### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00234- CR

Rebec ca Hewett, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 428 TH JUDICI AL DISTRICT NO. CR-09 -08 17, H ONO RAB LE WI LLIAM H ENRY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Rebec ca Hewe tt of intentionally or knowing ly causin g bodily injury to her son and sentenc ed her to ten y ear s’ imprisonment. On appea l, Hewe tt arg ues that the evidenc e is insufficient to suppo rt t h e conviction beca use the child’s injury was a result of
rea sonable discipline and beca use there was no evidenc e that she intended the resulting injury
. She also arg ues that the jury

char g e wa s err oneous. We aff irm the judg ment of convic tion.
F actual Summ ary I n ear ly May 2008, Hewe tt spanked R.L ., her f our-y ear -old son, with a rubber flipflop shoe. Although he g ave conflicting testimony and said that he had not been entirely honest in

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The fac ts a

re known to the parties, and we there fore will not rec ite them in g rea t detail in 1 this opinion. See Tex. R. App. P. 47.1 (appe llate court opinions should be as “brie f as prac ticable” ), 47.4 (memora

ndum opinions should be “no longe r than nece ssary to advise the parties of the court’s decision and the basic re asons for it”)
.his statement, J amie Hewe tt, Hewe tt’s hus b an d an d R
. L .’s stepfathe r, told the police that he was

alar med enoug h by the “bad welps” inflic t ed o n R
. L
. t hat he arr ang ed for R.L
. and his y oung er brother to stay with his mother or sister “until I could fi gu re s o m et h ing out.” J amie also told the police that in the past, Hewe tt had “slappe d [R .L .] to the floor with her open hand” and that he told her “to never do that ag ai n . ” J am i e’s mother called Child Protective Service s and repor ted that Hewe tt had abused the child. The State introduced into evidenc e photogr aphs taken shortly afte r the spanking that show “dee p bruising,” red marks or welts, and abra sions on R.L .’s back, buttocks, and upper leg s, as well as a “ra w are a on his buttocks that looked like it could be wee ping or a littl e bit damp.” R.L .’s fa ther testified tha t J amie’s mother sent him the same photogra phs shortly

afte r the spanking and that he the n soug ht and obtained c ustody of R.L
. The investiga ting detec tive testified that based o n her study of the photogr aphs, 2 R.L .’s injuries wer e the result of “re peate d blows with signific ant forc e,” not rea sonable discipline. She said, “I n my opinion, I believe that it took repe ated blows to inflict the deep bruising. I ’ve seen
some redne ss, some purplish bruises, but to m ak e t h i s d ee p of an imprint, I think it took repe ated blows. And to me that’s—she knew what she was doing. She absolutely knew that this was g oing to hurt and hurt badly .” Hewe tt testified that she spanked R.L
. three times in an eff ort to discipline him and that his bottom was red immediately afte r the spanking but fade d throug hout the day
. She denied that there wer e any marks on his back later in the day and testified that R.L
. was not the child in the photogr aphs.

The detec tive did not rec eive the repor t of the May 2008 spanking until sometime in 2009. 2 She said that kind of repor ting delay i s u n u s ual but not unhear d of, and explained that R.L
. had moved to Mississ ippi shortly afte r the spanking occur red and was not broug ht back to Texas so that he could be interviewe d until more than a y ear later. 2Suf fi ciency of the Evidence I n her first two points of err or, Hewe tt contends that the spanking “did not cross the line into unreasona

ble discipline” a

nd that a ra

tional jury

could not have deter

mined that the forc e she used wa s unrea sonable. She notes that R.L
. did not require medical intervention and that the 3 State did not put on medical evidenc e about the deg ree of his injuries and asser ts that the State did not prove who took the photog raphs or when they

wer e take n. We disag ree . J amie Hewe tt told the police that he sent the children to stay with his family beca use he neede d to “fig ure something out” afte r Hewe tt spanked R.L
. and left “bad welps” on his back and buttocks. R.L
. testified that his mother spanked him with a rubber flip-flop and that it hurt. He also testified that she later denied it and asked who had told him to tell lies and that he was upset by that beca use he knew she was not te lling the truth. R.L .’s fathe r testified that J amie’s mother sent him the photogr aphs of R.L .’s injuries shortly afte r the spanking , the investiga ting detec tive deter mined that the photog raphs we re ta ken one da y afte r the spanking , and the photog raphs themse lves ca rry a date stamp rea ding “05/04/2008.” The photogra phs show signific ant di scoloration and bruising
on R.L .’s back, buttocks, and upper leg s, and the detec tive descr ibed a “we eping ” are a and abra sions.

Hewe tt’s justification for the spanking was that she was using the forc e she believed
wa s rea sonably nece ssary to discipline R.L
. Howeve r, the State was require d not to ref ute t h at justification but only to prove the elements of the offe nse bey ond a rea sonable doubt. See Goulart

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

The penal code allows a pare nt to use forc e ag ainst a child “to th e deg ree the actor 3 rea s o n ab l y b el i ev es the forc e is nece ssary to discipline the child.” Tex. Penal Code § 9.61(a) (2), see also id. § 1.07(a) (42) ( defining “re asonable belief” ). 3the photogr aphs wer e taken shortly afte r the spanking and depicted the injuries suffe red by R.L
.

as a result of Hewe tt’s actions. T h e j u ry was not oblige d to believe Hewe tt’s testimony that she intended only to discipline R.L
. and did not intend to inflict serious bruising or other injury
. I nstead, the jury could have deter

mined (1) that the injuries R.L
. suffe red wer e the result of g rea ter forc e than
a rea sonable person would have believed n ec es sary to rea sonably discipline him, see Tex. Penal Code §§ 1.07(a) (42) (def

ining “re asonable belief” ), 9.61(a) (2) (explaining when pare nt is justified using forc e ag ainst child), 22.04(a) (ele ments of injury to a child), and (2) that Hewe tt knew the level of forc e she was using to spank R.L
. would cause or was l i k el y t o cause him bodily injury
. See W illiams v. Stat e , 235 S.W .3d 742, 750 (Tex. Crim. App. 2007); see also Tex. Penal C ode § 6.03 (per son acts intentionally if it is her “consc ious objective or desire ” t o ca u s e result; person acts k n o w in g ly if

, b a s e d o n c ir c u

ms ta n c e s , s h e is a

w a r e th a t c o n d u c t is li k e ly to c a

u s e r e s u lt )
. We o v e r

r u le Hewe tt’s first two points of error
. Jury Charge

The penal code define s “re asonable belief” as “a belief that would be h el d b y an ordinary and prudent man in the same circ umstances as the actor .” Tex. Penal Code § 1.07(a) (42). I n h er t h i rd p oint of error, Hewett arg ues t hat t he charg e did not tell the j ury that it must view the situation from Hewe tt’s circ umstances, and that the jury was there fore g iven the wrong standard to assess the r easona

bleness of he r ac tions. We disag ree . 4

Hewe tt did not object to the char g e, and there fore would only be entitled to reve rsal if the 4 char g e was err oneous to a deg ree that cause d her “eg reg ious harm.” Neal v. State , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008). 4The jury char g e explained that a p ar ent has the rig ht to use rea sonable discipline;

that use of forc e aga inst a child is justified if the parent rea sonably believes the forc e is nece ssary to discipline the child; that the us e of force is not justified by a parent’s subjective belief but only when “a rea sonable person would have believed the forc e is n ec es s ar y , which is an objective standard” ; and t h at “‘[ r]easonable belief’ means a belief that would be held by an ordinary and prudent man in the sa

me circ umstances a s the actor.” Although those instructions and de finitions
wer e not combined into one para g raph, they wer e set out in a list format in the first two sections of the char g e, not bur ied deep in the char g e or surrounde d by confusing or incorre ct lang uag e. There
was no e rror

in the char g e. We over

rule He wett’s third point of er ror.
Conclusion Having overr

uled Hewe tt’s three points of err or, we aff irm the trial court’s judgme nt of convic tion.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin and F ield Affir med Filed: Aug ust 15, 2013 Do Not Publish

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