Jason William Lawrence v. State

Affirmed and Memorandum Opinion filed October 26, 2006 Affirmed and Memorandum Opinion filed October 26, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00543-CR ____________ JASON WILLIAM LAWRENCE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1025883 M E M O R A N D U M   O P I N I O N Jason William Lawrence, appellant, seeks reversal of his conviction for injury to a child. In his first two issues, appellant contends the trial court erred by improperly discharging a juror and overruling his motion for new trial. In his remaining four issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Houston police officer Steven Januhowski and two other officers went to a motel room registered under appellant=s name to execute an outstanding arrest warrant for misdemeanor theft. The officers knocked on the door, and appellant came to the window and peered outside. Appellant retreated into the interior of the motel room out of the officers= view for approximately two and a half minutes. Appellant then answered the door carrying a small child. According to Officer Januhowski, appellant told the officers there was no one else in the room. Officer Januhowski entered the room to investigate a noise he heard coming from the bathroom and discovered the seven-month-old complainant in the bathtub sitting in a car seat hidden behind the shower curtain. Officer Januhowski observed what appeared to be burn injuries on the baby. The baby was transported to a hospital by ambulance, where a medical examination revealed a third-degree burn on the baby=s hand. The baby also suffered from what appeared to be a cigarette burn on his testicle and burns of an unknown source on his face and nose. A jury found appellant guilty of injury to a child and assessed punishment at 25 years= confinement. II. Disabled Juror In his first issue, appellant contends the trial court erred in discharging a juror and proceeding to trial with an eleven-person jury. The trial court declared a juror disabled and excused him from further service because the juror disclosed that he had been diagnosed with liver disease two weeks prior to trial and had medical appointments scheduled during the week of trial. When asked whether he would be able to uphold his oath, the juror stated, AI don=t believe I=ll be able to because I believe my mind will be otherwise occupied.@ The juror also informed the trial court that he Ajust can=t serve right now and be expected to pay full attention,@ and stated he would be unable to separate his anxieties and concerns regarding his recent medical diagnosis. At trial, appellant agreed that the juror could not be fair, stating, Athe Defense is of the opinion that based on the information that we were given he=s not going to be a fair juror.@ Appellant requested that the trial court permit another juror to be chosen, either from the remaining veniremembers, or from a separate smaller group of veniremembers empaneled for the sole purpose of filling the remaining seat on the jury. The trial court understood that neither procedure was permitted and decided to proceed to trial with an eleven-person jury. Appellant moved for a mistrial as follows: We feel that no testimony has been given yet and at this time we would like our client to be judged by 12 instead of 11 because there=s been no prejudice right now as far as any witnesses and we feel that we would prefer to have a 12 member panel and so we request a mistrial. On appeal, appellant contends the record fails to show the juror was so impaired by his medical condition that he could not fully and fairly perform his responsibilities as a juror. Appellant=s issue on appeal does not comport with his objection at trial. Therefore, appellant has waived error. See Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Tex.R.App. P. 33.1(a)(1). Even if appellant preserved error, we find the trial court did not abuse its discretion by proceeding to trial with an eleven-person jury. Generally, not less than twelve jurors can render and return a verdict in a felony case. See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon 2006). However, if one juror dies or becomes disabled from sitting before the charge of the court is read to the jury, the remainder of the jury has the power to render the verdict. Id. ADisabled from sitting@ means Aphysical illness, mental condition, or emotional state which hinders one=s ability to perform one=s duties as a juror,@ or Aany condition that inhibits the juror from fully and fairly performing the functions of a juror.@ Ramos v. State, 934 S.W.2d 358, 369 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1198 (1997). We review the trial court=s determination as to whether a juror is disabled for abuse of discretion. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). A juror=s disability is not limited to physical disease, but also includes any mental condition or emotional state that inhibits the juror from fully and fairly performing the function of a juror. Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000). Lacking the ability to concentrate due to emotional stress caused by a death in the family, a family illness, or time pressures of a new job have been held examples of such disabling conditions. Ramos, 934 S.W.2d at 369. Here, the trial court could have reasonably determined the juror=s anxieties surrounding his recent diagnosis and upcoming medical tests would inhibit him from fully and fairly performing his responsibilities as a juror. Accordingly, we conclude the trial court did not abuse its discretion by finding the juror disabled and proceeding with an eleven-person jury. See Moffett v. State, 949 S.W.2d 778, 783 (Tex. App.CBeaumont 1997, pet. ref=d) (finding no abuse of discretion when juror had been up all night due to family problems and could not concentrate on the trial); State v. Balderas, 915 S.W.2d 913, 917 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (finding no abuse of discretion when juror had a medical appointment for back surgery). We overrule appellant=s first issue. II. Jury Misconduct In his second issue, appellant contends the trial court erred in overruling his motion for new trial without a hearing. Appellant filed a motion for new trial on the basis of jury misconduct. Appellant=s motion for new trial was supported by an affidavit from his defense counsel. The affidavit revealed that one day before the jury began punishment deliberations, a juror=s wife received a collect telephone call originating from the jail. After the verdict on punishment, appellant=s trial counsel interviewed the juror, who related the story of the phone call to trial counsel. In her affidavit, appellant=s counsel states, AAt the time I spoke with [the juror], it was clear from the reaction of the other jurors that they had already heard about the jail call.@ No affidavit from any of the jurors was attached to the motion for new trial. We review the trial court=s decision to grant or deny a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We must not substitute our judgment for that of the trial court; rather, we review the trial court=s decision to determine whether it was unreasonable or arbitrary. Id. Rule 21.3(f) of the Texas Rules of Appellate Procedure provides that in a criminal case, a defendant must be granted a new trial when, after retiring to deliberate, the jury has received other evidence, or when a juror has talked with anyone about the case. To prove the jury received other evidence for purposes of Rule 21.3(f), appellant is limited by Rule 606(b) of the Rules of Evidence. See Garza v. State, 82 S.W.3d 791, 794 (Tex. App.CCorpus Christi 2002, no pet.). Rule 606(b) permits a juror to testify about outside influence, but a juror may not testify as to any matter or statement occurring during the jury=s deliberations, or to the effect of anything on any juror=s mind or emotions or mental processes, as influencing any juror=s assent to or dissent from the verdict or indictment. Tex. R. Evid. 606(b). Information gathered by a juror that is shared with the other jurors does not constitute outside influence, even if it is shared specifically to influence the other jurors= votes. Garza, 82 S.W.3d at 794. Even a juror=s injection of his own personal experiences, knowledge, or expertise will not be considered an outside influence because it emanates from inside the jury. Franks v. State, 90 S.W.3d 771, 800 (Tex. App.CFort Worth 2002, pet. ref=d). Because the affidavit signed by appellant=s counsel does not contain averments constituting outside influence, it is insufficient to raise the issue of jury misconduct under Rule 21.3(f). The current version of Rule 606(b) became effective March 1, 1998, with the adoption of the consolidated rules of evidence. The rule represents a significant departure from previous Texas criminal practice. Former Rule of Criminal Evidence 606(b) permitted jurors to testify as to anything relevant to the validity of a verdict or indictment; the former rule thus placed no independent limitation on a juror=s ability to testify. See Buentello v. State, 826 S.W.2d 610, 612 (Tex. Crim. App. 1992). Current Rule of Evidence 606(b) dramatically restricts a juror=s testimony. The rule in criminal cases is now the same as in civil cases: Jurors may testify regarding whether any outside influence was improperly brought to bear upon a juror or to rebut a claim that a juror is not qualified to serve. Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Here, because the source of any allegedly improper information was the juror, the trial court could have determined there were no reasonable grounds to believe outside influence was improperly brought to bear upon the jury. See Hines v. State, 3 S.W.3d 618, 621 (Tex. App.CTexarkana 1999, pet. ref=d). Accordingly, the trial court did not abuse its discretion by overruling appellant=s motion for new trial without a hearing. Appellant=s second issue is overruled. III. Sufficiency of the Evidence In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to show that he caused injury by placing the complainant=s hand into hot water or holding the complainant=s hand against something very hot. A person commits the offense of injury to a child if he intentionally or knowingly, by act or omission, causes serious bodily injury to a child. See Tex. Penal Code Ann. _ 22.04(a)(1) (Vernon 2003). A. Standard of Review In reviewing the record for legal sufficiency, we must 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 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We must resolve any inconsistencies in the testimony in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). B. Corroboration of Accomplice Witness Appellant argues the evidence is legally and factually insufficient to corroborate the testimony of the baby=s mother that appellant caused the baby=s hand injury. The baby=s mother pleaded guilty to the offense of injury to a child, and the trial court instructed the jury that she was an accomplice witness as a matter of law. A conviction cannot rest on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the offense. See Tex. Crim. Proc. Code Ann. art. 38.14 (Vernon 2005). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and ascertain whether the remaining evidence tends to connect the defendant with the offense. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The baby=s mother testified that she and appellant had been living in motels near her place of employment. She worked as an exotic dancer, and appellant took care of her children while she worked. Appellant called her at work when the baby received the injury to his hand. Appellant told her that the baby appeared a little red after getting out of the shower. Because appellant described the injury as a rash, she instructed appellant to treat the injury with ointment. Appellant called her back later and told her the ointment appeared to be making it worse. When she arrived home and saw the baby=s injury, she believed it was a burn. She asked appellant if he thought the water was too hot, and appellant became angry at the accusation. She did not want to take the baby to the hospital because she was afraid that someone from Child Protective Services (CPS) would take the baby away from her. She called a pharmacy and described the baby=s injury as similar in appearance to a sunburn. The pharmacist told her there was no reason to take the baby to the hospital. She and appellant treated the baby=s injury with hydrogen peroxide or rubbing alcohol and antibiotic ointment. She also used a spray on bandage, but the baby cried when she tried to remove the bandage. In corroboration of the mother=s testimony, the State offered the testimony of Officer Januhowski, the arresting officer, Julia Caesar, the CPS case worker, the baby=s foster mother, and Dr. Larry Hollier, a pediatric plastic surgeon. Officer Januhowski testified that appellant denied anyone else was present when he entered the motel room to execute an arrest warrant. Januhowski heard a noise from the bathroom, pushed the door open, and found the baby sitting in a car seat in the bathtub behind a closed shower curtain. Januhowski testified that the baby had a swollen, deep red injury to his hand and appeared to be in pain. Julia Caesar, the CPS case worker, testified the baby had a burn mark on his nose, a severe case of cradle cap, a cigarette burn on his testicle, and an infected burn on his hand. She further testified the baby appeared to be withdrawn, malnourished and underweight. The baby=s mother worked Aa lot of hours,@ and appellant was the primary caregiver. When appellant attended supervised visits, the baby appeared to be afraid and would jerk away when appellant tried to touch him. The baby=s foster mother testified to the extent of the baby=s injuries after he began to live with her. When she changed the bandage on his hand, she observed his fingers were enlarged and misshapen. It appeared the baby had been left in one position for extended amounts of time because his head was misshapen. She testified the baby=s greatest fear was bath water. When she ran the bath water, the baby would become Ahysterical,@ and it took a long time to gain his trust. Dr. Hollier testified the baby suffered a third-degree burn on his hand. He testified the injury was not an accident because a child will not expose his hand to a heat source long enough to cause such a severe burn. Dr. Hollier testified that the burn was the most severe hand burn he had seen in his experience as a pediatric plastic surgeon. He believed the burn was most likely caused by someone holding the baby=s hand in hot water for approximately five to ten seconds. He ruled out other possible causes, including previously existing infection. He testified that the baby would likely need to undergo additional surgeries, and the injury would cause protracted loss or permanent disfigurement. Treating the burn with hydrogen peroxide or rubbing alcohol, as appellant described, likely aggravated the injury and delayed healing. Appellant testified that he was the baby=s primary caretaker. He awoke one morning and the baby had a soiled diaper. To clean the baby, appellant took a shower with him, put on a fresh diaper, and went back to sleep. Two hours later, appellant awoke and noticed the baby=s face and hand were pink. Appellant called the baby=s mother and described his skin condition, and she instructed him to put ointment on the baby=s skin. The ointment did not seem to help, so appellant cleaned it from the baby=s hand and called a pharmacist. The pharmacist recommended an antibiotic ointment. After two days, appellant testified the hand injury worsened and appellant suggested to the baby=s mother that she take him to the hospital. The mother did not want to take the baby to the hospital because she feared CPS would take the baby. Appellant claimed he did not know he could take the baby to the hospital without the mother=s permission. Appellant denied immersing the baby=s hand in hot water. Appellant admitted he and the baby=s mother Ajumped bond@ for approximately two months. Appellant=s mother and step-father also testified for appellant. Appellant=s mother testified that appellant was good with the baby. Appellant=s step-father testified that he never witnessed appellant exhibit violence toward a child. Reviewing the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The mother=s testimony was corroborated by evidence that appellant was alone with the baby when the injury happened, the injury could not have been accidental, and appellant attempted to flee after being released on bond. See Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (holding that evidence of flight and guilty demeanor coupled with other corroborating circumstances may tend to connect a defendant with the crime). Further, reviewing the evidence in a neutral light, we find the evidence supporting the verdict is not so weak to justify a finding of guilt beyond a reasonable doubt or that the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. We overrule appellant=s third and fourth issues. C. Injury by Omission In his fifth and sixth issues, appellant argues the evidence is legally and factually insufficient to show he caused serious bodily injury to a child by omission. Specifically, appellant argues there is insufficient evidence to show he assumed care, custody, or control of the complainant. An omission is conduct constituting an offense if the actor has assumed care, custody, or control of a child. See Tex. Penal Code Ann. _ 22.04(b)(2) (Vernon 2003). Here, police found the baby in the bathroom of a motel room registered under appellant=s name. Appellant was the only adult present in the room. Appellant admitted he was the primary caretaker for the baby and admitted placing the baby in a shower a few hours before he noticed the injury to the baby=s hand. Appellant further admitted he did not seek medical care for the baby beyond phoning a pharmacist. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to show appellant assumed care, custody, or control of the complainant. Appellant emphasizes his testimony that he did not think he could seek medical care for the complainant because he thought a parent had to be present. Appellant also testified, however, that he recognized the hand did not improve after two days of home treatment and that the baby should see a doctor. He testified that the mother=s fear of CPS prevented him from seeking medical care. Viewing all the evidence in a neutral light, we conclude the evidence supporting the verdict is not too weak to support a finding of guilt beyond a reasonable doubt, and the contrary evidence is not so strong that it would prevent a reasonable jury from finding guilty beyond a reasonable doubt. We overrule appellant=s fifth and sixth issues. The judgment of the trial court is affirmed. /s/ Charles Seymore Justice Judgment rendered and Memorandum Opinion filed October 26, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).