David Earl Johnson, Jr. v. State of Texas

NO. 07-00-0371-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A NOVEMBER 14, 2001 ______________________________ DAVID EARL JOHNSON JR., APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 64TH DISTRICT COURT OF SWISHER COUNTY; NO. B3222-9907CR; HONORABLE JACK R. MILLER, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. In this appeal, appellant David Earl Johnson Jr. challenges his conviction of involuntary manslaughter and the resulting jury-assessed sentence of ten years confinement in the Institutional Division of the Department of Criminal Justice. In pursuing that challenge, appellant presents five points of asserted error in which he posits: 1) the evidence was legally insufficient to show that he recklessly caused the death of the minor child Anthony Lynn Culfer (Anthony); 2) the trial court not only abused its discretion by submitting the question of involuntary manslaughter to the jury, but the evidence is also factually insufficient to support a finding that he caused the death of the victim by smothering him; 3) by submitting the question of involuntary manslaughter, the trial court abused its discretion and deprived him of the due course of law guaranteed by article 1, section 19 of the Texas Constitution; 4) by submitting the question of involuntary manslaughter to the jury, the trial court abused its discretion and denied him due process "because the federal standard is the minimal standard required to enforce the U. S. Const. Fifth Amendment"; and 5) by submitting the question of involuntary manslaughter, the trial court abused its discretion and denied him the due process to which he was entitled "under the U.S. Const. Fourteenth Amendment, applying the Fifth Amendment to the States." Disagreeing that reversible error exists, we affirm the judgment of the trial court. The nature of appellant's challenges is fact intensive in character and requires us to recount pertinent portions of the trial evidence. On March 20, 1989, at approximately 8:48 p.m., fourteen-month-old Anthony was brought to the emergency room of the Tulia Hospital by Ronda Fore, his mother. Ronda was accompanied by appellant, her boyfriend. Ronda reported to hospital personnel that Anthony had been suffering from a runny nose. At the time of Anthony's arrival, he had no pulse or respiration signs. The emergency room physician, Dr. William Childress, and Edith Gilliam, the nurse on duty at the time, noticed Anthony's face was blue and his hands and feet were cold. They concluded he was dead. Because Dr. Childress thought Anthony had been dead for somewhere around an hour, he requested Tulia Municipal Judge Janet Freemen to order an autopsy to determine the cause of death. Tulia police officers James Hart and Donny Harlan were dispatched to the hospital and took some pictures of the dead child. They noticed an abrasion on Anthony's forehead and some type of mark above his lip. Officer Harlan, the senior officer present, was told by Judge Freeman not to question anyone until after an autopsy was performed. Until the evening of March 20, 1989, Anthony had basically been a healthy child. Some two weeks before that date, Anthony had an ear infection treated by his doctor. The doctor had not noted any respiratory infection at that time. On the day of his death, as was usually done while his mother worked, Anthony was taken to a Tulia day nursery by his mother. The day care workers at the nursery observed that he seemed healthy and happy, did not show any ascertainable signs of illness, and was not injured while there. The workers were surprised to hear of Anthony's death because of his apparent good health. The child's aunt, Tina Wright, had seen him at play on March 20 and opined that he was acting normally with no signs of illness. On March 21, 1989, Dr. Ralph Erdmann performed an autopsy on the child, which had been ordered by Swisher County Justice of the Peace Marie Rucker. In the course of the autopsy, Erdmann notice a slight abrasion on Anthony's forehead and some kind of mark on his lip, which was slightly swollen. Erdmann found that the child's lungs were somewhat abnormal and removed portions to be microscopically examined. As a result of his examination, Erdmann concluded that Anthony died of a mild case of acute interstitial pneumonitis associated with acute septic and toxic shock. Thus, he found that Anthony died of natural causes. In 1993, Ronda appeared at the Tulia police station and made a statement to Officer Donald Dunn implicating appellant in Anthony's death. As a result of that statement, the investigation into Anthony's death was reopened. She gave two sworn statements to Dunn which were some two weeks apart. In the first of those statements, she averred that appellant smothered Anthony with a pillow and, in the other, that appellant had smothered the child with his hand. Because of the differences in the statements, Dunn continued his investigation. In the course of the investigation, on August 18, 1993, appellant gave a handwritten statement to Amarillo Police Officer Chance Coberly dealing with the events of the evening Anthony died. Although appellant said he was at work after 6:40 p.m., was not present at the home during the critical times on the night in question and did not return until Anthony was found lifeless, his work records did not show that he was at work after 6:40 p.m. After this investigation, the case was submitted to the Swisher County Grand Jury in 1993, but no indictment was returned. The only autopsy available in 1993 was the one performed by Erdmann. In 1998, Tulia Police Chief Jimmy McCaslin asked the Texas Rangers to determine if further investigation was warranted. Texas Ranger Dwayne Williams obtained the case file, and interviewed a number of witnesses. He then obtained an order to exhume the body from Justice of the Peace Rucker. She then ordered Tarrant County Medical Examiner Marc Krouse to conduct another autopsy. Doctor Krouse testified that he had performed between 9,000 and 10,500 autopsies. During the course of those autopsies, he had examined about 1600 mummified or decomposed bodies. Prior to conducting an autopsy on Anthony's body, the doctor reviewed the records of Dr. Erdmann's autopsy. In examining the photographs taken in connection with Erdmann's autopsy, he took particular notice of the abrasion above the upper lip slightly to the left of the child's midline. He opined that it was an abrasion that was caused either by scraping or crushing of the skin and it occurred close enough to the time of Anthony's death that little swelling had developed. He also noted that there was a foamy material in the child's mouth, which he believed was the product of pulmonary edema, which was consistent with a finding of asphyxia. Asphyxia, he explained, was a fatal deprivation of oxygen to the brain and heart. The doctor also characterized the injuries as being consistent with the use of some sort of force against the face of the child. Dr. Krouse investigated Anthony's medical records kept by his treating doctor and, considering the testimony as to his condition in the time immediately prior to his death, disagreed with Erdmann's conclusion as to the cause of death. It was his belief that if Erdmann's conclusion was correct, there would have been more evidence of a shortness of breath. As a result of his autopsy, he recommended that the cause of death be changed to suffocation and the cause of death as homicide. Doctor William Anderson, a deputy chief medical examiner in Orlando, Florida, also testified that what Dr. Erdmann characterized as interstitial pneumonia was "acute lung injury, a deoxygenation of the lungs." In his view, Anthony died of "respiratory and acute respiratory failure. Nothing that had been hanging around for days as a pneumonia might, but something that's very acute." He opined that what is described as interstitial pneumonia "is actually not an infection thing at all, but a response to an injury." This type of injury, he said, "would be consistent with something, among one of the possibilities something being placed over the mouth nose area." Doctor Anderson did not believe that Anthony's death was caused by a virus because the response of his body that was described by Dr. Erdmann could not be the result of such an infection. Ronda testified that on the day of his death, she was working at a nursing home. Appellant's mother had picked up Anthony from day care and, after she got off work, Ronda picked up Anthony, his two-year-old sister Marlene, and his four-year-old brother, Brandon. When she got home, she began preparing dinner and appellant came home. Anthony was "fussy," so she put him down and gave him a bottle to try to quiet him, but "he didn't want it." Ronda said that appellant was "mad" because Anthony was being noisy and appellant wanted to watch Star Trek, his favorite TV show. Appellant put a pillow over Anthony's face while Anthony was screaming and crying. Ronda averred that she told appellant to stop and he did so for a moment but then "started back up." Ronda then went over and removed the pillow while Anthony gasped for air. Ronda then returned to the kitchen. While she was there she heard Anthony scream a couple of times and then there was silence. Sometime after that, Brandon came into the kitchen and told her that something was wrong with Anthony. Ronda ran into the living room and saw Anthony lying on the couch with his arms above his head and his face was blue. She called appellant, who was outside, and he came into the room and started doing CPR in an attempt to revive Anthony. Ronda said that appellant continued the CPR for five or so minutes without success, so she told appellant they needed to take Anthony to the hospital. Instead of driving directly to the hospital, they took the other two children by Ronda's sister's house, dropped them off and then went to the hospital. When they arrived there, she was told the child was dead. She was upset and asked appellant what had happened. Appellant replied that he did not know and that it was better left alone. When cross-examined, Ronda admitted she told appellant's attorney a week before the trial that she had not seen appellant put a pillow over Anthony's face. She also admitted that when she was questioned at the hospital about Anthony's death, she did not tell anyone that she saw appellant place a pillow over the child's mouth. She also admitted she did not go to the police until 1993 after she dreamed she saw appellant putting a pillow over Anthony's face. In her 1993 statement, she said she saw appellant place the pillow over Anthony's face and she did not make him quit. Again, in 1993, about three weeks after the first statement, she gave the police another statement in which she said she did not remember a pillow, but that appellant had used his hand to cover Anthony's mouth. In 1998, she gave another statement in which she again said appellant used a pillow and she tried to stop him. The grand jury did not return an indictment in 1993, but in 1998, after an additional investigation, the instant prosecution was commenced. Marlene Ballard testified that at the time of the death, she was two years old, but she remembered seeing appellant place a pillow over Anthony's mouth and when the pillow was removed, he was not moving. Appellant presented several character witnesses, who stated that both Ronda and Marlene had bad reputations for being truthful. He also presented the testimony of Dr. Sparks Veasey, a forensic pathologist. Although Veasey admitted he was aware of reports that appellant placed his hand over the mouths of Anthony and another child and held it over them until they quit crying, after examining the autopsy reports and the police reports, he averred that he could not determine the cause of Anthony's death. We have listed the relevant evidence in this case in somewhat exhaustive detail. In determining whether the evidence supports the jury verdict, we must bear in mind that it is the jury's exclusive function to determine the credibility of the witnesses and the weight to be given their testimony, and in doing so, they are entitled to consider all the circumstances surrounding the death. Our review of the evidence satisfies us that a reasonable jury could conclude that appellant recklessly caused Anthony's death by covering his mouth in an attempt to quiet him, and that conclusion would not be so against the overwhelming weight of the evidence as to be manifestly unjust. Appellant's first two points are overruled. With regard to the remainder of appellant's points, he made no trial objection to the court's action in including a charge on involuntary manslaughter in his instructions to the jury. Indeed, with the exception of expressing his opinion that the State should be required to elect whether it was going with a charge that appellant smothered Anthony with a pillow or by other means unknown to the grand jury, trial counsel opined that the charged "looks fine to us." When a defendant requests or does not object to the inclusion of a lesser-included offense, such as manslaughter in this case, a defendant has accepted the benefit of that instruction and is estopped from complaining on appeal that the evidence failed to establish all the elements of the lesser offense. See State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App. 1991), overruled on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); see also State v. Yount, 853 S.W.2d 6, 9 (Tex.Crim.App. 1993). Additionally, even if the question was preserved for appellate review, the trial court did not err in submitting the manslaughter charge. The evidence indicating that appellant was only trying to quiet the child so he could watch his program, together with the fact that he immediately performed CPR on the child after he was found to be unconscious, could reasonably be interpreted by the jury as indicating the death was caused recklessly. When evidence from any source raises an issue that a lesser-included offense may have been committed, it is proper to charge the jury on that offense. Ormsby v. State, 600 S.W.2d 782, 785 (Tex.Crim.App. 1979); Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App. 1978). Either party may insist that a charge on a lesser-included offense be given in a proper case. Pennington v. State, 644 S.W.2d 64, 67 (Tex.App.-Austin 1982), aff'd, 697 S.W.2d 387 (Tex.Crim.App. 1982). In determining whether a charge on a lesser-included offense should be given, the questions confronting the court are: 1) is the lesser-included offense included within the proof necessary to establish the charged offense, and is there any evidence that if the defendant is guilty, he is only guilty of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) (opinion on reh'g). The evidence in this case meets both those requirements. Accordingly, appellant was not denied any of his federal or state constitutional rights by the submission of the manslaughter question to the jury. Appellant's points three through five are overruled. In sum, all of appellant's points are overruled and the judgment of the trial court is affirmed. John T. Boyd Chief Justice Do not publish. an style="text-decoration: underline">Kelly, 71 S.W.3d at 422. Applicable Law The elements of a negligence claim are duty, breach of that duty, and damages proximately caused by the breach of duty. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). In assessing whether a duty exists, a reviewing court should consider factors such as the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct; the magnitude of the burden in guarding against injury; and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). When the defendant distributes a dangerous article or agent, the defendant owes the public the degree of care proportionate to and commensurate with the dangers involved. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.3d 442, 447 (1941). When the defendant distributes a dangerous article or agent, it owes a nondelegable duty to take all reasonable precautions to effectually protect third parties from injury. Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944). Analysis In its motions, Wylie contended that Huffaker could produce no evidence that either T&B, Ltd., or Wylie LP Gas, in its capacity as General Partner of T&B, Inc., were proper parties to this suit. According to the deposition transcript of Tipton, T&B, Ltd., owns the real property and some of the equipment that Wylie LP Gas leases. Wylie LP Gas is the General Partner of T&B, Ltd., and holds a one percent ownership interest in T&B, Ltd. However, this is all of the evidence presented in regard to these two defendants. Huffaker presented no evidence nor even alleges how T&B, Ltd., or Wylie LP Gas, as General Partner of T&B, Ltd., owed a duty to Huffaker, breached that duty, or caused the damages suffered by Huffaker as a result of the breach. Therefore, we affirm the trial court’s no-evidence summary judgment as it relates to claims against T&B, Ltd., and Wylie LP Gas, in its capacity as General Partner of T&B, Ltd. See Tex. R. Civ. P. 166a(i); Ford Motor Co., 135 S.W.3d at 600. As to Huffaker’s claims against Wylie LP Gas, individually, Wylie contends that Huffaker is unable to present more than a scintilla of evidence to raise a genuine issue of material fact as to the duty, or standard of care, Wylie LP Gas owed to Huffaker or that Wylie LP Gas breached that duty. Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of a layperson. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.–Amarillo 1999, pet. denied) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). The expert testimony must establish both the standard of care and the violation of that standard. Id. However, even expert testimony that a particular action would be prudent, beneficial, recommended, or desirable cannot be taken as evidence of the standard of care or that the failure to take the action constituted a breach of that standard. Id. at 739. In the present case, Huffaker provided no expert testimony as to any of the theories of liability asserted in his live pleading. Thus, we must analyze each of Huffaker’s theories of liability and the evidence presented as to each to determine whether a layperson would be able to ascertain the applicable standard of care in the absence of expert testimony. Huffaker contends that Wylie LP Gas was negligent in the manner in which it stored propane tanks at its facility. In support of this theory, Huffaker offered the testimony of Tipton that, at the time of the fire, Wylie LP Gas was storing 11,000 full 20 pound propane tanks at its facility. This factual testimony provides no insight into what the applicable standard of care would have been for Wylie LP Gas. In fact, the only evidence relating to the manner of storage of the propane tanks was Tipton’s testimony that the tanks were stored in a manner that did not violate any rule or regulation of the Texas Railroad Commission and that Wylie LP Gas took the additional step of using dividers to ensure that the tanks did not touch one another, even though such a step was not required by any law. As such, we do not find the evidence sufficient to allow an ordinary layperson to conclude what the applicable standard of care was in regard to Wylie LP Gas’s storage of its propane tanks nor that Wylie LP Gas breached this standard. Huffaker also contends that Wylie LP Gas was negligent in failing to properly maintain, handle, and inspect the propane tanks in its storage. In support of this contention, Huffaker cites Bridges’s testimony that there were times when employees of Wylie LP Gas did not properly check the tanks for leaks. However, Bridges also testified that he began working for Wylie LP Gas sometime in the late 1980s. There is no evidence of the frequency with which employees failed to properly check the tanks and, further, there is no evidence as to how often a reasonable propane dealer would be expected to inspect the tanks in its storage. While the testimony does establish that Bridges felt that there were times when proper inspections were not performed, because the basis for his opinion is not shown, we cannot conclude what the applicable standard of care was in regard to Wylie LP Gas’s maintenance, handling, and inspection of the tanks nor does the evidence raise a genuine issue of fact about that standard having been breached. Huffaker contends that Wylie LP Gas was negligent in its filling of the propane tanks, particularly in that it would overfill the tanks which would then require that some of the liquid propane gas be bled off. Huffaker cites testimony of both Rebber and Bridges that there were times when tanks would be overfilled and the tanks would then have to be bled off. However, nothing in this testimony or in any evidence offered by Huffaker establishes that the applicable standard of care would be that no tanks ever be overfilled or that, if a tank was overfilled, that it should not be bled off. Because the filling of liquid propane gas tanks lies beyond the experience of an ordinary layperson, we conclude that Huffaker has provided no evidence of what the applicable standard of care is as it relates to filling propane tanks and, even more so, whether bleeding off the excess propane in an overfilled tank falls below the applicable standard of care. Huffaker also contends that Wylie LP Gas failed to implement and monitor proper safety procedures. The evidence that Huffaker relies on in support of this contention is that Wylie LP Gas had not held fire drills, three employees were performing their work without supervision, and that there were times when employees did not properly check for leaks in the stored tanks. However, there is no evidence that a reasonable liquid propane dealer would conduct fire drills or that, had Wylie held fire drills, the fire would have been contained. Further, there is no indication why employees needed to be supervised at all times or how the lack of supervision of these particular employees fell below the applicable standard of care. As to the failure to properly inspect the stored tanks, that issue was addressed above. Thus, there was no evidence presented that would allow a reasonable layperson to identify the applicable standard of care in relation to Wylie LP Gas’s safety procedures nor that Wylie LP Gas’s safety procedures fell below that standard. Finally, Huffaker contends that Wylie LP Gas knowingly allowed smoking in close proximity to the propane tanks. Rebber testified that he has seen employees “walk right to the gate [of Wylie LP Gas’s facility] and throw a cigarette down” and that it “was possible” that an employee was smoking just east of the propane tank storage area where the fire started. Bridges testified that he was aware that the fire marshal found cigarette butts inside the yard and that the employees were allowed to smoke inside the confines of the gate of Wylie LP Gas’s facility. However, because there was no evidence offered of the proximity of the area where smoking occurred to the propane tanks, we would have to speculate that it was an unsafe distance. While we believe that a layperson could conclude that smoking in close proximity to liquid propane gas tanks was a breach of the applicable standard of care, Huffaker offered no evidence to raise a genuine issue of material fact as to how close to the propane tanks employees were smoking. Because there is no expert evidence establishing the applicable standard of care owed by Wylie LP Gas and because a layperson would not be able to determine the applicable standard of care in regard to the theories of liability asserted by Huffaker, we conclude that the trial court was correct in granting Wylie’s no-evidence summary judgment motions. Conclusion For the foregoing reasons, we affirm the trial court’s judgment. Mackey K. Hancock Justice