No. 05-01-01769-CR.
Opinion Filed February 6, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F00-00858-SN. AFFIRMED.
Before Justices MOSELEY, LANG, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. The Honorable Justice Ed Kinkeade was originally assigned to the panel for this case; however, due to his retirement from this Court on November 18, 2002, Justice Lagarde was assigned to hear the case prior to its submission on November 20, 2002. She has reviewed the briefs and the record in this case.
Opinion By Justice MOSELEY
A jury convicted Gary Isaac of injury to a child, specifically: his son, J.M.W. The jury assessed punishment at forty years confinement. Isaac appeals, asserting the trial court erred: by admitting evidence of extraneous offenses and by denying Isaac's motion for mistrial based on the State's failure to affirmatively link Isaac to the extraneous offenses; by allowing the improper use of hearsay statements to impeach witnesses; by denying a motion for continuance; by admitting autopsy photographs of J.M.W; and by failing to instruct the jury on the necessity of corroboration for an accomplice-witness's testimony. Isaac further asserts the evidence was insufficient to corroborate an accomplice-witness testimony. Finally, Isaac asserts that his counsel was ineffective for failing to request an accomplice-witness instruction. We overrule each of Isaac's seven points of error and affirm the trial court's judgment.
BACKGROUND
There is evidence in the record that Isaac and his wife, Karen Walder, had six children, including J.M.W. All of the children were enrolled at the same daycare facility. On October 12, 1998, while "punishing" him for wetting his pants, Isaac and Walder severely injured J.M.W. As a result of his injuries, J.M.W. died. He was three years old. The record also contains evidence J.M.W. had repeatedly suffered serious injuries prior to the events resulting in his death. Over his three-year life span, many individuals saw extensive visible injuries on J.M.W. A family friend who cared for J.M.W. and his twin brother, N.M.W., for the first year of their lives, first saw cuts and bruises on J.M.W. soon after the friend returned the twins to live with their parents full-time. Daycare officials also saw J.M.W. covered with cuts and bruises on numerous occasions. On one particular day, the director of the daycare noticed what appeared to be a burn mark on J.M.W.'s genitals. In April 1998, six months before he died, J.M.W. was admitted to a hospital and treated for a "head-swelling incident." Forty-eight hours after J.M.W.'s death, police arrested and questioned Walder. Walder orally dictated a nine-page confession detailing her and Isaac's involvement in J.M.W.'s death. Walder signed the transcribed confession and initialed each page. Pursuant to a plea agreement and in order to avoid a capital murder charge, Walder pled guilty to the charge of injuring a child. Isaac was also charged with injury to a child. The State asserted Isaac was guilty either by actively participating in causing J.M.W.'s fatal injuries, or by not preventing Walder from injuring J.M.W even though Isaac knew Walder had a history of severely punishing J.M.W. EXTRANEOUS OFFENSES
In his first point of error, Isaac asserts the trial court repeatedly erred by admitting, over his objections, evidence of injuries suffered by two of J.M.W's siblings, his twin brother, N.M.W. and his sister D.J.W., and that the court further erred by denying Isaac's motion for a mistrial at the close of the State's case-in-chief. The State presented evidence that N.M.W. and D.J.W. had experienced numerous injuries. Usually, when J.M.W. was covered with cuts and bruises, N.M.W. would be covered with cuts and bruises also. In June 1998, Walder brought N.M.W. to a hospital for an arm so badly broken that surgery was eventually needed. Despite the seriousness of N.M.W.'s broken arm, Walder took him from the hospital before treatment because she had to wait too long. For N.M.W. to get proper treatment, the police had to go to N.M.W.'s home and bring him back to the hospital for the needed surgery. On the night of J.M.W.'s death, the doctor who examined N.M.W.'s broken arm four months earlier examined N.M.W. and found a fresh fracture on the same arm that had been broken in June. That examination also revealed numerous cuts and bruises in various stages of healing. The doctor believed the cuts and bruises were due to whippings administered by belts or extension cords. On the night of J.M.W.'s death, police photographed N.M.W. to document his extensive injuries. Additionally, on the night of J.M.W.'s death the doctor examined his sister, D.J.W. Her examination also revealed numerous cuts and bruises in various stages of healing. The police also photographed D.J.W. to document her condition. Prior to the night of J.M.W.'s death, D.J.W. displayed other noticeable injuries. On one particular occasion, the daycare director noticed that D.J.W. had difficulty walking. D.J.W.'s difficulty was due to dried blood from wounds on her legs sticking to her tights. There is evidence the wounds were caused by a whipping from one of her parents. During the trial, D.J.W. testified that both her parents would whip her when she got into trouble. She further testified she was whipped by a belt and sometimes by an extension cord, although she could not recall what her father used to whip her. D.J.W. also testified that J.M.W. and N.M.W. would also be whipped by their parents. Additional testimony also established that the twins were whipped on many occasions and that the whippings caused noticeably visible injuries on the twins and D.J.W. One officer testified that another of J.M.W.'s brothers, G.I.W., told him that Walder whipped both twins with a belt. Numerous witnesses testified that they saw visible injuries on both the twins and D.J.W. When asked whether a parent in the home would have noticed the injuries on J.M.W., N.M.W., and D.J.W., the doctor who examined N.M.W. and D.J.W. on the night of J.M.W's death, replied, "Absolutely. Any parent would obviously know about these injuries. No question." An individual commits injury to a child if by his act or omission he intentionally, knowingly, or recklessly causes serious bodily injury to a child, or by acting with criminal negligence causes serious bodily injury to a child. Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 1994 Supp. 2003). An individual can only commit injury to a child by omission if he has a legal or statutory duty to act or has assumed care, custody, or control of the child. Id. § 22.04(b). As J.M.W's parents, both Isaac and Walder had a legal duty to prevent J.M.W's fatal injuries. See Williams v. State, 889 S.W.2d 687, 690 (Tex.App.-Fort Worth 1994, no pet.). Isaac argues the above evidence should not have been admitted and that a mistrial should have been granted because, based on the evidence presented, a reasonable jury could not have found beyond a reasonable doubt that Isaac caused the children's injuries. The State contends the evidence of N.M.W.'s and D.J.W.'s injuries was properly admitted to show a pattern of abuse in the household by Isaac and/or by Walder, such that Isaac could not reasonably have missed seeing the abuse; thus supporting the second paragraph in the indictment that alleged Isaac had, by his omission, knowingly caused J.M.W.'s fatal injuries. The admission of evidence is a matter within the discretion of the trial court. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim. App. 2002). Absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of extraneous offense evidence. Id. As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion, and we must uphold the trial court's ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim. App. 1990) (op. on reh'g). Again, unless an abuse of discretion, we will not disturb a trial court's ruling denying a motion for mistrial. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim App. 1999). When a trial court properly admits evidence of extraneous offenses, the court does not abuse its discretion by denying a mistrial based on the ground of improper admission of extraneous offenses' evidence. See Torres v. State, 794 S.W.2d 596, 600 (Tex.App.-Austin 1990, no pet.). Generally, evidence of extraneous offenses is not admissible at the guilt-innocence phase of the trial to prove that a defendant acted in conformity with a bad character. Tex. R. Evid. 404(b). However, evidence of extraneous offenses is admissible "if it has relevance apart from supporting the conclusion that the defendant acted in conformity with his character." Santellan v. State, 939 S.W.2d 155, 168 (Tex.Crim. App. 1997); see also Tex. R. Evid. 404(b). Particularly, evidence of extraneous offenses is admissible when it shows a pattern of abuse in a household and that the defendant, by his omission, is guilty of knowingly or intentionally causing injury to a child. Cf., e.g., Coleman v. State, 442 S.W.2d 338, 339 (Tex.Crim.App. 1969) ("The rule as to the exclusion of other offenses which go [sic] to show that the defendant is a bad man generally do [sic] not forbid evidence to show that he had made previous assaults against the deceased or injured person, or upon third persons or others where such proof forms a relevant link in the chain of proof of the case on trial."); Dusek v. State, 978 S.W.2d 129, 136 (Tex.App.-Austin 1998, pet. ref'd) (stating evidence of a child's bruises, scratches, and lesions relevant to show that the appellant was guilty, by his omission, of knowingly and intentionally causing injury to that child). Before allowing evidence of extraneous offenses, a trial court must initially determine whether a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offenses. Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994); see also Tex. R. Evid. 104. To make such a determination, the court must ascertain whether: the evidence of the extraneous offenses is material; the defendant participated in the extraneous offenses; and the relevancy of the extraneous offenses to a material issue outweighs its inflammatory or prejudicial potential. Id. at 158. Pursuant to Harrell, the trial court held a preliminary hearing to determine whether any evidence of the injuries suffered by N.M.W. and D.J.W. was admissible. After reviewing evidence that included the photographs of N.M.W. and D.J.W. taken on the night of J.M.W.'s death, N.M.W.'s medical records, and statements given by all the children to Child Protective Services' (CPS) employees, the court conditionally allowed the evidence. However, concerned with the strength of Isaac's connection to the children's injuries, the court cautioned the State that it would declare a mistrial if the State did not link Isaac to N.M.W.'s and D.J.W.'s injuries. At a pretrial hearing the trial court determined that evidence of N.M.W.'s and D.J.W.'s injuries was conditionally admissible because a jury could have reasonably found beyond a reasonable doubt that Isaac caused N.M.W.'s and D.J.W.'s injuries. See Harrell, 884 S.W.2d at 160. Based on the court's pretrial Harrell determination and the evidence presented at trial, we conclude the court's ruling admitting the evidence of N.M.W.'s and D.J.M.'s injuries at least fell within the "zone of reasonable disagreement" to show a pattern of abuse in the household caused by Isaac. Further, the evidence also fell at least within the "zone of reasonable disagreement" because if Walder abused N.M.W. and D.J.W., the evidence tended to prove Isaac could not reasonably have missed seeing the abuse. Thus, the trial court did not abuse its discretion in admitting the evidence. Cf. Dusek, 978 S.W.2d at 136. Likewise, we conclude the trial court did not abuse its discretion by denying Isaac's motion for mistrial because the court properly admitted the evidence of the children's injuries. See Torres, 794 S.W.2d at 600. We overrule Isaac's first point of error. See Ladd, 3 S.W.3d at 567; Montgomery, 810 S.W.2d at 391 (op. on reh'g). HEARSAY
In his second point of error, Isaac asserts the trial court erred by overruling his objections and admitting inadmissible hearsay of out-of-court statements made by Walder and by one of his children, G.D.W. The State contends the statements were admissible to impeach G.D.W.'s and Walder's testimony as prior inconsistent statements. Acknowledging that prior inconsistent statements may be used to impeach a witness, Isaac, however, argues that the statements were still inadmissible because the State failed to lay the proper predicate for both G.D.W.'s and Walder's prior statements. Additionally, Isaac further argues that Walder's statements were inadmissible because Walder unequivocally admitted making the statements. Finally, Isaac argues the State's prior inconsistent statement contention is, and was, a "mere subterfuge" to admit inadmissible hearsay to prove Isaac's guilt. Despite Isaac's separate arguments on appeal, the record reflects that at trial Isaac only made hearsay objections to G.D.W.'s and Walder's out-of-court statements when they were offered. The State countered Isaac's hearsay objections by limiting the statements for impeachment purposes under rule of evidence 613. After the State limited the statements for impeachment purposes, Isaac had the further burden to make the objections that he now makes on appeal. See Sandow v. State, 787 S.W.2d 588, 595 (Tex.App.-Austin 1990, pet. ref'd). However, Isaac did not do so; thus, he waived this point of error. See id. at 595-96; see also Tex. R. App. P. 33.1(a). Accordingly, we overrule Isaac's second point of error. CONTINUANCE
Isaac asserts the trial court erred by not granting his motion for continuance on September 11, 2001. After learning of the tragic events of that day, Isaac's counsel orally requested a motion for continuance. However, an oral motion for continuance, because it is not sworn, preserves nothing for appellate review. Dewberry v. State, 4 S.W.3d 735, 755, 756 n. 22 (Tex.Crim. App. 1999) (finding no authority to support the proposition that an appellate court's equitable power allows preservation of potential errors associated with oral motions for continuance). As such, Isaac did not preserve this point for our review; therefore, we overrule his third point of error. See id. at 755. AUTOPSY PHOTOGRAPHS
In his fourth point of error, Isaac asserts the trial court erred in admitting autopsy photographs under rule of evidence 403 on the grounds that they were inflammatory and that their prejudicial value far outweighed their probative value. Specifically, Isaac objects to State's exhibits 142 and 145-157 on the ground that the photographs depict the work of the medical examiner and not the actions of Isaac himself. We review a trial court's ruling in admitting autopsy photos under an abuse of discretion standard. Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000). Generally, autopsy photographs are admissible, unless they depict mutilation of the victim caused by the autopsy process. Burdine v. State, 719 S.W.2d 309, 316 (Tex.Crim.App. 1986). However, a court does not abuse its discretion by admitting autopsy photographs that help illustrate and clarify a medical examiner's testimony. See Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim App. 1983); Drew v. State, 76 S.W.3d 436, 452 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). A trial court will admit probative evidence unless the probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Autopsy photographs that aid a jury in understanding a victim's injuries are relevant, and thus probative. See Drew, 76 S.W.3d at 452. If a jury could not fully see the extent of a victim's injuries by photographs of external wounds, autopsy photographs depicting internal injuries are particularly relevant, even if the photographs show skin excised by the autopsy process. See Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002). "Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial." Id. at 815. The State offered the objected-to photographs during the testimony of the medical examiner. In a sub rosa hearing to determine whether the objected-to photographs were admissible, the medical examiner testified that the photographs would aid in demonstrating to the jury the nature and extent of J.M.W.'s injuries. After reviewing the photographs and listening to the medical examiner's testimony, the trial court determined the photographs were more probative than prejudicial, and thus admissible. We conclude the trial court did not abuse its discretion by admitting the objected-to autopsy photographs because they are more probative than prejudicial and were admissible. See Wyatt, 23 S.W.3d at 29; see also Tex. R. Evid. 403. Because, as we noted above, one of the paragraphs of the indictment charged Isaac, by his omission, of knowingly causing J.M.W.'s death, we conclude the photographs were probative to fully show the jury the nature and extent of the injuries suffered by J.M.W. as he endured years of physical abuse. Cf. Hayes, 85 S.W3d at 816 (concluding that if the autopsy photographs, which showed the victim's skull with her skin pulled back, were not admitted, the jury would not fully see the extent of the victim's fatal injuries caused by a bullet passing through the victim's face, fracturing her facial bone, and then bruising her brain). At trial, as well as on appeal, Isaac did not rebut the presumption that the photographs were more probative than prejudicial. See id. at 815. By not rebutting that presumption, Isaac has not demonstrated that the trial court abused its discretion. See id. Moreover, because the photographs helped illustrate and clarify the medical examiner's testimony, we conclude the trial court did not abuse its discretion in admitting them. See Harris, 661 S.W.2d at 108. Therefore, we overrule Isaac's fourth point of error. ACCOMPLICE-WITNESS TESTIMONY
Isaac's final three points of error are interrelated, so we will address them together. Isaac argues that there was insufficient evidence to corroborate the testimony of an accomplice witness; that the trial court erred by failing to instruct the jury on the necessity of corroborating an accomplice-witness testimony; and that his counsel was ineffective for failing to request an accomplice-witness instruction. All of Isaac's arguments center on his contention that Walder's out-of-court confession, used to impeach her at trial, needs to be corroborated and not that any of her in-court statements need to be corroborated. A conviction cannot be sustained by accomplice-witness testimony unless corroborated by other evidence tending to connect the defendant with the crime committed; the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Walder was an accomplice witness as a matter of law because she was convicted for her participation in J.M.W.'s death. See DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990). However, an out-of-court confession of an accomplice is not "testimony" within the meaning of article 38.14. See Bingham v. State, 913 S.W.2d 208, 213 (Tex.Crim. App. 1995) (op. on reh'g). Thus, article 38.14 does not require the out-of-court confession of the accomplice to be corroborated. See White v. State, 982 S.W.2d 642, 649 (Tex.App.-Texarkana 1998, pet. ref'd); see also Bingham, 913 S.W.2d at 213. Additionally, because corroboration was not required, the trial court did not err by failing to instruct the jury on the necessity of corroborating an accomplice-witness testimony. Bingham, 913 S.W.2d at 213. Because Isaac was not entitled to an accomplice-witness instruction, Isaac's counsel was not ineffective for failing to request it. See, e.g., Autry v. State, 27 S.W.3d 177, 181-82 (Tex.App.-San Antonio 2000, pet. ref'd) (concluding counsel not ineffective because the appellant was not entitled to an accomplice-witness instruction for an accomplice's testimony of appellant's extraneous offenses during the punishment phase of a trial). Accordingly, we overrule Isaac's fifth, sixth, and seventh points of error. Having overruled all of Isaac's points of error, we affirm the trial court's judgment.