JAMES NICHOLAS DOTSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JAMES NICHOLAS DOTSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–09–01034–CR

Decided: February 28, 2011

Before Justices Bridges, O'Neill and Richter

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant James Nicholas Dotson appeals his conviction for injury to a child causing serious bodily injury and accompanying sentence of 40 years and a $10,000 fine.   In three issues, appellant argues the trial court erred in:  (1) allowing the State to argue, contrary to the charge, that appellant did not have to intend to cause the resultant injury;  (2) overruling appellant's objections to the State's argument that appellant could be found guilty of injury to a child if it was his conscious objective or desire to engage in the conduct or cause the result;  and (3) sustaining the State's objections to the defense argument that appellant could not be found guilty of injury to a child unless he intentionally or knowingly caused the result, not engaged in the conduct.   We affirm.

Background

A.L. and her mother, Miranda, moved into appellant's home in the summer of 2007.   Appellant married Miranda in September of that year.   A.L was five years old and weighed 51 pounds.

To discipline A.L., appellant would hit her with his hand, a belt, and a shoe.   He would also kick her, tie her hands and put her in a closet, make her stand in a corner for hours at a time, make her stand or run in place while holding weights over her head, and kick and spank her when she got tired from the weights and fell to the ground.   While she was living with appellant, A.L. was worried he would kill her.

About a week following appellant and Miranda's wedding, A.L.'s teacher sent home a behavior report concerning an incident at school on a Wednesday.   A.L. loved school, so to punish her, appellant and Miranda kept A.L. home on Thursday and Friday.

During those days, A.L. was punished by being made to stand up all day and by being struck.   Miranda hit A.L. with a belt and appellant kicked her and hit her with his hands and a shoe.   On Friday, A.L. had been made to stand in the living room all day, and she was trying to carry out her punishment of running in place while holding a weight.   The weight was “very heavy” for her, it made her tired, and she fell to the ground.   Appellant became angry with A.L. for falling and kicked her one last time in the leg.   When appellant kicked A.L.'s right leg, he broke her femur.

A.L. testified he did not apologize or help her, but continued “being mean.”   He and Miranda initially lied to 911 and the hospital staff, saying that A.L. had broken her leg by falling off the bed.   Only after being confronted with the medical staff's suspicions of abuse did appellant confess that he had broken A.L.'s femur by kicking her.

A.L.'s femur was completely broken in two.   At trial, multiple medical professionals testified that a broken femur is a “very” uncommon injury since the femur is one of the strongest bones in the body and the most difficult to break.   A.L.'s femur was not broken in the middle, but was broken high up by her hip, where a break would require more force.   Dr. Matthew Cox, medical director of the child abuse program at Children's Medical Center, testified that A.L. had sustained a very directed blow to the top of her thigh, a very acute sharp injury.   According to Dr. Cox, a violent kick could contain enough force to break a femur if it was executed with “severe” force.

In addition to the broken femur, A.L. arrived at the hospital with multiple bruises and abrasions to her arms, legs, shoulder and torso.   She had recent belt marks and a recent bruise on her back that showed the tread marks of a shoe, a bruise that appellant admitted he could have caused.   The bruises were of different ages, evidencing multiple episodes of abuse over a two-week period.   A.L. also showed signs of a pancreatic injury, which could have been caused by a blunt force to her abdomen or back.

Multiple medical witnesses who saw A.L. after her leg was broken testified that A.L. believed she deserved to be punished because she was “bad.”   They also testified to her high tolerance for pain and her matter-of-fact attitude toward her injury, indicating she was accustomed to being abused.   Allison Nyugen, a physician's assistant in the Emergency Room of Medical City Hospital with seven years of experience, testified A.L.'s case was the worst case of child abuse she had witnessed in a hospital setting.

Analysis

In three issues, appellant argues the trial court erred in:  (1) allowing the State to argue, contrary to the charge, that appellant did not have to intend to cause the resultant injury, (2) overruling appellant's objections to the State's argument that appellant could be found guilty of injury to a child if it was his conscious objective or desire to engage in the conduct or cause the result, and (3) sustaining the State's objections to the defense argument that appellant could not be found guilty of injury to a child unless he intentionally or knowingly caused the result, not engaged in the conduct.   We consider these issues together.

A person commits the offense of injury to a child if he intentionally, knowingly, or recklessly causes serious bodily injury to the child.  Tex. Penal Code Ann. § 22.04(a)(1) (West 2003).   The offense is a first-degree felony if committed intentionally or knowingly, and it is a second-degree felony if committed recklessly.   Id. at § 22.04(e).   Appellant was convicted of the first-degree offense.

Injury to a child is a result-oriented offense.  Hoffman v. State, 267 S.W.3d 902, 905–06 (Tex.Crim.App.2008).   The mental state criminalized is the state of mind that contemplates the prohibited result.  Haggins v. State, 785 S.W.2d 827, 828 (Tex.Crim.App.1990);  Beggs v. State, 597 S.W.2d 375, 377 (Tex.Crim.App.1980).   A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result.  Tex. Penal Code Ann. § 6.03(a) (West 2003).   A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.   Id. at § 6.03(b).

An argument that contains a statement of the law that is contrary to the court's charge is erroneous and improper.  Grant v. State, 738 S.W.2d 309, 311 (Tex.App.-Houston [1 st Dist.] 1987, pet. ref'd) (citing Burke v. State, 652 S.W.2d 788, 790 (Tex.Crim.App.1983)).   If the trial court incorrectly overrules an objection to the State's improper jury argument, it puts its stamp of approval on the argument, thus increasing the possibility of harm.  Coble v. State, 871 S.W.2d 192, 206 (Tex.Crim.App.1993).   Still, the erroneous overruling of a defendant's objection to a prosecutorial misstatement of the law is not constitutional in nature.  Herrera v. State, 11 S.W.3d 412, 415 (Tex.App.-Houston [1 st Dist.] 2000, pet. ref'd).   The error is disregarded unless the appellant's substantial rights were affected.  Id.;  Tex.R.App. P. 44.2(b).  “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict.”  Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)).   We consider three factors in evaluating whether a particular argument is harmless:  (1) the severity of the misconduct (prejudicial effect);  (2) curative measures, and (3) the certainty of the conviction absent the misconduct.  Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.Crim.App.2000) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998)).   In conducting our analysis, we look to all the evidence and the court's charge, as well as the prosecutor's misstatement.  Herrera, 11 S.W.3d at 415.

Appellant argues, and the State agrees, that the prosecutor provided an incorrect statement of the law in her closing argument when she argued that a person acts intentionally when it is his conscious objective or desire to engage in the conduct, and the trial court erred in overruling appellant's objections to her argument.   In addition, the prosecutor's slide during closing argument incorrectly read, “a person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result.” (emphasis added).   Defense counsel objected to these misstatements, and the trial court improperly overruled the objections.   Further, the trial court improperly sustained the State's objections to appellant's proper statements of the law in his closing argument.

We must determine whether the State's incorrect statement of the law and the trial court's subsequent actions resulted in harm to appellant.   See Tex.R.App. P. 44.2(b).  We first consider the prejudicial effect of the misstatements.   See Martinez, 17 S.W.3d at 692–93.   We turn to the slide, shown by the State, during its closing argument.   Although it incorrectly defined “intentionally,” the prosecutor's slide correctly provided the definition for “knowingly” as follows:  “A person acts knowingly when he is aware that his conduct is reasonably certain to cause a result.”

Further, from the outset of his closing argument, appellant's counsel emphasized the correct statement of the law:

We're here because our position is, this doesn't meet the definition of an intentional or knowing act under our law.   Really what the lawyers told you is not the law.   Whether they're correct or not—the only one who can tell you what the law is the trial judge, Judge Brewer.   My objection, in case you were wondering, what the prosecutor said was an incorrect statement of the law.

She's incorrect.   I don't know if it was purposeful or it was inadvertent, but she threw that one line in there about it being intentional if you intend to engage in a conduct.

Judge Brewer makes it very clear when you read that instruction, that what has to be intended was to cause a result.   And what you have to find beyond a reasonable doubt in order to find this man guilty of the first-degree felony offense of intentionally or knowingly causing serious bodily injury, is that he knew that what he did was going to cause the result.   Not that he was overreacting tremendously․  In his mind he's saying, I need to do this in order to break her femur.

I intend to cause the result that's charge[d].  I intend to cause the serious bodily injury that we're talking about.

(emphasis added).

In his closing argument, appellant's counsel also quoted from the correct definition in the jury charge, and then argued:

[T]here's nothing in [appellant's] background that you heard in the evidence or even reasonably can figure out from the evidence that makes you think this is a guy who has the mentality to say, you know, I wish to cause that injury.

Do you think as the definition has concluded, that it was his conscious desire to cause the result?   That's the judge's instruction.   Are you convinced beyond a reasonable doubt, that that was his conscious desire to cause that result?   Are you convinced by the evidence that he was aware that it was reasonably certain that his conduct would cause that result, given the nature of his frustration and given the nature of what he was doing?

He didn't intend this result.

(emphasis added).

Although the court sustained the State's objections to appellant's proper argument, we note the court did not instruct the jury to disregard appellant's closing argument and appellant's counsel continued to argue the correct statement of the law.   Since there was no instruction to disregard and the jury continued to hear appellant's argument, we conclude the trial court's decision to sustain the State's objections was harmless error.   See Drake v. State, 860 S.W.2d 182, 186 (Tex.App.-Houston [14 th Dist.] 1993, pet. ref'd);  Wiltz v. State, 827 S.W.2d 372, 374 (Tex.App.-Houston [1 st Dist.] 1992), rev'd on other grounds, 863 S.W.2d 463 (Tex.Crim.App.1993).

Further, the State ended its closing argument by properly emphasizing appellant's intent to hurt A.L.:

It's not enough for you to make her hurt with a shoe that leaves an imprint on her back.   It's not enough.   You want her to hurt more.   You want her to hurt more.

And you see the tiny body down on the ground.   And you know there's not an inch on her body that won't be seriously hurt if you strike it.   But it's not enough.

So you take your foot with all the strength a grown ma[n] has and you hit her, hard enough to break that bone.   You know if you kick her that hard she will either be seriously hurt or die.   If you strike her in the throat, if you break her neck, if you strike her in the eye, if you hit in the kidneys, she might die.   You do it because it's not enough.   You need that much pain to make you feel better.

(emphasis added).

Notably, the State argues, and Appellant agrees, the court correctly charged the jury.   Absent evidence to the contrary, we presume the jury followed the instructions set forth in the court's charge.  Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App.2005);  Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998).   The charge on guilt-innocence defined the culpable mental states of intentionally and knowingly as follows:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The application paragraph also correctly applied the definition to the facts as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 28 th day of September 2007, in Collin County, Texas, the defendant, JAMES NICHOLAS DOTSON, did then and there intentionally or knowingly cause serious bodily injury to [A.L.], a child younger than fifteen (15) years of age, by kicking her, or by causing her to strike her leg then you find the defendant guilty of intentionally or knowingly causing serious bodily injury to a child as charged in the indictment.

Based on the foregoing, we conclude the prejudicial effect of the prosecutor's misstatements was curbed by a correct statement of the law in:  (1) the court's charge, (2) appellant's counsel's closing argument and (3) the conclusion of the State's closing argument.

We next consider any curative measures.   See Martinez, 17 S.W.3d at 692–93.   As already noted, the trial court failed to cure the prosecutor's improper argument.   Still, other curative measures did take place.   First, the jurors were told by defense counsel during voir dire, by the trial court prior to the parties' closing argument, and by the charge itself that they were to look solely to the jury charge for the law that governed the case.   The charge provided a correct statement of the law and instructed the jurors to disregard any statements of the law that conflicted with the law given in the charge.   Absent a showing otherwise, we must presume the jury followed the court's charge.  Thrift, 176 S.W.3d at 224;  Colburn, 966 S.W.2d at 520.

In addition, through his examination of witnesses, appellant's counsel made clear the correct state of the law.   For example, in questioning Officer Meehan, he stated “the law requires that the injury, that the result itself, be what you intend.”   Further he instructed Ms. Nyugen about what appellant's intent must be directed at:  “The result I'm talking about, not the act.”   These statements, along with his persistent clarification of the law in his closing argument, acted as curative measures.   Based on the foregoing, we conclude curative measures were provided by the following:  (1) the correct statement of law in the court's charge, (2) instructions to the jury during voir dire, prior to the charge, and within the charge itself, (3) defense counsel's clarification of the law in questioning witnesses, and (4) defense counsel's persistent correction of the statement of law in his closing argument.

Finally, we consider the certainty of the conviction absent the misconduct.   See Martinez, 17 S.W.3d at 692–93.   For the first-degree offense of injury to a child, a defendant can be found guilty if he has either the culpable mental states of intentionally or knowingly.1  Tex. Penal Code Ann. § 22.04(e) (West 2003).

The jury heard evidence that appellant kicked A.L. with such force that he broke her femur, the strongest and hardest-to-break bone in the human body.   The evidence showed -+A.L. underwent a pattern of abuse, where appellant routinely struck A.L., even hitting her with a shoe so hard that the blow left a bruise with tread marks.   A.L. testified she thought he would eventually kill her.   The testimony of medical personnel indicated A.L. seemed accustomed to abuse and thought she was being punished because she was “bad.”   After two days of keeping A.L. home from school and having her run with weights over her head, A.L. collapsed from exhaustion.   During those days, appellant kicked and hit A.L. with his hand and shoe.   Then, he kicked her with such force as to break her femur.   The jury was capable of envisioning appellant, a full-grown man, kicking a 51–pound, five year old girl on the ground.   They also heard Ms. Nyugen describe this as the worst case of child abuse she had witnessed in a hospital setting.   Further, appellant's initial lies to medical staff about how A.L. broke her leg could have reasonably been considered evidence of appellant's consciousness that his conduct was criminal.   In addition, the fact that he did not apologize to A.L. and continued “being mean” to her after he kicked her provides further evidence he was not sorry he had hurt her, but rather intended to cause the result.

Based on the foregoing, we believe it was reasonably certain the jury would convict appellant of intentionally or knowingly causing serious bodily injury to A.L., even absent the prosecutor's improper argument.   Balancing the three Martinez factors, therefore, we conclude the prosecutor's misstatement of the law, the trial court's failure to overrule appellant's objections to those misstatements, and the trial court's decision to sustain objections to appellant's argument was harmless error.   See Martinez, 17 S.W.3d at 692–93;  Herrera, 11 S.W.3d at 415;  Drake v. State, 860 S.W.2d at 186.   We, therefore, overrule appellant's three issues.

Having overruled all of appellant's issues, we affirm the judgment of the trial court.

FOOTNOTES

FN1. As noted above, the slide shown during the prosecutor's closing argument correctly defined “knowingly” as follows:  “A person acts knowingly when he is aware that his conduct is reasonably certain to cause a result.”.  FN1. As noted above, the slide shown during the prosecutor's closing argument correctly defined “knowingly” as follows:  “A person acts knowingly when he is aware that his conduct is reasonably certain to cause a result.”

DAVID L. BRIDGES JUSTICE

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