Canaday v. State

853 S.W.2d 810, 1993 Tex. App. LEXIS 1536, 1993 WL 180059
CourtCourt of Appeals of Texas
DecidedApril 28, 1993
DocketNo. 09-91-155 CR
StatusPublished
Cited by5 cases

This text of 853 S.W.2d 810 (Canaday v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canaday v. State, 853 S.W.2d 810, 1993 Tex. App. LEXIS 1536, 1993 WL 180059 (Tex. Ct. App. 1993).

Opinion

OPINION

WALKER, Chief Justice.

This appeal results from a conviction for the offense of Injury to a Child, a felony of the first degree. Appellant pleaded not guilty and was found to be guilty by a jury of his peers. Appellant elected to also have the jury assess punishment and on May 1, 1991, the jury assessed punishment against appellant at forty-five (45) years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Factually, appellant was the boyfriend of co-defendant Jacqueline Spradlin. Co-defendant Spradlin was the mother of the victim, Sara Spradlin. Two friends were living with appellant and co-defendant on April 20, 1990. These two friends left for the weekend. Sara was in good health at the time the two friends left. When the friends returned, Sara had bruises on several places about her head. Sara became [812]*812ill, but neither appellant nor co-defendant took her to the doctor until April 30, 1990. On this date, little Sara stopped breathing and died. The medical examiner testified that the injuries to Sara’s head caused her death and that such injuries were from seven to ten days old.

Appellant brings to this Court, five points of error contending that we should enter an order of acquittal or alternatively reverse the judgment of the trial court and remand the cause for a new trial. We accept neither suggested course of action and affirm the trial court’s judgment.

Appellant’s point of error one complains that the trial court erred in refusing appellant’s request for a charge on lesser included offenses. Appellant requested a charge not only on the lesser offenses of recklessly or by criminal negligence causing serious bodily injury, but also for causing bodily injury under all culpable mental states. Appellant relies on Alvarado v. State, 704 S.W.2d 36 (Tex.Crim.App.1985), which holds that a conviction under Tex.Penal Code § 22.04 (Vernon Supp.1993), is proper only when it is shown that the Defendant intended the result of the serious bodily injury, and not merely by showing that the Defendant intended the act that resulted in serious bodily injury. We find, however, that appellant’s use of Alvarado and his inclusion of the “intending the result vs. intending the act” argument is inapplicable to a complaint involving the trial court’s failure to instruct the jury on lesser included offenses. Indeed, the transcript reflects that the trial court properly limited the abstract definitions of the terms “intentionally” and “knowingly” to the results of the criminal conduct charged. See Alvarado, supra at 38-40. This portion of appellant’s first point of error is overruled.

With regard to appellant’s lesser included offense complaint, the Court of Criminal Appeals has recently revised the longstanding two-prong test announced in Royster v. State.1 In Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993), the Court announced that hereafter the two-prong test that must be met before a jury charge on a lesser included offense is to be given is: (1) the lesser included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Id. The Court in Rousseau further directed trial courts as follows:

In applying the two-prong test [footnote omitted], the trial court should make a determination as to whether the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, and not the greater offense.

In the instant case, we find no error in the trial court’s refusing appellant’s request to submit any of the lesser included offense options to the jury. We find compelling the testimony of the four members of the Kerry Thompson household as well as the testimony of Amy Colley and Bob Dison. From the testimony of these six individuals, it is apparent that for at least the last two to three months of the victim’s life, appellant subjected her to a variety of both physical and psychological abuse. Considering this and all of the other testimony in the case, we cannot say that the jury could have rationally found appellant guilty only of any of the lesser included offenses, “and not the greater offense.” Point of error one is overruled.

Point of error two seeks acquittal because the evidence submitted to the jury was insufficient to support the verdict. We overrule this point of error.

The record is replete with evidence of appellant’s hatred and abuse of little Sara Spradlin, who turned three years of age shortly before her death. Detailing testimony alluded to earlier, appellant referred to this little child as “freak” and “mongoloid freak of nature.” Appellant threw this little innocent child ten feet across a room onto a bed. In the last few months of little Sara’s life, witnesses saw appellant slap [813]*813Sara in the face and spank her on numerous occasions, jerking her out of bed by her arm while she was still sleeping, sitting her up in bed while she was asleep so that sometime she would plop down and cry, hitting her on her side, and bathing her in a manner that Sara could be heard screaming amidst the sounds of something being hit. Appellant’s own confession admitted to bruising little Sara when he spanked her, and to popping her on the head knocking her down. Other evidence revealed that when appellant would bathe this little child, her legs would be red from hot water. Screams could be heard from the bathroom during these bathing episodes and little Sara’s hair would be all over the tub; the following day Sara’s lips would be bruised and puffy and she would have dark circles under her eyes. Further evidence of appellant’s hatred for little Sara was shown by his asking her if it was time for bed, but disallowing her to go to bed because appellant had not yet given her permission. Evidence revealed that appellant would occasionally lift little Sara off the ground by grabbing the hair of her head. These incidents led to the weekend of April 20-22, 1990, when Amy Colley and Bob Dison, live-in friends of appellant and co-defendant, left for the weekend. Both Amy and Bob testified that little Sara was in good health that Friday, but upon their return, they observed bruises on various areas of her head. Dison was told by both appellant and co-defendant that Sara was grounded. Amy Colley testified to Jacqueline Spradlin’s statement that appellant had beaten Sara, such statement being overheard by Dison. Colley also testified that little Sara did not act well that week and that Sara needed medical attention. Colley talked to the co-defendant about getting medical attention for Sara. Dison testified that the day following this baby’s death on April 30, 1990, the co-defendant, mother of little Sara, told him during a telephone conversation that she was not going to talk to the police. She also told Dison not to talk to the police and that she hated appellant because he had killed her baby.

Appellant claims that the evidence is circumstantial.

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Bluebook (online)
853 S.W.2d 810, 1993 Tex. App. LEXIS 1536, 1993 WL 180059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canaday-v-state-texapp-1993.