DONALD D. SPENCER, JR., Appellant. THE STATE OF TEXAS, Appellee APPELLANT'S BRIEF

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1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS ATDALLAS, TEXAS 5th Court of Appeals FILED: 4/26/11 14:00 Lisa Matz, Clerk DONALD D. SPENCER, JR., Appellant vs. THE STATE OF TEXAS, Appellee FI:LED IN Court of Appeals APR Lisa Matz Clerk, 5th District On appealfrom Criminal District Court No. 6 ofdallas Countv. Texas In Cause l'vo. F/ X APPELLANT'S BRIEF Counsel ot Record Lynn Richanlson Chief Public Defcndct Dallas County, Texas Katherine A. Dt ew Assistant Public Defendet State Bar No Riann C. Moore Assistant Public Defender State Bat Number: Frank Crowley Courts Building 133 ~. Riverfront Boulevard, LB-2 Dallas, Texas (214) (plzvne) (21-n (fax). 1/!omey., tor Appellant 8

2 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS ========--~= DONALD D. SPENCER, JR., Appellant vs. THE STATE OF TEXAS, Appellee On appeal ji-om Criminal District Court No. 6 of Dallas Counzy, Texas In Cause No. FJ X APPELLANT'S BRIEF Counsel of Record Lynn Richardson Chief Public Defender Dallas County, Texas Katherine A. Drew Assistant Public Defender State Bar No Riann C. Moore Assistant Public Defender State Bar Number: Franl{ Crowley Courts Building 133 N. Riverfront Boulevard, LB-2 Dallas, Texas (214) (phone) (214) (fax) Attorneysfor Appellant 8

3 LIST OF PARTIES APPELLANT Donald D. Spencer, Jr. APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Matt Arnold 8750 N Central Expressway Ste 1850 Dallas, Texas STATE'S ATTORNEY AT TRIAL Tom Nowak Assistant District Attorneys Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT'S ATTORNEY ON APPEAL Katherine A. Drew and Riann C. Moore Dallas County Public Defender's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas STATE'S ATTORNEY ON APPEAl.. Craig Watkins (or his designated representative) Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas

4 TABLE OF CONTENTS LIST OF PARTIES... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 The trial court erred by finding Appellant guilty of intentional injury to a child... 5 PRAYER... 9 CERTIFICATE OF SERVICE

5 INDEX OF AUTHORITIES Cases Aldrich v. State, 104 S.W.3d 890 (Tex. Crim. App. 2003)... 7, 8 Bowden v. State, 166 S.W.3d 466 (Tex. App.- Fort Worth 2005, pet. ref d)... 6 Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006)... 7 Lee v. State, 21 S.W.3d 532 (Tex. App.- Tyler 2000, pet. ref d)... 6 McGill v. State, 200 S.W.3d 325 (Tex. App.- Dallas 2006, no pet.)... 7 Moon v. State, 572 S. W2d 681 {Tex. Crim. App. 1978)... 7 Pitts v. State, 916 S.W.2d 507 (Tex. Crim. App. 1996)... 7 Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008)... 7 Statutes TEX. CODE CRIM. PROC. art (3)... 7 TEX. PENAL CODE TEX. PENAL CODE 22.04(a)... 6 TEX. PENAL CODE 22.04(e)... 6, 8 TEX. PENAL CODE 6.03(a)... 6 TEX. PENAL CODE 6.03(b)... 6 TEX. PENAL CODE 6.03( c)... 6 IV

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Donald Dean Spencer, Jr., and submits this brief on appeal from a conviction for injury to a child in the Criminal District Court No. Six of Dallas County, Texas, the Honorable Janine Howard, judge presiding. STATEMENT OF THE CASE Appellant was charged with injury to a child in violation of TEX. PENAL CODE (CRl: 2). Appellant entered an "open" plea of guilty to this offense, judicially confessed to the offense as charged in the indictment, and was subsequently sentenced to ten years' imprisonment. (CRl: 9-11, 12). Judgment was entered on July 12, (CRl: 12). Appellant gave timely notice of appeal. (CRl: 16). ISSUE PRESENTED Point of Error The trial court erred by finding Appellant guilty of intentional injury to a child when the proper verdict was a conviction for the lesser included offense of reckless injury to a child. STATEMENT OF FACTS On January 30, 2010, six-year-old Kathlina Sherman, hereinafter "the complainant," was admitted to Children's Medical Center in Dallas, Texas, suffering from a closed head injury which resulted in a subarachnoid hemorrhage to the left temporal area. (State's Exhibit 2). The child was up and about the next day. (RRl: 120). By the time of trial, she was healthy. (RRl: 67). While her mother believed that she was not quite "one hundred percent," the child's grandmother testified that she appeared normal in all respects. (RRl: 68, 90).

7 The complainant's injuries occurred during a hectic time in the household that Appellant, the complaint's mother, April Sherman, and their three daughters, shared in Appellant's parent's home. 1 (RRl: 36). Both Appellant and Sherman testified that the complainant did not want her mother to go to work and was very fussy. (RRl: 40, 42, 45, 113). Indeed, her mother was frustrated enough by her behavior to "pop" her on the "butt." (RRl: 71; State's Exhibit 3). Sherman did not see her daughter injured. (State's Exhibit 3). She testified that she heard her daughter cry out "Mommy, Mommy, Mommy," then heard a thump. (RRl: 45, 48). When she went into the bedroom, the complainant was lying on the floor. (RRl: 48-49). According to Sherman, Appellant originally told her that he did not know how the child got hurt, but later said he had pushed the complainant. (RRl: 53, 59, 74). Sherman testified that one of her other daughters, five-year-old Rachel, said that "Daddy picked up sister by her throat and slammed her down." 2 (RRl: 60). This version was repeated by the detective who testified at trial. (RRl: 11, 31, 33). Appellant, testifying in his own behalf, admitted that his actions caused the complainant's injuries. (RR1: ). Appellant testified that the complainant would not stop crying. (RR1: ). Frustrated, he grabbed her by her shirt and pushed her; the child fell and her head hit the bedpost. (RR1: ; see also RRl: 128). Appellant admitted that he shoved the complainant with some force. (RRl: 114). He denied that he 1 Appellant was the biological father of Sherman's youngest daughter but not her two older daughters. (RRl: 35-36, 118). The complainant was Sherman's oldest daughter. (RRl: 35). 2 Appellant testified that he did not see Rachel in the room at the time the complainant was injured. (RR1: ). 2

8 ever grabbed her by the neck, stating that he only grabbed her shirt. (RRl: 122, 123, 126, 128, 129). When Appellant realized that the complainant was injured, he was scared. (RR1: 115). Appellant never intended for the child to get hurt at all, much less seriously injured. (RRl: 117, 121, 127, 129, 131). When the child woke and said she needed to throw up, Appellant told her ')ust throw up all over me. I don't care about the clothes or the carpet. If you got to throw up, throw up." (RRl: 115). He offered to let complainant go to work with him at a pizza place where she could make pizza. (RR 1 : 116). The child, who was in and out of consciousness, exhibited fairly normal and responsive behavior for a period of time, at one point even asking for ice cream, which she was given. (RRl: 116). Appellant was concerned; he had always heard that a person with a head injury needed to be kept awake. (RRl: 116). He and Sherman would revive her with water and eventually took her for a drive, hoping the fresh air would help. (RRl: 117). When it became more difficult to wake the child, Appellant called a neighbor who told him to take the complainant to the hospital immediately. (RRl: ). Appellant admitted that he was not originally forthcoming with the police when he was questioned at the hospital. (RR1: 118, 130, 135). He explained that he was scared and ashamed. (RR1: 118, 135). He went to his church the next day and spoke with his pastor who, after hearing Appellant's version of events, called one of the detectives. (RR1: 119). After hearing Appellant's story, the detective told him, "You are more of a man to do this than what I've seen a lot of people do." (RRl: 120 3

9 Testimony was adduced as to Appellant's mental state after the complainant was injured. According to Sherman, he was upset and crying during the time that the complainant originally regained consciousness and the time they took her to the hospital. (RRl: 53). He showed remorse at the hospital. (RRl: 73). Indeed, it was Appellant who eventually called a neighbor and received advice that the complainant needed to go to the hospital immediately. (RR1: 55). Appellant again wept the next day when he made his confession to a detective. (State's Exhibit 4). He repeatedly denied that he had any intention of injuring the complainant. (RRl: 117,121, 130, 131). He was deeply remorseful for his actions. (RRl: 131 ). All defense witnesses agreed that Appellant was not generally a violent person. (RR1: 85, 101, 108). Sherman testified that, except for this single incident, Appellant had been a good father to Sherman's daughter. (RRl: 81). The only time anyone had seen Appellant violent was one time when he threw Sherman to the ground. 3 (RRI: 76, 86, 92). SUMMARY OF ARGUMENT The trial court had the authority, despite Appellant's plea of guilty and judicial confession, to find Appellant guilty of the lesser included offense of reckless injury to a child. In light of the evidence which refuted Appellant's confession, the trial court should have exercised its discretion and rendered a verdict of reckless injury to a child. The 3 Appellant had a pending misdemeanor case for this action and had attended BIPP classes, which he successfully completed. (RRI: , ). Indications from this record are that the misdemeanor case had not resulted in a final conviction. (RR I: , 136). 4

10 judgment should be reformed to reflect a conviction for reckless injury to a child and this case remanded for a new punishment hearing. ARGUMENT Point of Error, Restated The trial court erred by finding Appellant guilty of intentional injury to a child when the proper verdict was a conviction for the lesser included offense of reckless injury to a child. The indictment in the case at bar charged Appellant with a first degree felony of knowing and intentional injury to a child. (CRl: 2). Appellant signed a judicial confession, which tracked the language of this indictment exactly. (CRl: 11 ). Yet Appellant testified, repeatedly, that he never intended to injure the complainant, much lesscauseseriousinjurytoher.(rrl: 117,121,127,129, 131). Appellant testified as to how the complainant was injured: Kathlina was crying and I was under a lot of stress, a lot of pressure. She wouldn't be quiet. I grabbed her by the shirt, and I was telling her to stop, "Stop crying. Why are you crying? Stop crying. There is no reason to cry." And she kept trying to pull away from me. And I just got angry and pushed her. I didn't realize I pushed her that hard. She hit the bedpost. She fell on the floor. I was in shock. (RRl: ; see also RRl: 128). Appellant admitted that he shoved the complainant with some force. (RRl: 114). He denied, however, that he ever grabbed her by the neck, stating that he only grabbed her shirt. (RR1: 122, 123, 126, 128, 129,). He did not see the other child, Rachel, in the room. (RR1: ). Appellant's trial testimony in this regard was consistent with the confession he made to a detective after conferring with his 5

11 pastor. (State's Exhibit 4). No other witness could attest that the injuries to this child were intentionally inflicted. In order to prove an intentional injury, the State had to prove that Appellant knowingly or intentionally injured the complainant. Under the general definitions in the Penal Code, a person acts "intentionally," or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CoDE 6.03(a). A person acts "knowingly" with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE 6.03(b). Injury to a child is a result-oriented offense. The general definitions of "intentionally" and/or "knowingly" do not apply to "result-oriented" offenses. Consequently, the State must prove not only that the defendant engaged in conduct with the requisite criminal intent, but that the defendant caused the result with the requisite criminal intent. Bowden v. State, 166 S.W.3d 466, 470 (Tex. App. - Fort Worth 2005, pet. ref d); Lee v. State, 21 S.W.3d 532, 540 (Tex. App.- Tyler 2000, pet. ref d). By contrast, a person acts recklessly with respect to the result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur. TEX. PENAL CODE 6.03( c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. /d. Reckless injury to a child is a lesser-included offense of intentional injury to a child. TEX. PENAL CODE 22.04(a), (e) (providing that intentional injury to a child is 6

12 punishment as a first degree felony while reckless injury to a child is punished as a second degree felony); TEX. CODE CRIM. PROC. art (3) (providing that an offense is a lesser-included offense of a charged offense if it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission); see also Guzman v. State, 188 S.W.3d 185, 190 (Tex. Crim. App. 2006) (holding that a reckless mens rea is a less culpable state of mind than that of an intentional mens rea). The only proof that the child was intentionally injured is the judicial confession, which Appellant specifically refuted by his trial testimony. I, Appellant recognizes that, as a general rule, when a defendant pleads guilty to an offense, the federal and state constitutional sufficiency of the evidence standards do not apply. McGill v. State, 200 S.W.3d 325, 331 (Tex. App. - Dallas 2006, no pet.). Nevertheless, the State is bound by statute to support a guilty plea with sufficient evidence. See TEX. CODE CRIM. PROC. art Appellant also recognizes that a judicial confession is usually sufficient to support this statutory requirement. Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996). Despite Appellant's plea and judicial confession, the trial court, as the trier of fact, was nevertheless authorized to find Appellant guilty of a lesser included offense. Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); see also Williams v. State, 273 S.W.3d 200, 221 (Tex. Crim. App. 2008); Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003). In Moon, the Court of Criminal Appeals held that, if a defendant waives a jury and pleads guilty before the trial court, and evidence is presented, and not later withdrawn, that makes evident the innocence of the defendant or that reasonably and 7

13 fairly raises an issue as to the defendant's guilt, the trial court, as the trier of fact, may find the defendant guilty, not guilty, or guilty of a lesser included offense, as the evidence may warrant. 572 S.W.2d at 682. This is considered part of the trial court's duty to consider the evidence submitted.!d. Here, all evidence adduced at trial showed that Appellant committed a reckless act, i.e., grabbing the complainant by the shirt and pushing her with force. The evidence does not show, however, that Appellant thought she would be seriously injured, much less that he intended to cause serious injury. Nor does the evidence establish that Appellant pushed the complainant with the intent of causing her serious injury. Appellant recognizes that the trial court was not asked to find him guilty of reckless injury to the complainant. Rather, the focus of the entire proceeding was on punishment and mitigation of punishment. Trial counsel did argue against an intentional crime, stating as follows: "I don't think he intended for her to get hurt as badly as she did. I really don't." (RRl: 145). It was up to the trial court, as the trier of fact, to render a proper verdict. All the evidence, apart from the judicial confession, points to a reckless act. As a result, the trial court should have exercised its discretion and rendered a verdict of reckless injury to a child. Reckless injury to a child carries a reduced penalty from an intentional injury to a child. TEX. PENAL CODE 22.04(e) (providing that reckless injury to a child is punished as a second degree felony). This Court should reform the judgment to reflect a conviction for reckless injury to a child and remand for a new punishment hearing. 8

14 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reform the judgment to reflect a conviction for reckless injury to a child and remand for a new punishment hearing. Lynn Richardson ChiefPublic Defender Dallas County, Texas Kath rine A. Drew Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas (214) (phone) (214) (fax) -e-~m~ Riann C. Moore Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas (214) (phone) (214) (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney's Office (Appellate Section), 133 N. Riverfront Blvd., LB-19, loth Floor, Dallas, Texas, 75207, by hand deli~ c ~OOt.,.Q Riann C. Moore... 9

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