Opinion
No. 05-02-01144-CR.
Opinion Filed April 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-02231-MS. Affirm.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Sue Kestler Claud appeals her conviction for criminally negligent homicide. After finding appellant guilty, the trial court sentenced appellant to two years' imprisonment, probated for five years. Appellant brings one point of error contending the evidence is legally insufficient to support her conviction. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Eric Hernandez was born on January 6, 1999. On February 27, 1999, Eric's mother was carrying him when she fell down. She took Eric to the hospital the next day where he was diagnosed as suffering from a spiral fracture to his right femur. The physicians suspected child abuse and notified Child Protective Services (CPS), which removed Eric from the Hernandez's custody. Appellant and her husband are certified foster parents, and Eric was placed in their custody. On March 5, 1999, a spica cast was placed on Eric's right leg, and appellant was given written and oral instructions on how to care for Eric in the cast. To prevent ulcers, the instructions said to reposition Eric every two to four hours, around the clock, using foam or pillows to keep weight off bony areas. Appellant and her husband told the CPS investigator that on March 7, they took Eric with them on a seven-hour Sunday drive around town. When they returned home, they put appellant on pillows on the floor on his stomach while they watched a movie. Appellant's husband gave Eric a bottle, and, at about 7:30 p.m., appellant placed Eric in a bassinet containing a mattress covered with a large pillow and a few smaller pillows in their bedroom. Appellant checked on Eric several times over the next few hours. At one point, appellant saw Eric had wedged himself against one side of the bassinet, and she centered him on the large pillow. Appellant noticed a couple of times that Eric had his face down in the pillow, and each time appellant moved his head to the side. When appellant checked on Eric at about midnight, he was again face down in the pillow. Appellant picked him up and noticed his skin was cool and his lips were blue. The investigator determined there was reason to believe Eric's death was caused by the Clauds' neglectful supervision leading to Eric's being face down in the pillow. An autopsy was performed on Eric. The medical examiner concluded that Eric "died as the result of positional asphyxia following immobilization of the right leg due to a leg fracture." The medical examiner also determined the manner of death was "Accident." Cheryl Sundstrom, appellant's neighbor and friend, testified appellant described to her how Eric died. Sundstrom told appellant, "My God, you know, you just don't lay a baby down in a pillow." Appellant told Sundstrom the doctor had told her it was "okay" to do so. Appellant testified that when Eric was placed in the cast, she received an eleven-page handout of instructions for caring for a person in a spica cast. The instructions stated, "(1) Reposition child every 2-4 hours around the clock (figure 3). (2) Protect bony areas: when positioning, use foam or pillows to keep weight off of bony areas (heels and ankle bones)." Figure 3 is a series of drawings showing three people turning an older child in a spica cast from his back onto his stomach. The final illustration shows the child lying on his stomach, pillows under his head, torso, hips, and legs, his head turned to the side and away from the pillow. Appellant testified she had cared for two other infants in spica casts, and the doctors in those cases had given her the same instructions. Appellant was concerned about the possibility of Sudden Infant Death Syndrome from leaving an infant sleeping on its stomach, but Eric's doctor told her he was more worried about Eric's comfort level. Appellant testified the doctor told her to set Eric on pillows to take pressure off the cast. Appellant testified that on the evening of March 7, her husband laid Eric on his stomach in the bassinet. Later, appellant saw Eric had "wiggled" to the side of the bassinet and had his head turned down into the bassinet. Appellant repositioned Eric in the center of the bassinet, and she turned his head to the side, away from the pillow. She then saw Eric "nuzzle" his nose into the bedding, and she repositioned his head to the side. Appellant moved his head to the side because she knew that if he were face down in the pillow he could suffocate. About two-and-a-half to three hours later, appellant saw Eric with his face down in the pillow. She picked him up and felt his skin was cool, and she saw his lips were blue. She called for her husband, who started CPR on Eric while appellant called 911. Both appellant and her husband were charged with criminally negligent homicide. The trial court found appellant guilty and her husband not guilty.SUFFICIENCY OF THE EVIDENCE
In her sole point of error, appellant contends the evidence is legally insufficient to support her conviction. When reviewing the legal sufficiency of the evidence, this Court must examine 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). The indictment in this case alleged appellant caused Eric's death "by criminal negligence, to-wit: by placing said complainant in a position on his stomach, face down, on a pillow, knowing said complainant, an infant, was in a cast and immobile." The penal code defines criminal negligence as follows:A person . . . is criminally negligent, with respect to . . . the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that the failure to perceive it 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.Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). Appellant argues the evidence is legally insufficient to show the nature of the risk in order to convict appellant of criminally negligent homicide. Specifically appellant contends, "The State was unable to establish that putting a child face-down on pillows involved such a substantial and unjustifiable risk of death that Appellant's failure to perceive this risk was a gross deviation from the standard of care." Appellant asserts the lack of risk was demonstrated by the hospital's instructions that, appellant asserts, "showed a patient face-down over pillows to relieve stress on the back." Appellant misinterprets the instructions: Figure 3 of the instructions shows an older child lying on his stomach with his face turned to the side; the child shown in Figure 3 is not lying face down in the pillow. Appellant's testimony established the substantial and unjustifiable risk from placing an infant face down on a pillow:
Q. Could Eric move his head or not, Ms. Claud?
A. Yes, he could.
Q. Okay. Then, why did you keep moving his head if you felt confident he could move his own head?
A. Because I didn't want him to be face down.
Q. Why not?
A. Because of suffocation.
Q. Okay. So, you knew that by having him face down that a child could suffocate, correct?
A. Yes, ma'am.
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Q. You knew that face down in pillows is not a good thing, correct?
A. I've never faced a child down on a pillow.This evidence established the substantial and unjustifiable risk of suffocation from placing an infant face down on a pillow and that, from appellant's standpoint, it constituted a gross deviation from the standard of care. Appellant's argument lacks merit. We overrule appellant's sole point of error. We affirm the trial court's judgment.