Opinion
No. 05-05-00607-CR
Opinion filed March 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-50928-VN. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
A jury convicted Elizabeth Bridges of injury to a child fourteen years or younger and assessed punishment of twenty-five years' confinement and a $10,000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to show she caused the injury. In a third issue, appellant contends the trial court erred by failing to instruct the jury on lesser-included offenses.
I. BACKGROUND
Appellant's friend, L.P., was the mother of then-five-month-old D.P.D.P. was seriously injured while in appellant's care at appellant's apartment. Appellant was indicted for knowingly and intentionally causing serious bodily injury to D.P. by striking him with her hands, a deadly weapon, or with and against an unknown object, a deadly weapon. The jury convicted her of the indicted offense.II. SUFFICIENCY OF THE EVIDENCE
In her first and second issues, appellant challenges the sufficiency of the evidence to show she caused injury to D.P.A.
Standard of Review and Applicable Law We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (legal sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits the offense of injury to a child if she intentionally, knowingly, recklessly, or with criminal negligence causes serious bodily injury to a person fourteen years of age or younger. Tex. Pen. Code Ann. § 22.04(a)(1), (c)(1) (Vernon Supp. 2005). When this conduct is committed intentionally or knowingly, it is a first degree felony. Id. § 22.04(e).B.
Discussion Appellant lived in an apartment with her sister Shewanna and Shewanna's two children Latrice, then aged three years, and Benny, then aged about one year. L.P. left D.P. in appellant's care about 9:30 p.m.; D.P. was behaving normally. Also in the apartment at that time were Latrice, Benny, Mattie, then aged eleven years, who was appellant and Shewanna's cousin, and two adult friends of appellant's. When L.P. returned to the apartment about 10:30 p.m., she learned D.P. had been injured and appellant was with him at the hospital. In a telephone conversation and at the hospital, appellant told L.P. that she saw Benny flip D.P. out of his car seat, which was on the floor, and that D.P. hit a coffee table. L.P. testified appellant's story did not fit the injuries. A Dallas police detective, Dan Lesher, testified he interviewed appellant and Mattie at appellant's apartment the day after the incident. Appellant told Lesher what happened, and Lesher took a five-paragraph written statement from her. In the first paragraph, appellant stated that L.P. left to pick up Shewanna about 10:00 p.m., and appellant went downstairs to use a telephone for about three minutes. She came back and saw her nephew "flip my grandchild over." Appellant saw a bump on his head, went to her aunt and told her something was wrong with the baby, called 9-1-1, and tried to keep him up until they arrived. The paragraph ends with the sentence, "That is all I knew and saw[.]" In the second paragraph, appellant stated:But my cousin told me she took him in the kitchen and my nephew flipped him over but I didn't see it only see was here [sic] her and my nephew[.]"The third paragraph begins, "I only told them what I saw[.]" In the last paragraph, appellant stated she, Mattie, and Benny were in the house when the incident happened; she stated, "My cousin was in the back room I think and my nephew Benny was in the living room with [D.P.] when I came in the house." Lesher also testified that appellant demonstrated what she saw, and he photographed appellant's demonstration of her placement of the car seat and coffee table. According to Lesher, a story about a coffee table causing the injury did not fit what the doctors told him. Lesher testified Mattie told him D.P. was crying in his car seat and she was looking for a bottle for him. She took him to the living room and put the car seat on the floor. But Benny had gotten into a closet in a rear bedroom, and she went to look for him. Mattie heard D.P. cry out; she left the bedroom and saw D.P. lying on the living room floor with appellant standing over him. Lesher did not get a written statement from Mattie. He went to Mattie's home the next day to get a written statement, but Mattie's mother would not allow her to write a statement. Mattie testified appellant sent her into the kitchen to get a bottle for D.P. and then left the apartment. Mattie took D.P. (in his car seat) into the kitchen with her and put him on the kitchen table. Mattie forgot about D.P. and went to a back room to look for the bottle. Then Benny ran into the kitchen, and Mattie heard something fall. She returned to the kitchen and saw D.P. on the floor. As Mattie was picking up D.P., appellant and her boyfriend walked into the kitchen. Appellant testified she left the apartment to walk her two nieces home and call her boyfriend. When she and her boyfriend walked in the door, appellant saw D.P. in the car seat on the couch, "hollering and crying" with a knot on his head that was growing. She denied having anything to do with D.P.'s injuries and said she gave a statement to Lesher because she was scared. Appellant's former boyfriend, Dwayne Greene, testified D.P. was in the car seat on the couch, screaming, and appellant picked him up and left to call an ambulance. Donna Persaud, a medical doctor, saw D.P. the day after the incident. He was unconscious and on life support, with head swelling. She testified he had life threatening injuries due to blunt force trauma to the head from hitting a hard surface. Persaud reviewed Lesher's photographs of appellant's demonstration and testified she did not think a fifteen-month-old child, given the "spatial orientation of things," could have caused the extent of D.P.'s injuries. Appellant argues that the highest degree of culpability indicated by the evidence is either criminal negligence in entrusting the care of an infant to an eleven-year-old, if even for ten minutes, or recklessly by omission by not being present when she assumed the care, custody, and control of the child. However, the evidence showed D.P. was in appellant's care after L.P. left, and the jury was free to accept or reject appellant's assertions that another person caused D.P.'s injuries, in light of all the evidence presented at trial. See Courson v. State, 160 S.W.3d 125, 128 (Tex.App.-Fort Worth 2005, no pet.) (jury free to reject child's primary caregiver's implication that another could have caused injury); Sparks v. State, 68 S.W.3d 6, 10-11 (Tex.App.-Dallas 2001, pet. ref'd) (jury free to disbelieve child's caregiver's explanation of injuries due to accident), abrogated on other grounds by Guzman v. State, 85 S.W.2d 242, 248 n. 19 (Tex.Crim.App. 2002). Having considered all of the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused serious bodily injury to D.P. See Jackson, 443 U.S. at 319; Margraves, 34 S.W.3d at 917. Further, reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt is greatly outweighed by contrary proof. See Zuniga, 144 S.W.3d at 484-85; Johnson, 23 S.W.3d at 10-11. We resolve appellant's first and second issues against her.