Johnson v. State

121 S.W.3d 133, 2003 Tex. App. LEXIS 8869

• Court: Court of Appeals of Texas
• Decided: October 16, 2003
• Docket: 2-02-242-CR
• Status: Published

Opinions

OPINION

LEE ANN DAUPHINOT, Justice.

Appellant Catrenda Resheil Johnson was charged by indictment with two counts of injury to a child. The first count charged her with intentionally or knowingly causing the child’s injury by striking her with an unknown instrument. The second count charged Appellant with injury to a child by omission by failing to seek medical treatment. The jury acquitted Appellant on count one, convicted her on count two, injury of the twenty-two-month-old child by omission, and sentenced her to twelve years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant brings two points on appeal, challenging the legal and factual sufficiency of the evidence. Because we hold that the evidence is legally insufficient to support Appellant’s conviction, we reverse the judgment of the trial court and render a judgment of acquittal.

Summary of the Facts

Appellant is the mother of the twenty-two-month-old child complainant in this case. Close to 10:00 a.m. one morning, Appellant noticed that the child was not breathing and did not have a pulse. The child’s eyes were “rolled up,” and Appellant saw some blood on the child’s tongue. Appellant administered CPR to the child and re-established the child’s breathing. She then called her mother to report the child’s condition and to ask for advice. Her mother told her to take the child to the hospital. Appellant quickly changed the baby’s clothes and carried the baby to her car. Appellant’s boyfriend, Kewon Benson, who had stayed with the child while Appellant went to a convenience store and a McDonald’s earlier that morning, either drove or navigated. He either drove or directed her to drive to his apartment first. He gave her directions to R.H.D. Hospital and exited the car. She then drove the baby to the hospital, arriving at least by 11:00 a.m. Upon arrival, the child was not breathing; she died after efforts to resuscitate her failed.

An autopsy revealed that the child had died from blunt-force trauma to the abdomen. A doctor testified that the injuries probably occurred within an hour of the child’s being declared dead at the hospital, but the doctor could not testify that the injuries were not several hours old or perhaps only minutes old.

Intentional OR Knowing Injury to a Child

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict.¹ The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.² This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.³

The relevant statute provides:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1) serious bodily injury.⁴

Injury to a child is a result-oriented offense.⁵ The State was required to prove, therefore, that Appellant either had the specific intent to cause and did intentionally cause serious bodily injury to the child by denying the child reasonable medical treatment or that Appellant knowingly caused serious bodily injury to the child by denying the child reasonable medical treatment.⁶ Proving simply that Appellant failed to provide medical care after the child suffered serious bodily injury would not satisfy the State’s burden of causation under the statute.⁷

As Appellant points out, cases affirming convictions for injury by omission involve obvious injuries to the child over a period of time or a long delay in seeking aid or treatment. In Patterson v. State8 the evidence established that the appellant could clearly hear her children’s screams and did not call 911 for more than six hours. In Thornton v. State,9 evidence was admitted from which the jury could infer that Appellant had observed the string cutting off the blood flow to the child’s penis for several days before seek-mg medical treatment. In Hill v. State,10 the parents chained the child and put a lock on the refrigerator to deny food to the child for a sufficient time period that the child starved to death. In the case now before us, there is no evidence that the child suffered a serious bodily injury because Appellant failed to provide medical care to the child.

The autopsy in the case now before us revealed that a blow to the abdomen compressed the child’s internal organs and caused a clear and large laceration across the mesentery, resulting in a twenty-four percent blood loss. An extreme loss of blood causes irreversible shock. Doctor Spotswood, one of the medical examiners, testified that death could occur minutes to hours after the injuries, but that the child could not survive such injuries for days.

Emergency room physician Doctor Charles Dryden, Jr. testified that the child was limp and cool when a nurse first handed her to him. The child was not breathing and had no pulse. He began mouth-to-mouth resuscitation, intubated the child, began CPR, put in an intravenous line, gave her medication, and attached a heart monitor. The hospital staff attempted resuscitation for over half an hour, but were unsuccessful. Testimony established that bruising on the child did not develop until after she had been treated in the hospital, although the bruising was not caused by the treatment. Specifically, Dryden testified that when he first began working on the child he observed no signs of trauma or abuse on her body. A few hours after the child was pronounced dead, Dryden looked at her body again and saw bruising to the abdomen.

Similarly, when Dryden first saw the child, it was not apparent to him that she had suffered a major blood loss. He also testified that the blood loss would not have been apparent to anyone else. He did believe, however, that anyone would have been able to recognize the child was ill. He testified that when a person sees that a child is very ill, it is reasonable to seek medical care, and the most rapid way is probably to call 911. He opined that the sooner a severely injured person receives medical attention, the better the chance of resuscitation, and that time is always a factor. There was no testimony that it was unreasonable for Appellant to drive her child to the hospital herself.

When questioned about facts pertinent to this case, Dryden testified that to know the amount of time that Appellant had available to recognize that the child had a serious problem and to get her to the hospital for life-saving treatment, Dryden would have to know the definite injury, how it occurred, and when it occurred. He could not testify how fast the child deteriorated after the mother noticed a problem.

While the evidence may or may not show that Appellant could have sought medical treatment faster than she did, such evidence is not sufficient to support a finding that Appellant either intentionally or knowingly caused serious bodily injury to the child by any delay in seeking medical treatment. Because the evidence fails to satisfy the causation element of the offense, the evidence is legally insufficient to support the judgment.

Our sister court in Austin was presented with a similar set of circumstances in Du-sek v. State.11 In that case, the child suffered injuries, including a broken leg. The Austin court held that the evidence was not sufficient to prove injury by omission by failure to provide medical care.¹² The court also held that there was insufficient evidence of intent to cause serious bodily injury by failure to seek medical care.¹³ There was no evidence that Dusek caused or allowed the leg to be broken.¹⁴

Similarly, in the case now before this court, the jury specifically rejected the State’s allegations that Appellant caused the injury to the child by striking her, and the evidence supports that finding. We have held that the evidence is not legally sufficient to support the conviction of injury by omission. Because the evidence is legally insufficient to support Appellant’s guilt, we reverse the judgment of the trial court and render a judgment of acquittal on the offense charged.¹⁵

Reckless Injury to a Child

In its brief, the State argues that even if this court holds that the evidence is legally insufficient to prove Appellant knowingly caused bodily injury to the child, we should nevertheless hold that Appellant acted recklessly in causing bodily injury to the child by omission. The jury charge permitted a conviction on the lesser included offense of reckless injury.¹⁶ The State argues that by finding that Appellant knowingly caused bodily injury to the child, the jury necessarily found that she recklessly did so.

A person acts recklessly with respect to the result of her conduct when that person is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.¹⁷ The State argues that the proof is legally sufficient to support a finding that Appellant was aware of and chose to consciously disregard a substantial unjustifiable risk that the child would suffer serious bodily injury “without prompt medical attention.” We cannot agree. There were no bruises on the child before she received medical treatment. There was no indication that she had suffered a major blood loss.¹⁸ When Appellant noticed the child was not breathing, she revived the child. Although she delayed thirty seconds to change the child’s shirt, she immediately took the child to the hospital. While a call to 911 might have been faster, we do not understand the statute to empower this court to determine the best manner or method of seeking emergency treatment. We cannot say that when Appellant perceived the risk, she failed to seek reasonable medical treatment. Nor can we find evidence that any delay occasioned by her changing the child’s shirt or choosing to take the child to the hospital herself rather than to call 911 caused serious bodily injury to the child. No evidence in the record supports a conclusion that the child would have survived had Appellant acted differently. Consequently, we conclude that the evidence is also legally insufficient to support a conviction for the lesser included offense of reckless injury to a child.

The wanton killing of a young child is always tragic. No person of reasonable sensibilities could feel anything but anger and grief. But we are bound by the law and the record before us. The thoughtful dissent would hold that the evidence is legally sufficient to support a verdict of reckless injury by omission by failing to seek reasonable medical treatment. The dissent does not contend that Appellant failed to seek medical treatment. Rather, the dissent claims that Appellant waited ninety minutes to drive the child to the hospital.

Kewon Benson and Appellant woke up at 8:00 or 9:00 a.m. that morning. Appellant said that she went out to get something to eat. Benson testified that Appellant took the child with her, but the jury necessarily rejected this contention in acquitting Appellant of directly causing the injuries. No disinterested witness placed the child with Appellant during this period. Appellant was filmed at a convenience store at 9:39 a.m.; the child was not with her. The drive home took five minutes. Depending on the length of time between being filmed and starting her car and the length of time between arriving at the apartment complex and going from the car into the apartment, Appellant arrived at her apartment between 9:45 and 9:50 a.m. She went to the kitchen, divided the food, and then went to the bedroom to find the child’s tongue bleeding. Apparently this was Appellant’s interpretation of the child’s bleeding from the mouth. She called her mother and asked what to do. Her mother told her to take the child to the hospital immediately. She did not tell her to call 911 because she herself would never call 911. Appellant’s mother, a registered nurse, and an assistant police chief from Leland Mississippi, Appellant’s hometown, where she lived until moving to Dallas four months before her child’s death, all testified that it was quicker to drive someone to the hospital than to call 911 in Leland. Appellant herself had told Dallas Police Officer Daniel Johnson that she did not call 911 “because she didn’t know how long it would take them to get there and that she was just going to take the baby to the doctor herself, to the hospital herself.”

Benson refused to help Appellant with the ailing child. After calling her mother, Appellant changed the child’s vomit-covered shirt and left her apartment for the hospital. Either she drove or Benson drove to his apartment while she held her child. Before exiting the car, Benson gave Appellant directions to R.H.D. Medical Center, and she drove directly there. She arrived by 11:00 a.m., one hour and twenty-one minutes after she was videotaped at the convenience store.

Every action of Appellant was aimed at caring for her child, yet the dissent characterizes her asking her mother what to do for her child as delay. The dissent refers to Appellant’s waiting for Benson to emerge from the bathroom before leaving for the hospital as another delay, but there is no evidence of this in the record. Even if Appellant had waited on him to accompany her, it is difficult to understand why that would be unreasonable, considering that she had moved to North Dallas from Mississippi less than four months earlier and was unfamiliar with the location of hospitals. There is no support in the record for the dissent’s claim of an hour-and-a-half delay in driving the child to the hospital.

The dissent also appears to suggest that the child’s injuries occurred while she was running errands with Appellant. There is no evidence from any source that the injuries occurred before Appellant left to get food, except for a concession from medical witnesses that it was “possible” that the injuries were more than an hour old when the child was presented at the hospital. The jury, however, rejected Appellant’s complicity in causing the injuries. The bruising appeared to have been accomplished with a tennis shoe, and Benson’s tennis shoes were later found in Appellant’s apartment. If Appellant was not complieit in causing the injuries, and if the injuries were most likely inflicted an hour or so before death, on the record before us, the injury could only have occurred when Appellant was not present. The only time Appellant was not present was when she was running errands and, according to her testimony, Benson was caring for the child. There is no evidence that the child would have survived had she received treatment sooner.

Additionally, the medical testimony does not support the dissent’s theories. The injuries were so recent that no bruising appeared when the child arrived at the hospital. Trained medical personnel were not aware of the blood loss. There is no evidence that the child stopped breathing before Appellant arrived at the apartment. No one except Benson claimed the child left with Appellant, and the jury apparently believed that he caused the injuries. There is no evidence of any additional serious bodily injury resulting from failure to seek reasonable medical treatment, whether caused intentionally, knowingly, or recklessly.

For the reasons outlined above, we are compelled to reverse the trial court’s judgment and to render a judgment of acquittal.

WALKER, J. filed a dissenting opinion.

1 . Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App.2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

2 . McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997).

3 . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

4 . Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003).

5 . Alvarado v. State, 704 S.W.2d 36, 38-39 (Tex.Crim.App.1985).

6 . See Tex. Penal Code Ann. § 22.04(a)(1); Dusek v. State, 978 S.W.2d 129, 134-35 (Tex.App.-Austin 1998, pet. ref'd).

7 . See Tex. Penal Code Ann. § 22.04(a)(1); Dusek, 978 S.W.2d at 134-35.

8 . 46 S.W.3d 294, 300, 304 (Tex.App.-Fort Worth 2001, no pet.).

9 . 994 S.W.2d 845, 850-51 (Tex.App.-Fort Worth 1999, pet. ref'd).

10 . 913 S.W.2d 581, 582 (Tex.Crim.App.1996).

11 . 978 S.W.2d at 129.

12 . Id. at 134.

13 . Id. at 135.

14 . Id.

15 . Tex.R.App. P. 43.2(c), 51.2(d); Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2149-51, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 24-25, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996).

16 . See Tex.Code Crim. Proc. Ann. art. 37.09(3) (Vernon 1981); Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999); Bigleyv. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993); Zuliani v. State, 903 S.W.2d 812, 816 (Tex.App.-Austin 1995, pet. ref’d).

17 . Tex. Penal Code Ann. § 6.03(c).

18 . Cf. Payton v. State, 106 S.W.3d 326, 328-30 (Tex.App.-Fort Worth 2003, pet. filed) (holding evidence that child had rigid, extended abdomen, extensive bruising along his side, on his back, and on his bottom, dilated rectum, and bleeding penis at time of medical treatment; that he had been lethargic for about one hour before the 911 call; that his injuries occurred ten to sixteen hours before death; that Appellant used to be an emergency medical technician; that he had changed the child’s diaper about two hours before the child arrived at the hospital; and that the child possibly could have survived had he received prompt medical attention was legally sufficient to support conviction for reckless injury to child).