Woman on Texas death row loses her appeal
December 10, 2009
HOUSTON - The Texas Court of Criminal Appeals
has upheld the conviction of an Arlington woman sent to death row
for the starvation death of a 9-year-old boy who weighed 35
Jurors at Lisa Ann Coleman's 2006 trial heard
testimony that Coleman beat, bound, neglected and starved Davontae
Coleman shared an apartment with the boy's mother,
Marcella Williams, who is serving life in prison.
Woman Sentenced To Death For
June 22, 2006
FORT WORTH, Texas -- An
Arlington, Texas, woman was sentenced to death Wednesday for the
starvation death of a 9-year-old boy who prosecutors say weighed
35 pounds when he died.
A jury took less than an hour
Monday to convict Lisa Ann Coleman, 30, of capital murder for her
role in the 2004 death of Davontae Williams, her girl lover's son.
"The fact that a female has
gotten the death penalty for killing a child, it's a step forward
for bringing child abuse out of the darkness of people's homes and
into the light of day," prosecutor Mitch Poe said in a report on
the Fort Worth Star-Telegram's Web site on Wednesday.
Prosecutors have said Coleman,
who shared an apartment with the boy's mother, beat, bound,
neglected and starved Williams.
Coleman's attorney Fred Cummings
argued that Coleman had not meant to starve Williams and had given
him nutrition drinks.
To sentence Coleman to death,
the jury had to determine that she would be a future danger to
society. The jury also sentenced Coleman to 99 years in prison on
a charge of injury to a child.
The boy's mother, 25-year-old
Marcella Williams, awaits a separate capital murder trial.
In the Court of Criminal
Appeals of Texas
Lisa Ann Coleman, Appellant,
The State of Texas
On Direct Appeal From Cause No. 1016470R
In the 297th Judiacial District Court
Price and Womack, JJ., concurred.
O P I N I O N
Lisa Ann Coleman was charged with capital murder and with two
counts of injury to a child committed in July 2004. Count Three,
injury to a child, was severed on April 18, 2006. On June 19,
2006, a jury convicted Coleman of capital murder in Count One.
(1) Based on the
jury's answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the
trial judge sentenced Coleman to death for Count One only.
(2) For Count
One, direct appeal to this Court is automatic.
reviewing Coleman's points of error relating to her capital murder
conviction and death sentence, we find them to be without merit.
Accordingly, we affirm Coleman's conviction and death sentence for
The jury also convicted Coleman of injury to a child in Count Two
and assessed a ninety-nine year sentence. Coleman's points of
error challenging this conviction and sentence are not before us.
(4) Therefore, we
dismiss those claims.
Sufficiency of the Evidence
On July 26,
2004, Marcella Williams, Coleman's lover, found her nine-year-old
son Davontae unconscious and called 911. While en route to
Williams's apartment, firefighter and paramedic Troy Brooks stated
that the dispatcher changed the call from "breathing difficulty"
to "full arrest." When he arrived, Davontae was lying on the
bathroom floor clad in a disposable diaper.
testified that Davontae appeared "emaciated" and looked as if he
was only three to five years old. Brooks immediately realized that
Davontae was dead; his body was already in full rigor mortis,
which usually occurs several hours after death. This "shock[ed]"
Brooks because Williams had told him that Davontae had just eaten
and thrown up and that Williams and Coleman had been washing him.
Brooks also noticed that Davontae had a few "dirty bandages" on
his arms. Vanessa Sheriff, a paramedic, testified that Williams
told her that she tried to feed Davontae Pediasure. Williams also
said that Davontae was breathing when she called 911. Sheriff
believed this statement "did not match with what [she saw] on the
bathroom floor." Both Brooks and Sheriff noticed that Davontae had
traces of yellow vomit or bile around his mouth and nose. Sheriff
believed that the appearance of vomit was consistent with the
Konzelmann conducted the autopsy. Dr. Konzelmann determined that
Davontae's death was a homicide and that the direct cause of death
was malnutrition coupled with slight pneumonia. Davontae weighed
less than forty pounds at the time of his death. Dr. Konzelmann
determined that Davontae was malnourished because Davontae's body
lacked subcutaneous fat cells. He also cited the lack of fat cells
surrounding Davontae's heart as very unusual. Dr. Konzelmann also
explained how the external injuries to Davontae's body contributed
to his death:
that some of these injuries were infected and that it's possible
that this did relate to the pneumonia that he had. Also some of
these were evidence to me that he had been bound and that this
would have prevented him from either seeking care on his own or
getting food on his own.
will depress the immune system. That is, there are cells in the
body that are designed to recognize invaders and deal with them,
and that takes energy. As someone becomes more malnourished, their
system is less able to protect themselves.
Konzelmann noted evidence indicating that Davontae had been
continuously bound. Davontae had numerous linear marks on his
wrists. Some of the marks were scarred, indicating wounds that had
healed, and some of the marks were "giant sores[s]," indicating
that they were not healing. This demonstrated a pattern of
restraint. Davontae's ankles had similar markings. Davontae's ear
had a significant wound that was beginning to heal. His lower lip
had an ulceration and a tear that would make it hard for Davontae
to eat and drink. It appeared that Davontae had chicken-noodle
soup before he died but, according to Dr. Konzelmann, "it was
inadequate, too late, and possibly too much."
Kellogg, a board-certified pediatrician and specialist in child
abuse, identified at least 250 distinct injuries to Davontae,
including cigarette or cigar burn wounds and numerous ligature
marks on his arms and legs. Kellogg described the starvation of a
child as "very rare" and "unusual." However, based on the ligature
marks, she concluded that Davontae was intentionally starved to
death. Davontae had been restrained from accessing food. Based on
a review of Davontae's medical records from December 2002, Dr.
Kellogg opined that Davontae had a "normal growth velocity" for a
child his age. This indicated that he did not suffer from a
disease that would stunt his growth. In the months before his
death, however, Davontae's weight spiked downward and he stopped
growing. The physical stress caused Davontae's hair growth to be
abnormal; he had hair growing in places where hair does not
normally grow. Such growth is typically seen in people who are
Jim Ford questioned Coleman while investigating Davontae's death.
Coleman told Detective Ford that she lived with Williams about
half of the time and with her son and mother the other half. She
used to beat Davontae with a belt but stopped in February or March
of 2004 because the beatings left welts. She stated that she and
Williams tied up Davontae on several occasions. Recalling the
night that Davontae died, Coleman stated that Williams woke her up
screaming. Williams attempted to administer CPR to Davontae, and
Coleman said that she put Davontae in a warm bath to revive him.
Coleman did not know how Davontae injured his arms and legs.
sister, Destinee, who was eight at the time, testified that
Coleman would tie Davontae up with an extension cord in the
bathroom. When Davontae was tied up, he "couldn't move around
much" and did "[n]othing."
Protective Service (CPS) Investigators Jennifer Deible and Edna
Campbell testified that Davontae was removed from Williams's home
and placed in foster care in 1999 because Coleman physically
abused him. Davontae was returned to Williams's custody about a
year later. After her arrest in this case, Coleman told the two
that she bruised Davontae by beating him with a belt in 2004. She
spoke to her mother about the incident, and her mother told her to
not to touch Davontae. She admitted that she tied up Davontae on
two occasions with clothing to keep him from hurting himself or
others. According to Campbell, Coleman said that Williams did not
want to take Davontae to the doctor because she was afraid that
the bruises and marks would prompt a doctor to call CPS. Coleman
admitted to Campbell that she had hit and pushed Davontae, causing
him to split his lip. She also told Campbell that Williams did not
want Davontae to go to school because Williams was afraid that he
would report the abuse and that school officials would call CPS.
Coleman stated that Davontae had been tied up regularly since June
and that the sore on his arm was caused by him fighting to be
released. The pantry door had a lock on the top of the door frame,
and investigators discovered a dry urine stain on the floor. But
Coleman denied locking Davontae in the pantry. Coleman also said
that Davontae had been sick for about a month before his death. He
did not eat very much when fed, and he would throw up. Coleman
stated that, in an attempt to help Davontae, she and Williams gave
him a variety of over-the-counter medicines.
Winkler, a pathologist, testified for the defense. He stated that
Davontae died from aspiration pneumonia, which "is the result of
sucking food or particles of material which don't go into the
stomach properly through the esophagus and are sucked instead into
the trachea," which leads to the lungs. Dr. Winkler noted
aspirated material in Davontae's lung and that his right lung was
twice the size of his left because of the aspirated material. Dr.
Winkler disagreed with Dr. Konzelmann's determination that the
absence of fat around Davontae's heart was significant. In his
opinion, children rarely have fat around the heart. As for the
malnutrition, Dr. Winkler agreed that Davontae was malnourished;
there was no evidence that Davontae was unable to metabolize food.
Peerwani, the Chief Medical Examiner with Tarrant County, also
examined Davontae's body during the autopsy. The State called him
to testify to rebut Dr. Winkler's testimony. He stated that a
normal person does not aspirate and die and that there was no
reason to suggest that Davontae aspirated given his medical
history. Viewing the "entire picture," Dr. Peerwani stated, "even
if he had aspirated, the pneumonia is not a very significant
component in this child's death. Perhaps the most dramatic
component is malnourishment . . . . He died because of
In points of error two and three, Coleman alleges that the
evidence supporting her conviction for injury to a child is
legally and factually insufficient. Coleman also addresses the
jury's findings of guilt for injury to a child as alleged in Count
Two. Her conviction and sentence in Count Two, however, are not
before this Court.
Points of error two and three are therefore dismissed.
In her fourth point of error, Coleman contends that the evidence
is legally and factually insufficient to support the jury's
findings that she kidnapped Davontae. Because Coleman combines
more than one legal argument in a single ground, we could reject
her claims on the ground that nothing is presented for review.
Nevertheless, we will address both of her arguments. In points of
error seven and eight, Coleman alleges that the evidence is
legally and factually insufficient to show that she intentionally
caused Davontae's death.
Under Jackson v. Virginia, when deciding whether evidence
is legally sufficient to support a conviction, we assess all of
the evidence in the light most favorable to the verdict to
determine whether "any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt."
Evidence is factually insufficient when, although legally
sufficient under a Jackson analysis, the evidence is "so
weak" that the verdict "seems clearly wrong or manifestly unjust"
or "against the great weight and preponderance of the evidence."
(8) A factual
sufficiency review is "barely distinguishable" from a Jackson
v. Virginia legal sufficiency review.
A person commits the offense of kidnapping if she intentionally or
knowingly abducts another person.
"Abduct" means to restrain a person with intent to prevent the
person's liberation, and it can be accomplished in two ways: (1)
"secreting or holding the person in a place where the person is
not likely to be found;" or (2) "using or threatening to use
"Abduct" includes two elements--an actus rea requirement
and a mens rea requirement.
Under the actus rea requirement, the defendant must have
restrained another person.
And under the mens rea requirement, the defendant must
have had the specific intent to prevent a person's liberation.
Secreting or holding another person where the person is unlikely
to be found is part of the mens rea requirement of the
Thus, the State is not required to prove that the defendant
actually secreted or held another;
(16) it must
prove that the defendant restrained the other person with the
specific intent to prevent liberation by secreting or holding the
(17) The offense
of kidnapping is legally completed when the defendant, at any time
during the restraint, forms the intent to prevent liberation by
secreting or holding another in a place where the person is
unlikely to be found.
(18) Intent may
be inferred from an accused's conduct,
remarks, and the surrounding circumstances.
Coleman argues that the evidence shows only that she tied up
Davontae for a short time with clothing and therefore nothing
established that the restraint was capable of causing death or
serious bodily injury, or that she intended to cause death or
serious bodily injury. Additionally, Coleman argues that the
evidence presented indicates only that she may have restrained
Davontae for a short time in his own home, which is where one
would expect to find a child. Finally, Coleman argues that it is
apparent that Davontae's mother acquiesced in the restraint.
First, that Williams may have acquiesced in the restraint is of no
consequence. The record shows that Williams and Coleman acted in
concert. But Coleman restrained Davontae without his consent and
did so through the use of force and intimidation.
The numerous ligatures marks themselves are evidence of force.
Destinee testified that Coleman used an extension cord to tie up
Davontae in the bathroom. And Coleman admitted that she physically
abused Davontae. Thus, there was evidence that Coleman used force
and intimidation to restrain Davontae.
Additionally, that Davontae was restrained in his own home did not
preclude the jury from inferring that Coleman intended to secret
or hold Davontae in a place where he was unlikely to be found. We
have recognized that a rational factfinder can infer the intent to
secret or hold a person in a place where that person is unlikely
to be found when a defendant isolates a person from anyone who
might be of assistance.
began first grade in 2002. Williams pulled him out of school in
mid-November, before the holidays. Before that, Davontae's
teacher, Jean Ann Stokes, noticed that Davontae had a difficult
time adapting to the classroom. He did not take non-verbal cues
from Stokes or his classmates. Stokes and the cafeteria staff
noticed that Davontae was always hungry. The cafeteria staff would
usually find extra food to give him. Stokes also noticed that
Davontae had some "markings" on his body that concerned her. She
and the school's counselor reported all of this to CPS. Davontae
spoke to a man from CPS on the phone, but Stokes could not hear
what he asked Davontae. In November, Stokes developed a plan for
Davontae to take part in an alternative program so he could learn
how school works. Before the plan could be implemented, Davontae
disappeared from school and never returned.
CPS investigators that Williams did not want Davontae to go to
school or to a doctor because she was afraid that Davontae would
report the abuse and someone would call CPS. Coleman did not defy
Williams, and the record indicates that the two acted in concert.
Destinee testified that Davontae was tied up in the bathroom.
Also, according Coleman's own statement, Davontae had been
restrained inside the home since June 2004. Further, a reasonable
jury could have inferred that the restraint began earlier.
Malnutrition, according to the State's experts, occurs over an
extended period of time.
Coleman told CPS investigators that anyone who inquired into
Davontae's whereabouts was informed that he was "with his mother's
people," even though Davontae was at home. Coleman's statement was
supported by testimony from Williams's sister. Latravier Williams
testified that Coleman and Williams came to her house with
Williams's daughters, and when she asked where Davontae was, both
Coleman and Williams told her that he was with another family
Ordinarily, it would seem counterintuitive to believe that a
child, located in the home, has been secreted or held in a place
where the child is not likely to be found. But when the evidence
shows, as it does in this case, that the perpetrator makes a
concerted effort to prevent outsiders and even family members from
looking for the child at home so as to deny access to the child,
the evidence suffices to establish the perpetrator's intention to
make the home a place where the child is not likely to be found.
Here, the evidence shows that Williams and Coleman took several
deliberate measures to deflect outsiders interested in Davontae
from looking for him at home and having access to him.
The facts and circumstances of this unusual case make it
comparable to a situation in which a perpetrator confines a child
in a hidden compartment inside the child's own home. Such a
circumstance would be more than sufficient to prove, beyond a
reasonable doubt, the requisite intent to secret or hold the child
in place where the child is unlikely to be found.
evidence is viewed in the light most favorable to the verdict, a
rational trier of fact could have found that Davontae was
kidnapped. Further, the evidence is not so weak that the jury's
determination is clearly wrong and manifestly unjust. Nor is the
jury's determination that Davontae was kidnapped against the great
weight and preponderance of the evidence. Because the evidence of
kidnapping is both legally and factually sufficient, we overrule
Coleman's fourth point of error.
Cause of Death
argues that the evidence is legally and factually insufficient to
show that she intentionally caused Davontae's death. While the
State and defense presented competing expert opinions about the
cause of Davontae's death, the jury could have inferred from the
evidence that Davontae's death was caused by malnutrition rather
than aspiration pneumonia. The jury was presented with evidence of
intentional starvation. Davontae had been healthy and growing in
1999, and his starvation was not based on metabolic factors. Dr.
Kellogg testified that there was no food matter in Davontae's
system beyond his stomach. This showed that he had not eaten
regularly. Dr. Kellogg and Dr. Peerwani concluded that Davontae
was malnourished and that an ordinary person looking at him could
tell that he desperately needed medical attention. Dr. Kellogg
testified that Davontae was restrained and kept from accessing
food for months and that he was intentionally starved.
Viewing the evidence in the light most favorable to the verdict, a
rational trier of fact could have found, beyond a reasonable
doubt, that Coleman intentionally caused Davontae's death through
Further, the evidence is not so weak that the jury's determination
is clearly wrong or manifestly unjust. Nor is the jury's
determination that Coleman intentionally caused Davontae's death
against the great weight and preponderance of the evidence.
Because the evidence that Coleman caused Davontae's death is both
legally and factually sufficient, points of error seven and eight
In point of error six, Coleman alleges that the indictment is
fundamentally defective and deprived her of due process because it
failed to allege aggravating factors that were later submitted to
the jury as special issues. Coleman also argues that the grand
jury was required to allege the specific facts legally essential
to her death sentence, including facts supporting a negative
response to the mitigation special issue. Coleman argues that
because these factors were not included in the indictment, the
indictment failed to provide notice of the State's intent to seek
the death penalty. We have previously addressed these complaints
and determined that the State is not required to allege the
special issues in the indictment.
Coleman offers no reason for us to reconsider our prior
determinations at this time. Point of error six is therefore
In her first point of error, Coleman contends that her federal and
state constitutional protections against double jeopardy were
She argues that, based on the facts and circumstances of this
case, serious bodily injury to a child is a lesser-included
offense of capital murder.
This claim is not properly before us on this appeal. Because the
remedy for any double jeopardy violation in this instance is to
set aside the injury-to-a-child conviction and sentence,
we conclude that Coleman's claim does not constitute a challenge
to her capital murder conviction and death sentence. This claim
would be properly before the court of appeals on direct appeal
from her injury-to-a-child conviction.
(30) We therefore
dismiss Coleman's first point of error.
Admissibility of CPS Statements
In point of error nine, Coleman alleges that the trial judge
abused his discretion in admitting statements she made to CPS
investigators while she was in custody. Coleman contends that the
investigators were state agents and therefore required to warn her
in compliance with Miranda v. Arizona
and Article 38.22 of the Texas Code of Criminal Procedure.
The procedural safeguards of Miranda and Article 38.22
apply to custodial interrogation by law enforcement officers or
State employment does not, by itself, make a person a state agent
for purposes of defining custodial interrogation.
types of state employees serve different roles.
(34) It is law
enforcement's job to ferret out crime, investigate its commission,
arrest the perpetrator, and gather evidence for a possible
(35) CPS workers
have a different duty--to protect the welfare and safety of
children in the community.
officers and CPS workers generally run on separate, yet parallel
are collecting information for an arrest and criminal
investigation, 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
On the other hand, if the
once-parallel paths of CPS and the police converge, and police and
state agents are investigating a criminal offense in tandem,
Miranda warnings and compliance with article 38.22 may be
examine the entire record to determine if the paths of CPS and the
police are parallel or if they have converged in a particular
Central to this evaluation are the actions and perceptions of the
police, the CPS worker, and the defendant.
The essential inquiry is whether the custodial interview was
conducted explicitly or implicitly on behalf of the police for the
purpose of gathering evidence or statements to be used in a later
criminal proceeding against the interviewee.
Deible testified that she was a CPS investigator based in Fort
Worth. Deible first spoke with Coleman on July 27, 2004, to inform
Coleman that her son Dontrell had been taken into custody and to
obtain Coleman's signature on a notice of emergency removal. CPS
was tasked with placing Dontrell in an appropriate environment,
and Deible told Coleman that she would return later to speak with
On August 3,
2004, after receiving Williams's and Coleman's statements to
police, the crime-scene report, and photographs of the crime
scene, Deible spoke with Coleman while she was being held in the
county jail. CPS investigator Edna Campbell accompanied her.
Deible testified that, although the written narrative of the visit
did not indicate it, she provided Coleman the opportunity to
decline to speak with her. According to Deible, Coleman said that
she was expecting Deible to return. Deible testified that Coleman
still wanted to speak with her, though Coleman was aware that she
was entitled to have counsel present for the interview and that
she was not required to speak with CPS investigators.
At the time
of the interview, which lasted approximately two and a half hours,
Coleman's son and Williams's other children had already been
placed in state custody. Additionally, CPS investigators had
already conducted interviews with family members. However, Deible
explained that it was necessary to gather an updated social
history from Coleman, as well as to find out "who had knowledge of
what had been going on with Davontae" and done nothing to help the
Campbell testified that, at the time of Davontae's death, she was
an investigator for CPS in the Fort Worth area. Campbell testified
that the CPS investigators had determined that while Coleman had
legal custody of her son Dontrell, he lived with Coleman's mother
and that Coleman never stayed at her mother's home. Campbell
testified that, even though the investigators gave police a copy
of their report as a courtesy, the investigators did not discuss
strategy with the police and were never asked to question Coleman.
Campbell reiterated that although police reports were available to
the CPS investigators, they had an obligation to interview Coleman
as part of their own investigation.
against Coleman on her suppression motion, the trial judge stated:
has heard the testimony and finds that the Defense has failed to
show that Ms. Deible and Ms. Campbell were agents for law
enforcement in this situation.
finds that Ms. Deible and Ms. Campbell were carrying out their
statutory duties as case workers for Child Protective Services
when they went to the Tarrant County Jail to speak with the
Defendant, Ms. Coleman. Those duties concern the custody, safety
and placement of the children who had been taken by CPS in the
best interest of the children.
finds that the aims and goals and results sought by CPS were
different from law enforcement agents. The Court finds only
minimal contact between CPS workers and the police in this case,
and that the CPS workers, Deible and Campbell, went to speak with
the Defendant, Ms. Coleman, at the Tarrant County Jail independent
workers had a copy of the statement given to police by Ms. Coleman
and a copy of the police reports, the Court finds that they were
not under the direction of the police.
It is clear
from the evidence that the CPS workers were not acting at the
direction of the police. There was no strategy discussed. The
police did not know when the workers were to talk to the
Defendant. The police did not arrange the meeting. The police did
not provide the questions to be asked. The police did not give
instructions to get certain information from the Defendant.
There is no
calculated practice between the police and the CPS workers to
invoke an incriminating response from the Defendant, and the
police were not using the CPS interview to accomplish what the
police did not already have lawfully accomplished themselves.
investigators' reasons for the interview were different from the
police, their aim and goal concerning the children. The police
were concerned with gathering information and evidence for a
criminal prosecution. There are different goals involved. The
agencies were not working together or in tandem. The paths of the
investigation did not converge. In fact, they went in different
deference to the trial judge's credibility determinations, we
conclude that the evidence shows that Deible and Campbell were not
agents of law enforcement who were required to comply with
Miranda and Article 38.22. Their purpose was to determine if
Coleman's son Dontrell could be placed with family members rather
than in foster care. Because family placement was being
considered, CPS needed to determine whether Coleman's relatives
knew about Coleman's abuse of Davontae. Both Deible and Campbell
denied having a law-enforcement purpose or acting at the direction
of the police. And there is nothing to indicate that the police
used Deible and Campbell to gather evidence against Coleman. As a
result, we cannot say that the trial judge abused his discretion
in admitting Coleman's statements to CPS. Point of error nine is
In her tenth
point of error, Coleman complains that her constitutional rights
under the Fourth, Fifth, and Sixth Amendments were violated when
Deible and Campbell were allowed to testify concerning evidence
obtained in violation of Article 700.507 of the Texas
Administrative Code and the CPS policy handbook. Article 700.507
requires that if a suspect in a child abuse case is in police
custody, the investigating CPS worker "must obtain authorization
from the investigating police officer before conducting the
interview to ensure that the alleged perpetrator's rights under
criminal law are protected."
pretrial hearing, Deible testified that she notified Sergeant Mark
Simpson on July 27, 2004, that she would be going back to
interview Coleman. According to Deible, Simpson "said that would
be fine." Campbell also testified that Simpson had been informed
and did not tell the CPS investigators not to interview Coleman.
Coleman argues that Deible and Campbell failed to safeguard
Coleman's constitutional rights. Both investigators testified that
they followed normal procedures. Coleman provides no authority to
support her contention that the procedures followed by the CPS
investigators violated her constitutional rights. Point of error
ten is overruled.
In point of error five, Coleman complains that the trial judge
erred in instructing the jury that she could be convicted as a
party to the offense although she was indicted only as a
principal. Texas law does not require that an individual be
indicted as a party; if the evidence supports a charge on the law
of parties, the trial judge may include an instruction on the law
of parties despite the lack of such an allegation in the
Point of error five is overruled.
thirteenth point of error, Coleman alleges that the trial judge
erred by authorizing the jury to find her guilty of capital murder
as a party because the party-application paragraphs did not
require jurors to find that Coleman had done anything more than
assist Williams in the underlying kidnapping. The jury charge
contains three paragraphs authorizing Coleman's conviction as a
principal. After each of these paragraphs, the jury was authorized
to convict Coleman under the law of parties:
Or, if you
find from the evidence beyond a reasonable doubt that on or about
the 26th day of July, 2004, in Tarrant County, Texas, Marcella
Williams did then and there intentionally cause the death of an
individual, Davontae Williams by [manner and means varied by
application paragraph] and the said Marcella Williams was then and
there in the course of committing or attempting to commit the
offense of kidnapping and the Defendant, Lisa Ann Coleman, acting
with intent to promote or assist the commission of the offense
encouraged, directed, aided or attempted to aid Marcella Williams
in the commission of said offense.
Though the paragraphs could have been written more clearly, they
are not erroneous. The application paragraphs create ambiguity
only when they are read in isolation. However, we do not review
charge complaints in this manner. "When we review a charge for
alleged error, we must examine the charge as a whole instead of a
series of isolated and unrelated statements."
A common-sense and practical reading of the application paragraphs
in light of the preceding abstract portions of the charge defining
capital murder and the law of parties leads us to conclude that
the party-application paragraphs were not defective.
portion of the charge correctly defined capital murder as follows:
"A person commits the offense of capital murder if he commits
murder as defined above and he intentionally commits the murder in
the course of committing or attempting to commit the offense of
kidnapping." This definition directed jurors to render a finding
on both requisite elements of capital murder--intentional murder
and the underlying offense of kidnapping. The preceding abstract
portion of the charge also correctly defined the law of parties,
and the definition applied only to the capital murder charge:
A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or both. A person is
criminally responsible for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.
"offense" throughout this definition refers to capital murder. So
when the law -of-parties definition is read in conjunction with
the definition of capital murder, it is clear that a finding on
both murder and kidnapping was required.
With this in
mind, we turn to the party-application paragraphs. The phrase "the
offense" referred to the phrase "said offense" appearing at the
end of the paragraphs, and the phrase "said offense" referred to
capital murder--murder plus kidnapping. A reading of the charge in
its entirety resolved any potential ambiguity in the
party-instruction application paragraphs. We presume that the jury
followed the instructions in their entirety; therefore, we
conclude that the complained-of instructions were not erroneous.
In point of
error twelve, Coleman contends the trial judge violated her
due-process rights by refusing to give the requested "complete"
instruction on parole eligibility during the punishment phase.
Coleman argues that, because the instruction given may have
erroneously led the jury to believe she could be released before
serving a minimum of forty years, the jury was not adequately
instructed and her due process-rights were violated.
Coleman sought to instruct the jury that:
[Coleman] becomes eligible for parole, the Board of Pardons and
Paroles may not authorize her release to parole unless every board
member receives a written report from the Department of Criminal
Justice on the probability that [Coleman] would commit an offense
after being released on parole, and at least two thirds of the
membership votes to release her to parole.
was denied, and the jury was instructed according to Article
37.071, Section 2(e)(2)(B):
instructed that, under the law applicable in this case, if the
defendant is sentenced to imprisonment in the Institutional
Division of the Texas Department of Criminal Justice for life, the
defendant will become eligible for release on parole, but not
until the actual time served by the defendant equals 40 years,
without consideration of any good conduct time. It cannot
accurately be predicted how the parole laws might be applied to
this defendant if the defendant is sentenced to a term of
imprisonment for life because the application of those laws will
depend on decisions made by prison authorities, but eligibility
for parole does not guarantee that parole will be granted.
We have held that parole is not a proper matter for jury
consideration and that a trial judge does not abuse his or her
discretion by refusing to allow voir-dire inquiries regarding
However, Article 37.071 now provides that a jury may be instructed
on a capital defendant's eligibility for parole.
But this provision is narrowly drawn and does not render every
aspect of parole law an issue for jury consideration.
The provision expressly discourages speculation about the parole
process by providing that application of the parole laws cannot be
accurately predicted "because the application of those laws will
depend on decisions made by prison and parole authorities."
The 1999 amendments could have been drafted more broadly to give
jurors more information, but the Legislature chose not to do so.
Accordingly, the trial judge did not err in denying Coleman's
requested instruction. Point of error twelve is overruled.
In point of error fifteen, Coleman challenges the legal
sufficiency of the evidence supporting the jury's determination
regarding the future-dangerousness issue. A jury may consider a
variety of factors when determining whether a defendant will pose
a continuing threat to society.
We must view all of the evidence in the light most favorable to
the jury's finding and determine whether, based on that evidence
and reasonable inferences therefrom, a rational jury could have
found beyond a reasonable doubt that the answer to the future-
dangerousness issue was "yes."
show that Coleman was involved with the Williams family as early
as 1995. In 1999, Coleman was the subject of a CPS abuse case
involving Davontae. Davontae was removed from the home at that
time because he was being abused by Coleman and his mother failed
to protect him from the abuse. Davontae was returned to the family
home only when Williams agreed not to let Coleman live in the home
and CPS caseworkers were certain that Coleman was not living in
the home. CPS records indicated, however, that at the time of
Davontae's death, Coleman lived in the home more than fifty
percent of the time and was considered by CPS as a care giver.
admitted to CPS investigators that she had pushed and hit
Davontae, causing him to fall and split his lip, but she insisted
that she had not beaten Davontae since February 2004. Coleman's
own mother had told Coleman to leave Davontae alone, and her
sister had advised her to get help for Davontae. Coleman also
admitted to tying up Davontae with clothing at least twice, but
insisted that it was for his own protection because he wandered at
night. Davontae's sister, Destinee, told the jury that Coleman
kept Davontae tied up in the bathroom and whipped him with
extension cords. Destinee also told the jury that Coleman beat her
and her sister with belts, clothes hangers, and extension cords as
identified 250 distinct injuries suffered by Davontae, including
cigar or cigarette burns and ligature marks on his arms and legs,
many of which were old enough to have formed scars. Dr. Konzelmann
testified about a significant injury to Davontae's lip that would
have, before it healed, made it difficult for him to eat and
nearly impossible to drink. Davontae also had a deformity to one
of his ears that was caused by long-term traumatic injury and
ligature scarring on his penis caused by attempts to prevent
Davontae from wetting his bed.
And as shown
above, there was ample evidence of intentional starvation.
Davontae had been healthy and growing in 1999; his starvation was
not based on metabolic factors. The presence of depleted fat cells
showed that he had received adequate nutrition at some time. Dr.
Kellogg testified that there was no food matter in Davontae's
system beyond his stomach, indicating that he had not eaten
regularly. The jury heard from Dr. Kellogg that Davontae's death
occurred over a number of months.
also heard from Carol Bowdry, Coleman's own expert, that
Davontae's injuries were torturous. Bowdry agreed on
cross-examination that Coleman systematically and chronically
abused Davontae. She testified that Davontae "went through agony."
Bowdry also testified that abusers such as Coleman "may intend for
the child to go through an awful lot of pain and suffering," but
are surprised when a child dies from the abuse. Coleman's second
expert, Dr. Mary Connell, testified on cross-examination that even
someone like Coleman who suffered abuse as a child would know that
the systematic abuse of Davontae was wrong.
presented evidence of Coleman's prior felony convictions for
burglary of a habitation and possession of a controlled substance.
On cross-examination, defense expert Dr. Paula Lundberg-Love
admitted that Coleman had revealed to her a conviction for
unlawfully carrying a weapon when she was seventeen in 1993, an
arrest for evading arrest in 1995, and a parole violation in 1997
that resulted in her return to prison.
jury could determine from this evidence that, beyond a reasonable
doubt, there was a probability that appellant would commit
criminal acts of violence in the future so as to constitute a
continuing threat to society. Point of error fifteen is overruled.
Mitigation Special Issue
In point of error sixteen, Coleman argues that the evidence is
insufficient to show an absence of mitigation to support the
jury's negative finding on the mitigation special issue. We have
said, however, that we will not review the jury's finding
regarding the mitigation special issue for sufficiency of the
evidence because the determination as to whether mitigating
evidence calls for a life sentence is left to the discretion of
Point of error sixteen is overruled.
In point of error eleven, Coleman alleges that the mitigation
special issue was unconstitutionally vague and indefinite in
violation of the Fourteenth Amendment and the Texas Constitution
for failing to provide a definition of "mitigating evidence." In
point of error nineteen, Coleman alleges the trial judge deprived
her of her rights to due process and the protection against cruel
and unusual punishment by rejecting her request that the jury be
instructed on the definitions of "criminal acts of violence" and
"probability." We have previously held that a trial judge need not
define the terms used in the special issues because the jury is
presumed to understand them without instruction.
(54) Points of
error eleven and nineteen are overruled.
Constitutionality of Death-Penalty Scheme
In her fourteenth point of error, Coleman complains that the Texas
death-penalty scheme is unconstitutional because the State is not
required to prove the absence of sufficient mitigating
circumstances beyond a reasonable doubt. We have addressed and
rejected this and similar arguments in the past.
Point of error fourteen is overruled.
In point of error seventeen, Coleman complains that she was
deprived of due process under the Fifth, Eighth, and Fourteenth
Amendments because the State has unfettered discretion in seeking
the death penalty. We have previously addressed and rejected this
(56) Point of
error seventeen is overruled.
In point of error eighteen, Coleman complains that she was
deprived of her rights to due process and the protection against
cruel and unusual punishment because the jury was instructed that
at least ten "no" votes were required to return a negative answer
to the mitigation special issue. Coleman also complains that
jurors were not instructed regarding the consequences of their
deliberations. We have previously addressed these issues and find
no reason to do so again. Point of error eighteen is overruled.
In point of error twenty, Coleman challenges the constitutionality
of Article 37.071 Section 2(b)(1) of the Texas Code of Criminal
Procedure. Coleman argues that Article 37.071 diminishes the
State's burden of proof because it allows the jury to answer the
future- dangerousness special issue "yes" based on a probability
standard, rather than a beyond a reasonable doubt standard. We
have previously rejected this and similar arguments.
Point of error twenty is overruled.
In point of error twenty-one, Coleman alleges that the use of
pancuronium bromide in the chemical mixture used to execute
prisoners in Texas violates the prohibition against cruel and
unusual punishment. Coleman's execution is not imminent. The
method by which the lethal injection is currently administered is
not determinative of the way it will be administered at the time
of her execution.
Thus, her claim is not ripe for review.
Point of error twenty-one is overruled.
Based on the
foregoing, we affirm the judgment of the trial court as to Count
One. We also dismiss Coleman's claims challenging her conviction
under Count Two.
December 9, 2009
DO NOT PUBLISH
1. Tex. Penal Code Ann. §
2. Tex. Code Crim. Proc.
Ann. art. 37.071 § 2(g).
3. Id. at § 2(h).
4. See Callins v. State,
726 S.W.2d 555, 558 (Tex. Crim. App. 1986) (holding that appeals
of non-capital convictions, even when obtained in the same trial
as a murder conviction in which the death penalty was assessed,
are properly reviewed by the intermediate court of appeals on
5. See Callins, 726
S.W.2d at 558.
6. Tex. R. App. P. 38.1(e),
7. 443 U.S. 307, 319 (1979)
(emphasis in original).
8. Watson v. State,
204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006).
9. Lancon v. State,
253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
10. Tex. Penal Code Ann. §
11. Tex. Penal Code Ann. §
12. Brimage v. State,
918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994).
13. Id. at 476.
15. Id. at 475.
16. Id. at 476.
18. Id. at 475.
19. See Turner v. State,
600 S.W.2d 927, 929 (Tex. Crim. App. 1980).
20. See Tex. Penal
Code Ann. § 20.01(1)(B)(i).
21. See Tex. Penal
Code Ann. § 20.01(1)(A).
22. Fann v. State,
696 S.W.2d 575, 576 (Tex. Crim. App. 1986); Laster v. State,
275 S.W.3d 512, 522 (Tex. Crim. App. 2009).
23. Laster, 275
S.W.3d at 521 ("Secreting or holding another where he or she is
unlikely to be found is part of the mens rea requirement
of the offense--not the actus reus.") (citing Brimage
v. State, 918 S.W.2d 466, 476 (Tex. Crim. App. 1994)).
24. See id. at
25. Tex. Penal Code Ann. §
26. Russeau v. State,
171 S.W.3d 871, 885-86 (Tex. Crim. App. 2005); Rayford v.
State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003).
27. U.S. Const. amend. V;
Tex. Const. art. I, § 14.
28. Tex. Code Crim. Proc.
Ann. art. 37.09(1).
29. Bigon v. State,
252 S.W.3d 360, 373 (Tex. Crim. App. 2008).
30. See Callins,
726 S.W.2d at 558.
31. 384 U.S. 436 (1966).
32. Wilkerson v. State,
173 S.W.3d 521, 527 (Tex. Crim. App. 2005).
33. Id. at 528.
37. Id. at 529.
39. Id. at 530.
41. Id. at 531.
42. Marable v. State,
85 S.W.3d 287, 287-88 (Tex. Crim. App. 2002).
43. Dinkins v. State,
894 S.W.2d 330, 340 (Tex. Crim. App. 1995) (citing Holley v.
State, 766 S.W.2d 254, 256-57 (Tex. Crim. App. 1989);
Inman v. State, 650 S.W.2d 417, 419 (Tex. Crim. App. 1983)).
44. See Dinkins,
894 S.W.2d at 339-40 (held that the application paragraph that
failed to allege the culpable mental state for the second murder
was not erroneous because the abstract portion of the charge
defined murder, which included the culpable mental state).
45. Tex. Penal Code. Ann. §
46. Feldman v. State,
71 S.W.3d 738, 757 (Tex. Crim. App. 2002); Wright v. State,
28 S.W.3d 526, 537 (Tex. Crim. App. 2000); see also Hankins v.
State, 132 S.W.3d 380, 384 (Tex. Crim. App. 2004).
47. Hankins, 132
S.W.3d at 385.
51. Wardrip v. State,
56 S.W.3d 588, 594 (Tex. Crim. App. 2001); see also
Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).
52. Ladd v. State,
3 S.W.3d 547, 557-58 (Tex. Crim. App. 1999).
53. Green v. State,
934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996); Colella v. State,
915 S.W.2d 834, 895 (Tex. Crim. App. 1995).
54. Blue v. State,
125 S.W.3d 491, 504-05 (Tex. Crim. App. 2003); Martinez v.
State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996); Garcia
v. State, 887 S.W.2d 846, 859 (Tex. Crim. App. 1994);
Earhart v. State, 877 S.W.2d 759, 767 (Tex. Crim.
55. Perry v. State,
158 S.W.3d 438, 446-48 (Tex. Crim. App. 2004); Blue, 125
S.W.3d at 500-01.
56. Perry, 158
S.W.3d at 446-47; Blue, 125 S.W.3d at 500-01.
57. Prystash v. State,
3 S.W.3d 522, 536 (1999); McFarland v. State, 928 S.W.2d
482, 519 (1996); Lawton v. State, 913 S.W.2d 542, 558-59
58. Robison v. State,
888 S.W.2d 473, 481 (Tex. Crim. App. 1994); see also Rayford
v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003);
Kemp v. State, 846 S.W.2d 289, 308-09 (Tex. Crim. App. 1992).
59. Gallo v. State,
239 S.W.3d 757, 780 (Tex. Crim. App. 2007).
Lisa Ann Coleman