                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00373-CR


MICHAEL WAYNE MONTGOMERY                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                    TRIAL COURT NO. 2012-0052M-CR

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                         MEMORANDUM OPINION1

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      Appellant Michael Wayne Montgomery appeals from his conviction for

injury to a child. In two issues, he raises alleged jury-charge errors. We affirm.

      On March 21, 2012, A.M.’s mother, A.C., rushed six-week-old A.M. to the

hospital for seizures. Dr. Jamye Coffman examined A.M. and found multiple

injuries, including a fractured skull, a subdural hematoma, fractured ribs, and


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       See Tex. R. App. P. 47.4.
severely bruised fingers, one of which was missing a nail. The extent of the

injuries indicated that A.M. had been physically abused and that the injuries

could not have been caused by an accidental drop.

      An investigator with Child Protective Services, Michelle Hanson, spoke

with A.C. about A.M.’s injuries. A.C. told Hanson that A.M. had rolled off of two

mattresses stacked on top of one another and hit A.C.’s knee and then the floor.

Appellant, who was A.C.’s boyfriend, also told Hanson that A.M. had rolled off the

mattresses.

      Detective Sherry Stone with the Bowie Police Department was called to

the hospital. Stone spoke with Coffman, who detailed A.M.’s injuries. A.C. told

Stone that a dog had jumped on the bed A.M. was on and caused her injuries.

The next day, Stone spoke with A.C., and A.C. admitted she previously had lied

about A.M.’s injuries. A.C. then told Stone that A.M. had rolled off the bed while

A.C. was changing her diaper. A.C. admitted that Appellant was in the home at

the time but claimed that he knew nothing about how A.M. fell. Stone also spoke

with Appellant, who averred that A.M. had fallen off the bed.             Stone’s

investigation led Stone to rule A.C. out as the person who hurt A.M. and to obtain

an arrest warrant for Appellant. After Appellant was arrested on March 28, he

gave a statement admitting that he had forcefully thrown A.M. to the floor and

picked her up by her throat.

      Appellant was indicted for injury to a child by intentionally or knowingly

causing serious bodily injury. See Tex. Penal Code Ann. § 22.04(a)(1) (West


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Supp. 2013). A.C. was indicted for endangering a child and received five years’

community supervision after pleading guilty. At trial, A.C. testified that she had

received probation and that a condition of her probation was that she testify

truthfully if she was called as a witness at Appellant’s trial. Coffman testified to

A.M.’s injuries and said that they could not have been accidental.           Indeed,

Coffman’s opinion was that A.M.’s injuries were the result of intentional child

abuse. Appellant testified at trial that his confession after his arrest was a lie and

that he had accidentally dropped A.M., causing her to hit her head.

      At the conclusion of the evidence, Appellant requested the following

instruction regarding the corroboration requirement for a defendant’s extrajudicial

confession:

           An extrajudicial confession by the accused is insufficient to
      support a conviction unless corroborated.

             There must exist other evidence showing that a crime has, in
      fact, been committed and this other evidence need not be sufficient
      by itself to prove the offense. All that is required is that there be
      some evidence which renders the commission of the offense more
      probable than it would be without the evidence.

           Now if you find or have reasonable doubt thereof that the
      accused made an extrajudicial confession and you further find that
      such extrajudicial confession is not corroborated by the evidence,
      then you will not consider the extrajudicial confession for any
      purpose.

      The trial court denied the request. The jury found Appellant guilty of injury

to a child and assessed his punishment at twenty years’ confinement and a

$5,000 fine.



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       Appellant now argues that the trial court erred by refusing to include his

requested instruction on the corroboration requirement. See Tex. Code Crim.

Proc. Ann. art. 36.19 (West 2006). We are to review all alleged jury-charge error

and first determine whether error occurred; if error did not occur, our analysis

ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

       A trial court need not instruct the jury on corroboration of a defendant’s

extrajudicial confession when the corpus delicti of the offense is established by

other evidence. Baldree v. State, 784 S.W.2d 676, 686–87 (Tex. Crim. App.

1989). The corpus delicti rule requires some corroboration of a harm brought

about by the criminal conduct of some person; however, it does not “require any

independent evidence that the defendant was the criminal culprit.” Salazar v.

State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002); see also Gonzales v. State,

190 S.W.3d 125, 130–31 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), cert.

denied, 549 U.S. 1000 (2006). The rule is satisfied “if some evidence exists

outside of the extra-judicial confession which, considered alone or in connection

with the confession, shows that the crime actually occurred.” Salazar, 86 S.W.3d

at 645.   “The corroborating evidence need not prove the underlying offense

conclusively; there simply must be some evidence that renders the commission

of the offense more probable than it would be without the evidence.” Aguilera v.

State, 425 S.W.3d 448, 459 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

Evidence that the defendant was the actor is not required. Salazar, 86 S.W.3d at

644.


                                        4
      Here, the evidence showed that A.M.’s injuries were the result of an

intentional act and were not accidental.     Although Appellant testified that he

accidentally dropped A.M., the remainder of the evidence showed that the

injuries were caused by an intentional act. Thus, the record contained other

evidence, outside of Appellant’s confession, that injury to a child had occurred.

The trial court did not err by denying Appellant’s requested instructions. We

overrule issue one.

      In his second issue, Appellant argues that the trial court erred by failing to

instruct the jury that they could not consider Appellant’s confession if it was

involuntary. But the charge contained such an instruction; therefore, there was

no error. We overrule issue two.

      Having overruled Appellant’s issues, we affirm the trial court’s judgment.




                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 10, 2014




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