Rankin v. State (41 S.W.3d 335, 2001)

OPINION

DAUPHINOT, Justice.

INTRODUCTION

A jury convicted Appellant Todd Rankin of knowingly, by omission, causing serious bodily injury to a child under the age of fifteen. The specific manner and means alleged in the indictment and found by the jury were “by failing to cover a septic tank containing liquid, at a time when the Defendant had assumed care, custody, or control of [the child] or had a legal duty to act because the Defendant was the father of [the child].” The jury sentenced Appellant to twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and affirmatively found that the septic tank was a deadly weapon. Appellant brings twelve points on appeal, challenging the sufficiency of the evidence, the denial of a charge on the lesser included offense of criminally negligent injury to a child, the exclusion of impeachment evidence, and the erroneous admission of extraneous conduct evidence. Finding no reversible error, we affirm.

SUMMARY OF FACTS

On February 8, 1996, two-year-old Joseph Rankin drowned in a septic tank in the backyard of his house. Appellant was Joseph’s father; Jill Rankin (Jill) was Joseph’s mother. Five months before Joseph’s death, a police officer had gone to the Rankin home to investigate complaints that Joseph often wandered alone on a busy street near his home. Neighbors, police officers, Child Protective Services (CPS) workers, and Volunteers of America (VOA) workers testified that the house was filthy and unsafe. There was testimony of exposed wiring, holes in the walls and ceilings so big you could see outside, animal feces on the floors, roaches in the refrigerator and kitchen cabinets, and a noxious odor throughout the house.

The evidence showed that Appellant had worked on the septic tank numerous times, but had not successfully repaired it. There was evidence that the tank’s cover had been off for some time and that friends had warned Appellant not to leave the septic tank uncovered. Testimony revealed that Appellant and Jill thought Joseph was in his room until Appellant discovered the child in the septic tank. Over objection, Alma Abreo, a neighbor of the Rankins’, testified that Appellant had once told her that he was sick of his children and that he “would take out his kids one by one and make it look like an accident.”

Dr. Gary L. Sisler, the deputy medical examiner, determined that the cause of Joseph’s death was by drowning in a septic tank. Although initially ruled accidental, the deputy medical examiner and chief medical examiner changed the manner of death to “undetermined” upon receiving Abreo’s sworn statement.

Appellant was charged with intentionally or knowingly causing injury to a child by omission, under section 22.04 of the Texas Penal Code. Prior to trial, however, the State waived the intentional portion of the indictment and proceeded on the culpable mental state of “knowing.”

SUFFICIENCY OF THE EVIDENCE

In his first four points, Appellant challenges the legal and factual sufficiency of the evidence to support the jury’s verdict. In particular, Appellant argues that the evidence is insufficient to prove that he acted knowingly. j

STANDARD OF REVIEW — LEGAL SUFFICIENCY

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Our duty is not to reweigh the evidence from reading a cold record but to act as a due process safeguard ensuring only the rationality of the fact finder. The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. The standard for review is the same for direct and circumstantial evidence cases.

STANDARD OF REVIEW — FACTUAL SUFFICIENCY

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. In performing this review, we are to give due deference to the fact finder’s determinations. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice.

DISCUSSION

Sergeant R.D. Waters of the Ben-brook Police Department testified that on September 8, 1995, while he was on routine patrol near the Rankins’ house, a neighbor flagged him down to express her concern about a child who would often wander into the busy roadway. Sergeant Waters then went across the street to the house the neighbor indicated and spoke with a man there. The man, later identified as Appellant, told Waters that he was aware of the problem with the child wandering out into the street, and that he had put up a barrier in an attempt to restrain him. The barrier was a sheet of plywood about twenty-four to thirty inches tall. Still, Appellant explained, the child managed to get over the plywood and escape into the street. Waters left the house, but returned about two hours later after deciding to initiate an offense report against the child’s parents. On this second visit, Sergeant Waters met Jill, Appellant’s wife, who told the officer that she too was aware of the problem and that Appellant had erected a plywood barrier. Waters learned that the child’s name was Joseph Rankin and that he was not yet two years old.

After Waters’ visits, CPS referred the Rankin family to VOA for instruction in parenting skills. In 1996, Minnie Griffin, a family mentor with VOA, was assigned to the Rankin case. During her first visit to the Rankin home, Griffin observed that the house was in poor condition: there was a hole in the living room ceiling, electrical wiring hanging from the ceiling, general filth and disorder, and an unpleasant odor. Griffin returned a few days later and saw a child whom Jill was babysitting pulling things out of a garbage can. Griffin told Jill that she should be more vigilant of the children in her care. Griffin returned approximately twenty days later on February 8, 1996. At that time she discussed with Jill the odor throughout the house, as well as the necessity of making the home safe for children. Griffin testified that on none of her visits did she notice a safety hazard that would require removal of the children from the home. She also testified that on each of her visits she found Joseph to be a well-fed, healthy, and happy child. Furthermore, Griffin noted that Jill had attempted to straighten the house and that she never saw signs of physical abuse on Joseph.

Clinton Allen, a friend of Appellant, who at one time had stayed with the Rankin family in their home, testified that he had helped Appellant work on the septic tank; in the past. The first time, they simply removed the lid, looked at the tank, and then re-covered the tank. Subsequently, Appellant asked Allen to help him empty out the septic tank, but Allen refused. Allen testified that he told Appellant three or four times that Appellant should keep the septic tank covered, and that he warned Appellant that someone was going to fall into the septic tank. Allen also testified to his belief that the open septic tank was dangerous, especially after dark.

Paula Elliot, an acquaintance of Appellant and Jill, testified that she had visited the Rankin home prior to February 8, 1996, where she observed that “the septic tank lid was off. It was backed up. I mean, it was nasty.” Approximately three days before Joseph’s death, Elliot called CPS to report the open septic tank in the Rankins’ backyard. Elliot testified that she was concerned about the septic tank because “any person could fall into it, anybody, anything. They had animals, also, that could fall into it.” While Elliot testified that she might have told Jill about her concerns, she admitted that she had not spoken to Appellant about the septic tank.

Cecil Braudway, another friend of Appellant, testified that he was at the Rankin home on the afternoon of February 8, 1996. Appellant was working on the septic tank because it was backed up. Braudway got a “snake” from his truck and watched as Appellant tried unsuccessfully to clean out the blocked pipe. When Appellant finished, Braudway asked about putting the lid back on the tank, but Appellant said he would do it later.

Back inside the house, Appellant played video games while Jill packed a diaper bag to go to the Braudways’ house for dinner. Braudway testified that Joseph was running around the house playing until either Appellant or Jill sent him to his room. After some time passed, Jill remarked that Joseph was too quiet, and asked Appellant to check on him. Instead of going into Joseph’s room, however, Appellant decided to check the septic tank first. There, according to Braudway, Appellant “saw what he thought was a bag or something and he got a stick and poked it and then realized it wasn’t a bag and saw some shoes floating and then that’s when he got down there and got it and found it was Joseph.” Braudway heard Appellant cry out, “Oh, my gosh.” Soon after, Appellant walked into the living room carrying Joseph in his arms, and saying in a frantic voice, “I think he’s gone.” Appellant and Jill went next door to call 911 while Braudway attempted to call for help on a CB radio.

Officer Jackie Deane of the Benbrook Police Department testified that she received a dispatch to the Rankin residence at approximately 7:00 p.m. on February 8, 1996. When she arrived, Appellant was standing outside. Officer Deane described Appellant as very calm. Appellant led the officer into the living room of the house where she saw a woman kneeling beside a child. The woman was crying and appeared to be very upset. When she saw Deane, the woman yelled, “help my son.” Deane observed that the child was lifeless and unresponsive, and that his body was “very, very cold, just very cold” and “all wet, soaked.” When Deane asked the woman how long the child had been “down,” she replied that she did not know, and that she thought he was in bed. Although Deane, another police officer, and paramedics performed CPR, the little boy did not respond.

Officer James Mills was also dispatched to the Rankin home that night. Officer Mills testified that Appellant did not appear to be excited or upset when he observed him on the front porch of the house. After assisting with the CPR efforts, Mills went into the backyard to look at the septic tank. He described the yard as being very dark, with no external lighting. Mills then spoke with Appellant and asked him what had happened. Appellant told the officer that he thought Joseph was in bed. Appellant explained that he walked into the backyard, where he saw what looked to him like a plastic bag floating in the septic tank. Upon further examination, Appellant realized that it was Joseph. Appellant told Mills that he had been working on the septic tank and that the lid had been off for several days.

Officer Mills measured the depth of the liquid waste in the septic tank, which he estimated to be about three or four feet. He also determined the approximate diameter of the septic tank to be between three lo * - feet. Based upon the condition of the disp ^d dirt next to the tank, Mills guessed tha¿ the lid had been off for more than a couple of days. Mills testified that, in his opinion, the open septic tank in the Rankins’ backyard was a “deadly weapon.” According to the officer, the septic tank cover was propped up at an angle such that it looked like a slide.

Margaret Livesay, a CPS investigator, testified that she met with Appellant and Jill at the hospital later that night. Jill stated that Joseph had been running up and down the hall playing with matchbox cars while she packed the diaper bag. At some point, Joseph went into the bedroom to give his little brother a bottle. When everything got quiet, Jill believed that Joseph was asleep and did not check on him. Jill admitted that it had been forty-five minutes to an hour since she had last seen Joseph.

When Livesay interviewed Appellant separately, he agreed with his wife’s statement that Joseph had been out of sight for at least forty-five minutes to an hour. Appellant stated that when he went to look for Joseph, he noticed that a door in the bathroom, which opened out onto the backyard, was open halfway. Appellant saw something white floating in the septic tank, which he thought was a bag. Upon further inspection, Appellant discovered that it was Joseph. Appellant told Livesay that the septic tank was about three feet wide, that it was located approximately six to seven feet away from the bathroom door, and that it was large enough for a full-grown person to fall into. Indeed, Appellant admitted that he had almost fallen into the open tank twice earlier that same day. Livesay also testified to her opinion that the uncovered septic tank in the Ran-kins’ backyard posed a dangerous situation for a small child.

Alma Abreo, a neighbor of the Rankins’, testified over defense objection to an encounter she had with Appellant in late 1995 or early 1996:

I was leaving my house to go to work and I five on the corner — like I said, I was leaving my house going down Williams Road to turn right and [Appellant] was standing there on the street waving me down to stop, so I stopped.

He said that he needed to take his -wife to the hospital and he needed to take her. So I told him there was nothing I could do for him, as far as taking him, because I had to go to work.

He repeatedly got upset. He was mad. He was angry. He smelled of alcohol. I told him that I — there was nothing I could do.

He said he was sick, he was so sick of it. And I said,