                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00186-CR

SHANTANIQUA NYKOLE SCOTT                                       APPELLANT

                                            V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1207069D
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                          MEMORANDUM OPINION1

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                                       Introduction

      Appellant Shantaniqua Nykole Scott appeals her conviction for serious

bodily injury to a child. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                       Facts

       Appellant’s son, R.S., was four months old when he underwent surgery at

Cook    Children’s   Hospital   to   correct   gastro-esophageal-reflux       disorder.

Suspecting that the condition had been caused by abuse, his doctor ordered him

placed in a private recovery room equipped with a hidden security camera. After

R.S. had been placed in the room, monitors alerted staff that his breathing had

stopped.    Nurse Laura Gammons and Physician’s Assistant Kevin Scully

responded and managed to revive him.

       A video from the hidden camera shows Appellant holding a blanket over

R.S.’s face and placing her hand over his nose and mouth until he stops

struggling and goes limp. About thirty seconds later, she leaves the room and

calmly tells staff responding to the alert that R.S. had stopped breathing.

       Appellant later admitted to police that she had placed her hand over the

baby’s mouth and nose because she did not want to deal with the stress of

having a child any longer.

       A grand jury indicted Appellant for serious bodily injury to a child, a petit

jury found her guilty and assessed her punishment at twenty-five years’

confinement, and the trial court sentenced her accordingly. She brings three

issues on appeal.




                                         2
                                    Expert Witness

       In her first issue, Appellant claims that the trial court erred by allowing

Physician’s Assistant Scully to testify that R.S.’s injury presented a “substantial

risk of death” from which he “would have died” without medical intervention.

       The qualification of a witness as an expert is within the trial court’s

discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Duran v.

State, 163 S.W.3d 253, 258 (Tex. App.—Fort Worth 2005, no pet.). A trial court’s

decision to permit a witness to testify as an expert will not be disturbed on appeal

absent a showing of a clear abuse of discretion. Wyatt, 23 S.W.3d at 27; Duran,

163 S.W.3d at 258.

       Texas Rule of Evidence 702 provides, “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion or

otherwise.” Tex. R. Evid. 702. No rigid formula exists for determining whether a

particular witness is qualified to testify as an expert. Duran, 163 S.W.3d at 258.

It is almost impossible to lay down any definite guidelines for determining

knowledge, skill or experience required in a particular case or of a particular

witness. Id.; Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App.—Corpus

Christi 1983, writ ref’d n.r.e.).

       Appellant does not cite nor have we found any authority holding that a

physician’s assistant may not testify as an expert about a serious injury and


                                          3
corresponding risk of death. To the contrary, rule 702 and the case law provide

that experience alone can provide a sufficient basis to qualify a witness as an

expert. Gregory v. State, 56 S.W.3d 164, 180 (Tex. App.—Houston [14th Dist]

2001, pet. dism’d), cert. denied, 538 U.S. 978 (2003); see also Duran, 163

S.W.3d at 258. Nothing in rule 702 requires that a witness have a particular

degree in order to qualify as an expert. See Gregory, 56 S.W.3d at 179–80. (“A

medical license or degree is not the litmus test for qualification as an expert.”).

      In similar fact patterns, this court and others have found that nurses and

other medical professionals may qualify as experts.          See, e.g., Duran, 163

S.W.3d at 258–59; Frohne v. State, 928 S.W.2d 570, 576 (Tex. App.—Houston

[1st Dist.] 1996, pet. ref’d), cert. denied, 522 U.S. 812 (1997). In deciding an

ineffective-assistance-of-counsel claim in Frohne, our sister court held that

because a pediatric nurse’s suspicions of abuse were based on her education,

training, and experience, the appellant failed to show that an objection to the

nurse’s testimony on the basis that she was not qualified as an expert would

have been sustained. 928 S.W.2d at 576. And in Butler v. State, another sister

court held that the trial court did not abuse its discretion by allowing a nurse with

“extensive specialized training in the field of child abuse” and a clinical supervisor

with a master’s degree in counseling and seventeen years’ experience dealing

with child abuse, to testify as experts.      892 S.W.2d 138, 140 (Tex. App.—

Texarkana 1994, no pet.).




                                          4
      In this case, Scully was a licensed physician’s assistant for surgical

services at Cook Children’s Hospital and had worked there for four years. His

duties included taking admission history, administering assessments and

physical examinations, assisting surgeons in the operating room, answering calls

from nurses, modifying medications and making medical decisions based on

laboratory data and patient assessment.         He testified that he holds two

bachelor’s degrees from the University of Texas and the Air Force, a master’s

degree in medicine from the University of Nebraska, and that he served one tour

of duty in Iraq as a medical officer. Based on the evidence of Scully’s education

and experience, we hold that the trial court did not abuse its discretion by

allowing him to give testimony as an expert that R.S. was at “substantial risk of

death” from which he “would have died” without medical intervention.

      Further, the trial court’s admission of Scully’s opinion testimony is

harmless because there was ample other evidence that R.S. suffered serious

bodily injury. The jury saw the videotape and easily could have inferred that R.S.

was at a substantial risk of death from watching Appellant smother him. And

Nurse Gammons testified that when she entered the baby’s room, it appeared

that he was not breathing.         Moreover, Dr. Sami Hadeed, the pediatric

pulmonologist who had treated R.S., testified that the baby was not breathing

and was at a substantial risk of death. We overrule Appellant’s first issue.

                     Lesser-Included-Offense Instruction




                                         5
      In her second issue, Appellant argues that the trial court erred by failing to

charge the jury with the lesser-included offense of injury to a child.

      We use a two-step analysis to determine whether an appellant was entitled

to a lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come

within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.

Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.

1998).   An offense is a lesser included offense if it differs from the offense

charged only in the respect that a less serious injury or risk of injury to the same

person, property, or public interest suffices to establish its commission. Tex.

Code Crim. Proc. Ann. art. 37.09(2).

      A person commits bodily injury to a child by intentionally, knowingly,

recklessly, or with criminal negligence causing bodily injury to a child. Tex. Penal

Code Ann. § 22.04(a)(3) (West Supp. 2013). A person commits serious bodily

injury to a child by intentionally, knowingly, recklessly, or with criminal negligence

causing serious bodily injury to a child.     Id. § 22.04(a)(1).    “Bodily injury” is

“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8)

(West Supp. 2013). “Serious bodily injury” means 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. § 1.07(46). Because bodily injury to a child differs from serious bodily injury to


                                          6
a child only in the respect that a less serious injury suffices to establish its

commission, the first step of the analysis is met.

      Under the second step, some evidence must exist in the record that would

permit a jury to rationally find that if the appellant is guilty, he is guilty only of the

lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741

(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence must

be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There

must be some evidence from which a rational jury could acquit the appellant of

the greater offense while convicting him of the lesser-included offense. Id. The

court may not consider whether the evidence is credible, controverted, or in

conflict with other evidence. Id. Anything more than a scintilla of evidence may

be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

      Appellant relies on the following exchange between defense counsel and

Dr. Hadeed to argue that a rational jury could have found Appellant guilty only of

bodily injury to a child but not serious bodily injury to a child:

         Q. So––and from what I’ve been able to determine––and see if
      you agree with this––four to five minutes is usually when there starts
      being a real risk of death, a cutoff of oxygen––a complete cutoff of
      oxygen, is that––would you agree with that?

          A. Partially.

          Q. Okay. What part wouldn’t you agree with?

           A. If any healthy individual four to five minute [sic] is that, you’re
      correct. But if somebody who already has some abnormality in the
      blood, like I––if the––if their blood is a little bit more acidy, if there––
      if there’s some other condition, can accelerate that process.


                                            7
         We disagree that a rational juror could conclude from this discussion about

a hypothetically healthy individual’s ability to survive a certain period without

oxygen, that R.S.––a baby who had been smothered until he lost consciousness

and stopped breathing––had not been placed at a substantial risk of death.

Moreover, we find nothing in the record from which a rational juror could

conclude that if Appellant was guilty of anything, she was guilty of only injury to a

child and not serious bodily injury to a child. Accordingly, we hold that the trial

court did not err by refusing to charge the jury on the lesser-included offense of

injury to a child, and we overrule Appellant’s second issue.

                                    Jury Argument

         In her third issue, Appellant argues that the trial court erred by overruling

her objection to the State’s closing argument during the punishment phase of the

trial.

         During the punishment phase, the jury learned that Appellant had admitted

that she had suffocated R.S. several times before the incidents recorded on

video at the hospital. Medical records showed additional instances where R.S.

was reported to have stopped breathing and that he had not had any further

incidents since being placed in foster care.        Appellant’s mother testified on

Appellant’s behalf that Appellant was still R.S.’s mother and that she was fighting

to keep her parental rights. She believed that Appellant should be able to regain

custody of R.S. after she gets “the full kind of help that she needs.”



                                           8
      During her final argument, Appellant brought up the issue of custody. Her

counsel reminded the jury that “this isn’t a child custody battle” and that the jury

could not decide who gets custody. Then he explained,

            This is a case on whether she––and––and she is not going to
      get custody as––if––if you give her probation or you give her a short
      sentence. She––if she ever gets custody of another child, it’s going
      to be because she’s proven herself to be trustworthy enough that
      people will trust her, because she showed she wasn’t trustworthy.
      And that’s it. Her mother says no, everybody says no, you’ve shown
      yourself not to be trustworthy taking a [sic] care of kid [sic]; until you–
      –you show us something different, we’re not going to let you. And
      even then maybe not.

      The State responded to Appellant’s references to custody in its closing

argument:

             And think of [R.S.] when he first got to [his foster mother].    She
      sits him up and when she puts a onesie on him, a shirt over            him,
      he’s fine. But put him on his back and what does he do?                  He
      screams. He kicks. He reaches for her hand to push her away.            The
      only way that you can make sure she doesn’t get [R.S.] back            is to
      send her to prison because––

             [DEFENSE COUNSEL]: I object to this. This is not a proper
      plea for law enforcement.

            THE COURT: And I will say that’s a decision made by
      another court action. I’ll sustain that objection. Your job isn’t [sic] to
      render a fair decision on the facts of this case, not on the custody of
      the child. Does everyone understand the difference?

            SEVERAL JURY MEMBERS: Yes.

            THE COURT: All right.

            [THE STATE]: Thank you, Judge.

            What we’re asking you to do, she has forfeited the privilege to
      have any other kids to have to take care of. How can you trust her?


                                          9
      If she gets a slap on the wrist and gets out, then we have to read
      about another kid that’s been hurt. It’s going to be a sad day. She
      has proven every time she has suffocated this helpless kid that she
      can’t be trusted. And he can’t turn his head away. He can’t shout
      for help. He can’t grab her hand and shove it away. He’s quite
      frankly helpless and dependent upon the one person who was
      caring for him, but she couldn’t do it.

       ....

              Make sure she stays in prison long enough where she can’t
      have any more children. She has absolutely forfeited that privilege.
      I will leave the math to you, but make sure no other kids can get
      hurt.

            [DEFENSE COUNSEL]: I object. This is not a proper plea for
      law enforcement.

              THE COURT: Overruled.

            [THE STATE]: Absolutely this is a plea for law enforcement.
      Don’t give her the chance. Send her to prison and make it a long
      time.

      There are four permissible areas of jury argument: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answers to argument

of opposing counsel; and (4) pleas for law enforcement. Felder v. State, 848

S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993);

Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

      Appellant complains that the following remark was improper because it

argued for the jury to deprive her of her fundamental right to procreate: “Make

sure she stays in prison long enough where she can’t have any more children.

She has absolutely forfeited that privilege. I will leave the math to you, but make

sure no other kids can get hurt.”


                                        10
      Generally, in order to preserve jury argument error, a timely objection must

be made and an adverse ruling obtained. Tex. R. App. P. 33.1; Staten v. State,

919 S.W.2d 493, 499 (Tex. App.—Fort Worth 1996, pet. ref’d).            Absent an

objection to jury argument at trial, nothing is presented for review. Threadgill v.

State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997). The

objection must be timely and specific, and the defendant must pursue the

objection to an adverse ruling. Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim.

App. 2002); Cockrell, 933 S.W.2d at 89; Carter v. State, 614 S.W.2d 821, 823

(Tex. Crim. App. [Panel Op.] 1981); see also Tex. R. App. P. 33.1(a)(1). An

objection is timely if it is made as soon as the ground of objection becomes

apparent. Thompson v. State, 691 S.W.2d 627, 634 (Tex. Crim. App. 1984),

cert. denied, 474 U.S. 865 (1985).

      Before making the remark to which Appellant objected and of which she

now complains, the State argued:

      What we’re asking you to do, she has forfeited the privilege to have
      any other kids to have to take care of. How can you trust her? If
      she gets a slap on the wrist and gets out, then we have to read
      about another kid that’s been hurt. It’s going to be a sad day.
      [Emphasis added.]

Appellant did not object to this remark. In substance, though, it is essentially the

same as that of which she later complained. By not objecting when the argument

was first raised, she has failed to preserve her complaint for review. Tex. R. App.

P. 33.1(a)(1); See Thompson, 691 S.W.2d at 635.


                                        11
      Further, a complaint on appeal must comport with the complaint made in

the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009) (“A complaint will not be preserved if the legal basis of the complaint raised

on appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d

459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is

preserved depends on whether the complaint on appeal comports with the

complaint made at trial.”).    To determine whether the complaint on appeal

comports with that made at trial, we consider the context in which the complaint

was made and the parties’ shared understanding at that time. Clark, 365 S.W.3d

at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena,

285 S.W.3d at 464.

      To the extent to which Appellant now complains that the trial court erred by

allowing the State to appeal to the jury to deprive Appellant of her fundamental

right to procreate, that argument does not comport with the objection Appellant

raised at trial. There, she merely argued without elaboration that the State’s

remark was not a proper plea for law enforcement. In her brief, however, she

expounds on United States Supreme Court case law and eugenics.                 That

argument was not presented to the trial court and will not be heard for the first

time on appeal. See Clark, 365 S.W.3d at 339; Agbogwe v. State, 414 S.W.3d

820, 828–29 (Tex. App.––Houston [1st Dist.] 2013, no pet.); Moreno v. State,

195 S.W.3d 321, 328–29 (Tex. App.––Houston [14th Dist.] 2006, pet. ref’d).


                                        12
      Moreover, the State’s argument was a proper response to remarks

Appellant made during her own closing argument.            A defendant in criminal

proceedings may not complain of improper argument by the prosecuting attorney

if the argument was invited or provoked by the argument of the defense. See,

e.g., White v. State, 618 S.W.2d 65, 67 (Tex. Crim. App. [Panel Op.] 1981).

Thus, a remark by the prosecuting attorney that is invited or provoked by the

argument of the opposing counsel is not erroneous even if the remark refers to a

matter outside the evidence or record. Johnson v. State, 147 S.W.2d 811, 814

(Tex. Crim. App. 1941).

      Appellant’s counsel made the following point during closing argument:

      . . . and this isn’t a child custody battle. Y’all––y’all can’t decide who
      gets custody if you wanted to. This is a case on whether she––
      and—and she is not going to get custody as––if––if you give her
      probation or you give her a short sentence. She––if she ever gets
      custody of another child, it’s going to be because she’s proven
      herself to be trustworthy enough that people will trust her, because
      she showed she wasn’t trustworthy.

      This argument implies that the jury should not consider the danger to R.S.

or another child if it decides to recommend probation or assess a short prison

sentence.   The remark reasonably invited the State’s response that the jury

should consider the future dangerousness of Appellant not only to R.S., but to

any child she might have in the future. Thus, the State’s argument was not

improper.

      Finally, any error is harmless. Improper jury argument is reviewed under a

nonconstitutional harm analysis under rule 44.2(b) of the Texas Rules of


                                         13
Appellate Procedure, and must be disregarded unless it affected Appellant’s

substantial rights. Tex. R. App. P. 44.2(b); see Threadgill, 146 S.W.3d at 666;

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert.

denied, 526 U.S. 1070 (1999). A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an

error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.”    Solomon v. State, 49

S.W.3d 356, 365 (Tex. Crim. App. 2001).

      In determining whether the appellant’s substantial rights were affected, we

consider (1) the severity of the misconduct (i.e., the prejudicial effect of the

prosecutor’s remarks); (2) curative measures; and (3) the certainty of the

punishment assessed absent the misconduct. See Martinez v. State, 17 S.W.3d

677, 692–93 (Tex. Crim. App. 2000); Mosley, 983 S.W.2d at 259.

      Given Appellant’s argument that custody of R.S. was not an issue, the

prosecutor’s remark reasonably could be read as the State’s response that the

jury should consider Appellant’s future dangerousness not only to R.S., but also

to any child she might someday have. This consideration was already on the

minds of the jurors given the seriousness of the crime, the manner in which it

was committed, and the other arguments of counsel for both sides. Therefore,

the remark prejudiced Appellant very little, if at all. As to the second factor, the


                                        14
trial court gave no curative instruction since it overruled Appellant’s objection.

But the third factor weighs heavily in favor of the State. Appellant was caught on

camera committing the crime, admitted after the fact that she did not want the

stress of having a child, and was sentenced to 25 out of a possible 99 years’

confinement.   See Tex. Penal Code Ann. §§ 12.32(a), 22.04(e) (West Supp.

2013).

      We conclude that, in the context of the entire case against Appellant, even

if the trial court erred by overruling Appellant’s objection to the State’s argument,

any error would not have had a substantial or injurious effect on the jury’s verdict

and would not have affected Appellant’s substantial rights.         See King, 953

S.W.2d at 271. We overrule Appellant’s third issue.

                                    Conclusion

      Having overruled each of Appellant’s three issues, we affirm the trial

court’s judgment.




                                              /s/ Anne Gardner
                                              ANNE GARDNER
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: July 17, 2014




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