NO. 07- 94- 016 6-CR IN THE COURT O F APPEA LS FOR T HE SEVE NTH DISTRICT OF TEXAS

AT AMAR

ILLO PANEL B MAY 30, 1996

______________________ PATR ICI A CA RMA N, APPELLA

NT V. THE S TATE O F TEXAS , APPELLEE

______________________ FROM T HE 364T H JUD ICIAL D ISTRICT COURT OF L UBB OCK COUNT Y; NO. 92-415352; HONORABLE BRADLEY S. UND ERWOOD, JUDGE

______________________ B efore DODSON, B OYD and QUINN, JJ. Ineight points of asserted er ror , appellant Patr icia Car man challenges her conviction o f intentiona

llyor know ingly, by omission, causing serious bodily injur y to a child and the consequent

jury-assessed punishment of 50 yea rs co nfinement in the Texas Depar tment of Crim ina l J

usti c e , In st

it ut iona l D ivis ion. App e ll ant ’ s pro se c ut ion a ro se ou t o f the de a th of he r seven-year-old

st e pd a ug ht e r, Stephanie Carman, on June 8, 1992. The State alleged her death was the result of malnutr ition. She and her husband, Steven Ca rm an, S te phani e ' s na tu

ra l f a the r, w e re charged and tried befor e a jury in a joint tr ial that lasted five weeks. The tr ial involved extensive
e xp e rt testimony bearing on Stephanie’s condition and the cause of her de at h. Fo r r easons we later express, we affi

rm the judgmen

t of the trial court.2

Inher eight points, appella nt conten ds 1) the e

vidence is legall y insuffici ent; 2) the evidence i s fa ctually in sufficie nt; 3) the trial court er red in admitting S teven’s stateme nt in violation of appellant’s Sixth am endment right of confr ontation; 4) she was entitled to a new trial based on misconduct of a juror ; 5) there was impr oper admission of r eputation ev idence a t th e punishment

phase; 6) the trial court err ed in refusing toinstruct the jury on the lesser -included offense of enda nger ing a child; 7) the trial cour t err ed in admitting opinion testimony by an unqualified

expert witness; and 8) the trial cour t err ed in refusin g an instruction on cr iminal negligence. The nature of appellant' s challenge in her fir st two points r equi res us to recount the relevant evidence in some detail. It also requir es us to review t he standar ds by which such challenges are measur ed. When reviewing the legal sufficie ncy of the

evidenc e, we are to apply the standard ar ticul ated 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. Cr im. App. 1993). Under this standard, evidenc e is lega

lly suffic ient to sust

ain a conviction

if, when vie

wed in the

light most

favorable to the verdict, a rational factfinder could find the essential elements of the offense beyond a
reason able doubt. Jackson , 433 U. S. at 319. This standar d of review is applied wh ether th e convictionis based on direct or cir cum stantial evidence. Alexand er v. State , 740 S. W. 2d 749, 757 (Tex. Cr im. App. 1987), cert. den i ed , ___ U. S. ___, 114 S. Ct. 1869, 128 L. Ed. 2d 490 (1994). The recent Court of Cr iminal Appea ls decision in Clewis v. State , No. 450-94 (Tex. Cr im. App. January 31, 1996), instructs that when the factual as well as the legal sufficiency of the evidence is challenged, if, a fter applying the Jackson v. Virginiatest we determine the3

evidence was lega

lly suffic ient, we must p

roceed to exam

ine the e vidence without the

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

nce, and if our review convinc es us that the jury verdict is so con trar y to the overwhelming weight of

the evide

nce as to be clearly wr ong and unjust, we remand the case to the trial cour t for r etrial befor e another jur y. Id
. We are cautioned to give pr oper deference to the decision of the jur y and not to attempt to reweigh the evidence and setaside a jury ver dict merely because a different re su lt se e m s m or e reasonable. Indeed, the Clewis court quote d and a dopted the requir ement set out by the Texas Supreme Cour t in Pool v. Ford M otor Co. , 715 S. W. 2d 629 (Tex. 1986), that courts of appea

ls, when reversing

on factu al insuff iciency grounds, must det

ail the evidence relevant to the issue in consideration and clea

rly state why evid

ence isso insufficient that the jury' s verdict is manif estly unjust, why it shocks the conscience or clear ly demonstrates bi a s, and in w ha t re ga rd the c on tra ry 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 Sta te presented the

testimon y of Wilm

a Manning, an employee of th e Texa s Depar tment

of Pro te ct iv e Se rvices. She described a telephone call she received from appellant between 4: 00 and 4: 30 p. m. on June 8, 1992. According to M anning, appellant repeatedly described Ste

phanie' s medic al and me ntal problems, including an eating disorder , compulsive behavior and Attention Deficit Disor der. Manning described appellant’s speech as loud and continuou s, with

little oppor tunity for M anning to talk. In response to Mann ing’s sugg estion to take Stephanie to a doctor, appellant expressed concern about being accused of misconduct. The4

callended 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 t estim ony of the paramedics wh

o initially

responded to appellant’s 911 call. Lloyd Cody, the first par amedic, described Stephan ie as “ mal nourished” because he r e ye s we re sunken and all of her ribs wer e clearly visible. His initial opinion was that she had some serious medica l problem or had not been eating. When he first saw her, Ste phanie
was not breathing and her heart was not beating. Cody descr ibed the room Stephanie was in as

“ barr en” with just a few articles of fur niture. When shown photograp hs of the room taken on June 10, 1992, he said the to ys and some of the furnitur e shown in the photographs wer e not pr esent on Jun e 8 when he saw t he r oom. A second paramedic called by the State, Robert Mello, also described the room in which Stephanie was f

ound as dark and barr en with on lya bed, a nightstand, some empty shelves and
a chair. Mello’s de script ion of Stephanie was “emaciated, ” “ like one of the kids from like a concentration camp or something. ” He cha racter ized appellant as very calm. This descr iption of appellant was not consistent with the EMS (emergency m edical services) r eport wr itten by paramedic Tommy Crawford which described ap pellant a s distraught. Appellan t told Mello that Ste phanie had not been eating for two weeks. In his testimony, Mello descri bed some of the medicalprocedur es taken with Stephanie, including the administration of intr avenous fluids (IV). The State next called Je anette Whalen, anofficer with the L ubbock Police Depar tment who responded to

the Ca rm ans ’ c a ll

f or help
. She also testified that ma ny of the items in the photographs taken two days later , such as the dolls and other toys, were not pr esent on June 8. She st a te d t ha t t he re a son she

re mem bered the toys shown in fr ont of a window in some of the5

photographs were not ther e 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; how e ve r, she did identify a dresser that Mello testified was not pr esent as being in the room on June 8. Whalen

described appellant as crying but not hyster ical. When Whalen s ought to obt

ain
some medical history, appellant told her that Stephanie suffered f r om Post-Traumatic S tress Disor der a s a

re su lt of m is tre a tm

e nt by he r n a tu ra l m ot he r. Appellant also related that she “ had notbeen ab le to get Stephanie to eat at a

ll” the previous week. Ste phanie w as taken

to University Medical Center where she was soon pronounced dead. Bec ause of the circumstances surr ounding her death, an autopsy was requested by a Justice of the Peace. Wayne Casey, anot her officer of the Lubbock Police Depar tment and the principal investiga tor in the case, described his involveme nt beginni

ng with hisattendance at Stephanie’s autopsy onthe even

ing of June

8, 1992. In addition to Ca se y, ot he rs pr e se nt a t t he a ut op sy w e re SergeantBill Hubba

rd, Dr. Da vid Hoblit (who per formed the autopsy), his assistant, an ophthalm ologist, and Dr. Garcia, who had se en S tephanie as a p atient on

previous occasi ons. Casey desc

ribed Stephanie as v ery thin with visible ri bs and sunken eyes. Her skin was “ very, ve rypale, ” she had abr asions and bruises on various parts of he r body and very thin hair with
some patches missing. It was his impression that she had a long ter m illness or had been abused. Casey, Hubb ard, and another officer went to the Car mans’ home on June 10, 1992 t o investiga te her death. Granted per missionto 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 r each. Hubbar d took pho togr aphs of Stephanie’s r oom.6

The Car mans told the off icers t hat Stephanie had be en very distur bed and difficult to handle. They explained that several stains on the carpet wer e due to the fact that Ste phanie would urinate and defecate in her room. The Car mans also provided the officer s with a written r ecord of what Ste phanie had eaten the previous week, from Monday, June 1 through Satur day, June 6, with two notations labeled only Sunday and “ Today, Mon. ” This infor mation was written on an envelope postmarked in H obbs, New Mexico on June 5, 1992. Thr oughCasey, the State introduced a chart that the family had onthe wall of Stephanie’ s room that was used to recor d her height and weight. A notation on the chart showed that Stephanie weighe d 571⁄2 pounds when she wa s seven years and nine months old. At the time of her autopsy appr oximately a month later, Stephanie’s we ight was 431⁄2 pounds. Concer ning the toys he found in Stephanie’ s room, Casey described them as brand new. He also found additional new, unopened to ys in her closet alon g with new dr esses that s till had s tor e tags on th em. Casey interviewed and took wr itten statements from appe llant and Steven Carman. In appellant’s st

a te m e nt , she de sc rib e d S te phani e a s stu

bb or nand 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 [Ste phanie] for about
a week. ” Concer ning the day that Stephanie died, appellant’s statement described Stephanie as

“ mopey” as thoughshe were seeking sympathy. The statement provided that Stephanie did eat
some pudding while

app ell ant ' s sister-in-la

w Ca rla was there that after noon, 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 har d. 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 bec ause she had faked it before.7

. . . Carla left and when I checked on Steph she w as 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 a nd half a glass of water. I decide d to take her to the hospital. I ask ed her if she was hurting an yw he re but she wouldn’t answer me. She was leaning in the c h air. I wa s looking at her to see if she was fa king. I told her if she di dn’ t a ns w e r m e 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 Soc ial S ervice but she wasn’t there but I talked to her s upe rvisor
. I was nervous that something was wr ong, that Stephanie was faking it but the water and the fact she wouldn’t answer me scar ed me and she was hurting but wouldn’t tell me. She didn’t appe ar sick. I’mnot sure what I said. Steve came home while I wa s on the phone and walked inthe back. He r an up the hallway and said, “ call 911, I think she’s dead. ” I dialed 911. Casey admitted

tha t a lt ho ug h a pp e ll ant ha d d e sc rib e d u si ng M& M c and

y a s a re w ard when Ste phanie would complete a school lesson, when he wrote the s tatement he only included that appellant used food as a rewar d and incentive. He did not r ecord any par t of appellant’s oral stateme nt and disa

greed with the ide a that a ta pe recording “ would

be a good way to check and make sure ever ything is accurate. ” Casey also interviewed the couple’s other daughter, Lor etta Car man, while she was staying with family friends in N ew Mexico. Bef ore that inter view, the attorneys r epresenting appellant and Steven Carman requested to listen to the inter view by telephone, to have the interview
recor ded, or to all ow JoAnn Jackson, the family friend with whom Lor etta was staying, to be present. Casey refused allthree r equests. He descr ibed Lor etta’s responses dur ing the interview
as “ coached. ” He said that she was flippant and used words that wer e not typical for her age but were used by her parents. Casey also disagreed with the view, even if it came f rom D r. Hoblit, that any of the bruises on Stephanie’s

bodywere natur al rather than the result of abuse. On cross-examination,8

Casey w ent so far as to say that it was possible for him to determine whether a child has been abused based o n what is pr esent in or absent fr om a child’s r oom. Stephanie’s

natural mother , Myr tis Car man, described Stephanie’s early childhood. The Sta te introduced sever al photographs of Stephanie which Myrt is identified
. She characterized Ste phanie as “ chubby” in several of the photographs and denied ever giving Stephanie alcohol in her bottleso she wou

ld sleep. According to Myr tis, Ste ven Carman talke d her into letting Loretta and Ste phanie st ay with him

to attend school for one year
. At the end of the year she reluctantly permitted S teven Carman and appella nt to keep

the girls. The State called Tammy Fowler, a special education teacher atPa rs on s E le m e nt aryw he re Ste phanie Car man attended

school. Fowler taught a class de signated as a “ social a

djustme nt” class for students diagnosed as emotionally distur bed. Fowler described Stephanie as a very sweet gi rl who loved attention. She felt that most of S tephanie’s m is c on

du c t wa s a n e f f ort t o g e t m or e attentionfrom her
. She said that Stephanie neve

r had a problem with w etting he r pants at school. The teache

r said appellant was involv ed in Steph anie’s e ducation and would

commu nicate w ith her on a regular basis; however, Fowler did not always agree with appellant’s view of what was in St ephanie ’s best int

erest. Fowler stated that she used food as part of a pr ogram of “ rewar ds an d conseq uences.” This involved occasionally giving treats like candy to students for good work and making them comple te projects befor e having lunch. She s aid t hat appellant instructed her not to allow Ste phanie to participate in other student’s birthday par ties at school. While she was in Fowler ’s class, Ste phanie us ually brought her lunch to s chool. Som etimes i t was just a sandwich with a note from appellant that Stephanie was not to have anything else.9

The State presented several notes appellant had written to F owler. These notes included requests that Fowler notgive Stephanie rewards such as candy or small gifts (such as an eraser ),
or that Stephanie not brush her teeth at school beca use “ thi s is very unsanitar y with all the diseases going around. ” Another note instr ucted Fowler to limit the time in which Stepha nie 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 r eason she would is she is being distr acted from the task of

eating -and she m

ust be foc

used!!” F owler als o commented that appella nt told her that the

y had gua rded the refr igerator to keep Ste phanie ou t of it. Indescribing her opinion of the relationship b etween Ste phanie a nd appell ant, F owler thoughtthat

Ste phanie w as some

what afraid

of appellant. She never saw the two touch each other and sometim es appel lant was very abrupt with Ste phanie. Stephanie

was only in

Fowler’s class from August of 1992 to the following Febr uary, when the Carmans took her out of school to teach her at home. The State next called

Chr isty Brabec, a friend of Stephanie’s older sister Lor etta. Brabec described the two times she visited the Carmans’ home. One occasion was to go swimming in the Carmans’ swimming poo l a nd a no th e r was a birthday par ty for L oretta. On the first occasion, Br abec was only in

the house

a few m inutes but on the sec ond occa sion, she and o ther guests stayed overnight. Brabec said

that she did not see Stephanie on e ither occasion but did see a door that was closed while she was there. She conce ded that Stephanie c ould have been visiting one of her fr iends at the time. She llyCar man, Stephanie’ s cousin , related her experiences when visiting Stephanie’s home. According to Shelly, Ste phanie di d not play w

iththe other childr en and was not allowed10

to eat with the family. She remembered appellant would fix a small plate for Stephanie after the ot he rs had eate

n. She lly also said that S tephanie did not participat

e with the rest of the fa

mily in opening presents on C hrist mas. Shelly also described playing with Stephanie in her room the Chr istmas before her death. She also averred that almost all the toys and furnitur e shown in the photographs take

n June 10, 1992 were pr esent the previous Christmas. Harold Mar lowe, a p harmacist a t a pharmacy near the Car mans’ home in June 1992, testified that appell ant came to his store on June 3, 1992 and a sked wha

t to give he

r child who had noteaten in four days. Mar lowe recommended Ensur e, which appellant purchased. Apparently seeking to cast doubt on his memory concerning t he date of the purchase, the defense produced
a receipt dated June 8 showing the purchase of a case of Ensur e from Mar lowe’s store and signed byappellant’s mother, Phyllis Reynolds. The State next called Dominga Bates, who visited her
m ot he r, a neighbor of the C armans, on a daily basis. She described seeing appellant and Ste ven Car man with their older daughter Loretta on many occ asions, but she ha d never seen S tephanie with them. The State also called B arbar a Pence as an ex pe rt wit ne ss. Dr. Pen cehe ld a

Ph.D. and is
anassociat e profess or of pathology in L ubbock. She studies and teac hes nutriti on. Dr
. Pence began by explai

ning charts used by doctors to plot the growth of c hildren. She

described that in t heir early year s children typically gr ow at a predictable r ate and maintain an approximat el y constant po sition relativ e to their peers. A child whose size and weig

ht put her in the 50th percentile at one year old would normally be expected to be ver y near the 50th percentile at six ye ars old. According to D r. Pence, a significant

change in the percentile

ranking of a chil d would indicate a problem of

some type. The State produced a chart s howing that Stephanie’s we ight at the time of her autopsy was below the 5th per centile based on he r h e ig ht . Dr. Pence also11

reviewed medical recor ds of Stephanie’s growth from ages 10 months through 31 months. Dur ing that time the records indicated S tephanie was between the 80th and 95th percentile of weight for her height and tha

t growth was normal. Dr. Pence nex

t discusse d the process of malnutriti on. She described two types of malnutrition which may both exist in varying degr ees. The first, Marasmus, is a decrease in the total nu m be r o f c a lorie s n

e e de d, the se c on

d, K w a sh iork or , is a

se ve re pr o tein defici ency. She described the symptoms of Marasmus as a “ wasted” appearance wher e bones are clear ly visible. This is a result of the b ody breaking down fat, and eve

ntually muscle, for ener gy. Symptoms of Kwashiorkor include altered pigmentation of a per son’s hair, a buildup of f at i n the liver, and anemia. Dr. Pence examined the autopsy recor ds and photographs and was questioned concer ning her op inion o f whethe

r Stephanie

suffered from malnu

trition. Dr
. Pence opine d that S tephanie was “ very poor ly nouris hed” based on her physical appear ance including visible bones, bruises andloss of hair. However , Stephanie’s physical a ppearance was also consistent with othe r condi tions, such a s cancer. By using other information fr om the autopsy such as anemia, low blood protein levels and fat changes in the liver, she concluded that Stepha nie was suffering fr om 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 Psychosocia l Deprivation Dwarfism where parents describe their children as eating excessi vely. Parents will r estrict the child’s diet to the point
w he re the child

become s malnou

rished. The child will e

xhibit behavioral problems as a r esult of inadequate nutrition often leading to fur ther r estrictions of food.12

Over a pp e ll ant ’ s o

bj e c ti on , Dr. Pence testified that a sudden increase in foo d intake c ould
cause a severely ma

lnourished person to expe rience heart failure. This is the result of a weakened he art being unable to supply the blood needed b y the stom ach and intestine s. The autopsy indicated that Stephanie ha d a significant amount of food in her stomach when she died. In her review of the blood analysis from the autopsy r eport, Dr
. Pence noted several un usual val ues, i nclu ding low red blood cell count and

blood proteins, albumin in particular. Ste

phanie a lso exhibited a high value for cr eatinine which i ndi cated to her the breakdown and us e of mus cle tissue for energy. Dr
. Pence fel t that a person with the l ow amou nt of albu

min present in Stephanie’s

blood would have been v ery lethargic and probably unab le to w a lk in the ho ur s b e f or e the blood sample was taken. She also agreed tha

t it is possib le in some circumstanc es that a child could lose well

o ver half thei r body weight yet sur vive. She distinguished those cases from Stephanie’s condition, citing the low blood protein levels and anemia. Incross-examining Dr
. Pence, the defense cited an article on P sy chosocial Depr ivation Dwarfism relied on by D r. Pence. In thatarticle, the doctor discussed sever al tests and background information required to diagnos e that condition. While Dr
. Pence conceded that the tests had not been perfor med, she also asserted that the tests could not be perfor med after death. She also rejected the defense' s contentions that the blood tests were distor ted by the IV solution. Dr. D avid H oblit perfor med the autopsy on Ste phanie. His testimony began with a description of

hi s b a c kg ro un d a nd tra in in g. Dr. Ho bl it

re c ou nt e d t ha t h is re si de nc y i nc lu de d wor k inforensic pathology and that he worked as an associate medical ex amine r in Co rpus Chris ti. He taught pathology at the Univer sity of Califor nia in the early 1970s and had an ar ticle published in19 74 . Alt

ho ug h D r. Hoblit

was board cer tified in clinical pathology but not forensic pathology, he estimated that he had perfor med some 8 00 autopsi e s, 400 of whi ch were forensic autop sies.1 In response to defense challenges to the accuracy of the scale, the State called t he Nursin g Supe rvisor at University Medical Cen ter, Nancy S mith. She

provided the sca

le that Dr. Hoblit used to weigh Stephanie bef ore the autopsy. Smith described how th e scale is stored and calibrated before use. She was al so present when Dr
. Hoblit weighed Stephanie twice. She calibrated the scale b e tween the first and second

weighing s and remembe red that the scal e indicate d the sam

e weight b oth times
. 13 He described his familiar ity with r esearch on deaths related to malnutr ition, whichwere typically the result of impr oper effor ts at weight reduction. He also stated that he parti cipated in the autopsies of two wom

en who die d from misuse o f diet pill s. Dr
. Hobli t help ed design the laborator y monitoring por tion of a weight reduction pr ogram oper ated in Califor nia. Dr. Hoblit descr ibed the steps he took i n condu cting the autopsy of Stephanie Carman. He began by obtaining the recor ds made in the emergency room. Bef ore conducting the autopsy, D r. Ho blit contacted Dr
. Garcia, a pediatrician and dir ector of a child abuse center , an ophthalm ologist, and

a phot og ra phe r. He a

ls o r e qu e st e d x

- rays of S te phani e ' s e

nt ire body. When he weighed h er on a scal e provided by the U niversity M edial Center, Dr
. Hoblit found that Ste phanie weighted 43. 8 pounds. 1 According to measurements made about 18 months prior to her death, her weight put her betwe en the 50t h and 75th

percentiles. Base d on continued growth at
a normal rate, Hoblit estima ted that S tephanie should have weighed between 58 and 66pounds. Dr. Hoblit found that S tephanie had only 0. 5 cent imeters of subcutaneous fat. He had
never seen a person with a measur ement of less than 1. 2 centimeters. He also fou nd 25 to 3 5 percent hair loss. According to the m edical li terature upon which he relied, hair loss begins four to six weeks after significa nt nutritional deprivatio n. Stepha nie’s hair also exhibited hypopigmentation (loss of pigment) which results fr om periods of sever e protein depr ivation.14

Inexamin

ing x-r ays of Stephanie, D r. Hoblit found “ growth ar rest” lines in the long bones. Malnutr ition is one of the ca uses of growth arrest. Dr
. Hoblit de sc rib e d S te phani e ’ s he art weight as 22 to 26 percent less than what it should have been. He stated flatly that that condition
was life threatenin

g and ca used S tephanie ’s death
. He also state d that her hemog lobin value of 4. 5, less than half a normal value, could have independently caused her death. Malnutr ition can also cause a

reduction in

h emoglobin. He found such a reduction in Stephanie’s blood. Stephanie’s

serum pr otein was 2 grams when a nor malvalue is between 6 and 8 grams, which the doctor also attributed to malnutr ition. According to D r. Hoblit, Stephanie’s blood pH of 6. 8 was significa ntly belowthe normal of 7. 4 and was also a life threatening condition. He attr ibuted the low pH value to the use of fat stores for energy. His tests r evealed no drugs in Stephanie’s body at the time of her death. He also stated that the IV fluids given would not have altered thes e findings. Dr. Hoblit described S tephanie as exhibi ting all ten symptoms liste d in

medical texts for K w a sh iork or . He also descr ibed two types of malnutrition: pr imary, where there is an inade quate diet; and secondary, where the maln utrition results from an inability to absorb or use nutrients. His examination of numerous inter nal organs convinced him that ther e was no possibility of
se c on da rymalnutrition. He descr ibed 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 diaphr agm, which would have affected her ability to br eath. Dr. Hoblit

also described the examination of Stephanie’sstomach. He deter mined it was 40 to 50 percent full and s pecifica lly noted that it contained identifiable cubes of potatoes that showed no sign of having been chewed; however , it did not contai n any pills
. T he stomach15

contents he exam ined were not consistent with the list o f St ephanie ’s mea

ls that appellant gave the police. In respons e to a hypothetical qu estion from the S

tate, Dr
. Hoblit opined that even i f aspiration of food was the actual c ause of S tephanie ’s death , her other conditions were extremely life threatening. Oncross-examination, the defense initially explored the relationship between Dr
. Hoblit and Lubbock County. Beginning in May 1992, Dr
. Hoblit negotiated with Lubbock Coun ty to hi re forensic patholo gists to perform autopsie s for the County. On July 16, 1992, the County entered into a $200, 000 per year con tract w it h D r. Hob li

t’ s a ss oc ia

ti on . Af te r h avi ng of f e rs rejected by two candidates, he hired D r. Jody Niel sen, who l eft for a job in B eaumon t shortly after arr iving. Wh en

as ke d w hy shele ft, Dr. Hob lit

ga vespe ci fic

ex am ple s of prob le ms . He recounted three incidents wher e Dr
. Nielsen objected to his schedulin g autopsie s she was to per for m, rather than directing requests for autopsi es to her to s chedule. She objected to law enforcement officers “ looking over her shoulder” when per forming a utopsies. D r. Hoblit also described her as being fr ien ds with S ergeant B ill Hubbard of the Lubbock Police Department. This friendship caused addition al tension when Hu bbar d became the target of an investigation by the Lubbock County D istr ict Attorney. The defense then re-examined the possible IV contamination of the blood sam ples. Dr. Hoblit stated tha

t the amount of ca

lcium in Ste phanie’ s blood wa s high, contrary to what would be expected

in a mal nourished person; however, one of the IV solutions admin

istered to Ste

phanie contained calcium. Bec ause he character ized non-congenital thyroid disease befor e adolescence
as “ almost nonexiste

nt, ” he exam

ined the t hyroid onlyge

ne ra ll y a nd di d n ot di ss e c t i t or p re pa re slides from it. Finally, he described malnour ishment as a diagnosis of exclusion only to the degree that secondar y malnutrition must be excluded to diagnose pr imary malnutr ition.16

The State’snext witness was Dr
. Ewell Clar ke, a pediatric r adiologist who teaches at the University of Texas at San Antonio. Dr
. Clar ke examined the x-rays of Stephanie taken af ter her death. He descr ibed two a bn or m a l f in di ng s pre se nt in the x-rays . Firs t, th e re was no de tectable subcutaneous fat which is normally visi ble, alth ough the m

uscles we

re within normal limits. Second, there were several growth arr est lines p resent in the bone s of S tephanie ’s legs. These growth arr est lines indicate some severe str ess such as cancer, a surger y, deprivation of food or inability to absorb food. He indicated that the causal stress occur red within the previous 9 to 12 months. Although he acknowl edged on c ross-examination that he had seen hypert hyroidis m 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 gr owth arr est lines were the r esult of emotional disturbance, althoughhe was aware of the possibility of such cases through his perusal of medical liter ature. Dr. Clar ke estimated that he would expect to find growth arr est lines in about 10 percent of children. The State then called Nina S tolzenberg, an intern in child psyc

hology who

saw S tephanie from August

1990 thr ough July 1991. She descri bed Stephanie at th at time as thin, but not so th in
as to cause concern. One of the tools Stolzenbe

rg used to evalua

te a new patient was to ask

what theywould wish for if they had three wishes. Stephanie’s wish was f or a for k, a knife and a spoon. Stolzenberg testi fied thatStephanie did very poorly on some standar dized tests. The Car mans had expressed concer n to Stolzenberg that Stephanie had been give n strong alcohol and been undernour ished when she was an infant and that may ha ve impaired h e r developm ent. S to lz e nb e rg described the Carmans’ participation as minimal, giving as an example their canceling17

or fail ing to show up fo r at least 20 per cent of the appointments that were made. The ther apy ended a t the request of a

ppellant
. The S ta te ne xt c a ll e d D r. Ro be

rt B ux, a medic al exam

iner from Bexa

r County certified in anatom ical, clinical and forensic pathology. Dr
. Bux examined the results of S tephanie ’s autopsy and gave his opinionas to her death. H e began by noting se

veral abnormalities in

the blood t

ests, specific ally

high calc ium, 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 er ror in the operation of the testing equipment. Bec ause other values such as the enzyme levels we re nor mal, he felt the blood samples were “ valid. ” Dr. Bux also noted the

absence of subcutaneous fat in the x-rays and photograph s taken at the autopsy and the growth ar rest lines in the x-r ays. The condition of the food fo und in Stephanie’s

stomach indicated to him that sheha d e a te n j ust b e f or e she died. Bec ause of the lack of inflamm ation in the

lun gs, Dr
. B ux believ ed that a ny aspiration of f

ood occu rr ed essen

tially at the time of her death and was pr obably a result, rather than a cause, of her death. He also noted the loss of m

us c le in he r d ia ph ra gm and the f ibro si s i n he r h e art, both

of w hi c h a re consistent with mal nutrition. The autopsy

information did not show any for m of cancer or other medicalpr ob le

m tha t m ig ht ha ve a c c ou nt e d f or Stepha

nie’s emaciated condition. Dr
. Bux concluded

that Stephanie suffe

red s o lely from star vation and malnutrition due to lack of food. This was so even th

ough the a

utopsy showed several organs, including the spleen, thyroid, adrenal glands, and the e

ndocrine system

were normal. Inresponse to defense evidence suggesting the existence of other causes of S tephanie’s condition, the S tate called Dr. Wilhelm ina Tengco, a child psychiat rist who had treated S tephanie18

in1990. Base d on her examination and treatment of Stephanie, Dr
. Tengco deter mined that she did notsuffer from an eating disorder, hyperthyroidism, leukem ia or inability to absorb nutrients. Ho w e ve r, on cross-examination she admitted that she did not perfor m any laborator y tests for any of t hese con

ditions. When que

ried, Dr
. Tengco disag

reed with the proposition that emot io na l problems affected physical gr owth. The defense

began its cas e in chief by cal ling T ommyDebs Crawford, another paramedic who responded to appellant’s 911 call. He was the first emer gency medical person at the scene and wrote t h e emergency medical service r eport on the event. When he first ar rived, Steven Car man was a tte m

pt in g t o c le ar S te

phani e ’ s m

ou th so she c ou ld br e a th . Wh e n C raw f

or d began working on Stephanie she had no pu lse and a“ huge” amount of vomit in her mouth had to be cleared away. With the assistance of other paramedics, C rawford was able to force oxyg en into Stephanie’s

lungs using a tube; how ever, the low level of oxyge

n subsequently fou

nd in Stephanie’s blood indicated tha t the CPR was gener ally not effective. Cr awford’s repor t described Stephanie as “ unresponsive, ” meaning there was no reaction to any stimuli, including pain. It was his op in ion that Stephanie had bee n in that condition for

“ awhile” before they wer e called. He described appel lant as “tear ful and di straught. ” When he question ed

appellant about Stephanie ’s doctor, she replied that Stephanie did not have one. Cra w f or d a ls o c onf irm e d t he ot he r p aram e di c s’ de sc

ripti on of the ro om a s ve rybare, with only a bunk be d and a chest. The defense

also p re se

nt e d t he te st im on y o f I rw in O ku n, the Ca

rm ans ’ ne ig

hb or . Although he ad mitted having Alzheimer’s disease, Okun remember ed seeing Stephanie on two19

specifi c occa sions and that she seemed normal. Lor etta visited the Okuns on several occasions but S tephanie

and her parents did not. Co ra Colleen Riley Car man, who goes by " Car la, " is marr ied to Steven Car man’s brother and has worked as a nur se’s aid. She visited appellant’s home at least once or twice a week, often accompanied

by her childr en. Car la’s family would often celebrate holidays at Steven and appella nt' s home. Many of these visits included having meals toge ther. On those occasions Ste phanie ate with the rest of the family. She directly contradicte d the testi mony of S

helly Car man, stating that appellant and Steven Carman never depr ived Stephanie of f ood or kept her locked in her r oom. According to C arla, the only time Stephanie was requir ed to stay in her r oom was to finish schoolwork. She also stated that S helly had never been at appellant’s home without Carla and also c ontradicted S helly’s d escription of S tephanie ’s e xc lusion from the Carmans’ Christmas Day activitie s. Carla testified that she had been in Ste phanie’s room on many occasions, incl udi ng the week before her death, and that the r oom was always as it appeared in the photogr aphs taken shortly after Stephanie’s death. She described Stephan ie as having a short attention span, developing slowly and

more likely to ha

ve emot ional outb

ursts than m ost children. As long as she had known Stephanie, she was “ just a little, skinny, little kid” and had no t suffered any noticea ble weigh t loss. O n the day Stephanie died, C arla left wor k at 3: 15 p. m. and went to appellant’s house. Upon gr e e ti

ng he r at t he do or , appella

nt told Carla that S tephanie would not eat and had not eaten all day. Although Stephanie would not talk to Carla, she did ea

t some pu dding at Carla’s request. After eating, Stephanie w en t to the sink and got a glass of water. Car la described Stephanie’s2 Car la acknowledged that there was a slight discr epancy between her account and appe llant' s, w hi c h d e sc rib e d S te phani e sl um pi ng ou t o f a c ha ir o nt o t he f lo or . 20 walk to the sink

as skipping or hopping. After dr inking the water, she retur ned to the table and

“ lowered herself down” to the floor and sat ther e. 2 Carla and appella nt discuss ed taking

Ste phanie 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. , Ste phanie was lying on the floor by her bedroom, but that did not strike her as unusual. Shortly
a fter she arr ived home, Steven Carman called to tell her that Stephanie had been taken to the hospital. Carla, her son, and her husband went to app ellant' s houseand then t o the hospi

tal with Ste ven Carman. She

described S teven as

being in a

“ state of n

umbness
. ” Daniel Car man, Car la and Mich ael Carman ' s son and Stephanie ’s cousin , spent the last sixweeks of the 1991-1992 school yearat appellant and Steve nCarman’s home, r eturning to his
ownho me a we ek be fo r e St ephanie ’s d eath. He testified that dur ing his stay he ate with the Car mans and Stephanie a lways ate with the family. He also played with Stephanie in both the front and back yar ds of the hou se, although h e did say she spent most o f her time in her r oom. Daniel had been in Stepha nie’s room on many occasions and said thatit always appeared as it d

id inthe June 1 0 photographs. Daniel also contr adicted Shelly’s ac count of the previous Christmas, saying Stephanie was

not excluded from the family’s activities. Onthe day Stephanie die d, Daniel was at the

Carmans' house from early morning until h is mother took him home at about 4 p. m. He saw Stephanie walking around the house earlier in the dayand said she was a cting normally at that time. Daniel’s sisters, Sybil and Paulette, echoed much of his testimony. They had also visited the Carmans’ house on

many oc casions, often spending the night. B oth st a ted that Stephanie3 In response, the State called A nn Garton, an employee of a New Mexico social ser vice agency who was present dur ing Lor etta’s interview with D etective Cas ey. She testifie d that Casey

did notmake a

ny attem pt to intim

idate or pressure Lor etta into giving particular answers to his questions
. 21 regularly ate with the rest of the fam ily. They remembered S tephanie ’s room being as it appeared inthe June 10 photographs. The only time Sybil was aware that Stephanie was required to stay inhe r ro om w a s w he n she w a s “in tro ub le ” wi th

he r p arents. The sist ers last saw Stephanie a
w e e k b e f or e he r d e a th and di d n ot pe rc e iv e tha t a

ny th in g wa s w ro ng w it h he r. Stephanie’s

s is ter, Loretta, testifie d that she saw their natural mothe r put Ever clear in Stephanie’s

bottle on m

any occ asions. Loretta described the bottle and recalled reading the label. She also cont radicted S helly Carman’s c laim tha t Ste phanie did noteat with the rest of the family. Loretta also disputed the State’s evidenc e that Stephanie’s room was barr en. A videotape introduced through Lor etta showed S tephanie partic ipating in

Chr istmas activities in 1990 and 1991; ho wever, the tape

purpor ted to be t

he Christmas 1991 ta

pe showe d only me

mbers o f th e immed iate family and did not show Lor etta and Stephanie’s cou sins, or C arla and Michael Car man, a s b e in

g pre se nt tha t d ay. I n r e sponse to q uestions by the State, Lor etta could not identifyanyphotographs or videotapes made between Chr istmas 1991 and Stepha nie’s death the following June. Lor etta also testified that on June 8, 1992, Stephanie looked and a cted normally. When Steven cam

e home from wor k that da y, Steven asked Lo r etta to make coff ee for him, walked toward the master bedroom, and saw Stephanie lying on the f

lo or of her r oom. Steven then ran back to the kitchen and told appellant to call 911. Descr ibing her inter view with Wayne Casey in New Mexico, Lor etta denied that she had been told what to say and said Casey was the only person who pr essured her to make particular stateme nts. 3 She described previous occ asions when S tephanie would refuse toeat for a few days22

and told Casey that on occ asion S tephanie would ea

t too much
. Loretta knew that the re was a lockon Ste

phanie’ s door that was use d to keep her fr om gettin g up at nigh

t and eat ing “ a lot. ” Loretta then denied initialing the pages of her statement and suggestedthat Casey put them on the stateme nt. A family friend, JoAnn Jackson, testified that she and her family spent the Memor ial Day weekend befor e Stephanie died w ith the Car mans. Jackson, who had raised nine childr en, described Ste

phanie’ s appearance as normal. The only differenc e she observed in Stephanie’s appearance between Memorial D ay 1992 and the previous visit in Apr il 1991 was that S tephanie
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 appear ed after her death. She also stated that Ste phanie ate with t he fam ily and oc casiona

lly ate a l arge amount. The defense medical expert was Dr
. Jody Nielsen, a forensic pathologi st working in B eaumon t. Dr
. Nielsen examined the autopsy repor t and much of the evidence onwhich it was based. She

was of the opinion that the small abrasions pointed out by the S tate’s experts actually
occurr ed after death. She

discounte d the hair loss saying it was consistent with Stephanie pulling her hair out and that ther e was evidence of new hair growth. D r . Ni e ls e n wa s c rit ic a l o f Dr. Hoblit’s failure to pr eserve a hair sample that illustrated the loss of pigm entation he f ound indicative of malnourishment, suggesting instead that the photog

raphs of Ste

phanie’ s hair merely showed reflections of light. Concer ning the exclusion of secondary malnutr ition thr ough an inability to a bs or b nutrients, D r. Nielsen stated that the slides made of Stephanie’ s intestine no longer showed the structur es needed to make that determination. She ma de a similar asser tion23

with regar d to excluding the existence of leukemia, contending that a bone marr ow sample was necessary. Dr. Nielsen disag

reed that there was fa

ttymetamorphosis in Stephanie’s liver. She found that the fat layer ar ound the heart was normal for a child an d that the heart weight wa s normal. S he sa id the se f in di ng s we re inc on si st

e nt w it h m a ln ut rit ion. S he a ls o s ug ge st e d t ha t D r. Hoblit

“ doesn’t know what a child’s heart look[s] like nor mally” and eve n suggested that he was

“ manipulating the studies to say wha t he wante d it to say. ” She challen ged the e lectrolyte results obtained from the blood sa

mples o n the b asis that b lood is not a n accurate indi cator after death and op ine d t ha t te st in g t he vi tre ou s f lu id w a s r e qu

ire d. A c c or di

ng to Dr. Niel sen, Stephanie' s subcutaneous fat measurement of 0. 5 centimeters was nor mal. In her opinion, none of the autopsy findings are pathonomic or diagnostic of malnutrition. InDr. Nielsen' s opinion, hyper thyroidism could account for both incr eased activity level and metabo lic rate resulting in weigh t l oss. O ne of the

hormones that wo

uld indica

te hyper thyr oidism, T4, could be tested after death, but this testwas not perfor med on Stepha nie. She also noted that no samples of the thymus, adrenal glands, or pancr eas were taken, although each would show evidence of malnutrition. In her opinion, bec ause of S tephanie ’s psychi atric pr oblems and

e a ti ng di sord e r, the

gr ow th c ha rt s descr ibed by Dr. Pence did not apply to Stephanie. Suggesting that S tephanie’s death could have been the result of anothe r d is e a se , Dr. Nielsen pointed to a blood culture that indicated the pr esence of beta strep group b, an infectious organism that “ has caused death .
. . even in normal healthy people. ” Oncross-examination, the S tate elicited the fact that Dr. Nielsen had never per formed an autopsy where malnutr ition was determined to be the cause of death nor had she r eceived training24

inthe field of

nutrition. She

also declined to estimate the number of autopsies she had perfor med
onc hi ld re n. Dr. N ielsen a dmitt ed that she was not familiar with Stephanie’s previous medical histor y, but she did not thinkknowledge of that history was significa nt in dete rmining the cau se of Stepha nie' s death. She also adm itted she had not reviewed all of the autopsy r esults and, i n particular , she had not examined the x-rays r elied on by Dr s. Clar ke and B ux. The defense called S teven Car man’s mother, Lodina Kelly. She related that although he is la rg e as an adult, he was very thin as a child. After L oretta and Stephanie went to live wit h appellant and Steven

Car man, Lodina questioned Myr tis about putting Ever clear in Stephanie’s bottle and, according to Lodina, M yrtis did not deny it. Inher legal insufficiency ar gument and citing Clark v. Procunier , 755 F. 2d 394 (5th Cir. 1985), appella

nt advanc es the proposition t hat if the evidence, viewed in the light most favorable to the prosecution, gives equ al or nearly equal circumstan tial support to guilt or innocence, then
a jury must entertain a reasonab le doubt. Id
. at 396. This pr oposition has recently been reaffir med

by the Fifth C ircuit in United States v. Lopez , 74 F. 3d 575, 577 (5th Cir
. 19 96); how e ve r, 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 Gee sa v. State , 820 S. W. 2d 154 (Tex. Cr im. A pp. 1991). Mor eover, even assuming, arguendo, that the Clark test is app licable here, we believe the differences in the natur e of the evidence presented in Clark and in this

case are so significant as to make Clark inapplicable. In Clark

, a business was burglar ized and a safe containing moto r veh icle inspection stickers was moved to a back door of the building. Apparently, part of the safe was outside the bu il di ng . So m e ti

m e la te r, sto le n i ns pe c ti on st ic ke rs w e re found in C lar k’s wallet an d his palm print w as found on part of the safe
. Thus, his convictiondepended upon an inference, based on meager evidence, that he entered the building,25

moved t he safe , and stole its contents. The cour t held the evidence was no more suppor tive of that inference than of the infer ence that Clar k only touched the safe after it had been moved to the door; thus, was not sufficient to support a bur glary conviction. Inthis case, the jury’s findings wer e more dependent upon its r esolution of the conflicting evidence before it than up on inferences d rawn from r elativel

y undispute d evidenc e. It is well established

that determining the credibility of witnesses and the weight to be given their testimony is w it hi n t he pe c ul ia r p ro vi nc e of the f a c tf in de r. McF arland v. State , No. 71, 557 (Tex. Cr im. App. Feb. 21, 19 96); 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 consider ation of testimony that an appellate court might find incr edible. Cacy v

. State , 901 S. W. 2d 691, 703 (Tex. App. --El Paso 1995, no pet. ). It is only w hen testim

ony is factually

impossible that it must be ignored. United States v. Casel , 995 F. 2d 1299, 1304 (5th Cir
. 1993). The jury in t his case was presented highly contr adictory evidence; however, appellant has failed to identif

y any test

imony from the

Sta te’s witnesses tha

t was fac tually im pos sible or otherwise incredible. When vie wed in the

light most

favorable to the prosecution, the evidence
was sufficie

nt to permit

a rational factfinder to find that appellant intentionally or knowingly, by omission, caused serious bodily injur y to Stephanie Carman; th us , it i s l e ga

ll y s uf f ic ie nt to re qu ire submissionto

the ju ryf or a guilt or innocenc e determination and the t rial court acted properly in doing so. Appellant’s first point of er ror is overr uled. Reiterated, consideration of appellant' s challenge to the factual sufficiency of the evidence requir es a

re vi e w of

a ll the e vi de

nc e w it ho ut vi e w in g i t i n t he li gh t m ost f avora ble to th e prosecution. I f

that re vi e w c on vi nc e s u s t ha t t he ju ryverdict is so contr ary to the over whelming26

weight of the evidence a s to be c learly wr ong and unjust, we must remand the case for r etrial before another jury. Clewis , supra , slip op. at 11. We are instr ucted 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 deter mine whether the testimony is a more plau sible explanation

for Stephanie’s

death and/ or ser ious bodily injur y. ” (emphasis added). Howev e r, that of ne cessity involves a

determination of the cr edibility of the witness and the weight to be given her testimony. This is precisely the type of r eview the Clewis c ou rt instr ucted us to avoid; indeed, it quoted w ith approval the S upreme Court' s comment in Pool v. Ford M

otor Co. , 715 S. W. 2d at 634, that courts undertaking a factual sufficiency review “ are not fr ee to reweigh the evidence and set aside
a jury verdict merely because the judge s feel tha

t a different r esult is more r easonable. ” Clewis , slip op. at 13-14. We are bound by that instr uction. It is only whe

n an appe llatecourt r everses a judgment based on factual sufficie ncy that i t must detail the relevant evidence and explain why that evidence is factua lly insuff icient. Clewis , slip op. at 14 ( citing Meraz v. State , 785 S. W. 2d 146, 154 n. 2 (Tex. Cr im. App. 1990); Pool , 715 S. W. 2d at 635. Suf

fice it to say that we have carefully r eviewed the evidencerecounted above. The jury' s resolution of the conflicts in that evidence was well within their pr ovince and was not against the overwhelming weight of the believa ble or credible evidenc e. Appellan t' s second point is overr uled. Inher thir d point, citing and relying upon Bruton v. United States , 391 U. S. 123, 88 S.C t. 1620, 20 L. Ed. 2d 476 (1968), ap pe llant assigns err or to the admission of Steven’s written statement in violation of her sixth amendment r ight of confrontation. In r esponse to that27

proposit ion, the State argues that 1) appellant waived any co mplaint about the admission of Steven’sstatement, 2) Steven’s statem ent was merely cumulative, and 3) a ” Bruton err or may not occur when both [defendants’] statements are enter ed. ” In Bruton , the United States Supreme Court held that the admission of a non-testifying codefendant’s statements incriminating the defendant violates the defe ndant’s s ixth

amendment right of co nf r on ta ti on . 39 1 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 i ts holding in Jackson v. Denno , 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d

908 (1964 ), that an in struction to the jury to disregard a defendan t’s conf ession if i t found the conf ession tohave been given involuntarily was insufficient to safeguard the defendant’s due process r ights, the Bruton Co urtreasoned that an instr uction limiting the purposes for which
a jury could conside

r a non-testifyin

g co-def endant’ s sta

t ements afforded no gr eater pr otection. Bruton , 391 U. S. at 135. This holding was soon applied by the Cour t of Cr iminal Ap pea ls to invalida te a prior rule allowing statements of a pr incipal to b e used in the prosecution of an accomplice. Schepps

v. State , 432 S. W. 2d 926, 943 (Tex. Cr im. 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 Cour t overr uled previous authority to t he contrar y and held that admission of a non-testifyi ng c o-defendant’s incriminating stateme nt wa s err or r egardless of a limiting instr uction or the admissibility of a
corr oborating statement

made by the defendant. 481 U. S. at 193-94. Consequently, the State’s th ird argument challenging this point is without merit; however, the Cruz Cour t did acknowledge the possibility that the defendant’s statements could render admission of a co-defendant’s incriminating statements har mless. 481 U. S. at 194.4 At issue were two por tions of Stephen’s statem ent co ncerning appell ant’s fear of “ Social Services becoming involved again. ” Appellant sought to exclude the entire sentence r ather than just the word “ again. ” 28 As we note, the State also argues that appellant waived any err or that might have occur red when Steven’s statem

ent was admitted by

failing to object to its admission. The recor d shows that when the officer who took the defendant’s statements began to testify concerning the stateme

nts, the following colloquy occurr ed: The Cour t: Is there anything we need to take up before we have the jury back in? De f e ns e : Ye s, Yo

ur Ho nor. Court: All right. Defense: Th e re are c e rta in m a tte rs contained in each statement of Steve Carman that we f e e l l ik e shou ld be re da c te d. Th e re is

the or ig ina l, and

he re is [sic] so me of the thin

gs that we ’re pointing out to t he court. Court: All of the

highlighte d portions? Defense: Well -- And let me point out to yo u, Ju dg e , tha t t hi s s e nt e nc e rig ht he re probablyneeds to be -- the entire thing needs to be redacted, because if you redact one word, it’s goi ng to be pret ty 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 Cour t: All right
. Have you all seen this [pr oposed redacted statement]? Pro se c ut or 1: N o, yo

ur Ho nor. * * * Pr osecutor 2: The second p age, we don’t ha ve a ny pr o blem at

this point w

ith “ when we lived in New Mexico, ” [being taken out] but we do have a problem with “ I had a c oncern about Pat usi ng food a s an ince

ntive with

Ste ph. ” That goes to the heart of our proof, our issue her e. 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 pr oblem comes up a lot in federal cour t, and it’s called the Bruton problem. And

what happens is if S teve Carman didn’ t testify, and you all let that in, then I ge

t to comm

ent on his f

ailure to te stify to i mp each this. And then, we’ve got two mistrials is why it should be r edacted in my opinion. The trial cour t removed the entir e sentence about S teven’s concerns when the family lived in New Mexico. It also removed two occu

rr ences of

the word “ again” as d escribed in the objection quoted below, but decli

ned to remove a

ll of the se

ntences
. When th e Stat e sought to intr oduce Steven’s statem

ent, appellant made the following objection: Defense: All right. Your H onor, if I need to state my objection again, I’m looking at page two on Stephen

[sic] Carman’s stateme

nt, whereinit says, “ I remember Pat saying that she w a s c on c e rn ed about taking Stephanie to the doc tor because she thoughtSocial S ervice would get involved, ” and then t here’s a blank. I object to that stateme nt as a 404 (b) ma

tter, that it show s or attempts to sho w an act of misco nduct. It’ s an attempt to show unfair pr ejudice, other than the char ge we have. Then I object, “ I think it was Tuesday of last week that Pat told me she was force feeding Stephanie bec ause she didn’t want Soc ial Services becoming involved. ” Th e re is no pe

rio d a f te r it . The re ’ s j ust a

bl ank . So , onc e a ga

in , the re will be no doubtwhat this j ury will inte rpr et from r eading this. And we submit its 404(b) m a tte rs that are -- that the Cour t has previously r uled are not admissible, and

that therefor e, Pat Carman’s right to due process under the United States Constitution, Fifth and Four teenth amendments, Article I, Section 19 of the Texas Constitution, Article 1. 04 of

the Texas Code of Cr iminal Pr ocedure will be violated by allowing this in. I also object that it violates B ruton ver sus U. S. And that in final a rgument, there could be a r equirement that I point out if Mr
. Car man does not testify. Cour t: All right
. The objections ar e overr uled. Pr osecutor 1: Very quickly befor e the jury comes back in, it’s my intent - - Defense: Y ou

r Ho no r, I also just a sk that the re be a period put after those sentenc es. Court: Fine. I don’t ha

ve any problem w

ith that, and I’ll j ust put a period. * * *30

Insupport of its position, the S tate ma kes seve ral ar guments : 1) tha t t

he ob je c ti on s we re 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 instr uction. Inorder to preser ve err or for appellate review, a party must make a tim e ly re quest, objectionor motion stating the specific grounds for the ruling he desir es the court to make if the specific grounds ar e not apparent fr om the recor d. Tex. R. App. P. 52(a). T he purpose of this rule is to allow the tri al court to make a determination and r uling and then proceed with the trial under the proper pr ocedural and sub stantive m anners, as appropriately corrected by the trial court. Janecka v. State , 823 S. W. 2d 232, 243-44 (Tex. Cr im. App. 1990) (op. on reh' g). Requiring that
anobjection be mad

e at a tim

e 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. Cr im. App. 1991). Those ar e 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 pr eserved for r eview. Craven

s v. State , 687 S. W. 2d 748, 752 (Tex. Cr im. App. 1985). It is apparent that appella

nt' s complaint on appeal is based directly on the Supreme Cour t’s holding in Bruton
. Although appellan t specifically cited Bruton in makin g her objection, it
a pp e ars clear to us from the obje ctions quoted above and the w ay in whic

h appella nt referr ed to Bruton , that

the objection was to sp ecific p ortions of Ste ven’s sta tement , not the en

tire statement. Inthe initial objection, appellant refer red to Bruton as support for “ why it should be redacted, ” not why the statement should be "ex cluded. " Appellan t’s second object

ion that “ it violates Bruton ” is ambig uous when

taken by i

tself; however, when read in conjunction with the5 Robert Yor k’s grandmother was the sister of L loyd Cody’s father-in-law. 31 rest of the obj ection id

entifying specific portions o f the statement she found incriminating, the pronoun it

appears to refer to those specific parts of the statement r ather than the stateme nt as a whole. That being so, appellant’s trial objection was not sufficiently definite to p rese rve her complaint that the trial cour t err ed in admitting Steven’s state ment as it was admitted. Appellant’s third poi nt is overr uled. Inher four th point, appellant contends the trial cour t err ed in overr uling her motion for
newtrial based upon alleged jur or misconduct. The facts upon which appellant bases this point involved juror Robert Yor k and the State’s witness Lloyd Cody. Dur ing voir di re, the jury panel
was asked to complete a questionnaire. One of the questions asked if the panel membe r knew any of the poten tial witne sses on a one-page list. Lloyd Cody was the eightee nth of 98 names. When questioned

in di vi du a ll y, Y or k stated that he did not know anyone on the list. At the close of voir dire, appellant renewed several challenges for c a us e w hi c h we re de

ni e d. A f te r u si ng pe re m pt or y challenges to remove seve ral panel mem

bers, appellant sought additional peremptor y challenges to remove, inter alia , York. This r equest was also denied. After Lloyd Cody testified, York notified the tr ial court that he knew Lloyd Cody. This resulted in a hear ing on the matter. At that he aring, York described his relationship with C ody
as limited to “ casual contact” at church activities. Base d on York’s answer s at that hearing, the pa rti e s m a de no ob je c ti on to hi s c on ti nu e d p arti c ip a ti on

a s a ju ro r. Inappellant' s post-tri al motion for new trial, she urged juror misconduct. Th e tri a l c ou rt held another hear ing at which appellant presented addit

ional evi dence o f York’s relationship with Cody. Cody testified that his wife was York' s cousin. 5 Al though some years ear lier they had32

attended family g atherings togethe r, he said their r ecent relationship was primar ily thr ough church activities and

the y ha d n

ot vi si te d e a c h othe r’ s hom

e s. Heand

Y or k we re first acquainted thr ough the church well befor e they became re la te d. O n one

oc c a si on w he n C od y wa s s e ve

nt e e n a nd Y or k
was about seven, their families had taken a vacation together. Juror York testified at the hearing that he had not seen LloydCody’s name on the witness list when he completed the questionnaire. Although he remember ed the vacation with Cody’s family, York claimed he was about 4 and did notremember Lloyd Cody being present. Accor ding to York, they had n ot attend ed a fam ily gathering together for approx imately 10 years. He aver red their recent r elationship had been limited t o “ casual” contact at chu rch events. It is the rule that when a jur or withholds material infor mation during voir dire, the juror denies the parties an opportunity to i ntelligently exercise their challenges and obtain an impartial jury. Jones v. State , 596 S. W. 2d 134, 136 (Tex. Cr im. App. 1980). Several decisions of the Co urtof Cr iminal Appeals hold that information is not “ withhel d” unless t he juror is “ ask[ed] questions calcula

ted to bring out that

information whi ch might be said to

indicate a juror ’s inability to be imp artial and truthful. ” Armstrong v

. State , 8 9 7 S. W. 2d 361, 363-64 (Tex. Cr im. App. 1995). Initially, we disagree with the State’s argument that defense counsel did not ask properly focused qu e st ions c on c e rn in g t hi s m a tte r. The question on voir dire was sim ple an d di rect : " Do youknow anyone on the one-page witne ss list?" Whenjuror York became a ware that he did know one of the witnesses , his ne gative answer to the question amounted to the withholding of evidence and requir ed the court hear ings to determine the effect of that err or. Whether intentional or not, York withheld infor mation.33

We initially note the la nguage in

Von Janua ry v. State , 576 S. W. 2d 43, 4 5 (Tex. Cr im. App. 1978), that the si gnifica nce of a juror ’s relationship wi

thother participants in a trial is for defense c ounse l a nd not the juror to determine and, in order to make that determination, counsel i s entitled to know the

facts concerning that r elationship. In Von Janua ry , a murder case, the foreman of the jur y 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 r oom, failed to respond to de f e ns e c ou ns e l' s q ue st ion w he the r any of the ju ro r' s kn ew members of the victim' s family. The jur or admitted he may have err ed in not answering the question, but rationalized his failur e to answer by saying that although he knew and recognized the victim' s family, he did not answer " because he did not have any clo se personal dealin gs with the family. " Id
. at 45. B ased on these facts, the appe llatecourt deter mined rever sible err or was shown. I n d

oi ng so , the c ou rt p la c e d e m pha si s on t

he f a c t t ha t t he ju ro r' s acquaintance was with the family of the victim and, additionally, that the juror served as for eman of the t rial jur y, " a position of influence. " Inreaching its conclusion, the Von Janua ry c ou rt c on trast e d t he f a c ts be f or e it with those be f or e the court in Babin v Sta te , 149 Tex. Cr im. 339, 194 S. W. 2d 563 (1946). In Babin , which also invo lved the for ema n of the trial jury, the juror also failed to dis close the degree of his relationship with the vi ctim. Although he had sai d that he "onlyknew him when he saw him [the deceased], " he failed to mention that he and the decea sed were neighbor s in a very small town. Id. at 566. The a ppellate c ourt concluded the jury foreman' s answer on voir dire " was not so palpably misleading or intentionally deceptive as to require r eversal. " Von January, 576 S. W. 2d at 45.34

The facts before us ar e more near ly akin to those in Babin than those in Vo n January
. Her e, the juror' s relationship wa s wit h a m in or witness, virtually all of whose testimony was echoed by other witnesses. Additionally, the variance between the na tur e of the ju ro r' s relationship and what was not revealed was minimal. The tr ial court did not abuse its discretion in refusing to gr ant the motion for new tr ial. Appellant' s fourth point i s overr uled. Inher fifth point, appellant assigns err or to the admission of testimony concer ning her reputation for being law abiding while living in M oriar ity, New Mexico, approximatel y three ye ars be f or e Stephanie’s dea

th. In support of

this point a

ppellant initially c ites Smith v. State , 162 Tex. Cr im. 237, 283 S. W. 2d 936, 938-39 (1955), which defines gener al rep utation a s “ what is generally said abou

t him in the

commu nity in which he lives .
. . . ” Appellant acknowledges but seeks to distin guish Aroc ha v. State , 495 S
. W. 2d 957, 958 (Tex. Crim. App. 1973), which he ld

“ [a] person’s comm

unity is not l imited to

the loca le where the ca se is tried nor his residence at the date the offense was comm itted. ” Appellant' s attempt to distinguish Arocha is unavailing. In Arocha , the defendant was being prosecuted in Austin for the sale of marijuana. The witnesswas asked if he had heard that Ar ocha was charged with pos sess ion of ma rijuana in Houston. The appellant ar gued the question was improper becau se it did not inq uire as to his reputation " in the community" and H ouston could notbe consider " in the community" of Austin. Inoverr uling that contention, the court commented, " [A] person' s community is not limited to the locale where the case

is tr ied nor his r esidence at the date the offense was committed. " Arocha , 495 S. W. 2d at 958.35

Although Arocha supports t he trial cour t’s decision here, article 37. 07, § 3(a) of the Code of Cr iminal Pr ocedure is dispositive of this point. This statute gover ns the types of evidence admissib le at the p

unishme nt phase o f trial. In relevant part, it provides: evidence may be offered by the state and the defendant as to any matter the c ou rt deems relevant to sente ncing, including

but n ot limited t o . . . his general re pu ta ti on , his c ha ra c te r, [a nd ] an o pi ni on re ga rd in g h is c ha ra c te r . . . . Tex. Code Cr im. Pr oc. 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 T ompkins v

. State , 774 S. W. 2d 195, 216-17 (Tex. Cr im. App. 1987), aff’d , 490 U. S. 75 4, 1 09 S. Ct. 2180, 104 L. Ed. 2d 834 (1989) (holding defendant’s reputation in Vir ginia admissible in Texas pr osecution). Appellant’s fifth point is overr uled. Inhis sixth poi nt, appellant contests the trial cour t’s refusal to submit a jur y instr uction
onthe offense of endangering a child. It is well e stablishe d that upon timely request, a defendant is entitled t

o an instruction on a lesser-included offense if two conditions ar e met. Fir st, the lesser offense must be w

ithin the proof nec essary to establi shthe of f e ns e c ha rg e d. S e c on

d, the re c or d must contain some evidence that would permit a jury r at ionally to f ind that if

the defe ndant is guilty, she is guilt

yo f only the lesser offense. Rousseau v. State , 855 S. W. 2d 666, 672 (Tex. Cr im. 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 endanger ing a child (§ 22. 041(c)) suggests that endangering a child is a lesser -included offense of the second and thir d methods by w hich one ma y commit injury t o a child (causing serious mental deficiency, impairment or injury or by causing bodily injury), but not of t

he first36

method (causing serious bodily injur y). The most significant distinction between the two offenses is that enda

ngering a child do es not require an actua l injury. Here, appella

nt was ind icted for causing serious bodily i njury and ser ious mental deficiency and impairment. Th e jury char ge contained instructions on all thr ee methods of committing injury to a child. Having determined that endanger ing a child can be a le ss e r in c lu de d o f f e ns e of in ju ryto a child, we must next dete rmine whether there was some evidenc e th at would have permitted a ju ry to rati onally 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 fi nd that appellant failed to provide Ste phanie with proper nutrit ion, but neither her bodily injur y nor her death wer e the result of that malnutrition. The only evidence that Stepha nie’s injury or death might have been caused by something other thanmalnutrition came fr om Dr
. Nielsen, who also testi fied tha t Ste phanie was not

suffering from malnutrition. Consequent ly, the jury would hav e to disbe lieve the Sta te’s exp erts who said Ste phanie was malnourished, disbelieve the State' s experts on the issue of causation, and believe Dr. Nielsen’s speculative theory of causation w hi le rejecting her testimony concerning malnutrition. Given the nature of the evide nce, which we

have recited in

rather exhaustive deta

il, we do not a

gree that the jury could

rationally engag e in such m ental gym nastics. We overrule appella nt’s sixth p oint. Inher seventh point , appella nt assigns err or to the admission of the te stim ony of one of the State’s expert witnesses, Dr
. Pence. Appellant character izes the testimony as presenting novel theories and opinio

n although

she “ lacked t

he expe rtise to make them admissible. ” The admission37

of expert testimon

y is governed by R

ule 702 of

the Texas R

ules 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 deter mine a fact in issue, a witness qualified as anexpert by knowle dge, skill, e xperience, training, or education, may testify thereto in the for m of an opinion or other wise. The decision of whether to per mit the testimony of an expert witness is within the discr etion of the trial court, Ducket

t v. State , 797 S. W. 2d 906, 91 0 (Tex. Cr im. App. 1990), and will not be overtur ned

absent an abuse of that discretion. Amos v. State , 819 S. W. 2d 156, 16 3 (Tex. Cr im. Ap p. 1991) , cert. denied, 504 U. S. 917, 112 S. Ct. 1959, 118 L. Ed. 2d 561 (1992). The primar y consideration is whether the expert’s sp ecialized knowledge will assist the trier of fact. Pierce v. State , 777 S. W. 2d 399, 414 (Tex. Cr im. 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 orreasoning of the juror s. Id ; Alba v. State , 905 S. W. 2d 581, 592 (Tex. Cr im. App. 1995). Car eful examination of a ppell ant ’s argument in suppor t of this point fails to r eveal any refer ence to testimony presenting t h e “ novel theories” she seeks to challenge. Ther e are, how e ve r, specific refer ences to testimony that appellant argues was beyond the e xp e rti se of Dr. Pence. As recited above, D r. 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 pr operly often have behavior al problems because they ar e constantly hungry,
w e re improper ly admitted because she was not a psycho logist or medical doctor
. We cannot agree. Logic would suppor t the testimony of Dr
. Pence that those engaged i n the study of nutrit ionand the effects of malnutrition also study the effects of nutrit ion on behavior. Admission of th is te st im on y wa s pro pe

r.38

Appellant als o co mpl ain s of

Dr. Pe nce ’s testim

ony that overfeeding a se verely malnourished pe

rson can cause

heart failur e. Appellant asserts that admission of this testimony
was improper because Dr. Pence was not a medical doctor or cardiologist. Inresponse to defe nse questions on

vo ir d ire , Dr. Penc e te st

if ie d t ha t t he is su e of he art failure was one of the topics she teaches to medic al studen ts. 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 topi c. Appel lant’s seventh point is overr uled. Inher eighth and fi

nal point, appellant chall enges the trial court’s r efusal to

submit a requested instr uction to the effect that if the jury found that appellant’s culpable mental state was merelycriminal neglig ence, they must a cquit. Since the indictme nt only alleged an offense by omission, an exam ination of the text o f Se ction 22.04(a) shows this is indisputa bly an ac curate statement of the law: A person commits an offense if he intentionally, knowingly, recklessl y, or with criminal negligence, by act or intentionally, knowingly, or r ecklessly by omission, causes to a child .
. . serious bodily i njury. Tex. Penal Code § 22. 04(a) (Vernon 1994). Ho w e ve r, it is established law that an instruction that mer ely denies an element of the offense need notbe given. Moore v. State , 736 S. W. 2d 682 (Tex. Cr im. App. 1987). B ecause the State was requir ed to prove that ap pellant ac ted intentionally, knowingly, or r ecklessly, the requested instructio n 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. Cr im. App. 1974), for the proposit ionthat the failure to give a defensive charge on the issue of c ulpability is reversible
e rro r. In Troyer , the trial cour t failed to give anyinstr uction on culpability in spite of aspecific request. Her e, however, the court’s char ge included instructions onintentionally, knowingly and recklessly, making Troyer inapplicable. See Manuel v

. State , 782 S. W. 2d 335, 337 (Tex. App.

-- Houston [1st Dis t. ] 1989, pet. ref’d). Appellant’s eighth point is overr uled. Insummary, all of appellant' s points are over ruled and, finding no rever sible err or in the proceeding below, we affirm appellant’s conviction.
John T. Boyd Justice Do not publish.