NO. 07-94-0166-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 30, 1996

______________________

PATRICIA CARMAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

______________________

FROM THE 364TH JUDICIAL DISTRICT COURT OF LUBBOCK COUNTY;

NO. 92-415352; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

______________________

Before DODSON, BOYD and QUINN, JJ.

In eight points of asserted error, appellant Patricia Carman challenges her conviction of

intentionally or knowingly, by omission, causing serious bodily injury to a child and the

consequent jury-assessed punishment of 50 years confinement in the Texas Department of

Criminal Justice, Institutional Division. Appellant’s prosecution arose out of the death of her 

seven-year-old stepdaughter, Stephanie Carman, on June 8, 1992. The State alleged her death was

the result of malnutrition. She and her husband, Steven Carman, Stephanie's natural father, were

charged and tried before a jury in a joint trial that lasted five weeks. The trial involved extensive

expert testimony bearing on Stephanie’s condition and the cause of her death. For reasons we

later express, we affirm the judgment of the trial court.
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In her eight points, appellant contends 1) the evidence is legally insufficient; 2) the

evidence is factually insufficient; 3) the trial court erred in admitting Steven’s statement in

violation of appellant’s Sixth amendment right of confrontation; 4) she was entitled to a new trial

based on misconduct of a juror; 5) there was improper admission of reputation evidence at the

punishment phase; 6) the trial court erred in refusing to instruct the jury on the lesser-included

offense of endangering a child; 7) the trial court erred in admitting opinion testimony by an

unqualified expert witness; and 8) the trial court erred in refusing an instruction on criminal

negligence.

The nature of appellant's challenge in her first two points requires us to recount the

relevant evidence in some detail. It also requires us to review the standards by which such

challenges are measured. When reviewing the legal sufficiency of the evidence, we are to apply

the standard articulated in Jackson v. Virginia, 433 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560

(1979), and Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Under this standard,

evidence is legally sufficient to sustain a conviction if, when viewed in the light most favorable

to the verdict, a rational factfinder could find the essential elements of the offense beyond a

reasonable doubt. Jackson, 433 U.S. at 319. This standard of review is applied whether the

conviction is based on direct or circumstantial evidence. Alexander v. State, 740 S.W.2d 749,

757 (Tex.Crim.App. 1987), cert. denied, ___ U.S. ___, 114 S.Ct. 1869, 128 L.Ed.2d 490

(1994).

The recent Court of Criminal Appeals decision in Clewis v. State, No. 450-94

(Tex.Crim.App. January 31, 1996), instructs that when the factual as well as the legal sufficiency

of the evidence is challenged, if, after applying the Jackson v. Virginia test we determine the
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evidence was legally sufficient, we must proceed to examine the evidence without the prism "in

the light most favorable to the prosecution. " Clewis, slip op. at 11. We are, rather, to examine

all the evidence, and if our review convinces us that the jury verdict is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust, we remand the case to

the trial court for retrial before another jury. Id.

We are cautioned to give proper deference to the decision of the jury and not to attempt

to reweigh the evidence and set aside a jury verdict merely because a different result seems more

reasonable. Indeed, the Clewis court quoted and adopted the requirement set out by the Texas

Supreme Court in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986), that courts of appeals,

when reversing on factual insufficiency grounds, must detail the evidence relevant to the issue in

consideration and clearly state why evidence is so insufficient that the jury's verdict is manifestly

unjust, why it shocks the conscience or clearly demonstrates bias, and in what regard the contrary

evidence outweighs the evidence in support of the verdict. Clewis, slip op. at 14. It is under the

standards for both legal and factual sufficiency that we review the evidence in this case.

The State presented the testimony of Wilma Manning, an employee of the Texas

Department of Protective Services. She described a telephone call she received from appellant

between 4:00 and 4:30 p.m. on June 8, 1992. According to Manning, appellant repeatedly

described Stephanie's medical and mental problems, including an eating disorder, compulsive

behavior and Attention Deficit Disorder. Manning described appellant’s speech as loud and

continuous, with little opportunity for Manning to talk. In response to Manning’s suggestion to

take Stephanie to a doctor, appellant expressed concern about being accused of misconduct. The
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call ended when Manning heard a male voice yelling and appellant said, “Oh, my God, I have got

to call 911,” at which time appellant hung up the phone.

The State also presented the testimony of the paramedics who initially responded to

appellant’s 911 call. Lloyd Cody, the first paramedic, described Stephanie as “malnourished”

because her eyes were sunken and all of her ribs were clearly visible. His initial opinion was that

she had some serious medical problem or had not been eating. When he first saw her, Stephanie

was not breathing and her heart was not beating. Cody described the room Stephanie was in as

“barren” with just a few articles of furniture. When shown photographs of the room taken on

June 10, 1992, he said the toys and some of the furniture shown in the photographs were not

present on June 8 when he saw the room.

A second paramedic called by the State, Robert Mello, also described the room in which

Stephanie was found as dark and barren with only a bed, a nightstand, some empty shelves and

a chair. Mello’s description of Stephanie was “emaciated,” “like one of the kids from like a

concentration camp or something.” He characterized appellant as very calm. This description

of appellant was not consistent with the EMS (emergency medical services) report written by

paramedic Tommy Crawford which described appellant as distraught. Appellant told Mello that

Stephanie had not been eating for two weeks. In his testimony, Mello described some of the

medical procedures taken with Stephanie, including the administration of intravenous fluids (IV).

The State next called Jeanette Whalen, an officer with the Lubbock Police Department who

responded to the Carmans’ call for help. She also testified that many of the items in the

photographs taken two days later, such as the dolls and other toys, were not present on June 8.

She stated that the reason she remembered the toys shown in front of a window in some of the
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photographs were not there on June 8 was because she specifically remembered another officer

walking to the window and opening the blinds to provide more light for the EMS personnel;

however, she did identify a dresser that Mello testified was not present as being in the room on

June 8.

Whalen described appellant as crying but not hysterical. When Whalen sought to obtain

some medical history, appellant told her that Stephanie suffered from Post-Traumatic Stress

Disorder as a result of mistreatment by her natural mother. Appellant also related that she “had

not been able to get Stephanie to eat at all” the previous week. Stephanie was taken to University

Medical Center where she was soon pronounced dead. Because of the circumstances surrounding

her death, an autopsy was requested by a Justice of the Peace.

Wayne Casey, another officer of the Lubbock Police Department and the principal

investigator in the case, described his involvement beginning with his attendance at Stephanie’s

autopsy on the evening of June 8, 1992. In addition to Casey, others present at the autopsy were

Sergeant Bill Hubbard, Dr. David Hoblit (who performed the autopsy), his assistant, an

ophthalmologist, and Dr. Garcia, who had seen Stephanie as a patient on previous occasions.

Casey described Stephanie as very thin with visible ribs and sunken eyes. Her skin was “very,

very pale,” she had abrasions and bruises on various parts of her body and very thin hair with

some patches missing. It was his impression that she had a long term illness or had been abused.

Casey, Hubbard, and another officer went to the Carmans’ home on June 10, 1992 to

investigate her death. Granted permission to inspect the home, the officers noticed that both the

door to Stephanie’s room and the door to her closet had chain-type locks mounted very high on

the doors, well out of a seven-year-old’s reach. Hubbard took photographs of Stephanie’s room.
6

The Carmans told the officers that Stephanie had been very disturbed and difficult to handle.

They explained that several stains on the carpet were due to the fact that Stephanie would urinate

and defecate in her room. The Carmans also provided the officers with a written record of what

Stephanie had eaten the previous week, from Monday, June 1 through Saturday, June 6, with two

notations labeled only Sunday and “Today, Mon.” This information was written on an envelope

postmarked in Hobbs, New Mexico on June 5, 1992.

Through Casey, the State introduced a chart that the family had on the wall of Stephanie’s

room that was used to record her height and weight. A notation on the chart showed that

Stephanie weighed 571⁄2 pounds when she was seven years and nine months old. At the time of

her autopsy approximately a month later, Stephanie’s weight was 431⁄2 pounds. Concerning the

toys he found in Stephanie’s room, Casey described them as brand new. He also found additional

new, unopened toys in her closet along with new dresses that still had store tags on them.

Casey interviewed and took written statements from appellant and Steven Carman. In

appellant’s statement, she described Stephanie as stubborn and willful and admitted that she had

occasionally locked Stephanie in her room. Appellant also stated she had “used food items as an

incentive with [Stephanie].” According to her, appellant had to “force feed [Stephanie] for about

a week.” Concerning the day that Stephanie died, appellant’s statement described Stephanie as

“mopey” as though she were seeking sympathy. The statement provided that Stephanie did eat

some pudding while appellant's sister-in-law Carla was there that afternoon, and described the

events that followed:

[S]he got on the edge of the chair and just slid out of the chair and her butt hit the

floor and she just went [] onto her back hard. She was just laying there looking.

She didn’t look like she was sick. She got up in that mopey kind of way and got

some water. She did it like she was faking because she had faked it before.
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. . . 

Carla left and when I checked on Steph she was laying on her back in her room

holding her knees in the air. I mixed an Ensure shake for her and I took it to her

and she sat in her blue plastic chair. She drank a little of the shake and half a glass

of water. I decided to take her to the hospital. I asked her if she was hurting

anywhere but she wouldn’t answer me. She was leaning in the chair. I was

looking at her to see if she was faking. I told her if she didn’t answer me I was

going to take her to the hospital. She told me no, she was tired and wanted to rest.

When I left the room she was still in the chair but was acting like she was fixing

to get up. I called Christine at Social Service but she wasn’t there but I talked to

her supervisor. I was nervous that something was wrong, that Stephanie was

faking it but the water and the fact she wouldn’t answer me scared me and she was

hurting but wouldn’t tell me. She didn’t appear sick. I’m not sure what I said.

Steve came home while I was on the phone and walked in the back. He ran up the

hallway and said, “call 911, I think she’s dead.” I dialed 911.

Casey admitted that although appellant had described using M&M candy as a reward when

Stephanie would complete a school lesson, when he wrote the statement he only included that

appellant used food as a reward and incentive. He did not record any part of appellant’s oral

statement and disagreed with the idea that a tape recording “would be a good way to check and

make sure everything is accurate.”

Casey also interviewed the couple’s other daughter, Loretta Carman, while she was staying

with family friends in New Mexico. Before that interview, the attorneys representing appellant

and Steven Carman requested to listen to the interview by telephone, to have the interview

recorded, or to allow JoAnn Jackson, the family friend with whom Loretta was staying, to be

present. Casey refused all three requests. He described Loretta’s responses during the interview

as “coached.” He said that she was flippant and used words that were not typical for her age but

were used by her parents.

Casey also disagreed with the view, even if it came from Dr. Hoblit, that any of the

bruises on Stephanie’s body were natural rather than the result of abuse. On cross-examination,
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Casey went so far as to say that it was possible for him to determine whether a child has been

abused based on what is present in or absent from a child’s room.

Stephanie’s natural mother, Myrtis Carman, described Stephanie’s early childhood. The

State introduced several photographs of Stephanie which Myrtis identified. She characterized

Stephanie as “chubby” in several of the photographs and denied ever giving Stephanie alcohol in

her bottle so she would sleep. According to Myrtis, Steven Carman talked her into letting Loretta

and Stephanie stay with him to attend school for one year. At the end of the year she reluctantly

permitted Steven Carman and appellant to keep the girls.

The State called Tammy Fowler, a special education teacher at Parsons Elementary where

Stephanie Carman attended school. Fowler taught a class designated as a “social adjustment”

class for students diagnosed as emotionally disturbed. Fowler described Stephanie as a very sweet

girl who loved attention. She felt that most of Stephanie’s misconduct was an effort to get more

attention from her. She said that Stephanie never had a problem with wetting her pants at school.

The teacher said appellant was involved in Stephanie’s education and would communicate with

her on a regular basis; however, Fowler did not always agree with appellant’s view of what was

in Stephanie’s best interest.

Fowler stated that she used food as part of a program of “rewards and consequences.”

This involved occasionally giving treats like candy to students for good work and making them

complete projects before having lunch. She said that appellant instructed her not to allow

Stephanie to participate in other student’s birthday parties at school. While she was in Fowler’s

class, Stephanie usually brought her lunch to school. Sometimes it was just a sandwich with a

note from appellant that Stephanie was not to have anything else.
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The State presented several notes appellant had written to Fowler. These notes included

requests that Fowler not give Stephanie rewards such as candy or small gifts (such as an eraser),

or that Stephanie not brush her teeth at school because “this is very unsanitary with all the

diseases going around. ” Another note instructed Fowler to limit the time in which Stephanie was

allowed to eat her lunch stating, “She is very able to eat what I put in her lunch box within 15 to

30 minutes. She should not have any food left over. The only reason she would is she is being

distracted from the task of eating - and she must be focused!!” Fowler also commented that

appellant told her that they had guarded the refrigerator to keep Stephanie out of it.

In describing her opinion of the relationship between Stephanie and appellant, Fowler

thought that Stephanie was somewhat afraid of appellant. She never saw the two touch each other

and sometimes appellant was very abrupt with Stephanie. Stephanie was only in Fowler’s class

from August of 1992 to the following February, when the Carmans took her out of school to teach

her at home.

The State next called Christy Brabec, a friend of Stephanie’s older sister Loretta. Brabec

described the two times she visited the Carmans’ home. One occasion was to go swimming in the

Carmans’ swimming pool and another was a birthday party for Loretta. On the first occasion,

Brabec was only in the house a few minutes but on the second occasion, she and other guests

stayed overnight. Brabec said that she did not see Stephanie on either occasion but did see a door

that was closed while she was there. She conceded that Stephanie could have been visiting one

of her friends at the time.

Shelly Carman, Stephanie’s cousin, related her experiences when visiting Stephanie’s

home. According to Shelly, Stephanie did not play with the other children and was not allowed
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to eat with the family. She remembered appellant would fix a small plate for Stephanie after the

others had eaten. Shelly also said that Stephanie did not participate with the rest of the family in

opening presents on Christmas. Shelly also described playing with Stephanie in her room the

Christmas before her death. She also averred that almost all the toys and furniture shown in the

photographs taken June 10, 1992 were present the previous Christmas.

Harold Marlowe, a pharmacist at a pharmacy near the Carmans’ home in June 1992,

testified that appellant came to his store on June 3, 1992 and asked what to give her child who had

not eaten in four days. Marlowe recommended Ensure, which appellant purchased. Apparently

seeking to cast doubt on his memory concerning the date of the purchase, the defense produced

a receipt dated June 8 showing the purchase of a case of Ensure from Marlowe’s store and signed

by appellant’s mother, Phyllis Reynolds. The State next called Dominga Bates, who visited her

mother, a neighbor of the Carmans, on a daily basis. She described seeing appellant and Steven

Carman with their older daughter Loretta on many occasions, but she had never seen Stephanie

with them.

The State also called Barbara Pence as an expert witness. Dr. Pence held a Ph.D. and is

an associate professor of pathology in Lubbock. She studies and teaches nutrition. Dr. Pence

began by explaining charts used by doctors to plot the growth of children. She described that in

their early years children typically grow at a predictable rate and maintain an approximately

constant position relative to their peers. A child whose size and weight put her in the 50th

percentile at one year old would normally be expected to be very near the 50th percentile at six

years old. According to Dr. Pence, a significant change in the percentile ranking of a child would

indicate a problem of some type. The State produced a chart showing that Stephanie’s weight at

the time of her autopsy was below the 5th percentile based on her height. Dr. Pence also
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reviewed medical records of Stephanie’s growth from ages 10 months through 31 months. During

that time the records indicated Stephanie was between the 80th and 95th percentile of weight for

her height and that growth was normal.

Dr. Pence next discussed the process of malnutrition. She described two types of

malnutrition which may both exist in varying degrees. The first, Marasmus, is a decrease in the

total number of calories needed, the second, Kwashiorkor, is a severe protein deficiency. She

described the symptoms of Marasmus as a “wasted” appearance where bones are clearly visible.

This is a result of the body breaking down fat, and eventually muscle, for energy. Symptoms of

Kwashiorkor include altered pigmentation of a person’s hair, a buildup of fat in the liver, and

anemia.

Dr. Pence examined the autopsy records and photographs and was questioned concerning

her opinion of whether Stephanie suffered from malnutrition. Dr. Pence opined that Stephanie

was “very poorly nourished” based on her physical appearance including visible bones, bruises

and loss of hair. However, Stephanie’s physical appearance was also consistent with other

conditions, such as cancer. By using other information from the autopsy such as anemia, low

blood protein levels and fat changes in the liver, she concluded that Stephanie was suffering from

a combination of Marasmus and Kwashiorkor, and that it was the result of at least six months of

malnutrition.

Dr. Pence described a syndrome called Psychosocial Deprivation Dwarfism where parents

describe their children as eating excessively. Parents will restrict the child’s diet to the point

where the child becomes malnourished. The child will exhibit behavioral problems as a result of

inadequate nutrition often leading to further restrictions of food.
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Over appellant’s objection, Dr. Pence testified that a sudden increase in food intake could

cause a severely malnourished person to experience heart failure. This is the result of a weakened

heart being unable to supply the blood needed by the stomach and intestines. The autopsy

indicated that Stephanie had a significant amount of food in her stomach when she died. In her

review of the blood analysis from the autopsy report, Dr. Pence noted several unusual values,

including low red blood cell count and blood proteins, albumin in particular. Stephanie also

exhibited a high value for creatinine which indicated to her the breakdown and use of muscle

tissue for energy. Dr. Pence felt that a person with the low amount of albumin present in

Stephanie’s blood would have been very lethargic and probably unable to walk in the hours before

the blood sample was taken. She also agreed that it is possible in some circumstances that a child

could lose well over half their body weight yet survive. She distinguished those cases from

Stephanie’s condition, citing the low blood protein levels and anemia.

In cross-examining Dr. Pence, the defense cited an article on Psychosocial Deprivation

Dwarfism relied on by Dr. Pence. In that article, the doctor discussed several tests and

background information required to diagnose that condition. While Dr. Pence conceded that the

tests had not been performed, she also asserted that the tests could not be performed after death.

She also rejected the defense's contentions that the blood tests were distorted by the IV solution.

Dr. David Hoblit performed the autopsy on Stephanie. His testimony began with a

description of his background and training. Dr. Hoblit recounted that his residency included work

in forensic pathology and that he worked as an associate medical examiner in Corpus Christi. He

taught pathology at the University of California in the early 1970s and had an article published

in 1974. Although Dr. Hoblit was board certified in clinical pathology but not forensic pathology,

he estimated that he had performed some 800 autopsies, 400 of which were forensic autopsies.
 

1

In response to defense challenges to the accuracy of the scale, the State called the Nursing

Supervisor at University Medical Center, Nancy Smith. She provided the scale that Dr. Hoblit

used to weigh Stephanie before the autopsy. Smith described how the scale is stored and

calibrated before use. She was also present when Dr. Hoblit weighed Stephanie twice. She

calibrated the scale between the first and second weighings and remembered that the scale

indicated the same weight both times.

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He described his familiarity with research on deaths related to malnutrition, which were typically

the result of improper efforts at weight reduction. He also stated that he participated in the

autopsies of two women who died from misuse of diet pills. Dr. Hoblit helped design the

laboratory monitoring portion of a weight reduction program operated in California.

Dr. Hoblit described the steps he took in conducting the autopsy of Stephanie Carman.

He began by obtaining the records made in the emergency room. Before conducting the autopsy,

Dr. Hoblit contacted Dr. Garcia, a pediatrician and director of a child abuse center, an

ophthalmologist, and a photographer. He also requested x-rays of Stephanie's entire body. When

he weighed her on a scale provided by the University Medial Center, Dr. Hoblit found that

Stephanie weighted 43.8 pounds.1

 According to measurements made about 18 months prior to her

death, her weight put her between the 50th and 75th percentiles. Based on continued growth at

a normal rate, Hoblit estimated that Stephanie should have weighed between 58 and 66 pounds.

Dr. Hoblit found that Stephanie had only 0.5 centimeters of subcutaneous fat. He had

never seen a person with a measurement of less than 1.2 centimeters. He also found 25 to 35

percent hair loss. According to the medical literature upon which he relied, hair loss begins four

to six weeks after significant nutritional deprivation. Stephanie’s hair also exhibited

hypopigmentation (loss of pigment) which results from periods of severe protein deprivation.
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In examining x-rays of Stephanie, Dr. Hoblit found “growth arrest” lines in the long

bones. Malnutrition is one of the causes of growth arrest. Dr. Hoblit described Stephanie’s heart

weight as 22 to 26 percent less than what it should have been. He stated flatly that that condition

was life threatening and caused Stephanie’s death. He also stated that her hemoglobin value of

4.5, less than half a normal value, could have independently caused her death. Malnutrition can

also cause a reduction in hemoglobin. He found such a reduction in Stephanie’s blood.

Stephanie’s serum protein was 2 grams when a normal value is between 6 and 8 grams, which the

doctor also attributed to malnutrition. According to Dr. Hoblit, Stephanie’s blood pH of 6.8 was

significantly below the normal of 7.4 and was also a life threatening condition. He attributed the

low pH value to the use of fat stores for energy. His tests revealed no drugs in Stephanie’s body

at the time of her death. He also stated that the IV fluids given would not have altered these

findings.

Dr. Hoblit described Stephanie as exhibiting all ten symptoms listed in medical texts for

Kwashiorkor. He also described two types of malnutrition: primary, where there is an inadequate

diet; and secondary, where the malnutrition results from an inability to absorb or use nutrients.

His examination of numerous internal organs convinced him that there was no possibility of

secondary malnutrition. He described Stephanie’s heart as “absolutely 100 percent diagnostic of

[Kwashiorkor].” Examination of Stephanie’s lungs did not show that aspiration of food particles

was a cause of her death; however, he did find extensive loss of muscle in her diaphragm, which

would have affected her ability to breath.

Dr. Hoblit also described the examination of Stephanie’s stomach. He determined it was

40 to 50 percent full and specifically noted that it contained identifiable cubes of potatoes that

showed no sign of having been chewed; however, it did not contain any pills. The stomach
15

contents he examined were not consistent with the list of Stephanie’s meals that appellant gave the

police. In response to a hypothetical question from the State, Dr. Hoblit opined that even if

aspiration of food was the actual cause of Stephanie’s death, her other conditions were extremely

life threatening.

On cross-examination, the defense initially explored the relationship between Dr. Hoblit

and Lubbock County. Beginning in May 1992, Dr. Hoblit negotiated with Lubbock County to

hire forensic pathologists to perform autopsies for the County. On July 16, 1992, the County

entered into a $200,000 per year contract with Dr. Hoblit’s association. After having offers

rejected by two candidates, he hired Dr. Jody Nielsen, who left for a job in Beaumont shortly

after arriving. When asked why she left, Dr. Hoblit gave specific examples of problems. He

recounted three incidents where Dr. Nielsen objected to his scheduling autopsies she was to

perform, rather than directing requests for autopsies to her to schedule. She objected to law

enforcement officers “looking over her shoulder” when performing autopsies. Dr. Hoblit also

described her as being friends with Sergeant Bill Hubbard of the Lubbock Police Department.

This friendship caused additional tension when Hubbard became the target of an investigation by

the Lubbock County District Attorney.

The defense then re-examined the possible IV contamination of the blood samples. Dr.

Hoblit stated that the amount of calcium in Stephanie’s blood was high, contrary to what would

be expected in a malnourished person; however, one of the IV solutions administered to Stephanie

contained calcium. Because he characterized non-congenital thyroid disease before adolescence

as “almost nonexistent,” he examined the thyroid only generally and did not dissect it or prepare

slides from it. Finally, he described malnourishment as a diagnosis of exclusion only to the

degree that secondary malnutrition must be excluded to diagnose primary malnutrition.
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The State’s next witness was Dr. Ewell Clarke, a pediatric radiologist who teaches at the

University of Texas at San Antonio. Dr. Clarke examined the x-rays of Stephanie taken after her

death. He described two abnormal findings present in the x-rays. First, there was no detectable

subcutaneous fat which is normally visible, although the muscles were within normal limits.

Second, there were several growth arrest lines present in the bones of Stephanie’s legs. These

growth arrest lines indicate some severe stress such as cancer, a surgery, deprivation of food or

inability to absorb food. He indicated that the causal stress occurred within the previous 9 to 12

months.

Although he acknowledged on cross-examination that he had seen hyperthyroidism in a

seven year old, he was not asked whether those cases involved congenital conditions. He opined

that he had never seen a case where growth arrest lines were the result of emotional disturbance,

although he was aware of the possibility of such cases through his perusal of medical literature.

Dr. Clarke estimated that he would expect to find growth arrest lines in about 10 percent of

children.

The State then called Nina Stolzenberg, an intern in child psychology who saw Stephanie

from August 1990 through July 1991. She described Stephanie at that time as thin, but not so thin

as to cause concern. One of the tools Stolzenberg used to evaluate a new patient was to ask what

they would wish for if they had three wishes. Stephanie’s wish was for a fork, a knife and a

spoon. Stolzenberg testified that Stephanie did very poorly on some standardized tests. The

Carmans had expressed concern to Stolzenberg that Stephanie had been given strong alcohol and

been undernourished when she was an infant and that may have impaired her development.

Stolzenberg described the Carmans’ participation as minimal, giving as an example their canceling
17

or failing to show up for at least 20 percent of the appointments that were made. The therapy

ended at the request of appellant.

The State next called Dr. Robert Bux, a medical examiner from Bexar County certified in

anatomical, clinical and forensic pathology. Dr. Bux examined the results of Stephanie’s autopsy

and gave his opinion as to her death. He began by noting several abnormalities in the blood tests,

specifically high calcium, low sodium, and extremely low protein, hematocrit and hemoglobin.

Dr. Bux dismissed the calcium and sodium values on the basis that the samples could have been

affected by the IV solution or an error in the operation of the testing equipment. Because other

values such as the enzyme levels were normal, he felt the blood samples were “valid.”

Dr. Bux also noted the absence of subcutaneous fat in the x-rays and photographs taken

at the autopsy and the growth arrest lines in the x-rays. The condition of the food found in

Stephanie’s stomach indicated to him that she had eaten just before she died. Because of the lack

of inflammation in the lungs, Dr. Bux believed that any aspiration of food occurred essentially

at the time of her death and was probably a result, rather than a cause, of her death. He also

noted the loss of muscle in her diaphragm and the fibrosis in her heart, both of which are

consistent with malnutrition. The autopsy information did not show any form of cancer or other

medical problem that might have accounted for Stephanie’s emaciated condition. Dr. Bux

concluded that Stephanie suffered solely from starvation and malnutrition due to lack of food.

This was so even though the autopsy showed several organs, including the spleen, thyroid, adrenal

glands, and the endocrine system were normal.

In response to defense evidence suggesting the existence of other causes of Stephanie’s

condition, the State called Dr. Wilhelmina Tengco, a child psychiatrist who had treated Stephanie
18

in 1990. Based on her examination and treatment of Stephanie, Dr. Tengco determined that she

did not suffer from an eating disorder, hyperthyroidism, leukemia or inability to absorb nutrients.

However, on cross-examination she admitted that she did not perform any laboratory tests for any

of these conditions. When queried, Dr. Tengco disagreed with the proposition that emotional

problems affected physical growth.

The defense began its case in chief by calling Tommy Debs Crawford, another paramedic

who responded to appellant’s 911 call. He was the first emergency medical person at the scene

and wrote the emergency medical service report on the event. When he first arrived, Steven

Carman was attempting to clear Stephanie’s mouth so she could breath. When Crawford began

working on Stephanie she had no pulse and a “huge” amount of vomit in her mouth had to be

cleared away. With the assistance of other paramedics, Crawford was able to force oxygen into

Stephanie’s lungs using a tube; however, the low level of oxygen subsequently found in

Stephanie’s blood indicated that the CPR was generally not effective.

Crawford’s report described Stephanie as “unresponsive, ” meaning there was no reaction

to any stimuli, including pain. It was his opinion that Stephanie had been in that condition for

“awhile” before they were called. He described appellant as “tearful and distraught.” When he

questioned appellant about Stephanie’s doctor, she replied that Stephanie did not have one.

Crawford also confirmed the other paramedics’ description of the room as very bare, with only

a bunk bed and a chest.

The defense also presented the testimony of Irwin Okun, the Carmans’ neighbor.

Although he admitted having Alzheimer’s disease, Okun remembered seeing Stephanie on two
19

specific occasions and that she seemed normal. Loretta visited the Okuns on several occasions

but Stephanie and her parents did not.

Cora Colleen Riley Carman, who goes by "Carla," is married to Steven Carman’s brother

and has worked as a nurse’s aid. She visited appellant’s home at least once or twice a week, often

accompanied by her children. Carla’s family would often celebrate holidays at Steven and

appellant's home. Many of these visits included having meals together. On those occasions

Stephanie ate with the rest of the family. She directly contradicted the testimony of Shelly

Carman, stating that appellant and Steven Carman never deprived Stephanie of food or kept her

locked in her room. According to Carla, the only time Stephanie was required to stay in her room

was to finish schoolwork. She also stated that Shelly had never been at appellant’s home without

Carla and also contradicted Shelly’s description of Stephanie’s exclusion from the Carmans’

Christmas Day activities.

Carla testified that she had been in Stephanie’s room on many occasions, including the

week before her death, and that the room was always as it appeared in the photographs taken

shortly after Stephanie’s death. She described Stephanie as having a short attention span,

developing slowly and more likely to have emotional outbursts than most children. As long as

she had known Stephanie, she was “just a little, skinny, little kid” and had not suffered any

noticeable weight loss.

On the day Stephanie died, Carla left work at 3:15 p.m. and went to appellant’s house.

Upon greeting her at the door, appellant told Carla that Stephanie would not eat and had not eaten

all day. Although Stephanie would not talk to Carla, she did eat some pudding at Carla’s request.

After eating, Stephanie went to the sink and got a glass of water. Carla described Stephanie’s
 

2Carla acknowledged that there was a slight discrepancy between her account and appellant's,

which described Stephanie slumping out of a chair onto the floor.

20

walk to the sink as skipping or hopping. After drinking the water, she returned to the table and

“lowered herself down” to the floor and sat there. 2 Carla and appellant discussed taking Stephanie

to a doctor because of Stephanie’s failure to eat, and appellant told Carla that she would probably

take Stephanie to a doctor after Steven got home. When Carla left the house at about 4 p.m.,

Stephanie was lying on the floor by her bedroom, but that did not strike her as unusual. Shortly

after she arrived home, Steven Carman called to tell her that Stephanie had been taken to the

hospital. Carla, her son, and her husband went to appellant's house and then to the hospital with

Steven Carman. She described Steven as being in a “state of numbness.”

Daniel Carman, Carla and Michael Carman's son and Stephanie’s cousin, spent the last

six weeks of the 1991-1992 school year at appellant and Steven Carman’s home, returning to his

own home a week before Stephanie’s death. He testified that during his stay he ate with the

Carmans and Stephanie always ate with the family. He also played with Stephanie in both the

front and back yards of the house, although he did say she spent most of her time in her room.

Daniel had been in Stephanie’s room on many occasions and said that it always appeared as it did

in the June 10 photographs. Daniel also contradicted Shelly’s account of the previous Christmas,

saying Stephanie was not excluded from the family’s activities. On the day Stephanie died, Daniel

was at the Carmans' house from early morning until his mother took him home at about 4 p.m.

He saw Stephanie walking around the house earlier in the day and said she was acting normally

at that time.

Daniel’s sisters, Sybil and Paulette, echoed much of his testimony. They had also visited

the Carmans’ house on many occasions, often spending the night. Both stated that Stephanie
 

3

In response, the State called Ann Garton, an employee of a New Mexico social service agency

who was present during Loretta’s interview with Detective Casey. She testified that Casey did

not make any attempt to intimidate or pressure Loretta into giving particular answers to his

questions.

21

regularly ate with the rest of the family. They remembered Stephanie’s room being as it appeared

in the June 10 photographs. The only time Sybil was aware that Stephanie was required to stay

in her room was when she was “in trouble” with her parents. The sisters last saw Stephanie a

week before her death and did not perceive that anything was wrong with her.

Stephanie’s sister, Loretta, testified that she saw their natural mother put Everclear in

Stephanie’s bottle on many occasions. Loretta described the bottle and recalled reading the label.

She also contradicted Shelly Carman’s claim that Stephanie did not eat with the rest of the family.

Loretta also disputed the State’s evidence that Stephanie’s room was barren. A videotape

introduced through Loretta showed Stephanie participating in Christmas activities in 1990 and

1991; however, the tape purported to be the Christmas 1991 tape showed only members of the

immediate family and did not show Loretta and Stephanie’s cousins, or Carla and Michael

Carman, as being present that day. In response to questions by the State, Loretta could not

identify any photographs or videotapes made between Christmas 1991 and Stephanie’s death the

following June. Loretta also testified that on June 8, 1992, Stephanie looked and acted normally.

When Steven came home from work that day, Steven asked Loretta to make coffee for him,

walked toward the master bedroom, and saw Stephanie lying on the floor of her room. Steven

then ran back to the kitchen and told appellant to call 911.

Describing her interview with Wayne Casey in New Mexico, Loretta denied that she had

been told what to say and said Casey was the only person who pressured her to make particular

statements.3

 She described previous occasions when Stephanie would refuse to eat for a few days
22

and told Casey that on occasion Stephanie would eat too much. Loretta knew that there was a

lock on Stephanie’s door that was used to keep her from getting up at night and eating “a lot.”

Loretta then denied initialing the pages of her statement and suggested that Casey put them on the

statement.

A family friend, JoAnn Jackson, testified that she and her family spent the Memorial Day

weekend before Stephanie died with the Carmans. Jackson, who had raised nine children,

described Stephanie’s appearance as normal. The only difference she observed in Stephanie’s

appearance between Memorial Day 1992 and the previous visit in April 1991 was that Stephanie

was taller; however, as the State pointed out, Stephanie had grown less than an inch in that period.

Jackson described Stephanie’s room as it appeared after her death. She also stated that Stephanie

ate with the family and occasionally ate a large amount.

The defense medical expert was Dr. Jody Nielsen, a forensic pathologist working in

Beaumont. Dr. Nielsen examined the autopsy report and much of the evidence on which it was

based. She was of the opinion that the small abrasions pointed out by the State’s experts actually

occurred after death. She discounted the hair loss saying it was consistent with Stephanie pulling

her hair out and that there was evidence of new hair growth. Dr. Nielsen was critical of Dr.

Hoblit’s failure to preserve a hair sample that illustrated the loss of pigmentation he found

indicative of malnourishment, suggesting instead that the photographs of Stephanie’s hair merely

showed reflections of light. Concerning the exclusion of secondary malnutrition through an

inability to absorb nutrients, Dr. Nielsen stated that the slides made of Stephanie’s intestine no

longer showed the structures needed to make that determination. She made a similar assertion
23

with regard to excluding the existence of leukemia, contending that a bone marrow sample was

necessary.

Dr. Nielsen disagreed that there was fatty metamorphosis in Stephanie’s liver. She found

that the fat layer around the heart was normal for a child and that the heart weight was normal.

She said these findings were inconsistent with malnutrition. She also suggested that Dr. Hoblit

“doesn’t know what a child’s heart look[s] like normally” and even suggested that he was

“manipulating the studies to say what he wanted it to say.” She challenged the electrolyte results

obtained from the blood samples on the basis that blood is not an accurate indicator after death

and opined that testing the vitreous fluid was required. According to Dr. Nielsen, Stephanie's

subcutaneous fat measurement of 0.5 centimeters was normal. In her opinion, none of the autopsy

findings are pathonomic or diagnostic of malnutrition.

In Dr. Nielsen's opinion, hyperthyroidism could account for both increased activity level

and metabolic rate resulting in weight loss. One of the hormones that would indicate

hyperthyroidism, T4, could be tested after death, but this test was not performed on Stephanie.

She also noted that no samples of the thymus, adrenal glands, or pancreas were taken, although

each would show evidence of malnutrition. In her opinion, because of Stephanie’s psychiatric

problems and eating disorder, the growth charts described by Dr. Pence did not apply to

Stephanie. Suggesting that Stephanie’s death could have been the result of another disease, Dr.

Nielsen pointed to a blood culture that indicated the presence of beta strep group b, an infectious

organism that “has caused death . . . even in normal healthy people.”

On cross-examination, the State elicited the fact that Dr. Nielsen had never performed an

autopsy where malnutrition was determined to be the cause of death nor had she received training
24

in the field of nutrition. She also declined to estimate the number of autopsies she had performed

on children. Dr. Nielsen admitted that she was not familiar with Stephanie’s previous medical

history, but she did not think knowledge of that history was significant in determining the cause

of Stephanie's death. She also admitted she had not reviewed all of the autopsy results and, in

particular, she had not examined the x-rays relied on by Drs. Clarke and Bux.

The defense called Steven Carman’s mother, Lodina Kelly. She related that although he

is large as an adult, he was very thin as a child. After Loretta and Stephanie went to live with

appellant and Steven Carman, Lodina questioned Myrtis about putting Everclear in Stephanie’s

bottle and, according to Lodina, Myrtis did not deny it.

In her legal insufficiency argument and citing Clark v. Procunier, 755 F.2d 394 (5th Cir.

1985), appellant advances the proposition that if the evidence, viewed in the light most favorable

to the prosecution, gives equal or nearly equal circumstantial support to guilt or innocence, then

a jury must entertain a reasonable doubt. Id. at 396. This proposition has recently been

reaffirmed by the Fifth Circuit in United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996);

however, as we have stated above, in measuring the legal sufficiency of the evidence, both direct

and circumstantial, we apply the Jackson v. Virginia test. See Geesa v. State, 820 S.W.2d 154

(Tex.Crim.App. 1991). Moreover, even assuming, arguendo, that the Clark test is applicable

here, we believe the differences in the nature of the evidence presented in Clark and in this case

are so significant as to make Clark inapplicable. In Clark, a business was burglarized and a safe

containing motor vehicle inspection stickers was moved to a back door of the building.

Apparently, part of the safe was outside the building. Some time later, stolen inspection stickers

were found in Clark’s wallet and his palm print was found on part of the safe. Thus, his

conviction depended upon an inference, based on meager evidence, that he entered the building,
25

moved the safe, and stole its contents. The court held the evidence was no more supportive of

that inference than of the inference that Clark only touched the safe after it had been moved to the

door; thus, was not sufficient to support a burglary conviction.

In this case, the jury’s findings were more dependent upon its resolution of the conflicting

evidence before it than upon inferences drawn from relatively undisputed evidence. It is well

established that determining the credibility of witnesses and the weight to be given their testimony

is within the peculiar province of the factfinder. McFarland v. State, No. 71,557 (Tex.Crim.App.

Feb. 21, 1996); Billey v. State, 895 S.W.2d 417, 419 (Tex.App.--Amarillo 1995, pet. ref’d).

This deference to the factfinder goes so far as to permit consideration of testimony that an

appellate court might find incredible. Cacy v. State, 901 S.W.2d 691, 703 (Tex.App.--El Paso

1995, no pet.). It is only when testimony is factually impossible that it must be ignored. United

States v. Casel, 995 F.2d 1299, 1304 (5th Cir. 1993).

The jury in this case was presented highly contradictory evidence; however, appellant has

failed to identify any testimony from the State’s witnesses that was factually impossible or

otherwise incredible. When viewed in the light most favorable to the prosecution, the evidence

was sufficient to permit a rational factfinder to find that appellant intentionally or knowingly, by

omission, caused serious bodily injury to Stephanie Carman; thus, it is legally sufficient to require

submission to the jury for a guilt or innocence determination and the trial court acted properly in

doing so. Appellant’s first point of error is overruled.

Reiterated, consideration of appellant's challenge to the factual sufficiency of the evidence

requires a review of all the evidence without viewing it in the light most favorable to the

prosecution. If that review convinces us that the jury verdict is so contrary to the overwhelming
26

weight of the evidence as to be clearly wrong and unjust, we must remand the case for retrial

before another jury. Clewis, supra, slip op. at 11.

We are instructed that in conducting such a review, we must not substitute our judgment

for that of the jury. Clewis, slip op. at 12-14. Appellant argues that we “should review the

evidence of Dr. Nielsen to determine whether the testimony is a more plausible explanation for

Stephanie’s death and/or serious bodily injury.” (emphasis added). However, that of necessity

involves a determination of the credibility of the witness and the weight to be given her testimony.

This is precisely the type of review the Clewis court instructed us to avoid; indeed, it quoted with

approval the Supreme Court's comment in Pool v. Ford Motor Co., 715 S.W.2d at 634, that

courts undertaking a factual sufficiency review “are not free to reweigh the evidence and set aside

a jury verdict merely because the judges feel that a different result is more reasonable.” Clewis,

slip op. at 13-14. We are bound by that instruction.

It is only when an appellate court reverses a judgment based on factual sufficiency that it

must detail the relevant evidence and explain why that evidence is factually insufficient. Clewis,

slip op. at 14 (citing Meraz v. State, 785 S.W.2d 146, 154 n.2 (Tex.Crim.App. 1990); Pool, 715

S.W.2d at 635. Suffice it to say that we have carefully reviewed the evidence recounted above.

The jury's resolution of the conflicts in that evidence was well within their province and was not

against the overwhelming weight of the believable or credible evidence. Appellant's second point

is overruled.

In her third point, citing and relying upon Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968), appellant assigns error to the admission of Steven’s written

statement in violation of her sixth amendment right of confrontation. In response to that
27

proposition, the State argues that 1) appellant waived any complaint about the admission of

Steven’s statement, 2) Steven’s statement was merely cumulative, and 3) a ”Bruton error may not

occur when both [defendants’] statements are entered.”

In Bruton, the United States Supreme Court held that the admission of a non-testifying codefendant’s statements incriminating the defendant violates the defendant’s sixth amendment right

of confrontation. 391 U.S. at 126. See also Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065,

13 L.Ed.2d 923 (1965). Based on its holding in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964), that an instruction to the jury to disregard a defendant’s confession if it

found the confession to have been given involuntarily was insufficient to safeguard the defendant’s

due process rights, the Bruton Court reasoned that an instruction limiting the purposes for which

a jury could consider a non-testifying co-defendant’s statements afforded no greater protection.

Bruton, 391 U.S. at 135. This holding was soon applied by the Court of Criminal Appeals to

invalidate a prior rule allowing statements of a principal to be used in the prosecution of an

accomplice. Schepps v. State, 432 S.W.2d 926, 943 (Tex.Crim.App. 1968) (op. on reh' g).

The relationship between co-defendants' statements was further explicated in Cruz v. New

York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). In that case, the Court overruled

previous authority to the contrary and held that admission of a non-testifying co-defendant’s

incriminating statement was error regardless of a limiting instruction or the admissibility of a

corroborating statement made by the defendant. 481 U.S. at 193-94. Consequently, the State’s

third argument challenging this point is without merit; however, the Cruz Court did acknowledge

the possibility that the defendant’s statements could render admission of a co-defendant’s

incriminating statements harmless. 481 U.S. at 194.
 

4At issue were two portions of Stephen’s statement concerning appellant’s fear of “Social

Services becoming involved again.” Appellant sought to exclude the entire sentence rather than

just the word “ again.”

28

As we note, the State also argues that appellant waived any error that might have occurred

when Steven’s statement was admitted by failing to object to its admission. The record shows that

when the officer who took the defendant’s statements began to testify concerning the statements,

the following colloquy occurred:

The Court: Is there anything we need to take up before we have the jury back in?

Defense: Yes, Your Honor.

Court: All right.

Defense: There are certain matters contained in each statement of Steve Carman

that we feel like should be redacted. There is the original, and here is [sic] some

of the things that we’re pointing out to the court.

Court: All of the highlighted portions?

Defense: Well -- And let me point out to you, Judge, that this sentence right here

probably needs to be -- the entire thing needs to be redacted, because if you redact

one word, it’s going to be pretty obvious. You know, they can fill in the blank

type thing is what I’m saying. So, I think those entire sentences need to be taken

out.4

Court: All right. Have you all seen this [proposed redacted statement]?

Prosecutor 1: No, your Honor.

* * *

Prosecutor 2: The second page, we don’t have any problem at this point with

“when we lived in New Mexico,” [being taken out] but we do have a problem with

“I had a concern about Pat using food as an incentive with Steph.” That goes to

the heart of our proof, our issue here.

Court: Well, it's pretty clear what time frame he’s talking about, though. I mean,

when we lived in New Mexico is the time frame.
29

Defense: Judge, this problem comes up a lot in federal court, and it’s called the

Bruton problem. And what happens is if Steve Carman didn’t testify, and you all

let that in, then I get to comment on his failure to testify to impeach this. And

then, we’ve got two mistrials is why it should be redacted in my opinion.

The trial court removed the entire sentence about Steven’s concerns when the family lived in New

Mexico. It also removed two occurrences of the word “again” as described in the objection

quoted below, but declined to remove all of the sentences. When the State sought to introduce

Steven’s statement, appellant made the following objection:

Defense: All right. Your Honor, if I need to state my objection again, I’m looking

at page two on Stephen [sic] Carman’s statement, wherein it says, “I remember Pat

saying that she was concerned about taking Stephanie to the doctor because she

thought Social Service would get involved,” and then there’s a blank. I object to

that statement as a 404(b) matter, that it shows or attempts to show an act of

misconduct. It’s an attempt to show unfair prejudice, other than the charge we

have.

Then I object, “I think it was Tuesday of last week that Pat told me she was force

feeding Stephanie because she didn’t want Social Services becoming involved.”

There is no period after it. There’s just a blank. So, once again, there will be no

doubt what this jury will interpret from reading this. And we submit its 404(b)

matters that are -- that the Court has previously ruled are not admissible, and that

therefore, Pat Carman’s right to due process under the United States Constitution,

Fifth and Fourteenth amendments, Article I, Section 19 of the Texas Constitution,

Article 1.04 of the Texas Code of Criminal Procedure will be violated by allowing

this in. I also object that it violates Bruton versus U.S. And that in final argument,

there could be a requirement that I point out if Mr. Carman does not testify.

Court: All right. The objections are overruled.

Prosecutor 1: Very quickly before the jury comes back in, it’s my intent - -

Defense: Your Honor, I also just ask that there be a period put after those

sentences.

Court: Fine. I don’t have any problem with that, and I’ll just put a period. *

* *
30

In support of its position, the State makes several arguments: 1) that the objections were

only to the cited portions of Steven’s statement rather than to the statement as a whole, 2) she

failed to make a pretrial motion to suppress the statement, 3) she failed to seek a severance, 4) she

failed to request a limiting instruction.

In order to preserve error for appellate review, a party must make a timely request,

objection or motion stating the specific grounds for the ruling he desires the court to make if the

specific grounds are not apparent from the record. Tex. R. App. P. 52(a). The purpose of this

rule is to allow the trial court to make a determination and ruling and then proceed with the trial

under the proper procedural and substantive manners, as appropriately corrected by the trial court.

Janecka v. State, 823 S.W.2d 232, 243-44 (Tex.Crim.App. 1990) (op. on reh' g). Requiring that

an objection be made at a time when there is an opportunity to respond and cure any error is

dictated by considerations of fairness and judicial economy. Young v. State, 826 S.W.2d 141, 149

(Tex.Crim.App. 1991). Those are the justifications for the rule that in instances where a

defendant’s objection at trial does not comport with her complaint on appeal, nothing is preserved

for review. Cravens v. State, 687 S.W.2d 748, 752 (Tex.Crim.App. 1985).

It is apparent that appellant's complaint on appeal is based directly on the Supreme Court’s

holding in Bruton. Although appellant specifically cited Bruton in making her objection, it

appears clear to us from the objections quoted above and the way in which appellant referred to

Bruton, that the objection was to specific portions of Steven’s statement, not the entire statement.

In the initial objection, appellant referred to Bruton as support for “why it should be

redacted,” not why the statement should be "excluded." Appellant’s second objection that “it

violates Bruton” is ambiguous when taken by itself; however, when read in conjunction with the
 

5Robert York’s grandmother was the sister of Lloyd Cody’s father-in-law.

31

rest of the objection identifying specific portions of the statement she found incriminating, the

pronoun it appears to refer to those specific parts of the statement rather than the statement as a

whole. That being so, appellant’s trial objection was not sufficiently definite to preserve her

complaint that the trial court erred in admitting Steven’s statement as it was admitted. Appellant’s

third point is overruled.

In her fourth point, appellant contends the trial court erred in overruling her motion for

new trial based upon alleged juror misconduct. The facts upon which appellant bases this point

involved juror Robert York and the State’s witness Lloyd Cody. During voir dire, the jury panel

was asked to complete a questionnaire. One of the questions asked if the panel member knew any

of the potential witnesses on a one-page list. Lloyd Cody was the eighteenth of 98 names. When

questioned individually, York stated that he did not know anyone on the list. At the close of voir

dire, appellant renewed several challenges for cause which were denied. After using peremptory

challenges to remove several panel members, appellant sought additional peremptory challenges

to remove, inter alia, York. This request was also denied.

After Lloyd Cody testified, York notified the trial court that he knew Lloyd Cody. This

resulted in a hearing on the matter. At that hearing, York described his relationship with Cody

as limited to “casual contact” at church activities. Based on York’s answers at that hearing, the

parties made no objection to his continued participation as a juror.

In appellant's post-trial motion for new trial, she urged juror misconduct. The trial court

held another hearing at which appellant presented additional evidence of York’s relationship with

Cody. Cody testified that his wife was York's cousin. 5

 Although some years earlier they had
32

attended family gatherings together, he said their recent relationship was primarily through church

activities and they had not visited each other’s homes. He and York were first acquainted through

the church well before they became related. On one occasion when Cody was seventeen and York

was about seven, their families had taken a vacation together. Juror York testified at the hearing

that he had not seen Lloyd Cody’s name on the witness list when he completed the questionnaire.

Although he remembered the vacation with Cody’s family, York claimed he was about 4 and did

not remember Lloyd Cody being present. According to York, they had not attended a family

gathering together for approximately 10 years. He averred their recent relationship had been

limited to “casual” contact at church events.

It is the rule that when a juror withholds material information during voir dire, the juror

denies the parties an opportunity to intelligently exercise their challenges and obtain an impartial

jury. Jones v. State, 596 S.W.2d 134, 136 (Tex.Crim.App. 1980). Several decisions of the

Court of Criminal Appeals hold that information is not “withheld” unless the juror is “ask[ed]

questions calculated to bring out that information which might be said to indicate a juror’s

inability to be impartial and truthful.” Armstrong v. State, 897 S.W.2d 361, 363-64

(Tex.Crim.App. 1995).

Initially, we disagree with the State’s argument that defense counsel did not ask properly

focused questions concerning this matter. The question on voir dire was simple and direct: "Do

you know anyone on the one-page witness list?" When juror York became aware that he did

know one of the witnesses, his negative answer to the question amounted to the withholding of

evidence and required the court hearings to determine the effect of that error. Whether intentional

or not, York withheld information.
33

We initially note the language in Von January v. State, 576 S.W.2d 43, 45

(Tex.Crim.App. 1978), that the significance of a juror’s relationship with other participants in a

trial is for defense counsel and not the juror to determine and, in order to make that

determination, counsel is entitled to know the facts concerning that relationship. In Von January,

a murder case, the foreman of the jury failed to reveal a close and long acquaintance with the

family of the victim, and even though the juror recognized the victim's grandfather when he

entered the court room, failed to respond to defense counsel's question whether any of the juror's

knew members of the victim's family. The juror admitted he may have erred in not answering

the question, but rationalized his failure to answer by saying that although he knew and recognized

the victim's family, he did not answer "because he did not have any close personal dealings with

the family." Id. at 45. Based on these facts, the appellate court determined reversible error was

shown. In doing so, the court placed emphasis on the fact that the juror's acquaintance was with

the family of the victim and, additionally, that the juror served as foreman of the trial jury, "a

position of influence."

In reaching its conclusion, the Von January court contrasted the facts before it with those

before the court in Babin v State, 149 Tex. Crim. 339, 194 S.W.2d 563 (1946). In Babin, which

also involved the foreman of the trial jury, the juror also failed to disclose the degree of his

relationship with the victim. Although he had said that he "only knew him when he saw him [the

deceased]," he failed to mention that he and the deceased were neighbors in a very small town.

Id. at 566. The appellate court concluded the jury foreman's answer on voir dire "was not so

palpably misleading or intentionally deceptive as to require reversal." Von January, 576 S.W.2d

at 45.
34

The facts before us are more nearly akin to those in Babin than those in Von January.

Here, the juror's relationship was with a minor witness, virtually all of whose testimony was

echoed by other witnesses. Additionally, the variance between the nature of the juror's

relationship and what was not revealed was minimal. The trial court did not abuse its discretion

in refusing to grant the motion for new trial. Appellant's fourth point is overruled.

In her fifth point, appellant assigns error to the admission of testimony concerning her

reputation for being law abiding while living in Moriarity, New Mexico, approximately three

years before Stephanie’s death. In support of this point appellant initially cites Smith v. State, 162

Tex.Crim. 237, 283 S.W.2d 936, 938-39 (1955), which defines general reputation as “what is

generally said about him in the community in which he lives . . . .” Appellant acknowledges but

seeks to distinguish Arocha v. State, 495 S.W.2d 957, 958 (Tex.Crim.App. 1973), which held

“[a] person’s community is not limited to the locale where the case is tried nor his residence at

the date the offense was committed.” Appellant's attempt to distinguish Arocha is unavailing.

In Arocha, the defendant was being prosecuted in Austin for the sale of marijuana. The

witness was asked if he had heard that Arocha was charged with possession of marijuana in

Houston. The appellant argued the question was improper because it did not inquire as to his

reputation "in the community" and Houston could not be consider "in the community" of Austin.

In overruling that contention, the court commented, "[A] person's community is not limited to the

locale where the case is tried nor his residence at the date the offense was committed." Arocha,

495 S.W.2d at 958. 
35

Although Arocha supports the trial court’s decision here, article 37.07, § 3(a) of the Code

of Criminal Procedure is dispositive of this point. This statute governs the types of evidence

admissible at the punishment phase of trial. In relevant part, it provides:

evidence may be offered by the state and the defendant as to any matter the court

deems relevant to sentencing, including but not limited to . . . his general

reputation, his character, [and] an opinion regarding his character . . . .

Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 1996).

Nothing in the foregoing statute limits evidence of a defendant’s general reputation to a

particular community. See also Tompkins v. State, 774 S.W.2d 195, 216-17 (Tex.Crim.App.

1987), aff’d, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989) (holding defendant’s

reputation in Virginia admissible in Texas prosecution). Appellant’s fifth point is overruled.

In his sixth point, appellant contests the trial court’s refusal to submit a jury instruction

on the offense of endangering a child. It is well established that upon timely request, a defendant

is entitled to an instruction on a lesser-included offense if two conditions are met. First, the lesser

offense must be within the proof necessary to establish the offense charged. Second, the record

must contain some evidence that would permit a jury rationally to find that if the defendant is

guilty, she is guilty of only the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672

(Tex.Crim.App. 1993), cert. denied, __ U.S. __, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993).

Examination of the elements of the Penal Code offenses of injury to a child (§ 22.04(a))

and endangering a child (§ 22.041(c)) suggests that endangering a child is a lesser-included

offense of the second and third methods by which one may commit injury to a child (causing

serious mental deficiency, impairment or injury or by causing bodily injury), but not of the first
36

method (causing serious bodily injury). The most significant distinction between the two offenses

is that endangering a child does not require an actual injury. Here, appellant was indicted for

causing serious bodily injury and serious mental deficiency and impairment. The jury charge

contained instructions on all three methods of committing injury to a child.

Having determined that endangering a child can be a lesser included offense of injury to

a child, we must next determine whether there was some evidence that would have permitted a

jury to rationally find that if appellant was guilty, she was guilty only of the lesser offense. In

order to make such a finding, the jury would have to find that appellant failed to provide

Stephanie with proper nutrition, but neither her bodily injury nor her death were the result of that

malnutrition.

The only evidence that Stephanie’s injury or death might have been caused by something

other than malnutrition came from Dr. Nielsen, who also testified that Stephanie was not suffering

from malnutrition. Consequently, the jury would have to disbelieve the State’s experts who said

Stephanie was malnourished, disbelieve the State's experts on the issue of causation, and believe

Dr. Nielsen’s speculative theory of causation while rejecting her testimony concerning

malnutrition. Given the nature of the evidence, which we have recited in rather exhaustive detail,

we do not agree that the jury could rationally engage in such mental gymnastics. We overrule

appellant’s sixth point.

In her seventh point, appellant assigns error to the admission of the testimony of one of

the State’s expert witnesses, Dr. Pence. Appellant characterizes the testimony as presenting novel

theories and opinion although she “lacked the expertise to make them admissible.” The admission
37

of expert testimony is governed by Rule 702 of the Texas Rules of Criminal Evidence. That rule

provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.

The decision of whether to permit the testimony of an expert witness is within the discretion of

the trial court, Duckett v. State, 797 S.W.2d 906, 910 (Tex.Crim.App. 1990), and will not be

overturned absent an abuse of that discretion. Amos v. State, 819 S.W.2d 156, 163

(Tex.Crim.App. 1991), cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992).

The primary consideration is whether the expert’s specialized knowledge will assist the trier of

fact. Pierce v. State, 777 S.W.2d 399, 414 (Tex.Crim.App. 1989), cert. denied, 496 U.S. 912,

110 S.Ct. 2603, 110 L.Ed.2d 283 (1990). Rule 702 is not satisfied when the witness's knowledge

or expertise is unlikely to exceed the common knowledge or reasoning of the jurors. Id; Alba v.

State, 905 S.W.2d 581, 592 (Tex.Crim.App. 1995).

Careful examination of appellant’s argument in support of this point fails to reveal any

reference to testimony presenting the “novel theories” she seeks to challenge. There are,

however, specific references to testimony that appellant argues was beyond the expertise of Dr.

Pence.

As recited above, Dr. Pence held a Ph.D. and was an associate professor of pathology who

studies and teaches nutrition. Appellant complains that Dr. Pence’s statements that children who

are not fed properly often have behavioral problems because they are constantly hungry,

were improperly admitted because she was not a psychologist or medical doctor. We cannot

agree. Logic would support the testimony of Dr. Pence that those engaged in the study of

nutrition and the effects of malnutrition also study the effects of nutrition on behavior. Admission

of this testimony was proper.
38

Appellant also complains of Dr. Pence’s testimony that overfeeding a severely

malnourished person can cause heart failure. Appellant asserts that admission of this testimony

was improper because Dr. Pence was not a medical doctor or cardiologist. In response to defense

questions on voir dire, Dr. Pence testified that the issue of heart failure was one of the topics she

teaches to medical students. We are unprepared to hold that a person qualified to teach a topic

to medical students is not qualified to give expert testimony on that same topic. Appellant’s

seventh point is overruled.

In her eighth and final point, appellant challenges the trial court’s refusal to submit a

requested instruction to the effect that if the jury found that appellant’s culpable mental state was

merely criminal negligence, they must acquit. Since the indictment only alleged an offense by

omission, an examination of the text of Section 22.04(a) shows this is indisputably an accurate

statement of the law:

A person commits an offense if he intentionally, knowingly, recklessly, or with

criminal negligence, by act or intentionally, knowingly, or recklessly by omission,

causes to a child . . . serious bodily injury.

Tex. Penal Code § 22.04(a) (Vernon 1994).

However, it is established law that an instruction that merely denies an element of the offense need

not be given. Moore v. State, 736 S.W.2d 682 (Tex.Crim.App. 1987). Because the State was

required to prove that appellant acted intentionally, knowingly, or recklessly, the requested

instruction that criminal negligence was insufficient simply sought to negate an element of the

offense.
39

Appellant cites Troyer v. State, 516 S.W.2d 163, 164 (Tex.Crim.App. 1974), for the

proposition that the failure to give a defensive charge on the issue of culpability is reversible

error. In Troyer, the trial court failed to give any instruction on culpability in spite of a specific

request. Here, however, the court’s charge included instructions on intentionally, knowingly and

recklessly, making Troyer inapplicable. See Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.--

Houston [1st Dist.] 1989, pet. ref’d). Appellant’s eighth point is overruled.

In summary, all of appellant's points are overruled and, finding no reversible error in the

proceeding below, we affirm appellant’s conviction.

John T. Boyd

 Justice

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