Affirmed and Memorandum Opinion filed August 28, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00643-CR

                  CHRISTOPHER WASHINGTON, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1301887

                  MEMORANDUM OPINION
      Following a jury trial, appellant Christopher Washington was found guilty of
the first-degree felony offense of injury to a child and sentenced to fifty-five years’
imprisonment and fined $10,000. In this appeal, appellant challenges the legal
sufficiency of the evidence to support his conviction and the trial court’s denial of
appellant’s motion for mistrial.
                                  BACKGROUND
      At the time of the events leading to his indictment, appellant lived with his
wife, Syreeta Franklin, and five children in an apartment in Harris County. Among
these children was twenty-one-month-old S.C.

      On April 6, 2011, an emergency call reporting a cardiac arrest came from
appellant’s apartment. Paramedics testified that, when they arrived, they observed
appellant walking away from the location, occasionally glancing over his shoulder.
Once inside the residence, the paramedics found S.C. unconscious with Franklin
attempting CPR. S.C. was ultimately transferred by the paramedics to the Texas
Children’s Hospital, where she died. The cause of death was blunt head trauma.
The autopsy report revealed numerous abrasions, scars, and bruises on S.C.’s body,
evidence of both recent injuries and injuries which were at least two days old, and
subdural hemorrhaging.

      Shortly after S.C. had been taken to the hospital, Officer David Fairrington
of the Houston Police Department found appellant picking some of his children up
from school. Fairrington’s superiors ordered him to return appellant to the
apartment complex and detain him until investigators arrived.

      Fairrington testified that appellant gave voluntary statements while sitting in
the patrol car in the apartment parking lot. According to Fairrington, Appellant
claimed that he was asleep in his apartment when he received a phone call from his
wife, who needed a ride home from work. Appellant then began getting his
children ready to leave so that he could pick up his wife from her work. Appellant
told Fairrington that he had walked by the children’s room and “something had
happened.” Appellant claimed that he noticed that S.C. was in a state of seizure,
and he stated that he “should have called 911 faster.”


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      Testimony indicated that appellant agreed to be transported to the police
station, though he was informed that he was not under arrest and was free to go at
any time. At the police station, appellant voluntarily gave a video-recorded
interview in which he stated that S.C. was in his care the day she died, that he
threw her up and down in the air, that he threw her to the floor three or four times,
and that he threw her down too hard. Appellant claimed that S.C. landed on her
head and on her face, and that she cried, started shaking, vomited, and became
limp. Appellant stated that he should have called the paramedics sooner.
Additionally, appellant stated that S.C. had urinated and defecated on the floor, he
got mad, and “things got out of hand.”

      At some point after being detained, appellant sent a letter to a Child
Protective Services worker in which he claimed that he had previously “not been
completely truthful about the accounts of that day.” The letter was admitted into
evidence. In the letter, appellant stated that Franklin came home from work upset
and grabbed S.C.’s arm. Appellant grabbed S.C.’s other arm, and Franklin jerked
S.C. toward her. Appellant let go, and S.C.’s head hit the wall. Appellant stated
that S.C. then tightened her fist like she was having a seizure and stopped
breathing.

      A jury found appellant guilty of the felony of intentionally or knowingly
causing serious bodily injury to a child younger than fifteen years of age. This
appeal followed.

                               ISSUES AND ANALYSIS
      On appeal, Appellant raises two issues. In his first issue, appellant contends
that the evidence is legally insufficient to support his conviction. In his second
issue, appellant contends that the trial court abused its discretion in denying his
motion for mistrial.

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I.       Legal Sufficiency of the Evidence to Support Appellant’s Felony Conviction
         of Injury to a Child

         A.     Standard of Review

         When reviewing the sufficiency of the evidence, we ask whether, taking the
evidence in a light most favorable to the prosecution, a reasonable trier of fact
could establish every element of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010). This court does not act as a thirteenth juror and does not
substitute its judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). Instead, we defer to the fact finder to fairly resolve
conflicts in testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts. Id. Therefore, our duty as a reviewing court is to
ensure that the fact finder acted rationally. Id.

         B.     Analysis

         Appellant was convicted of the first-degree felony offense of injury to a
child:

         (a) A person commits an offense if he intentionally, knowingly,
         recklessly, or with criminal negligence, by act or intentionally,
         knowingly, or recklessly by omission, causes to a child, elderly
         individual, or disabled individual:
                (1) serious bodily injury;
         ...
         (c) In this section:
                (1) “Child” means a person 14 years of age or younger.
         ...
         (e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a
         felony of the first degree when the conduct is committed intentionally
         or knowingly. When the conduct is engaged in recklessly, the offense
         is a felony of the second degree.
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Tex. Penal Code § 22.04. A person acts intentionally when “it is his conscious
objective or desire to engage in the conduct or cause the result.” Id. at § 6.03(a). A
person acts knowingly when “he is aware that his conduct is reasonably certain to
cause the result.” Id. at § 6.03(b). Serious bodily injury is defined as “bodily injury
that creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. at § 1.07(46).

      It is not contested that the twenty-one-month old S.C. sustained serious
injuries that resulted in her death while she was in appellant’s care. Appellant’s
sole argument is that the evidence is not legally sufficient to establish that he
caused the injuries because the video recording of his interview with the police
should not have been admitted into evidence. To this end, appellant asserts that the
video interview was custodial rather than voluntary, and therefore he should have
been read his Miranda rights. Appellant does not challenge the trial court’s ruling
on the motion to suppress the recording of the interview. Instead, appellant asserts
that, without the video recording, the evidence is legally insufficient to support his
conviction.

      In a legal sufficiency challenge, we consider all evidence on record, whether
admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).
Therefore, even assuming the video recording was improperly admitted, we must
consider it as part of the record evidence in assessing the legal sufficiency of the
evidence supporting appellant’s conviction. See Id; see also Hutchison v. State,
424 S.W.3d 164, 171 (Tex. App.—Texarkana 2014, no pet.) (stating that the
admissibility of incriminating statements is not relevant to the issue of the
evidence’s sufficiency to establish appellant’s knowing possession of controlled

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substances).

      Considering all evidence in the record, a rational jury could find beyond a
reasonable doubt that appellant knowingly or intentionally caused the death of S.C.
The record establishes that S.C. was in the care of appellant when she suffered
injury, that appellant acted suspiciously when the paramedics arrived, that
appellant gave conflicting accounts as to the events of that day, and that appellant
admitted to having thrown S.C. to the ground several times. Appellant’s admission
is further corroborated by testimony of the medical examiner that S.C.’s injuries
were consistent with being thrown to the ground several times.

      After viewing this evidence in the light most favorable to the verdict, we
determine that the evidence is legally sufficient to support the conviction of
appellant. Appellant’s first point of error is overruled.

II.   Trial Court’s Denial of Motion for Mistrial

      In his second issue, appellant argues that the trial court erred in denying his
motion for mistrial.

      Appellant moved for a mistrial after the state played a portion of an audio-
recorded interview—separate and distinct from the video-recorded interview
described above—that was subsequently deemed by the trial court to be
inadmissible. At trial, a police officer testified that after being detained, appellant
had written a letter requesting to speak to the police. The officer spoke with
appellant, and this interview was recorded on audio tape. Part of this recorded
interview was played before the jury. The trial court ultimately stopped the
recording short and found it inadmissible because appellant had not requested by
letter to speak to with the police, contrary to the officer’s belief, and appellant’s
attorney was neither alerted of nor present at the interview. The portion of the
interview that was played before the jury contained only appellant being read his
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Miranda rights. The trial court denied appellant’s motion for mistrial, but did
instruct the jury to disregard the tape and the officer’s testimony.

         A.    Standard of Review

         We review the trial court’s denial of a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). “Only in
extreme circumstances, where the prejudice is incurable, will a mistrial be
required.” Id. Three factors are balanced to determine whether the trial court
abused its discretion in denying a motion for mistrial: (1) the severity of the
misconduct; (2) curative measures; and (3) the certainty of the conviction absent
the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998);
Kacz v. State, 287 S.W.3d 497, 509 (Tex. App.—Houston [14th Dist.] 2009, no
pet.).

         B.    Analysis

         In applying these factors, we conclude that the trial court did not abuse its
discretion in denying appellant’s motion for mistrial.

         The prejudicial effect of the jury hearing the beginning of the audio
interview was minimal as it only contained audio of appellant being read his
Miranda rights. Appellant urges that by hearing the warnings, the jury could
incorrectly assume that the video interview that we discussed in appellant’s first
issue also contained such warnings when, in fact, it did not, giving “unearned
legitimacy” to the video interview. But appellant does not challenge the trial
court’s determination in its ruling on his motion to suppress that the video
interview was admissible. And, the trial court is the sole judge of credibility of
witnesses as well as the weight to be given their testimony at a hearing on the
voluntariness of a confession. Miniel v. State, 831 S.W.2d 310, 315 (Tex. Crim.
App. 1992). The issue of “unearned legitimacy” for the video interview was not
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before the jury. See Moon v. State, 607 S.W.2d 569, 572 (Tex. Crim. App. [Panel
Op.] 1980) (“The admissibility of the confession is determined by the court.”).

      Even so, the trial court cured any defect by instructing the jury to not
consider the tape or testimony about the tape. Limiting instructions are generally
considered sufficient to cure improprieties in trial, because it is presumed that a
jury will follow the judge’s instructions. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009). In this case, we have no reason to believe that the jury did
not follow the trial court’s instruction to disregard the audio recording.

      Finally, the evidence against appellant—excluding the audio recording—
was such that the certainty of his conviction was high. The jury had ample
testimony, medical records, and an incriminating video recording from which it
could base the conviction.

      Because the audio recording, at most, had negligible prejudicial effect and
the trial court gave limiting instructions that presumptively cured any prejudice,
and the conviction was reasonably certain without the audio recording, we
determine that the trial court did not abuse its discretion in denying appellant’s
motion for mistrial. See Hawkins, 135 S.W.3d at 77. Appellant’s second issue is
overruled.

                                       CONCLUSION
      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.


                                 /s/          Ken Wise
                                              Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).


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