COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00186-CR
SHANTANIQUA NYKOLE SCOTT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1207069D ----------
MEMORANDUM OPINION1
Introduction
Appellant Shantaniqua Nykole Scott appeals her conviction for serious
bodily injury to a child. We affirm.
1 See Tex. R. App. P. 47.4. Facts
Appellant’s son, R.S., was four months old when he underwent surgery at
Cook Children’s Hospital to correct gastro-esophageal-reflux disorder.
Suspecting that the condition had been caused by abuse, his doctor ordered him
placed in a private recovery room equipped with a hidden security camera. After
R.S. had been placed in the room, monitors alerted staff that his breathing had
stopped. Nurse Laura Gammons and Physician’s Assistant Kevin Scully
responded and managed to revive him.
A video from the hidden camera shows Appellant holding a blanket over
R.S.’s face and placing her hand over his nose and mouth until he stops
struggling and goes limp. About thirty seconds later, she leaves the room and
calmly tells staff responding to the alert that R.S. had stopped breathing.
Appellant later admitted to police that she had placed her hand over the
baby’s mouth and nose because she did not want to deal with the stress of
having a child any longer.
A grand jury indicted Appellant for serious bodily injury to a child, a petit
jury found her guilty and assessed her punishment at twenty-five years’
confinement, and the trial court sentenced her accordingly. She brings three
issues on appeal.
2 Expert Witness
In her first issue, Appellant claims that the trial court erred by allowing
Physician’s Assistant Scully to testify that R.S.’s injury presented a “substantial
risk of death” from which he “would have died” without medical intervention.
The qualification of a witness as an expert is within the trial court’s
discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Duran v.
State, 163 S.W.3d 253, 258 (Tex. App.—Fort Worth 2005, no pet.). A trial court’s
decision to permit a witness to testify as an expert will not be disturbed on appeal
absent a showing of a clear abuse of discretion. Wyatt, 23 S.W.3d at 27; Duran,
163 S.W.3d at 258.
Texas Rule of Evidence 702 provides, “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion or
otherwise.” Tex. R. Evid. 702. No rigid formula exists for determining whether a
particular witness is qualified to testify as an expert. Duran, 163 S.W.3d at 258.
It is almost impossible to lay down any definite guidelines for determining
knowledge, skill or experience required in a particular case or of a particular
witness. Id.; Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App.—Corpus
Christi 1983, writ ref’d n.r.e.).
Appellant does not cite nor have we found any authority holding that a
physician’s assistant may not testify as an expert about a serious injury and
3 corresponding risk of death. To the contrary, rule 702 and the case law provide
that experience alone can provide a sufficient basis to qualify a witness as an
expert. Gregory v. State, 56 S.W.3d 164, 180 (Tex. App.—Houston [14th Dist]
2001, pet. dism’d), cert. denied, 538 U.S. 978 (2003); see also Duran, 163
S.W.3d at 258. Nothing in rule 702 requires that a witness have a particular
degree in order to qualify as an expert. See Gregory, 56 S.W.3d at 179–80. (“A
medical license or degree is not the litmus test for qualification as an expert.”).
In similar fact patterns, this court and others have found that nurses and
other medical professionals may qualify as experts. See, e.g., Duran, 163
S.W.3d at 258–59; Frohne v. State, 928 S.W.2d 570, 576 (Tex. App.—Houston
[1st Dist.] 1996, pet. ref’d), cert. denied, 522 U.S. 812 (1997). In deciding an
ineffective-assistance-of-counsel claim in Frohne, our sister court held that
because a pediatric nurse’s suspicions of abuse were based on her education,
training, and experience, the appellant failed to show that an objection to the
nurse’s testimony on the basis that she was not qualified as an expert would
have been sustained. 928 S.W.2d at 576. And in Butler v. State, another sister
court held that the trial court did not abuse its discretion by allowing a nurse with
“extensive specialized training in the field of child abuse” and a clinical supervisor
with a master’s degree in counseling and seventeen years’ experience dealing
with child abuse, to testify as experts. 892 S.W.2d 138, 140 (Tex. App.—
Texarkana 1994, no pet.).
4 In this case, Scully was a licensed physician’s assistant for surgical
services at Cook Children’s Hospital and had worked there for four years. His
duties included taking admission history, administering assessments and
physical examinations, assisting surgeons in the operating room, answering calls
from nurses, modifying medications and making medical decisions based on
laboratory data and patient assessment. He testified that he holds two
bachelor’s degrees from the University of Texas and the Air Force, a master’s
degree in medicine from the University of Nebraska, and that he served one tour
of duty in Iraq as a medical officer. Based on the evidence of Scully’s education
and experience, we hold that the trial court did not abuse its discretion by
allowing him to give testimony as an expert that R.S. was at “substantial risk of
death” from which he “would have died” without medical intervention.
Further, the trial court’s admission of Scully’s opinion testimony is
harmless because there was ample other evidence that R.S. suffered serious
bodily injury. The jury saw the videotape and easily could have inferred that R.S.
was at a substantial risk of death from watching Appellant smother him. And
Nurse Gammons testified that when she entered the baby’s room, it appeared
that he was not breathing. Moreover, Dr. Sami Hadeed, the pediatric
pulmonologist who had treated R.S., testified that the baby was not breathing
and was at a substantial risk of death. We overrule Appellant’s first issue.
Lesser-Included-Offense Instruction
5 In her second issue, Appellant argues that the trial court erred by failing to
charge the jury with the lesser-included offense of injury to a child.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). An offense is a lesser included offense if it differs from the offense
charged only in the respect that a less serious injury or risk of injury to the same
person, property, or public interest suffices to establish its commission. Tex.
Code Crim. Proc. Ann. art. 37.09(2).
A person commits bodily injury to a child by intentionally, knowingly,
recklessly, or with criminal negligence causing bodily injury to a child. Tex. Penal
Code Ann. § 22.04(a)(3) (West Supp. 2013). A person commits serious bodily
injury to a child by intentionally, knowingly, recklessly, or with criminal negligence
causing serious bodily injury to a child. Id. § 22.04(a)(1). “Bodily injury” is
“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8)
(West Supp. 2013). “Serious bodily injury” means 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.”
Id. § 1.07(46). Because bodily injury to a child differs from serious bodily injury to
6 a child only in the respect that a less serious injury suffices to establish its
commission, the first step of the analysis is met.
Under the second step, some evidence must exist in the record that would
permit a jury to rationally find that if the appellant is guilty, he is guilty only of the
lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741
(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence must
be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There
must be some evidence from which a rational jury could acquit the appellant of
the greater offense while convicting him of the lesser-included offense. Id. The
court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Appellant relies on the following exchange between defense counsel and
Dr. Hadeed to argue that a rational jury could have found Appellant guilty only of
bodily injury to a child but not serious bodily injury to a child:
Q. So––and from what I’ve been able to determine––and see if you agree with this––four to five minutes is usually when there starts being a real risk of death, a cutoff of oxygen––a complete cutoff of oxygen, is that––would you agree with that?
A. Partially.
Q. Okay. What part wouldn’t you agree with?
A. If any healthy individual four to five minute [sic] is that, you’re correct. But if somebody who already has some abnormality in the blood, like I––if the––if their blood is a little bit more acidy, if there–– if there’s some other condition, can accelerate that process.
7 We disagree that a rational juror could conclude from this discussion about
a hypothetically healthy individual’s ability to survive a certain period without
oxygen, that R.S.––a baby who had been smothered until he lost consciousness
and stopped breathing––had not been placed at a substantial risk of death.
Moreover, we find nothing in the record from which a rational juror could
conclude that if Appellant was guilty of anything, she was guilty of only injury to a
child and not serious bodily injury to a child. Accordingly, we hold that the trial
court did not err by refusing to charge the jury on the lesser-included offense of
injury to a child, and we overrule Appellant’s second issue.
Jury Argument
In her third issue, Appellant argues that the trial court erred by overruling
her objection to the State’s closing argument during the punishment phase of the
trial.
During the punishment phase, the jury learned that Appellant had admitted
that she had suffocated R.S. several times before the incidents recorded on
video at the hospital. Medical records showed additional instances where R.S.
was reported to have stopped breathing and that he had not had any further
incidents since being placed in foster care. Appellant’s mother testified on
Appellant’s behalf that Appellant was still R.S.’s mother and that she was fighting
to keep her parental rights. She believed that Appellant should be able to regain
custody of R.S. after she gets “the full kind of help that she needs.”
8 During her final argument, Appellant brought up the issue of custody. Her
counsel reminded the jury that “this isn’t a child custody battle” and that the jury
could not decide who gets custody. Then he explained,
This is a case on whether she––and––and she is not going to get custody as––if––if you give her probation or you give her a short sentence. She––if she ever gets custody of another child, it’s going to be because she’s proven herself to be trustworthy enough that people will trust her, because she showed she wasn’t trustworthy. And that’s it. Her mother says no, everybody says no, you’ve shown yourself not to be trustworthy taking a [sic] care of kid [sic]; until you– –you show us something different, we’re not going to let you. And even then maybe not.
The State responded to Appellant’s references to custody in its closing
argument:
And think of [R.S.] when he first got to [his foster mother]. She sits him up and when she puts a onesie on him, a shirt over him, he’s fine. But put him on his back and what does he do? He screams. He kicks. He reaches for her hand to push her away. The only way that you can make sure she doesn’t get [R.S.] back is to send her to prison because––
[DEFENSE COUNSEL]: I object to this. This is not a proper plea for law enforcement.
THE COURT: And I will say that’s a decision made by another court action. I’ll sustain that objection. Your job isn’t [sic] to render a fair decision on the facts of this case, not on the custody of the child. Does everyone understand the difference?
SEVERAL JURY MEMBERS: Yes.
THE COURT: All right.
[THE STATE]: Thank you, Judge.
What we’re asking you to do, she has forfeited the privilege to have any other kids to have to take care of. How can you trust her?
9 If she gets a slap on the wrist and gets out, then we have to read about another kid that’s been hurt. It’s going to be a sad day. She has proven every time she has suffocated this helpless kid that she can’t be trusted. And he can’t turn his head away. He can’t shout for help. He can’t grab her hand and shove it away. He’s quite frankly helpless and dependent upon the one person who was caring for him, but she couldn’t do it.
....
Make sure she stays in prison long enough where she can’t have any more children. She has absolutely forfeited that privilege. I will leave the math to you, but make sure no other kids can get hurt.
[DEFENSE COUNSEL]: I object. This is not a proper plea for law enforcement.
THE COURT: Overruled.
[THE STATE]: Absolutely this is a plea for law enforcement. Don’t give her the chance. Send her to prison and make it a long time.
There are four permissible areas of jury argument: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answers to argument
of opposing counsel; and (4) pleas for law enforcement. Felder v. State, 848
S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993);
Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
Appellant complains that the following remark was improper because it
argued for the jury to deprive her of her fundamental right to procreate: “Make
sure she stays in prison long enough where she can’t have any more children.
She has absolutely forfeited that privilege. I will leave the math to you, but make
sure no other kids can get hurt.”
10 Generally, in order to preserve jury argument error, a timely objection must
be made and an adverse ruling obtained. Tex. R. App. P. 33.1; Staten v. State,
919 S.W.2d 493, 499 (Tex. App.—Fort Worth 1996, pet. ref’d). Absent an
objection to jury argument at trial, nothing is presented for review. Threadgill v.
State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997). The
objection must be timely and specific, and the defendant must pursue the
objection to an adverse ruling. Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim.
App. 2002); Cockrell, 933 S.W.2d at 89; Carter v. State, 614 S.W.2d 821, 823
(Tex. Crim. App. [Panel Op.] 1981); see also Tex. R. App. P. 33.1(a)(1). An
objection is timely if it is made as soon as the ground of objection becomes
apparent. Thompson v. State, 691 S.W.2d 627, 634 (Tex. Crim. App. 1984),
cert. denied, 474 U.S. 865 (1985).
Before making the remark to which Appellant objected and of which she
now complains, the State argued:
What we’re asking you to do, she has forfeited the privilege to have any other kids to have to take care of. How can you trust her? If she gets a slap on the wrist and gets out, then we have to read about another kid that’s been hurt. It’s going to be a sad day. [Emphasis added.]
Appellant did not object to this remark. In substance, though, it is essentially the
same as that of which she later complained. By not objecting when the argument
was first raised, she has failed to preserve her complaint for review. Tex. R. App.
P. 33.1(a)(1); See Thompson, 691 S.W.2d at 635.
11 Further, a complaint on appeal must comport with the complaint made in
the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.
2009) (“A complaint will not be preserved if the legal basis of the complaint raised
on appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is
preserved depends on whether the complaint on appeal comports with the
complaint made at trial.”). To determine whether the complaint on appeal
comports with that made at trial, we consider the context in which the complaint
was made and the parties’ shared understanding at that time. Clark, 365 S.W.3d
at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena,
285 S.W.3d at 464.
To the extent to which Appellant now complains that the trial court erred by
allowing the State to appeal to the jury to deprive Appellant of her fundamental
right to procreate, that argument does not comport with the objection Appellant
raised at trial. There, she merely argued without elaboration that the State’s
remark was not a proper plea for law enforcement. In her brief, however, she
expounds on United States Supreme Court case law and eugenics. That
argument was not presented to the trial court and will not be heard for the first
time on appeal. See Clark, 365 S.W.3d at 339; Agbogwe v. State, 414 S.W.3d
820, 828–29 (Tex. App.––Houston [1st Dist.] 2013, no pet.); Moreno v. State,
195 S.W.3d 321, 328–29 (Tex. App.––Houston [14th Dist.] 2006, pet. ref’d).
12 Moreover, the State’s argument was a proper response to remarks
Appellant made during her own closing argument. A defendant in criminal
proceedings may not complain of improper argument by the prosecuting attorney
if the argument was invited or provoked by the argument of the defense. See,
e.g., White v. State, 618 S.W.2d 65, 67 (Tex. Crim. App. [Panel Op.] 1981).
Thus, a remark by the prosecuting attorney that is invited or provoked by the
argument of the opposing counsel is not erroneous even if the remark refers to a
matter outside the evidence or record. Johnson v. State, 147 S.W.2d 811, 814
(Tex. Crim. App. 1941).
Appellant’s counsel made the following point during closing argument:
. . . and this isn’t a child custody battle. Y’all––y’all can’t decide who gets custody if you wanted to. This is a case on whether she–– and—and she is not going to get custody as––if––if you give her probation or you give her a short sentence. She––if she ever gets custody of another child, it’s going to be because she’s proven herself to be trustworthy enough that people will trust her, because she showed she wasn’t trustworthy.
This argument implies that the jury should not consider the danger to R.S.
or another child if it decides to recommend probation or assess a short prison
sentence. The remark reasonably invited the State’s response that the jury
should consider the future dangerousness of Appellant not only to R.S., but to
any child she might have in the future. Thus, the State’s argument was not
improper.
Finally, any error is harmless. Improper jury argument is reviewed under a
nonconstitutional harm analysis under rule 44.2(b) of the Texas Rules of
13 Appellate Procedure, and must be disregarded unless it affected Appellant’s
substantial rights. Tex. R. App. P. 44.2(b); see Threadgill, 146 S.W.3d at 666;
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999). A substantial right is affected when the error had
a substantial and injurious effect or influence in determining the jury’s verdict.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.
United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an
error does not affect a substantial right if we have “fair assurance that the error
did not influence the jury, or had but a slight effect.” Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001).
In determining whether the appellant’s substantial rights were affected, we
consider (1) the severity of the misconduct (i.e., the prejudicial effect of the
prosecutor’s remarks); (2) curative measures; and (3) the certainty of the
punishment assessed absent the misconduct. See Martinez v. State, 17 S.W.3d
677, 692–93 (Tex. Crim. App. 2000); Mosley, 983 S.W.2d at 259.
Given Appellant’s argument that custody of R.S. was not an issue, the
prosecutor’s remark reasonably could be read as the State’s response that the
jury should consider Appellant’s future dangerousness not only to R.S., but also
to any child she might someday have. This consideration was already on the
minds of the jurors given the seriousness of the crime, the manner in which it
was committed, and the other arguments of counsel for both sides. Therefore,
the remark prejudiced Appellant very little, if at all. As to the second factor, the
14 trial court gave no curative instruction since it overruled Appellant’s objection.
But the third factor weighs heavily in favor of the State. Appellant was caught on
camera committing the crime, admitted after the fact that she did not want the
stress of having a child, and was sentenced to 25 out of a possible 99 years’
confinement. See Tex. Penal Code Ann. §§ 12.32(a), 22.04(e) (West Supp.
2013).
We conclude that, in the context of the entire case against Appellant, even
if the trial court erred by overruling Appellant’s objection to the State’s argument,
any error would not have had a substantial or injurious effect on the jury’s verdict
and would not have affected Appellant’s substantial rights. See King, 953
S.W.2d at 271. We overrule Appellant’s third issue.
Conclusion
Having overruled each of Appellant’s three issues, we affirm the trial
court’s judgment.
/s/ Anne Gardner ANNE GARDNER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: July 17, 2014