                                 NO. 07-11-00127-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                    JUNE 25, 2012


                   DARRELL EUGENE HUTCHERSON, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                 NO. 10-06-7093; HONORABLE PAT PHELAN, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                       OPINION

      Appellant, Darrell Eugene Hutcherson, appeals his conviction for the offense of

murder,1 and resulting sentence of confinement in the Institutional Division of the Texas

Department of Criminal Justice for a period of 45 years. We affirm.


                                      Background


      On May 13, 2009, Levelland police were called to 306 Avenue E about an

assault. Upon arriving at the location, officers discovered Assie Silva lying on his back


      1
          See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011).
with several significant injuries to his face. Of greatest concern was that Silva’s tongue

was swollen to such an extent that it was causing him to have difficulty breathing.

Paramedics removed Silva from the scene and took him to the emergency room at

Covenant Hospital in Levelland. By the time he arrived at the hospital, Silva had slipped

into a coma.


      Because it was determined that Silva needed to be seen by a neurosurgeon, he

was transported to Covenant Hospital in Lubbock. Silva was diagnosed with a diffuse

axonal injury, which was explained to be an injury to the blood vessels and cells of the

brain that caused Silva’s coma. Silva had also suffered mandible fractures, a broken

cheek, rib fractures, and other injuries. Silva remained on a ventilator and in the coma

for two months following the assault with no signs of improving mental functioning.

Eventually, members of Silva’s family made the decision to withdraw care from Silva.

Silva died within minutes of the removal of the ventilator. Dr. Brian Norkiewicz, one of

Silva’s treating doctors at Covenant in Lubbock, identified the cause of Silva’s death as

being brain injury resulting from the May 13 assault.


      Following Silva’s death, Dr. Fernandez2 performed an autopsy examination on

Silva. However, at trial, the State offered the testimony of Dr. Sridhar Natarajan, the

chief medical examiner for Lubbock County and the supervisor of Dr. Fernandez at the

time of the Silva autopsy, rather than offering the testimony of Dr. Fernandez.3 Prior to



      2
          The record does not identify Dr. Fernandez’s first name.
       
      3
         Based on statements made by counsel in a hearing held outside the presence
of the jury, it does not appear that Dr. Fernandez was unavailable to testify; rather, it
                                             2
Dr. Natarajan testifying, appellant objected that Natarajan testifying about the autopsy

performed by Fernandez would violate appellant’s Sixth Amendment right to confront

and cross-examine witnesses against him. After hearing the arguments of counsel, the

trial court overruled appellant’s objection.    Dr. Natarajan testified, over appellant’s

confrontation, hearsay, and relevance objections, that the cause of Silva’s death was

delayed medical complications due to blunt force head and facial trauma. Dr. Natarajan

also testified, again over appellant’s confrontation and relevance objections, that the

manner of Silva’s death was homicide.


       At the close of evidence, appellant requested the inclusion of an application

paragraph in the jury charge that essentially would have instructed the jury that it could

not find appellant guilty of causing the death of Silva unless it determined that there was

no intervening cause of Silva’s death. The trial court heard the argument of counsel

regarding this requested instruction, and overruled appellant’s request. Appellant also

requested an alternative instruction presenting intervening cause as a defense. This

requested instruction was also rejected by the trial court. The jury found appellant guilty

of the offense of murder.     After hearing punishment evidence, the jury sentenced

appellant to 45 years imprisonment.       It is from this conviction and sentence that

appellant now appeals.


       Appellant presents three issues by his appeal.       By his first issue, appellant

contends that the trial court violated his Sixth Amendment right to confront and cross-

examine witnesses against him by allowing Dr. Natarajan to testify as to the cause of

appears that the State did not call Dr. Fernandez because it would have been
inconvenient to have done so.
                                            3
Silva’s death. By his second issue, appellant contends that the trial court erred by

refusing to include an application paragraph about intervening or superseding cause in

the jury charge. By his third issue, appellant contends that the evidence was insufficient

to prove that appellant’s actions caused the death of Silva.


                                   Confrontation Right


       By his first issue, appellant contends that the admission of Dr. Natarajan’s

testimony regarding Silva’s cause of death violated appellant’s right to confront and

cross-examine witnesses against him in violation of the Sixth Amendment to the United

States Constitution.   The State responds contending that Dr. Natarajan’s testimony

regarding Silva’s cause of death did not violate appellant’s confrontation rights.


       The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.

amend. VI.    The confrontation right also applies to out-of-court statements that are

testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004). The Confrontation Clause forbids the admission of testimonial

hearsay unless the declarant is unavailable to testify and the defendant had a prior

opportunity to cross-examine the declarant. Id. at 68. Whether a particular out-of-court

statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680

(Tex.Crim.App. 2008). Generally speaking, a hearsay statement is testimonial when the

surrounding circumstances objectively indicate that the primary purpose of the interview

or interrogation is to establish or prove past events potentially relevant to later criminal

prosecution. Id. Error in admitting evidence in violation of a defendant’s confrontation

                                             4
right is constitutional error, which necessitates reversal unless the reviewing court

determines beyond a reasonable doubt that the error did not contribute to the conviction

or punishment. See TEX. R. APP. P. 44.2(a); Wood v. State, 299 S.W.3d 200, 214

(Tex.App.—Austin 2009, pet. ref’d).


       In his argument of this issue, appellant presents a thorough analysis of the

development of the case law relating to claims of confrontation rights violations and

autopsy reports. However, appellant’s contention that the testimony of Dr. Natarajan

violated his confrontation rights is that “it became apparent from several of Dr.

Natarajan’s responses that he had based his conclusions largely upon discussions on

the cause of death with his absent colleague, Dr. Fernandez.” While the record reveals

that Dr. Natarajan’s conclusions were based largely on his discussions with Dr.

Fernandez, it also reflects that Dr. Natarajan did not testify as to what Dr. Fernandez

concluded to be the cause of Silva’s death. Likewise, the State did not offer the autopsy

report prepared by Dr. Fernandez into evidence.4 As such, Dr. Natarajan’s testimony

did not violate appellant’s confrontation rights because it was not testimonial hearsay.

See Crawford, 541 U.S. at 68.         Rather, Dr. Natarajan testified about his opinion

regarding the cause of Silva’s death, and was subject to cross-examination regarding

the bases upon which that opinion rested as well as the reliability of the methods utilized

to reach his opinion.


       4
         For purposes of this opinion, we will assume, without deciding, that Dr.
Fernandez’s identification of Silva’s cause of death, and the autopsy report he prepared
related to Silva were testimonial. See Martinez v. State, 311 S.W.3d 104, 111
(Tex.App.—Amarillo 2010, pet. ref’d) (whether an autopsy report is testimonial must be
determined on a case-by-case basis).

                                            5
       Furthermore, as we explained in Martinez, the Confrontation Clause is not

violated merely because an expert bases an opinion on inadmissible testimonial

hearsay. Martinez, 311 S.W.3d at 112 (citing Wood, 299 S.W.3d at 213). This is so

because the testifying expert’s opinion is not hearsay and the testifying expert is

available for cross-examination regarding his opinion. Id. Because Dr. Natarajan did

not disclose the testimonial hearsay upon which his expert opinion was based, the jury

only heard the direct, in-court testimony of Natarajan, and appellant’s confrontation

rights were not violated. See id. Unlike in Martinez, Dr. Natarajan did not disclose to

the jury the testimonial statements contained in Dr. Fernandez’s autopsy report or

obtained by Natarajan from his discussions with Fernandez. See id.


       Because Dr. Natarajan’s testimony regarding Silva’s cause of death did not

violate appellant’s confrontation rights, we overrule appellant’s first issue.


                                        Charge Error


       By his second issue, appellant contends that the trial court erred by refusing to

instruct the jury in the court’s charge regarding intervening or superseding cause of

Silva’s death.5 The State responds that the defensive theory advanced by appellant


       5
         Initially, appellant requested that the following be included in the application
paragraph of the court’s charge on murder: “You must first decide if the Defendant
caused the death of Assie Silva without the contribution of an intervening cause. If you
agree that an intervening cause exists, then you must find the Defendant not guilty of
murder.” Similar application paragraph language was requested as to the various
lesser-included offenses of murder included in the charge.

      Alternatively, appellant requested an instruction paragraph that would provide,
“You are instructed that it is a defense to caus[ing] a death if you find an intervening
cause, as the term is used herein. And if you so find from the evidence before you that
                                              6
has not been recognized as a defense in Texas, such a theory merely seeks to negate

an element of the charged offense, and the inclusion of the requested instructions would

constitute an improper comment on the weight of the evidence by the trial court.


       At trial, appellant elicited testimony from Dr. Norkiewicz that, while it was not

likely that Silva would recover from the injuries inflicted by the assault, he would not

have died when he did if the ventilator had not been removed. Appellant further raised

questions regarding the propriety of Silva’s family making the decision to remove the

ventilator. On appeal, appellant points to the lack of direct evidence establishing that it

would have been medically impossible for Silva to recover from his injuries, and posits

that the removal of the ventilator was an intervening cause of Silva’s death.


       When presented with a jury charge complaint, we review the charge under

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh’g). Under

Almanza, we must first determine whether error exists in the charge and, if we find

error, whether such error caused sufficient harm to compel reversal. See Ngo v State,

175 S.W.3d 738, 743–44 (Tex.Crim.App. 2005).


       The trial court must provide the jury with “a written charge distinctly setting forth

the law applicable to the case; not expressing any opinion as to the weight of the

evidence, not summing up the testimony, discussing the facts or using any argument in

his charge calculated to arouse the sympathy or excite the passions of the jury.” TEX.



an intervening cause exists as to cause of death, then you will find the Defendant not
guilty.” Like the requested application paragraph, appellant requested that this
instruction be applied to each of the lesser-included offenses of murder included in the
charge.
                                             7
CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Walters v. State, 247 S.W.3d 204, 208

(Tex.Crim.App. 2007).     The trial court is required to instruct the jury on statutory

defenses, affirmative defenses, and justifications whenever they are raised by the

evidence. TEX. PENAL CODE ANN. §§ 2.03(d), 2.04(d) (West 2011); Walters, 247 S.W.3d

at 208–09. A defendant is entitled to an instruction on every defensive issue raised by

the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks the testimony is not worthy of belief.

Walters, 247 S.W.3d at 209.


       Generally speaking, neither the defendant nor the State is entitled to a special

jury instruction relating to a statutory offense or defense if that instruction (1) is not

grounded in the Texas Penal Code, (2) is covered by the general charge to the jury, and

(3) focuses the jury’s attention on a specific type of evidence that may support an

element of an offense or a defense. Id. at 212 (relying on rationale of Giesberg v. State,

984 S.W.2d 245, 250 (Tex.Crim.App. 1998)).           In such a case, the non-statutory

instruction would constitute a prohibited comment on the weight of the evidence. Id.

Special, non-statutory instructions, even when they relate to statutory offenses or

defenses, generally have no place in the jury charge. Id. at 211. We will evaluate

appellant’s proposed instruction in light of the three considerations outlined in Walters.


(1) Not grounded in the Texas Penal Code


       The Texas Penal Code does not specifically provide a defense, affirmative

defense, or justification for intervening cause. See TEX. PENAL CODE ANN. §§ 2.03(a)

(providing that “[a] defense to prosecution for an offense in this code is so labeled by

                                             8
the phrase: ‘It is a defense to prosecution . . . .’”), 2.04(a) (providing that “[a]n affirmative

defense in this code is so labeled by the phrase: ‘It is an affirmative defense to

prosecution . . . .’”), 8.01–.07 (West 2011) (defining general defenses and affirmative

defenses to criminal responsibility), 9.01–.63 (West 2011) (covering justifications

excluding responsibility). Also absent is an offense-specific defense in the nature of the

proposed instructions. See id. §§ 19.02-.06 (West 2011 & West Supp. 2011). As a

general rule, if the instruction is not derived from the Texas Penal Code, it is not “the

law applicable to the case” as contemplated by article 36.14. See Walters, 247 S.W.3d

at 214.


(2) Covered elsewhere in the jury charge


       Both of the instructions appellant requested in the charge went to whether there

was an intervening cause of Silva’s death other than the assault committed by

appellant.   The jury charge tracked the relevant statutory language identifying the

elements of the charged offenses of murder, manslaughter, and criminally negligent

homicide. As applied, the charge informed the jury that, to find appellant guilty of any of

these offenses, it had to find beyond a reasonable doubt that appellant caused Silva’s

death by hitting him in the head. Furthermore, the charge defined “intervening cause”

as “an event that comes between the initial event in a sequence and the end result,

thereby altering the natural course of events that might have connected a wrongful act

to an injury.”


       A requested instruction that does no more than challenge an element of the

offense the State was called on to prove was the type of instruction addressed in

                                               9
Giesberg, 984 S.W.2d at 250.         In Giesberg, the Texas Court of Criminal Appeals

explained why the trial court did not err in refusing to include an “alibi” instruction:


       A defensive issue which goes no further than to merely negate an element
       of the offense alleged by the State in its indictment does not place a
       burden of proof upon a defendant to establish it. The burden of proof is
       upon the State to prove those allegations. An alibi only traverses those
       allegations and casts doubt upon whether the State has met its burden.
       As a result, an alibi is sufficiently embraced in a general charge to the jury
       that the defendant is presumed innocent until he or she is proven guilty
       beyond a reasonable doubt. There is ample room within that instruction
       for a defendant to effectively argue his defense of alibi to a jury.

Id. (citations omitted). Accord Barnette v. State, 709 S.W.2d 650, 652 (Tex.Crim.App.

1986) (it is not error to deny requested instruction on “alternative cause” which “is

merely an affirmative submission of a defensive issue which merely denies the

existence of an essential element of the State’s case.”).


       In the present case, to prove the offenses of murder, manslaughter, and

criminally negligent homicide, the State had to prove beyond a reasonable doubt that

appellant caused Silva’s death by hitting him in the head. Appellant’s defensive theory

that the removal of Silva’s ventilator was an intervening cause of Silva’s death went

directly to an element on which the State bore the burden of proof beyond a reasonable

doubt. Further, nothing in the jury charge prevented the jury from considering whether

the removal of Silva’s ventilator was an intervening cause of Silva’s death that would

negate the State’s proof that appellant’s assault on Silva was the cause of Silva’s death.

See Walters, 247 S.W.3d at 213. As such, we conclude that the substance of the

instructions requested by appellant was adequately addressed in the jury charge.


(3) Focusing jury’s attention on specific type of evidence

                                              10
       Because the defensive issue concerning the cause of Silva’s death was

adequately accounted for within the general charge to the jury, a special instruction on

intervening cause would have needlessly drawn the jury’s attention to the evidence of

the propriety of Silva’s family’s decision to remove the ventilator, rather than on the

causal link between appellant’s assault on Silva and his subsequent death. Therefore,

the special instruction on intervening cause would have constituted an unwarranted

comment by the trial court on the weight of the evidence. See id. at 210; Giesberg, 984

S.W.2d at 250.


       As each of the three relevant factors favor the trial court’s refusal of appellant’s

requested instructions, we conclude that the trial court did not err by refusing to include

either of the proposed instructions in its charge to the jury. Accordingly, we overrule

appellant’s second issue.


                               Sufficiency of the Evidence


       By his third issue, appellant contends that the evidence was insufficient to

support the jury’s verdict that appellant was guilty of causing the death of Silva.

Appellant’s contention is that the arguably improper removal of Silva’s ventilator by the

family constitutes improper treatment which breaks the causal chain between

appellant’s assault of Silva and Silva’s death.


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,
                                            11
323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

(Cochran, J., concurring).    When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding.   See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       In a murder prosecution, the State must prove beyond a reasonable doubt that

the injuries inflicted by the defendant caused the death of the decedent. Reeves v.

State, 101 S.W.2d 245, 246 (Tex.Crim.App. 1937).           If the injuries caused by the

defendant contributed to the death of the deceased, he is responsible even though

other contributing causes existed.       See Wright v. State, 388 S.W.2d 703, 706

(Tex.Crim.App. 1965). This is true even if complications arise during treatment of the

victim unless the evidence shows that those complications can be attributed to gross

neglect or improper treatment.         See Jones v. State, 582 S.W.2d 129, 134

(Tex.Crim.App. 1979).
                                            12
        Looking to appellant’s specific argument in support of his claim that the evidence

is insufficient to establish that he caused Silva’s death, he simply asserts that Silva’s

family’s decision to have the ventilator removed was done “without proper legal

authorization.”   A review of the record establishes that there was enough evidence

admitted to have allowed the jury to make a reasonable inference that the family’s

decision to remove the ventilator was done without proper legal authorization.

However, the record also contains testimony from Dr. Norkiewicz identifying the cause

of Silva’s death as brain injury resulting from the assault, and Dr. Natarajan concluding

that Silva died from “delayed medical complications due to blunt head and facial

trauma” and that his death was a homicide. When, as here, there is a conflict in the

evidence, a reviewing court must defer to the jury’s determination of the credibility and

weight to be afforded to the evidence. See Brooks, 323 S.W.3d at 899. The evidence

from each of the two doctors that appellant’s assault of Silva was the cause of Silva’s

death is sufficient evidence to support the jury’s determination that appellant was guilty

of murder beyond a reasonable doubt.


        Because sufficient evidence was admitted to support the jury’s conviction of

appellant for the murder of Silva, we overrule appellant’s third issue.


                                        Conclusion


        Having overruled each of appellant’s three issues, we affirm the judgment of the

trial court.


                                                        Mackey K. Hancock
                                                             Justice
Publish.
                                            13
