Jesseca Bain Carson v. State

Citations: 422 S.W.3d 733; 2013 WL 387873; 2013 Tex. App. LEXIS 963Docket: 06-11-00112-CR

Court: Court of Appeals of Texas; January 31, 2013; Texas; State Appellate Court

Original Court Document: View Document

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Jesseca Bain Carson was convicted of capital murder as a party to the murder of her thirteen-month-old child, who was tortured by her boyfriend in an attempted exorcism. Carson received a life sentence without parole. She appeals on several grounds: arguing insufficient evidence of her participation in the murder, a fatal variance between the indictment's allegations and trial evidence regarding the cause of death, and insufficient evidence to prove strangulation as alleged. Carson also claims the trial court erred by not including a "mistake of fact" jury instruction and denying lesser-included offense instructions for criminally negligent homicide and reckless injury to a child. Furthermore, she contends that her life sentence constitutes cruel and unusual punishment under both the United States and Texas Constitutions. 

In reviewing the legal sufficiency of the evidence, the court applies a standard that views the evidence favorably toward the jury’s verdict, determining if any rational jury could have found the essential elements of capital murder beyond a reasonable doubt. The court emphasizes the principle of deference to the jury’s role in resolving conflicts in testimony and weighing evidence. Carson's conviction hinges on whether she intentionally or knowingly participated in the murder, or was criminally responsible as a party to the offense, as defined by the jury charge. Her arguments challenge the sufficiency of evidence on three fronts: her involvement in the murder, discrepancies in the cause of death, and the nature of the victim's death.

Over thirty hours, Blaine Keith Milam murdered Carson's daughter, Amora, believing she was possessed by a demon. Milam was subsequently convicted of capital murder and sentenced to death. During the incident, Carson was present in their home and provided a recorded statement to law enforcement, which was presented at trial, and testified during her own trial. Carson, who met Milam at age seventeen in 2008, moved in with him after he proposed on prom night. Initially, Milam appeared to care for Amora, but over time, he became controlling and jealous, leading to Carson's estrangement from her family. Evidence indicated that Carson was more self-sufficient and attentive to her child before her relationship with Milam. The relationship deteriorated as Milam began using Carson's online accounts without permission and they engaged in Ouija board sessions, during which they claimed to communicate with their deceased fathers. The Ouija board allegedly told Carson that her mother killed her father, intensifying her belief in evil spirits affecting their lives. Carson eventually came to believe Milam was possessed by a demon, though she stated he was good to Amora. On December 1, 2008, Milam claimed Amora was possessed and suggested an exorcism, blaming Carson for not being truthful with him.

Carson lacked understanding of exorcisms, which Milam claimed God was instructing him to perform on her child, Amora. While Milam conducted the exorcism in a back bedroom, Amora sustained severe injuries resulting in her death. Forensic evidence indicated extensive trauma: multiple skull fractures, severe brain damage, spiral fractures on limbs, blunt force injuries to the torso, and over twenty-four distinct bite marks across her body. Additionally, Amora had severe lacerations to her liver and her vaginal and anal orifices were torn, creating an unprecedented connection between them. Her tongue was also lacerated from blunt force trauma, and she was strangled. Due to the complexity and severity of her injuries, a definitive cause of death could not be established, though several injuries alone could have been fatal. When police arrived hours later, Amora was in rigor mortis. Carson likened Amora to horror movie characters, expressing distress over Milam's actions and the child's condition, which included bizarre behaviors that led Carson to believe Amora was possessed. Milam, after taking a disturbing picture of Amora, suggested that she had harmed herself, while Carson struggled to recognize her child as anything other than a possessed entity. They briefly left to go to Wal-Mart, where Milam contemplated selling his soul to free Amora from possession, a notion Carson vehemently opposed. They returned home to continue the exorcism.

Carson acknowledged that Milam did not explain how God directed him to perform the final exorcism on the child but mentioned hearing distressing noises during the process. Milam reportedly restrained the child with a rope, and Carson expressed a preference for the child to "go to heaven" rather than live with "Satan." After the child's death, Carson initially claimed to investigators that she and Milam had been away discussing property plans, later admitting this was a fabrication due to fear of being labeled mentally unstable or charged with murder. Evidence indicated the child's blood was found throughout their home, and during the incident, Milam isolated the child in a back bedroom. 

Carson was aware of the abuse occurring, as she heard screams and observed the child's injuries, suggesting she supported Milam's actions under the belief the child was possessed. She admitted to encouraging Milam to perform whatever was necessary to exorcise the demon, even recalling moments when Milam bit the child to stop her from attacking him. Carson engaged with the child during the ordeal, confirming her presence in the trailer and her knowledge of the events unfolding, including a final agreement to the exorcism, after which she watched television while Milam completed the act.

Carson contends that the evidence fails to establish her criminal responsibility for the child's murder under Texas law. "Criminal responsibility" can be derived from another's conduct if one acts with intent to promote the offense or fails to prevent it when having a legal duty to do so, as outlined in TEX. PENAL CODE ANN. 7.02(a)(2)(3). According to traditional party responsibility principles, mere presence is inadequate for conviction unless the State demonstrates that the defendant, not being the primary actor, engaged in conduct aimed at assisting the offense. Key cases highlight that physical presence and encouragement during the crime can substantiate responsibility.

In this instance, Carson's legal obligation to protect her child introduces an additional basis for liability. Capital murder involves intentionally causing the death of a child under ten, and knowledge of the potential outcome is required for culpability. The jury was instructed that Carson could be deemed criminally responsible if she acted with intent to promote the offense and failed to make reasonable efforts to prevent it, shifting the standard from active assistance to a failure to act, as per TEX. PENAL CODE ANN. 7.02(a)(3).

A person with a legal duty to prevent a crime may be held responsible if they fail to make reasonable efforts to do so and act with intent to promote or assist in the crime, without needing to prove solicitation or direct involvement. In *Raspberry v. State*, it is established that a parent, like Carson, has a statutory duty to care for and protect their child, which includes preventing harm. Evidence suggests Carson encouraged Milam to conduct an exorcism on her child, witnessed the child’s abuse, and failed to intervene despite hearing her cries and seeing signs of injury. Carson accepted the notion that her child was possessed, and during a trip to Wal-Mart while alone with the child, she did not check on or aid her. The evidence indicates Carson was aware of Milam’s abusive actions, as she observed the child’s injuries and heard her distress but did not attempt to stop him or seek help. Ultimately, Carson's inaction and encouragement of Milam's conduct violated her duty to protect her child, leading to the child's murder.

A jury could reasonably infer that Carson was aware her inaction (failing to prevent the offense) would likely lead to death, suggesting she intended to assist in the crime through her complete failure to intervene. Key factors supporting this conclusion include: 1) the prolonged and severe nature of the injuries inflicted on the child, 2) Carson's presence throughout the duration of the torture, witnessing the child's suffering, 3) her opportunity to remove the child from danger without taking action, and 4) the systematic nature of the abuse over two days, indicating a clear intent rather than a spontaneous act. The forensic evidence highlighted the unprecedented extent of the injuries, with virtually every part of the child's body harmed, resulting in a slow and agonizing death. The mental state necessary for culpability can typically be inferred from the accused's actions, as supported by relevant case law. The jury dismissed Carson's claim that the abuse was an attempt to exorcise a demon, noting her multiple opportunities to protect the child that she ignored. The evidence presented allowed the jury to reasonably conclude Carson was culpable as a party to the crime, drawing parallels to a similar case (Pumphrey v. State), where the accused, aware of the ongoing severe abuse, was also found responsible for the child's death despite claiming he was not the primary perpetrator.

Carson argues that the indictment's allegations diverge significantly from the jury charge, claiming a fatal variance that warrants reversal, referencing McIver v. State. In McIver, the court ruled that when an indictment claims a victim was killed by an unknown instrument, the State must demonstrate the grand jury's efforts to identify the instrument. The indictment in Carson’s case alleges multiple methods of murder, including striking with hands and an unknown object, as well as strangulation. Carson contends the State failed to prove the grand jury's inquiry into the unknown object used in the child's death. Recent rulings from the Texas Court of Criminal Appeals, particularly in Sanchez v. State, have rendered the Hicks rule obsolete, clarifying that the sufficiency of evidence should be assessed based on a hypothetically correct jury charge. The court determined that nonessential elements, such as the unknown object, can be disregarded in this assessment. Additionally, Carson challenges the sufficiency of the evidence for strangulation. However, evidence, including petechial hemorrhages and testimony from a forensic examiner, supports that strangulation was likely among the injuries. The court held that in capital murder cases, if the jury is authorized to convict on multiple theories, a guilty verdict can stand if there is sufficient evidence for any theory. Thus, even if the strangulation evidence were insufficient, the evidence of beating the child to death through other means remains strong. Carson’s arguments regarding the Hicks rule do not provide grounds for relief, and no issues of proper notice regarding the charges were raised.

Carson argued that the trial court erred by not including her requested jury instruction on mistake of fact, which is a statutory defense under Texas Penal Code § 8.02(a). She claimed that her belief in Milam's loving behavior towards Amora constituted a "mistaken belief" that could negate her culpability. According to Texas law, a jury must be charged on applicable legal issues if evidence supports a defensive theory. However, an instruction is warranted only if there is some evidence favoring the defendant's theory. 

The court noted that although Carson previously had no reason to anticipate Milam's harmful actions, her decision to allow an exorcism after Milam made an unusual claim about Amora being possessed indicated a lack of due diligence. Throughout the ordeal, Carson was present and witnessed the child's distress but failed to act or investigate further. The prolonged nature of the abuse and her observations contradicted any reasonable belief that Milam was acting out of love. The belief that Milam's actions were justified was deemed patently unreasonable, thus negating the defense of mistake of fact. Consequently, the court found no error in refusing to give the instruction, and Carson's claim of error was overruled.

Carson argues that the trial court erred by not providing jury instructions for lesser-included offenses, specifically criminally negligent homicide and reckless injury to a child. She claims that the evidence suggests her actions, while possibly negligent or reckless, do not establish her as a principal in the child’s injury, but rather as responsible for another’s actions. According to Texas law, a lesser-included offense may be defined by the same or fewer factual elements than the charged offense, or by a less serious injury or culpable mental state. The jury was charged with various bases for capital murder and injury to a child, but Carson contends that there was sufficient evidence to support a lesser charge. A defendant is entitled to an instruction on a lesser offense if it is included in the proof for the charged offense and if there is evidence that could lead the jury to find her guilty only of the lesser offense. The courts have established that if any evidence raises the issue of a lesser-included offense, it must be included in the jury charge. The evidence must be evaluated in its totality and must support the lesser offense as a valid alternative to the charged offense, allowing for a rational conclusion that the defendant is guilty only of the lesser charge.

Requested instructions pertain to applying a lesser-culpable mental state, specifically through criminal negligence or reckless behavior. Under Texas law (TEX. PENAL CODE ANN. 22.04(a)(b)), a person commits injury to a child by omission when they intentionally, knowingly, or recklessly cause serious bodily injury to a child while having a legal duty to act. Reckless conduct, defined by TEX. PENAL CODE ANN. 6.03(c), occurs when an individual is aware of a substantial and unjustifiable risk yet consciously disregards it, constituting a gross deviation from the standard of care expected of an ordinary person. If the offense is committed recklessly, it qualifies as a second-degree felony (TEX. PENAL CODE ANN. 22.04(e)). 

For a jury to consider a lesser-included offense, there must be evidence directly related to it; mere disbelief of evidence for a greater offense is insufficient (Skinner v. State, 956 S.W.2d 532, 543). The standard is met if evidence refutes or negates the greater offense or is open to different interpretations (Sweed v. State, 351 S.W.3d 63, 68). The Texas Court of Criminal Appeals has reiterated two pathways for evidence indicating a defendant’s guilt of only the lesser offense: evidence that negates the greater offense and evidence subject to multiple interpretations regarding the defendant's awareness of risk (Cavazos, 382 S.W.3d at 385). 

In this case, a crucial issue was whether Carson intended to promote the child's death or acted recklessly by failing to act while aware of the danger. The jury charge did not allow for consideration of Carson's reckless action; it only addressed whether she knowingly killed or intentionally or knowingly injured her child.

Carson, as the child's mother, had a legal obligation to protect her child but failed to act to prevent the child's murder. The critical question is whether she acted recklessly, meaning she was aware of a substantial risk of injury that she consciously disregarded. The State contends that no rational jury could find that Carson was aware of and disregarded such a risk. Although Carson did not admit to conscious disregard, evidence suggests otherwise. She had become submissive to Milam, believing he loved her and her child; he controlled her social connections and she thought an "exorcism" would help her child. Despite witnessing distressing signs, such as Milam's history as a registered sex offender, the child's cries, and visible injuries, Carson allowed Milam to continue the exorcism. Evidence of the child’s blood found in the home supports a jury conclusion that Carson became aware of the substantial risk Milam posed but failed to confront him, thus acting recklessly by omission. The court cannot determine Carson's exact culpability—whether intentional, knowing, or reckless—leaving that to the jury. The trial court's refusal to submit a lesser charge of reckless injury to a child by omission was deemed an error. Under the Almanza analysis, it must be established whether Carson suffered harm from this error. A proper objection was raised, and any harm, regardless of degree, necessitates reversal. The jury was instructed on capital murder, murder, and injury to a child, with each requiring different levels of culpability—knowing, intentional, or both.

The Texas Court of Criminal Appeals established that an error in not submitting a lesser-included charge can be deemed harmless if the jury was presented with an intervening lesser-offense instruction that they rejected, indicating their belief in the defendant's guilt for the greater offense. This principle was articulated in Masterson v. State, where the court noted that harm from denying lesser-offense instructions may arise if the jury faces the choice of convicting for a greater charge or acquitting. The intervening charge can act as a compromise, allowing for accountability even if the greater offense is not convicted. However, this is contingent on the nature of the intervening offense; if the jury's rejection of it shows a firm belief in the defendant's guilt of the greater charge, the omission of the lesser charge may be harmless. In various cases, rejected lesser offenses often involved a lesser mens rea requirement, such as in Saunders v. State, where the jury dismissed involuntary manslaughter in favor of a more serious charge. Conversely, in Partida v. State, the jury's rejection of a lesser offense demonstrated their clear belief in the defendant's guilt of a greater charge, as evidenced by their deliberation among three potential charges without facing an acquit-or-convict dilemma.

Carson’s testimony, if accepted by the jury, would have negated any finding of intentional, knowing, or reckless conduct resulting in the child's death. The jury had the opportunity to determine if Carson's actions indicated a reasonable certainty of causing death. As established in Masterson, the jury could have opted for a compromise verdict if it believed the evidence did not support capital murder. If the jury had concluded that Carson was not reasonably certain her actions would lead to death, it could have found her guilty of murder, indicating intent to injure the child rather than intent to cause death. Furthermore, had the jury determined that the offense was solely injury to a child without a clearly dangerous act, it could have convicted her of the lesser offense, a first-degree felony.

During jury selection, it was made clear that murder is considered a lesser offense than capital murder. In this capital murder case, where the death penalty was waived, the trial judge informed the jury that a conviction would result in a life sentence without parole, while murder could carry a sentence of five years to ninety-nine years or life imprisonment. The jury’s rejection of the lesser charges indicated its firm belief in Carson's guilt of capital murder, leading to the conclusion that any error in not submitting lesser-included offenses was harmless.

Carson also argued that her life sentence without the possibility of parole constituted cruel and unusual punishment under the U.S. and Texas Constitutions, violating Due Process and Equal Protection. However, to preserve this claim for appeal, a specific objection must be made at trial, which was not done in this case. Therefore, the issue was not preserved for appellate review, and the error was overruled. Although the trial court erred in failing to submit a lesser-included charge, this error was deemed harmless, and the judgment of the trial court was affirmed.