      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-09-00541-CR




                                 Christopher Lee Murray, Appellant

                                                    v.

                                     The State of Texas, Appellee



    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
       NO. 13227, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  A jury found appellant Christopher Lee Murray guilty of the capital murder of a child

under six years of age. See Tex. Penal Code Ann. § 19.03(a)(8) (West Supp. 2010). The State did

not seek the death penalty, and the trial court assessed the mandatory punishment of life without

parole. See id. § 12.31(a)(2); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2010).

                  Appellant contends that the evidence is insufficient to support the guilty verdict. He

also contends that the trial court erred by permitting the State to impeach its own witness with

inadmissible evidence and then by refusing to give a limiting instruction regarding that evidence.

Finally, appellant contends that the trial court erred by admitting improper opinion testimony and

by overruling an objection to the State’s jury argument. We overrule these contentions and affirm

the conviction.
                                         BACKGROUND

               In June 2007, appellant was living in a four bedroom residence near Paige with

Victoria Helmer, his fiancee, Nicole Murray, their nine-month-old daughter, and Robbie Faske,

Helmer’s two-and-a-half-year-old son from an earlier marriage. Also sharing the residence were

Rosie Cervantes, appellant’s grandmother, Mary Cabrera, appellant’s mother, and Jonathan (whose

last name is not in the record), Cabrera’s four-year-old son and appellant’s half brother. Helmer was

employed in Bastrop. Appellant was unemployed and shared child-care duties with his mother

and grandmother.

               On June 11, Helmer left for work at about 7:30 a.m. Approximately two hours later,

Cervantes, Cabrera, and Jonathan left the house to run errands in Austin. This was, according to

testimony, the first time appellant had been left alone with both Nicole and Robbie. All witnesses

agreed that Robbie was in normal good health that morning. He had a bruise on his cheek caused

by a fall against a tree three days earlier and a few other minor injuries that were the result of

Jonathan’s rough play.1

               Cervantes and Cabrera returned home at about 1:45 p.m. Both testified that as they

were unloading groceries in the kitchen, appellant entered the room carrying Robbie in his arms.

The child was limp, and Cabrera testified that he was making a “gurgling” sound. Appellant told

the women that Robbie had fallen and they should call 911. As Cervantes was making the call,

appellant carried Robbie from the house, placed him in his car, and drove off. Appellant testified


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    Jonathan has Down Syndrome. All of the family members testified that Jonathan liked to play
with Robbie, but they tried to keep the boys apart because Jonathan was overly aggressive. He
would push and hit Robbie, throw toys at him, and occasionally bite him.

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that he drove to the volunteer fire station in Paige to seek help. Finding no one there, appellant

decided to return home to await the ambulance. On his way, he lost control of the car (the exact

reason is not clear) and drove into a ditch on highway 290.

                Emergency medical personnel and sheriff’s deputies were initially dispatched to the

residence in response to Cervantes’s call, but they were redirected to the scene of the accident a short

distance away. They found appellant and Robbie at the side of the road, where a passing motorist

had stopped and was performing CPR on the boy. A paramedic testified that Robbie was not

breathing and had no pulse. The paramedic observed evidence of trauma to the head and body, and

he noticed that the child’s blood was beginning to pool, indicating that he had been dead for some

time. Several witnesses who were present at the scene testified that appellant was agitated, calling

out “my boy, my boy.” Meanwhile, Helmer left work in response to a call and arrived at the accident

scene. When told that Robbie was dead, she said “he killed my baby” and “arrest the son of a bitch.”

                Appellant testified that after his mother and grandmother left that morning, he was

watching a movie while Robbie played. After hearing a “thump” in the computer room, appellant

entered the room and found Robbie on the floor beside the chair, which was overturned. The child

had a mark on his forehead but otherwise seemed unharmed by the fall. Appellant and Robbie later

had a snack. Shortly after 1:00 p.m.,wanting to smoke a cigarette, appellant picked up Robbie and

began to carry him out the front door. Appellant said that he lost his balance and, still holding

Robbie, fell from the top of the steps leading from the door to the ground, which the evidence shows

were thirty-two inches high. Appellant landed on the ground, on top of Robbie. Appellant testified

that Robbie could not stand after this and was obviously hurt. Appellant carried the child to his



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bedroom and placed him on the bed. Robbie appeared to be “in shock” and his eyes were dilated.

Appellant testified that he did not call 911 or take Robbie to the emergency room in his car because

he was “hoping he would get better.” Twenty minutes later, when Cervantes and Cabrera returned

home, Robbie’s eyes “were rolling in the back of his head” and appellant “could hear a gurgling in

his voice, in his lungs.”

               Appellant acknowledged that in his initial statements to investigators and his family,

he failed to disclose that he had fallen on Robbie. Instead, he told them only about the fall from the

chair in the computer room. Appellant testified, “I was in denial. I didn’t want to believe that I

caused my son’s death. I was ashamed. I didn’t get him help.”

               Dr. David Dolinak, the medical examiner, testified that he counted forty-six bruises

on Robbie’s head, twenty-four on his chest, twenty on his abdomen, thirty on his arms and legs,

thirteen on his back and buttocks, and two on his penis. Most of these bruises were fresh, meaning

that they were no more than thirty-six hours old. The child also had five broken ribs, and a vertebra

in his neck was fractured.

               The injuries that resulted in Robbie’s death were to his head and abdomen. Dolinak

found a five-inch Y-shaped fracture on the back of the child’s skull. The impact to the head had

caused considerable bleeding both on and under the surface of the brain. Dolinak testified that the

brain injury had occurred on the day of Robbie’s death, and he said that the child would have

immediately manifested symptoms. Dolinak further testified that Robbie’s bowel was torn and that

a cup-and-a-half of blood and stomach contents had leaked into his abdominal cavity. The boy’s




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pancreas and small intestine were bruised, and his liver had three lacerations. Dolinak testified that

these injuries would have required numerous forceful impacts.

                Dolinak testified that some, but not all, of the rib fractures could have been the result

of CPR. Dolinak also agreed that a heavy man falling on the child from the top of the steps could

have caused some of Robbie’s injuries, but he “[did not] see how” that scenario could cause all the

injuries he observed. In Dolinak’s opinion, the cause of death was homicide due to multiple blunt

force trauma.

                Dr. James Lukefahr of the University of Texas Health Science Center in San Antonio,

an expert in child abuse, examined Dolinak’s autopsy report and photographs, and he agreed that the

cause of death was multiple intentional blunt force trauma. Lukefahr testified that some of the

bruises on Robbie’s body were in a pattern that suggested that they “might be from knuckles from

a closed fist.” Some of the other bruises had straight, sharp edges, which Lukefahr testified was

indicative of “object injuries.” He stated that the brain injury would have resulted in an almost

immediate loss of consciousness. According to Lukefahr, the abdominal injury was “very serious,”

would have caused “intense pain,” and could have occurred “a couple of hours” before death.

                Lukefahr stated that a fall from a chair or from the steps could have caused some of

Robbie’s injuries. He also stated that it was possible, if unlikely, that an adult falling on the child

could have caused either the brain or abdominal injuries. Lukefahr testified, however, that “there’s

no accidental scenario that would satisfactorily explain [Robbie’s] constellation of injuries.” He said

that the “sheer number” of injuries demonstrated that they were deliberately inflicted. Lukefahr




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testified that in his opinion, “there’s plenty of evidence that someone really set out to seriously hurt

this child.”


                                 SUFFICIENCY OF EVIDENCE

                The indictment alleged in three paragraphs that appellant knowingly caused Robbie’s

death by striking his body and head with appellant’s hand or foot, by striking his body and head with

an unknown object, and by striking his body and head against an unknown object. The court’s

charge submitted the three theories of the offense disjunctively, and the jurors returned a general

verdict of guilt. In two points of error, appellant contends that the evidence is legally and factually

insufficient to sustain the guilty verdict.

                After his brief was filed, the court of criminal appeals held that appellate courts will

no longer employ distinct legal and factual sufficiency standards when reviewing the sufficiency of

the evidence to sustain a criminal conviction. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). Instead, the only standard for determining whether the evidence proves the defendant’s

guilt beyond a reasonable doubt is the Jackson due process standard. Id.; see Jackson v. Virginia,

443 U.S. 307, 319 (1979). Under Jackson, the question presented is whether, after viewing all the

evidence in the light most favorable to the verdict, a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. 443 U.S. at 319. The reviewing court

may impinge on the trier of fact’s discretion only to the extent necessary to guarantee the

fundamental protection of due process of law. Id.

                Appellant urges that the evidence does not support a finding beyond a reasonable

doubt that he knowingly caused Robbie’s death. He points out that there was no evidence that he

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had engaged in violence against Robbie or the other children prior to June 11. Helmer testified that

she had never seen appellant lose his temper or do anything inappropriate with the children. She said

that appellant treated Robbie as if he were his own son, and that she did not consider him to be a

danger to Robbie. Moreover, the operator of the child care center Robbie had attended until one

month before his death testified that she never observed anything out of the ordinary with respect

to his physical condition, and Robbie’s pediatrician testified that he never saw evidence of abuse.

Appellant also points out that it was undisputed that some of Robbie’s injuries predated June 11.

In addition, it was generally conceded that the outside steps leading to the front door of the residence

were unsafe, and there was evidence that other household members had fallen on them at one time

or another. Finally, as regards the major injuries, appellant asserts that the medical testimony was

“ambivalent.” During cross-examination, both doctors acknowledged that it was possible that the

injuries to the child’s brain and abdomen could have been caused by a heavy adult falling on him

from the steps. Appellant argues that “‘[c]ould have been’ is not sufficient to prove guilt beyond a

reasonable doubt.”

                It was undisputed that Robbie’s fatal injuries occurred while he was in appellant’s

sole care. The only disputed issue was whether the injuries had been knowingly inflicted or were

the result of the accident described by appellant. Although the medical experts were willing to

concede the possibility that some of Robbie’s injuries could have resulted from appellant falling on

the child from the steps, both doctors testified that the totality of Robbie’s injuries could not be so

explained. Each testified that, in his opinion, Robbie’s death was a homicide resulting from repeated

blunt force trauma. Viewing the expert testimony and all the other evidence in the light most



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favorable to the verdict, we hold that the evidence supports the jury’s finding beyond a reasonable

doubt that appellant struck Robbie in the manner or manners alleged in the indictment, and that he

did so with an awareness that this conduct was reasonably certain to result in death. See Tex. Penal

Code Ann. § 6.03(b) (West 2003). Points of error one and two are overruled.


                                         IMPEACHMENT

               Appellant was initially arrested on June 11 for outstanding traffic warrants. While

in jail that night, appellant engaged in two telephone conversations with Cervantes. Both calls were

recorded. In two points of error, appellant contends that the trial court erred by permitting the State

to impeach Cervantes by playing a portion of the recorded conversations in which Cervantes

expressed the opinion that appellant was guilty of murdering Robbie, and that the court further erred

by refusing to give a limiting instruction in its jury charge regarding this impeachment evidence.

               Originally called as a State witness, Cervantes was asked by the prosecutor without

objection if she recalled three portions of her telephone conversation with appellant on the night

of June 11:


       • First, she was asked, “Do you recall [appellant] saying [Robbie] was fine, he was
       running around the house, he took a bath, he drank apple juice, and that he was fine?”
       She answered, “He didn’t tell me that.”

       • Second, Cervantes was asked, [D]o you remember . . . [appellant] saying to you,
       hey, Nana, [Robbie] fell out of that chair and it’s the chair that’s in the damn
       computer room?” Once again, the witness said that appellant did not make this
       statement.

       • Third, Cervantes was asked, “Do you recall telling [appellant] that he had done
       something that he shouldn’t have done to Robbie? Do you recall that?” She replied,
       “I would never say that because I did not know what happened. To this day, I don’t

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        know.” The prosecutor persisted, “And right after that [appellant] said, so you think
        I done it. And you replied, I do, I do, I do, yep?” Cervantes answered, “I don’t
        remember that. I wouldn’t say that because how am I going to say that if I
        don’t know?”


At this point, the trial court conducted a hearing outside the jury’s presence to determine if the State

would be allowed to impeach Cervantes’s testimony by playing the relevant portions of the recorded

telephone calls. The defense objected to the proposed impeachment on the grounds of hearsay,

rule 403, lack of notice, and invading the province of the jury. The trial court overruled the

objections and instructed the prosecutor, “[Y]ou may play specific statements that contradict exactly

what she said.” The jury was returned to the courtroom, the State resumed its questioning of

Cervantes, and the prosecutor played the three pertinent excerpts from the recorded telephone

conversations. Immediately thereafter, the court instructed the jury, “[T]he three recordings you’ve

just heard are being offered for the purposes of impeachment only and are to be considered for that

purpose only.”

                 During her direct examination, the prosecutor also asked Cervantes about a fourth

portion of her telephone conversation with appellant:


        • “[D]o you recall in that conversation telling [appellant] that you didn’t know what
        was wrong with his head, that there was something wrong with him? Do you recall
        saying that, ma’am?” Cervantes answered, “Maybe I did.” The prosecutor then
        asked, “And did you also say that you were scared of him, that you were scared
        of letting him out?” Cervantes replied, “That I don’t remember” but added, “It’s
        a possibility.” After being shown a transcription of the telephone call,
        Cervantes conceded, “I might have said it. . . . I was very, very angry, so I could have
        said anything.




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In point of error three, appellant argues that the State should not have been allowed to impeach

Cervantes’s testimony denying that she had said that she was afraid of appellant, that there was

something wrong with his head, or that he had committed the crime. Appellant urges that this was

improper impeachment on a collateral matter, and that Cervantes’s opinion of his guilt was an

inadmissible opinion. This argument presents nothing for review because Cervantes did not deny

making the statements and was not impeached in that regard. If the point of error is construed as

urging that the State should not have been permitted to question Cervantes about those statements,

the argument was not preserved for appeal because there was no objection to the questions.

               If point of error three is construed as challenging the impeachment that was allowed,

no reversible error is presented. Several witnesses, including appellant himself, testified that

appellant initially said that Robbie had fallen from the chair in the computer room to no apparent ill

effect. Cervantes’s statement during the June 11 telephone conversation that appellant “had done

something that he shouldn’t have done to Robbie,” and her affirmative response when appellant

asked her if she thought “[he] done it,” reflected Cervantes’s belief that a simple fall from a chair

could not explain what happened to Robbie. Further, Cervantes’s expressed belief that appellant was

responsible for Robbie’s death—a responsibility that appellant admitted at trial—did not constitute

an opinion that appellant was guilty of murder. Point of error three is overruled.

               In point of error four, appellant contends that the trial court erred by refusing to

include in its jury charge the limiting instruction regarding the impeachment evidence that it gave

at the time the evidence was admitted. However, the record reflects that later in the trial, after the

three excerpts from the recorded conversations were introduced for impeachment, the court



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permitted the State to introduce the telephone conversations in their entirety as direct evidence.2

Because the evidence was no longer before the jury for a limited purpose, no further limiting

instruction was required. See Lane v. State, 822 S.W.2d 35, 40 (Tex. Crim. App. 1991) (limiting

instruction not required when evidence can be considered on any relevant issue); Cantrell v. State,

731 S.W.2d 84, 95 (Tex. Crim. App. 1987) (no limiting charge required if testimony could have been

admitted for both impeachment and as direct evidence). Point of error four is overruled.


                                    OPINION TESTIMONY

               Appellant contends that the trial court erred by permitting unqualified opinion

testimony that Robbie had been beaten. The witness in question was Carl Davis, who in June 2007

was an investigator for the Bastrop County Sheriff assigned to the crimes against children division.

Davis testified that on June 11, he and a child protective services worker were dispatched to the

scene on highway 290. Davis was shown Robbie’s body, which by that time had been placed in an

ambulance. Davis was asked by the prosecutor, “As a child abuse investigator, can you tell me based

on your experience in investigating child abuse cases what your initial investigative thought was

when you saw the body of this child?” Defense counsel objected, “Judge, that would be an expert

opinion. He has not been qualified to give that opinion at this point.” The objection was overruled,

and Davis stated, “My impression was that this child had been beaten.”


   2
     In his reply brief, appellant challenges the State’s argument that the recordings were admitted
as direct evidence. At the time the recordings were offered in evidence, appellant objected that the
tapes were hearsay, bolstered other testimony, and were unfairly prejudicial. Appellant also objected
that the tapes were only admissible for impeachment. Defense counsel’s objections plainly
manifested an understanding that the recordings were being admitted without limitation. Appellant
does not bring forward a point of error challenging the admission of the recordings as a whole.

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               Appellant correctly notes that the State made no attempt to qualify Davis as an expert

on child abuse. But opinion testimony may be offered by both lay and expert witnesses. Tex. R.

Evid. 701, 702. Under rule 701, a lay witness may testify in the form of an opinion or inference that

is rationally based on the perception of the witness and helpful to a clear understanding of the

witness’s testimony or the determination of a fact in issue. Moreover, a witness who is capable of

being qualified as an expert may offer lay opinion testimony under rule 701. Osbourn v. State,

92 S.W.3d 531, 536 (Tex. Crim. App. 2002). A police officer is not precluded from offering lay

opinion testimony regarding events which he has personally observed. Id.

               The admissibility of evidence is within the discretion of the trial court. Id. at 537.

The trial court could reasonably conclude that Davis’s impression that Robbie “had been beaten” was

rationally based on his personal observation of the body, and that this impression was helpful both

to explain the officer’s testimony regarding the subsequent course of the investigation and to assist

the trier of fact in determining whether the child’s injuries were the result of criminal conduct or an

accident. No abuse of discretion is shown. Point of error five is overruled.


                                        JURY ARGUMENT

               In his last point of error, appellant contends that the trial court erred by overruling his

objection to the State’s jury argument. At the conclusion of her remarks, the prosecutor stated:


               And we’re not trying to play on your emotion, but we do want justice for
       Robbie. And to take a stand against child abuse takes courage and strength. And
       that’s what I’m asking of all of you, to have the courage and to have the strength to
       take a stand and follow the law and find him guilty of capital murder.




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              [Defense counsel:] I’m going to object. This is improper prosecutorial
       argument in front of this jury about asking the jury to take a stand against child
       abuse. That is not what this jury is supposed to be considering and it is prejudicial.

                [Prosecutor:] It’s a proper plea for law enforcement, Your Honor.

                THE COURT: Overruled.

               [Prosecutor:] Asking you to take a stand and send a message to your
       community that child abuse will not be tolerated here, not here in Bastrop and not
       here in Texas. I’m asking you to do the right thing and find justice for Robbie, to
       find Christopher Murray guilty of capital murder.


Appellant contends that by this argument, the prosecutor improperly asked the jury to return a guilty

verdict to demonstrate its disapproval of child abuse generally rather than basing their verdict on the

facts and the law.

                A plea for law enforcement is a permissible form of jury argument. Borjan v. State,

787 S.W.2d 53, 55 (Tex. Crim. App. 1990). A prosecutor’s argument asking the jury to send a

message to the community that violence will not be tolerated is a proper plea for law enforcement.

McGee v. State, 774 S.W.2d 229, 240 (Tex. Crim. App. 1989). It is also proper for a prosecutor to

argue on behalf of children and to remind jurors of the effect their verdict may have on this segment

of the community. Borjan, 787 S.W.2d at 56. The prosecutor’s argument urging the jury to follow

the law and find appellant guilty of capital murder, and to thereby send a message that child abuse

will not be tolerated in Bastrop County, was a proper plea for law enforcement. Point of error six

is overruled.

                The judgment of conviction is affirmed.




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                                          __________________________________________

                                          Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: June 1, 2011

Do Not Publish




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