      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00234-CR



                                   Rebecca Hewett, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
         NO. CR-09-0817, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Rebecca Hewett of intentionally or knowingly causing

bodily injury to her son and sentenced her to ten years’ imprisonment. On appeal, Hewett argues that

the evidence is insufficient to support the conviction because the child’s injury was a result of

reasonable discipline and because there was no evidence that she intended the resulting injury. She

also argues that the jury charge was erroneous. We affirm the judgment of conviction.


                                        Factual Summary

               In early May 2008, Hewett spanked R.L., her four-year-old son, with a rubber flip-

flop shoe.1 Although he gave conflicting testimony and said that he had not been entirely honest in


       1
          The facts are known to the parties, and we therefore will not recite them in great detail in
this opinion. See Tex. R. App. P. 47.1 (appellate court opinions should be as “brief as practicable”),
47.4 (memorandum opinions should be “no longer than necessary to advise the parties of the court’s
decision and the basic reasons for it”).
his statement, Jamie Hewett, Hewett’s husband and R.L.’s stepfather, told the police that he was

alarmed enough by the “bad welps” inflicted on R.L. that he arranged for R.L. and his younger

brother to stay with his mother or sister “until I could figure something out.” Jamie also told the

police that in the past, Hewett had “slapped [R.L.] to the floor with her open hand” and that he told

her “to never do that again.” Jamie’s mother called Child Protective Services and reported that

Hewett had abused the child. The State introduced into evidence photographs taken shortly after the

spanking that show “deep bruising,” red marks or welts, and abrasions on R.L.’s back, buttocks, and

upper legs, as well as a “raw area on his buttocks that looked like it could be weeping or a little bit

damp.” R.L.’s father testified that Jamie’s mother sent him the same photographs shortly after the

spanking and that he then sought and obtained custody of R.L.

               The investigating detective testified that based on her study of the photographs,2

R.L.’s injuries were the result of “repeated blows with significant force,” not reasonable discipline.

She said, “In my opinion, I believe that it took repeated blows to inflict the deep bruising. I’ve seen

some redness, some purplish bruises, but to make this deep of an imprint, I think it took repeated

blows. And to me that’s—she knew what she was doing. She absolutely knew that this was going

to hurt and hurt badly.” Hewett testified that she spanked R.L. three times in an effort to discipline

him and that his bottom was red immediately after the spanking but faded throughout the day. She

denied that there were any marks on his back later in the day and testified that R.L. was not the child

in the photographs.


       2
         The detective did not receive the report of the May 2008 spanking until sometime in 2009.
She said that kind of reporting delay is unusual but not unheard of, and explained that R.L. had
moved to Mississippi shortly after the spanking occurred and was not brought back to Texas so that
he could be interviewed until more than a year later.

                                                  2
                                    Sufficiency of the Evidence

                In her first two points of error, Hewett contends that the spanking “did not cross the

line into unreasonable discipline” and that a rational jury could not have determined that the force

she used was unreasonable.3 She notes that R.L. did not require medical intervention and that the

State did not put on medical evidence about the degree of his injuries and asserts that the State did

not prove who took the photographs or when they were taken. We disagree.

                Jamie Hewett told the police that he sent the children to stay with his family because

he needed to “figure something out” after Hewett spanked R.L. and left “bad welps” on his back and

buttocks. R.L. testified that his mother spanked him with a rubber flip-flop and that it hurt. He also

testified that she later denied it and asked who had told him to tell lies and that he was upset by that

because he knew she was not telling the truth. R.L.’s father testified that Jamie’s mother sent him

the photographs of R.L.’s injuries shortly after the spanking, the investigating detective determined

that the photographs were taken one day after the spanking, and the photographs themselves carry

a date stamp reading “05/04/2008.” The photographs show significant discoloration and bruising

on R.L.’s back, buttocks, and upper legs, and the detective described a “weeping” area and abrasions.

                Hewett’s justification for the spanking was that she was using the force she believed

was reasonably necessary to discipline R.L. However, the State was required not to refute that

justification but only to prove the elements of the offense beyond a reasonable doubt. See Goulart

v. State, 26 S.W.3d 5, 10 (Tex. App.—Waco 2000, pet. ref’d). The jury could have concluded that


       3
           The penal code allows a parent to use force against a child “to the degree the actor
reasonably believes the force is necessary to discipline the child.” Tex. Penal Code § 9.61(a)(2),
see also id. § 1.07(a)(42) (defining “reasonable belief”).

                                                   3
the photographs were taken shortly after the spanking and depicted the injuries suffered by R.L.

as a result of Hewett’s actions. The jury was not obliged to believe Hewett’s testimony that she

intended only to discipline R.L. and did not intend to inflict serious bruising or other injury. Instead,

the jury could have determined (1) that the injuries R.L. suffered were the result of greater force than

a reasonable person would have believed necessary to reasonably discipline him, see Tex. Penal

Code §§ 1.07(a)(42) (defining “reasonable belief”), 9.61(a)(2) (explaining when parent is justified

using force against child), 22.04(a) (elements of injury to a child), and (2) that Hewett knew the level

of force she was using to spank R.L. would cause or was likely to cause him bodily injury. See

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Tex. Penal Code § 6.03

(person acts intentionally if it is her “conscious objective or desire” to cause result; person acts

knowingly if, based on circumstances, she is aware that conduct is likely to cause result). We overrule

Hewett’s first two points of error.


                                             Jury Charge

                The penal code defines “reasonable belief” as “a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor.” Tex. Penal Code § 1.07(a)(42).

In her third point of error, Hewett argues that the charge did not tell the jury that it must view the

situation from Hewett’s circumstances, and that the jury was therefore given the wrong standard to

assess the reasonableness of her actions.4 We disagree.




        4
        Hewett did not object to the charge, and therefore would only be entitled to reversal if the
charge was erroneous to a degree that caused her “egregious harm.” Neal v. State, 256 S.W.3d 264,
278 (Tex. Crim. App. 2008).

                                                   4
                 The jury charge explained that a parent has the right to use reasonable discipline;

that use of force against a child is justified if the parent reasonably believes the force is necessary

to discipline the child; that the use of force is not justified by a parent’s subjective belief but only

when “a reasonable person would have believed the force is necessary, which is an objective

standard”; and that “‘[r]easonable belief’ means a belief that would be held by an ordinary and

prudent man in the same circumstances as the actor.” Although those instructions and definitions

were not combined into one paragraph, they were set out in a list format in the first two sections of

the charge, not buried deep in the charge or surrounded by confusing or incorrect language. There

was no error in the charge. We overrule Hewett’s third point of error.


                                             Conclusion

                 Having overruled Hewett’s three points of error, we affirm the trial court’s judgment

of conviction.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Goodwin and Field

Affirmed

Filed: August 15, 2013

Do Not Publish




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