Johnson v. State

Related Cases

SUE WALKER, Justice,

dissenting.

I. INTRODUCTION

I respectfully dissent. I would hold that the evidence is legally, but not factually, sufficient to support Johnson’s conviction for the lesser-included offense of recklessly causing serious bodily injury to Destinee by fading to obtain reasonable medical care. Accordingly, I would reverse the trial court’s judgment and remand this case for a new trial on the lesser-included offense.

II. RECKLESS INJURY TO A CHILD BY OMISSION

Count II of the indictment alleged that Johnson:

[D]id then and there intentionally or knowingly cause serious bodily injury to Destinee Jones, a child 14 years of age or younger, by omission, to-wit: by failing to obtain reasonable medical care, and the defendant had a legal or statutory duty to act.

See Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003) (injury to a child). The court’s charge authorized the jury to find Johnson guilty of the lesser-included offense of recklessly causing serious bodily injury to Destinee. Tex. Code CRiM. PROC. Ann. art. 37.09(3) (Vernon 2003). Because the jury found Johnson guilty as she was charged in count II of intentionally or knowingly injuring Destinee by omission, the failure to obtain reasonable medical treatment, it necessarily found that this *140omission was reckless. Payton v. State, 106 S.W.3d 326, 329 (Tex.App.—Fort Worth 2003, pet. ref'd); Patterson v. State, 46 S.W.3d 294, 304 (Tex.App.—Fort Worth 2001, no pet.); Dusek v. State, 978 S.W.2d 129, 135 (Tex.App.-Austin 1998, pet. ref'd). Thus, we may modify the trial court’s judgment to reflect a conviction for this lesser-included offense if the evidence supports it. Patterson, 46 S.W.3d at 304; Dusek, 978 S.W.2d at 135.

A person acts recklessly with respect to the result of her conduct when that person is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation for the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Id. Injury to a child is a “result of conduct” offense, so it is not enough for the State to simply prove that the defendant engaged in the conduct with the requisite intent. Lee v. State, 21 S.W.3d 532, 540 (Tex.App.—Tyler 2000, no pet.). Instead, the State must also prove that the actor defendant caused the result with the requisite criminal intent. Id.

A. Evidence

Johnson testified that on Sunday, December 3, 2000, at approximately 9:30 a.m., she found twenty-two-month-old Destinee laying in bed with her eyes rolled up, with a split tongue with blood on it. Destinee had no pulse and was not breathing. Johnson administered CPR to Destinee, and the child started breathing. Liquid came out of Destinee’s mouth and nose, and Johnson understood that Destinee was very sick and needed medical attention. Despite this knowledge, Johnson admitted she changed Destinee’s shirt and called her mother before taking Destinee to the hospital.

Johnson initially told hospital personnel and provided a sworn statement to the police that her boyfriend Kewon Benson (Benson) came over at approximately 10:00 a.m. that morning, bringing breakfast with him. At trial, however, Johnson testified that Benson spent the night with her and that she left to go purchase breakfast at McDonald’s, leaving Destinee in Benson’s care. Johnson testified at trial that when she returned, she found Destinee nonre-sponsive and not breathing.

Johnson testified that Benson smoked marijuana that morning and claimed that he admitted he was stoned. After Johnson resuscitated Destinee, Benson did not offer to help, did not call an ambulance, and was just “standing around.” Johnson said that she ran out of the apartment and Benson got her keys off the counter. Johnson said she got into the passenger side of the car, holding Destinee. She said Benson drove her car to his apartment and got out of the car, leaving her to drive Destinee to a hospital. Johnson said she obtained directions from Benson and drove to the hospital emergency room.

Benson testified to a different version of facts. He testified that Johnson picked him up from his apartment at approximately 3:45 a.m. on Sunday, December 3. They went to her apartment, had sex, and went to sleep. Between 8:00 and 9:00 a.m., Johnson left the apartment to go to McDonald’s, and she took Destinee with her. Benson testified that while Johnson and Destinee were gone, he got up, “broke up” some marijuana, and prepared to go in the bathroom and smoke. Johnson and Destinee returned just as Benson was “on the verge of finishing rolling it up,” and he went into the bathroom to smoke “some weed.” Benson testified that while he was *141smoking in the bathroom, he heard Desti-nee crying and heard Johnson saying, “I got to clean up Destinee.” Benson said he did not hear anything else and exited the bathroom “20, 25 minutes — about 40 minutes, 45 minutes” later. When Benson exited the bathroom, Johnson said, “Look at Dee, look at Dee.” Johnson then drove Benson home and said that she was going to take Destinee to the hospital.

Emergency room medical personnel testified that Destinee showed no signs of life when Johnson brought her into the emergency room; she was “very limp, very pale, and cool.” Although they tried to resuscitate Destinee for about thirty minutes, they were unable to revive her. Dr. Dryden, an emergency room physician involved in the resuscitation efforts on Desti-nee, testified that if someone noticed Des-tinee limp with no pulse at approximately 9:30 a.m., it would not constitute reasonable medical treatment to delay her transport to the hospital for an hour to an hour- and-a-half. According to Dr. Dryden, “anyone would be able to recognize that this child was very ill.” He testified that “the sooner a severely injured person is brought to medical attention, yes, they have a much better chance of — of—of being resuscitated. Time is always a factor.”

Dr. Sheila Spotswood, a forensic pathologist, testified that Destinee suffered blunt “force trauma” from blows to the front of her abdomen, causing internal bleeding and causing several internal organs to be injured when they were compressed against Destinee’s backbone. Dr. Spots-wood explained that Destinee had bruising in the right side of her diaphragm, on the thoracal surface, and on the serosal surface. She suffered lacerations in multiple areas, including the mesentery, pancreas, and colon. Yet none of Destinee’s major arteries were severed. Blood is an extreme irritant to the abdomen, and right after the injury causing bleeding in her abdomen, Destinee would have begun to exhibit symptoms that could range from irritation, to pain in the abdomen, nausea, vomiting, not wanting to eat, being fussy, crying, and eventually as more blood was lost, to becoming lethargic, going into shock, and dying. These symptoms would be such that it would be apparent to anyone observing Destinee that she was seriously ill. Based on Destinee’s condition when she arrived at the emergency room, Dr. Spotswood opined that Destinee’s injury occurred sometime after 7:00 a.m.

B. Legal Sufficiency of the Evidence

1. Reckless Criminal Intent

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. When performing a legal sufficiency review, we may not sit as a thirteenth juror, re-evaluating the weight and credibility of the evidence and, thus, substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

Viewing the evidence in the light most favorable to the jury’s verdict, I believe the evidence is legally sufficient to permit a reasonable finder of fact to conclude that *142Johnson was aware of and disregarded a substantial and unjustifiable risk that her failure to take Destinee immediately to the hospital would result in serious bodily injury to Destinee. Johnson knew that Desti-nee had stopped breathing and had no pulse, that her eyes were rolled back into her head, that she ■ had ■ blood on her tongue, and that she required CPR to revive her. Nonetheless, Johnson consciously disregarded the substantial risk that Destinee’s condition would continue to deteriorate and that Destinee would again stop breathing if she failed to immediately drive Destinee to the emergency room for medical treatment. The risk that Desti-nee’s condition would continue to deteriorate and that Destinee would again stop breathing was of such a nature and degree that Johnson’s disregard of that risk for an hour to an hour and a half constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from Johnson’s standpoint. Thus, the jury could have believed that although Johnson recognized Destinee’s deteriorating condition — the fact that Destinee was not breathing, was in distress, and needed medical treatment — she nonetheless called her mother, changed Destinee’s shirt, waited for Benson to emerge from the bathroom, and drove him to his apartment all before she took Destinee to the hospital. I would hold that legally sufficient evidence exists to establish Johnson acted recklessly-

2. Causation

Johnson also claims, and the majority agrees, that no evidence exists that any reckless omission by her caused serious bodily injury to Destinee. Johnson contends no evidence exists that, even if she had taken Destinee directly to the emergency room, Destinee would have lived. In other words, Johnson claims that it was the initial injury to Destinee’s abdomen, which the jury acquitted her of causing, that produced Destinee’s serious bodily injury, not any reckless omission on her part.

A person is criminally responsible if the result would not have occurred but for his 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. Penal Code Ann. § 6.04(a). Under this section, two combinations may exist to satisfy the requisite causal connection between appellant’s conduct and the harm that followed: (1) the appellant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the appellant’s conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986); Umoja v. State, 965 S.W.2d 3, 8 (Tex.App.—Fort Worth 1997, no pet.). Section 6.04(a) further defines and limits the “but for” causality for concurrent causes by the last phrase, “unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Robbins, 717 S.W.2d at 351 (emphasis added). Thus, evidence of causation will be legally insufficient only when the conduct of the accused, standing alone, was “clearly insufficient.” Marvis v. State, 36 S.W.3d 878, 881 (Tex.Crim.App.2001) (Price, J., concurring); St. Clair v. State, 26 S.W.3d 89, 100 (Tex.App.—Waco 2000, pet. ref'd).

Here, the evidence establishes that a concurrent cause, the stomping-type injury to Destinee’s abdomen, was clearly sufficient to cause serious bodily injury to Des-tinee. Dr. Spotswood testified that immediately after Destinee suffered the blows to her abdomen she would have begun *143experiencing symptoms. Left unchecked, the blood loss into Destinee’s abdomen would continue until Destinee went into shock and died. The evidence likewise establishes that Johnson’s conduct, her failure to rush Destinee immediately to the hospital, and the other cause, the blows to Destinee’s abdomen, together were in fact sufficient to have caused serious bodily injury to Destinee because Destinee died. See Robbins, 717 S.W.2d at 351. The only question remaining, then, is whether the conduct of Johnson, standing alone, was “clearly insufficient” to cause serious bodily injury to Destinee. See St Clair, 26 S.W.3d at 100.

The record, viewed in the light most favorable to the jury verdict, shows that Destinee would have begun having symptoms of her abdominal injury before she went into cardiac arrest. Destinee’s symptoms would have been apparent to anyone, and it would have been obvious that she was very ill. The jury could have believed Benson’s testimony that Johnson took Destinee with her to McDonald’s that morning1 and, thus, could have inferred that Johnson observed Destinee’s increasingly severe symptoms. Clearly, because of the progressive nature of Destinee’s injury, the jury could reasonably infer that Destinee suffered additional “serious bodily injury” as her symptoms progressed and her organs shut down due to Johnson’s failure to provide reasonable medical treatment for Destinee’s abdominal injuries. See Payton, 106 S.W.3d at 329 (recognizing jury could reasonably infer defendant caused serious bodily injury to child by fading to provide medical treatment for blunt force trauma to child’s head and abdomen); see also Kennerly v. State, 40 S.W.3d 718, 720 (Tex.App.—Waco 2001, no pet.) (holding evidence appellant failed to remove elderly person from puddle of spilled bleach sufficient to support conviction for recklessly causing serious bodily injury when appellant knew effect of prolonged exposure to bleach).

The causation issue in this case is similar to the causation challenge in St Clair, 26 S.W.3d at 100. In St Clair, the defendant drunk driver hit a vehicle driven by a woman who was eight weeks’ pregnant. Id. at 93. The next day, the woman suffered a miscarriage. Id. The State charged the defendant with intoxication assault. The medical evidence at trial indicated that a variety of medical conditions could cause a miscarriage and also that a car wreck could cause a miscarriage. Id. at 100. On appeal, the defendant claimed that because no medical expert testified that the wreck did cause the miscarriage, the evidence was legally insufficient to support his conviction for intoxication assault. Id. The court of appeals applied penal code section 6.04(a)’s two-part test and looked to whether a “concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Id. (emphasis added). Based on the evidence that a car wreck could cause a miscarriage, the court of appeals held that the defendant’s conduct standing alone was not “clearly insufficient” to cause the miscarriage and, consequently, held that the evidence was legally sufficient to support the jury’s finding that the defendant was guilty of intoxication assault. Id. at 101.

*144Here, the medical evidence establishes that Destinee would have experienced increasingly severe symptoms before she experienced cardiac arrest. According to Benson, Johnson took Destinee with her to pick up breakfast from McDonald’s, so the jury could have inferred that Johnson saw Destinee’s increasing physical distress yet chose not to seek medical treatment for Destinee. Additionally, Dr. Dryden’s testimony that “time is always a factor” and that an hour or hour and one-half delay in obtaining medical treatment for a baby who has experienced cardiac arrest is unreasonable, when viewed in the light most favorable to the jury’s verdict, supports the inference that time was a factor in this case and that if Destinee had obtained medical treatment within a reasonable time frame she could have lived. I cannot say that Johnson’s conduct, standing alone, was clearly insufficient to cause serious bodily injury to Destinee. See Payton, 106 S.W.3d at 329; St. Clair, 26 S.W.3d at 100. I would hold that the evidence is legally sufficient to support the jury’s implied finding that Johnson recklessly caused serous bodily injury to Destinee by failing to obtain reasonable medical treatment. I would overrule Johnson’s first point.

C. Factual Sufficiency of the Causation Evidence

In her second point, Johnson claims that the evidence is factually insufficient to support her conviction. Specifically, she argues that factually insufficient evidence exists to prove that any omission on her part caused serious bodily injury to Destinee. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129, 134 (Tex.Crim.App.1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder’s determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. We are not empowered to substitute our judgment for that of the fact finder’s own credibility and weight-of-the-evidence determinations. Johnson, 23 S.W.3d at 12. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Id. at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

To make a determination of factual insufficiency, a complete and detailed examination of all the relevant evidence is required. Johnson, 23 S.W.3d at 12. A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

We therefore now turn to a review, in addition to the evidence recited above, of the most important and relevant evidence supporting Johnson’s complaints that factually insufficient evidence exists to show that a reckless omission by her caused Destinee serious bodily injury. Medical personnel treating Destinee could not pinpoint a time at which the abdominal injury to Destinee occurred, indicating that it could have occurred hours or minutes be*145fore Destinee’s arrival at the emergency room.

Dr. Spotswood testified:
Q. Would this [Destinee’s abdominal injury] have been a fast bleed or a slow bleed?
A. It is hard to say without knowing exactly what the source of the blood was. It was probably rapid, though, just because of the location. When you get retroperitoneal hemorrhage, the hemorrhage in the back of the abdomen, those injuries tend to bleed rapidly even though we don’t know exactly what vessel they came from.
Q. From the time that the blows are struck that caused the injuries that we are talking about to the time of the death of the person who has these injuries, can you say exactly how long it would be?
A. No.
Q. Are you talking minutes? Are we talking hours? Or are you able to say?
A. It could be minutes to hours. I would not say days.
Q. When you say “hours,” are we talking one hour up to twelve hours?
A. I can’t say exactly. I think from these injuries, this would most likely be pretty rapid. Closer to the one hour range. Maybe a few hours, but I can’t say with certainty.

A paramedic in the emergency room at the hospital, George Harrell, testified that he checked Destinee when she came into the emergency room for any signs of abuse and that she had none. Later, when Harrell accompanied Johnson to see Destinee’s body, the body had bruises on the abdomen. Harrell said the bruises were not there when he initially checked Destinee for signs of abuse. Dr. Dryden also testified that the bruises on Destinee’s abdomen appeared after she arrived at the hospital and confirmed that the resuscitation procedures did not cause the bruises. Dr. Spotswood testified that if a bruise was. not apparent at the time Destinee arrived at the hospital, but became apparent later, that would indicate that not a great deal of time elapsed between the abdominal injury and the time Destinee arrived at the hospital.

Viewing all of the evidence in a neutral fight, favoring neither party, the evidence in support of the existence of a vital fact— that Johnson’s delay in seeking medical treatment for Destinee caused serious bodily injury in addition to or compounding the injuries Destinee had already suffered from the blunt force blows to her abdomen — is factually too weak to support it. See Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App.2001). The only evidence presented concerning whether Johnson’s reckless failure to obtain reasonable medical care for Destinee caused serious bodily injury to Destinee while supporting the inference that this fact is true, is simply too weak by itself to support a rational finding. See id. That is, although the jury could have inferred from Dr. Dryden’s testimony that “time is always a factor” and that an hour to hour and one-half delay in obtaining medical treatment for a baby who has experienced cardiac arrest is unreasonable, that time was a factor in this case and that if Destinee had obtained medical treatment within a reasonable time frame she could have lived, this evidence is simply too weak to support a rational finding. No other evidence exists to prove the fact that Johnson’s failure to obtain reasonable medical care for Des-tinee caused Destinee serious bodily injury. The defense did not call any medical experts. The medical experts called by the State uniformly agreed that they could not determine the amount of time that elapsed between Destinee’s injury and her *146arrival at the emergency room. No one testified that if Destinee had arrived at the hospital earlier she would have lived. To the contrary, the State’s medical experts all agreed that because the bruises to Des-tinee’s abdomen appeared after her arrival at the hospital, she arrived at the hospital not too long after the abdominal injury was inflicted. Consequently, I would hold that the evidence is factually insufficient to establish the causation element of the offense: that serious bodily injury to Desti-nee would not have resulted “but for” Johnson’s failure to obtain reasonable medical treatment either operating alone or concurrently with Destinee’s abdominal injuries. See Tex. Penal Code Ann. § 6.04(b). Cf. Payton, 106 S.W.Sd at 329 (holding evidence legally sufficient when doctor testified child may have lived, although possibly with long-term health problems, if he had received medical care shortly after the injury instead of ten to twelve hours later). The evidence establishes that Destinee’s abdominal injuries were clearly sufficient to produce serious bodily injury to Destinee and is factually insufficient to establish that Johnson’s reckless omission in failing to seek reasonable medical treatment for Destinee in fact caused any different or exacerbated injury or result. I would sustain Johnson’s second point.

III. CONCLUSION

I would hold that legally sufficient but factually insufficient evidence exists that Johnson recklessly caused serious bodily injury to Destinee by failing to obtain reasonable medical treatment. Accordingly, I would reverse the trial court’s judgment and remand this cause for trial on this lesser-included offense. See Clewis, 922 S.W.2d at 133-34; Patterson, 46 S.W.3d at 304; Dusek, 978 S.W.2d at 135.

. Neither witnesses nor the videotape established whether Destinee was with Johnson or not when Johnson stopped at McDonald’s and the convenience store that morning. Although the jury acquitted Johnson of causing the stomping injury to Destinee, the jury nonetheless could have believed that Destinee was with Johnson and that Destinee’s injury occurred immediately before Johnson took Destinee to McDonald’s and the convenience store.