Persons v. State

714 S.W.2d 475, 1986 Tex. App. LEXIS 8326
CourtCourt of Appeals of Texas
DecidedAugust 27, 1986
DocketNo. 2-85-159-CR
StatusPublished
Cited by5 cases

This text of 714 S.W.2d 475 (Persons 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
Persons v. State, 714 S.W.2d 475, 1986 Tex. App. LEXIS 8326 (Tex. Ct. App. 1986).

Opinion

OPINION

FENDER, Chief Justice.

This is an appeal from a conviction for the offense of injury to a child. See TEX. PENAL CODE ANN. sec. 22.04 (Vernon Supp.1986). Appellant was certified to stand trial as an adult under TEX.FAM. CODE ANN. see. 54.02 (Vernon Pamph. Supp.1986). The jury found appellant guilty and assessed punishment at 15 years in the Texas Department of Corrections.

We affirm.

On January 3, 1985, appellant, Katherine Persons, gave birth to a female child. Appellant testified that on January 8, 1985, she accidently let the child slip off of the counter in the bathroom while she was bathing it and the child struck its head on the toilet when it fell. Appellant testified that she noticed a swelling on the child’s head when she dressed her. Appellant fur-. ther testified that she dropped the child on the kitchen floor while she was attempting to prepare a bottle. These were the only injuries to the child to which appellant testified. The child later died of head injuries at a hospital.

Dr. Linda Norton and Dr. Allen Stilwell testified that the massive injuries to the child’s head were caused by severe blows or some kind of trauma to the top, sides and back of the head.

In her first ground of error, appellant contends that the trial court erred in receiving prejudicial hearsay testimony from Dr. Linda Norton, an expert witness, over appellant’s objection. Norton testified that she was a former medical examiner who has performed more than 50 autopsies on [477]*477infants. She testified that she had an opportunity to review the autopsy report prepared by Dr. Allen Stilwell concerning appellant’s child. She stated that the child sustained massive injury to her head which involved virtually the entire head. She testified, using photographs, that red areas on the head represented areas of blunt trauma. She testified that the child’s head was “literally ... fragmented by multiple massive blows.” She stated that, in her opinion, there was “no way” that that kind of head injury could result from the falls that were described. At that point, Lee Gabriel, attorney for the State, asked Dr. Norton whether she was familar with statistical data and research that had been done concerning the falls of children from heights of approximately three feet. At that time, appellant objected as follows:

MR. WHITLOCK [Appellant’s attorney]: I object to this oration by the Doctor simply, because number one, whoever — whatever Doctor made this study, whatever his intent was, he would be the only person that could testify as to that, it’s hearsay. And as to what the studies have found, the studies themselves would be the best evidence, and completely a narration intended to prove no issue in this case, and I object to the narration of the witness.

In Hoffman v. State, 397 S.W.2d 461, 462 (Tex.Crim.App.1965), a blood chemist was asked to give his opinion as to whether a person with a blood alcohol level of 0.10 percent is intoxicated. He stated that in his opinion, under those circumstances, a person would be intoxicated. He was then asked whether there were any authorities which shared this opinion. At that point, the appellant in that case objected. The Court of Criminal Appeals held that “an expert in giving opinion testimony may corroborate his opinions by referring to scientific authorities.” See id. See also Long v. State, 649 S.W.2d 363, 364-65 (Tex.App.-Fort Worth 1983, pet. ref’d).

We hold that Dr. Norton was properly permitted to corroborate her opinion by showing that it is shared by the article in the pediatric journal to which she referred. See Hoffman, 397 S.W.2d at 462. Appellant’s first ground of error is overruled.

In her second ground of error appellant contends that the trial court erred in overruling her motion to quash the indictment because the indictment failed to give appellant notice as to what she was to defend against. Appellant was indicted under a three count indictment. In essence, the indictment alleged that appellant caused the death of or serious bodily injury to the baby “by manner and means unknown to the Grand Jury.” Appellant contends that the indictment is inadequate to meet the constitutional requisite of notice to her because she could not determine whether she was called upon to defend against “a beating, a stabbing, a drowning, a shooting,” or something else.

Appellant contends that the grand jury had before it Dr. Stilwell’s autopsy report and so it should have known what the manner and means were. The autopsy report states that the face of the child was swollen and that there were extensive skull fractures. The conclusion states:

It is our opinion that [the baby] ... died as a result of extensive injuries to the brain and multiple skull fractures. These injuries are inconsistent with the stated history of a fall while being fed, but it is our further opinion that severe trauma was inflicted on the head with subsequent brain injuries and death.

Linda Brock, a member of the grand jury, testified that in an attempt to determine the manner and means of death the grand jury examined among other things appellant’s statement, the autopsy report, the certification hearing record, and psychological records. When asked whether the grand jury was able to determine how the injuries occurred, Brock answered “[n]o, we were not able to determine that.”

The grand jury must use reasonable diligence to ascertain the manner and means of death. See Jackson v. State, 516 S.W.2d 167, 172 (Tex.Crim.App.1974). The [478]*478testimony of Brock shows that diligence was used. Contrary to appellant’s assertions, the manner and means used to inflict the injuries to the baby were not evident from the autopsy report.

Concerning the “manner” of causing the injuries, Dr. Norton testified at trial that the injuries most likely occurred when the child was picked up and thrown or swung so that her head hit a flat surface. Dr. Stilwell testified that the injuries were caused by a severe beating. The grand jury could not know the manner in which the injuries were inflicted, merely that they existed. Further, the jury could not know the means, or with what, the injuries were inflicted. Where it is doubtful how death was caused, it may be alleged that it was done by some manner and means unknown to the grand jury. See Brown v. State, 475 S.W.2d 938, 946 (Tex.Crim.App.1971); Porter v. State, 215 S.W. 201, 203 (Tex.Crim.App.1918). To require the addition of words such as “by swinging her against the wall” or “by beating her with a blunt instrument” would put the grand jury in a position of speculating as to the circumstances of the offense. Appellant’s second ground of error is overruled.

In her third ground of error appellant contends that the trial court erred in admitting a copy of an autopsy report over appellant’s objection. The autopsy report was prepared by Dr. Allan Stilwell. Dr. Stilwell testified that the report bears his signature, that there were no additions or deletions from the report and that it was the same report that he prepared.

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Bluebook (online)
714 S.W.2d 475, 1986 Tex. App. LEXIS 8326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/persons-v-state-texapp-1986.