John Ross Cansino v. State

11th Court of Appeals Eastland, Texas Opinion John Ross Cansino Appellant Vs. No. 11-02-00155-CR B Appeal from Howard County State of Texas Appellee A jury convicted John Ross Cansino for the capital murder of his son, a child less than six years of age. TEX. PENAL CODE ANN. ' 19.03 (Vernon 2003). Because the State did not seek the death penalty, appellant was sentenced to confinement for life. TEX. PENAL CODE ANN. ' 12.31 (Vernon 2003). We affirm. Issues Presented Appellant presents three points of error on appeal. First, appellant claims that jury misconduct deprived him of a fair trial. Second, appellant argues that the lesser included offenses of manslaughter and criminally negligent homicide should have been included in the charge. Third, appellant claims that the trial court should have granted a mistrial because the jurors received unauthorized communications from the news media. Background Facts On January 19, 2001, appellant worked a late shift that ended at 11:00 p.m. He returned home sometime between 2:00 a.m. and 6:00 a.m. When he arrived home, appellant and his wife, Elaine Sepeda Cansino, had an argument. The family slept late and eventually went to a restaurant at noon. After lunch, the family went shopping and then returned home. Late in the afternoon, Elaine left to pay a bill and to pick up their daughter from the home of Maria Cansino, appellant=s sister-in-law. Appellant remained at home alone with the victim, their seven-week-old son. When Elaine returned home with their daughter, appellant was holding the victim. Elaine noticed that the victim appeared cold and was crying. When she held the victim, she noticed that the victim felt limp. Appellant assured her that the victim was fine, and he took their daughter in the family=s only car to buy dinner. A short time later, Elaine noticed that the victim was not breathing, and she ran with the victim to Maria=s house down the street. Maria then drove Elaine to the hospital where the victim was pronounced dead. The medical staff discovered that the back of the victim=s head had suffered a blunt trauma. James Crenshaw, a registered nurse, testified that part of the victim=s skull felt like A[m]icrowave popcorn in a bag.@ Dr. Ronald F. Tucay performed an autopsy and determined that the victim died from being struck by a blunt object. Dr. Tucay determined that the injuries, which included four skull fractures, could not have occurred by accidentally dropping the victim but, instead, resulted from multiple blows of great force. He stated that the force necessary for the injuries would be consistent with either an automobile accident or dropping the child from a two-story building and that dropping the child from four feet onto a concrete floor would not have caused the injuries. Dr. Tucay further determined that the victim=s ribs had been previously broken and stated that the injury to the ribs was about two weeks old at the time of death. Dr. Joni McClain performed a second autopsy and also determined that the victim=s injuries could not have occurred from being dropped from a height of four feet. Dr. McClain testified that the injuries were comparable to a child being ejected from an automobile during an automobile accident. She further testified that the injuries involved more than one blow. When he discovered that his wife had taken the victim to the hospital, appellant also went to the hospital but remained silent as to the cause of the victim=s injuries. Detective Lupe Liedecke interviewed appellant on the day the victim died, and appellant told him that he did not know what was wrong with the victim. Two days later, Detective Liedecke took appellant=s formal statement concerning the events of the day that the victim died. Detective Liedecke then stepped outside the room to allow appellant to review his statement. When Detective Liedecke returned a few minutes later, appellant was crying and supplemented his statement to say that he accidentally dropped the victim while feeding him. Jury Misconduct In his first point of error, appellant contends that jury misconduct deprived him of a fair trial. To show jury misconduct, appellant attached to the amended motion for new trial an affidavit of one of the jurors who stated that he was Abrow-beat[en]@ into changing his vote to a guilty verdict. The State contends that appellant waived this issue because appellant did not properly present his motion for new trial to the trial court. A motion for new trial is a prerequisite to presenting a point of error on appeal when it is necessary to adduce facts not in the record. TEX.R.APP.P. 21.2. The defendant must Apresent@ the motion for new trial to the trial court within 10 days of filing it unless the trial court, in its discretion, permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court. TEX.R.APP.P. 21.6. The purpose of presentment is to put the trial court on actual notice that the defendant desires the trial court to take some action on the motion for new trial, such as a ruling or a hearing on it. Carranza v. State, 960 S.W.2d 76, 78 (Tex.Cr.App.1998). Thus, the mere filing of a motion for new trial alone is not sufficient to show presentment. Carranza v. State, supra. Appellant=s motion for new trial was necessary to preserve this point of error because the alleged jury misconduct is not in the record. Both appellant=s motion for new trial and his amended motion for new trial were timely. However, the record does not indicate that either of the motions were presented to the trial court. As in Carranza, there is nothing in this record to indicate that the trial court actually knew appellant had filed a motion for new trial and desired a hearing on it. Therefore, appellant did not preserve this error. Moreover, even if appellant had preserved error, his challenge of the validity of the verdict based on the juror=s affidavit would fail. A juror may not testify as to any matter or statement occurring during the jury=s deliberation by way of testimony or affidavit.[1] TEX.R.EVID. 606(b); Hicks v. State, 15 S.W.3d 626, 630 (Tex.App. B Houston [14th Dist.] 2000, pet=n ref=d); Hines v. State, 3 S.W.3d 618, 621-22 (Tex.App. B Texarkana 1999, pet=n ref=d). Appellant=s first point is overruled. Lesser Included Offense In his second point of error, appellant contends that the trial court erred by not including the lesser included offenses of manslaughter and criminally negligent homicide in the jury charge. Either the State or the defendant may request an instruction on a lesser included offense when: (1) the lesser included offense is Aincluded within the proof necessary to establish the offense charged@ and (2) some evidence exists in the record that would permit a rational jury to find that, Aif the defendant is guilty, he is guilty of only the lesser offense.@ Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Cr.App.1997); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Cr.App.), cert. den=d, 510 U.S. 919 (1993); Williams v. State, 34 S.W.3d 587, 588 (Tex.App. B Eastland 2000, pet=n ref=d). Neither party disputes that manslaughter or criminally negligent homicide is a lesser included offense of capital murder. Thus, we need address only the second prong of the test. The State introduced appellant=s signed confession where he stated that the victim=s death was an accident. Members of appellant=s family also testified that appellant told them that he was trying to feed the victim and accidentally dropped him and that this accident caused the head injuries that resulted in the victim=s death. Appellant argues that the evidence that appellant accidentally dropped the victim constitutes evidence that appellant was guilty only of manslaughter or criminally negligent homicide, if he was guilty at all. There is no defense of Aaccident@ under the current Penal Code. The defense of Aaccident@ is encompassed within the Penal Code=s general culpability requirements. Rogers v. State, No. 1412-01, 2003 WL 21184509 (Tex.Cr.App. May 21, 2003); Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982). The culpability requirement for manslaughter is that a person Arecklessly causes the death of an individual.@ TEX. PENAL CODE ANN. ' 19.04 (Vernon 2003). The culpability requirement for criminally negligent homicide is that a person Acauses the death of an individual by criminal negligence.@ TEX. PENAL CODE ANN. ' 19.05 (Vernon 2003). TEX. PENAL CODE ANN. ' 6.03(c) & (d) (Vernon 2003) defines the culpable mental states: (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. 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. (d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it 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. Appellant=s statement contained the following: When I heard my son woke up, I went to his crib and picked him up. I went to the kitchen to fix him a bottle. I did not lay him on the couch, I was holding because he was crying. I was holding with my left hand. I had the bottle on my right hand. I reached to up (sic) the bottle with my left hand. My little boy slipped out of my arm. He fell on the kitchen floor. The evidence that appellant accidentally dropped the victim, if true, would mean that appellant did not have a culpable mental state and, therefore, could not be guilty of homicide.[2] There was no evidence to support a verdict that appellant was guilty of manslaughter (reckless conduct) or of criminally negligent homicide. The trial court properly concluded that the lesser included offenses of manslaughter and criminally negligent homicide should not have been included in the jury charge. Appellant=s second point of error is overruled. Tainted Jury In his third point of error, appellant complains that the jury was tainted by unauthorized communications received from the news media. After the second day of trial, one of the jurors informed the trial court that another juror had violated the trial court=s order by listening to the radio and reading a newspaper account of the trial. The trial court interviewed each member of the jury. Two of the jurors informed the court that Alternate Juror Teria Lynn Dedmon stated that she had listened to the radio and read about the case in the newspaper. The two jurors told the trial court that they immediately informed Alternate Juror Dedmon that she had violated the court=s order. The only information relayed by Alternate Juror Dedmon was that appellant could receive life imprisonment. The trial court noted that the jurors were informed during voir dire that appellant could receive life imprisonment. After learning of the breach by Alternate Juror Dedmon, the trial court dismissed her from the jury panel. The original 12 jurors decided the case. Mistrial is a remedy only appropriate for a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.Cr.App.2000). When a juror converses with an unauthorized person about the case, injury to the accused is presumed, and a new trial may be warranted. Quinn v. State, 958 S.W.2d 395, 401 (Tex.Cr.App.1997); see also TEX. CODE CRIM. PRO. ANN. art. 36.22 (Vernon 1981). However, the State may rebut this presumption of harm. Quinn v. State, supra at 401. In determining whether the State rebutted the presumption of harm, appellate courts should defer to the trial court=s resolution of the historical facts and its determinations concerning credibility and demeanor. Quinn v. State, supra at 401. The person who improperly listened to the radio and read the newspaper was the alternate juror and did not take part in the verdict. No information about the case was transmitted to the other jurors except that, if the defendant was found guilty, he faced life in prison. The trial court determined that the jury already knew this information and that there was no harm. We agree. Appellant=s third point of error is overruled. This Court=s Ruling The judgment of the trial court is affirmed. June 5, 2003 TERRY McCALL Do not publish. See TEX.R.APP.P. 47.2(b). JUSTICE Panel consists of: Wright, J., and McCall, J., and Dickenson, S.J.[3] [1]The rule provides for exceptions when testifying (1) on matters of outside influence and (2) to rebut a claim that the juror was not qualified to serve. TEX.R.EVID. 606(b). [2]A person commits criminally negligent homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of another. TEX. PENAL CODE ANN. '19.01(a) (Vernon 2003). [3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.