No. 05-09-00737-CR
Opinion issued March 22, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F09-00437-MJ.
Before Justices MORRIS, BRIDGES and FRANCIS.
Opinion By Justice BRIDGES.
Appellant D'Angelo Eric Anderson appeals his conviction for recklessly causing serious bodily injury to a child and accompanying sentence. In two issues, appellant contends the evidence pertaining to his culpable mental state showed nothing more than criminal negligence and, therefore, the evidence was legally and factually insufficient to support the conviction. We affirm.
Background
Berena Cummins, B.G.'s mother, dated appellant. The three moved into a duplex together, which they shared with Christina Jackson and her boyfriend, Danny. B.G. was fourteen months old. Around the time of the move, Cummins was dancing at the Palace Cabaret from approximately 8:00 p.m. until 3:00 a.m. To assist Cummins, appellant acted as B.G.'s primary caretaker while Cummins worked. On average, B.G. was put to bed no later than 10:00 p.m. and, after sleeping through the night, would wake between 8:30 and 9:00 a.m. As Cummins slept, appellant tended to B.G. when she awoke at her normal time on April 11, 2008. Around noon, Cummins gave B.G. her medication for an ear infection and then they played together. At one point, B.G., while sitting on Cummins's bed, threw herself back against the headboard, bumping her head. Although she cried for a moment, B.G. appeared fine and giggled a few minutes later. Cummins gave B.G. Motrin to help relieve any pain that she experienced from either bumping her head or her ear infection. Later in the afternoon, B.G. was put to bed for a nap. When she awoke from her nap, she was happy and, after being fed and watching television, was put back to bed around 8:00 p.m., shortly before Cummins left for work. Appellant was the only person at the duplex when Cummins left. A few hours later, when Cummins called home, appellant was preparing a bath for B.G., who could be heard jabbering in the background. Shortly after midnight, Christopher Orr of the Dallas Fire Department responded to a 911 call reporting an unconscious person. Upon arrival, Orr found B.G. lying on the floor, wrapped in a towel. Because B.G. was unresponsive, Orr began assessing B.G.'s vital signs. Soon, an ambulance arrived to transport B.G. to Children's Medical Center of Dallas. While at the hospital, appellant attempted to contact Cummins at work. Cummins was alerted by her manager that appellant had called regarding an emergency at home, and Cummins called appellant. A crying appellant informed Cummins that B.G. had started randomly having seizures. After rushing to the hospital and locating B.G., Cummins was questioned by the hospital's medical personnel and moved to a holding room. Detective Abel Lopez of the Child Abuse Unit of the Dallas Police Department received a call from Detective Kim Mayfield regarding B.G. Upon arrival at the hospital, Detectives Lopez and Mayfield consulted with the assigned social and CPS workers about B.G.'s updated condition. They also separately questioned Cummins and appellant about the events and conditions leading up to B.G.'s injuries. During the questioning of Cummins, Cummins learned the extent of B.G.'s injuries, including her fractured skull and ribs, as well as profuse bleeding inside her skull. After speaking with Cummins, Detectives Lopez and Mayfield ruled her out as a potential suspect. Cummins was then allowed to see B.G. Appellant was initially reluctant to speak with Detectives Lopez and Mayfield, saying he had previously informed medical personnel of what had happened. Appellant eventually agreed to speak with the detectives and signed an affidavit. Dr. Matthew Cox, medical director of the REACH (Referral Evaluation of Average Children) program at the hospital, testified that, upon his arrival, he was advised B.G. was in critical condition and was on full life support in the intensive care unit. According to multiple diagnostic tests, B.G. had a severe brain injury, which included swelling and bleeding in and around the brain, rib fractures along the left side of her chest wall, bruises in multiple spots on her head and body, skull fractures, and retinal hemorrhages. B.G.'s neurological function had clinically deteriorated to the point that examinations were underway to declare B.G. brain dead. Given the extent of her injuries, Dr. Cox opined that B.G.'s injuries were consistent with a violent shaking episode and impact injury. Detectives Lopez and Mayfield requested to speak with appellant for a second time at police headquarters. During the interview, appellant denied any involvement in causing B.G.'s injuries until, in response to questioning, he slowly began to reveal details regarding B.G.'s injuries. According to appellant, he initially shook B.G. twice on the morning of April 11, 2008 in an effort to quiet B.G.'s incessant crying and screaming. As the day progressed, appellant left the duplex to search for employment, but was unsuccessful. Appellant returned home and claimed he noticed a knot on B.G.'s forehead around 6:00 p.m. He further stated that, after Cummins left for work, he was on the telephone with a friend when he heard B.G. crying in her room. Appellant, frustrated by his inability to find work and B.G.'s continual crying, brought her to the front room, where he shook her again. After drawing B.G. a bath because she was hot, appellant admitted tossing her on her baby mattress. B.G. then began seizing and vomiting. Trying to assist her to regain consciousness, appellant shook B.G. for the third time and slapped her face. Appellant, in a panic, carried B.G. to the front room and, according to him, either hit his elbow or B.G.'s head on the door and/or door frame. As B.G. continued seizing, appellant ran next door to have a neighbor dial 911 and then began performing CPR. B.G. was pronounced brain dead at the hospital. At some point, Cummins was notified that appellant admitted to inflicting B.G.'s injuries. While still at the hospital, Cummins received an apology letter from appellant, in which appellant admitted shaking B.G., claiming he did not know it would be that severe. An autopsy revealed multiple bruises on B.G.'s body, primarily on the left side of her head and jaw. Internally, the autopsy report noted five healing rear rib cage fractures, one of which was freshly re-fractured at the same spot. Hemorrhages on the left side of her head roughly corresponded with the external bruising. Further, B.G. had a "goose egg," or pooling of blood, on the back, left area of her head. B.G. was also bleeding on the back, right area of her head. B.G.'s skull exhibited a fracture and a pulling apart of the seams which connected the skull bones, generally caused by increased pressure in the skull such as brain swelling. Beyond the swelling, B.G. exhibited signs of bleeding on top of the surface of the brain, as well as bleeding just under the surface of the brain. The autopsy report certified the cause and manner of B.G.'s death as blunt force head trauma and homicide. According to Dr. Pinckard, one of the autopsy physicians, an agitated adult male vigorously shaking a child on multiple occasions and slamming her to the ground would be consistent with his findings as opposed to a bump on the head from a bedpost or placing B.G. on her baby mattress. Appellant was charged by indictment with committing the offense of capital murder. The jury charge also included instructions on the following lesser-included offenses: (1) intentionally or knowingly causing serious bodily injury to a child; (2) recklessly causing serious bodily injury to a child; and (3) criminally negligent injury to a child that causes serious bodily injury. Afer entering a plea of not guilty, appellant was convicted of the lesser-included offense of recklessly causing serious bodily injury to a child and sentenced to twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued. Analysis
In two issues, appellant contends the evidence pertaining to his culpable mental state showed nothing more than criminal negligence and, therefore, the evidence was legally and factually insufficient to support a conviction for recklessly causing serious bodily injury to a child. We note the Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. 443 U.S. 307, 319 (1979). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id.; Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant recklessly, by act or omission, caused serious bodily injury to a child fourteen years or younger. Tex. Penal Code Ann. § 22.04 (West 2003). Injury to a child is a result-oriented offense. Hoffman v. State, 267 S.W.3d 902, 905-06 (Tex. Crim. App. 2008). The mental state criminalized is the state of mind that contemplates the prohibited result. Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. 1980). A person acts recklessly with respect to his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c) (West 2003). "The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. Ordinarily, the requisite culpable mental state is proven through circumstantial evidence. Bowden v. State, 166 S.W.3d 466, 470 (Tex. App.-Fort Worth 2005, pet. ref'd). See also Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984) (the mental state may be "inferred from the acts of the accused or the surrounding circumstances, which includes not only acts but also words and conduct"). Further, it may also be inferred from the extent of the injury and the relative size and strength of the parties. Kelley v. State, 187 S.W.3d 761, 763 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)). Inconsistent statements in a reckless injury to child prosecution may also be considered proof or consciousness of guilt. See Bowden, 166 S.W.3d at 476. In his brief, appellant argues that "[w]hile there is evidence indicating that appellant should have known that his shaking the child and tossing her onto the mattress on the floor had the potential for injury, there is no evidence that he did know his conduct would cause the child to be injured." (emphasis in original). Therefore, appellant concludes he cannot be guilty of recklessly causing serious bodily injury to the child. Appellant admitted to the police and testified at trial that, shortly before he found the child displaying symptoms of possible injury, he had shaken her three times and tossed her onto the mattress on the floor to try to stop her from crying. The jury also heard extensive medical evidence regarding B.G.'s injures: swelling and bleeding in and around the brain, rib fractures along the left side of her chest wall, bruises in multiple spots on her head and body, skull fractures, and retinal hemorrhages. These injuries resulted in B.G.'s death, the cause of which was determined to be blunt force trauma and homicide. Dr. Pinckard testified an agitated adult male vigorously shaking a child on multiple occasions and slamming her to the ground would be consistent with his autopsy findings as opposed to a bump on the head from a bedpost or placing B.G. gently on her baby mattress. During trial, appellant testified that the shaking of B.G. "wasn't too physical, but it was physical; it was too physical for a child." The jury could have reasonably considered this testimony as an admission of his awareness that shaking B.G. would cause serious bodily injury. In addition, the jury was certainly able to compare the size and strength of appellant, a full grown man, to B.G., a fourteen month old girl. See Kelley v. State, 187 S.W.3d at 763. Further, the jury was permitted to take appellant's initial denial of involvement with B.G.'s injuries as proof or consciousness of guilt. See Bowden, 166 S.W.3d at 476. Although, on multiple occasions, appellant denied being aware of, but consciously disregarding, a substantial and unjustifiable risk that the result would have occurred, the jury is the sole arbiter of the credibility of witnesses. See Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002); Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). The jury was permitted to disregard appellant's testimony and rely upon the circumstantial evidence presented at trial in order to determine appellant's requisite culpable mental state. See Bowden v. State, 166 S.W.3d at 470. Having examined all the evidence in the light most favorable to the verdict, we conclude the evidence was sufficient to prove appellant recklessly caused serious bodily injury to a child. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894-95. We, therefore, overrule appellant's two issues and affirm the judgment of the trial court.