Samantha Edrie Foster v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 31, 2023
• Docket: 04-22-00149-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00149-CR

Samantha Edrie FOSTER, Appellant

v.

The STATE of Texas, Appellee

From the 81st Judicial District Court, Wilson County, Texas Trial Court No. CRW2011299 Honorable Lynn Ellison, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice Sandee Bryan Marion, Chief Justice (Ret.) 1

Delivered and Filed: July 31, 2023

AFFIRMED

Appellant Samantha Edrie Foster appeals her conviction for three first-degree felony

counts of serious bodily injury to a child. On appeal, Foster asserts the trial court abused its

discretion by denying her motion for continuance, admitting hearsay and extraneous offense

evidence, and imposing consecutive sentences. We affirm the trial court’s judgment.

1 The Honorable Sandee Bryan Marion, Chief Justice (Retired) of the Fourth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE §§ 74.003, 75.002, 75.003. 04-22-00149-CR

BACKGROUND

Deputies from the Wilson County Sheriff’s Office received a phone call to perform a

welfare check on children living at a home in Stockdale, Texas. When the deputies arrived at the

home, they found in Foster’s care her twelve-year-old daughter and her three grandchildren—a

four-year-old boy, a two-year-old boy, and a one-year-old girl. Deputies described the children as

extremely disheveled, filthy, and malnourished; they also reported the young boys had bruises and

feces on their faces and arms. When the deputies walked through the home, they indicated it had

a foul smell and found it was unsanitary, full of trash, flies, rotten food, and feces; black water

filled the bathroom tub, and it was unclear whether it worked. They also learned the boys had

been urinating and defecating in their bedroom because they were kept in their room for extended

periods of time. Foster told the deputies the home was messy because they were in the process of

moving.

Foster was arrested and charged with three counts of serious bodily injury to a child caused

by starvation and failure to provide for their basic needs. She initially pled not guilty, and the case

proceeded to a jury trial. During the third day of trial, Foster changed her plea to guilty. The trial

then moved to the punishment phase, and the jury assessed punishment at twenty-five years’

confinement for two counts and ten years’ confinement for the third count. The trial court ordered

the twenty-five-year sentences to run concurrently, and the ten-year sentence to run consecutively.

Foster now appeals.

MOTION FOR CONTINUANCE

Foster first asserts the trial court abused its discretion when it denied her request for a

continuance. According to Foster, she had not been able to assist with her defense because she

was ill and had recently been released from the hospital after having been admitted for a lung

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infection and Covid-19. In response, the State contends Foster failed to preserve this issue for

appeal because her written motion was not sworn.

“We review a trial court’s ruling on a motion for continuance for abuse of discretion.”

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Cruz v. State, 565 S.W.3d 379, 381

(Tex. App.—San Antonio 2018, no pet.). Article 29.03 of the Texas Code of Criminal Procedure

authorizes a trial court to continue a criminal action if a defendant files a written motion showing

sufficient cause. TEX. CODE CRIM. PROC. art. 29.03. Article 29.08 further provides, “All motions

for continuance must be sworn to by a person having personal knowledge of the facts relied on for

the continuance.” Id. art. 29.08. The Texas Court of Criminal Appeals has “construed these

statutes to require a sworn written motion to preserve appellate review from a trial judge’s denial

of a motion for a continuance.” Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009);

see Cruz, 565 S.W.3d at 381 (recognizing Texas Court of Criminal Appeals’ holding that a motion

for continuance must be sworn).

Here, Foster filed an unsworn, written motion for continuance the morning the case was

called for trial. Accordingly, we hold Foster failed to preserve for appellate review her complaint

regarding the trial court’s denial of her motion for continuance. See Cruz, 565 S.W.3d at 381

(holding Cruz failed to preserve his issue concerning motion for continuance for appellate review

because motion was not sworn); Woodman v. State, 491 S.W.3d 424, 429 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d) (holding appellant did not preserve any complaint arising out of denial

of motion for continuance because motion was oral and not sworn). We therefore overrule Foster’s

first issue.

ADMISSIBILITY OF EVIDENCE

Foster next asserts the trial court abused its discretion by admitting hearsay and extraneous

offense evidence. Specifically, Foster contends the trial court improperly admitted an out-of-court

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statement her twelve-year-old daughter made during an interview at the Child Advocacy Center

detailing how long the boys would go without eating. Foster also contends the trial court

improperly admitted extraneous offense evidence by allowing the children’s current foster mother

to testify about how she and her husband have been caring for the children. According to Foster,

the improper evidence created bias, was highly prejudicial, and affected her substantial rights. The

State argues, however, Foster waived these evidentiary challenges for appeal by pleading guilty in

the middle of trial.

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not

abuse its discretion unless its ruling lies outside the zone of reasonable disagreement. Id. If a trial

court’s ruling is correct under any theory of applicable law and is reasonably supported by the

record, it should be upheld. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

As indicated by the State, a defendant who enters a guilty plea forfeits his “right to appeal

a claim of error only when the judgment of guilt was rendered independent of, and is not supported

by, the error.” Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003); Young v. State, 8

S.W.3d 656, 666–67 (Tex. Crim. App. 2000). However, the authority cited by the State does not

support the proposition that a defendant who enters a guilty plea in the middle of trial waives his

right to appeal evidentiary rulings admitting hearsay or extraneous evidence offenses; nor do we

find any authority supporting the State’s contention. See Monreal, 99 S.W.3d at 616 (holding

defendant waived right to appeal when he signed non-negotiated waiver of appellate rights);

Young, 8 S.W.3d at 666–67 (concluding defendant who entered guilty plea did not waive motion

to suppress challenge because judgment of guilt was not independent of error); Brink v. State, 78

S.W.3d 478, 484 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding defendant waived

issues concerning removal of counsel when he entered guilty plea); see also Flores v. State, No.

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03-19-00489-CR, 2020 WL 3887976, at *2 n.1 (Tex. App.—Austin July 9, 2020, no pet.) (mem.

op., not designated for publication) (declining to hold waiver of evidentiary challenges even

though defendant changed plea from not guilty to guilty). Accordingly, we will address the merits

of each of Foster’s evidentiary challenges.

1. Hearsay

Texas Rule of Evidence 801 defines hearsay as an oral or written “statement that (1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d). “Matter

asserted” means “(1) any matter a declarant explicitly asserts; and (2) any matter implied by a

statement, if the probative value of the statement as offered flows from the declarant’s belief about

the matter.” Id. 801(c). Under Texas Rule of Evidence 802, hearsay is inadmissible except as

provided by statute or the rules of evidence. TEX. R. EVID. 802; Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008).

Texas Rule of Evidence 613 allows the admission of a witness’s prior inconsistent

statement for impeachment purposes, but such statements are hearsay unless a hearsay exception

applies. Willover v. State, 70 S.W.3d 841, 846 n.8 (Tex. Crim. App. 2002); Lund v. State, 366

S.W.3d 848, 855 (Tex. App.—Texarkana 2012, pet. ref’d) (“A witness’[s] prior inconsistent

statement is admissible for impeachment, but as substantive evidence of the truth of the matter

asserted, it is inadmissible unless a hearsay exception applies.”). “Thus, when such a statement is

offered for impeachment, it is admitted only to show the witness has previously made an

inconsistent statement and, for that purpose, the evidence is not hearsay.” Lund, 366 S.W.3d at

855. The party objecting to the evidence bears the full responsibility for requesting an appropriate

limiting instruction, and on timely request, the trial court must restrict the evidence to its proper

scope. Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (pointing out party’s failure

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to request limiting instruction renders evidence admissible for all purposes); see Lund, 366 S.W.3d

at 855; TEX. R. EVID. 105

Here, the record shows during the State’s case-in-chief, the prosecutor asked Foster’s

twelve-year-old daughter how long the boys would go without eating, and she testified “like one

or two” days. The prosecutor then asked whether there were times the boys would go “several

days” without eating, and she testified, “Yeah, like three days or so.” The prosecutor continued

her line of questioning and asked whether she remembered telling the Child Advocacy Center

interviewer the boys would sometimes go up to a week without eating. Defense counsel made a

hearsay objection; the trial court overruled the objection on the basis the prosecutor was

impeaching her own witness with a prior inconsistent statement, and the testimony was not

evidence. Defense counsel then asked for a limiting instruction, which the trial court denied.

In this case, the trial court properly concluded the out-of-court statement could be admitted

for impeachment purposes, and therefore, the statement was not hearsay when offered solely for

that purpose. See Lund, 366 S.W.3d at 855. However, the record shows the trial court denied

Foster’s request for a limiting instruction, and there is nothing in the record indicating a hearsay

exception applied to permit the admissibility of the statement for all purposes. See TEX. R. EVID.

105 (requiring limiting instruction when requested). We therefore conclude the trial court abused

its discretion by not limiting the admissibility of the out-of-court statement for impeachment

purposes and rather by admitting it for all purposes. See id.

The trial court’s error, however, does not result in reversal if, after examination of the

record as a whole, we determine the error did not influence the jury or influenced the jury only

slightly. Eggert v. State, 395 S.W.3d 240, 244 (Tex. App.—San Antonio 2012, no pet.). “When

the erroneous admission of evidence is cumulative of other properly admitted evidence proving

the same fact, the erroneous admission is harmless.” Id. (citing Brooks v. State, 990 S.W.2d 278,

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287 (Tex. Crim. App. 1999) (en banc)). Here, the State produced an overwhelming amount of

evidence showing the children had been starved and were living in deplorable conditions under

Foster’s care. The State produced video evidence from the deputies’ body cameras showing the

children were filthy, bruised, severely underweight, and hungry. The video also showed the house

was in an unsanitary, hazardous state. One of the deputies who had arrived at the home also

testified the two-year-old boy looked “really sickly” and “you could actually see his ribs.” He

testified the child was unable to stand due to his frail state, and his skin had been “stretched because

of the lack of food and protein.” He also described the one-year-old as “emaciated” and

“reminiscent of someone that was a survivor from the Holocaust.” The State also produced

photographs showing the children’s malnourished bodies. And during other parts of her testimony,

Foster’s twelve-year-old daughter stated she was in charge of feeding the one-year-old girl, who

had Noonan’s syndrome and a feeding tube, and Foster did not feed the boys regularly. The State

also produced evidence indicating the children needed emergency medical care because their

bodies were breaking down due to starvation. Accordingly, viewing the record as a whole, we

conclude the complained of out-of-court statement was cumulative of other properly admitted

evidence proving the same fact. See id. We therefore hold the error was harmless had the jury

ultimately determined guilt. See id.

2. Extraneous Offenses

Foster also contends the trial court improperly admitted extraneous offense evidence.

Specifically, Foster contends the trial court abused its discretion by admitting evidence describing

how the foster parents would comfort the children when they woke up screaming due to intense

nightmares. Foster refers to this testimony as “extraneous offenses” and argues the testimony was

“intended to create a bias and prejudice against [her].”

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“An extraneous offense is ‘any act of misconduct, whether resulting in prosecution or not,

which is not shown in the charging instrument, and which was shown to have been committed by

the accused.’” Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (quoting Worley v. State, 870 S.W.2d 620, 622 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d)). In this case, the testimony Foster challenges does not constitute extraneous offense

evidence. See id. This testimony specifically refers to the foster family’s conduct when the

children screamed after they had nightmares, not Foster’s alleged acts of misconduct.

Accordingly, the trial court did not abuse its discretion in admitting the evidence, and we overrule

Foster’s second evidentiary issue.

SENTENCING

Finally, Foster argues the trial court abused its discretion when it sentenced her to

consecutive sentences. Foster argues because each of her offenses arose out of the same criminal

episode and were prosecuted in a single criminal action, the trial court was required to run her

sentences concurrently under section 3.03 of the Texas Penal Code. The State responds by arguing

the trial court had discretion to run her sentences consecutively pursuant to an exception to section

3.03.

We review a trial court’s decision to impose consecutive sentences for an abuse of

discretion. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016) (citing TEX. CODE CRIM.

PROC. art. 42.08(a)). “A trial court abuses its discretion if it imposes consecutive sentences where

the law requires concurrent sentences.” Id.

Section 3.03 of the Texas Penal Code provides: “When the accused is found guilty of more

than one offense arising out of the same criminal episode prosecuted in a single criminal action, a

sentence for each offense for which he has been found guilty shall be pronounced. Except as

provided by Subsection (b), the sentences shall run concurrently.” TEX. PENAL CODE § 3.03(a);

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see Miles v. State, 506 S.W.3d 485, 486 (Tex. Crim. App. 2016). Subsection (b) lists

circumstances in which the trial court may run sentences consecutively; one of these circumstances

includes offenses for serious bodily injury to a child punishable as a first-degree felony under

section 22.04(a)(1) of the Texas Penal Code. TEX. PENAL CODE § 3.03(a), (b)(6)(A); Miles, 506

S.W.3d at 486.

Here, Foster pled guilty to three counts of the first-degree felony offense of serious bodily

injury to a child. The jury assessed punishment at twenty-five years’ confinement for two counts

and ten years’ confinement for the third count. The record shows the prosecutor asked the trial

court to run the sentences consecutively, and defense counsel then recognized the trial court had

this authority and asked the trial court to run the first two counts concurrently and the third count

consecutively. The trial court ultimately ordered the twenty-five-year sentences to run

concurrently and the ten-year sentence to run consecutively. Accordingly, because Foster pled

guilty to three counts of the first-degree felony offense of serious bodily injury to a child, the

exception to the requirement to run the sentences concurrently was invoked. See Byrd, 499 S.W.3d

at 446; see also TEX. PENAL CODE § 3.03(a), (b)(6)(A). We therefore hold the trial court did not

abuse its discretion in running her ten-year sentence consecutively. See Byrd, 499 S.W.3d at 446;

see also TEX. PENAL CODE § 3.03(a), (b)(6)(A). Accordingly, we overrule Foster’s final issue.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment of conviction.

Luz Elena D. Chapa, Justice

Do Not Publish

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