Capital murder conviction upheld

The 14th Court of Appeals has affirmed the 2014 capital murder conviction of Sherill Small, who is now serving life in prison for the 2013 death of  a foster child in her care, Alexandra Hill.

The 20th Judicial District Court and District Attorney Bill Torrey were notified of the appeals court decision rendered Wednesday.

Small, 57, of Rockdale, was found guilty by a Milam County jury following more than a week of testimony and four hours of jury deliberation. The verdict automatically sentenced Small to life in prison without parole because the prosecution did not seek the death penalty in the case.

Small was indicted in August 2013 after the child’s death on July 31, 2013 at McLane Children’s Hospital, where she had been treated for blunt force trauma head injuries and internal injuries.

Small’s attorney filed the appeal in December 2014, about a month after the trial.

The Court of Appeals overruled the two points brought up in the appeal: that a defense witness’s testimony was limited and prevented a doctor from testifying that the child’s death might have been the result of an accident; and that the trial court failed to read its response to a jury note in open court as required by Article 36.27 of the Texas Code of Criminal Procedure.

The Court of Appeals opinion noted that although the testimony of  Dr. Steven Yount, a board-certified family practitioner, was – upon objection by the state –  limited by the judge to areas only within Yount’s medical expertise and he was not allowed to include his interpretation of scientific studies in support of the defense’s theory that the child’s injuries could have resulted from an accidental, short-distance fall, he was later allowed to express his opinion that the child’s death could have been “a tragic accident.”

 On the second point, the opinion noted that the trial judge responded to two notes from the jury during four hours of deliberation, both notes saying “We have a vote of 11-1.”  

Only the first note and response were in the court reporter’s record. The judge’s response was “Continue to deliberate.” The second note from the jury was included in the clerk’s record, along with the judge’s typewritten Allen charge in reply, but does not appear in the court reporter’s record. 

The appellant argued that the Allen charge – a jury instruction intended to prevent a hung jury by encouraging jurors voting in the minority to reconsider – was not read to the jury in open court as required, although she conceded that she did not object at the time.

 The appeals court ruled that it could not be inferred “that because the trial court’s otherwise detailed docket sheet does not make reference to a second note, it must not have been read in open court.”

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Alexandra Hill was one of ten children who died of abuse and neglect in Texas foster care homes in 2013. According to the Department of Family and Protective Services, an immediate result of Alexandra’s death was the approval of new foster care safety rules in 2014 providing for more thorough background screening of potential foster parents and expanding those background checks to include adult children and other family members not living in the foster home. In addition, a system for reviewing and evaluating those background checks was instituted.

A series of articles published in The Cameron Herald two years after Alexandra’s death noted the rule changes dealt with how the 370-plus ‘foster child-placing agencies’ working as private contractors for DFPS do their work because one of the agencies, Texas Mentor, made mistakes related to Alex’s death. 

According to Julie Moody, media specialist for DFPS Region 7, an investigation into Alexandra’s death found eight rules/laws had been violated by Texas Mentor. In response, DFPS suspended “all new placements and any subsequent moves of DFPS children” into Texas Mentor in September 2013. 

Although the state lifted Texas Mentor’s suspension six months later and returned the agency to normal status, critics and child protection advocates protested and were eventually successful in having the company shut down. Texas Mentor’s parent company, Civitas Solutions closed operations Texas and four other states in September 2015.

DFPS and other state agencies, along with child protection advocates continue to work to improve oversight of foster homes in Texas and regulate the care provided in those homes.