A Grayson County man convicted of killing a little girl left in his care in 2012 will not be getting out of prison anytime soon. The Court of Appeals in the Fifth District of Texas ruled last month against Boyce’s appeal of the conviction won by First Assistant Grayson County District Attorney Kerye Ashmore.
After a three-week trial during which they heard about the skull fracture that doctors said 3-year-old Breanna Perry sustained while she was home with Boyce, jurors sentenced Boyce to life in prison back in 2015.
Jurors heard that Breanna was rushed to the Texoma Medical Center and then Children’s Medical Center in Dallas after Boyce called for help on Nov. 28, 2012, saying the child was having a seizure. Breanna’s mother, Sara Perry, was in a relationship with Boyce and left him at home supervising her two children, both young girls, around 11 months apart in age. When paramedics arrived, they found Breanna wasn’t breathing on her own and seemed to show signs of abuse. The paramedics reported that to the staff at TMC who then began to look for signs of abuse on the child. During the trial, nurses would testify that they saw finger marks on Breanna’s body and other signs of abuse. Despite trying to save her life, doctors at Children’s Medical Center eventually declared Breana brain dead. On the stand in his trial, Boyce said he didn’t hurt Breanna and said it was probable that the injury that killed her was sustained when her sister jumped on her from the bed.
The jury didn’t buy that explanation and convicted him. He has been appealing the sentence ever since. Recently the Court of Appeals in the Fifth District of Texas declined to see things his way on the four issues he raised for appeal. Boyce had sought the court’s opinion on sufficiency of the evidence to support his conviction, the expert’s qualifications to opine on the force necessary to cause an occipital skull fracture, the expert’s description of another case involving the same kind of skull fracture, and the trial court’s refusal to allow his sister to testify regarding his nonviolent nature around children.
The appeals court affirmed the trial court on all of the issues Boyce appealed. Justice David Bridges wrote the opinion and Justices Lana Myers and Ada Brown participated.
Bridges wrote that in assessing the sufficiency of the evidence, the court didn’t have to determine what happened or whether Boyce had actually committed the crime. They simply had to decide if the case record showed that there was enough legitimate evidence presented at trial for jurors to be able to draw a reasonable conclusion.
“Although the jury relied on circumstantial evidence as well as the State’s expert and scientific testimony,” Bridges wrote, the jury’s decision was not so outrageous that no rational trier of fact could agree.
“Thus, we are satisfied a jury could rationally answer ‘what happened’ to (Breanna) beyond a reasonable doubt,” he said before turning to the next issue Boyce raised which was the trial court’s abuse of discretion in allowing a doctor to testify about how much force it would take to cause the type of fracture the child sustained. Bridges pointed to the instance in the trial transcript where Boyce’s trial attorney, Bob Jarvis, said the doctor could testify as long as he said something like “it would take a lot” of force and when the doctor testified he said, “A lot.” And later the doctor again made reference to the amount of force it would take to cause the injury and Jarvis didn’t object at all.
“Because,” Bridges wrote, “the same evidence came in without objection, this issue is not preserved for review.”
In his discussion of Boyce’s third issue, Bridges said, Boyce again complained about the trial court’s use of discretion by allowing a doctor to testify about another case where a victim had suffered the same kind of occipital (skull) bone fracture. Boyce said the evidence was more harmful to Boyce than useful to the jury to make their decision.
“Assuming the trial court erred by admitting this testimony,” Bridges wrote, “after examining the record, we have fair assurance, the error, if any, did not have a ‘substantial or injurious effect or influence the jury’s verdict.’”
Boyce’s final issue of appeal centered around Fallon’s refusal to allow his sister to testify about his peaceful nature with children. Bridges pointed out that the record shows that Boyce’s sister, Heide Neely, was allowed to testify about her brother’s nonviolent nature, but was precluded from talking about specific acts to try to prove his character.
“Despite the jury hearing evidence of his reputation for nonviolence, (Boyce) argues this testimony is not the same as being able to discuss specifically his nonviolent nature with children and ‘certainly, if the jury had known these facts, they would have understood that he was not violent with (Breanna) as claimed by the prosecution,’” Bridges wrote before saying that Fallon properly applied the rules concerning such evidence and overruled the issue.
Boyce’s appeals attorney Gary Udashen could not be reached for comment. Kerye Ashmore said he is “pleased that the court ruled that way but we were confident the case would be affirmed.”
Bob Jarvis was not so pleased.
“I think it (the ruling) misses the point of whether or not there was any or there was sufficient evidence to prove recklessly causing the death because that is what the jury found him guilty of,” Jarvis said.
He said there was no evidence in the trial about recklessness. The jury, he said, would have to have some evidence of recklessness before they could find him guilty of murder by recklessness. Jarvis conceded that Boyce had not raised that issue on appeal.
“Justin testified that he didn’t know what happened,” Jarvis said.
He said the point about his not having a running objection to the doctor’s testimony about the force required to cause the injury Breanna suffered didn’t really have much impact on Boyce’s appeal.
“That didn’t hurt us,” Jarvis said.
Despite the judges’ opinion, Jarvis still believes in his client. “I don’t believe he did this (killed Breanna),” Jarvis said.
Jarvis said Boyce can appeal the case again up to the court of criminal appeals and that could take up to another year to happen.