In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00391-CR __________________
MICHAEL ALAN WEBSTER SR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 17-12-14725-CR __________________________________________________________________
MEMORANDUM OPINION
A jury convicted Michael Alan Webster Sr. 1 of recklessly injuring his three-
week-old son, Michael Alan Webster Jr. and assessed a sentence of confinement in
prison for life.2 Following the trial, Webster appealed. He filed a brief in which he
1 The record shows that Michael Alan Webster Sr. is also known as Michael Webster and Michael Alan Webster. 2 Tex. Penal Code Ann. § 22.04(a)(1), (b)(2). 1 raises four issues for our review. In Webster’s first two issues, he complains the
evidence in his trial fails to prove, beyond reasonable doubt, that he was reckless in
causing his son’s death. In his third issue, Webster argues the trial court erred by
allowing the State to introduce the lyrics from two songs, Stan and Just the Two of
Us, written by Eminem, into the evidence in the trial. The evidence shows Webster
referred to the songs in an email he sent to Michael’s mother several days before
Michael died. In his fourth issue, Webster argues the trial court, in the guilt-
innocence phase of his trial, abused its discretion by allowing a paramedic to express
an opinion stating it was not safe to leave an infant in a van under circumstances like
those on the day Michael died. For the reasons below, we conclude Webster’s issues
lack merit. We will affirm.
Background
On appeal, we review a defendant’s arguments suggesting the evidence does
not support the jury’s verdict in the light that favors the verdict the jury reached in
the trial.3 The evidence before the jury shows that Michael was healthy when he was
born on July 16, 2014. Webster, Michael’s father, and Valerie Colom, Michael’s
3 See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (explaining “the reviewing court is required to defer to the jury’s credibility and weight determinations” when reviewing a claim that argues the evidence fails to support the jury’s verdict). 2 mother, took Michael home with them about two days after he was born. A few days
later, Valerie called her father. She asked him to come get her because she felt she
could not safely remain with Webster in his home. Valerie, who testified in
Webster’s trial, explained she left Webster because he was using drugs. Valerie also
testified that when she left, Webster had been awake for three days because he was
using methamphetamine (meth).
About two weeks after Valerie, with Michael, moved to her parents’ home,
Webster drove a cargo van into the driveway of the home. Valerie, who was holding
Michael in her arms, came outside. Webster left the van, took Michael from Valerie,
and left. When Webster asked Valerie to join him, she refused.
Over the next eight days, Webster and Michael lived out of his van. Webster
lived out of the van because his landlord had evicted him from his home, the home
Webster took Michael to after he was born. During this eight-day period they lived
in the van, Webster was around several individuals, including some of his relatives.
These relatives testified during Webster’s trial.
Generally, the testimony of Webster’s relatives shows they thought Webster
was in an agitated state when he was around his relatives at his cousin’s home. Some
of the State’s other evidence provides further support for the evidence showing
Webster was in an agitated state while he had Michael in his care. For example, on
3 August 4, Webster posted a photo of himself on a social media website complaining
he didn’t have a place to sleep. Webster placed a post on the same website stating
“[i]t’s about all you pieces of shit that let a-17-day old baby sleep on the street last
night[.]” In the post, he went on to explain that “he [would] never do that again.
Whatever it takes[.]”
Over these eight days, Webster spent part of his time at his cousin, Patricia
Finnerty’s, home. At times, Webster allowed Patricia and Patricia’s daughter,
Magan, to babysit Michael after leaving him at Patricia’s home. In early August
2014, Valerie learned Webster possibly left Michael with Patricia at her home.
Valerie obtained a writ of habeas corpus, in which a court ordered that Webster
surrender Michael to the police.
On August 7, 2014, Sergeant Willingham, a deputy constable, went to
Patricia’s home to serve the writ. But when he arrived, Webster and Michael were
not there. Sergeant Willingham spoke to Webster, by phone, after trying to serve
Webster that day. Webster told the officer he would not surrender Michael to the
police that day because “he couldn’t get a ride.” Webster promised to take Michael
to the police the next day.
After talking to Sergeant Willingham on the phone, Webster went to Patricia’s
home. During the trial, Patricia testified that on August 7,the last day Webster came
4 to her home, he appeared to be agitated and tired. Patricia and Magan both asked
Webster whether they could babysit Michael so he could sleep. Webster refused.
Webster also asked Patricia for a loan. She refused. When Webster left, he told
Patricia he was taking Michael back to Valerie because they had no place to live.
Around 7:30 a.m. on the morning of August 8, Angela (Patricia’s other
daughter) left Patricia’s home for work. While leaving the driveway, Angela noticed
Webster’s van blocking the driveway to Patricia’s home. When Angela approached
the van, she noticed Webster was asleep inside. Angela did not, however, notice
whether Michael was also in the cabin of the van. Angela tried to wake Webster by
tapping on the window of the van. Webster did not wake up, but, according to
Angela, he was sweating when she saw him sleeping in the driver’s seat of the van.
Shortly after Angela left Patricia’s house, Patricia woke up and heard
someone pounding on her bedroom door. Upon opening the door, Webster stated
something was wrong with Michael. Michael was still in the van. Webster returned
to the van, got Michael, and carried him inside Patricia’s home. When Patricia saw
Michael on the morning of August 8, she realized he needed help. She called 911.
The EMS report shows that Patricia placed her call to 911 at 8:17 a.m.
According to the paramedic’s report, Patricia told the 911 operator Michael was “not
breathing[.]” Kevin O’Connell accompanied other emergency responders to
5 Patricia’s home. O’Connell is the paramedic who went to Patricia’s home on August
8 in response to her call for help. According to O’Connell’s report, family members
at Patricia’s home told him “there was a 30-45 minute time lapse from when father
awoke until 911 was called.” Shortly after he got to the scene, O’Connell determined
that additional medical care would not help Michael and he instructed the member
of the household performing CPR on Michael to stop CPR.
Dr. Sparks Veasey, a forensic pathologist, conducted an autopsy on Michael’s
body. Veasey’s report contains the following five findings:
FINDINGS:
I. Complications of unsafe sleeping environment. A. Within car seat in truck not air conditioned for a period of time, subsequent to running out of gas. B. Covered, according to historical information, by fleece type blanket. C. Report of feeling "very hot" at time of discovery.
II. Presence of trace of methamphetamine within blood (see attached toxicology reports).
III. Atypical livor.
IV. Petechiae over epicardial surface of heart, thymus, pleural surfaces of lungs, and internal ribcage bilaterally.
V. Foam exuding from nose at time of autopsy.
Dr. Veasey’s report also contains the following opinions, which he based on the
results of Michael’s autopsy: 6 OPINION:
This 3 week old male infant, Michael Allen Webster, Jr., died of complications of unsafe sleeping environment. The presence of methamphetamine within the postmortem blood contributed to death. The manner of death is accident. CAUSE OF DEATH: Complications of unsafe sleeping environment. OTHER SIGNIFICANT CONTRIBUTING DISORDER: Presence of methamphetamine (trace) within postmortem blood.
MANNER OF DEATH: Accident.
In July 2016, a Montgomery County grand jury indicted Webster, charging
him with recklessly injuring Michael by failing to provide him a safe sleeping
environment.4 In December 2017, another grand jury reindicted Webster, charging
him with recklessly injuring Michael by failing to provide Michael a safe sleeping
environment and by failing to prevent Michael from being exposed to meth.5
Webster’s case was tried before a jury in September 2018. Twenty-nine
witnesses testified in the trial. The trial court also admitted over 150 exhibits during
4 Tex. Penal Code Ann. § 22.04(a)(1), (b)(2). 5 In Webster’s trial, the State dropped all but one of the enhancement counts contained in Webster’s indictment. But the trial court submitted one of the enhancement counts to the jury. On that count, the jury found Webster had previously been convicted of a felony for delivering a controlled substance. Based on the enhancement count and its verdict finding Webster guilty of recklessly injuring a child, the punishment range applicable to Webster increased from the range available for second-degree felonies to the range that applies to first-degree felonies, which is five years in prison to life. Id. §§ 12.32(a), 12.42(b), 22.04(e). 7 the trial. The witnesses included several experts, many with medical degrees. Several
physicians holding board certifications in fields that include pathology,
neuropathology, toxicology, and pharmacology testified for the State. Webster
called physicians in his defense and contested the State’s theory on how Michael
died. Webster’s experts hold board certifications in various fields, including
pediatric and developmental pathology, neuropathology, and toxicology.
In addition to expert testimony by various witnesses who hold advanced
degrees, the jury heard testimony describing the ambient temperatures experienced
in Montgomery County, Texas, in the month of August 2014. Additionally, the jury
heard lay opinions describing how hot it was on the day Michael died. O’Connell,
the paramedic sent to Patricia’s home, testified that in August, in Montgomery
County, it is “[r]eally hot.” A weather report, admitted into evidence in the trial,
contains hourly weather readings from a major airport located near Patricia’s home.
The report shows the ambient air temperatures on August 7 between 11:00 p.m. to
August 8 and 8:00 a.m. ranging from 80 degrees Fahrenheit to around 82 degrees
Fahrenheit. The relative humidity readings in the same period based on the weather
report shows the humidity levels during that same time of between 82 to 85 percent.
During the trial, several witnesses testified they felt it was unsafe to leave a
newborn infant for long in the summer in a car seat in an unairconditioned vehicle
8 in Montgomery County. While investigating Michael’s death, the police asked
Webster why he decided to sleep in the van overnight. Webster told police he
knocked on Patricia’s door, but decided to sleep in the van when no one answered.
Magan, Patricia’s youngest teenaged daughter, and Christian Arrega, Magan’s
boyfriend, who were sleeping in Patricia’s living room, disputed Webster’s claim
that he knocked on the door to Patricia’s home on the evening of August 7.
According to Magan and Christian, they never heard anyone knocking on the door
that night.
During the investigation on August 8, Webster gave the police a specimen of
his blood. When later tested at a lab, the lab determined Webster’s specimen
contained meth at a detectable level. According to witnesses called by the State, the
level of meth found in the specimen showed that Webster had used meth the day
Michael died. Yet the lab technician acknowledged the level of meth she found in
the sample was low. The lab technician described the level as between the limit of
detection and the limit of quantification. The State’s expert, Dr. Kathryn Pinneri,
who reviewed the lab’s test, described the level of meth in the specimen as a trace.
Pinneri’s testimony reflects she is a board-certified forensic pathologist.
Generally speaking, the parties’ experts provided the jury with conflicting
opinions about the cause of Michael’s death. Dr. Veasey, who performed Michael’s
9 autopsy, explained that he relied on more than just his autopsy in forming his
opinions. In addition to performing the autopsy, Dr. Veasey’s testimony reflects that
he reviewed Michael’s medical records and interviewed Webster, seeking to learn
from him what happened in the period leading up to Michael’s death. Based on his
review of Michaels’ medical records, Dr. Veasey testified Michael was a healthy
infant when he was born. As to his opinion about the cause of Michael’s death, Dr.
Veasey testified Michael died of, “complications of unsafe sleeping environment”
with meth as a contributing factor. Elaborating on how he reached his conclusion,
Dr. Veasey explained that infants, because they are not yet very developed, cannot
tolerate heat like older children and adults. Dr. Veasey explained that in his opinion,
the temperature in the van rose after the van ran out of gas and lost its air
conditioning. Webster complicated the conditions inside the van further by covering
Michael with a blanket even though Michael was not yet old enough to have been
able to move the blanket away from his face. And Dr. Veasey testified that Michael,
based on the results of his lab tests, had been exposed to meth. According to Dr.
Veasey, meth is a substance that raises a person’s body temperature, heartbeat, and
blood pressure.
On the other hand, Webster’s experts testified they thought Michel died from
a congenital vascular malformation in his brain, a condition they stated as one that
10 can be lethal. The State’s medical experts disagreed with the diagnosis Webster’s
experts testified to in the trial, explaining that, based on the information they
reviewed, including tissue taken from Michael’s brain in his autopsy, Michael did
not have a vascular defect of the brain. And even Webster’s experts acknowledged
during their testimony that an individual can live a normal life even with a vascular
malformation like the one they thought Michael had in his brain.
In Webster’s first two issues, his main argument suggests the evidence
admitted during his trial does not support the jury’s finding that his conduct was
reckless, as defined in the charge. In its charge, the trial court instructed the jury on
the meaning of recklessness, explaining:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
As to causation, the charge the trial court provided the jury instructs:
A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
11 In final argument, Webster’s attorney argued the State failed to prove, beyond
reasonable doubt, that the level of meth in Michael’s body caused his death. He also
argued the State’s medical experts did not tie Michael’s death to sleeping inside the
van, suggesting the testimony of the experts merely suggested a possible relationship
between the heat in the van and Michael’s death. In closing argument, the prosecutor
argued that Webster’s conduct, over a period of around eight days before Michael’s
death, showed that Webster had been reckless in protecting Michael and that his
recklessness led to Michael’s death. Additionally, the prosecutor suggested that
Webster made a conscious choice when he made Michael stay with him in the van
overnight even though he knew it would not be safe given that the van was running
out of gas and how hot it was outside the van.
After deliberating its verdict, the jury found Webster “Guilty of Injury to a
Child, as charged in the Indictment.” In the punishment phase of the trial that
followed, the jury decided that Webster should be sentenced to prison for life.6
6 Based on the evidence showing Webster had a prior felony conviction, the trial court instructed the jury that it could consider a punishment ranging from five to ninety-nine years or life in prison. 12 Sufficiency of the Evidence
Standard of Review
In appeals, we review the evidence the jury considered in reaching its verdict
in the light that favors the jury’s verdict.7 In our review, we must decide whether the
evidence, when viewed in the light favoring the verdict, is such that a reasonable
jury could have found the defendant committed each of the elements of the crime
the State charged him with committing based on evidence that proved the
defendant’s guilt beyond reasonable doubt. 8 In trials, it’s up to the jury to decide
what witnesses are credible and to decide how much weight to give their testimony.9
In the appeal, we must defer to the responsibility the jury has in the first instance to
resolve the conflicts in the testimony, to weigh the evidence the trial court admits
into evidence in the trial, and to draw inferences from the basic facts to the ultimate
facts the jury must decide to resolve the issue in dispute in the trial. 10 When witnesses
testify to facts or opinions that are in conflict with the testimony of others, we
presume the jury resolved the conflict in a manner favoring the verdict the jury
7 Brooks, 323 S.W.3d at 902 n.19 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 8 Id. 9 Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). 10 Hooper, 214 S.W.3d at 13. 13 ultimately reached. 11 We defer to the jury’s resolution of the conflicts if the
resolution the jury achieved was a reasonable one from the evidence admitted during
the defendant’s trial.12 In deciding whether the manner the jury resolved the case
was reasonable, we evaluate the combined and cumulative force of the evidence the
trial court admitted into evidence in the defendant’s trial. 13
While appellate courts must be mindful of the jury’s role in resolving disputes,
a jury may not arrive at its verdict on “mere speculation or factually unsupported
inferences or presumptions.”14 Yet proving a fact does not necessarily require the
State to produce direct evidence of the defendant’s guilt.15 Often, as is the case here,
circumstantial evidence is just as probative as direct evidence in establishing a fact
of consequence in the dispute.16 Stated another way, the evidence need not point
directly to the defendant’s guilt so long as the cumulative force of the incriminating
evidence allowed the jury to reasonably find the defendant committed each element
of the crime the indictment alleges the defendant committed. 17 Even though the
11 Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 12 Id. 13 Clayton, 235 S.W.3d at 778. 14 Hooper, 214 S.W.3d at 15-16. 15 Id. 16 Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 17 Hooper, 214 S.W.3d at 13. 14 inferences available from the facts may allow “two permissible views of the
evidence, the [jury’s] choice between them cannot be clearly erroneous.” 18
In a case where the State charges the defendant with recklessly injuring a
child, the State must prove the defendant assumed care, custody, or control of a child,
and that he recklessly, by omission, caused the child a serious bodily injury.19 Under
the Penal Code, the term serious bodily injury means a “bodily injury that creates a
substantial risk of death or that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ.”20
The crime of injuring a child is a result-oriented offense. 21 Thus, the
defendant’s mental state, recklessness, does not relate to the defendant’s specific
conduct but instead looks to the result, that is the consequences, of his conduct. 22 To
prove the defendant acted recklessly, the evidence before the jury must allow it to
reasonably infer the defendant acted with the required mens rea. 23 Under the Penal
Code:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and 18 Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006). 19 Tex. Penal Code Ann. § 22.04(a)(1), (b)(2). 20 Id. § 1.07(46). 21 See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 22 Id. 23 Id. 15 unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”24
To prove criminal recklessness, the State must prove the defendant
disregarded a known, substantial, and unjustifiable risk. In contrasting recklessness
with criminally negligent conduct, the Court of Criminal Appeals explained:
“Criminal negligence depends upon a morally blameworthy failure to appreciate a
substantial and unjustifiable risk while recklessness depends upon a more serious
moral blameworthiness—the actual disregard of a known substantial and
unjustifiable risk.”25 Thus, the State must prove more than the fact the defendant
lacked foresight, acted stupidly, irresponsibly, thoughtlessly, or that he was
careless. 26 Instead, to establish recklessness, the State must prove the defendant
knew of the risk he created by his conduct and ignored it. 27 To decide whether the
evidence established recklessness, we examine the evidence to see whether the State
proved the defendant knew of the magnitude of the risk but disregarded it.28 In an
appeal challenging a finding of recklessness, we look at the evidence of the risk the
24 Tex. Penal Code Ann. § 6.03(c). 25 Williams, 235 S.W.3d at 751. 26 Id. (cleaned up). 27 Id. 28 Id. at 752-53. 16 defendant faced from the defendant’s standpoint and without the benefit of
hindsight. 29
Analysis-Sufficiency of the Evidence
In his first issue, Webster argues the State failed to prove he was reckless.
According to Webster, his conduct should be evaluated by looking at the
circumstances as he discovered them when he woke up in his van on August 8. In
his second issue, Webster argues the evidence does not support the jury’s finding
that he acted recklessly when he failed to prevent Michael from being exposed to
meth.
In its charge, the trial court asked the jury to decide whether Webster caused
Michael’s death by recklessly failing to provide him a safe sleeping environment or
by failing to prevent him from being exposed to meth. (emphasis added).30 In other
words, the court submitted the issue in a disjunctive form. 31 In Webster’s brief, he
relies on the disjunctive language, suggesting the State’s evidence failed to establish
that either omission, on its own, caused Michael’s death. While we acknowledge the
trial court provided the jury with a disjunctive charge, Webster’s indictment used
Id. at 753. 29
Emphasis added. 30 31 As a matter of grammar, “expressing a choice between two mutually exclusive possibilities, for example or in she asked if he was going or staying.” See NEW OXFORD AMERICAN DICTIONARY 499 (3d ed. 2010). 17 the conjunctive and, not the disjunctive conjunction or. Thus, based on the language
in Webster’s indictment, the State was entitled to establish that Michael’s death
resulted from one or more of the alleged omissions and was not required to prove
that each omission, in isolation, caused Michael’s death.
When a defendant appeals and claims the evidence in his trial does not support
the jury’s finding of guilt, we assume when reviewing the evidence upon appeal that
the trial court provided the jury with a hypothetically correct charge.32 Under Texas
law, a hypothetically correct charge is a charge that “accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” 33 Under a
hypothetically correct charge, the charge must include the statutory elements of the
offense as the statute is modified by the charging instrument. 34
Webster’s indictment alleges Webster recklessly caused Michael to suffer a
serious bodily injury by failing to provide him with a safe sleeping environment and
by failing to prevent Michael from being exposed to meth. At trial, the State’s theory
of the case, as the prosecutor argued, was that Webster’s omissions, acting together,
32 See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 33 See Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). 34 Id. 18 caused Michael’s death. Given the indictment, a hypothetically correct charge
required the trial court to charge the jury in the conjunctive form, that is use the word
and, rather than by using the disjunctive form, in this charge the word or. Thus, we
review the evidence to decide whether the jury could have reasonably concluded
from it that Webster’s alleged omissions, either alone or in combination, caused
Michael’s death.35 We do so because we “measure the sufficiency of the evidence
against the elements of the offense as they are defined in the hypothetically correct
jury charge.”36
The jury’s finding that Webster acted recklessly is based mostly on
circumstantial evidence. But while circumstantial, the evidence shows Webster
placed Michael in the van even though he knew he needed a working air conditioner
to keep the van cool given the weather conditions that existed in the period relevant
to Michael’s death. The evidence allowed the jury to infer that Webster knew the
van would lose its air conditioner once the van ran out of gas. The jury also heard
testimony that it’s common knowledge one cannot leave an infant in a vehicle in
Montgomery County in the summer for any extended period of time without an air
conditioner that works. Yet, the jury could infer from the testimony that Webster
35 Id. 36 Ramjattansingh v. State, 548 S.W.3d 540, 552 (Tex. Crim. App. 2018). 19 knew he was running out of gas before he went to Patricia’s home on August 7. He
left the van running to keep the air conditioner going even though he knew the van
did not have enough gas to run all night. Under the circumstances, the jury could
reasonably infer Webster knew he needed to keep the air conditioner running given
the heat outside the van that night. The jury could reasonably infer that Webster
knew he did not have enough gas in the van to keep it running all night based on
Patricia’s testimony that he tried to get her to loan him money so he could buy more
gas. During the investigation, Webster told police that he took the van to Patricia’s
house that night because he knew he was running out of gas. The circumstances also
allowed the jury to infer that Webster knew how hot and humid the conditions were
outside the van. That’s because Webster was with Michael before and after the van
ran out of gas. Yet, knowing the van would not run all night, Webster covered
Michael with a blanket and then claims he went to sleep. Angela’s testimony, which
shows she noticed Webster sweating in the van when she was on her way to work,
offers additional evidence to support the jury’s conclusion that it would have been
too hot to keep an infant inside a van that no longer had a working air conditioner.
Other circumstantial evidence supports the jury’s inference that Webster was
aware that he could not keep Michael safe while he was with him in a period relevant
to Michael’s death. For example, exhibits admitted into evidence show that Webster
20 posted messages on a social media site suggesting he was upset with Valerie because
she and her father had engaged in conduct requiring him to sleep with Michael “on
the street[,]” a situation he said should not have to happen “again.” Within hours of
Michael’s death, Webster left Valerie’s father a voicemail stating: “I place all of this
blame on you for what happened to my son because we wouldn’t have been sleeping
in the van if it wasn’t for you.” From the evidence, the jury could have inferred that
Webster knew he did not have the resources to provide Michael with a safe place to
sleep based on the circumstantial evidence showing that he knew how hot it was and
that his van would soon run out of gas.
To be sure, the evidence tracing Michael’s exposure to meth to his death is
weaker than the evidence showing that Michael died from being exposed to
excessive heat. Yet there is evidence that Michael’s exposure to meth was a
contributing factor that explains why Michael died when he did. Blood specimens,
taken from Michael and Webster during the investigation, were both positive for
meth. Other testimony shows Webster was known to use meth. Finally, the only
witnesses around Michael in the period surrounding his death denied ever using meth
while Michael was around.
Expert testimony connected Michael’s exposure to meth as a factor that
contributed to Michael’s inability to control his temperature so that he could cool
21 himself off. A forensic toxicologist, called by the State, testified that Webster
probably used meth in a twenty-four-hour period before Michael died. No other
testimony shows that anyone around Michael exposed him to meth. The jury also
heard witnesses testify in the trial that meth is a stimulant, which tends to raise a
person’s body temperature, heart rate, and blood pressure. Thus, the jury could have
considered Michael’s exposure to meth, even though slight, to have been an
aggravating factor explaining why he could not regulate his body temperature and
cool himself off.
The evidence also allowed the jury to infer that Webster exposed Michael to
risks that were unjustifiable. Patricia’s daughter, Magan, testified she offered to
watch Michael and told Webster he needed to get some sleep. Webster declined. Yet,
had he agreed, he could have left Michael with adults in an environment that would
have been safer than the one he chose instead. Webster also could have, but did not,
surrender Michael to the police, a decision that would have avoided the need to keep
Michael with him in the van.
Given the evidence that shows Webster knew he was running out of gas, we
conclude the record contains sufficient evidence to support the jury’s finding that
Webster acted recklessly by knowingly exposing Michael to an unjustifiable risk by
22 requiring him to remain in the van with Webster overnight given the weather
conditions that existed outside the van in the period relevant to Michael’s death.
Liberally construed, Webster’s brief also seems to suggest the State failed to
link Wester’s recklessness causing Michael’s death. As to causation, both of the
State’s forensic pathologists attributed Michael’s death to “complications of unsafe
sleeping environment.” While Webster’s expert witnesses proposed an alternative
theory explaining Michael’s death—claiming Michael had a congenital
malformation of the vessels in his brain—the State’s experts disagreed. As the
factfinder, the jury was free to resolve the conflicts in the evidence and accept the
opinions offered by the pathologists that testified for the State.37 Because Webster’s
first two issues lack merit, they are overruled.
Evidentiary Rulings
The Admission of the Lyrics
In issue three, Webster complains the trial court abused its discretion by
admitting the lyrics from the two songs Webster mentioned in a post that he placed
on his social media account. The evidence from the trial shows that the night Webster
37 See Tex. Penal Code Ann. § 6.04(a) (“A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”). 23 took Michael from Valerie, he posted a message on his social media account stating:
“Last night I was feeling like Marshall Mathers [a/k/a Eminem] towards Kim
[Mather’s girlfriend] in Eminem’s Stan and Just the Two of Us.” While Webster’s
posted message does not specifically mention the lyrics in either song, he does not
dispute the authenticity of the lyrics the State introduced to prove what the lyrics
say. The lyrics of the songs reflect they are about a father, in possession of his child,
who is angry with the child’s mother after he and the mother had difficulty with each
other in their relationship.
In Webster’s third issue, Webster contends in three separate arguments that
the trial court should have sustained his objections to the State’s proffer of the lyrics
of the two songs. First, Webster argues the lyrics were inadmissible hearsay because
he did not write the songs. Second, Webster argues the lyrics were irrelevant to the
issues material to deciding whether he recklessly injured a child. Third, Webster
suggests that, if relevant, the ruling to admit the lyrics was more prejudicial than
probative on the issues the trial court asked the jury to decide in his trial.
Relying on Rule 801(e)(2) of the Rules of Evidence, the State argues the lyrics
were admissible as statements that Webster adopted based on what he said about the
songs in the posts he placed on his social media account. When a defendant
complains about an evidentiary ruling in a trial, we review the trial court’s ruling by
24 using an abuse-of-discretion standard.38 In deciding whether error occurred, the
defendant must show the ruling admitting the evidence “lies outside the zone of
reasonable disagreement.” 39 Before deciding whether the trial court properly
admitted the lyrics, we address Webster’s argument that the lyrics of the songs were
not relevant to the issues that were relevant in his trial. Then, we review his argument
claiming the lyrics, if relevant, were more prejudicial than probative on the issues in
his trial.
As to relevance, evidence is relevant if it tends to make a fact more or less
probable and the fact is one that is of consequence in the trial. 40 “Evidence need not
by itself prove or disprove a particular fact to be relevant; it is sufficient if the
evidence provides a small nudge toward proving or disproving some fact of
consequence.”41 However, even relevant evidence must be excluded when the
danger that the evidence is unfairly prejudicial substantially outweighs its probative
value given the circumstances that are relevant in the trial.42
38 See Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (explaining that appellate courts review rulings admitting evidence under an abuse of discretion standard). 39 Id. 40 Tex. R. Evid. 401. 41 Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). 42 Tex. R. Evid. 403. 25 Generally, courts balance the following four, non-exclusive factors in
deciding whether evidence is more prejudicial than probative: “(1) how probative
the evidence is[;] (2) the potential of the evidence to impress the jury in some
irrational, but nevertheless indelible way; (3) the time the proponent needs to
develop the evidence; and (4) the proponent’s need for the evidence.” 43 In Webster’s
case, the State needed to prove that Webster acted recklessly and caused Michael to
suffer a serious injury by failing to provide him with a safe sleeping environment
and by failing to prevent him from being exposed to meth. Thus, the State needed to
produce direct or circumstantial evidence to prove Webster acted recklessly. That
required the State to produce direct or circumstantial evidence from which a jury
could conclude that Webster was “aware of but consciously disregard[ed] a
substantial and unjustifiable risk that the circumstances exist or the result [would]
occur.”
Here, the State sought to prove Webster acted recklessly by establishing he
acted unreasonably under the circumstances by keeping Michael with him overnight
in a van running out of gas given the weather conditions that existed that day. In
posts Webster created on his social media account, Webster explained he felt “like
Marshall Mathers [(Eminem)]” felt towards Mather’s girlfriend based on the songs
43 See Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). 26 he identified by song title in his post. So the question is whether the lyrics of the
songs Stan and Just the Two of Us are relevant to a fact of consequence in Webster’s
trial. In its brief, the State argues the songs’ lyrics were relevant because they show
Webster acted irresponsibly in refusing to surrender Michael to his cousin, to the
police, or to return him to Valerie so that he could make Michael live with him in a
van where he knew it was unsafe to keep an infant given the weather conditions he
faced on the last day of Michael’s life.
In general, the lyrics of the songs Webster referred to in his post describe a
father who is angry with a female significant to the father in his life. The protagonist
in the song places the blame for his anger on his failed relationship with the female
figure referred to in the song. The State suggests the lyrics were relevant to proving
Webster’s motive and that his motives led to conduct that was reckless. Since
Webster’s motive was at issue in the trial, we cannot say the State’s argument that
the songs’ lyrics had some relevance to showing why Webster made the decision to
keep Michael with him rather than surrendering him to others had no relevance to
the evidence relevant to proving the reasons Webster made the decisions that he did
in the period relevant to Michael’s death. For that reason, we conclude the trial
court’s ruling is one falling within the zone of reasonable disagreement. Stated
27 another way, we cannot say the trial court abused its discretion by finding the lyrics
relevant to a fact of consequence in Webster’s trial.
We reach the same conclusion regarding Webster’s argument claiming the
songs’ lyrics were more prejudicial than probative to a fact of consequence in his
trial. In the trial, the State argued that Webster took Michael from Valerie to punish
her for leaving him even though he knew he did not have the resources to provide
Michael with a safe place to live. The State did not require much time to establish
what the lyrics of the songs say. And while it’s true the lyrics reference the
protagonist’s feelings of violence toward the female figure in the songs, the lyrics
nonetheless had some relevance to explain why Webster kept Michael with him even
though he could have surrendered him to someone better equipped to care for an
infant who was less than a month old. For these reasons, we cannot say the trial
court’s decision to admit the lyrics was unduly prejudicial to Webster’s rights to a
fair trial since Webster, in his social media posts, directed those who were reading
his posts to look to the songs he referenced to understand him.44
In his third and the remaining part of his issue three argument, Webster
suggests the trial court should have excluded the lyrics from the evidence because
44 See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that Rule 403 applies “only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value”). 28 the lyrics were inadmissible hearsay. Hearsay is defined as an out-of-court statement
that is offered by a party to prove the truth of the matter the statement asserts.45
Absent some exception to the rule excluding evidence that qualifies as hearsay,
courts must exclude the evidence if offered to prove the truth of a matter the party
offering the evidence contends it proved in the trial. 46 In Webster’s case, the State
argued when it was in the trial court that Webster adopted the lyrics of the songs
given the statements he made referring to the song titles in his social media posts.47
Under the Rules of Evidence, an exception to the rule excluding hearsay exists
for the statement made by another party outside court if the party against whom the
statement is being offered adopted the truth of the statement as his own. 48 Webster’s
social media posts allowed the trial court to infer that Webster adopted the songs’
lyrics when he stated his readers could decide what he was feeling based on the songs
Webster referred to in his posts. In one of the posts, Webster explained “[e]verything
is music to me, every action, every voice, every relationship, every scenario,
EVERYTHING.”
45 Tex. R. Evid. 801(d). 46 Id. 802. 47 Id. 801(e)(2). We note that Webster has not argued the trial court erred by admitting copies of the internet pages showing what he posted on his account. 48 Id. 801(e)(2)(A), (B). 29 We cannot say the trial court abused its discretion by applying the adopted
statement exception to lyrics of the songs at issue in Webster’s appeal. The trial court
could have reasonably inferred that Webster was referring to the lyrics based on the
language he used in his posts, not just the songs’ titles.
Having fully considered the three arguments Webster relies on to support his
argument claiming the lyrics should have been excluded as hearsay, we overrule
Webster’s third issue.
Lay Opinion about Sleep Environment
In issue four, Webster argues the trial court abused its discretion by allowing
Kevin O’Connell, the paramedic who responded to the call Patricia made to 911, to
express his opinion about whether it was safe to place an infant in a van given
weather conditions like those in Webster’s case. The record shows that, during the
trial, the prosecutor asked O’Connell whether “as a person who lives in Texas in
August, would you put a newborn baby in a car seat not strapped in under multiple
blankets . . . in Texas August heat in a van with no gas and no A/C, would you feel
like that was safe?” Webster objected to the question, arguing the question assumed
facts not in evidence and was speculative. The trial court overruled the objection and
stated that O’Connell could “answer in your lay opinion.” O’Connell responded:
“No, I would not.”
30 Assuming without deciding that Webster did not need to object to O’Connell
testifying to an opinion as a lay witness, the Texas Rules of Evidence explain when
lay and expert testimony is admissible in a trial. 49 Rule 701, the rule authorizing lay
witnesses to express opinions, provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue. 50
At trial, O’Connell testified without objection that the heat in Texas in August is
“terrible[,]” explaining he meant the weather that month was “[r]eally hot.” While
O’Connell agreed he was not formally trained on what sleeping environments for
infants were safe, the evidence shows he was at the scene in the area where Michael
died in a period that the trial court could have considered to be relevant to his death.
Thus, as the gatekeeper, the trial court could have inferred that O’Connell was in a
position to know what the weather conditions were like in the area of town where
Michael died. O’Connell’s opinion—that he thought it was unsafe to leave a child
in a van for long under conditions like those experienced in Montgomery County in
August—represented a lay opinion, given that the opinion hinged on O’Connell’s
49 Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). 50 Tex. R. Evid. 701. 31 personal knowledge about the area of town and in a period relevant to Michael’s
death. Thus, we cannot say the trial court abused its discretion by admitting
O’Connell’s lay opinion testimony about whether he thought it was safe to leave a
child in a van without air conditioning under the weather conditions that existed at
that time. 51 We overrule Webster’s fourth issue.
Conclusion
We conclude the evidence before the jury allowed the jury, acting reasonably,
to believe that Webster recklessly injured Michael, a child. We further conclude the
trial court did not abuse its discretion by overruling Webster’s objections to the
evidence he complains about in his third and fourth issues. For these reasons, the
trial court’s judgment is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 17, 2020 Opinion Delivered December 16, 2020 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
See Cameron v. State, 241 S.W.3d 15, 19 (Tex. 2007); Montgomery v. State, 51
810 S.W.2d 372, 391 (Tex. Crim. App. 1990). 32