In the Court of Criminal Appeals of Texas
KENISHA ERONDA BERRY, Appellant
THE STATE OF TEXAS
On Direct Appeal from Cause No. 89,642 in the 252nd
Johnson, J., delivered the opinion of the Court in
which Price, Womack, Holcomb, and Cochran, JJ., joined. Hervey, J.,
filed a dissenting opinion in which Keller, P.J., Meyers and Keasler,
O P I N I O N
Appellant was convicted in February 2004, of
capital murder. Tex. Penal Code § 19.03(a). Based on the jury's
answers to the special issues set forth in Texas Code of Criminal
Procedure Article 37.071, §§ 2(b), (e), the trial judge sentenced
appellant to death. Art. 37.071, § 2(g). (1) Direct appeal to this
Court is automatic. Art. 37.071, § 2(h). We have reviewed appellant's
nine points of error. We affirm the trial court's judgment, but reform
the sentence to life imprisonment.
STATEMENT OF FACTS
Appellant was indicted for the murder of an
individual under six years of age. The evidence at trial showed that
in the early morning hours of November 29, 1998, Roy Black discovered
the victim's body while he and his wife, Ima, were looking for
aluminum cans in a dumpster at an apartment complex in Beaumont,
Texas. Roy found the deceased male infant inside a trash bag with duct
tape over his mouth. His arms were secured across his chest with duct
tape and there was fecal matter inside the trash bag. Ima alerted the
police and named the infant "Baby Hope."
The case remained unsolved until the summer of
2003, when Debbie Beavers of the Jefferson County Sheriff's Department
was investigating another case involving appellant. During the course
of the investigation, appellant took Beavers to the dumpster where
Baby Hope had been found. Beavers brought this to the attention of
Beaumont police officer John Boles, who had appellant's fingerprints
compared to those found on the duct tape and trash bag. A latent palm
print on the trash bag matched appellant's right palm. A latent
fingerprint on a piece of duct tape matched appellant's left index
finger. DNA testing of the victim's blood and appellant's oral swabs
indicated a 99.98% probability that appellant was the mother of the
On June 27, 2003, Child Protective Services (CPS)
worker Tracy Rideaux met with appellant, who was in jail on another
charge. At that time, appellant had an infant daughter named Paris,
who was in the care of CPS. She also had a nine-year-old daughter
named Jasmine, a seven-year-old daughter named Keerstan, and a
three-year-old son named Joskin. Rideaux testified that appellant's
infant daughter was fathered by a man named Leonard Carrier and her
three older children were fathered by a man named Joskin Love. At the
first jail meeting, Rideaux and appellant discussed the removal of
Jasmine, Keerstan, and Joskin, and the potential for a family
placement. Rideaux met with appellant in jail again on July 10, 2003,
after appellant had been charged with capital murder in the death of
her son Malachi, known to authorities as Baby Hope. Rideaux asked
appellant if her family knew anything about Malachi or other hidden
pregnancies, because their knowledge would affect the placement of
appellant's children. Appellant told Rideaux that "she knew how to
hide a pregnancy" and her weight fluctuated a lot. She stated that
"her family had absolutely nothing to do with Baby Hope or what was
going on." She revealed that she gave birth to Malachi at home in her
apartment, that it was an "easy delivery," and that he was "fine" when
he was born. She went to the store and purchased a bottle and some
formula after his birth. Her other children were with a relative at
the time of his birth, and when the children returned home, she
explained that "she was keeping a friend's baby." She did not give
Rideaux any details about the duct tape other than acknowledging that
she had duct tape "lying around the house." She did not confess that
she killed Malachi , but stated that she borrowed her grandmother's
car, placed the infant, "which was already inside the trash bag," in
the trunk, and transported him to a dumpster without anyone's
knowledge. She stated that "the baby was not kicking or moving" when
she put him in the dumpster.
Appellant testified at trial that she did not kill
her baby. She knew that she was pregnant in 1998, but she did not know
how far along she was in her pregnancy. The father of the baby was a
man named Nicholas Beard. She did not tell her family or anyone else
about her pregnancy. She gave birth at home by herself and named the
infant Malachi. He appeared to be healthy when he was born, and she
fed him milk from a bottle. His nose started running the next day, and
she went to the store that morning to buy milk. When she returned from
the store, he was still asleep on the bed in her bedroom. She lay on
the couch to watch television and later checked on him because she was
concerned that he had not yet awakened. When she went into the
bedroom, he was "limp" and was not moving or breathing. She realized
that he was dead , but did not call for help because she was "scared"
and did not know "if it was against the law to have a baby at home."
She put duct tape over his arms because they were stiff and sticking
out and she "wanted them in front of him." She put duct tape over his
mouth because it bothered her that his mouth was open. She left her
apartment with Malachi in a bag and later placed him in a dumpster.
The prosecutor questioned appellant on
cross-examination regarding her infant daughter Paris. Appellant
acknowledged that she hid her pregnancy with Paris, but avoided
answering the prosecutor's questions about whether she had abandoned
Paris on the side of a road.
Forensic pathologist Tommy Brown had performed the
autopsy on Baby Hope and estimated that he was two to five days old.
Duct tape had been used to cover his mouth and to constrain his arms
around his abdomen, and he had been placed inside a plastic trash bag.
His stomach contained a "milk-like product," which indicated that he
had been fed before death, and there was fecal matter inside the
plastic trash bag. He had "petechiae of the pleural surfaces of the
lung," which was consistent with oxygen deprivation. The combination
of being duct taped and covered with a plastic trash bag was also
consistent with oxygen deprivation. Brown observed no indications of
an infection or sudden-infant-death syndrome. He determined that the
infant "died from asphyxia due to smothering," and he ruled the death
a homicide. Brown opined that the infant was still alive when he was
placed in the plastic trash bag, and "as the baby died, then there was
a large release of fecal material from the rectum." The lividity on
the anterior and posterior sides of the body led him to conclude that
the infant was lying on his stomach when he died and that after he was
discovered he was turned over and placed on his back for a short
period of time.
Defense expert Stephen Pustilnik, a forensic
pathologist, testified that he reviewed Brown's autopsy report and the
photographs and microscopic slides that were taken at the autopsy. He
observed "multiple areas of meconium (2) aspiration" in the
microscopic slides of the victim's lungs, and he criticized Brown for
failing to include an assessment of the microscopic slides in his
autopsy report. He believed that the infant released meconium from his
bowels while experiencing fetal distress prior to birth, which later
caused "a significant pneumonia enough to explain this child being
very sick and sick enough to die." He also observed petechiae on the
surface of the infant's lungs, but stated this was a "nonspecific
finding" that "should never be used as proof of anything." He
testified that the duct tape on the infant's mouth would not
necessarily cause asphyxia because most babies are "obliga[te] nose
breathers." However, he acknowledged that the plastic trash bag could
have caused asphyxia. He did not think that the fecal matter inside
the plastic trash bag was indicative of the time of death because
defecation could have occurred either at or after the time of death,
nor did he think that the infant was struggling in the bag when the
fecal matter was released from his rectum because the feces was
confined to his buttocks, lower back, and "the back of the foot that
was resting in it because the knee was flexed up and the foot was in
the feces." He disputed that the lividity on the body necessarily
indicated that the infant died on its stomach because "[t]here are
always exceptions to this rule." Pustilnik could not specifically
conclude what caused the death of the infant. He acknowledged the
possibility of homicide and asphyxia, but testified that the "child
could have died naturally prior to being placed in the bag with the
tape on it." He had "two good guesses" as to why the infant died: "One
is natural, one is homicide." He testified that "it's just as likely
that this child died of a natural cause as it is that it died of a
Defense expert Carl Hunt, a medical doctor
specializing in pediatrics and neonatology, testified that he reviewed
the autopsy report and accompanying photographs. He testified that the
duct tape on the victim's mouth "would not be suffocating to this
infant" because "young infants prefer to breathe through their noses."
He believed that the fecal material inside the plastic trash bag was
insignificant because "the release of fecal material could have
occurred at any time." He agreed that petechiae on the infant's lungs
could have developed due to oxygen deprivation, but stated that
petechiae are "not proof of any particular mode of death" and are
"very common in autopsies of young infants who die in unexplained
situations." Hunt "could not reach a conclusion as to how or why this
baby died" until he spoke to Pustilnik, who informed him that he had
discovered the presence of meconium in the microscopic slides of the
infant's lungs. After Pustilnik told him this , Hunt concluded that
"this infant died of natural causes related to birth asphyxia and
meconium aspiration syndrome, in other words, lung failure."
The state recalled Brown after the testimony of
Pustilnik and Hunt. Brown disagreed with Pustilnik's findings of
pneumonia or infection. He testified that he specifically looked at
the victim's lungs during the autopsy.
Whenever I looked at the lungs, the alveolar spaces
were open. There were a few squamous cells, which comes from the
amniotic fluid within the alveolar spaces. There was meconium that was
described earlier. It has a yellow brown pigment effect. So, I did not
realize there was any of that within the lungs. A pneumonia- you have
to have neutrophils, which are white blue cells for bacterial
infection or you have lymphocytes, which indicates a viral infection.
The baby had neither of those. I cannot call this a pneumonia.
Brown continued to believe that the cause of death
was "asphyxia due to smothering and a homicide."
SUFFICIENCY OF THE EVIDENCE AT GUILT / INNOCENCE
In point of error one, appellant alleges that the
evidence is factually insufficient to support her conviction for
capital murder. Evidence may be factually insufficient if: "1) it is
so weak as to be clearly wrong and manifestly unjust or 2) the adverse
finding is against the great weight and preponderance of the available
evidence." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
In Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006), we
recently reiterated that the evidence, though legally sufficient, is
factually insufficient if it is so weak that the jury's verdict seems
clearly wrong and manifestly unjust, or whether, considering
conflicting evidence, the jury's verdict, though legally sufficient,
is nevertheless against the great weight and preponderance of the
evidence. Such a factual sufficiency review requires the reviewing
court to consider all of the evidence. Marshall v. State, 210 S.W.3d
618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict
occurs where the jury's finding is manifestly unjust, shocks the
conscience, or clearly demonstrates bias. Sells v. State, 121 S.W.3d
748, 754 (Tex. Crim. App. 2003); Santellan v. State, 939 S.W.2d 155,
164 (Tex. Crim. App. 1997).
Appellant argues that "the overwhelming evidence
presented at the trial indicated that the child died of natural causes
rather than a homicide," pointing to the testimony of defense experts
Pustilnik and Hart. Pustilnik, however, could not pinpoint the cause
of the victim's death. He acknowledged the possibility of homicide and
asphyxia, but testified that the infant could have died from pneumonia
following meconium aspiration. He ultimately concluded that "it's just
as likely that this child died of a natural cause as it is that it
died of a homicide." Hunt initially could not determine the cause of
death based on his own review of the autopsy report and photographs.
He was able to reach a conclusion only after talking to Pustilnik and
hearing his description of the microscopic slides.
Appellant attacks Brown's conclusion, based on the
presence of fecal matter, that the infant was alive when placed inside
the plastic trash bag. Pustilnik and Hunt disagreed with Brown's
conclusion, but acknowledged the possibility that defecation could
have occurred at the time of death. Appellant argues that the infant
could not have been smothered by the duct tape on his mouth because
Pustilnik and Hunt testified that most infants are obligate nose
breathers. Pustilnik, however, acknowledged that the plastic trash bag
could have caused asphyxia.
Brown's conclusion that the infant did not have
pneumonia was supported by other evidence at trial. On voir dire
examination by the state, Pustilnik testified that "a child with this
much pneumonia" could be "irritable," "hard to take care of," and
"whiny." However, appellant told Rideaux that the infant was "fine"
when he was born. She also testified at trial that he appeared to be
healthy at birth, and she described no symptoms of illness other than
a runny nose.
The experts' disagreement regarding the cause of
death does not make the evidence insufficient in this case. The
evidence supporting the verdict was not so weak as to be clearly wrong
and manifestly unjust, nor was the adverse finding against the great
weight and preponderance of the available evidence See Marshall, 210
S.W.3d at 625-26; Watson, 210 S.W.3d at 414-15. Point of error one is
TESTIMONY OF CPS WORKER
In point of error two, appellant argues that the
trial court erroneously admitted the testimony of CPS worker Tracy
Rideaux regarding statements appellant made to her in jail. Appellant
complains that she received none of her statutory or constitutionally
required warnings before making her oral statements to Rideaux.
Appellant contends that Rideaux was a state agent and was thus
required to warn her in compliance with Miranda v. Arizona, 384 U.S.
436 (1966), and Article 38.22. (3)
The procedural safeguards of Miranda apply to
custodial interrogation by law enforcement officers or their agents.
Wilkerson v. State, 173 S.W.3d 521, 527 (Tex. Crim. App. 2005). State
employment does not, by itself, make a person an agent of the state
for the purpose of defining "custodial interrogation." Id. at 528.
Different types of state employees serve different roles. Id. It is
law enforcement's job to ferret out crime, investigate its commission,
arrest the perpetrator, and gather evidence for a possible
prosecution. Id. CPS workers have a different duty: to protect the
welfare and safety of children in the community. Id. Police officers
and CPS workers generally run on separate, parallel paths. Id. at 529.
While police are collecting information for an
arrest and criminal prosecution, CPS workers are investigating to find
safe housing and protection for abused or neglected children. When a
state-agency employee is working on a path parallel to, yet separate
from, the police, Miranda warnings are not required.
On the other hand, if the once-parallel paths of
CPS and the police converge, and police and state agent are
investigating a criminal offense in tandem, Miranda warnings and
compliance with article 38.22 may be necessary.
Id. Courts must examine the entire record to
determine if the paths of CPS and the police are parallel or if they
have converged in a particular case. Id. at 530. Central to this
evaluation are the actions and perceptions of the police, the CPS
worker, and the defendant herself. Id. The essential inquiry is: "Was
this custodial interview conducted (explicitly or implicitly) on
behalf of the police for the primary purpose of gathering evidence or
statements to be used in a later criminal proceeding against the
interviewee?" Id. at 531.
Rideaux testified that she was a CPS foster-care
supervisor in Jefferson County. When Rideaux first met with appellant
in jail, appellant had an infant daughter who was in the care of CPS
and three other children who needed "placement." When the prosecutor
asked Rideaux what appellant said to her during their meeting,
appellant objected to any "custodial statements made under questioning
by the state" and requested a hearing on the admissibility of the
statements. Outside the presence of the jury, Rideaux testified that
she met with appellant in jail on June 27, 2003, and July 10, 2003.
She denied questioning appellant at the direction of law enforcement.
She testified that her purpose for interviewing appellant was "[t]o
discuss the removal reasons, as well as to obtain information
regarding the children's health, social and educational history, also
to obtain social history from her regarding her family and to discuss
possible options for relative placement." She needed to know if
appellant's family had any knowledge of what she had done because
there were family members who were willing to care for the children.
She testified that "n foster care we
have limited contact as far as with law enforcement." She told
appellant that she was not there to act on behalf of law enforcement.
She did not give appellant Miranda warnings because she "was not there
doing an investigation." After hearing her testimony, the trial court
made findings on the record.
I find that the
statements made by [appellant were] made freely and voluntarily. I
also find that while [appellant] was in custody that these statements
were not pursuant to a custodial interrogation, as it was not in
connection with a criminal investigation. Therefore, I'm going to
allow the testimony.
testified before the jury that appellant had been charged with the
capital murder of Malachi by the time Rideaux met with her in jail on
July 10, 2003. Rideaux told appellant that the CPS placement decision
would be affected if her family had any knowledge about Malachi or
other hidden pregnancies. Appellant said that "she knew how to hide a
pregnancy" and that her family had no knowledge of Malachi . She
explained that she gave birth to him at home in her apartment, that it
was an "easy delivery," that he was "fine" when he was born, that she
had duct tape "lying around the house," and that she transported him
in a trash bag to a dumpster without anyone's knowledge.
Rideaux was not an
agent of law enforcement who was required to comply with Miranda and
Article 38.22. Rideaux's purpose was to find a placement for
appellant's children. Since a family placement was being considered,
Rideaux needed to determine if appellant's relatives knew about the
death of Malachi or the abandonment of appellant's infant daughter.
Rideaux clearly denied having a law-enforcement purpose or acting at
the direction of the police. There is nothing in the record to
indicate that the police used Rideaux to gather evidence to be used
against appellant in this capital-murder prosecution. Appellant did
not testify regarding her perceptions of her encounters with Rideaux,
but Rideaux testified that she told appellant that she was not there
to act on behalf of law enforcement. The trial court did not abuse its
discretion in admitting Rideaux's testimony regarding appellant's
statements. Point of error two is overruled.
In points of error
three and four, appellant complains about the admission of extraneous
offenses at the guilt phase of the trial. She argues that the
admission of evidence of her "hidden pregnancies" and the abandonment
of Paris violated Texas Rule of Evidence 404(b). In point of error
five, appellant asserts that the admission of this evidence violated
Texas Rule of Evidence 403 because "[t]he prejudicial effect of the
subject extraneous acts outweighed any probative value."
testified about appellant's hidden pregnancies when the prosecutor
questioned her about her meeting with appellant in jail on July 10,
Q. What did you tell
her was the concern that your agency had?
A. Regarding the
Q. Of the older
three children, yes.
A. Our concerns were
that we had the pending capital murder case regarding Baby Hope. At
that point in time, she . . . had given birth to several children. Her
mother only had knowledge of one of those births. We didn't know what
information or what part, if any, that the family had regarding Baby
Q. And what would
that - - if the family knew about Baby Hope or other pregnancies that
were hidden, would that affect your decision regarding placement?
A. Yes, it would.
Q. Were there other
pregnancies that were hidden?
Q. Did you discuss
that with Ms. Berry?
Your Honor, I have to object to that. It's referring to extraneous
matters not admissible in the trial of this cause.
Q. Did you discuss
that with [Appellant]?
A. Yes, I did.
Q. And did she tell
you whether or not she hid any of her other pregnancies?
A. She stated she
knew how to hide a pregnancy.
Rule 33.1 of the
Texas Rules of Appellate Procedure provides that an objection must be
timely and sufficiently specific to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context.
Appellant's objection to "extraneous matters," although not as precise
as it could be, was sufficient under the circumstances to apprise the
trial court that she was objecting under Texas Rule of Evidence
404(b). Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.
1990). However, the Rule 404(b) objection was not timely because it
was made after Rideaux had already testified that there were other
hidden pregnancies. Appellant also failed to preserve her Rule 403
claim because she did not further object on that basis. Id. at 388.
The prosecutor later
questioned appellant about the abandonment of her infant daughter:
Q. Who's your fifth
Q. Paris. Who's
A. Leonard Carrier.
Q. What did you do
Your Honor, I have to object to any reference to any extraneous matter
that's not appropriate for this jury.
submit 404(b), Your Honor, to show intent.
Q. What did you do
A. (No response)
And Your Honor, we would also object under 404(b) that the prejudicial
effect outweighs any probative value to that particular thing.
THE COURT: That's
exchange, appellant refused to give any testimony about her
abandonment of Paris, despite the prosecutor's repeated questions and
the trial court's instructions to answer them. Even though defense
counsel's objection was timely and sufficiently specific to preserve
the alleged Rule 404(b) and Rule 403 errors, appellant gave no
testimony on this particular topic.
testified, the prosecutor re-called Rideaux to ask her about
appellant's abandonment of Paris:
Q. Ms. Rideaux, did
you talk to [appellant] regarding the incident concerning her child,
Your Honor, could we, just for the purposes of the record, have a
running objection to any testimony concerning extraneous offenses?
THE COURT: Yes, sir.
[DEFENSE COUNSEL]: I
assume the ruling of the Court is the same?
In this instance,
appellant made an objection that was timely and sufficiently specific
to preserve her Rule 404(b) challenge to Rideaux's subsequent
testimony. After the trial court overruled appellant's objection,
Rideaux testified that appellant told her "she had placed [Paris] out
on Hillebrandt Road." Appellant had previously stated that someone
helped her, but then changed her story, telling Rideaux that she acted
alone. Rideaux testified that appellant said that "she knew how to
hide a pregnancy and that her weight fluctuated a lot," and she
appeared to be proud of that fact.
While evidence of
other crimes, wrongs or acts is not admissible "to prove the character
of a person in order to show action in conformity therewith," it may
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Tex. R. Evid. 404(b). This list is
illustrative, not exhaustive. Johnston v. State, 145 S.W.3d 215, 219
(Tex. Crim. App. 2004). For example, extraneous-offense evidence may
be admissible when a defendant raises an affirmative defense or a
defensive issue that negates one of the elements of the crime. Id.
The state argues
that the subsequent hidden pregnancy and abandonment of Paris showed
that appellant "was keeping the children fathered by Joskin Love, and
discarding the children fathered by other men," thus demonstrating her
motive and her intent to kill Malachi . Appellant's intent was a
disputed issue in this case. Appellant's defensive theory was that the
baby died of natural causes. She denied killing her child, and the
defense and state experts disagreed about the cause of death.
Appellant testified that Jasmine, Keerstan, and Joskin were fathered
by Joskin Love. She acknowledged that Malachi and Paris were fathered
by two different men, and she "kept to [herself]" with regard to those
pregnancies. Rideaux then confirmed that appellant "knew how to hide a
pregnancy" and abandoned Paris on the side of a road shortly after
birth. Rideaux's testimony was admissible to prove appellant's motive
and her intent to kill Malachi . The trial court's decision to admit
this evidence was within the zone of reasonable disagreement and was
not an abuse of discretion. Santellan, 939 S.W.2d at 169. Points of
error three, four, and five are overruled.
In point of error six, appellant claims that the
prosecutor misstated the evidence in his closing argument at the guilt
phase of the trial. Appellant specifically complains about the
following portion of the prosecutor's argument.
[PROSECUTOR]: Did you hear [appellant] when she
testified? She used the words "that baby." She didn't use Malachi. She
didn't tell you, "I loved Malachi." She didn't say any of that.
[DEFENSE COUNSEL]: Your Honor, I do have to object
that it misstates the testimony because I think she referred to it as
"my baby" throughout.
THE COURT: Overruled. The jury will be instructed
to recall the testimony.
Appellant contends that she never referred to her
child as "that baby" when she testified at trial. The state concedes
on appeal that "[t]he prosecutor did misstate how Appellant had
testified," but argues that the prosecutor "was simply mistaken" and
that any error was harmless.
There are three factors to consider when assessing
the impact of the harm arising from jury argument error: (1) the
severity of the misconduct (the magnitude of the prejudicial effect of
the prosecutor's remarks); (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge);
and, (3) the certainty of conviction absent the misconduct (the
strength of the evidence supporting the conviction). Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Threadgill v. State, 146
S.W.3d 654, 666-67 (Tex. Crim. App. 2004).
The prosecutor's statement does not amount to
severe misconduct. He did not repeat the statement after appellant
objected to it. The trial court overruled appellant's objection, but
instructed the jury "to recall the testimony." Rideaux specifically
testified at trial that appellant referred to the victim as "that
baby" during their interviews. The prosecutor's argument focused on
other, more damning, evidence, such as appellant covering the victim
with duct tape and a plastic bag, disposing of him in a dumpster, and
later abandoning another newborn on the side of a road. The state
concedes this error, but the error did not affect appellant's
substantial rights, and we must therefore disregard it. Tex. R. App.
P. 44.2(b). Point of error six is overruled.
In point of error seven, appellant again complains
of improper jury argument at the guilt phase. Appellant asserts that
the prosecutor improperly struck at appellant over the shoulders of
defense counsel when he argued that defense counsel told an expert
witness that "we're looking for a defense." The prosecutor made the
statement at issue during his closing argument.
[PROSECUTOR]: . . . The defense controlled how much
information got to both of those experts. You heard [the prosecutor]
go, "What did you examine? Did you ever examine the victim, or did you
ever look at the pictures? Did you ever contact any of the witnesses?
Did you contact C.P.S.? Did you talk to the family? Did you talk to
the defendant?" Things that Dr. Pustilnik said that you should do. . .
. He violated his own protocol. He told you what his agenda was from
[Pustilnik] goes, "My first impression was
homicide." But then the defense tells him, "Well, we're looking for a
defense. We're looking-and the defendant's told us that-"
[DEFENSE COUNSEL]: Your Honor, I have to object.
It's outside the record, and we never told any expert witness we're
looking for a defense. It's outside the record and simply not true,
THE COURT: Overruled.
[PROSECUTOR]: You can ask for Dr. Pustilnik's
testimony. Dr. Pustilnik said, in talking to [defense counsel], the
defendant told them that the baby had died before she put him in the
bag. So, they were looking for a defense. He knew what he needed to do
before he came to one of his conclusions. And what did he do? Did he
contact, did he talk to Dr. Brown? The answer's "no." Did he contact
any of the people involved? No. Did he talk to the defendant? No. Did
he talk to the family? And God bless, they've had to go through this.
Permissible jury argument generally falls into one
of four areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) an answer to the argument of opposing counsel;
or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d 205,
213 (Tex. Crim. App. 2000). We have consistently held that argument
that strikes at a defendant over the shoulders of defense counsel is
improper. Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999);
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Even
assuming that appellant's objection was sufficient to preserve her
claim on appeal, her claim fails because the prosecutor's argument was
a reasonable deduction from the evidence.
Pustilnik initially told the prosecutor on
cross-examination that his opinion about the cause of death was based
on his review of the autopsy, not on what defense counsel told him.
When defense counsel later questioned him on re-direct examination,
the following exchange occurred:
Q. Now, the first time you and I met, do you
remember what you told me about the cause of death in this case?
A. Oh, yes I do.
Q. What did you tell me?
A. I said it looks like a homicide to me.
* * *
Q. But you wanted to see what?
A. I wanted to see the autopsy slides, I wanted to
see the autopsy photographs, I wanted to see the rest of the case.
Q. And why did you want to see that?
A. Because you told me that the child had-the
statement-can I say that-that the theory was that the child was dead
prior to being put in the bag. And therefore, since that was the
theory, it would have been my job, if this were my case, to prove or
disprove that the child could have died prior to being put in that
bag. So, I wanted to see everything that was done to look for a
natural disease that either proved natural disease was there or proved
natural disease was not there.
The prosecutor revisited this matter again on
Q. Dr. Pustilnik, you said that the defense counsel
contacted you and they wanted to show that the child was already dead
when it was placed in the bag? Is that what you said?
A. No, they said that one of the explanations
offered by the defendant was that the child was already dead when it
was placed in the bag, yes.
The prosecutor was directly referring to
Pustilnik's testimony when he made the statement at issue during
closing argument. It is a reasonable deduction from Pustilnik's
testimony as a whole that defense counsel told Pustilnik that at least
one defensive theory was "that the child was dead prior to being put
in the bag" and that Pustilnik looked at the autopsy with this
potential alternative in mind. The prosecutor's statement, although
aggressive, fell within the bounds of permissible jury argument and
did not strike at appellant over the shoulders of defense counsel.
Point of error seven is overruled.
SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT
In point of error eight, appellant argues that the
evidence is legally insufficient to support the jury's affirmative
finding on the future-dangerousness special issue. We view the
evidence in the light most favorable to the jury's finding and
determine whether any rational trier of fact could have found beyond a
reasonable doubt that there is a probability that appellant would
commit criminal acts of violence that would constitute a continuing
threat to society. Jackson v. Virginia, 443 U.S. 307 (1979). If, given
all of the evidence, a rational jury would have necessarily
entertained a reasonable doubt as to the probability of appellant's
dangerousness in the future, we must reform the trial court's judgment
to reflect a sentence of life imprisonment. Holberg v. State, 38
S.W.3d 137, 139 (Tex. Crim. App. 2000); Article 44.251(a).
The state presented evidence at punishment
detailing appellant's abandonment of her infant daughter Paris nearly
five years after the death of Malachi. Andrew Durham testified that he
heard a baby crying as he was walking along Hillebrandt Road in
Jefferson County between 6:30 a.m. and 7:00 a.m. on June 6, 2003. He
found Paris lying on her back in a ditch approximately fifteen feet
from the road. She was naked and had fire ants all over her body.
Durham alerted his wife, who was a nurse, and she took Paris to the
hospital. Paris had extensive ant bites and her eyes were swollen
shut. She needed a blood transfusion and experienced seizures in the
hospital. Tracy Rideaux testified that CPS was appointed as Paris's
managing conservator and that she was later placed in foster care.
Rideaux reported that Paris still has scars from the ant bites on her
face, arms, and stomach.
Investigator Beavers testified appellant first told
her that she wanted Joskin Love to take her to the hospital, but he
instead drove them out to Hillebrandt Road and placed Paris on the
ground. When Beavers informed appellant that Love had an alibi, she
admitted that Love was not involved. She said that she was sorry for
what she had done, but she did not express remorse about the child.
Beavers testified, "Her biggest concern when she was crying the first
time I talked to her was that she was worried about what everybody was
going to think and what everybody would say and how mad her momma was
going to be at her for coming and talking to us."
Rideaux testified that appellant's oldest two
children, Jasmine and Keerstan, had been in counseling since their
mother had been jailed on capital-murder charges. Jasmine had been
diagnosed with post-traumatic-stress disorder. Rideaux testified that
Jasmine had expressed fear and "wondered why her mom had [done] this
to Baby Hope and Paris and why she had not killed them."
Defense counsel called appellant's cousin, aunt,
and mother to testify on appellant's behalf at punishment. They
testified that appellant was a shy and respectful child and a loving
and caring mother to Jasmine, Keerstan, and Joskin. They testified
that her behavior regarding Malachi and Paris was totally out of
character. Appellant's cousin reported that appellant had previously
been employed in a fast food restaurant, a prison, and a child-care
facility. Appellant's aunt and cousin acknowledged that appellant had
hidden all but one of her pregnancies from her family. They testified
that appellant's children loved her, and that it would negatively
impact them if she received a death sentence.
Defense counsel presented the testimony of Dr. Oney
Fitzpatrick, a developmental psychologist who had done a social study
of appellant's background. He reported that she was a shy and socially
isolated child and was cooperative, yet unmotivated, at school. She
was a "good worker" when she was employed at the Texas Department of
Corrections, but eventually had to leave that job because of
"absenteeism." Fitzpatrick thought that appellant appeared to be
clinically depressed, a condition that could cloud her judgment and
affect her decision-making processes. Appellant expressed love for
Jasmine, Keerstan, and Joskin and denied killing Malachi . She told
Fitzpatrick that when she first became pregnant she worried that she
would disappoint her mother and grandmother because she had failed to
live up to their expectations. Fitzpatrick believed that there were
mitigating circumstances in that appellant "was under an extreme
amount of pressure," and her "sociocultural background [did] not
promote reaching out to others for assistance."
Defense counsel also presented the testimony of
psychiatrist Dr. Edward Gripon, who testified that appellant had been
diagnosed with clinical depression in jail and had been placed on
antidepressants. He suspected that appellant had been depressed for
"quite some time," but had never sought treatment. He testified that
clinical depression could impair appellant's judgment and
decision-making processes. Appellant denied killing Malachi, but
expressed remorse for what had happened. She told Gripon that she had
abandoned Paris because she could not care for her and wanted to sever
her relationship with Paris' father. Gripon thought that there was a
low risk of future dangerousness because the incidents involving
Malachi and Paris were unique and that there was only a remote
possibility that appellant would become pregnant in prison. Given
those circumstances, he saw little likelihood of appellant being a
danger to society in the future.
Finally, the state called rebuttal witness Linda
Ament, the former warden of a women's prison who had been employed by
the Texas Department of Criminal Justice (TDCJ) for twenty-three
years. She testified that female prisoners had become pregnant after
having sexual relations with male prison guards or other staff. She
acknowledged that "the only way prison staff would know that
somebody's pregnant is either that somebody tells them or they're able
to see that that person's pregnant." On cross-examination by defense
counsel, Ament testified that she had encountered over 3,000 female
inmates in her years of employment at TDCJ. During that time, she had
been personally aware of two inmates who became pregnant and had heard
about two to three others. She acknowledged that there was an
extremely low likelihood that a female inmate would become pregnant
while in prison and that it was a "possibility" rather than a
"probability" that such a situation would occur.
Appellant argues that there was insufficient
evidence of future dangerousness because she had no prior criminal
background, and the defense experts testified that she had a low risk
of future dangerousness. Appellant also relies on Ament's testimony
that she knew about only five instances of pregnancy in the 3,000
female inmates she had encountered in her twenty-three years at TDCJ.
Appellant asserts that "imple math establishes that the likelihood of
appellant becoming pregnant in prison . . . would be 5 out of 3,000,
or .16%." Appellant argues that the defense experts established she
"had been a threat only to two of her own children, a threat which
[would be] virtually eliminated by a sentence of life imprisonment
throughout her child-bearing years."
At punishment, the state argued to the jury that
the death penalty should be assessed.
You've heard about future danger and you heard Dr.
Gripon, who was hired by the defense and he said that she's not a
future danger because the victim pool was low because in prison she's
not going to have access. Remember, we talked to you about what
society was. We talked about it for a long time. . . . Imaginary
circle-what does society mean to you folks? You-all agreed it was
anyone around her. And we all asked you, when you're asking yourself
that question, you have to assume whether she's a future danger
sitting there as she sits today, if she was out among us, among other
children, is she a future danger. Everything Dr. Gripon said was based
on one premise, that she's locked up and that somebody, not her,
somebody else, would intervene to protect that child. Remember, he
said that she'll be locked up. Well, that assumes the system is
locking her up. . . . That assumes that she's locked up.
I submit to you the way you answer this question is
if she was out and she's among her children or she has another child,
do you think she's a future danger to that child. . . . Some people
are just evil. (Emphasis added.)
The state's argument clearly asked the jury to
assume that appellant would be living in the free world. Our precedent
states clearly that "society," as used in Art. 37.071, includes both
prison and the "free world," and the jury must consider dangerousness
in that context. See, e.g., Muniz v. State, 851 S.W.2d 238, 250 (Tex.
Crim. App. 1993)(state required to prove that "appellant would, more
likely than not, commit violent criminal acts in the future so as to
constitute a continuing threat to society whether in or out of
prison."); Jones v. State, 843 S.W.2d 487, 495 (Tex. Crim. App.
1992)("'society' includes not only free citizens but also inmates in
the penitentiary."). The state's argument, therefore, was a
misstatement of the special issue (4) in that the argument told the
jury that the only society it should consider was the free world. The
jury had just convicted appellant of capital murder. The only two
possible sentences for such a conviction are death and life in prison;
there is no probation for capital murder, no release to the free world
in the near term. Appellant was, without doubt, going to be "locked
up," either on death row or in the general prison population for a
minimum of forty calendar years. The state's argument therefore both
misstated the law and misdirected the attention of the jury away from
a determination of whether she would be a continuing danger in the
actual circumstances in which she would be living (prison) and toward
a determination of her continuing dangerousness in circumstances in
which she most assuredly would not be (the free world). (5)
We hold that the state did not meet its burden of
proving beyond a reasonable doubt that there is a probability that
appellant, if allowed to live, would commit criminal acts of violence
in the future so as to constitute a continuing threat, whether in or
out of prison. Holberg, 38 S.W.3d at 138-9. Appellant murdered one
child and abandoned another, but defense witnesses testified that
these two incidents were out of character and that she was a loving
and caring mother to her other three children. Appellant's expert
witnesses opined that she was depressed and under extreme stress when
she killed Malachi and, five years later, abandoned Paris. She had no
criminal record, and the state presented no other evidence of violence
in her past. All of her offenses involved a pregnancy, but testimony
from both defense and state witnesses showed that her potential for
becoming pregnant while incarcerated would be "extremely low."
Further, appellant was in her twenties when she was convicted of
capital murder. If she received a life sentence and were paroled forty
years later, she would be in her sixties and likely beyond her
childbearing years and thus could not repeat such an offense.
We rarely reverse a judgment on a claim of
insufficient evidence to support a finding that the defendant will be
a danger in the future, and we do not do so lightly. In this case, we
understand the jury's decision in response to the death of one infant
and the abandonment of another, even if that decision is not supported
in law. (6) The state's evidence, which consisted of appellant's
murder of Malachi, her subsequent abandonment of Paris, her lack of
remorse for these crimes, and the unlikely possibility that she might
become pregnant in prison, does not prove beyond a reasonable doubt
that there is a probability that she would commit criminal acts of
violence that would constitute a continuing threat to society. While
the state quite certainly proved that appellant showed a pattern of
keeping the children sired by one man and discarding the children
sired by other men, it did not prove that any other stimulus led to a
violent or dangerous act in any other context. It did not show that
she had harmed or attempted to harm any of her other children, an
unrelated child, or any other person. Further, the state's final
argument exacerbated the heavy emotional impact of the offense by
inviting the jury to use an improper standard in its consideration of
The evidence indicates that appellant has been
dangerous only toward those of her own children whose existence she
wanted to hide from her favored mate, that there is a very low
probability that, if sentenced to life in prison, she will have any
more children, and that therefore it is unlikely that she would be a
danger in the future. Point of error eight is sustained.
Because a rational jury would have necessarily
entertained a reasonable doubt as to the probability of appellant's
future dangerousness, we affirm the judgment of conviction and reform
the trial court's judgment to reflect a sentence of imprisonment for
life. Because this holding affects only the death penalty and any
other points of error relative to the jury's findings on the issue of
punishment, appellant's ninth point of error, in which she claims that
"[t]he evidence was insufficient to support the negative answer to the
special issue regarding mitigating circumstances," is moot.
The judgment, as reformed, is affirmed.
Delivered: May 23, 2007
1. Unless otherwise indicated, all references to
Articles refer to the Texas Code of Criminal Procedure.
2. The meconium is the first fecal excretion of a
3. Appellant also claims that the admission of
Rideaux's testimony violated her rights under the Texas Constitution.
Because appellant does not provide separate authority or argument for
her state constitutional claim, we do not address it. Heitman v.
State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991).
4. Code Crim. Proc. Art. 37.071, §2 (b)(1):
"whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
5. Children who kill their parents cannot commit
that offense again, but such persons may also be shown to have violent
tendencies toward persons other than their parents. If no such
tendencies are shown, a rational jury would be justified in finding a
lack of future dangerousness. A middle-aged serial killer of children
is not subject to the "aging out" of that predilection, but remains
dangerous to children regardless of time spent in prison or age at the
time of release. (There is also no mandatory minimum term and such
persons are, at least in theory, eligible for parole in fewer than
forty calendar years.) That is not the case here. Appellant has been
shown to pose a danger only to her own children. She will, without
doubt, reach menopause and be unable to bear more children before she
has served the minimum of forty calendar years and has passed the age
6. The state repeatedly described appellant as
evil, a powerful word. The jury may well have agreed with that
assessment, but "just evil" does not equate with "a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Robert Hanssen, an FBI
agent, and Aldrich Ames, a CIA counter-intelligence officer, both of
whom spied for Russia, are likely considered "evil" by many persons,
but they have never been accused of committing criminal acts of