Brenika Lott v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 19, 2024
• Docket: 09-22-00287-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00287-CR ________________

BRENIKA LOTT, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D200424-R ________________________________________________________________________

MEMORANDUM OPINION

A jury convicted Brenika Lott (“Lott”) of capital murder, and the trial court

sentenced her to life in prison without the possibility of parole. See Tex. Penal Code

Ann. § 19.03(a)(8). In one issue, Lott complains that the trial court reversibly erred

and violated her constitutional right to a grand jury indictment by allowing a

substantive amendment to the indictment. For the reasons below, we will affirm the

trial court’s judgment.

1 BACKGROUND

Factual Background

In June 2020, Lott brought her five-year-old goddaughter, “Daisy,” from

Louisiana to Orange, Texas for a visit. 1 Daisy stayed with Lott and “David,” Lott’s

eleven-year-old son, for over a week, but Lott began complaining to Daisy’s mother

that she was misbehaving. Daisy’s mother told Lott to bring Daisy back home, but

Lott did not.

On Friday, June 26, 2020, police officers and firefighters responded to Lott’s

home in Orange after receiving a report that a child was not breathing. Upon arrival

they found Daisy laying naked on the floor. Responders described her as “cold” to

the touch with bruises all over her body. Daisy’s eyes were swollen shut, and it

looked like she was badly beaten.

Lott told officers that she and David were the only people who had been in

the home with Daisy. Police interviewed Lott, who denied that Daisy was injured

and instead insisted she suffered an allergic reaction to “dust mites.” Specialized

forensic interviewers initially questioned David, Lott’s son, but after one of the

detectives developed a rapport with him, David later told the detective he witnessed

1To protect the victim’s privacy and the privacy of Lott’s minor son, we

identify them by using pseudonyms. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Lott beat Daisy on the head and body with her fists and multiple objects. David

voluntarily walked detectives through his home and pointed out objects he observed

Lott beat Daisy with. Witnesses at trial included David and the forensic pathologist,

among others. The forensic pathologist testified that Daisy’s cause of death was

“craniocerebral trauma to include skull fractures, subdural hemorrhage, and

brainstem contusions due to blunt force trauma of head and neck.” She testified the

injuries could have been made by being hit with a hand, wooden stick, metal pipe,

metal tube, or belt buckle.

Indictment

On October 14, 2020, an Orange County Grand Jury indicted Lott for capital

murder, and the indictment alleged that:

BRENIKA LOTT hereinafter styled Defendant, on or about June 26, 2020, and before presentment of this indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely, [Daisy] an individual younger than 10 years of age, by hitting the said [Daisy] in the head with her hand[.]

In May 2021, the State filed its (1) Notice of Intent to Amend and Interlineate

Indictment, and (2) Motion for Leave of Court to Amend and Interlineate Indictment.

The proposed amended language provided:

BRENIKA LOTT hereinafter styled Defendant, on or about June 26, 2020, and before presentment of this indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely, [Daisy], an individual younger than 10 years of age, by hitting the said [Daisy] in the head and body with a

3 blunt object, to wit: her hand or a wooden stick or a metal pipe or a metal tube or a belt buckle[.]

The same day, the trial court signed an Order granting leave to amend, and the

Indictment was amended consistent with the trial court’s Order.

Lott never objected to the Amended Indictment, and before trial, the parties

specifically addressed the Amended Indictment. During this discussion of the

Amended Indictment, defense counsel noted, “I wanted to be clear on the record that

I’m making a strategic decision not to object to the changes.”

The jury convicted Lott of capital murder, and the trial court sentenced her to

life in prison without the possibility of parole. Lott timely appealed. In one issue,

she complains that the trial court reversibly erred and violated her constitutional right

to a grand jury indictment by allowing a substantive amendment to the indictment.

ANALYSIS

The Texas Constitution gives a defendant the right to have a grand jury

determine whether there is probable cause to believe that he committed a particular

offense. Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05. “An

indictment is a written instrument presented to a court by a grand jury charging a

person with the commission of an offense.” Tex. Const. art. V, § 12(b). Practice and

procedures relating to an indictment’s use and its contents, amendment, sufficiency,

and requisites, “are as provided by law.” Id.

4 That said, if a defendant fails to object to any defect in the indictment’s form

or substance before trial begins, she waives any such defect. See Tex. Code Crim.

Proc. Ann. art. 1.14(b). As the Court of Criminal Appeals has explained, “The right

to be charged by an instrument that is free of defects, errors, and omissions is neither

a ‘systemic’ requirement nor a ‘waivable’ right.” Sanchez v. State, 120 S.W.3d 359,

367 (Tex. Crim. App. 2003). Thus, a defendant must object to any errors in the

charging instrument in a timely and specific manner, and any unobjected-to errors

in the instrument are not “fundamental.” Id.; see also Tex. R. App. P. 33.1(a)

(requiring a timely, specific complaint in the trial court to preserve error).

Here, not only did Lott fail to raise the objection to the indictment she now

raises on appeal, but she affirmatively represented to the trial court she made a

“strategic decision” not to object to the Amended Indictment. We hold that Lott has

waived this complaint. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Tex. R. App. P.

33.1(a); see also Sanchez, 120 S.W.3d at 366–67. We overrule issue one.

CONCLUSION

Having overruled Lott’s sole issue, we affirm the trial court’s judgment.

AFFIRMED. W. SCOTT GOLEMON Chief Justice Submitted on December 22, 2023 Opinion Delivered June 19, 2024 Do Not Publish Before Golemon, C.J., Johnson and Wright, JJ.