Jammie Kathrin Kelley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 18, 2023
• Docket: 01-22-00351-CR
• Status: Published

Opinion

Opinion issued July 18, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00351-CR ——————————— JAMMIE KATHRIN KELLEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 21-CR-0506

MEMORANDUM OPINION

Jammie Kathrin Kelley appeals her conviction for injury to a child. Kelley

complains that there was (1) insufficient evidence to support her conviction and

(2) reversible jury charge error. Because the evidence was sufficient to convict

Kelley and the jury charge error was not egregiously harmful, we affirm. Background

Kelley is the grandmother of C.H., who was ten years old at the time of the

offense. C.H. was living with his mother, S. Henderson, in the Dallas area. Around

February 2021, Henderson contracted COVID and could not care for C.H., so he

went to stay with Kelley and her husband at their apartment in Galveston. By

mid-February, Kelley and her husband decided that C.H. needed to return to Dallas

because Kelley was struggling to look after him. The morning of the incident, Kelley

ran some errands before she planned to take C.H. to Dallas. She took C.H. with her

to shop for groceries. At the store, C.H. became angry and disobeyed Kelley. On the

drive back to Kelley’s apartment, C.H. kicked the dashboard, hit the car window,

tried to break a video screen in the car, and tried to put the car in park while Kelley

was driving.

Upon returning to the apartment, Kelley told C.H. to bring the groceries inside

and walked toward her apartment. When she turned to look back at C.H., she noticed

that the groceries were strewn across the ground. Kelley became angry and yelled at

C.H. to pick the groceries up. A neighbor, A. Khemlov, heard the yelling, looked

out his window, and began videorecording.

The video shows Kelley yelling at C.H. and grabbing his arm, chest, and shirt.

C.H. responds by touching his chest and saying, “ow.” Then, Kelley grabs C.H.’s

shirt again as he moves away. While backing away, C.H. steps over a curb onto a

2 grassy area before Kelley reaches for his shirt again. C.H. falls onto the grass, and

Kelley drags him by his shirt toward the curb while ordering him to pick up the

groceries. C.H. is picking up items while being yelled at before they both begin

walking toward the apartment building. Kelley yells at C.H. to pick up another item,

and he is seen bending down then standing up before Kelley swings her arm at his

head and appears to make contact. He ends up on the ground, after the swing, when

Kelley then kicks him. Kelley continues to yell at C.H. to pick up items on the ground

before picking some items up herself, walking away, and telling C.H., “come get

your shit so you can go home.” As the video ends, C.H. looks at his elbow and

exclaims “oh my God” before following Kelley.

Soon after, Galveston Police Department Officer C. Wilson arrived at

Kelley’s apartment. Officer Wilson could hear yelling from outside the apartment

and saw what appeared to be fresh droplets of blood at the base of the door. Upon

entering the apartment, Kelley informed him that she had “a child bleeding” and that

there was blood on the sofa from the parking lot incident. Officer Wilson interviewed

Kelley and C.H. While interviewing C.H., Officer Wilson saw an abrasion on his

elbow. Kelley was arrested and taken into custody.

Kelley was charged with third-degree felony injury to a child, pleaded not

guilty, and went to trial. During the guilt-innocence phase of trial, the jury heard

3 testimony from Officer Wilson, Khemlov, and Kelley. The jury convicted Kelley

and sentenced her to three years’ confinement.

Sufficiency of the Evidence

Kelley contends that the evidence could not support her conviction because

there was no evidence that: (1) she intentionally or knowingly caused bodily injury

to C.H. by striking him with her hand or foot, or by causing him to strike the ground;

and (2) her justification defense was negated. The State responds that the video

evidence and eyewitness testimony are enough to support Kelley’s conviction.

A. Standard of Review

We review the legal sufficiency of the evidence by considering all the

evidence, in the light most favorable to the jury’s verdict, to determine whether any

rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the factfinder to

fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences

from the facts. Williams, 235 S.W.3d at 750. Our role is that of a due process

safeguard, and we consider only whether the factfinder reached a rational decision.

See Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020,

pet. ref’d); see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (the

4 reviewing court’s role “is restricted to guarding against the rare occurrence when a

fact finder does not act rationally”).

Sufficiency of the evidence should be measured by the elements of the offense

as defined by a hypothetically correct jury charge. See Hardy v. State, 281 S.W.3d

414, 421 (Tex. Crim. App. 2009). “In reviewing the legal sufficiency of the evidence,

a court must consider both direct and circumstantial evidence, and any reasonable

inferences that may be drawn from the evidence.” Malbrough, 612 S.W.3d at 559

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). Circumstantial and direct evidence

are equally probative in establishing the defendant’s guilt, and circumstantial

evidence alone can be sufficient. Malbrough, 612 S.W.3d at 559 (citing Clayton,

235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

“For evidence to be sufficient, the State need not disprove all reasonable alternative

hypotheses that are inconsistent with a defendant’s guilt.” Id. The appellate court

“considers only whether the inferences necessary to establish guilt are reasonable

based on the cumulative force of all the evidence when considered in the light most

favorable to the jury’s verdict.” Id. (citing Wise, 364 S.W.3d at 903; Hooper, 214

S.W.3d at 13). We review factual sufficiency of the evidence under the same

standard of review as that for legal sufficiency. See Edwards v. State, 497 S.W.3d

147, 156 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

5 B. Analysis

Kelley was charged with third-degree felony injury to a child under the Texas

Penal Code, which makes it an offense to “intentionally [or] knowingly . . . by

act . . . cause[] to a child . . . bodily injury.” TEX. PENAL CODE §22.04(a)(3), (f).

Injury-to-a-child offenses under Section 22.04 are “result-oriented” and “[require] a

mental state that relates not to the specific conduct but to the result of that conduct.”

Williams, 235 S.W.3d at 750.

“A person acts intentionally, or with intent, with respect . . . to a result of [her]

conduct when it is [her] conscious objective or desire to . . . cause the result.” TEX.

PENAL CODE § 6.03(a). “A person acts knowingly, or with knowledge, with respect

to a result of [her] conduct when [she] is aware that [her] conduct is reasonably

certain to cause the result.” Id. § 6.03(b). Mental culpability may be inferred from a

defendant’s conduct and the surrounding facts. Moore v. State, 969 S.W.2d 4, 10

(Tex. Crim. App. 1998). The State had to prove Kelley intentionally or knowingly

caused bodily injury to C.H. by striking him with her hand or foot, or by causing

C.H. to strike the ground.

Kelley contends that the only injury C.H. received was not serious, it resulted

from an accident, and that her actions were justified under the law. The neighbor

who recorded the video, Khmelov, testified that he had heard a woman shouting

outside for a few minutes. Khemlov looked outside and saw a “disturbing” argument

6 between a boy and a woman he assumed was the boy’s grandmother. Khemlov’s

video of the incident shows Kelley’s physical and verbal interactions with C.H. After

Khemlov recorded the video, he called the police because he was uncomfortable

with the situation and believed it was child abuse.

Next, Officer Wilson testified that when he arrived at Kelley’s apartment, he

saw blood droplets at the door and heard yelling. While inside, Kelley told Officer

Wilson that she had a bleeding child and explained that the stains on the sofa were

blood from the incident that had just occurred. While interviewing C.H., Officer

Wilson noticed an injury on C.H.’s elbow and documented it.

Lastly, Kelley testified about the incident and how she feared C.H. She

described C.H. as “oppositional,” “emotionally expressive,” “combustible,” and

“scary.” She explained that he can become aggressive for no reason and will bite,

spit, hit, and kick. Kelley explained that the night before the incident, C.H. was upset

and had damaged the closet door in their apartment by slamming it. She described

how, on the day of the incident, C.H. was angry and would not obey her, slammed

her car door, threw things, kicked the dashboard, and tried to put her car in park

while she was driving. Turning to the incident, Kelley testified that after arriving at

her apartment’s parking lot, she told C.H. to bring the groceries inside. As Kelley

walked toward her apartment, she turned and saw groceries on the ground. She told

C.H. to pick them up, but he refused. She was scared that C.H. would physically

7 assault her. Kelley denied swinging at C.H. Instead, she described it as “snatching”

him. And when she went to snatch him, he ducked. While Kelley admitted that she

kicked C.H., she explained that she did so defensively to kick his legs away from

her after he kicked her.

As for Kelley’s argument that her actions were justified, she relies on Texas

Penal Code Section 9.61: “[t]he use of force, but not deadly force, against a child

younger than 18 years is justified: (1) if the actor is . . . acting in loco parentis to the

child; and (2) when and to the degree the actor reasonably believes the force is

necessary to discipline the child or to safeguard or promote his welfare.” TEX. PENAL

CODE § 9.61(a). In loco parentis includes a grandparent. Id. § 9.61(b). A “reasonable

belief” is “a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” Id. § 1.07(a)(42). Kelley was acting in loco parentis to

C.H. See id. § 9.61(b). Kelley does not dispute that she grabbed and kicked C.H. but

that she reasonably believed the force was necessary to discipline him.

The jury was not required to believe any part of Kelley’s testimony. Merritt

v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012) (jury is the sole judge of

witness credibility and of the weight given to any evidence). Viewing the evidence

in the light most favorable to the verdict, we conclude that the jury could reasonably

find, beyond a reasonable doubt, that Kelley intentionally or knowingly caused

bodily injury to C.H. by striking him with her hand or foot, or by causing C.H. to

8 strike the ground. Williams, 235 S.W.3d at 750; See Bolton v. State, 619 S.W.2d 166,

167 (Tex. Crim. App. 1981) (evidence of cut on arm sufficient to show bodily

injury); Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) (“Any

physical pain, however minor, will suffice to establish bodily injury.”); Aguilar v.

State, 263 S.W.3d 430, 434 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d) (factfinder may infer that victim felt or suffered physical pain). And we

conclude, viewing the evidence in the light most favorable to the verdict, that there

was also enough evidence for the jury to have found against Kelley on the defensive

issue she raised. See Adelman v. State, 828 S.W.2d 418, 421–22 (Tex. Crim. App.

1992); see also Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (when

jury finds defendant guilty, there is implicit finding against defensive theory).

We overrule Kelley’s first issue.

Jury Charge Error

Kelley contends that the trial court gave an overly broad definition of

“intentionally” in the jury charge, which was egregiously harmful error. The State

responds that Kelley was not egregiously harmed by any jury charge error because

the application paragraph correctly instructed the jury.

The trial court must give the jury a written charge that sets forth the applicable

law in the case. See TEX. CODE CRIM. PROC. art. 36.14. When reviewing for jury

9 charge error, we apply a two-step procedure. See Barrios v. State, 283 S.W.3d 348,

350 (Tex. Crim. App. 2009) (citing test procedure from Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). Step one requires the

appellate court to determine whether there is error in the charge. Id. If there is error,

the appellate court must conduct a harm analysis. Celis v. State, 416 S.W.3d 419,

423 (Tex. Crim. App. 2013). If there was error and a defendant timely objected, then

reversal is required if the defendant was harmed. Marshall v. State, 479 S.W.3d 840,

843 (Tex. Crim. App. 2016). But if the defendant did not timely object, “then

reversal is required only if the error was so egregious and created such harm that the

defendant did not have a fair and impartial trial.” Id.

B. Analysis

Kelley did not object to the jury charge, so reversal is required only if there

was error and it was egregiously harmful. Id. Texas Penal Code Section

6.03(a) defines the mental state of “intentionally” as “[a] person acts intentionally,

or with intent, with respect to the nature of his conduct or to a result of his conduct

when it is his conscious objective or desire to engage in the conduct or cause the

result.” But Texas Penal Code Section 22.04(a) applies intent to the result, bodily

injury to a child, not to engaging in the conduct. See id. § 22.04(a)(3).

The trial court’s instruction stated, “[a] person acts intentionally, or with

intent, with respect to the result of her conduct when it is her conscious objective or

10 desire to engage in the conduct or cause the result.” Because the jury charge included

the Texas Penal Code’s full definition of the term “intentionally,” the trial court

erred. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (trial court

errs when it fails to limit language on applicable culpable mental states to appropriate

conduct).

As for whether Kelley was egregiously harmed, we consider the entire jury

charge, the state of the evidence, the parties’ arguments, and any other relevant

information. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015).

Definitions in a charge must be examined in the context in which they appear and

not in isolation. Herrera v. State, 526 S.W.3d 800, 806 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d) (citing Turner v. State, 805 S.W.2d 423, 430–31 (Tex. Crim.

App. 1991)). The definitions in the jury charge’s abstract paragraphs act as a glossary

to help the jury understand concepts and terms used in the application paragraphs of

the charge. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). The

jury charge’s application paragraph applies the pertinent penal law, abstract

definitions, and general legal principles to the particular facts and the indictment.

See Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).

Here, the application paragraph states:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th day of February, A.D., 2021, in Galveston County, Texas, the Defendant, Jammie Kathrin Kelley, did then and there intentionally or knowingly cause bodily injury to [C.H.], a child 11 fourteen (14) years of age or younger, by striking said [C.H.] with Defendant’s hand or foot or causing [C.H.] to strike the ground, then you will find the Defendant guilty of the offense of Injury to a Child. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will acquit the Defendant and say by your verdict “not guilty.”

Kelley does not dispute that the application paragraph correctly tracked the

indictment and Texas Penal Code Section 22.04. See TEX. PENAL CODE §22.04(a)(3).

The application paragraph limited the definition of intentionally to the result as

required by Section 22.04. See id. Because the application paragraph correctly

instructed the jury, there was not egregious harm. See Medina v. State, 7 S.W.3d

633, 640 (Tex. Crim. App. 1999) (“Where the application paragraph correctly

instructs the jury, an error in the abstract instruction is not egregious.”); Williams v.

State, 226 S.W.3d 611, 618–19 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (defendant not egregiously harmed when abstract paragraph of charge included

superfluous definition of recklessly).

We overrule Kelley’s final issue.

12 Conclusion

We affirm the judgment of the trial court.

Sarah Beth Landau Justice

Panel consists of Justices Landau, Countiss, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).