                                    NO. 07-10-00452-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                    NOVEMBER 2, 2012


                         JOHNNY LEE HARRIS, JR., APPELLANT

                                               v.

                            THE STATE OF TEXAS, APPELLEE


           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                   NO. 11,372; HONORABLE DAN MIKE BIRD, JUDGE


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


                                 MEMORANDUM OPINION

       Appellant, Johnny Lee Harris, Jr., appeals from his conviction by jury of the

offense of causing serious bodily injury to a child and the resulting sentence of forty-five

years of imprisonment. Through six issues, appellant contends the trial court erred. We

will affirm the judgment of the trial court.


                                         Background


       Appellant was charged by an indictment alleging that he “intentionally or

knowingly caused serious bodily injury to [E.H], a child 14 years of age or younger, by

striking the said [E.H] with an object or objects unknown to the Grand Jury or by striking
the said [E.H.] against an object or objects unknown to the Grand Jury.” 1                The

indictment also included an enhancement provision setting forth his previous final felony

conviction for burglary of a habitation. Appellant plead not guilty and went to trial before

a jury.


          The jury charge gave the jury the options of finding appellant not guilty, or finding

him guilty of the indicted offense of intentionally or knowingly causing serious bodily

injury to the child, guilty of the lesser offense of recklessly causing her serious bodily

injury, or guilty of the lesser offense of causing her such injury with criminal negligence.


          The State’s evidence showed six-month-old E.H. was injured while she was

under appellant’s care at his residence. The mother of the child testified she returned

home from doing the laundry after receiving a call from appellant telling her the baby

was not breathing. Appellant explained he had fallen while holding the baby.


          The jury convicted appellant of the most serious of the offenses contained in the

jury charge. This appeal followed.


                                            Analysis


Limitation on Voir Dire


          During his voir dire of the venire, appellant sought to ask prospective jurors the

question, “Could you convict someone without knowing how that child was injured?”

The trial court sustained the State’s objection to the question. Appellant’s first issue


          1
              Tex. Penal Code Ann. § 22.04(e) (West 2010).

                                                2
asserts the trial court erred by that ruling. Appellant argues his proposed question was

a proper commitment question. We will overrule the issue.


       We agree with appellant his proposed question was a commitment question,

because it sought to obtain a commitment from prospective jurors to resolve the issue of

his guilt by reference to the evidence of a particular fact, i.e., “how the child was

injured.” See Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App. 2001) (defining

commitment questions as “those that commit a prospective juror to resolve, or to refrain

from resolving, an issue a certain way after learning a particular fact”); Atkins v. State,

951 S.W.2d 787, 796-97 (Tex.Crim.App. 1997) (question phrased in manner similar to

that in this case).


       We cannot, however, agree with appellant it was a proper question.                A

commitment question is improper when the law does not require the commitment

sought, such that the prospective juror would not be subject to a valid challenge for

cause by being influenced by the particular fact described in the question, or even if the

question meets the challenge for cause requirement, it also includes facts in addition to

those necessary to establish a challenge for cause. Sanchez v. State, 165 S.W.3d 707,

712 (Tex.Crim.App. 2005).


       From comments during appellant’s preservation of his issue, it appears the trial

court viewed the proposed question as asking if the juror could convict him without

knowing the manner by which the child was injured. The court’s view of the somewhat

ambiguous question was reasonable. Would appellant be entitled to acquittal if the

State’s proof showed he caused serious bodily injury to E.H. but did so in a manner

                                            3
different than striking her with or against an object? No. See Johnson v. State, 364

S.W.3d 292, 293, 298-99 (Tex.Crim.App. 2012) (in aggravated assault prosecution,

variance between pleading defendant caused serious bodily injury by hitting victim with

his hand or by twisting her arm and proof he caused the injury by throwing her against

the wall was immaterial, not rendering evidence insufficient). In the State’s prosecution

of appellant for injury to a child, such a variance would be one involving a non-statutory

allegation not involving the allowable unit of prosecution for the offense, and would be

immaterial. See Tex. Penal Code Ann. § 22.04(a) (West 2010) (person commits offense

if with required culpability, he “causes” injury); Williams v. State, 235 S.W.3d 742, 750

(Tex.Crim.App. 2007) (injury to child is an assaultive, result-of-conduct offense);

Jefferson v. State, 189 S.W.3d 305, 312 (Tex.Crim.App. 2006) (jury unanimity analysis,

holding essential element or focus of injury to child statute is result of conduct “and not

the possible combinations of conduct that cause the result”; thus whether act or

omission caused injury was not element of offense as to which jury unanimity was

required); Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App. 1985) (under injury to

child statute, nature of conduct is inconsequential so long as conduct is voluntary and

done with the required culpability). 2 The hypothetically correct jury charge for the case

need not incorporate allegations that give rise to immaterial variances. Gollihar v. State,

46 S.W.3d 243, 256 (Tex.Crim.App. 2001). 3

      2
         See also Judge Cochran’s concurring opinion in Jefferson, 189 S.W.3d at 315
(“the specifics of how the defendant caused serious bodily injury are not the gravamen
of the offense and not the statutorily prohibited conduct”).
      3
        This does not mean appellant was not entitled to notice of the conduct the State
alleged caused his guilt. See Gollihar, 46 S.W.3d at 257 n.24.

                                            4
       A commitment to resolve the issue of appellant’s guilt by reference to the

evidence of “how” E.H. was injured is thus not a commitment the law required of

prospective jurors in his case.     A panel member’s unwillingness to make such a

commitment would not give rise to a valid challenge for cause. See Sanchez, 165

S.W.3d at 712 (proper voir dire question attempts to discover panel member’s

preexisting bias or prejudice). Consequently, appellant’s proposed question was not a

proper commitment question, and the trial court did not abuse its discretion by

sustaining the State’s objection to the question.


Admission of Appellant’s Statements


       During the guilt-innocence phase of trial, appellant moved to suppress an oral

statement and two written statements he gave police. The trial court denied appellant’s

motion and admitted the statements. By appellant’s second, third and fourth issues, he

contends the statements should not have been admitted into evidence because he was

in custody when the statements were made and the requirements of article 38.22 were

not met. Tex. Code Crim. Proc. Ann. art. 38.22 (West 2010). He also argues his first

written statement was not freely and voluntarily given. Tex. Code Crim. Proc. Ann. art.

38.21 (West 2010).


       We review a trial court's ruling on the admissibility of an oral or written statement

under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

(Tex.Crim.App. 2000). We afford almost total deference to the trial court's determination

of historical facts that the record supports, especially when the fact findings are based

on an evaluation of the witnesses' credibility and demeanor.

                                             5
S.W.2d 85, 88-89 (Tex.Crim.App. 1997); Perez v. State, 103 S.W.3d 466, 468

(TexApp.--San Antonio 2003, no pet.). We review de novo the court's application of the

law to the facts. Guzman, 955 S.W.2d at 89; Perez, 103 S.W.3d at 468.


         Article 38.22 applies only to statements made as a result of custodial

interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West 2010) (nothing in

article precludes admission of statement made by accused if statement does not stem

from custodial interrogation). "A person is in 'custody' only if, under the circumstances,

a reasonable person would believe that his freedom of movement was restrained to the

degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254

(Tex.Crim.App. 1996) (citing Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128

L.Ed.2d 293 (1994)); accord Herrera v. State, 241 S.W.3d 520, 525 (Tex.Crim.App.

2007).


         The oral statement appellant sought to exclude was given to an officer who

responded to the dispatch of a “baby not breathing.” She testified she arrived at the

residence as E.H. was being loaded into the ambulance. The officer said she walked

back into the house with appellant. She detected the odor of burnt marijuana, and saw

appellant open a window. Appellant admitted to smoking a “joint” in the bedroom.


         In response to the officer’s inquiry as to the cause of E.H.’s injuries, 4 the officer

testified appellant “said that he was holding the baby in his arms, she stopped


         4
         See Jones v. State, 795 S.W.2d 171, 174 fn.3 (Tex.Crim.App. 1999) (noting
routine inquiries such as “what happened” on arrival at the scene of a crime are not
interrogation).

                                               6
breathing. He was feeding her with a bottle and she just stopped breathing.” The

officer told the trial court that at that time, she was conducting an investigation of the

child’s injuries and had not placed appellant under arrest or given Miranda warnings.


       The trial court determined the oral statement was non-custodial because

appellant was “not physically deprived of his freedom of action in any significant way.

No one told him…he could not leave….38.22 does not apply…”. We agree with the trial

court’s conclusion that appellant’s oral statement, given at that early stage in the

investigation into E.H.’s injuries, was non-custodial. We find no error in the trial court’s

admission of the statement.


       Later the same day, appellant agreed to accompany another officer to the

hospital for a blood draw in connection with his admitted use of marijuana. The officer

testified that when he and appellant returned to the officer’s unmarked patrol car in the

hospital’s parking lot, he asked appellant if he would give a written statement. Appellant

agreed, and, while sitting in the patrol car, wrote a statement on a form containing the

warnings required by article 38.22. 5 The statement contains the admission appellant

smoked a joint while the two older children napped and E.H. was in her play pen. It also

contains this statement: “[E.H.] was ok then she cried different. She went quite [sic] and

I went to check and she wasn’t breathing she had changed color so I tried to do what I

could. I couldn’t do nothing. So I called [E.H.’s mother] and went outside and the next

door neighbor help as she was a nurse.”

       5
         Asked why he used a form containing the warnings if he did not regard his
questioning as custodial, the officer stated it was “quite possible it could have been the
only statement form I had at the time. I honestly don’t remember why I used the form.”

                                             7
        The officer testified appellant was not placed under arrest nor was his freedom

of movement restricted at that time. After appellant wrote the statement, the officer

drove appellant home. Asked if he read appellant the article 38.22 warnings printed on

the form, the officer said he believed he did. The trial court stated its acceptance of the

officer’s statement, and found that if the statement was the result of custodial

interrogation, it nonetheless was admissible because it complied with article 38.22. The

record supports the trial court’s conclusion, and we find no error in his admission of the

statement.


       Appellant also argues this written statement was not voluntary.           Whether a

statement was voluntarily made is determined by the totality of the circumstances

surrounding its acquisition. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000);

Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995). If a statement of the

accused is freely given and voluntarily made without any use of persuasion or

compulsion, then it is admissible. Tex. Code Crim. Proc. Ann. art. 38.21 (West 2010);

see also Wyatt, 23 S.W.3d at 23. A statement is not voluntary if there was "official,

coercive conduct of such a nature that any statement obtained thereby was unlikely to

have been the product of an essentially free and unconstrained choice." Alvarado v.

State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). If voluntariness is raised by the

defendant, the State must prove by a preponderance of the evidence that the statement

was given voluntarily. Id. The trial court is the sole judge of the weight and credibility of

the evidence, and the court's finding on voluntariness will not be disturbed absent an

abuse of discretion. Id.


                                             8
       The statement appears in appellant’s handwriting. He was in a police car at the

time he wrote the written statement, but we see nothing to suggest he was subject to

coercive conduct. The record supports the trial court’s conclusion the statement was

freely and voluntarily given. See Tex. Code Crim. Proc. Ann. art. 38.21 (West 2010).


       About two weeks later, after police received a medical report they regarded as

inconsistent with appellant’s versions of the causes of E.H.’s injuries, an officer asked

appellant to come to the police station. Appellant agreed to meet the officer there.

Officers told appellant the medical evidence was inconsistent with his previous

statements. While in an interview room at the station, appellant gave a second written

statement. This statement was recorded on a police statement form that did not include

Miranda warnings, and no warnings were given. In this statement, appellant said he was

holding E.H., their dog “got under my feet” and he fell, letting go of E.H. to keep from

falling on top of her.


       Appellant was not placed under arrest and he left the station after giving the

statement. The officer testified appellant was never told he was not free to leave, and

his freedom of movement was not limited. The officer told the court that if appellant had

asked to leave the station, he would have been permitted to do so. The trial court

determined the statement was “non-custodial . . . for the same reasons that the Court

has previously held with respect to the statement made to [the officer] about the

marihuana use.”          We see no abuse of discretion in the trial court’s conclusion.

Moreover, even if we are mistaken, admission of the statement could not present

reversible error because at trial, E.H.’s mother testified, without objection, that appellant

                                              9
also told her the dog got under his feet, causing him to fall and drop E.H. See Lane v.

State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004) (error, if any, in admission of

evidence cured where same evidence comes in elsewhere without objection).


       When viewed in the light most favorable to the trial court's ruling, and deferring to

the trial court's determination of the credibility and demeanor of witnesses, we find the

record supports the court's admission of each of appellant’s three statements. We

overrule appellant’s second, third, and fourth issues.


Sufficiency of the Evidence


       In appellant’s fifth issue, he contends the evidence is insufficient to support his

conviction. In reviewing a challenge to its sufficiency, we examine the evidence 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, 323 S.W.3d 893 (Tex.Crim.App.

2010). The standard "gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; Rollerson v.

State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). The sufficiency review is conducted

by comparing the evidence presented with the hypothetically correct jury charge for the

offense. Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App. 1997). It is not necessary

that every fact point directly and independently to an accused's guilt, but it is enough if

the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

                                            10
       Appellant’s sufficiency challenge focuses on the evidence he caused E.H.’s

injuries intentionally or knowingly. As noted, a person commits first-degree injury to a

child if he intentionally or knowingly causes serious bodily injury to a child fourteen

years of age or younger. Tex. Penal Code Ann. § 22.04(e) (West 2010).


       Because injury to a child is a result-of-conduct offense, the culpable mental state

relates not to the nature of or the circumstances surrounding the defendant's charged

conduct, but to the result of the conduct. Patterson v. State, 46 S.W.3d 294, 301

(Tex.App.--Fort Worth 2001, pet. ref’d); see Williams, 235 S.W.3d at 750 (noting injury

to child is "result-oriented offense requiring a mental state that relates not to the specific

conduct but to the result of that conduct").      Under the Penal Code, 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. Tex. Penal Code Ann. § 6.03(a) (West

2003). 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.

Tex. Penal Code Ann. § 6.03(b) (West 2003). Thus, proof that a defendant knowingly

caused injury to a child requires evidence that he was aware with reasonable certainty

that the injury would result from his conduct. Patterson, 46 S.W.3d at 302.


       A defendant's culpable state of mind is almost invariably proven by circumstantial

evidence. Morales v. State, 828 S.W.2d 261, 263 (Tex.App.--Amarillo 1992), aff'd, 853

S.W.2d 583 (Tex.Crim.App. 1993); accord, Montgomery v. State, 198 S.W.3d 67, 87

(Tex.App.--Fort Worth 2006 pet. ref’d). Intent can be inferred from the acts, words and




                                             11
conduct of the accused, and from the extent of the victim's injuries and the relative size

and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995).


       The mother of E.H. testified she was living with appellant, and left her three

children with him while she went to do the laundry. E.H. was “fine” when she left.

Appellant called her later that afternoon and told her E.H. was not breathing. She

returned home and found E.H. limp and pale. Appellant told her he “fell” with E.H. in his

arms. As noted, a couple of weeks later, appellant told her the dog caused him to fall

and he dropped E.H. so he would not fall on the child.


       A registered nurse who owned property nearby testified she saw appellant in the

front yard of the residence that day with a limp baby. She noticed the baby had “agonal

respirations,” usually associated with death.


       E.H. was transferred by air ambulance to Cook Children’s Hospital in Fort Worth.

The medical director of the child abuse program at Cook testified she examined E.H.

the morning after her injuries. E.H. suffered a skull fracture, a subdural hemorrhage,

and retinal hemorrhages. As a result of her injuries, E.H. has a seizure disorder, is

developmentally delayed, and has cortical blindness and other brain damage.            Her

injuries were limited to her head and eyes; the doctor found no bruises, broken bones or

other indications of injury to other parts of the six-month-old’s body.


       For her injuries to have been caused by a fall, the doctor opined, E.H. would

have had to fall from twenty to thirty feet. In response to a question asking “what kind of

action would have caused these injuries,” the doctor testified, “It would have to be a

violent action. We know she had a skull fracture so there had to be some impact, but
                                             12
the degree of retinal hemorrhages and subdural [sic], I believe it had to be shaking and

impact.” The doctor also offered her opinion, based on the extent of the injuries and the

child’s medical history, that E.H.’s injuries were intentionally caused. She agreed that

the “most likely scenario” causing the injuries was an impact from striking the head of

the child against an object or an object striking the head of the child. 6


       From one or more of appellant’s own statements, the jury was free to believe

E.H. was in his arms when her serious injuries occurred, and that actions he took led to

her injuries. The medical opinion evidence is that the injuries were caused by a violent

action involving both shaking and impact.          Appellant gave several versions of the

occurrence of E.H.’s serious injuries, none of them consistent with the medical evidence

and the undisputed circumstances under which the injuries occurred. 7 Viewing the

evidence in the light most favorable to the jury’s verdict, and based on “the combined

and cumulative force of all the incriminating circumstances,” Hooper, 214 S.W.3d at 13,


       6
         Appellant raised objections to the doctor’s opinion testimony. That the
testimony was objected-to does not concern us here because the scope of a review of
the sufficiency of evidence under the Jackson v. Virginia standard includes all the
evidence the jury heard, whether properly or improperly admitted. Castro v. State, No.
07-11-00289-CR, 2012 Tex.App. LEXIS 6233, at *7 (Tex.App.—Amarillo July 30, 2012,
no pet.) (mem. op., not designated for publication), citing Conner v. State, 67 S.W.3d
192, 197 (Tex.Crim.App. 2001).
       7
          A jury may infer from a person’s lying that “he had something to hide.”
Couchman v. State, 3 S.W.3d 155, 164 (Tex.App.-Fort Worth 1999, pet. ref’d). As we
noted on somewhat similar facts in Aleman v. State, No. 07-08-00442-CR, 2010
Tex.App. LEXIS 8530, at * 13-14 (Tex.App.—Amarillo Oct. 25, 2010, pet. ref’d) (mem.
op., not designated for publication), the inference may have limited strength as evidence
appellant’s mental state was intentional or knowing rather than reckless or negligent,
but the jury rationally could have given it some weight.


                                              13
we find the jury rationally could have concluded beyond reasonable doubt not only that

appellant’s conduct caused the injuries but that his violent actions were accompanied at

the least by an awareness they were reasonably certain to cause the injuries the child

suffered, if not a conscious desire to cause them.           Evidence supporting either an

intentional or knowing mental state will support the jury’s general verdict. Patterson, 46

S.W.3d at 300. We overrule appellant’s fifth issue.


Jury Instruction on Lesser-Included Offense


       In appellant’s last issue, he argues the trial court erred by not including in the jury

charge his requested instruction on assault as a lesser-included offense. We overrule

the issue.


       A defendant’s entitlement to a lesser-included offense instruction is determined

under the two-pronged test outlined in Rousseau v. State. 855 S.W.2d 666, 672-73

(Tex.Crim.App. 1993); Grey v. State, 298 S.W.3d 644, 645 (Tex.Crim.App. 2009). See

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2010) (providing four categories illustrating

lesser-included offenses).      By the first prong, the court determines whether the

requested lesser offense is a lesser-included offense of the charged offense. That is a

question of law, answered by examining the statutory elements of the charged offense,

as modified by the indictment, and comparing them with the elements of the lesser

offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007).              Under the

second prong, we consider the evidence adduced at trial, determining whether there is

some evidence in the record from which a jury rationally could find that if the defendant

is guilty, he is guilty only of the lesser-included offense. Id. at 536.

                                              14
       The indictment charged appellant with intentionally or knowingly causing serious

bodily injury to E.H., a child 14 years of age or younger, by striking her with or against

an object. Tex. Penal Code Ann. § 22.04(e) (West 2010). Appellant’s contention is that

he was entitled to a lesser-included offense instruction based on the form of assault

described in section 22.01(a)(1) of the Penal Code. By that section, a person commits

assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex.

Penal Code Ann. § 22.01(a)(1) (West 2010).


       There is no evidence in the record indicating E.H. was not a child under 14 years

of age, nor is there evidence her bodily injuries were less than serious. See Tex. Penal

Code Ann. § 1.07(a)(46) (West 2010) (defining serious bodily injury). There is thus no

evidence that if guilty, appellant is guilty only of assault as described in section

22.01(a)(1).    The trial court did not err by denying appellant’s request for a jury

instruction for assault.


       Having resolved each of appellant’s issues against him, we affirm the judgment

of the trial court.




                                                       James T. Campbell
                                                           Justice




Do not publish.

                                            15
