24) South testified that Appellee told B.R. "now remember, I said don't talk about it and I will tell Ms. Candice what happened." (RR4: 21) Appellee told South that Crippen had found her "hysterical and crying and upset" the previous night. (RR4: 21) Appellee also told South that when she went to the child's room she found B.R. with blood on her underwear, nightgown, and sheets. (RR4: 22) She told South that she was going to make a doctor's appointment and then left. (RR4: 22-23) After Appellee left, South saw that B.R. had "blood all in her panties." (RR4: 23) South told daycare director Sandy Grisham what had taken place; they then notified CPS and took B.R. to the hospital and waited with her while attempts to locate Appellee were made to obtain parental consent for an examination. (RR4: 25-26) They waited for approximately an hour to two hours. (RR4: 27) B.R. was examined by Susie Butz, a SANE nurse at the hospital. (RR5: 79-81) The examination revealed that B.R. had lacerations, cuts, and tears in her vaginal region and a complete cut 8 all the way through the hymen. (RR5: 87-88; RR9: SX 57) The wounds were still oozing blood, the tissue was torn, and there was extensive bruising. (RR5: 91-93, 100-102) In Butz's words, the skin in the vagina was "purple, red and there were chunks of skin missing." (RR5: 90) Butz testified that from age two until puberty touching the hymen would be very painful to touch. (RR5: 80-82) She stated that without training it would be very painful to separate the lips of the vagina and could cause more tearing in the area. (RR5: 90-92) She stated that the tearing would leave a scar that would be much worse and more painful than an episiotomy scar. (RR5: 93-94) Butz testified that the pain B.R. endured for those hours after the assault could have been relieved to some degree if B.R. had been given sitz baths and Tylenol and that she told Appellee the importance of sitz baths. (RR5: 95, 104-105) On November 11, 2009, the same evening that Crippen was arrested, Appellee's children were placed with the maternal grandparents, Buddy and Sherry Morgan. (RR6: 5-8, 10-12) Sherry testified at trial that B.R was still bleeding when they took her home that evening. (RR6: 12, 16-17) She testified that B.R. 9 was terrified, had nightmares, and would only sleep on the living room floor. (RR6: 12) Sherry kept B.R. out of school until her bleeding stopped on November 16. (RR6: 17) On November 19, CPS arranged for Appellee to speak to the children by telephone. (RR6: 18) Sherry Morgan later testified that the call upset B.R. and that her stomach began hurting her the next morning. (RR6: 19-21) Shortly thereafter she began vomiting, which resulted in her being hospitalized for vomiting, gastritis, and abdominal pain from November 22 to November 27. (RR6: 19-24) A letter written by B.R.'s pediatrician and dated July 8, 2010 stated that while it is impossible to be certain that it was "highly likely probable that her gastritis was secondary to the stress of her sexual assault." (RR9: DX 3, p.31) Sherry Morgan described B.R. as a "happy kid, seemed normal, happy child" before the assault, but said since then her behavior changed. (RR6: 12) She has "meltdowns" and will throw herself to the floor, pull her hair out and pick at her toe nails until they bleed. (RR6: 15-16) Morgan testified that she initially had meltdowns almost every day, but that she has improved since she 10 began counseling with her counselor, Monica Reid. (RR6: 24-25) South also testified that she noticed a change in B.R. (RR4: 19-21) She stated B.R. was a bubbly, outgoing little girl until the assault. (RR4: 19-20) After the assault, B.R. is scared, cautious, and has become very attached to her. (RR4: 19-20) Analysis Appellee was charged in an amended indictment with two counts of injury to a child by omission for failing to provide medical care. TEX. PENAL CODE ANN. § 22.04(a). (CR2: 501-503) Count one, paragraph one alleged intentionally and knowingly causing serious bodily injury to a child by omission. TEX. PENAL CODE ANN. § 22.04(a)(l), (e). (CR2: 502) Count One, paragraph two alleged recklessly causing serious bodily injury to a child by omission. Id. (CR2: 502) Count Two, paragraph one alleged intentionally or knowingly causing serious mental impairment or serious mental injury to a child by omission TEX. PENAL CODE ANN. § 22.04(a)(2), (e). (CR2: 502) Count Two, paragraph two alleged recklessly causing serious mental impairment or serious mental injury to a child by omission. TEX. PENAL CODE ANN. § 22.04(a)(2), (e). (CR2: 11 503) The jury found Appellee guilty on Count one, paragraph two and guilty on Count two, paragraph one. (CR2: 523-524; RR8: 106- 108) The trial court assessed punishment at five years on each count probated for eight years. (CR2: 528-535; RR9: 80) The Eastland Court found that even in the light most favorable to the state that there was no evidence in the record that Appellee was aware that her failure to act was reasonably certain to cause B.R. serious mental impairment or injury or that B.R.'s PTSD would have been prevented had she provided such care. Court's Opinion at 17. The Eastland Court further found that there was insufficient evidence that if the Appellee had provided medical care to B.R. that the medical care would have prevented B.R. from suffering PTSD in light of the sexual assault committed by Crippen. Id. The State would address each in turn. I. Appellee's Conscious Disregard of the Risk The Eastland Court noted that committing the offense of injury to a child with the culpable mental state of recklessness would be a lesser included offense of Appellee's conviction for intentionally or knowingly committing injury to a child by causing 12 serious mental impairment or injury. Court's opinion at 19; TEX. PENAL CODE ANN. § 22.04(a)(2), (e). The court noted that "[a] person acts recklessly ... when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or that the result will occur" and that 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. § 6.03. The court further noted that recklessness requires a person to foresee the risk involved and consciously decide to ignore it (citing Williams u. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. at 16. The Eastland Court found that "[w]hile the National Center for PTSD declares the proposition that '[t]he best predictor of recovery [for victims of child sexual abuse] is support and love 13 from. their main caregiver,' there is no evidence that this fact was known by (Appellee) or the public at large." Court's opinion at 18 (brackets in original). The State would urge that it is not necessary to impute a professional level of knowledge to Appellee to find that she was consciously aware of the risk; there was ample evidence in the record for a reasonable jury to make that finding. It is not mere speculation to find that a person in that circumstance knows that a child expects medical care from. her primary caregiver, and that they are disregarding the risk of traumatizing them. when they do not provide it. B.R. herself confirmed this in play therapy when she said that her babies were sick and that she was going to take them. to the hospital. (RR7: 98) Given the evidence and testimony presented to the jury. It is not mere speculation that Appellee consciously disregarded a substantial risk, but a logical inference from. the evidence. II. Evidence that Appellee's failure to obtain medical care caused or exacerbated B.R.s serious mental injury: The Court further states in its opinion that "the evidence that Appellee's acts and omissions caused B.R. serious mental 14 impairment or injury is also insufficient. Based upon the evidence offered at trial, the conclusion that Appellee's conduct caused mental injury over and above that caused by Crippen's aggravated sexual assault is a matter of conjecture and speculation." Court's opinion at 18 (citing Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). The State would respectfully urge that an examination of the witnesses' testimony regarding the trauma suffered by B.R. in a light most favorable to the verdict, particularly that of the counselor who treated her, shows that this is not the case. Several witnesses testified as to the emotional trauma suffered by B.R. Her daycare worker said that before the sexual assault she was a bubbly, outgoing little girl, but after the assault became scared, cautious, and very attached to her. (RR4: 19-20) B.R.'s grandparents said that she would only sleep on the floor for several weeks and suffered emotional upheavals, nightmares and meltdowns. (RR6: 12-16) After the assault, B.R. had periods of incessant vomiting; the last five day session of vomiting coincided with her last conversation with the Appellee. (RR6: 9-11, 19-26) 15 B.R.'s counselor, Monica Reid, diagnosed her with post- traumatic stress disorder (PTSD). (RR6: 63) When asked whether Crippen or the Appellee caused her PTSD, Ms. Reid stated that they both did. (RR6: 68) When she was asked whether she thought Appellee contributed to B.R.'s stress disorder, Ms. Reid replied "yes, absolutely I do." (RR6: 68) She stated that love and care after acute stress disorder is "profoundly important," and went on to explain that "the key factor in how kids might - how if they're going to recover from the traumatic event is how the primary caregiver or the kind of response they have from the nurturing adults around them." (RR6: 77- 78) She stated that getting none of this sort of care raises the risk factors for PTSD drastically. (RR6: 78) She stated that she believed the Appellee bore a great deal of responsibility. (RR6: 81) She testified that it was her opinion that the post-traumatic stress disorder that B.R. suffered could have been alleviated or eliminated if Appellee had gotten her medical care. (RR7: 77) She testified that when she they discussed her mother B.R.'s mood would shift; she would be anxious, her play would change, and she would show confusion, ambivalence, and 16 uncertainty. (RR7: 87-88) Based on what she saw, Monica Reid recommended to CPS that visitation between B.R. and Appellee be terminated until B.R. was more emotionally and psychologically stable. (RR7: 91-92) She stated she believed that the mother's reaction was more distressing to B.R. than the sexual assault itself because she could talk boldly about Daniel Crippen but her presentation was more distressing in discussion of her mother. (RR7: 105) Even the expert witness called by Appellee, Dr. John Crowley, agreed that the reaction of a parent to the traumatic event would be a factor in the development of the syndrome and its severity. (RR8: 25) Given this testimony the State does not believe it can be fairly said that no reasonable jury could find that the serious mental injury suffered by B.R. could be attributed to Appellee. The opinion of the Eastland Court of Appeals, if allowed to stand as precedent, significantly raises the bar on the proof required to find that a criminal defendant acted with a conscious disregard of the risk. In saying that no reasonable jury could find that the Appellee acted recklessly, the court essentially disallows 17 the jury the right to make reasonable inferences from a defendant's behavior and the descriptions of that behavior from witnesses. This will make it next to impossible to find that a defendant acted recklessly except for those rare circumstances in which a defendant actually verbalizes that they are consciously aware of the risk. The State would respectfully urge that the Eastland Court has disregarded the evidence that a reasonable jury could rely on to find that Appellee recklessly caused serious mental impairment or injury to B.R. and taken the legally impermissible step of substituting the court's findings and judgment for the findings and judgment of the jury. See Marshall v. State, 210 S.W.3d 618, 624 (Tex. Crim. App. 2006). As the Eastland Court notes, there are instances where the courts of appeal may modify and render a judgment of conviction for a lesser included offense when the court determines the evidence insufficient for the greater inclusive offense. Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012); Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). The State urges 18 that that is the appropriate resolution in this case as to Appellee's conviction for Count Two of the indictment. PRAYER FOR RELIEF The State respectfully requests that this Court grant oral argument and prays that this Court reverse the ruling of the Court of Appeals and modify and render judgment to reflect that Appellee is guilty of recklessly causing serious mental impairment or serious mental injury to a child by omission. See TEX. R. APP. P. 78.1. Respectfully submitted, James Eidson Criminal District Attorney Taylor County, Texas 300 Oak Street Abilene, Texas 79602 325-674-1261 325-674-1306 FAX BY: Isl Britt Lindsey BRITT LINDSEY Assistant District Attorney Appellate Section 400 Oak Street, Suite 120 Abilene, Texas 79602 325-674-1376 325-674-1306 FAX 19 State Bar No. 24039669 Attorney for the State 20 CERTIFICATE OF COMPLIANCE I, Britt Lindsey, affirm that the above brief is in compliance with the Rules of Appellate Procedure per my computer generated word count. The font size in the brief is 14 pt. with the exception of footnotes that are 12 pt. The word count is 3129, excluding the exceptions listed in Rule 9.4. The word count of the entire brief is 4193. Isl Britt Lindsey BRITT LINDSEY CERTIFICATE OF SERVICE I certify that on this 23rd day of December, 2015, a true copy of the foregoing State's Brief was served on the Attorney for Appellee and State Prosecuting Attorney according to the requirements of law by first class mail, email or hand delivery to: Stan Brown Attorney at Law P. 0. Box 3122 Abilene, Texas 79604 Attorney for Appellee, Laci Rena Wright Email: mstrb@aol.com 21 Lisa C. McMinn State Prosecuting Attorney 209 W. 14th Street Austin, Texas 78701 Email: information@SPA. texas. gov Isl Britt Lindsey BRITT LINDSEY 22 APPENDIX: OPINION OF THE llTH COURT OF APPEALS 23 Opinion filed September 17, 2015 In The