Marla Annette Jones v. State

Opinion Issued December 6, 2007 Opinion Issued December 6, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-01078-CR MARLA ANNETTE JONES, Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 400th District Court <st1:City w:st="on">Fort Bend County, Texas Trial Court Cause No. 42143 MEMORANDUM OPINION A jury convicted appellant, Marla Annette Jones, of causing bodily injury to a child. See Tex. Pen. Code Ann. § 22.04. The trial court sentenced her to a suspended sentence of two years’ confinement and placed her on community supervision. The trial court also instructed Jones to complete domestic violence counseling and parenting classes. In two issues, Jones contends that the evidence is legally and factually insufficient. We affirm. Background On January 19, 2005, Jones drove her nine-year-old daughter, Q.J., along with her other two daughters, to the school bus stop. Q.J. “had an attitude” that morning, and dragged her jacket on the ground as she walked to the bus. Jones instructed her to stop dragging her jacket, and then followed Q.J. onto the bus, where she saw Q.J throw her jacket on the floor. Jones ordered Q.J. off the bus, and she drove Q.J. back to the family’s apartment, where she proceeded to whip Q.J. with a belt. Q.J. testified that Jones struck her between twenty and thirty times with the belt. After the whipping, Jones drove Q.J. back to her elementary school. As Jones walked Q.J. into the school, a boy in Q.J.’s class walked by and teased her. After Q.J. became upset and yelled at the boy, Jones told Q.J. that she was going to take her home and whip her again. Robin Gray, a teacher at the school, testified that she heard Jones tell Q.J. that she was going to “take her home and beat her ass all day.” Gray and other teachers agreed that they should call Children’s Protective Services (“CPS”) and report the incident. When Q.J. and her mother arrived back at the apartment, Jones told her to remove her clothes and proceeded to whip her again with a belt. After this second whipping, Jones drove Q.J. back to school, and met with the assistant principal to describe Q.J.’s behavior problems that morning. Jones arrived in the assistant principal’s office wearing the belt draped around her neck. Gray was in the assistant principal’s office at the same time and saw Q.J. crying hysterically. When Gray tried to hug Q.J., Q.J. screamed in pain, and Gray took Q.J. to the school nurse. The nurse saw a total of six bruises on Q.J.’s arms, back, and thighs and testified that Q.J. appeared to be in pain. She did not think that Q.J.’s injuries required treatment by a physician, so she put ice packs on Q.J.’s bruises and made a referral to CPS. That day, Marshia Cox, an investigator from CPS, took Q.J. and her two sisters from school to the CPS office, where a child forensic interviewer questioned them. Cox then met with Jones and recommended that she take a parenting class, and although Jones agreed at the time, she never took a class. Cox stated that Q.J.’s whippings gave CPS reason to believe that Jones’s actions constituted physical abuse of a child, but CPS allowed Q.J. and her sisters to return home with Jones that evening. Sufficiency of the Evidence Jones asserts that the evidence was legally insufficient to show that she acted in a manner that an ordinary and prudent person in her circumstances would believe to be unreasonable. She further asserts that the evidence was factually insufficient to allow a rational trier of fact to find beyond a reasonable doubt that she committed the offense. Standard of Review When conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. <st1:City w:st="on">Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 ( Tex. Crim. App. 2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843. When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 ( <st1:State w:st="on">Tex. Crim. App. 2006). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 ( <st1:State w:st="on">Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. <st1:State w:st="on">Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. <st1:State w:st="on">Id. We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 ( Tex. Crim. App. 2003). Bodily Injury to a Child A person commits the offense of bodily injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence, causes the child bodily injury. Tex. Pen. Code Ann. § 22.04(a)(3) (Vernon 2005). “Child” is defined as a person fourteen years of age or younger. <st1:PersonName w:st="on">Id. § 22.04(c)(1). “Bodily injury” means physical pain, illness, or any impairment of physical condition. <st1:State w:st="on">Id. § 1.07(a)(8). Injury to a child is a result-oriented crime; that is, “the accused acts with intent if it is his conscious objective or desire to cause the result.” Assiter v. State, 58 S.W.3d 743, 748 ( Tex. App.—Amarillo 2000, no pet.) (citing Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985)); see also Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). “Intent may be inferred from the acts and the words of the accused, as well as the surrounding circumstances.” Assiter, 58 S.W.3d at 748. At trial, Jones raised the parental justification defense, which provides that the use of force, but not deadly force, against a child younger than the age of eighteen is justified “to the degree that the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” Tex. Pen. Code Ann. § 9.61(a)(2). “Reasonable belief” is “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” <st1:PersonName w:st="on">Id. § 1.07(a)(42). The use of force is not justified simply because a parent subjectively believes that the force is necessary; it is justified only if a reasonable person in the same situation would have “believed the force was necessary to discipline the child or to safeguard or promote the child’s welfare.” Assiter, 58 S.W.3d at 748 (citing Teubner v. State, 743 S.W.2d 57, 59 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d));Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex. App.—Fort Worth 2005, pet. ref’d). Therefore, we weigh the actions of the defendant using an objective standard. See Quattrocchi, 173 S.W.3d at 122. The parental justification defense is not an affirmative defense; rather, the State has the burden of negating the defense. See Assiter, 58 S.W.3d at 746–47. Thus, legally sufficient evidence exists if, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, and also could have found beyond a reasonable doubt against the defendant on the defense issue. <st1:State w:st="on">Id. at 748; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Legal Sufficiency Jones asserts that the evidence is legally insufficient, because a rational trier of fact could not have found beyond a reasonable doubt that the force she used was unreasonable. The jury saw pictures of bruises on Q.J.’s arms, legs, and back, where Q.J. said she was struck by Jones. A teacher at Q.J.’s school heard Jones threaten Q.J. by stating that she planned to “beat her ass all day.” Q.J. reported that Jones struck her twenty to thirty times with a belt during the first assault. During the second assault, which occurred after Jones ordered Q.J. to remove all her clothing except for a bra and panties, Jones struck Q.J. almost ten times on her back, arms and legs with a belt. Q.J. was visibly in pain after the whippings, crying hysterically. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found the essential elements of the crime beyond a reasonable doubt thereby rejecting Jones’s justification of the use of force by a parent for reasonable discipline. We therefore hold that the evidence is legally sufficient to support the verdict. Factual Sufficiency Jones does not contest that she intentionally and knowingly caused bodily injury to Q.J. Rather, she contends that the evidence is factually insufficient for the jury to have rejected the parental justification defense, and that “the physical impairment sustained by Q.J. was what one would expect to logically occur from corporal punishment, a legally recognized form of parental discipline.” Jones asserts that the evidence is “factually insufficient to show that the appellant acted in a manner contrary to her subjective belief that the discipline that she imposed on Q.J. was reasonable.” Contrary to this assertion, the jury’s verdict is based upon what an ordinary person considers reasonable to discipline a child in similar circumstances, and not what the defendant subjectively believed was reasonable.See Assiter, 58 S.W.3d at 748; see also Quattrocchi, 173 S.W.3d at 122. Jones contends that any “physical impairment was so minor that the child required no medical treatment other than ice packs, any bruising or redness was gone within twenty-four hours, and Children’s Protective Services saw no danger in returning Q.J. to the custody of the appellant the same day of the incident after reviewing her style of discipline.” Jones testified that she believed that the degree of force used was necessary to discipline Q.J., and that she wants to give Q.J. a proper upbringing to prevent Q.J. from failing in life. She also testified that the reason that she made Q.J. remove her clothes was because Q.J. was wearing two pairs of pants, and she intended the whippings to hurt. Jones testified that she told Q.J. that she would stay home all day, not that she was going to beat her all day. Some of Q.J.’s testimony also supports Jones’s position that the physical confrontation was reasonable discipline. Q.J. testified that her behavior on the day of the whipping was below the standard that her mother expected, that she understood that the purpose of a whipping is to encourage a child to behave properly, and that Jones had instructed her that if she behaved she would not get whippings. Furthermore, although she testified that Jones struck her twenty to thirty times during the first whipping, Q.J. also stated that the first whipping only lasted a few seconds. Q.J. further testified that Jones struck her less than ten times during the second whipping, and the reason that she was struck on her back, arms, and legs was because she was moving in the bed and running around. Other evidence refutes Jones’s contention that the physical confrontation was reasonable discipline. In portions of her testimony, Q.J. testified that she was scared when she was riding in the car from the bus stop to the apartment right before her first whipping. Although Jones testified that she gave the girls whippings less than once a year, Q.J. testified that as soon as she returned home, she knew to go upstairs to her mother’s room and lie face-down on the bed, without Jones telling her to do so. When Jones instructed Q.J. to take off her clothes before the second whipping, Q.J. testified that she was more frightened than before the first whipping and that it hurt even worse than the first whipping. Q.J. also testified that she told the child forensic interviewer at CPS that she did not want to go home that night because she didn’t want to get whipped again. Several witnesses testified to Jones’s behavior on the day of the incident. Roberts, a teacher at Q.J.’s school, testified that she observed Jones and Q.J. as they were walking away from the cafeteria, that she heard Jones tell Q.J. that she was going to “break [her] back” and “kick [her] ass” and that this language shocked her. She also testified that Q.J. seemed frightened when Jones was making these statements to her. Gray testified that she observed Jones’s behavior when Jones and Q.J. were leaving the school before the second whipping, and Jones’s comments were “very alarming” to her. Pictures documented bruises to Q.J.’s arms, legs, and back, where Q.J. said she was struck by Jones. Q.J. reported that Jones struck her twenty to thirty times on her arm, back and buttocks with a belt during the first assault and almost ten times on her back, arms and legs with a belt during the second assault while Q.J. wore only a bra and panties, having disrobed at Jones’s request. Q.J. was in pain after the whippings, crying hysterically. The fact-finder is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). As an appellate court, we must avoid re-weighing the evidence and substituting our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998);see also King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Wilson v. State, 863 S.W.2d 59, 65 (Tex.Crim. App. 1993). A rational jury could have determined beyond a reasonable doubt that an ordinary and prudent person in the same circumstances as Jones would not have disciplined Q.J. by using a belt to repeatedly whip her on her arms, back and buttocks, leaving multiple visible bruises. The jury’s decision to reject the justifiable force conclusion is not against the great weight and preponderance of the evidence so as to be manifestly unjust. We hold that factually sufficient evidence supports the verdict. Conclusion We hold that the evidence is legally and factually sufficient to support the conviction. We thus affirm the judgment of the trial court. Jane Bland Justice. Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. SeeTex. R. App. P. 47.2(b) .