By Clinton Morgan
Assistant District Attorney in Harris County
This year the Court of Criminal Appeals released two opinions, less than 40 days apart, discussing whether evidence was sufficient to show an injury was “serious.” The opinions are by the same author. One was joined by all nine judges, the other by eight. So naturally these opinions can be read together to clarify the law, right?
Not really. I’m writing about them because they illustrate a couple of issues I see more and more in caselaw: What common knowledge can we assume factfinders to have, and what is a reasonable deduction from that knowledge rather than mere speculation? The ways that courts answer these questions don’t have a lot of objective boundaries, and the answers often feel arbitrary.
In Garcia v. State,[1] the Court of Criminal Appeals held a jury’s common knowledge about the nature of through-and-through gunshot wounds can allow it to make a reasonable deduction that the complainant faced a serious risk of death, even though she did not need a blood transfusion and she left the hospital a few hours after being stapled up. But in Edwards v. State,[2] the Court held that jurors do not “precisely” know the effects of cocaine addiction on a 1-year-old, so the verdict finding addiction and withdrawal a “serious mental deficiency, impairment, or injury” was irrational speculation.
Let’s look at these opinions to see if they can help us in the future.
Reasonable deductions about gunshot wounds
Garcia was an appeal from an aggravated assault conviction. One day Vital Garcia came home and found his girlfriend, Marissa, smoking pot with her “weed guy.”[3] Garcia went in the bathroom, cocked his .40 caliber pistol, and came out blasting. The weed guy was shot multiple times before he jumped off a balcony. Marissa was shot twice: a through-and-through in her thigh and a through-and-through in her right breast.
Marissa tried to drive herself to the hospital but after a while thought she couldn’t make it, so she got out of her car and flagged down some officers for help. Marissa later testified she “went out” during the ambulance ride and did not remember much after that, though records described her as alert and conscious during the entire ambulance ride. A doctor testified he thought her injuries were serious bodily injury, despite the fact that bullets did not hit any important organs or blood vessels. Medical staff closed the wounds with 12 staples, and Marissa left the hospital after three hours and 20 minutes.
Garcia was convicted of aggravated assault of a family member by causing serious bodily injury. On direct appeal, in an opinion by Justice Bourliot, a divided panel of the Fourteenth Court held the evidence was insufficient to show the wounds met the statutory definition of “serious bodily injury” (SBI), namely that they created a substantial risk of death or caused “death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[4]
First, there was no evidence of scars or loss of bodily function, so the substantial risk of death was the only applicable definition of SBI. Relying on several intermediate court opinions holding that evidence of gunshot wounds, without more evidence of the severity of the wounds, was insufficient to show SBI, the panel reversed and remanded for a new punishment hearing for a lesser-included offense.
Justice Poissant dissented. She would have held the evidence was sufficient because 1) Marissa had four wide and deep wounds, 2) Marissa thought she was going to die and “went out” during the ambulance ride, 3) Marissa could not remove the staples for 10 days, and 4) a doctor believed the wounds were SBI and had seen other people die after being shot in body locations near where Marissa was shot.
The Court of Criminal Appeals reversed, in an opinion by Judge Slaughter joined by seven others. (Judge Newell concurred without opinion.) Judge Slaughter wrote that the flaw in the Fourteenth Court’s opinion, “broadly speaking, is that it failed to view the evidence in the light most favorable of the verdict and failed to permit the drawing of reasonable inferences by the jury.”[5]
Judge Slaughter cited several pieces of evidence. First, she quoted a doctor’s testimony that while Marissa’s wounds weren’t fatal, other victims’ “chest area” wounds were.[6] Next, Judge Slaughter pointed to the evidence that the wounds caused “significant bleeding” and “resulted in [Marissa] losing consciousness.” From this, “the jury was free to apply its own commonsense and knowledge of this type of injury to conclude that, absent timely medical treatment to control bleeding and clean and repair the wounds, [Marissa] would have faced a substantial risk of death.”
Let’s look at the conclusions the court deemed “reasonable deductions.” The jury deduced that Marissa passed out due to blood loss. That’s certainly possible from the evidence, but there are multiple reasons someone could pass out after being shot: pain or shock, for instance. The mere sight of blood causes some people to get woozy, and anyone who’s donated blood knows blood-sugar levels at a particular point in time can dramatically increase the chances of passing out from even minor trauma.
The court justified the deduction that Marissa passed out from blood loss because it believed the average juror knows enough about “this type of injury”—a through-and-through gunshot wound—to understand the severity of the bleeding it would cause. How much do you know about through-and-through wounds? My understanding—based mostly on movies and TV shows—is that a through-and-through hurts a lot, and if it hits a major blood vessel, it can be fatal. If someone suffered a through-and-through and passed out, I’d take him to the hospital. But if he didn’t need a blood transfusion and checked out a few hours later, would I deduce he’d passed out from blood loss and therefore, beyond a reasonable doubt, he’d faced a substantial risk of death if the injury had gone untreated? The court held that such a deduction would be reasonable.
Mere speculation about a baby’s cocaine addiction
Edwards was an appeal from a conviction for reckless injury to a child. Edwards did a lot of cocaine while she was nursing her baby. When the baby was 13 months old, Child Protective Services (CPS) tested one of the baby’s hair follicles and the results showed cocaine metabolite levels that were literally off the charts; the test was capable of results up to 20,000 picograms of metabolite per milligram, but the baby’s test results exceeded that, and a doctor testified he estimated the baby’s true result would have been almost double.[7] CPS gave the baby to a different guardian.
Edwards was charged with the second-degree felony of recklessly causing a child “serious mental deficiency, impairment, or injury.”[8] The evidence at trial included expert testimony that the levels of cocaine metabolites in the baby’s system were “indicative of an addict that’s doing it all the time which is going to cause … withdrawals.” The expert testified the amount of cocaine in the baby’s system would cause “loss of appetite” and “psychological effects” and could lead to seizures and other brain disorders. The baby’s new guardian testified the baby was “very clingy, very fussy,” and a doctor said the baby was small for her age.
On appeal, a unanimous panel of the Third Court, in an unpublished opinion by Justice Baker, held this evidence was sufficient to support the verdict. The Third Court began by noting that there was no statutory definition of “mental deficiency,” “mental impairment,” or “mental injury,” so it consulted a variety of commonsense definitions from dictionaries and recent intermediate court opinions (e.g. “mental” “is commonly understood to refer to the mind,” and “injury” was “hurt, damage, or loss sustained”). It also noted a 2007 Court of Criminal Appeals opinion that had assumed, without deciding, that PTSD would be “serious mental deficiency, impairment, or injury.”[9]
Based on the evidence, the Third Court held it was a reasonable deduction that 1) the baby had been exposed to so much cocaine she became addicted, and 2) she had experienced withdrawal symptoms sufficient to constitute serious mental deficiency, impairment, or injury.
The Court of Criminal Appeals granted review and, in an opinion again by Judge Slaughter, unanimously reversed. Judge Slaughter agreed with the Third Court that the lack of statutory definitions meant the “jury was free to use the common and ordinary meanings” of the term “serious mental deficiency, impairment, or injury.” Indeed, Judge Slaughter went so far as to declare that “the meanings of ‘serious,’ ‘mental,’ and ‘injury’ are so obvious that we need not resort to dictionary definitions.”
Judge Slaughter then held that, while the evidence showed the baby had ingested a lot of cocaine, the evidence showed no sort of mental injury at all. The expert’s testimony had listed possible side effects of addiction the baby may have suffered, but there was no testimony the baby had actually suffered any of the mental effects of addiction.[10]
But what about jurors’ common knowledge about the evils of cocaine addiction? Judge Slaughter held that “while some jurors may have some degree of personal knowledge regarding drug addiction,” “the average juror would not have a common-sense understanding of precisely how drug addiction and withdrawal affect a child’s development, cognitive functioning, or mental health.” Therefore, it was speculation, not a reasonable deduction, for jurors to conclude the baby suffered mental injury from cocaine addiction and withdrawal. The Court reversed the conviction and remanded for consideration of possible lesser-included offenses.
The blurry bounds of knowledge
Let’s note what deductions were not deemed reasonable in Edwards. Jurors do not have enough knowledge to “precisely” know the effects of cocaine addiction on babies; therefore, it was mere speculation to conclude the baby had suffered mental impairment or injury from cocaine withdrawals.
How much do you know about the effects of cocaine addiction on babies? Is it more or less than how much you know about through-and-through gunshot wounds? Dear reader, I have graduated from multiple institutions of higher learning. I have watched almost every Sam Waterston episode of “Law & Order.” I have spent untold hours listening to singers describe drug use and addiction in terms both artistic and crude. My knowledge of through-and-through wounds and infant drug addiction is about the same: I’m quite confident they’re both bad.[11] I certainly don’t “precisely” know the effects of through-and-throughs, and I doubt the average juror does either. It strikes me as odd that my common knowledge is sufficient to let me reasonably deduce a gunshot victim passed out from life-threatening blood loss as opposed to some other cause, but it’s mere speculation if I conclude a cocaine-addicted baby’s excessive fussiness and clinginess is a mental injury due to addiction and withdrawal.
I don’t say this to criticize either holding in particular. I say it because these cases illustrate how marginal sufficiency cases can be. Close cases are hard for judges; they can’t shrug away every evidentiary gap by just presuming the jury knows a lot, nor can they issue acquittals just because the State failed to prove a matter that is clearly within common knowledge. Courts must draw lines with very little objective guidance. The line from one case won’t always look like it matches up exactly with the line from others.
Unless you’ve got a case that’s factually on-point with Garcia or Edwards, there are not many productive takeaways here for prosecutors. You were already going to put on the best case you could. You will always have to rely on the common sense and knowledge of jurors and judges, and in some cases you’ll have to rely on them more than others. Fill in the gaps as best you can so the resulting verdict feels more like a reasonable deduction than mere speculation, but understand that is not always a clear line.
Endnotes
[1] ___ S.W.3d ___, No. PD-0679-21, 2023 WL 151589 (Tex. Crim. App. Jan. 11, 2023).
[2] ___ S.W.3d ___, No. PD-0585-21, 2023 WL 2000060 (Tex. Crim. App. Feb. 15, 2023).
[3] I am combining some background facts from the CCA’s opinion with information from the lower court’s opinion, Garcia v. State, 631 S.W.3d 875 (Tex. App.—Houston [14th Dist.] 2023).
[4] Tex. Penal Code §1.07(a)(46).
[5] Garcia, 2023 WL 151989 at *6.
[6] The Court’s use of this testimony to uphold the verdict is noteworthy. Testimony about the lethality of “chest area” wounds—which sounds like it would include being shot in the heart or lungs—seems a little vague for analyzing the effects of the very specific type of “chest area” wound at issue here, a through-and-through breast wound.
In State v. Baldwin, ___ S.W.3d ___ No. PD-0027-21, 2022 WL 1499508, at *11 (Tex. Crim. App. May 11, 2022), by a 5–4 vote, the Court of Criminal Appeals held that boilerplate language in a warrant affidavit about criminals’ usage of cell phones could not create probable cause that a suspect had a cell phone on his person at the time of the offense. Four judges from the Baldwin majority joined Garcia. How boilerplate language about gunshot wounds other than the complainant’s can help show, beyond a reasonable doubt, that the complainant faced a serious risk of death, but boilerplate language that criminals often carry cell phones combined with the possession of a cell phone by a person linked to a crime four days after the crime cannot create probable cause that the suspect had a cell phone on his person at the time of the crime is, perhaps, a question the court will address in the future. The question about what is common knowledge comes up in many contexts.
[7] I am again combining facts found in the CCA’s opinion with facts found in the lower court’s opinion, Edwards v. State, N. 03-20-00138-CR, 2021 WL 2692350 (Tex. App.—Austin July 1, 2021) (not designated for publication).
[8] Tex. Penal Code §22.04(a-1)(2), (e).
[9] Tex. Penal Code §22.04(a-1)(2), (e).
[10] This is true enough, but how would a baby manifest the mental symptoms of withdrawal in a way that could be testified to? As a parent, I’d expect manifestations to be what the evidence showed here: “clinginess” and “fussiness.” Last year the Court in Shumway v. State, ___ S.W.3d ___, No. PD-0108-20, 2022 WL 301737 (Tex. Crim. App. Feb. 2, 2022) recognized the problem of proving injuries to preverbal children and relaxed the corpus delecti rule—which ordinarily bars a conviction if the only evidence is a defendant’s confession—in cases where there would be no perceptible physical injuries and the child was too young to outcry.
[11] In Edwards, the Third Court cited a National Institute on Drug Abuse definition of drug addiction as a “chronic” condition with “long-lasting changes in the brain.” The Court of Criminal Appeals disregarded that definition because it wasn’t introduced into evidence, but that comports with my notions of addiction and I assume others’ as well.