Roberson, Robert Leslie, Iii

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 2007
• Docket: AP-74,671
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. AP-74,671 ROBERT LESLIE ROBERSON, III, Appellant

v.

THE STATE OF TEXAS

Appeal of Case 26,162 of the Third Judicial District Court of

Anderson County

Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Johnson, Keasler, Hervey, Holcomb, and Cochran joined. Price, J., concurred in the judgment.

A jury found the appellant guilty of the capital murder of Nikki Curtis, his two-year-old daughter. ⁽¹⁾ The jury rendered a verdict on the issue of punishment that required the trial court to sentence the appellant to death. ⁽²⁾ In the appeal to this court, which a statute requires, ⁽³⁾ the appellant raises thirteen points of error. We find no merit in them, and we affirm the judgment.

Sufficiency of the Evidence

In his sixth point of error, the appellant contends that the evidence at trial was legally insufficient to support the verdict. We evaluate legal sufficiency claims under the standard first articulated by the Supreme Court in Jackson v. Virginia. ⁽⁴⁾ That is, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found that the State proved the elements of the charged offense beyond a reasonable doubt. ⁽⁵⁾

The substance of the appellant's argument on this point concerns the element of intent. He asserts that the evidence presented by the State as to his intent was insufficient to prove that he knowingly or intentionally committed the murder of a child under the age of six, or that such evidence was just as consistent with a finding that the appellant committed a lesser-included offense, and therefore could not be the basis of finding him guilty of capital murder beyond a reasonable doubt.

The State called twelve witnesses during its case-in-chief. Among them was Kelly Gurganus, a registered nurse, who testified that she was working in the emergency room of the Palestine Regional Medical Center when the appellant came in, pushing a wheelchair in which sat his girlfriend Teddie Cox. Gurganus said Teddie was holding something in her lap, covered in a blanket or coat of some sort. Teddie told Gurganus, "She's not breathing," at which point Gurganus removed the covering and saw Nikki Curtis lying in Teddie's lap, limp and blue. Gurganus described Nikki as being like a rag doll, and said that in her five years of nursing she had never seen anyone appear that shade of blue, not even a drowning victim. Gurganus immediately took Nikki to a trauma room and called a doctor.

Gurganus further testified that when she laid Nikki down on the bed in the trauma room, she saw bruising on Nikki's body, including on her head. She said that she then spoke with the appellant and asked him what happened, and that he told her that Nikki's injuries were the result of falling off of the bed. She said she immediately became suspicious because that story seemed implausible in light of the severity of Nikki's injuries. She instructed the director of nurses to call the police.

Gurganus spoke again with the appellant and said that he appeared nervous and anxious. She also said that he never once asked her about Nikki's condition, and that he was not crying. She said that she attempted to speak with Nikki's maternal grandparents, who had also come to the hospital, but that the appellant prevented her from doing so. That was the extent of her conversation with the appellant, except that he did approach her at some point later to say he loved his daughter and that he would never mean to hurt her. The State also called Robbin Odem, the chief nursing officer at Palestine Regional Medical Center, who testified to her own observations of Nikki's extensive head injuries, as well as her similar interaction with, and impression of, the appellant in the emergency room that night.

Dr. John Ross, the pediatrician who examined Nikki the day she died, testified that she had bruising on her chin, as well as along her left cheek and jaw. Dr. Ross said she also had a large subdural hematoma, which he described as "bleeding outside the brain, but inside the skull." He said there was edema on the brain tissue, and that her brain had actually shifted from the right side to the left. He said that, in his opinion, Nikki's injuries were not accidental but instead intentionally inflicted.

Dr. Thomas Konjoyan, the emergency room physician who treated Nikki the day she died, also testified that she had bruising on the left side of her jaw, and that she had uncal herniation, which is "essentially a precursor to brain death." Dr. Konjoyan said that the severity of the swelling in Nikki's brain necessitated her transfer to the Children's Medical Center in Dallas for pediatric neurosurgical services. He said that, in his opinion, it would be "basically impossible" for such an injury to have resulted from a fall out of bed. Dr. Jill Urban, a forensic pathologist for Dallas County, testified for the State that she performed the autopsy on Nikki and concluded that Nikki died as a result of "blunt force head injuries."

The jury also heard from Courtney Berryhill, Teddie Cox's eleven-year-old niece, who testified that sometimes she spent the night at the home where the appellant lived with Teddie, Nikki, and Teddie's ten-year-old daughter Rachel Cox. Courtney said that she once witnessed the appellant shake Nikki by the arms in an attempt to make her stop crying. Rachel Cox then testified that the appellant had a "bad temper," and that she had witnessed him shake and spank Nikki when she was crying. Rachel said she had seen this happen about ten times. She also recalled a time that the appellant threatened to kill Nikki.

Finally, Teddie Cox testified for the State. Teddie said that, although Nikki was not her biological child, she loved Nikki as her own. At the time she moved in with the appellant, Nikki was living with her maternal grandparents, the Bowmans. Teddie said that the appellant had no interest in gaining custody of Nikki but did so only because Teddie wanted to care for Nikki, and so she - along with the appellant's mother - prodded the appellant to seek custody of Nikki. They did, and Nikki came to live in their home in November of 2001. Teddie said that, although she and Rachel were both very close with Nikki, the appellant was not, nor did he seem to care about her. She said that Nikki did not like to be around the appellant and would cry every time he tried to pick her up or play with her.

Teddie testified that the appellant had a bad temper, and that he would yell at Nikki when she cried, which apparently happened every time he approached her. Teddie said she once heard the appellant yell at Nikki: "If you don't shut up I'm going to beat your ass." She also said that the appellant would hit Nikki with his hand and also once with a paddle. She said that on that occasion she told the appellant that he should not do that because Nikki was a baby. That whipping left bruising on Nikki's buttocks which the Bowmans later noticed. Teddie said that, when the Bowmans asked about it, the appellant told them that Rachel did it. She said that she confronted the appellant about the incident and that he promised her he would never hit Nikki again.

Teddie also testified that she witnessed the appellant, when he was angry at Nikki, pick her up off the bed, shake her for a few seconds, and throw her back on the bed. This upset Teddie, and she briefly left the appellant's home with Rachel, but the appellant apologized and convinced her to return. According to Teddie, this incident happened within a month of Nikki's death.

Teddie testified that, on the evening of January 30, 2002, Teddie was in the hospital after undergoing a hysterectomy procedure. Nikki was staying with the Bowmans, but Mrs. Bowman became ill, so it became necessary for the appellant to pick up Nikki and look after her. Teddie said the appellant seemed mad about this development, because he preferred to stay with her in her hospital room watching a movie on television. Teddie said the appellant had never once before been asked to be the sole caretaker of Nikki. She said the appellant did not leave immediately, but waited quite a while and, when he finally did leave, he was mad.

The next morning, Teddie was told she was being released. When she spoke to the appellant about picking her up, he said that he was bringing Nikki to the hospital because she wasn't breathing and he couldn't get her to wake up. Teddie noted that he did not seem upset about the situation. She called him back five minutes later, but he still had not yet left the house, so she urged him to do so. She then went to the nurse's desk to get a wheelchair so she could make her way downstairs to meet them as they arrived. The appellant eventually pulled into the parking lot. Teddie said he did not seem to be moving urgently and in fact found a parking spot instead of pulling up to the front door. Nor did he seem to be in any hurry to get Nikki out of the car.

Teddie urged him to bring Nikki to her, and he did. Teddie said Nikki was limp, blue, and did not appear to be breathing. Teddie said she asked the appellant what happened, and he said that they had fallen asleep in bed while watching a movie and that he awoke to her crying near the foot of the bed, on the floor. He said he made sure that she was okay and then brought her back into bed with him, and they went back to sleep. Teddie said she was skeptical of this story, because, in her experience, Nikki would always cry for Teddie when the appellant tried to sleep in the bed with her. In fact, Teddie said, the appellant later did tell her that Nikki was crying for her.

Nikki died from her injuries after being taken to the hospital in Dallas. Teddie could not accompany Nikki when she was taken to Dallas, but she did not want to return to the appellant's home, so she took her daughter to stay with a relative. In the ensuing weeks, she spoke with the appellant occasionally, and she said he never once mentioned Nikki, and that when she did he expressed no interest in talking about her. Teddie said he did not seem sad or emotionally distraught, but that he just showed no interest. At one point, while the appellant was in the Anderson County Jail, Teddie said she asked him directly if he had killed Nikki. She said his response was that if he did do it, he didn't remember; that he might have "snapped," but that he doesn't remember doing so.

In his case-in-chief, the appellant called Patricia Conklin, Teddie's sister, who testified that, in her opinion, the appellant had a loving relationship with Nikki. She said that in her experience she had never seen the appellant spank Nikki, but that she had once seen Rachel do so. She also said that, in her opinion, Teddie had a poor reputation for truthfulness.

The appellant's argument for legal insufficiency focuses almost entirely on the issue of intent. He contends that the evidence failed to prove beyond a reasonable doubt that he acted intentionally or knowingly:

Given the fact that the objective evidence introduced during the trial was consistent with the scenario of an act of rage, loss of control or emotional outburst, it is not sufficient to provide the requisite conclusion of the specific intent or knowledge to take the life of the child. ⁽⁶⁾

The appellant specifically focuses on the testimony of Janet Squires, M.D., a board-certified pediatrician who testified for the State. Dr. Squires examined the victim shortly before she died from massive head trauma and concluded that she had been the victim of child abuse. She was asked about her conclusions on direct examination:

[The State]: All right. And so do you feel like this child was the victim of child abuse?

[Dr. Squires]: Yes.

Q: Child abuse, does that mean accidental?

A: It means non-accidental.

Q: It means intentional?

A: I don't know intentional. It means inflicted. Our words are non-accidental inflicted trauma, abusive trauma.

During cross-examination of Dr. Squires, the following exchange occurred:

[Appellant's Counsel]: You also said that intentional is not a term that y'all like to use; is that correct?

[Dr. Squires]: That's correct.

Q: Is that because that really doesn't have a medical aspect?

A: I would even agree with that, yes.

Q: Okay.

A: It was a term that in our medical -- we used to use words like intentional and non-intentional injury. Those were common to be used and about 10 years ago it sort of became obvious that we don't always know intent. So from a medical standpoint we use much more inflicted versus non-inflicted, accidental versus non-accidental.

The appellant seizes upon these portions of Dr. Squires's testimony as negating any possibility that his intent could be inferred by the nature of Nikki's injuries, or at least negating his intent to commit capital murder. However, we find Dr. Squires's testimony as quoted here unremarkable, in the sense that, rather than negating the appellant's intent, she appeared to be merely refraining from testifying to an ultimate issue of the case - the appellant's guilt. As a doctor, it is entirely prudent for her to only testify as to what she could conclude medically from her examination of Nikki.

Moreover, proof of a culpable mental state almost necessarily relies on circumstantial evidence. ⁽⁷⁾ Therefore, it is entirely appropriate for a fact finder to infer intent, regardless of whether any witness can or cannot testify to direct knowledge of someone's intent. We have consistently held that a rational fact finder could infer knowledge and intent from conduct of, remarks by, and circumstances surrounding the acts engaged in by, the accused. ⁽⁸⁾

Therefore, regardless of Dr. Squires's opinion of the appellant's intent, the jury could have reasonably inferred the appellant's intent from the severity of Nikki's injuries as well as from the testimony of three other doctors who examined her and concluded that such injuries must have resulted from intentional blows to her head rather than from an accidental fall off the bed, as the appellant claimed. It was undisputed that the appellant was alone with Nikki's when she suffered the injuries. The jury also heard testimony that the appellant had a bad temper and that he would be set off by Nikki's crying, which she seemed to always do in his presence. When viewed in a light most favorable to the verdict, the evidence would allow a rational jury to find beyond a reasonable doubt that the appellant intentionally or knowingly caused Nikki's death. Point of error six is overruled.

In his seventh point of error, the appellant claims the evidence at trial was factually insufficient to support the guilty verdict.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder. ⁽⁹⁾

The appellant's argument on this point essentially rehashes the argument he made in point of error six, again citing Dr. Squires's testimony about intent. The evidence in support of the verdict is detailed above. Viewing it in a neutral light, we do not find that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof of guilt is greatly outweighed by contrary proof. In his defense case-in-chief, the appellant called one witness, Ms. Conklin, in an attempt to impeach the credibility of Teddie Cox and counter her testimony as to the appellant's relationship with Nikki. The defense cross-examined all of the State's testifying medical experts, but did not generally contest that the appellant was responsible for Nikki's injuries. Rather, the appellant's theory at trial -- and the basis for his factual-sufficiency claim on appeal -- was that the evidence did not prove that he had the necessary intent to have committed capital murder. Viewing the evidence neutrally, we find it factually sufficient to support a finding that he did have such intent, and that such a finding is not against the great weight and preponderance of the adverse evidence presented. Point of error seven is overruled.

Trial Court Objections

In his fifth point of error, the appellant claims that the trial court erred in denying his motion to sever under Section 3.04 of the Penal Code.

The first count of the indictment contained two paragraphs alleging capital murder. The first alleged that the appellant caused the death of a person under six years of age. ⁽¹⁰⁾ The second alleged that the appellant committed capital murder by causing the victim's death while in the course of committing aggravated sexual assault. ⁽¹¹⁾ The appellant filed a pre-trial motion to sever the two capital-murder paragraphs of the indictment, on the grounds that the State intended to introduce numerous incidents of extraneous conduct in support of the sexual-assault predicate count, and that such evidence would be irrelevant to the other capital count, and prejudicial because the autopsy report found no evidence of sexual assault on the victim's body. ⁽¹²⁾

In a pretrial hearing, the trial court denied the motion. When the State rested its case-in-chief, it abandoned the sexual-assault predicate capital-murder count. The appellant then moved for a mistrial based on the trial court's denial of his motion to sever, and that motion was denied.

Section 3.04(a) says, "Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to severance of the offenses." We have held that an indictment may contain as many separate paragraphs charging the same offense as is necessary to meet the contingencies of evidence. ⁽¹³⁾ Where an indictment charges different theories under which a defendant may have committed a single capital murder, Section 3.04(a) is inapplicable. ⁽¹⁴⁾ Here, the appellant argues that he was harmed by the trial court's decision in this case to "support the continued joinder of the two capital counts." The record, however, shows that no such thing happened. The indictment in this case did not allege two separate offenses, but rather one offense (capital murder) under two different theories ( the victim was under six years of age, and the murder was committed in the course of committing aggravated sexual assault). The trial court did not err by denying the appellant's motion to sever under Section 3.04. Nor did the trial court's ruling implicate, much less violate, any of the appellant's federal constitutional rights, as he claims. Point of error five is overruled.

In his eleventh point of error, the appellant claims that the trial court erred by refusing to admit the testimony of John Claude Krusz, M.D. The appellant offered the testimony of Dr. Krusz toward the end of his case-in-chief. The State objected and was granted the opportunity to conduct a voir-dire examination of Dr. Krusz outside the presence of the jury. Dr. Krusz testified on voir dire that he had examined the appellant and concluded that the appellant suffered from organic brain syndrome (or more specifically, post-concussional syndrome), which caused him to have poor impulse control and difficulty making rational decisions. The State objected that the testimony amounted to a diminished-capacity defense, which is not recognized as a legal justification for criminal acts. After the voir dire examination of Dr. Krusz, the trial court expressed reservations about the admissibility of his testimony:

[The Court]: Gentlemen, to be honest with you, as I listened to the doctor testify, that was my concern is, we're getting into the, you know, the negation, as they say of intent that he cannot form intent or knowledge in his mind to commit a crime.

[Appellant's Counsel]: That's not all this doctor is testifying to, your honor. First of all, it's saying how he effects [sic], not that there's an absolute absence, but of how it affects his ability to form intent and knowledge. Further, the doctor I believe will testify that are certain stress factors, particularly the situation that is the subject will present an emotional response, your Honor. The jury has the obligation to find intentional and knowing conduct. There are also other culpable mental states that we're going to request that the Court put before this jury and I believe those type, the type of organic brain injury that my client suffers has a direct and loathing effect as to whether he was in one of those intents or whether or not he was acting primarily upon an emotional basis.

The trial court ultimately agreed with the State and excluded Dr. Krusz's testimony from the guilt-innocence phase of the trial.

Since this case was originally briefed, we handed down our decision in Jackson v. State, ⁽¹⁵⁾ and both parties have submitted supplemental briefs citing it.

In Jackson, we reiterated that Texas does not recognize "diminished capacity" as an affirmative defense, i.e., a "lesser form of the defense of insanity." ⁽¹⁶⁾ We distinguished, however, the situation in which mental-health evidence is presented, not as part of an attempted affirmative defense, but instead as an attempt to negate the mens rea element of the charged offense. In that case, such evidence is admissible, assuming it meets the requirements of Rule 403. ⁽¹⁷⁾ We said:

Even if evidence is relevant to an element of the offense, the trial court still must determine whether the evidence is admissible. Therefore, the trial judge has discretion to determine whether evidence of mental illness may be presented to negate the element of mens rea, or whether the evidence should be excluded on special grounds. ⁽¹⁸⁾

We found in Jackson that the appellant had been able to present extensive evidence of his mental illness. Therefore, the trial court did not abuse its discretion by sustaining the State's objection to the appellant's improper closing argument that the jury should find that the appellant "lacked the mental capacity to intentionally or knowingly cause bodily injury."

After Jackson, the Supreme Court also decided a case in this area. In Clark v. Arizona, ⁽¹⁹⁾ the Supreme Court held that Arizona's exclusion of expert testimony about mental incapacity, except when raising the insanity defense, did not violate due process. ⁽²⁰⁾ The Court categorized mental-health evidence bearing on mens rea into three types: "observation evidence," "mental-disease evidence" and "capacity evidence." ⁽²¹⁾ The latter two categories are relevant here. "Mental-disease" evidence includes opinion testimony that a defendant suffered from a mental disease with features described by the witness. "Capacity evidence" includes opinion testimony of a defendant's capacity for cognition, moral judgment, and, ultimately, his capacity to form mens rea. The Supreme Court said that these categories have the potential to mislead the jury since the medical classifications of mental disease "tell us little or nothing about the ability of the defendant to form the mens rea or to exercise the cognitive, moral or volitional capacities that define legal sanity." ⁽²²⁾ It said, however, that every state is free to choose whether it wishes to "channel" mental-health evidence exclusively to the legal insanity defense:

It bears repeating that not every State will find it worthwhile to make the judgment Arizona has made, and the choices the States do make about dealing with the risks posed by mental-disease and capacity evidence will reflect their varying assessments about the presumption of sanity as expressed in choices of insanity rules. ⁽²³⁾

Acknowledging this ruling, we adhere to our decision in Jackson and will continue to give the trial judge discretion to determine whether mental-health evidence proposed by the defendant is relevant to mens rea and admissible. In the instant case, we find that the trial judge did not abuse his discretion in denying the appellant's request to call Dr. Krusz. The witness's proposed testimony regarding organic brain syndrome and poor impulse control is not relevant as to the appellant's ability to form the requisite mens rea for the offense. It appears that it was merely being used as a mental-health defense not rising to the level of insanity. Point of error eleven is overruled.

Punishment Phase Issues

In his twelfth point of error, the appellant asserts that the jury instructions on punishment violated his Sixth, Eighth, and Fourteenth Amendment rights by diluting the burden of proof on the two punishment special issues. In support of his claim, he submits the affidavit of one juror, which he suggests shows that the jury misunderstood what burden of proof was required of the State on Special Issue No.1, ⁽²⁴⁾ and that the jury mistook the meaning of "society" in the context of Special Issue No. 1 as referring to society at large rather than the society of a penitentiary.

Generally, we review a jury charge under a two-step process: first, we determine whether the charge was some way erroneous, and second, if error is found, we conduct a harm analysis to decide if a reversal is warranted. ⁽²⁵⁾

The relevant parts of the jury charge on punishment in this case read as follows:

The burden of proof for Special Issue No. 1 rests upon the State, and it must prove the issue beyond a reasonable doubt.

******

The burden of proof in this phase of the trial rests upon the State and never shifts to the Defendant. The law does not require a Defendant to prove that the answer to Special Issue No. 1 should be answered "No" nor that the answer to Special issue No. 2 should be "Yes", nor does it require the Defendant to produce any evidence at all.

****

Special Issue No. 1

Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, ROBERT LESLIE ROBERSON III would commit criminal acts of violence that would constitute a continuing threat to society?

We find no error in these instructions as worded. Contrary to the appellant's suggested objections, the inclusion of the word "probability" in the wording of Special Issue No. 1 does not unconstitutionally conflict with the words "beyond a reasonable doubt" in the same sentence. ⁽²⁶⁾ Nor is it relevant whether the jury considered society to mean "prison society" or "society at large." ⁽²⁷⁾ Finding no error in the jury instructions, we need not conduct any harm analysis. Point of error twelve is overruled.

In his thirteenth point of error, the appellant asserts that the evidence presented at the punishment phase was insufficient to support the jury's answer to the special issue on future dangerousness, resulting in a violation of his Sixth, Eighth, and Fourteenth Amendment rights.

In determining the answer to the special issues, the jury may consider all evidence presented at trial, including at the guilt-innocence phase. ⁽²⁸⁾ In reviewing the legal sufficiency of the jury's answers, we consider all evidence in the light most favorable to its findings, and then determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to Special Issue No. 1 was "yes." ⁽²⁹⁾

At the punishment phase, the State began by offering the appellant's pen packets. They showed that the appellant had been convicted previously of burglary of a habitation, for which he was sentenced to ten years in prison (upon revocation of his probation). They also showed a prior conviction for felony theft, for which the appellant received a seven-year sentence, as well as a five-year term for another theft conviction. In total, the appellant had been arrested at least seventeen times before murdering Nikki.

The State then called Della Gray, the appellant's ex-wife and the mother of his two older children. Gray testified that the appellant was physically abusive towards her both before and after they got married, including incidents where he strangled her with a coat hanger, punched her in the face and broke her nose while she was pregnant, and beat her with a fireplace shovel. She also told of a time when she had gone out to help a friend, leaving the appellant and their son, Robert, Jr., at home alone together. When she returned, Robert, Jr. had a bruised face, and when she asked him what happened, Robert, Jr. told her he had fallen off the bed. She also described an incident in which the appellant was alone in a bedroom with their then two-year-old daughter Victoria for thirty minutes. Victoria was screaming and upset, and when the appellant finally let her out of the room she had a "hickey" on her neck. Overall, Gray described herself as scared of the appellant, such that she never reported any of the suspected abuse to the authorities. She said she currently was not allowed to spend any time with her children. On cross-examination, Gray admitted she had been involved in a lengthy custody battle against the appellant and his mother, which she ultimately lost, some eleven years previously. She also admitted to some history of alcohol and drug abuse, and that she had not provided, nor has she been asked to provide, any support for her children in the years since she lost custody of them.

There was testimony from another witness concerning a dispute with a neighbor that escalated into a physical altercation with a teenage boy. The State then rested its punishment case-in-chief.

The appellant called two officers from the Anderson County jail to testify that the appellant had no history of violence or disciplinary problems while incarcerated there. The appellant then called Dr. John Krusz. Dr. Krusz's testimony consisted of that which was offered and excluded at the guilt-innocence phase, namely, a discussion of what he referred to as the appellant's "post-concussional type syndrome." ⁽³⁰⁾ Dr. Krusz said that his evaluation of the appellant led him to conclude that, despite his poor ability to deal with stressful situations in the past, the appellant would be able to control his behavior in the controlled, structured environment of prison.

On cross-examination, Dr. Krusz acknowledged that the major portion of his work was in the treatment of chronic pain and migraine headaches. He also admitted that the appellant had not informed him of his history of abuse towards his ex-wife and children. He also acknowledged that, even if the appellant was brain damaged, there are many people in the world who are brain damaged and have not murdered a child. Dr. Krusz also conceded that the appellant's brain disorder might be attributable to the appellant's long-term history of drug abuse, including intravenous drugs.

The appellant then called Kelly R. Goodness, Ph.D. Dr. Goodness was a forensic psychologist who had interviewed the appellant while he was incarcerated during this trial, as well as other people who knew the appellant, including his family. Dr. Goodness testified that, in her opinion, the appellant had been physically abused as a child by his father, despite denials of abuse by the appellant and his family. She also said she believed that the appellant's two older children had been abused, but that she could find no conclusive evidence to say whether the abuse came from the appellant or his ex-wife. She said she believed the appellant suffered from brain damage -- specifically, that his brain was "compromised" -- as well as depression, substance dependence, and antisocial-personality disorder. She also testified that the appellant's mother had a very dominant influence on him and that, if not for her influence, he likely would not have sought custody of Nikki. In her opinion, the appellant was unlikely to attempt to escape from prison, nor was he likely to pose a future danger while in prison. After Dr. Goodness's testimony, the appellant rested his punishment case-in-chief.

In rebuttal, the State called Thomas Allen, Ph.D., a psychologist who interviewed the appellant and reviewed his records. Dr. Allen testified that, based on the severity of the crime in this case, the appellant's family history, his history of substance abuse, and other factors, he believed that the appellant was a psychopath and that it was probable he would commit future acts of violence, even in prison.

The State then called David Self, M.D., a psychiatrist who interviewed the appellant along with Dr. Allen. Dr. Self disputed Dr. Krusz's diagnosis of post-concussion syndrome. He agreed that the appellant has poor impulse control, but that led him to conclude that the appellant would be at risk to engage in future acts of criminal violence because he would be targeted by other inmates in prison as someone who had hurt a child, and he likely would have to defend himself from physical attacks. On cross-examination, Dr. Allen acknowledged that many people in the appellant's condition do not act out violently in prison, and that the appellant himself had no history of violent incidents during his prior years of incarceration.

The appellant contends that the evidence above was insufficient to support the jury's finding on future dangerousness because he had no prior convictions of violent crimes and because the State over-emphasized the nature and importance of the scuffle between the appellant and his neighbor. We note that the crime itself -- killing a two-year-old child by beating or shaking her -- was particularly violent. We also note that the appellant had a lengthy criminal record, even in the absence of a violent-crime conviction. Both sides presented expert testimony as to the appellant's future dangerousness, but we do not find the appellant's expert testimony to be significantly more compelling than that which was presented by the State. In short, viewed in the light most favorable to the verdict, we find a rational jury could have answered "yes" to Special Issue No. 1, the issue of future dangerousness. The evidence was therefore sufficient to support the jury's answer beyond a reasonable doubt. We overrule point of error thirteen.

Facial Challenges

In his first four points of error, the appellant argues that Section 19.03(a)(8) of the Texas Penal Code is unconstitutional on its face because the Legislature's decision to make capital punishment available for any murder in which the victim is under six years of age is arbitrary and not substantially related to the achievement of an important governmental objective. In his first and third points of error, he argues this violates the Texas Constitution, ⁽³¹⁾ while in his second and fourth points of error, he asserts violations of the United States Constitution. ⁽³²⁾ Essentially, the appellant asserts an equal-protection violation because the statute discriminates on the basis of age -- or rather it discriminates against defendants like himself, based on the ages of their victims. Although he acknowledges that age discrimination normally would not be subject to strict-scrutiny review, the appellant argues that at least "heightened" review is appropriate in the case of this statute, which has implications of life and death.

We addressed this exact issue in Henderson v. State. ⁽³³⁾ There, we considered and rejected the appellant's equal-protection argument that a stricter level of scrutiny was warranted because life-and-death issues were implicated by the statute in question. ⁽³⁴⁾ We then concluded that Section 19.03(a)(8) is constitutional under a rational-basis standard. ⁽³⁵⁾ Additionally, we held that Section 19.03(a)(8) does not violate the Eighth Amendment's prohibition of cruel and unusual punishments. The appellant here presents no new arguments to merit reconsideration of our decision in Henderson. ⁽³⁶⁾ Points of error one through four are overruled.

In his eighth point of error, the appellant asserts that the capital-murder statute under which he was convicted is in pari materia to the Penal Code provisions concerning injury to a child. ⁽³⁷⁾ Therefore, he argues, his conviction should be vacated and a verdict should be rendered for the offense of injury to a child.

In pari materia is a principle of statutory interpretation, a means of interpreting and giving full effect to legislative intent. ⁽³⁸⁾ When two statutes are in pari materia, we construe them together as if they were one and the same law. ⁽³⁹⁾ Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy. ⁽⁴⁰⁾ However, if two statutes do not deal with the same subject matter, persons, or purpose, they are not in pari materia and should be construed separately and in accordance with the plain wording of the particular statute. ⁽⁴¹⁾

Injury to a child and capital murder are obviously two different offenses. More to the point, they are two different legislative acts, with different elements of proof, different penalties, and are obviously designed to serve different purposes. ⁽⁴²⁾ It is contrary to a plain reading of the statutes to suggest that the legislature, in specifically acting to make murder of a child under the age of six a capital offense, intended for that act to be superseded by the enactment of the lesser offense of injury to a child. The two statutes are not in pari materia. Point of error eight is overruled.

In his ninth point of error, the appellant claims the jury instructions called for under the Texas capital-murder statute ⁽⁴³⁾ violate his rights under the Eighth and Fourteenth Amendments because they permit the imposition of the death penalty without a finding of enhanced culpability. In his tenth point of error, he argues that the lack of a "deliberateness" requirement in the capital-murder statute makes it unconstitutional under the Eighth and Fourteenth Amendments. Article 37.071 has repeatedly been held not to violate the Eighth Amendment. ⁽⁴⁴⁾ We overrule points of error nine and ten.

Conclusion

We affirm the trial court's judgment.

Delivered June 20, 2007.

Do not publish.

1. See Penal Code §19.03(a)(8).

2. See Code Crim. Proc. art. 37.071, § 2(b), (e), (g).

3. Id. § 2(h).

4. 443 U.S. 307 (1979).

5. Id. at 319; Simmons v. State, 109 S.W.3d 469, 472 (Tex. Cr. App. 2003).

6. Appellant's brief at 37.

7. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Cr. App. 1991).

8. Turner v. State, 600 S.W.2d 927, 929 (Tex. Cr. App. 1980); Allen v. State, 478 S.W.2d 946, 947 (Tex. Cr. App. 1972).

9. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Cr. App. 2005) (citations and quotation marks omitted).

10. See Penal Code § 19.03(a)(8).

11. See Penal Code § 19.03(a)(2).

12. Specifically, the autopsy report concluded, "The external genitalia, anus, and perineum are unremarkable." Clerk's Record, at 301; Analysis of an anal swab and anal smear taken from the victim's body detected neither seminal fluid nor spermatozoa. Id. at 307.

13. Graham v. State, 19 S.W.3d 851, 853 (Tex. Cr. App. 2000); Hathorn v. State, 848 S.W.2d 101, 113 (Tex. Cr. App. 1992).

14. Ibid.

15. 160 S.W.3d 568 (Tex. Cr. App. 2005).

16. Id., at 573.

17. R. Evid. 403.

18. Jackson, 160 S.W.3d, at 574.

19. 126 S. Ct. 2709 (2006).

20. Id. at 2737.

21. Id. at 2724-25.

22. Id. at 2735.

23. Id. at 2736.

24. See Code Crim. Proc. art. 37.071, § 2(b)(1).

25. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Cr. App. 1994).

26. Rayford v. State, 125 S.W.3d 521, 534 (Tex. Cr. App. 2003).

27. Collier v. State, 959 S.W.2d 621, 623 (Tex. Cr. App. 1997) (quoting Morris v. State, 940 S.W.2d 610, 613 (Tex. Cr. App. 1996)).

28. Code Crim. Proc. art. 37.071§ 2(d)(1).

29. Lad v. State, 3 S.W.3d 547, 558 (Tex. Cr. App. 1999) (quoting Harris v. State, 738 S.W.2d 207, 225-26 (Tex. Cr. App. 1986)).

30. See point of error eleven, ante.

31. Tex. Const. art 1, §§ 3, 13.

32. U.S. Const. amends. V, VI, VIII, & XIV.

33. 962 S.W.2d 544 (Tex. Cr. App. 1997).

34. Id. at 560-61.

35. Id. at 563.

36. See also, Ripkowski v. State, 61 S.W.3d 378 (Tex. Cr. App. 2001).

37. See Penal Code §22.04(a), (b).

38. Mills v. State, 722 S.W.2d 411, 413 (Tex. Cr. App. 1986).

39. Ibid.

40. Ibid (quoting Ex parte Harrell, 542 S.W.2d 169, 171 (Tex. Cr. App. 1976)).

41. Cheney v. State, 755 S.W.2d 123, 127 (Tex. Cr. App. 1988).

42. Id,. at 130.

43. Code Crim. Proc. art. 37.071.

44. See generally Jurek v. Texas, 428 U.S. 262 (1976); Threadgill v. State, 146 S.W.3d 654, 672-73 (Tex. Cr. App. 2004); Garcia v. State, 126 S.W.3d 921, 929 (Tex. Cr. App. 2004); Reyes v. State, 84 S.W.3d 633, 637 (Tex. Cr. App. 2002).