Davis v. State

687 S.W.2d 78, 1985 Tex. App. LEXIS 6343
Court of Appeals of Texas·Decided February 13, 1985·No. 05-84-00427-CR·Published·Cited by 20 cases

Opinion

DEVANY, Justice.

The jury found appellant, Dorothea Davis, guilty of recklessly injuring a child younger than fourteen years and assessed three years imprisonment as punishment. In thirteen grounds of error, appellant complains that the trial court erroneously overruled her objections to the jury charge and photographic evidence of complainant’s condition; denied her requested jury instructions and motions for mistrial; and improperly admitted certain testimony. She also contends that the evidence is insufficient to support her conviction. Because many of appellant’s contentions present nothing for review and because we disagree with her remaining contentions, we affirm her conviction.

Appellant is complainant’s mother. In grounds of error one, two and four, she contends that the trial court erred when it refused her requested jury instructions on the definition of “parent” and when it instructed the jury concerning the meaning of “on or about” the date the offense allegedly occurred. However, none of these grounds contain citations of authority and only one contains a reference to the record. Because these grounds of error do not comply with TEX. CODE CRIM. PROC. ANN. art. 40.09(9) (Vernon Supp.1985), they present nothing for review. McWherter v. State, 607 S.W.2d 531, 536 (Tex.Crim.App.1980); see also, Cook v. State, 611 S.W.2d 83, 87 (Tex.Crim.App.1981) (concerning the need to cite evidence in the record supporting requested instructions).

In her third ground of error, appellant complains of a variance between the indictment and the charge. The indictment alleged that appellant “knowingly and intentionally ... caused serious bodily injury and serious physical deficiency and impairment ... by failing to provide support ..., to wit: failing, neglecting and refusing to provide ... adequate food, clothing and medical care ... (emphasis added).” However, the trial court charged the jury in the disjunctive.

Appellant contends that, by charging the jury in the disjunctive, the jury was authorized to find her guilty for failing to provide adequate clothing. Appellant admits that the State may conjunctively allege the methods in which one commits an offense; however, she argues that the “failure or refusal solely to provide clothing ... [can] not cause serious physical deficiency or impairment.”

We disagree. Whether a parent’s failure to perform a legal obligation owed to his or her child caused “serious physical deficiency or impairment” is a question for the trier of fact. We cannot say that, as a matter of law, the failure to provide adequate clothing could never have this effect on a child. Because appellant has not properly attacked the sufficiency of the evidence as shown below, we think this contention is waived.

Nevertheless, having carefully reviewed the record, we think the evidence would support the jury’s verdict even if failure to provide adequate clothing were its sole basis for finding appellant guilty. See Sidney v. State, 560 S.W.2d 679, 681 *81 (Tex.Crim.App.1978). Medical testimony indicated that the complainant suffered from a severe rash caused by prolonged exposure to urine. A physician testified that this rash was similar to a second-degree burn and caused a substantial risk of death. Thus, we think the jury could have properly inferred that the appellant’s failure to regularly change the complainant’s diapers constituted failure to provide adequate clothing which caused serious physical deficiency.

Concerning the disjunctive submission of the remaining elements of the offense, it is not erroneous to charge the jury in the disjunctive when the indictment alleges them conjunctively unless the statute defines the offense in conjunctive terms. See Ely v. State, 582 S.W.2d 416, 421 (Tex.Crim.App.1979). The offense of injury to a child is disjunctively defined under TEX. PENAL CODE ANN. § 22.04 (Vernon Supp.1985); therefore, the trial court did not err by charging the jury in the disjunctive. Accordingly, appellant’s third ground of error is overruled.

At trial, the State introduced testimony of incriminating statemeiits made by appellant to a social worker who interviewed her when she brought complainant to the hospital for medical care. In her fifth ground of error, appellant contends this testimony was inadmissible because the social worker had not advised her of her rights as required by TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 1979 & Vernon Supp. 1985). The State contends that article 38.-22 is inapplicable because the social worker’s interview was not a “custodial” interrogation.

Custodial interrogation occurs when law enforcement officers initiate questioning after a person has been taken into custody or otherwise significantly deprived of freedom of action. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Probable cause to arrest, subjective intent of the police, focus of the investigation, and the accused’s subjective beliefs are relevant to determining whether the social worker’s questioning occurred while appellant was in “custody.” United States v. Phelps, 443 F.2d 246, 247 (5th Cir.1971).

In the instant case, appellant was interviewed by a state social worker called in by the hospital’s physicians. Concerning her intent for conducting the interview, the social worker testified that she was investigating whether or not to initiate civil proceedings to remove the complainant from appellant’s custody. She was not a police officer nor was she making a criminal investigation. Appellant did not testify whether she believed she was free to leave the hospital’s family room where the interview was held.

On the basis of this evidence, the interview was not a “custodial interrogation” which required Miranda warnings. Cf. Payne v. State, 579 S.W.2d 932 (Tex.Crim.App.1979) (holding general questioning by probation officer not a “custodial” interrogation). Consequently, appellant’s fifth ground of error is overruled.

Appellant next complains that the trial court erred when it admitted photographs depicting the complainant’s condition because they were not properly authenticated and because they were inflammatory. Concerning the authentication issue, appellant argues that, although the authenticating witness stated that these photos accurately depicted the child’s condition on the day they were taken, they were inadmissible because the witness did not testify before the photos were admitted that she was present when they were taken.

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Davis v. State, 687 S.W.2d 78, 1985 Tex. App. LEXIS 6343 (Tex. Ct. App. 1985).

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