No. 05-09-00351-CR
Opinion Filed July 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F09-00127-PX.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Thederius Lajamison Johnson of injury to a child under the age of fourteen and assessed punishment at sixty years' imprisonment. In two issues, Johnson asserts the evidence is legally and factually insufficient to establish he caused the child's injuries. We affirm the trial court's judgment.
Background
Claudette A. (Mother) met Johnson on a chat line. Within a "couple" of months, Johnson moved in with Mother and her three sons, M.M., Ma.M., and D.L. M.M. was seven years old; Ma.M. was four years old; and D.L. was less than one year old. Both Mother and L.A., Mother's niece, testified D.L. was learning to walk and often fell down. The three boys usually shared a bedroom with bunk bends. M.M. slept in the top bunk, and Ma.M. and D.L. shared the bottom bunk. Mother testified that she and Johnson had a good relationship and did not argue. She admitted, however, that Johnson had a temper. According to Mother, Johnson also had a good relationship with M.M. and Ma.M. He played games and wrestled with the two older children. However, Johnson "didn't try to bother with" D.L. He said D.L. was spoiled and cried too much. Mother testified Ma.M. was quiet and was "fine" with D.L. and M.M. "watched over" D.L. Mother admitted M.M. had been in a couple of fights, but believed he had been provoked by the other child. L.A. testified M.M. had been in trouble for fighting, but that he was the one getting "beat up." M.M. confirmed he had been in two fights at school. He testified he would sometimes "play fight" with his brothers where they pushed each other, but never had a "real fight" with them. Mother testified that everything was normal on the Sunday before D.L. was injured. She cooked dinner, and everybody ate. She played with D.L. for a while before putting him to bed, and D.L. was normal. On Monday, L.A., who was fourteen at the time, came to watch the children, and Johnson drove Mother to work. L.A. testified she arrived at Mother's apartment at approximately 7:00 a.m. She went into the boys' room and fell asleep on the bottom bunk bed with Ma.M. and D.L. At some point, D.L. woke up and began crawling on L.A. L.A. noticed that D.L. had a bruise and a scratch on his forehead, but was "normal." M.M. was awake, and L.A. asked him to get D.L. some water. M.M., Ma.M., and D.L. went into the living room, and L.A. went back to sleep. M.M. testified that, when he lived in Dallas, he lived with Mother, Ma.M., and D.L. Johnson was Mother's boyfriend. On the "day the ambulance came" for D.L., M.M. and Ma.M. were playing a video game in the living room. Johnson played with them periodically. L.A. was sleeping in the boys' bedroom, and D.L. was in the living room playing with his toys. According to M.M., D.L. began crying, and Johnson took D.L. into the master bedroom and closed the door. D.L. continued to cry. After D.L. stopped crying, Johnson came out of the bedroom and went to get L.A. L.A. went to look at D.L., and Johnson called an ambulance. Johnson said D.L. had vomited, and M.M. went into the master bedroom to look. M.M. did not see any vomit on D.L.'s clothes. L.A. testified that Johnson woke her up and told her something was wrong with D.L. Johnson said D.L. had a seizure and "passed out." L.A. went into the master bedroom and saw D.L. on the bed wearing only a diaper. D.L.'s tongue was sticking out; his arms were out; and his feet were spread. D.L. was not moving, and his body was cold. When L.A. put her ear to D.L.'s chest, she could not hear a heartbeat. L.A. did not see any blood on D.L. L.A. was upset and left the apartment for approximately ten minutes. When she returned, Johnson was calling 911. Jerry Pritchett, a paramedic for the Dallas Fire Department, testified the department received a call about an unconscious person at 12:05 p.m. At 12:12:34, the emergency crew reached D.L., and Pritchett saw Johnson performing CPR on D.L. based on the dispatcher's instructions. D.L. was not breathing and did not have a pulse. Johnson told them D.L. had vomited and passed out. The crew began performing CPR on D.L. In the ambulance, the crew intubated D.L., placing a tube down his throat to help him breathe. D.L. arrived at Methodist Medical Center at 12:37 p.m. Mother testified she received a message from Johnson that she needed to call home. When Mother returned Johnson's call, he told her that D.L. started vomiting and then just stopped breathing. By the time Mother got home, the ambulance had taken D.L. to the hospital. Johnson again told Mother that D.L. started vomiting and then stopped breathing. Johnson's explanation "didn't seem right" to Mother. Dr. Robert Hancock treated D.L. at Methodist. D.L. was in full cardiac arrest and was clinically dead when he arrived at the hospital. Hancock was told the child choked and then passed out. Hancock reintubated D.L. because the original tube had either been placed incorrectly or was dislodged during the ride to the hospital. Hancock resuscitated D.L. to the point he had a spontaneous pulse, heart beat, and blood pressure. A CT scan on D.L. at 1:11 p.m. was negative for intercranial hemorrhage. However, D.L. showed no signs of brain function. Because Methodist does not have pediatric critical care capabilities, Hancock transferred D.L. to Children's Medical Center. According to Hancock, a child with a subdural hematoma will be unconscious or have altered mentation. However, there could be a "delayed onset reaction" and symptoms might not appear for three to five hours. It takes a very significant event for a child to stop breathing and lose pulse and, in Hancock's opinion, D.L. did not suffer accidental trauma. Based on the obvious trauma to D.L. and a history that did not fit with D.L.'s symptoms, Hancock decided to contact the police. Dr. Matthew Cox, a pediatrician at Children's, testified he is the medical director for the Referral and Evaluation of At-Risk Children program. He evaluates children when there are concerns of possible physical or sexual abuse. He was contacted by the primary medical team to evaluate D.L. Cox testified D.L. was on full life support measures and in critical condition when he arrived at Children's. He had cerebral endema, or swelling of the brain, bleeding around his brain, and some injuries to his abdomen. D.L. did not have any open wounds or cuts. A CT scan performed on D.L.'s head at 3:30 p.m. showed he had different areas of subdural hemorrhage. It is possible the hemorrhage was seen at Children's, but not at Methodist, because a hemorrhage becomes more evident over time or because the radiologist at Children's was trained in reading CT scans on children. D.L. also had severe retinal hemorrhages. While a patient at Children's, D.L. died as a result of his injuries. In Cox's opinion, D.L.'s injuries resulted from a severe and violent traumatic event. A child D.L.'s age would show symptoms immediately after the trauma. Although the symptoms could get worse over a "period of minutes," the child would act dramatically different immediately after the injury. In Cox's opinion, D.L.'s injuries were sustained immediately before the emergency personnel were called. Neither Mother nor Johnson gave Cox a history of trauma that explained D.L.'s injuries. According to Cox, the best explanation for D.L.'s injuries was "someone hurting this child." Cox believed the best example of an event that could cause D.L.'s injuries was shaking or shaking and impact. The injuries would not be caused by a fall from a bunk bed or from falling while walking. A seven-year-old boy would not be strong enough, or have the ability, to cause the injuries. Further, the injuries were not caused by choking. Dr. David Weekly, a pediatric eye surgeon, reviewed pictures of D.L.'s eyes that were taken when he was admitted to Children's. Weekly saw "pretty severe multiple hemorrhages" along the edge of both optic nerves and on both retinas. The hemorrhages in the eyes were not caused by vomiting, a fall while walking or from a bunk bed, CPR, or a direct blow to D.L.'s head. In Weekly's opinion, the hemorrhages were caused by a severe and prolonged shaking trauma. The doctor at Children's told Mother that D.L. was bleeding in the back of his eyelids and explained to Mother the extent of D.L.'s injuries. Johnson then told Mother that he forgot to tell her that M.M. had said D.L. fell off the bed. Although M.M. and Ma.M. confirmed that D.L. had fallen out of bed, Mother believed Johnson made the statement because of what the doctor was telling them about D.L.'s condition. Dr. Janice Townsend-Parchman performed the autopsy on D.L. Townsend-Parchman testified there were between eight and eleven impact sites on D.L.'s head. The impacts caused multiple hemorrhages as well as brain swelling. D.L. also had hemorrhages around both optic nerves and retinal hemorrhaging in both eyes. He had a healing fracture of the seventh right rib and new fractures of the fifth and sixth right ribs. He had a hematoma on his thymus, a laceration on his liver, hematomas around his pancreas, a dilated colon, blood in his chest, and a subcutaneous hemorrhage on his shoulder. In Townsend-Parchman's opinion, blunt force injuries caused D.L.'s death. Neither vomiting and passing out nor falling out of a bunk bed explained D.L.'s injuries or the number of impact sites. The police found drops of D.L.'s blood on the wall beside the upper bunk in the boys' bedroom. Mother did not know that D.L.'s blood was on the wall or how it got on the wall. She believed she would have noticed the blood on the wall. L.A. testified she did not see the blood on the wall and did not know how the blood got on the wall. David Spence, a supervisor in the trace evidence section of the Southwestern Institute of Forensic Science, testified the blood stains were impact spatter stains. The stains could have been caused by the blood source being hit with an object or from the blood being aspirated from the nose or the mouth. The location of the blood stains was consistent with the source being adjacent to, not on, the top bunk bed. The jury convicted Johnson of injury to a child under the age of fourteen and this appeal ensued. Standard of Review
In two issues, Johnson asserts the evidence is neither legally nor factually sufficient to prove he caused the injury to D.L. In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Laster, 275 S.W.3d at 517; Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a "very limited degree." Marshall, 210 S.W.3d at 625. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625; Revels v. State, No. 05-07-01555-CR, 2008 WL 5177374, at *5 (Tex. App.-Dallas Dec. 11, 2008, no pet.). The existence of alternative reasonable hypotheses may be relevant to, but is not determinative in, a factual sufficiency review. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). It is the jury that accepts or rejects reasonably equal competing theories of causation, and we may not find the evidence to be factually insufficient merely because there is an alternative reasonable hypothesis. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009); Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We must have a "high level of skepticism about the jury's verdict" before we may reverse based on factual insufficiency. Steadman, 280 S.W.3d at 246-47. "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13; see King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the defendant's guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). The standard of review is the same for cases based on direct and circumstantial evidence. Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 565. Analysis
Johnson asserts the evidence is legally and factually insufficient to support the conviction because the State did not establish beyond a reasonable doubt that he caused D.L.'s injuries. Specifically, Johnson asserts (1) D.L. was learning to walk and could have been injured by one of his falls; (2) there could have been a delay between an earlier injury and the onset of D.L.'s symptoms; (3) there was no evidence Johnson had previously abused D.L.; (4) the blood on the wall in the boys' bedroom suggested the blunt force trauma to D.L. occurred sometime other than when Johnson took D.L. into the master bedroom; (5) L.A. did not hear any noises indicating Johnson was hurting D.L. in the master bedroom; (6) M.M. and Ma.M. confirmed D.L. fell out of bed, indicating Johnson did not change his story to fit the facts; and (7) based on his history of fighting, M.M. could have caused D.L.'s injuries. The State had the burden to prove beyond a reasonable doubt that Johnson is the person who committed the crime charged. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.-Texarkana 2008, no pet.). Identity may be proved by direct evidence, circumstantial evidence, or reasonable inferences from such evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd). The cause of an injury can be established by both expert medical testimony and circumstantial evidence. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.-San Antonio 1997, pet. ref'd). When an adult defendant has sole access to a child at the time his injuries are sustained, the evidence is sufficient to support a conviction for injury to the child. Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.-El Paso 2000, pet. ref'd); see also Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.-Tyler 1995, no pet.). Inconsistencies between a defendant's version of events and the medical evidence concerning how an injury must have been inflicted can also be circumstantial evidence of guilt. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Here, the evidence against Johnson is largely circumstantial; no one saw him shake or hit D.L. Mother testified D.L. was normal on Sunday night. According to L.A., D.L. acted normal when he woke up on Monday morning. M.M. testified D.L. was in the living room playing with his toys while M.M. and Ma.M. played a video game. M.M. saw Johnson take D.L. into the master bedroom and shut the door. After D.L. stopped crying, Johnson went to get L.A. When L.A. went into the master bedroom, she found D.L. cold, not breathing, and without a pulse. Johnson said D.L. vomited and then passed out. However, when the doctor explained the extent of D.L.'s injuries, Johnson recalled that M.M. said D.L. fell off the bed. Cox testified D.L.'s injuries were severe and were caused by shaking or shaking and impact. Townsend-Parchman testified D.L. had multiple impact sites and died from blunt force trauma. Weekly testified the hemorrhages in D.L.'s eyes showed he had suffered a severe and prolonged shaking trauma. According to Cox, a seven-year-old boy could not have caused the injuries. Cox and Weekly testified a fall while walking would not have caused the injuries. Cox, Hancock, Townsend-Parchman, and Weekly all testified vomiting then passing out would not explain D.L.'s injuries. Cox, Townsend-Parchman, and Weekly testified a fall from a bunk bed would not have caused the injuries. Cox testified D.L. would have immediately shown symptoms following the traumatic event and that, in his opinion, the trauma occurred immediately before Johnson called the paramedics. Johnson argues that D.L.'s blood on the wall in the boys' bedroom indicates D.L. was injured in that room, rather than in the master bedroom. Johnson further argues that Hancock's testimony that there could have been a delayed onset of symptoms for three to five hours following the traumatic event is consistent with the trauma occurring somewhere other than in the master bedroom. However, reconciling evidentiary conflicts is solely a function of the fact finder. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); see also Clayton, 235 S.W.3d at 778; Lancon, 253 S.W.3d at 705. It was the role of the jury to accept or reject reasonably equal competing theories of causation. See Steadman, 280 S.W.3d at 247. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could find D.L.'s injury occurred in the master bedroom while Johnson was alone with D.L. Further, the evidence supporting the conviction is not so weak or so against the great weight and preponderance of the contrary evidence that the verdict seems clearly wrong or manifestly unjust. Accordingly, we conclude the evidence is legally and factually sufficient to support the jury's determination Johnson caused D.L.'s injuries. We overrule Johnson's two issues and affirm the trial court's judgment.