Jennifer Banner Wolfe v. State

459 S.W.3d 201, 2015 Tex. App. LEXIS 1852
CourtCourt of Appeals of Texas
DecidedFebruary 26, 2015
DocketNO. 02-12-00188-CR
StatusPublished
Cited by5 cases

This text of 459 S.W.3d 201 (Jennifer Banner Wolfe 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
Jennifer Banner Wolfe v. State, 459 S.W.3d 201, 2015 Tex. App. LEXIS 1852 (Tex. Ct. App. 2015).

Opinions

OPINION1

TERRIE LIVINGSTON, CHIEF JUSTICE

Appellant Jennifer Banner Wolfe pled not guilty to knowingly causing serious bodily injury to a child, a first-degree felony.2 Following a bench trial, the trial court found her guilty and sentenced her to five years’ confinement. In one point, appellant asserts that the trial court abused its discretion by admitting allegedly unreliable medical expert opinion testimony on abusive head trauma. We affirm.

[203]*203Background Facts

Appellant maintained an in-home day care and was a state-certified childcare provider. As part of her certification, she received training about the risk of abusive head trauma in small children.

On April 1, 2010, near 7:15 a.m., Mrs. Smith, a teacher, dropped off seven-month-old Jack Smith3 at appellant’s home. Although Jack was fighting a cold, had struggled with acid reflux, and had been fussy the night before, that morning, he had been behaving normally.

At 10:22 a.m., an ambulance was dispatched to appellant’s home. When paramedics arrived, Jack’s skin was blue-hued; he was lying on his back and was receiving CPR by fire department personnel who had already arrived. He did not have a pulse or spontaneous respirations, meaning that he was not getting oxygen and was clinically dead. Appellant said that after eating, Jack had screamed “real loud and just fell back unconscious.” Jack had not yet been able to sit up by himself at that time.

In the ambulance, following the administration of more CPR and advanced life-support procedures, Jack began to have spontaneous respirations along with a weak pulse. He also vomited, but he did not have visible external signs of injury. Upon reaching Cook Children’s Hospital, he was awake and crying.

At approximately 10:40 a.m., Mrs. Smith received a call telling her to go to the hospital because Jack was being rushed there. Appellant told Mrs. Smith on the phone that after she had sat Jack down, he had fallen backward.

Mrs. Smith and her husband arrived at the hospital, saw that Jack was pale and still, and learned that he needed immediate surgery to stop bleeding in his brain. During the surgery, a Fort Worth police officer spoke with Jack’s parents. Later that day and night, the same officer and personnel from the Texas Department of Human Services interviewed appellant, and she again said that Jack had simply fallen on his head on a foam-padded floor and had immediately gone limp. Eventually, she wrote a statement stating the same but conceding that she had “possibly” sat Jack down hard.

Jack suffered multiple injuries, including a subdural hematoma and retinal hemorrhaging.4 He suffered no fractures or other external physical injuries. He remained at the hospital for nine days after his surgery.

Dr. Richard Roberts, a pediatric neurosurgeon, treated Jack. A preoperative CT scan of Jack’s brain showed the presence of two older stages of blood, as well as new bleeding. Dr. Roberts performed an emergency craniotomy to evacuate the he-matoma and to decrease the pressure in Jack’s brain. Dr. Roberts determined that a bridging vein connected to the sagittal sinus had avulsed, or had been pulled off of the sagittal sinus, causing the brisk bleeding in Jack’s brain.

Dr. Ann Ranelle, a pediatric ophthalmologist, assessed Jack’s eye injuries after his craniotomy. Jack’s right eye was uninjured, but his left eye suffered multi-layered retinal hemorrhages that were [204]*204consistent with nonaccidental trauma and retinoschisis, which occurs when the retina splits apart. That eye also suffered che-mosis, which is swelling of a covering over ■ the white part of the eye. The vitreous5 base had also separated from the retina in Jack’s left eye. Dr. Jayme Coffman, a child-abuse pediatrician, consulted on Jack’s case while he was in the hospital and determined that his injuries could not have been caused by falling from a seated position, as appellant had claimed.

A grand jury indicted appellant with knowingly causing serious bodily injury6 to Jack by shaking him or by striking him against a hard surface. The indictment included paragraphs alleging that appellant had used her hands as a deadly weapon during the crime. Appellant retained counsel; filed several pretrial motions, including requests for a hearing on the reliability of scientific evidence to be presented by the State; waived her right to a jury trial; and pled not guilty. Dr. Roberts, Dr. Ranelle, and Dr. Coffman testified for the State at trial, each opining that Jack’s injuries were the result of nonaccidental, abusive head trauma.7 Appellant’s expert disputed the State’s experts’ conclusions and proposed that Jack’s injuries could have been caused by an unresolved, birth-related subdural hematoma. The trial court convicted appellant and sentenced her to five years’ confinement. She brought this appeal.

Reliability of Expert Testimony

Rule of evidence 702 provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. Rule of evidence 705(c) governs the reliability of expert testimony and states that “[i]f the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.” Tex.R. Evid. 705(c); see Bekendam v. State, 441 S.W.Sd 295, 303 (Tex.Crim.App.2014). Reliability depends upon whether the evidence has roots in sound scientific methodology. Vela v. State, 209 S.W.3d 128, 133 (Tex.Crim.App. 2006); see Bekendam, 441 S.W.3d at 303; Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.App.2011) (“[T]he proponent must prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it is relevant to the issues in the case.”).

We review a trial court’s ruling admitting expert scientific testimony for an abuse of discretion. Tillman, 354 S.W.3d at 435; Mata v. State, 46 S.W.3d 902, 908 (Tex.Crim.App.2001). Thus, we reverse the ruling only when the trial courts decision was outside the zone of reasonable disagreement. Tillman, 354 S.W.3d at 435.

The proponent of scientific evidence is not typically called upon to estab[205]*205lish its empirical reliability as a predicate to admission until the opponent of that evidence raises an objection under rule 702. State v. Esparza, 413 S.W.3d 81, 86 (Tex.Crim.App.2013); see Tex.R. Evid. 702. Once the party opposing the evidence asserts a rule 702 objection, the proponent bears the burden of demonstrating by clear and convincing evidence that the evidence is reliable. Esparza, 413 S.W.3d at 86; Mata, 46 S.W.3d at 908.

For “hard” scientific evidence,8

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Bluebook (online)
459 S.W.3d 201, 2015 Tex. App. LEXIS 1852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennifer-banner-wolfe-v-state-texapp-2015.