NO. 07-00-0371 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A NOVEM BER 14, 2001

______________________________ DAVID EARL JOHNS ON JR., APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 64 TH DISTRICT COURT OF SW ISHER COUNTY; NO. B3222-9907CR ; HONORA BLE JACK R. M ILLER, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. In this appeal, appellant David Earl Johnson Jr. c hall enges his conviction of involuntary

manslaughter and the re sulti ng jury-assesse d senten ce of ten years confinement

in the Institutional Division of the Departm ent of Crim inal Justice. In pursuing that challenge, appellant presents five points of asserted error in which he po sits: 1) the evidence was legally insufficient to show that he recklessly caused th e death of the m inor2

child An tho ny Lynn Cul fer (A nth ony ); 2 ) th e tr ial c our t no t on ly ab use d its

disc ret io n by subm itting the question of involuntary manslaughter to the jury, but the evidence i s also fac tua llyinsu ffic ient to support a finding that he caused the death of the victim by sm othering him; 3) by

subm itting the question of involuntary m anslaughter, the trial court abused its discretion and deprived him of the due course of law guaranteed by article 1, section 19 of the Tex as Constitution; 4) by subm itting the question of inv oluntary mans laughter

to the jury, t he trial court abused i ts discreti on and deni ed him due process “because the federal standard is the m inimal standard required to enforce the U. S . Const. Fifth Am endme nt”; and 5) by subm itting the question of involuntary manslaughter, t he trial court abused its discretion and denied him the due process to w hich he was ent itled “under th e U.S . Const. Fourteenth A mendm ent, applying the Fifth Am endme nt to the State s.” Disagreeing that reversible error exists, we affirm thejudgm ent of the trial court. The nature of appellant’s challenges is fact intensive in character and requires us to r eco unt per tine nt p ort ionsof t he t rial e vide nce . O n M arc h 20 , 19 89, at a ppr ox im ate ly 8:48 p.m ., fourteen-m onth-old Anthony w as brought to the em erg enc y ro omof t he T ulia Hospital by Ronda Fore, his mot her. Ronda was accom panied by appellant, her boyfriend. Ronda reported to hospital personnel thatAnthony had been suffering from a runny nose. Atthe time of Anthon y’s arrival , he had no pul se or respi ration si gns. The emergency room physician, Dr. Wi lliam Childress, and Edith Gilliam, the nurse on duty at the t ime, noticed Anthony’s face was blue and his hands and feet were cold. They concluded he wasdead. BecauseDr. Childress thought Anthon y had been dead for som ewhere around3

an hour, he requested Tulia Municipal Judge Janet Freem en to order an autopsy to determ ine the cause of death. Tuliapolice officers Jam es Hart and Donny Harlan were dispatched to the hospital a nd tooksome pictures of the dead chi ld. They not iced an abr asion on Anthon y’s forehead and som e type of m ark above his lip. Officer Harlan, the senior officer present, wastold byJudge Freem an not to question anyone until after an autopsy wasperform ed. Unt il the evening of March 20, 1989, Anthony had basically been a healthy child. So me two weeks before that date, Anthony had an ear infection treated by his doctor. The doctor had not noted a ny resp iratory

infection at that tim e. On the day of his death, as was usu ally don e w hile h is m oth er w orked, An tho ny w

as take n toa Tu lia da y nu rse ry b y his m other. The day

care w orkers a t the nu rsery

observed that heseemed healthy and happy, did not show

any ascertainable signs of illness, and was not inj ured while there. The workers were surprised to he ar of Anthony’s death because of his apparent good h ealth. The child’s aunt, Tina W right, had seen him at play on March 20 and op ined that he was acting nor mally with no signs of i llne ss. On March 21, 1989, Dr. Ralph Erdm ann perform ed an autopsy on the chi ld, which had been ordered by Sw isher CountyJustice of the Pea ce Marie Rucker. In the course of the autopsy, E rdmann notice a slight abrasion on Anthony’s forehead and som e kind of m ark on hi s l i p, whi ch was sl i gh tl y s wo l l en . E rd ma nn foun d that t he child’slungs w ere som ewhat

abnorm al and removed portions to b e m icro sco pica llyexam ined . A s a res ult4

of his exam ination, Erdmann concluded that Anthony died of a m ild case of ac ut e interstitial pneum onitis associated with acute sep tic and toxic shock . Thus, he found that Anthony died of n atural cau ses. In 1993, Ronda appeared at the Tuli a poli ce station and m ade a statem ent to Officer Don ald Dunn imp licating appell antin Anthony’s death. As a result of that statem ent, the investigation into Anthony’s deat h was reope ned. She gave tw o sworn s tatem ents to Dunn which were som e two w eeks apart. In the first of those statem ents, she averred that appellant sm othered Anthony with a pillow and , in the other, that appellant had sm othered the chil d with his hand. Because of th e differe nces in the state ments, Dun n co ntin ued his investigation. In the course of the investigation, on August 18, 199 3, appel lant gave a handwritten statem entto Am arillo Poli ce Officer Chance Coberly dealing w ith the events of the evening A nthony

died. A lthough ap pellant said h e wa s at w ork after 6:40 p.m ., was notpresent at the hom e during the critical times on the night in question and did not re turn unt il Anthony

was f ound lifeless, his work records did not show that he was at work after 6:40 p.m . After this investigation, the case was subm itted to the Sw isher County Grand Jury in 1993, but no indictment was retu rned. The only autopsy available in 1993 was the one perform ed by Erdm ann. In 1998, Tulia Police Chief Jimm y McCas lin asked the Texas Ran gers to determ ine if further investigation was w

arranted. Texas Ranger Dwayne Wi lliams obtained the case file, and interviewed a num ber of witnesses . He then obtained an order to exhum e the5

bodyfrom Justice of the Pea ce Rucker. S he then ordered Tarrant County M edi ca l Exam iner Marc Krouse to con duct another aut opsy. Doctor Krouse testified that he had pe rformed between 9,000 and 10,500 aut opsies. During the course of thos e autopsies, he ha d ex amined about 1600 m umm ified or decom posed bodies. Prior to conducting an autopsy on Ant hony’s body, thedoctor reviewed the records of Dr. Er dm ann ’sautops y. I n ex am ining thepho tog rap hs take n in connection wi t h Erdm ann’s autopsy, h e took particular notice of the abrasion above the upper lip slightl y to the left of the child’s m idline. He opined that it was an abrasion that wascaused either by scraping or crushing of the skin and it occurred close enoug h to the tim e of A nthony ’s dea th that little swelling had deve loped. H e also noted that there was a foam y m aterial in the child’s mouth, w hich he believed was the product of p ulmona ry edema , which w

as consistent w ith a finding of asphyxia. A

sphyxia, he explained, was a fatal deprivation of oxygen to th e brai n and heart. The doctor also charac terized the injuries as being consi stent with the use of som e sort of force against the face of the child. Dr. Krouse investi gated Anthony’s me dical records kept by his treating doctor and, considering the testim ony as to his condition in the time imm ediately prior to his death, disagreed with Erdmann’s conclusion as to the ca use of death. It was his belief that if Erdmann’s conclusi on was correct, there would have been more evidence of a shortness of breath. As a res ult of his autopsy, he recom mende d that the cause of death be changed to suffocation and the cau se of death as hom icide.6

Doctor W illi am Anderson, a deputy chief me dical exam inerin Orl ando, Fl orida, al so testified tha t w hat

Dr. Er dm ann cha rac

ter iz ed a s in terstitial pneumonia was “acute lung injury, a deoxyge nation of the lungs.” In his view, Anthony died of “respiratory and acute respirator

yfailure. Nothing that ha d been hangi ng around for days as a pneum onia might, butsom ething that ’s very acut e.” He opined that w hat is described as interstitial pne um onia“is actually not an infection thing at all, but a response to an injury.” This type of injury, he said, “w

ou ld be consistent w ith somet hing, among o ne of the possibilities som ething being place d over t he m outh nos e area.” Doctor Anderson did not believe that Anthony’s death was caused by a virus beca use the response ofhis body t hat was described by Dr. Erdm ann could not be the result of such an infection. Ronda testified that on the day of his death, she was working at

a nursing hom e. Appella nt’s mo ther had picked up Anthony from day care and, after s he gotoff work , Ronda picked u p A nth ony , his tw o-y ear -old sister M arlene, an d his four -year-old b rother, Brandon. W hen she got hom e, she began preparing dinner and a ppe llant came hom e. Anthony w as “fus sy, ” sosheput himdo wn an d g av e h i m a b ot tl e t o t ry to qu i et hi m, but “he didn’t wan t i t. ” Ro nd a sa id th at ap pe ll an t was “mad ” b ec au se Ant ho ny wa s be ing noi sy and appellant wanted to w atch Star Trek, his favo rite TV show. Appellant put a pillow over Anthony’s face while Anthony was s cream ing a nd c ryin g. Rond a averred t hat shetold appellant to stop and he did so for a mom ent but then “started bac k up.” Ronda then w ent over and rem oved the pillow while Anthony gasp ed for air. Ronda then returned to the7

kitchen. W hile she was th er e s he he ar d A nt ho ny sc re am a couple of tim es and t hen ther

e was silence. So met i me after that, Brandon cam e into the kitchen and told her that som ething was wrong with Anthony. Ronda ran into the livi ng room and saw Anthony lying on the couch with his arms above his head and his face w as blue. She called appellant, who w as outside, and he cam e into the room and started doing CPR in an attem pt to rev iv e Anthony. Ronda said that appellant continued t he CP R for five or so m inutes without success, so shetold app ell a nt they needed to take Anthony to th e hospital. Instead of driving directly to the hospital, they took the other two c hildren by Ronda’s sister’s house, dropped them off and then went to the hospital. When they arrived there, she w as told the child was dea d. She w as up set and asked appellant what had happened. Appellant replied that he did not know and th at it was better left alone. W hen cross-exa mined, Ro nda adm itted she told appellant’s attorneya week bef ore the trial that she had not seen appellant put a pillow over Ant ho ny’s face . She also admitted that wh en she was questioned at the hospital about Anthony’s d eath, she did not tell anyone that she s aw appell ant place a pi llow over the chi ld’s mouth. She also adm itted she did not go to the police until 1993 after she dream ed she saw appellant putting a pill ow over Anthony’s face. In her 1993 statem ent, she said she saw appellant place the pillow over Anthony’s face and she did not m ake him quit. A gain, i n 1993 , about three weeks after the first statem ent, she gave the po lice anothersta tem ent in w hich shesaid shedid8

notremem ber a pillow, but t hat appe llant had used his hand to cover Anthony ’s m outh. In 1998, she gave another sta tem ent in which she again said appellant used a pillow and she tried to stop him . The grand j ury did not return an in dict m ent in 1993, but in 1998, after an additional investigation, the instant prosecution was com menced. Marlene Ba l l ar d t es ti fi ed th at at th e t i me of the death, she was two years old, but she remem bered seeing appellant place a pill ow over A nthony’s m outh and w hen th e pillow was rem oved, he was not m oving. Appellant presented several character w itnesses, wh o stated that both Ronda and Marlene had bad reputat ions for b eing truth ful. He a lso prese nted th e testim ony of Dr. Sparks Ve ase y, afor

ens icpathologist. Although Veasey a dmitted he was aware of reports that appellant placed his hand over the m ouths of Anthony and another

chil d and held it over the m unt il the y qu itcrying, after exa mining the autopsy reports and the poli ce reports, he averred that he could not determ ine the cause of Anthon y’s death. We have listed therele van t ev iden ce in this cas e in s om ew hat

ex hau stive de tail. In determ ining whether the evidence supports the j ury verdict, we mus t bear in mind that itis the jury’ s exclusive function to de termine the c redibili ty of the w itnesses and the weight to be given their testimony , and i n doing so, they are entitled to consider all the circumstances surrounding the death

. Our review of theevidence satisfies us that a rea son ablejury could conclud e that appel lant reckl essly caus ed Anthony’s death by covering his mout h in an attem pt to quiethim, and that conclusi on would not be so against9

the ove rwh el min g we ig ht of th e e vi de nc e a s to be mani fe st ly un jus t. App el la nt ’s f ir st two points are overruled. W ith regard to the rem ainder of appellant’s points, he m ade no trial objection to the court’s action in including a charge on involuntary manslaughter in his instructions to the jury. Indeed, w ith the exception of expressing his opinion that the Stateshould be required to elect whether it w

as going with a charge that appellant sm othered Anthony with a pillow or by other m eans unknow n to the grand j ury, trial counsel opined thatthe charged “l ooks fine to u s. ” When a defendan t reques ts or do es not obj ect to the inclusion of a less erincluded offense, such as ma nslaughter

in this case, a def

end ant hasaccepted t he b ene fit of that instruction and is estopped fromcom plaining on appeal that the evidence failed to establish all the elements of the lesser off ense. See State v. Lee , 818 S.W.2d 778, 781 (Tex.Crim .App. 1991 ), overruled on other grounds , Moore v. State , 969 S.W.2d 4, 10 (Tex.Crim .App. 1998); see also St ate v. Yount, 853 S.W.2d 6, 9 (Tex.Crim .App. 1993). Additio nall y, even if the question was preserved for appellate review, the trial court did not err in subm itting the manslaughter charge. The evidence indicating that appellant wason l y t ry i ng to qu i et th e c hi l d s o h e c ou l d wa tc h h i s p ro gr am, together w ith the fact that he im m edia tely

perform ed CPR on t he child after he was f ound to be uncons ciou s, could rea son ably

be interpr eted by the jury as indi cating the de ath was caused recklessl y. W hen evidence from any source raises an issue that a lesser-included offense m ayhave been com mitted, it is proper to c harge the jury on that of

fen se. Ormsby v. Stat e , 60010

S.W.2d 782, 785 (Tex.C rim.App. 1979); Moore v. Stat e , 574 S.W.2d 122, 124 (Tex.Crim .App. 1978). Either party m ay insist thata charge on a l esser-in cluded offe nse be given in a proper case. Pen ni ngton v. State , 64 4 S .W.2d 6 4, 6 7 (T ex .A pp. –A ust in 1982), aff’d , 697 S.W.2d 387 (Tex.Crim.A pp. 1982). In determ ining whether a charge on a lesser-included offense should be given, the questions confronting the court are: 1) is the lesser-included offense included within the proof necessary to establish the charged offense, and is there any evidence t hat if the defendant is guilty, he is only guilty of the lesser offense. Royster v. State , 622 S.W.2d 442, 446 (Tex.Crim .App. 1981)(opinion on reh’g). The evidence in this case m eets both those requirem ents. Acco rdingly, appellant was not denied any of his feder al or state con stituti onal ri ghts by the submiss ion of th e mans laughter question to the ju ry. Appellant’s points three through five are overruled. In sum , all of appellant’s points are overruled and the judgm entof thetria l cou rt is affirmed. John T. Boyd Chief Justi ce Do not publish.