No. 14-05-01151-CR
Filed April 26, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 1039108.
Panel consists of Justices ANDERSON, HUDSON, and GUZMAN.
EVA M. GUZMAN, Justice.
A jury convicted appellant Ivan Castaneda of injuring his six-month-old daughter, H.M.C., and assessed punishment at life imprisonment in the Instit0075tional Division of the Texas Department of Criminal Justice. In a single issue, appellant contends there is insufficient evidence to corroborate the testimony of accomplice witness Donna Norman, H.M.C.'s mother. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant had two daughters with his common-law wife, Donna Norman. The couple's older child, C.N.C., is approximately nine months older than H.MC., who was born in July 2004. Appellant's mother, Maria Castaneda ("Castaneda"), testified that she spoke with Norman on the night of February 1, 2005. Castaneda and Norman had difficulty communicating because Castaneda primarily speaks Spanish, while Norman speaks English. According to Castaneda, Norman said she was going to a store to get decongestant for H.M.C. . Castaneda also testified that Norman appeared nervous and indicated that there was trouble in her relationship with appellant. Castaneda told Norman that, on the following morning, she would visit the home Norman and appellant shared. Castaneda next saw Norman at 8:00 or 8:30 the next morning. Norman arrived at Castaneda's house with both children in her car. According to Castaneda, Norman was very nervous and told Castaneda to "hurry, hurry, [H.M.C.] is very sick." Norman did not know the way to the nearest hospital, so Castaneda went with Norman and gave her directions to Doctors Hospital Parkway. Castaneda stated that Norman was upset about H.M.C.'s condition, was "driving crazy" and crying, and when they arrived at the hospital, Norman took H.M.C. inside without parking the car or closing her car door. Castaneda parked the car and followed with the older child. According to Dr. Dayle Hein, the emergency room physician at Doctors Hospital, Norman told him that she had reached into H.M.C.'s mouth at approximately 6:00 p.m. the night before to retrieve a quarter that H.M.C.'s sibling had put in the baby's mouth. Doctors subsequently discovered that the baby's tongue was nearly severed. According to Dr. Hein, none of the treatment H.M.C. received at Doctors Hospital could have caused her injuries. About half an hour after arriving at Doctors Hospital, Castaneda drove to appellant's residence to take him to the hospital. She testified that when she arrived at appellant's home, "[h]e had already showered and everything. All he needed [to do] was to put on a shirt." Believing that H.M.C. was being transferred to Texas Children's Hospital, Castaneda first took appellant there before returning to Doctors Hospital. In the meantime, a mobile critical care team had been dispatched to transport H.M.C. to Texas Children's Hospital. Nurse Kim McDonough was a member of that team, and testified that H.M.C. was in shock when the team arrived and was too unstable to be moved. McDonough observed appellant, and in her opinion, he seemed extraordinarily well-groomed and rested for the parent of a critically ill child. After about four hours, H.M.C. was stable enough to be moved, and she was transported to the intensive care unit at Texas Children's Hospital where she remained on life support. At approximately 7:00 p.m. that night, Dr. Zahid Lalani examined the deep, ragged wound on the back of H.M.C.'s tongue. He determined that the wound was then twenty-four or thirty hours old and would have bled a significant amount. According to Dr. Lalani, the wound was a serious bodily injury that must have been caused by something sharp. He testified that he would be surprised if it was caused by a fingernail. Dr. Mona McPhearson also treated H.M.C. on February 2, 2005. She testified that, due to shock, H.M.C. was not getting enough blood to her brain, heart, kidneys, and lungs. Dr. McPhearson agreed that blood flow restrictions and injuries to H.M.C.'s brain, liver, kidneys, and pancreas were serious bodily injuries, and that nothing done at Doctors Hospital exacerbated H.M.C.'s problems. A full assessment at Texas Children's Hospital revealed that H.M.C. had multiple lines of fractures to her skull; swelling of the brain; two broken legs; one broken arm; fractures to her spine; two broken ribs; internal contusions and bleeding around her liver, her right kidney, and pancreas from blunt force trauma; a bruise on her back; abnormal respiration; and anal and vaginal tears. According to Dr. McPhearson, H.M.C.'s injuries were not caused by a single blow. Dr. McPhearson also testified that some of H.M.C.'s doctors initially believed that a laceration to H.M.C.'s rectum was caused by sexual assault, while others, including Dr. McPhearson, believed that blunt force of such high pressure was applied to H.M.C.'s midsection that she suffered "blow-out" injuries to her rectum and vagina. In her opinion, the injuries to H.M.C.'s liver, kidney, and pancreas occurred between 2:00 a.m. and 8:00 a.m. on February 2, 2005. She testified that although H.M.C.'s head injury occurred near this time as well, some of the fractures were older. Dr. Richard Braverman similarly testified that one of H.M.C.'s rib fractures was as much as a month old, but her left arm had been fractured within ten days of the x-ray. According to Dr. Braverman, at least three fractures were "new" or "fresh." Pediatric neurologist Jill Hunter testified that at least one of H.M.C.'s skull fractures was several weeks old, but the specific head injury that caused H.M.C.'s brain to swell in this instance happened between 5:00 p.m. and 9:00 p.m. on February 1, 2005. In addition, Dr. Hunter testified that H.M.C. sustained irreversible injuries to her brain sometime within the preceding ten days. Because she based this opinion on an MRI performed on February 4, 2005, this injury would have occurred sometime between January 25 and February 4, 2005. Several law enforcement officers testified regarding appellant's unexpected behavior while H.M.C. was at Texas Children's Hospital. Sergeant Randall Upton, a plainclothes detective with the Houston Police Department's Juvenile Sex Crimes Unit, arrived at the hospital around 9:00 p.m. on February 2, 2005. Although H.M.C. was still struggling with life-threatening injuries at that time, none of her family members were there. Norman and appellant subsequently returned to the hospital, and the detective interviewed each of them separately in a waiting room. According to Sergeant Upton, appellant stated that he knew before he left the hospital that police would be called, and that he had gone home, eaten, and relaxed before returning. Police officer Rafael Calles watched over Norman and appellant in the waiting room that night, and he also testified regarding appellant's inappropriate behavior. In particular, the mother of a patient spoke with appellant and Calles in the hospital waiting room, and when the woman left, appellant told Calles, "she wants you." Police officer Thomas Simmons testified that on the morning of February 3, 2005, he handcuffed appellant and transported him to the police station. According to Simmons, appellant asked Simmons to find out the amount of his bail and became elated when he learned that he was only being held for twenty-four hours. Norman also testified at trial. Like appellant, Norman was indicted for injury to a child in connection with H.M.C.'s injuries, and is an accomplice as a matter of law. She received "use immunity" for her testimony at appellant's trial but had not negotiated a plea regarding the charges against her. According to Norman, appellant had stopped working in December, and in January, he had begun squeezing H.M.C.'s cheeks or abdomen when she cried. During this time, Norman had also seen appellant put his finger down H.M.C.'s throat when she cried, causing the baby to bleed from the mouth. Norman testified that H.M.C. had seemed congested for about two weeks before February 1. She further testified that on the evening of January 31, appellant had put H.M.C. in the children's room, and after lying down in his own room for a few minutes, he returned to the children's room. According to Norman, she then went to the children's room because she did not trust appellant alone with the children. She testified that when she entered the room, H.M.C. was crying and bleeding from the mouth. According to Norman, she told appellant she was taking the children and leaving, but he refused to allow them to leave while they still had visible bruises. Norman also testified that on the night of February 1, she left the house for a moment to retrieve diaper bags from the car. When she returned, appellant had locked himself in the children's room with the two girls, and Norman heard H.M.C. screaming. When appellant opened the door, H.M.C. was not in the swing where Norman had left her; instead, she was lying in the playpen, and both of her legs were limp. Norman further testified that H.M.C. was again bleeding from her mouth, had red marks "like a handprint" on her belly, and could not move her left arm. According to Norman, appellant again stopped her from leaving. She testified that she tried telling appellant that H.M.C. needed medical attention, but appellant refused to let her leave the house with the children. According to Norman, she was able to persuade appellant that she wanted to leave to get decongestant for H.M.C. without leaving the children with him. Norman said that appellant agreed to wait across the street for her to return. Norman testified that she then left her daughters alone in the house and drove to the home of appellant's mother, Castaneda. According to Norman, she informed Castaneda that she had told appellant she was going out to get decongestant for H.M.C. More importantly, Norman testified that she told Casteneda that she wanted to leave appellant because of his treatment of the children, but he would not let them leave. Norman testified that Castaneda agreed to come to the house the next day to help Norman leave with her children. Norman then went to a store and stole decongestant for H.M.C. before returning home. She was gone a little over an hour. Norman testified that when she returned, appellant was across the street, and H.M.C., who was crying, had dried blood on her mouth. She did not know if appellant entered the house while she was gone. According to Norman, she tried to stay awake all that night to watch over the children and went into the bathroom at around 6:00 a.m. to splash water on her face to help her wake up. While she was in the bathroom, she heard H.M.C. scream, and when she returned to her room, she found the door bolted. Norman testified that she was able to shake the door open and saw appellant holding H.M.C., who was crying. She further testified that after an argument, appellant let her have the baby, and she put H.M.C. on a couch in the same room with them. According to Norman, she inadvertently dozed off after this, and when she awoke at around 8:00 a.m., she saw that appellant was already awake. Norman testified that she heard H.M.C. gasping for air, and when she looked at her, she discovered that the baby was blue, hot, limp, and her eyes were large and glazed. According to Norman, she urged appellant to let her take the baby to a doctor, but appellant took the car keys and again refused to allow them to leave. Norman testified that appellant relented when she said that she would take responsibility for anything that was wrong with the baby. Norman was cross-examined regarding her inconsistent statements at the hospital and to the grand jury. She answered that when she was questioned at the hospital, appellant was immediately outside the door and could hear her replies; in addition, she was afraid to implicate appellant because her older daughter was in the care of appellant's sister. She testified that she also was afraid of what appellant might do if he was released on bond. The jury was charged that it could find appellant guilty of injury to a child by intentionally or knowingly causing serious bodily injury to H.M.C. or by injuring her recklessly. In addition, the jury was permitted to convict appellant for injuring H.M.C. by various acts or by omission. The jury found that appellant intentionally and knowingly caused serious bodily injury to H.M.C. This appeal ensued. II. ISSUE PRESENTED
In his sole issue on appeal, appellant contends there is insufficient evidence to corroborate Norman's accomplice witness testimony, and thus, the evidence is insufficient to sustain his conviction as a matter of law. III. ANALYSIS
A. Governing Law
The Texas Code of Criminal Procedure provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2006). A challenge of insufficient corroboration is not the same as a challenge of insufficient evidence to support the verdict, and thus, is reviewed under a different test. See Cathey v. State, 992 S.W.2d 460, 462B63 (Tex.Crim.App. 1999) (en banc); Torres v. State, 137 S.W.3d 191, 196 (Tex.App.CHouston [1st Dist.] 2004, no pet.) (citing Cantelon v. State, 85 S.W.3d 457, 460 (Tex.App.CAustin 2002, no pet.)). To determine whether sufficient corroboration exists, we first eliminate the accomplice witness's testimony from consideration and then determine whether any of the remaining evidence tends to connect the accused with the commission of the crime. Longoria v. State, 154 S.W.3d 747, 758 (Tex.App.CHouston [14th Dist.] 2004, pet. ref'd). The corroborating evidence need not be sufficient in itself to establish guilt or directly link the accused to the crime. Id. Rather, the accomplice-witness rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to the commission of the offense alleged in the indictment. Id. To decide this issue, we view the evidence in the light most favorable to the jury's verdict and determine whether a reasonable jury could conclude that the non-accomplice evidence, taken as a whole, tends to connect the appellant to the offense. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994) (en banc). Taken in isolation, suspicious circumstances such as the accused's presence at the scene of the crime, motive, or opportunity to commit the crime are not by themselves sufficient to corroborate the accomplice witness testimony. See id. at 49; Jeffery v. State, 169 S.W.3d 439, 447 (Tex.App.CTexarkana 2005, pet. ref'd). But cumulative suspicious circumstances may tend to connect the accused to the charged offense, even if none of the circumstances is individually sufficient to do so. Gill, 873 S.W.2d at 49. Viewed collectively, even apparently insignificant incriminating circumstances may tend to connect the accused to the charged offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). Accordingly, we look at all of the facts and circumstances in evidence to supply the necessary corroboration. Moore v. State, 700 S.W.2d 193, 203 (Tex.Crim.App. 1985) (en banc), cert. denied, 474 U.S. 1113, 106 S. Ct. 1167, 89 L. Ed. 2d 289 (1986). We then examine "the combined and cumulative weight of the evidence" in determining whether the accomplice testimony is sufficiently corroborated. Cox v. State, 830 S.W.2d 609, 611B12 (Tex.Crim.App. 1992) (en banc). B. Corroborating Evidence
Here, appellant admits that he and Norman were alone with their children during the time the offense occurred. Although appellant's mere presence during the commission of the offense is not itself sufficient corroboration, we do not consider this fact in isolation, but view it together with other suspicious circumstances. Id. For example, when asked about H.M.C.'s injuries, appellant told police, "I know my wife didn't cause these injuries." This statement constitutes additional corroborating evidence. See Jeffery, 169 S.W.3d at 447 (considering as corroborating evidence an appellant's statements that the other person at appellant's residence "didn't have anything to do with this"). A reasonable jury also could have considered it suspicious that appellant repeatedly manifested a lack of concern about H.M.C.'s condition. For example, appellant told police that the child's sickness "got really bad" the night before, and Norman told him that H.M.C. was "not doing good." But appellant stated, " I didn't think too much of it, I thought maybe it was a cold or something that she would get over it." (emphasis added). Appellant's statement to police further illustrates his apparent lack of concern when contrasted with his description of Norman's reaction when she saw the child's grave condition. According to appellant's statement to police, appellant awoke after Norman checked on the baby and "she finds out that [H.M.C.]'s not doing right, she starts you know, screaming and uhm, you know, talking out loud and telling me, she's getting all dramatic, and telling me that the baby's not right, the baby's not right." (emphasis added). In contrast to Kim McDonough, who described appellant as "very excited" when H.M.C. was at Doctors Hospital, Sergeant Upton described a very different demeanor when appellant was later questioned by police at Texas Children's Hospital. According to Sergeant Upton, appellant "showed no emotion the entire interview [as] we talked to him. He was very calm, still. . . . [H]e wasn't excited, no body movement, no hand gestures. He sat there, stared coldly into my face, answered the questions and gave the explanations you guys heard on the tape." Because appellant's tape-recorded statement was played for the jury, the jury also had the opportunity to independently evaluate appellant's speech and tone of voice, and could have found his controlled tone suspicious. Other "suspicious circumstances" that tend to connect appellant to the offense may be found in his own conduct. In contrast to Norman, who actively sought medical assistance for her injured child, appellant did not take the child to a doctor when he was first aware that her condition had worsened. Moreover, he did not accompany the child to the hospital when she was eventually taken there, even though, in his own words, the child was "critical to where she barely made it to the hospital." Thus, a reasonable jury could have found that both medical evidence and appellant's own statements tend to connect appellant with the offense of injury to a child by omission — specifically, failing to provide medical care for his daughter. The jury may also have considered appellant's shifting versions of events as an indication that he actively injured the child. For example, appellant vacillated between saying that he never woke during the entire preceding night and stating that he woke when Norman checked the baby every hour or so. A reasonable jury could have concluded that this was an attempt to adapt his story to meet the evolving evidence regarding the time that H.M.C. was injured. See Prieto v. State, 879 S.W.2d 295, 300 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (considering an appellant's changing versions of events as evidence supporting the jury's finding of guilt). In addition, appellant told police that he instructed Norman to take the baby to the hospital but said he did not accompany her because "I was in my underclothes. There was no time for me to get ready or anything, she automatically just left." But immediately before this statement, appellant told the same police officer that he had not changed clothes since the previous night and was still wearing the clothes he had slept in the night before. In effect, appellant refuted the only explanation given for his failure to accompany his critically ill child to the hospital. A jury could also have found appellant's first version of events implausible. Appellant's mother testified that both C.N.C. and H.M.C. were in the car with Norman on the drive to the hospital and that both were in child safety seats. Thus, the non-accomplice evidence shows that Norman could not have left home in less time than it took to put two children, both under the age of two, into the seats. Drawing on common experience and common sense, the jury could have found that the time required by the parent of a sick child to "get ready" to seek medical help is less than the time required to put two small children into car safety seats. These are not the only reasons appellant's statement could be considered suspicious. Appellant's mother testified that he had showered before she arrived to take him to the hospital, and other witnesses noted appellant's well-groomed appearance. A reasonable jury could have inferred that appellant untruthfully denied showering and changing because he wanted to insure that if police tested his clothing for H.M.C.'s blood, they would test the clean clothes he was now wearing rather than the clothes he had worn at the time H.M.C. was injured. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004) ("Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt."). Viewing the cumulative weight of the foregoing evidence in the light most favorable to the jury's verdict, we hold that a reasonable jury could have found Norman's testimony to be sufficiently corroborated. See Gill, 873 S.W.2d at 48. Appellant's statements place him in the company of the accomplice at the time of the offense, thereby establishing his opportunity to commit the crime. When considered in conjunction with his statement that Norman did not injure H.M.C., his apparent lack of concern for H.M.C.'s grave condition, his implausible explanation for failing to accompany his family to the hospital, his inappropriate behavior, and his shifting versions of events, a reasonable jury could have found that the cumulative non-accomplice evidence tended to connect appellant to the offense of injury to a child as charged. Accordingly, we overrule appellant's sole issue. IV. CONCLUSION
Having overruled appellant's sole issue in this appeal, we affirm the judgment of the trial court.