Calvin Joseph Smith v. State

• Court: Court of Appeals of Texas
• Decided: June 29, 2006
• Docket: 14-05-00031-CR
• Status: Published

Opinion

Reversed and Remanded and Majority and Dissenting Opinions filed June 29, 2006

Reversed and Remanded and Majority and Dissenting Opinions filed June 29, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00031-CR

CALVIN JOSEPH SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Harris County, Texas

Trial Court Cause No. 20863-C

D I S S E N T I N G   O P I N I O N

            I respectfully dissent to the majority’s conclusion that the trial court erroneously considered extraneous offenses in assessing appellant’s punishment.  The majority finds that, despite “evidence that [the victim] was horribly mistreated over a period of time,” the evidence nonetheless fails to support a conclusion that appellant knew about the abuse but failed to act.  Because there was sufficient circumstantial evidence to support such a finding, I believe the majority errs in reversing and remanding on this issue.

            A defendant recklessly endangers a child when he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places

a child . . . in imminent danger of death, bodily injury, or physical or mental impairment.”  Tex. Penal Code Ann. § 22.041(c) (Vernon Supp. 2005).  Such an offense is a state jail felony.  Id. § 22.041(f).  In this case, the trial court assessed punishment; thus, in its role as factfinder, the trial court could consider any extraneous offense evidence it found the State proved beyond a reasonable doubt.  See Williams v. State, 958 S.W.2d 844, 845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).

            The victim in this case was a five-month-old child.  Although the majority correctly notes that Sheila Hugo, the PSI’s author, could not pinpoint appellant’s last contact with the victim before November 19, 2000, testimonial evidence from appellant’s own witnesses indicates he was regularly involved with her.[1]  Moreover, the record shows she was in his custody on November 19, 2000 for at least eight hours before he took her to the hospital.  Sometime during or immediately before this period, the victim sustained severe abdominal injuries that ultimately caused her death.  According to the PSI, which summarized the victim’s medical records, these injuries “would have been extremely painful and the child would have been crying ‘inconsolably.’”  The evidence also establishes that in the weeks before the victim died, she suffered four broken ribs, fractures in both legs, vaginal and anal tears, and significant bruising.[2]  These injuries were in various stages of healing, and several of the injuries would have been visible to caregivers or caused her to exhibit signs of discomfort, alerting others to her condition.[3]  The existence and severity of the victim’s injuries, their duration, and appellant’s relation to and contact with the victim constitute circumstantial evidence that he knowingly or recklessly endangered her life by failing to act.  Circumstantial evidence alone can meet the beyond-a-reasonable-doubt threshold.  See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

            In addition, the majority states that the trial judge apparently not only considered that appellant knew about the injuries and did nothing but also considered that appellant may have brutally tortured and murdered the decedent.  However, the record shows that after the punishment hearing, the trial judge noted that “there is absolutely no evidence” appellant caused the victim’s bruises and broken ribs.  Later, after closing arguments, the trial judge commented as follows:

            I can only conclude from what I have seen that this child was brutally murdered, brutally tortured. . . .  I find it unreasonable that anyone could believe that the people who—the mother and father of the child could have not known of these matters that I have discussed that are found in these medical records. . . .  I do believe that whatever went on, whatever happened to this little girl, I can only conclude that [appellant] not only knew about it—he has admitted to striking the girl, but the injuries and damages that I see in the records don’t—they don’t come about by one blow.  They don’t come about by one striking.  And they didn’t all happen on November 19th when the baby died.

(emphasis added).  Thus, the record demonstrates that although the trial court did not believe the evidence showed appellant caused the victim’s extraneous injuries, it found he must have known about them.[4]

            Because the trial court could have found beyond a reasonable doubt that appellant was aware of the abuse and failed to act, I disagree with the majority’s conclusion that the trial court erred in considering the victim’s pre-existing injuries in assessing punishment.

            For this reason, I dissent.

                                                                        /s/        Leslie Brock Yates

                                                                                    Justice

Judgment rendered and Majority and Dissenting Opinions filed June 29, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson (Hedges, C.J. majority).

Publish — Tex. R. App. P. 47.2(b).

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^[1]  Reverend Samuel Thompson testified that appellant “always had [the victim] with him in his arms, and he’s just treated her as a father would a child that he loves.”  Letha Thompson, the reverend’s wife, testified that she had seen the victim with appellant on “[m]any occasions” and had seen appellant care for her.

^[2]   The majority notes that the record does not contain the victim’s medical records.  However, the record indicates that the victim’s autopsy report, her pediatrician’s records, and her records from Huntsville Memorial Hospital and Hermann Children’s Hospital were used as source documents for the PSI, which appellant requested.  Also, the record shows the trial court had these medical records in its file and reviewed them to ensure the PSI’s accuracy.  Finally, despite its complaint that the record contains no medical records, the majority describes the medical reports as “evidence” and discusses them at length.

^[3]  The majority accuses the dissent of inference stacking, claiming the dissent infers the victim’s injuries would have been visible to caregivers despite the absence of medical records or expert testimony as to when the injuries occurred and whether they were visible.  However, the PSI, which summarized the medical evidence in the court’s file, states the victim had “six to seven bruises” on her right side that were “yellow in color.”  Further, it is inconceivable that the victim would have been asymptomatic given her extensive list of injuries, which included, in addition to external bruising, “bilateral abdominal trauma, hypovolemic shock (decreased blood volume), abdominal compartment syndrome, proximal jejunal (second of the small intestine) perforation, pancreatic contusion, . . . bilateral perinephric hematomas (bruises to the kidneys),” healing fractures on four ribs, fractures in both legs, and possible vaginal injury.  Moreover, although some of the injuries’ dates were unknown, the PSI indicated the rib fractures were ten to fourteen days old, the bruises were two to three days old, and the abdominal injury was six to twelve hours old.

^[4]  Moreover, the trial court could have considered evidence of appellant’s truthfulness in weighing his claim that he did not see the victim’s bruises.  The Houston surgeon who treated the victim told appellant her abdominal injuries were inconsistent with his explanation for them (chest compressions).  Further, the medical reports summarized in the PSI ruled out appellant’s version of the victim’s abdominal injury due to her severe blood loss on arrival.  Given these inconsistencies, the trial court could reasonably have believed appellant knew of the victim’s injuries—at least within the eight hours he had her before she arrived at the hospital—and disbelieved appellant’s claim that he did not know of them.