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Click here for the full text of this decision FACTS:Kimberly Sue Austin and her husband Robert Austin had four children: Noah Austin, born on Sept. 2, 1998; Joshua Austin, born on Dec. 16, 1992; Robert Andrew Austin (Andrew), born on Aug. 31, 1991; and Brittany Austin, born on Aug. 5, 1990. Joshua died when he was seven months old, and the medical examiner ruled the death to be from Sudden Infant Death Syndrome (SIDS). In April 2000, Kimberly and her husband and children lived together with her husband’s parents, Judith and Robert Austin Sr. (Robert Sr.). Kimberly was the primary caretaker of the children. Robert was ill and suffered from several conditions, including diabetes and dementia. He was insulin dependent and relied on others in the family, including Kimberly, to administer his daily insulin injections. On April 10, 2000, Noah apparently had a seizure. Noah was stiff, cold, shaking and convulsing, and his father called 911. Noah went into a deep coma and was admitted to a pediatric intensive care unit, where doctors discovered that he had a depressed glucose level and an elevated insulin level. After ruling out all possible natural causes for these conditions, doctors determined that Noah had been injected with insulin, and a bruised injection site was soon discovered on Noah’s arm. The doctors suspected that Noah was the victim of Munchausen Syndrome by Proxy (MSBP), a mental condition describing a caregiver, often a mother of young children, who falsifies or induces illness in those cared for to gain attention and sympathy. They called Children’s Protective Services. Based on Noah’s condition when his father found him, authorities determined that he had been injected with insulin. Kimberly admitted that she had access to insulin and often administered injections to Robert Sr., but she denied injecting Noah. This was not the first time CPS had investigated Kimberly and suspected MSBP. In September 1993, five weeks after Joshua’s death, then 2-year-old Andrew was admitted to a hospital for accidental drug ingestion for the third time. Hospital authorities caught Kimberly under circumstances strongly indicating she had injected Coca-Cola into Andrew’s IV line. Kimberly denied doing this and blamed the hospital staff. CPS investigated and removed the children from the home for six months. As part of the investigation, CPS requested that Kimberly undergo a psychological evaluation. The psychologist strongly suspected MSBP but stopped short of diagnosing it based on a lack of concrete evidence. Although the psychologist recommended that the children remain in protective custody, they were returned to Kimberly. Though Joshua’s death was initially attributed to SIDS, the investigation surrounding Noah led to suspicions that Kimberly played a role in Joshua’s death. In 2002, Joshua’s body was exhumed and re-autopsied, and the medical examiner discovered a mark and crystallized material consistent with an injection site. This, in combination with the injection of Noah, the incident with Andrew’s IV line, and the pattern of medical incidents revealed in the children’s medical records, led the medical examiner to issue a new death certificate showing Joshua’s death was a homicide resulting from MSBP. At trial, the state introduced two exhibits consisting of thousands of pages of medical records from each of Kimberly’s four children. Using these records, five doctors testified that Noah, Joshua, Andrew and possibly Brittany were victims of MSBP. Each doctor based his or her opinion on some or all of these facts gleaned from medical records. Kimberly moved pretrial to exclude the children’s medical records, arguing that the records constituted prior bad acts and were unfairly prejudicial and thus inadmissible under Texas Rules of Evidence 403 and 404(b). The trial court overruled Kimberly’s objections and admitted the records as well as the medical testimony based on the records. The state also introduced at trial an exhibit containing two sets of psychological evaluations of Kimberly conducted during the CPS investigations. Kimberly objected on hearsay grounds and under Rule 404(b) to admitting this interview summary, but the trial court overruled her objections. Kimberly also moved pretrial to exclude any mention of the circumstances of Joshua’s death and the findings from the second autopsy. The trial court made a ruling excluding this evidence, but the prosecutor failed to instruct Judith on the, and near the end of the final day of testimony, she stated that Joshua had died. The defense moved for a mistrial, which the trial court denied after thoroughly instructing the jury to disregard and polling each individual juror, each of whom indicated they could follow the trial court’s instruction. The jury convicted Kimberly. Kimberly appealed. HOLDING:Affirmed. Kimberly argued that the trial court erred in admitting the medical records of her four children and testimony regarding those records. She claimed that admission of this evidence, which the state used to support its theory that she had MSBP based on her conduct toward Noah and her other children, violated Texas Rule of Evidence 404(b)’s general prohibition of evidence of extraneous bad acts. She also contends that, even if the evidence was admissible under Rule 404(b), it should have been excluded as unfairly prejudicial under Texas Rule of Evidence 403. Rule 404(b), the court stated, provides that “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” But the court stated that such evidence may be admissible for other purposes, such as proof of motive. Evidence suggesting Kimberly had MSBP, the court stated, was helpful to the jury in understanding why this otherwise seemingly caring and devoted mother would intentionally inject her son with unnecessary insulin. In addition to helping to explain motive, the court found that admission of the records was permissible under Rule 404(b) to provide context to the crime. Thus, admission of the records did not violate Rule 404(b). Next, Kimberly challenged the trial court’s admission of a summary of an interview with Robert during a 1994 psychological evaluation of Kimberly. This interview summary recounts Robert Sr.’s negative opinions about Kimberly. In particular, Kimberly claimed that admission of the interview summary violated her right to confront witnesses, because Robert Sr. was deceased at the time of trial and therefore unavailable for cross-examination. The state responded that Kimberly did not timely object at trial and thus did not preserve the issue for review. The court agreed. In addition, Kimberly argued that Robert Sr.’s interview summary was not admissible under Rule 803(4), which provides that statements “made for purposes of medical diagnosis or treatment” are not excluded by the hearsay rule. The court agreed, finding that nothing in the record suggested that Robert Sr. made the statement for the purpose of diagnosing or treating Kimberly’s mental condition. Thus, the court concluded that the interview summary was not admissible under Rule 803(4). The court, however, found it admissible under Rule 705(a), which allows for the admission of evidence that shows the basis of an expert opinion, in this case the opinion of Dr. Lawrence M. Bramlette, a licensed psychologist. Bramlette testified that background information, such as interviews with Kimberly’s family members, was important in his assessment of Kimberly and whether she had MSBP. In summary, the court found that the trial court did not abuse its discretion in admitting Kimberly Austin’s children’s medical records and the summary of the interview with Robert Austin Sr. or in refusing to grant Kimberly’s motion for a mistrial. Finally, Kimberly argued the trial court abused its discretion in refusing to grant a mistrial, because the accidential admission of testimony regarding Joshua’s death was so prejudicial that it was impossible for the jury to disregard. The court disagreed. Though evidence of Joshua’s death was certainly prejudicial, the court found that evidence admitted throughout the entire trial diminished the prejudicial impact of the improper testimony. The jury had already heard extensive evidence that Kimberly had, directly and indirectly, repeatedly injured each of her children, including injecting Noah with insulin and sending him into a coma. Further, the court stated that the judge’s instruction to disregard the testimony was prompt, unequivocal and forceful. OPINION:Yates, J.; Hedges, C.J., and Yates and Seymore, J.J.

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