No. 05-04-01856-CR
Opinion issued November 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-34030-HW. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
Opinion By Justice MAZZANT.
Arminius Darrell Dismuke appeals his capital murder conviction and life sentence. In four issues, he claims the evidence is legally and factually insufficient to support his conviction; the trial court erred in admitting autopsy photographs; and the trial court erred in refusing to submit his requested jury instruction on negligent homicide. We affirm the trial court's judgment.
Background
In March of 1994, Vivian Cardenas was sharing an apartment with appellant and their six-month-old daughter, Toni Nicole. Vivian had known appellant for approximately eighteen months and became pregnant shortly after meeting him. Vivian also had a daughter from a previous relationship, Olivia, who was born on January 16, 2003. Vivian was working at the office of Dr. Kenneth Dott and training to be a medical assistant. At 4:15 p.m. on March 16, 2004, Vivian received a telephone call at work from appellant telling her to come home immediately because Olivia "wasn't breathing right." Vivian left work and walked to the apartment, which was only a short distance from the clinic. Although the apartment was on the second floor, appellant was at ground level waiting for Vivian when she arrived. He was carrying Olivia in his arms. Her head had fallen backwards and her arms were hanging at her sides. Vivian asked appellant what happened to Olivia and appellant said something "about her choking." Vivian told appellant to take Olivia to Dr. Dott's clinic. Vivian's mother lived nearby and, after she was alerted to the situation, she drove Vivian, who was eight months pregnant, to the clinic. At the clinic, Olivia was moved to a patient room. Assisted by Lonnie Jones, a firefighter who happened to be at the clinic that day, Dr. Dott performed cardiopulmonary resuscitation (CPR) on Olivia. Appellant stood nearby. Paramedics were called and Olivia was transported to Baylor Hospital. Delbert Curbo, a paramedic with the Irving Fire Department, remembered that Olivia was cold and lifeless and had bruises on her chin and eyes. When he tried to insert a tube into Olivia's trachea to ventilate her, her trachea was obstructed by what looked like egg or egg yoke. Curbo asked appellant whether Olivia had just eaten because Curbo thought she might have choked on an egg. Allen Williams, a City of Irving Police Officer, arrived at Dr. Dott's office at 4:45 p.m. Paramedics were performing CPR on Olivia and her mother "was very distraught and appeared to be crying." Appellant seemed "highly excited and a little agitated." Just before Olivia was transported to Baylor Hospital, Williams saw appellant leaning into the car where Vivian was sitting. Appellant was speaking to her in a hushed tone, "and it seemed like he was being stern." Appellant stopped talking when he saw Williams. At the hospital, Williams talked to appellant. Appellant told Williams he was babysitting Olivia that day. He said he placed her on the bed and left the room. When he came back, she was face-down on the bed and struggling to breathe. Williams recalled that appellant tried to go into the trauma room and seemed very concerned about what was being done to Olivia. Appellant shook at times and "seemed very excited." He could not remain seated for very long and kept asking the hospital staff for information on "what was going on." Appellant eventually became so agitated that Williams threatened to handcuff and remove him from the trauma area if he did not calm down. Dr. Thomas Bronaugh was the emergency physician at Baylor Hospital who first examined Olivia. She arrived shortly before 5 p.m. in an unconscious state and was immediately put on pediatric emergency life support. Bronaugh administered medications to restart Olivia's heart and within a few minutes felt a pulse. He found bruising next to Olivia's nose and between her eyes, indicating a possible break in the skull and a head injury. He also found that the inside of her ears and the area behind her eardrums were "quite red" and it "appeared there was some blood collecting behind the eardrums." He concluded she had suffered a head injury. Bronaugh also recalled that when he asked Vivian about the cause of Olivia's injuries, she was unclear about what happened. He was told about a bump to Olivia's head from falling against a coffee table during the previous week, but there was no indication Olivia suffered any adverse medical consequences from the fall. Neither Vivian nor appellant gave Bronaugh any information about what might have caused Olivia's serious head injury. Appellant mentioned only that Olivia "had stopped breathing for unknown reasons." Bronaugh, however, saw nothing in Olivia's medical history to explain why she would suddenly stop breathing. Because of the nature of Olivia's injuries, Bronaugh suspected child abuse. Olivia was transported to Children's Medical Center (Children's) for additional testing. At Children's, Olivia was given a CAT scan and moved to the intensive care unit. Dr. Todd Maxson, the Chief of Pediatric Trauma Service at Children's, found a "global" injury to Olivia's brain that was typical of cases where a person is shaken and there is a long period with no oxygen. He characterized this as a "devastating injury that is incompatible with survival." After examining Olivia, the medical staff at Children's told Vivian that Olivia was brain dead. At 5:45 p.m., Detective Harold Renfroe of the Irving Police Department arrived at Baylor Hospital after being informed by patrol officers that a child was suffering from a possible skull fracture. Appellant told Renfroe that Olivia woke up early in the morning after Vivian left for work. He fed her breakfast, bathed her, and then laid her down for a nap. A short while later, she awoke from the nap. After feeding her cookies and milk, appellant laid her down on her stomach. He said that he left the room and when he returned, Olivia was having trouble breathing. Appellant claimed he had no idea how Olivia had gotten a skull fracture. He admitted that he was the only person with the child that day after Vivian went to work. After interviewing appellant, Renfroe asked for his written consent to search the apartment. Appellant agreed to allow officers to search the apartment. Appellant accompanied Renfroe to the apartment and monitored the search. During the hour-long search, appellant walked with the investigating officers through the apartment, showing them where the events of that day occurred. Appellant said he gave Olivia two eggs to eat that day. Renfroe saw nothing in the apartment that would explain what happened to Olivia. Renfroe took appellant back to Children's at around 8:30 p.m. After talking to a neurosurgeon about Olivia's injuries, Renfroe arrested appellant for injury to a child. After Olivia was removed from life support and pronounced dead, the offense was upgraded to capital murder. Dr. Dawn Johnson, who practices medicine at Children's and specializes in evaluating and diagnosing child abuse and neglect, also examined Olivia. When she examined her, Olivia was intubated, on life support, and near death. CAT scans revealed Olivia's skull was broken and she had a serious head injury. The break in Olivia's skull extended from the crown down the back of her head to the point where her skull joins the spine. Due the seriousness of Olivia's injuries, it was Johnson's opinion that she was "essentially dead" when she was admitted to Children's. Johnson's medical findings showed there was massive brain swelling which was pushing Olivia's brain out of her skull. Olivia also had massive retinal hemorrhaging which Johnson believed was the worst she had ever seen "and that's including looking at them in textbooks and other places." The brain swelling, retinal hemorrhaging, and blood inside Olivia's skull indicated that she was probably shaken and then hit in the head with some sort of "blunt force trauma." Either the shaking or the trauma could have caused her death. Furthermore, the bruising around Olivia's eyes and over her clavicle indicated that she had been hit more than once. There was no trauma to the abdomen or pelvis and no fractures present except for the skull fracture. Johnson read to the jury the following excerpts from her medical report: Olivia is a 14-month old female victim of non-accidental trauma — child physical abuse — with injuries consistent with the shaken baby syndrome and severe blunt force impact. Olivia was severely, brutally shaken causing massive brain trauma and retinal hemorrhages. These injuries likely occurred immediately before Arminius Dismuke called Vivian Cardenas at 16:15 hours to let her know that Olivia was not breathing normally. The baby would not have been normal after the event which caused her injuries.
The clinical signs of shaken baby [syndrome] are immediate and identifiable as problematic — even to parents who are not medically knowledgeable — and include excessive sleepiness, vomiting, seizures, coma, poor feeding, respiratory depression or respiratory failure, excessive fussiness or death . . .
The act of shaking leading to the shaken baby syndrome is so violent that an individual observing or performing it would recognize it as dangerous and likely to kill the child.
Johnson did not believe these injuries were caused by accident. Only a "huge car crash" or a fall from several stories could have caused such injuries, and there was nothing in Olivia's patient history to support such an interpretation. In Johnson's opinion, appellant's explanation that Olivia just stopped breathing was "implausible." Given Olivia's injuries, there would have been immediate signs to appellant that something was seriously wrong. Johnson concluded that the force required to inflict the injuries Olivia received was "far beyond any normal thing that you would do to an infant." She also told the jury that most babies who have been shaken show no external signs of injury, so the absence of additional broken bones or fingerprints on Olivia's torso does not mean she was not shaken. Johnson agreed that if, as in this case, she was presented with a fourteen-month-old child who had been with one caretaker from 8:00 a.m. to 4:15 p.m., the child exhibited diffuse, bilateral retinal hemorrhages, severe subdural hematoma, a skull fracture at the back of the head, and trouble breathing, she would conclude the person who was with the child — her caretaker — had caused those injuries. Furthermore, her answer would be the same if the caretaker had been with the child for only fifteen minutes because the child "would have been symptomatic immediately after the injuries which caused her death." Dr. Sheila Spottswood of the Dallas County Medical Examiner performed the autopsy on Olivia. Based on the autopsy findings, Spottswood concluded the cause of death was "[b]lunt force head injuries." She explained that the fracture on the back of Olivia's head was evidence that she came "in contact with something else with a lot of force, enough to break the skull." She suffered impacts to multiple areas of her body, as shown by the bruises found during the autopsy. Based on the nature of the injuries, Spottswood concluded Olivia's head was in motion and either struck an object or was struck. Spottswood found Olivia's brain injuries consistent with shaking followed by an impact with a blunt object. Such a combination is known to cause more serious injuries than those caused by only hitting or by slamming into an object. Spottswood did not believe Olivia's injuries could have been caused by a fall against a coffee table, in a bathtub, or from a bed. It was also "very unlikely" that a fall from a two-story building could have caused her injuries. Legal and Factual Sufficiency
In his first and second issues, appellant claims the evidence is legally and factually insufficient to support the conviction. Standards of Review We apply familiar standards when reviewing challenges to the legal and factual sufficiency of the evidence. In a legal sufficiency review, we examine all the evidence in the light most favorable to the judgment and 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); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 2006 WL 2956272, *7 (Tex.Crim.App. Oct. 18, 2006). Analysis An individual is guilty of capital murder if it is found that he intentionally or knowingly caused the death of an individual younger than six years of age. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2003). In the present case, the State alleged that appellant committed murder in two ways: (1) by shaking Olivia with his hands, a deadly weapon, and (2) by striking Olivia with and against an unknown object, a deadly weapon, the exact nature of which is unknown. Appellant claims the evidence is legally insufficient because the evidence against him was entirely circumstantial and no witnesses saw him shake or strike Olivia. Cause of death, however, can be established both by expert medical testimony and by circumstantial evidence. Barcenes v. State, 940 S.W.2d 739, 745 (Tex.App.-San Antonio 1997, pet. ref'd). Furthermore, when an adult defendant has sole access to a child at the time its injuries are sustained, the evidence is sufficient to support a conviction for injury to a child or murder if the child dies. See, e.g., Garcia v. State, 16 S.W.3d 401, 405 (Tex.App.-El Paso 2000, pet. ref'd). A trier of fact can also view inconsistencies between a defendant's version of events and the medical evidence as evidence of guilt. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The circumstantial evidence in this case clearly supports the jury's verdict. While no one saw appellant shake or hit Olivia, it is undisputed that he was alone with her during the time when her injuries occurred. In addition, the jury heard medical testimony that Olivia's injuries were so severe they could not have been caused by accident or by ordinary events. The jury also heard evidence that appellant gave inconsistent stories regarding the cause of Olivia's injuries and at no time could he account for Olivia's skull fracture or her other injuries. The fact that appellant's explanation that Olivia just stopped breathing is contradicted by overwhelming medical evidence is further indication of his guilt. When we examine the evidence in the light most favorable to the verdict, we believe a rational jury could have found the elements of the offense beyond a reasonable doubt. Therefore, we conclude the evidence is legally sufficient to support appellant's conviction. Appellant also claims the evidence is factually insufficient. Giving appropriate deference to the jury's assessment of the evidence and its resolution of the evidentiary conflicts, and considering all of the evidence in a neutral light, we also conclude the evidence is factually sufficient to support the conviction. Appellant's first and second issues are overruled. Photographs
In his third issue, appellant contests the admission of eleven autopsy photographs. Appellant claims the trial court erred in admitting the photographs, State's exhibits seven and twenty-two through thirty-one, because they were unnecessarily cumulative, failed to assist the jury in resolving any significant factual controversies, and inflamed the jury against him. Therefore, the danger of unfair prejudice substantially outweighed the photographs' probative value. The State claims the photographs were relevant and probative because they revealed the nature and extent of Olivia's injuries which were not otherwise apparent and established the intentional and knowing manner in which she was killed. Background As noted previously, Dr. Spottswood testified about the findings of the autopsy performed on March 18, 2004. During her direct examination, the State offered eleven autopsy photographs into evidence. The photographs were admitted over appellant's objections that they were irrelevant, prejudicial, and inflammatory. The first photograph, State's exhibit seven, is a close-up of Olivia's head and face. Spottswood described it as an "identification photograph." She directed the jury's attention to bruises that appeared on Olivia's forehead, right cheek, and under her chin. She also noted that two bruises were found on the front of the right shoulder. State's exhibit twenty-two shows the top of Olivia's shoulder. Spottswood used this photograph to direct the jury's attention to what she described as "two areas of bruising" caused by "an impact of some kind." State's exhibit twenty-three shows the right side of Olivia's face. Spottswood directed the jury's attention to a small bruise on Olivia's right cheek and additional bruising on the jaw line and under the chin. She could not determine the type of impact that caused these bruises, which were probably inflicted a couple of days before they were photographed. State's exhibit twenty-four shows the left side of Olivia's head and her exposed skull and reflected scalp. Spottswood used this photograph to direct the jury's attention to the bruising at the top of Olivia's head. She told the jury this was the result of "blunt injury." She also explained that the bruising would not be visible from the outside of Olivia's head because it was underneath the skin. State's exhibit twenty-five shows the back of Olivia's head and exposed skull. Spottswood used this photograph to direct the jury's attention to a large area of bruising on the back of Olivia's head. She concluded the bruises were of recent origin and were consistent with the injuries Olivia sustained on March 16, 2004. The bruises were not likely to have been caused by Olivia's short fall against the coffee table that took place one week before she died. State's exhibit twenty-six shows the front of Olivia's head and reflected scalp. Spottswood used this photograph to direct the jury's attention to another large area of bruising on the left side of Olivia's head. Spottswood said this photograph showed bruising on Olivia's head that would otherwise have been concealed by her hair. State's exhibit twenty-seven shows the left side of Olivia's head with her skin pulled forward over her face. Spottswood said this photograph showed fresh bruising "at the front top part" of Olivia's head. State's exhibit twenty-eight shows the top of Olivia's head and exposed brain. Spottswood drew the jurors' attention to a layer of hemorrhaging in the subdural area between the brain and the dura. She also pointed to the swollen condition of Olivia's brain. These injuries were caused by shaking or blunt force impact. State's exhibit twenty-nine shows the back of Olivia's head and exposed skull. Spottswood directed the jurors' attention to a three and a-half inch straight line fracture running down the back of Olivia's skull. She concluded it would have taken "a lot of force to cause a fracture like that." She believed the fracture occurred within days of the autopsy. State's exhibits thirty and thirty-one show the condition of Olivia's eyeballs after they were removed from her head. Spottswood explained that optic nerves normally appear to be white or pale yellow, while Olivia's optic nerves were dark red, brown and black. This was because of hemorrhaging in the optic nerves. Spottswood said the hemorrhaging was caused by "either shaking or impact or both." Referring to exhibit thirty-one, which shows a different view of the eyeballs, she noted the hemorrhaging appeared on either side of the optic nerves. Standard of Review The admissibility of photographs is within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). We will not disturb a trial court's ruling admitting or excluding evidence so long as the trial court's decision falls within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Applicable Law Although autopsy photographs are relevant, they may be found inadmissible under the rules of evidence if they are unfairly prejudicial. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401; see Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App. 1991) (evidence is relevant under Rule 401 if it "influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case"). Rule 403 provides all relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of unfair prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). "Unfair prejudice" pertains "only to relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged." Id. In deciding whether to admit autopsy photographs, the trial court may consider the following factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence: the number of photographs, the size of the photograph, whether they are in color or black and white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). When photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim by autopsy. Salazar v. State, 38 S.W.3d 141, 151-52 (Tex.Crim.App. 2001). Furthermore, photographs depicting mutilation by the medical examiner may be admissible when the photographs show bruising or other damage that is attributable to the defendant's actions but is not visible externally, thereby making the photographs highly relevant to the manner of death. See Ripowski v. State, 61 S.W.3d 378, 392-93 (Tex.Crim.App. 2001). Overall, the photograph must be helpful to the jury: "If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004). Analysis The photographs at issue are probative of the manner in which Olivia incurred her fatal injuries and depict the wounds she suffered. The State argues they were necessary to prove its case because the State's capital murder theory relied on the fact that appellant was the only person who could have inflicted the fatal injuries. Moreover, much of the State's medical evidence concerned the extraordinary degree of force required to cause those injuries. By demonstrating the severity of her injuries, the photographs supported the testimony of witnesses who told the jury that Olivia's injuries were not caused by some household accident. Although some of the photographs were graphic and explicit, they were far more probative than unfairly prejudicial. The photographs depicted bruising, swelling, and fracturing on the underside of Olivia's scalp, brain, skull, and optic nerves that is not visible externally. Some bruising can be seen on the external surface of Olivia's head, but the full extent of her injuries was not apparent until the scalp was opened and the brain and optic nerves were removed. See Ripowski, 61 S.W.3d at 392-93; Salazar, 38 S.W.3d at 151-52. The task of the jury was to determine if the photographic evidence was consistent with the witness testimony. As the court of criminal appeals has observed, "Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions." Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1988). Because there is some probative value of the autopsy photographs in helping the jury understand the nature of the victim's wounds, the trial court did not abuse its discretion in admitting the photographs. Given the relevance of the photographs, we find that their probative value was not substantially outweighed by the danger of unfair prejudice. Appellant's third issue is overruled. Lesser Included Offense
In his fourth issue, appellant argues the trial judge erred by denying his request for a jury instruction on the lesser included offense of criminally negligent homicide. Appellant claims the record contains evidence from which the jury could reasonably determine that Olivia's death was caused by his negligent conduct. We conclude appellant was not entitled to a jury instruction on criminally negligent homicide. Standard of Review In reviewing a trial court's decision to deny a requested jury charge for a lesser included offense, the appellate court considers the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). More specifically, the court (1) examines the statutory elements of the charged offense as modified by the indictment, then (2) examines the elements of the claimed lesser included offense to see if the elements are functionally the same as or less than those required to prove the charged offense, and, finally, (3) examines the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser included offense. Id. at 478-79. Applicable Law The Texas Court of Criminal Appeals has established a two-part test to determine if a charge on a lesser-included offense is required. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985) (citing Royster v. State, 622 S.W.2d 442 (Tex.Crim.App. 1981)). First, the lesser-included offense must be included with the proof necessary to establish the offense charged. Rousseau, 855 S.W.2d at 672-73; Aguilar, 682 S.W.2d at 558. Second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 672-73; Aguilar, 682 S.W.2d at 558. In other words, there must be some evidence that the defendant is guilty of the lesser offense but not of the greater. Pickens v. State, 165 S.W.3d 675, 679 (Tex.Crim.App. 2005). Analysis In the present case, the trial court charged the jury on capital murder, intentionally or knowingly causing serious bodily injury to a child, manslaughter, and recklessly causing serious bodily injury to a child. See Tex. Penal Code Ann. §§ 19.03(a)(8); 19.04(a), 22.04 (Vernon 2003). The court of criminal appeals has recognized that manslaughter and criminally negligent homicide are both lesser-included offenses of capital murder. Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex.Crim.App. 2000). Additionally, injury to a child is a lesser-included offense of capital murder. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2003); Paz v. State, 44 S.W.3d 98, 101 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd). Therefore, the first part of the Rousseau test has been met, and we must determine whether the record contains some evidence that would permit a jury to rationally find that appellant is guilty only of the lesser-included offense of criminally negligent homicide. Rousseau, 855 S.W.2d at 672-73. A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Penal Code Ann. § 19.05(a). Section 6.03(d) defines criminal negligence: "A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. § 6.03(d). "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. Id. Like manslaughter, criminally negligent homicide requires the existence of conduct that creates a substantial and unjustifiable risk of death. See Saunders v. State, 913 S.W.2d 564, 572 (Tex.Crim.App. 1995). In manslaughter, however, the defendant must be aware of the risk and consciously disregard it. Id. In criminally negligent homicide, the jury must find that "though [the defendant] ought to have been aware of the risk, he was not." Id. Appellant insists the record contains evidence on which the jury could reasonably rely in deciding Olivia died as a result of his negligent conduct, but he fails to identify any evidence which could have led the jury to such a conclusion. Our review of the record does not identify any evidence which indicates appellant did not know Olivia could be injured by striking her head with or against an object or shaking her with the force and in the manner that the evidence established. Instead, the evidence indicates appellant knew how to care for Olivia and he cared for her on a regular basis while Vivian was at work. There is no evidence that he negligently engaged in conduct which placed Olivia at risk of serious bodily injury or death. Furthermore, given the medical evidence detailing the manner in which she died, the jury could not have found that if appellant was guilty, he was guilty of only negligently causing Olivia's death. The evidence does not entitle appellant to an instruction on criminally negligent homicide. Appellant's fourth issue is overruled. We affirm the trial court's judgment.