Opinion
01-19-00981-CR
06-02-2022
RAJFIK DOMINIQUE KEATING, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1644110
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
AMPARO GUERRA, JUSTICE
A jury found appellant, Rajfik Dominique Keating, guilty of felony murder, with the underlying felony of injury to a child, and the trial court sentenced Keating to fifty years' imprisonment. In two issues on appeal, Keating contends (1) a fatal variance exists between the indictment and the proof at trial, and (2) the evidence is insufficient to establish that he committed an act dangerous to human life. We affirm.
Background
Keating testified at trial in his own defense. Keating explained he had been friends with Rasheed Washington and Lynette Monique Gaspar since high school. Washington and Gaspar had three children-L.W., R.W., and Baby L.W. Washington died in August 2016, when R.W., the middle child, was not quite two years old. After Washington's death, Keating moved from California back to Houston to "check on" Gaspar and on the kids. Although Keating did not live with Gaspar and did not visit her apartment every day, he "stop[ped] by as much as [he could]." Keating also disciplined the children when he was there, using his old belt.
On the evening of June 24, 2017, Keating went to Gaspar's apartment. Once he arrived, he and Gaspar "[w]ent into the back room," Keating "rolled a joint," and he and Gaspar "talked for awhile." The children, including R.W., were in their bedroom watching television. According to Keating, when he arrived at Gaspar's apartment, he did not see any bruises on R.W.'s face or body, and R.W. appeared to be acting normal. After receiving a phone call from her mother, Gaspar left around 8:00 p.m. to get something to eat, leaving the children alone with Keating.According to Keating, when Gaspar left that evening, the children were "fine."
Keating testified that he "definitely didn't see a black eye" on R.W. and noticed only a red mark on R.W.'s cheek.
Surveillance video from Gaspar's apartment complex introduced at trial confirmed that Gaspar left her apartment around 8:00 p.m. and returned around 9:35 p.m.
After Gaspar left, Keating went outside to "finish smoking" and "dr[i]nk a little bit." After a "good little time," Keating, who was still outside, heard a "thud." Keating went inside to the children's bedroom and saw R.W. lying on the floor. R.W. was conscious, not crying, and "looked like he wanted to keep watching TV." Keating picked up R.W., changed his diaper, and took him into the living room to eat. According to Keating, R.W. walked into the living room and sat in the chair. Keating went back outside to continue smoking, but R.W. "wasn't looking too good . . . [and] eventually ended up falling on the floor." R.W. continued to throw up a dark liquid, and Keating tried to perform CPR. When that did not work, Keating called his mother, a home health aid. Keating's mother told Keating to call Gaspar. Keating called Gaspar, who asked him to wait until she returned home before calling 911. Keating eventually called 911, and the 911 operator instructed Keating on how to perform CPR. Keating performed CPR on R.W. until emergency services arrived. R.W. was transported to Memorial Hermann Southwest Hospital ("MHSH"), where he was pronounced dead. Although Keating admitted to physically disciplining the children, including R.W. in the past, he denied physically disciplining R.W. on the day he died.
Travis McNall, an Officer with the Houston Police Department, was the first police officer to arrive on scene at Gaspar's apartment. When he arrived, Officer McNall saw Houston Fire Department officers carrying a young boy out on a stretcher. They were attempting to perform CPR on the child, but he did not appear responsive. Officer McNall spoke with Gaspar, who was waiting outside, to confirm her information and verify that R.W. was being taken to MHSH. Officer McNall then went inside the apartment, which he described as dirty and smelling of marijuana, and immediately noticed a "large black stain" on the rug on the apartment floor. Officer McNall spoke with Keating, who told Officer McNall he had been in the master bedroom when he heard a "loud thump" from the living room. Keating came into the living room and saw R.W. on the floor. Keating picked up R.W. and tried to calm him down because he was crying. According to Officer McNall, Keating told him that R.W. "began throwing up," "was crying," and "always falls down."
At MHSH, emergency physician Dr. Sergey Potepalov treated R.W. Dr. Potepalov testified that R.W. was two years and seven months old when he was brought into the hospital, had "evidence of multiple contusions," including "a severe contusion on the left side of [his] head," which, in Dr. Potepalov's opinion, "resolved in [R.W.'s] death." Dr. Potepalov testified that when R.W. arrived at the hospital, he was "blue," "cold," and with "no signs of life of any kind." Despite no signs of life, Dr. Potepalov attempted a "full spectrum of resuscitative measures," but after an additional twelve minutes of resuscitation, it was apparent R.W. could not be saved and Dr. Potepalov called a time of death at 10:30 p.m.
Dr. Potepalov also testified he observed multiple visible injuries, in addition to the contusion on the left side of R.W.'s face, including "contusions to his upper chest, upper and lower back, both arms, and bilateral inner thighs." Dr. Potepalov noted that the injuries were in multiple stages of healing. The wound to the left side of R.W.'s face, which resulted in R.W.'s left eye being swollen shut, was fresh, and there were several other injuries that appeared to be from days ago based on the discoloration of the skin. Dr. Potepalov opined that R.W.'s injuries were consistent with child abuse.
Dr. Potepalov testified that Gaspar had stated R.W. initially fell into a freezer, injuring his head, and then later fell off the bunk bed at about 8:45 that evening. Though Dr. Potepalov could not say whether this was truthful, he testified that the nature of R.W.'s injuries were not consistent with this version of events. Dr. Potepalov concluded that R.W. had suffered an intercranial hemorrhage that led to respiratory paralysis and cardiac arrest. Dr. Potepalov testified that, with an injury such as this, death would not occur immediately at the time of the injury. Instead, it would take about 20-30 minutes for the "blood to flood the brain and cause herniation or collapse of the brain downward." Dr. Potepalov further testified that although there would be a "lucid period" after a child sustains such an injury, it would only be about five to ten minutes. And, according to Dr. Potepalov, a child would not be acting normal during this "lucid period," but instead would have a headache, vomit, and look pale or unwell.
On cross-examination, Dr. Potepalov admitted that he did not know who inflicted the injuries on R.W. However, he testified that he believed it was "highly unlikely" that R.W.'s multiple contusions running "from his head, chest, back, arms, [and] legs . . . were accidental." "[R.W.] was beaten up."
Dr. Dana Hopson, Assistant Medical Examiner at the Harris County Institute of Forensic Sciences, performed the autopsy on R.W. Dr. Hopson determined the cause of R.W.'s death to be "[m]ultiple blunt force injuries" and the manner of death to be homicide. Dr. Hopson testified she observed bruises around R.W.'s left eye and "many contusions or bruises on . . . both sides of his face, as well as beneath his chin." She also testified that, although she could not specify an exact timeframe, these contusions and bruises appeared to have occurred "[a]t or around his time of death."
Dr. Hopson also observed a subdural hemorrhage, or bleeding in the brain, as well as some areas of bleeding on the surface of the brain itself. There were additional injuries to his chest, abdomen, and back, with further internal bleeding in his chest, intestine, and spinal cord. Dr. Hopson testified that all of these injuries contributed to R.W.'s death. In Dr. Hopson's opinion, R.W.'s injuries were more consistent with more than one impact, based on the multiple bruises on multiple sides of R.W.'s body and face. She further testified that R.W. had a broken rib and bruising over 75 to 80 percent of his body. Dr. Hopson stated that R.W.'s injuries "in constellation" were consistent with inflicted injuries, i.e., "someone being struck with a blunt object," and were not "consistent with one single fall from a height."
Dr. Glen Sandberg, a forensic neuropathologist at the Harris County Institute of Forensic Sciences, examined R.W.'s brain, eyes, and spinal cord. Dr. Sandberg found bleeding around R.W.'s brain (subdural hemorrhage), as well as small hemorrhages within the brain itself, which he noted was abnormal. Dr. Sandberg described this bleeding as acute, meaning the bleeding occurred "less than two days from the time of injury to death." Dr. Sandberg testified that subdural hemorrhages are typically caused by trauma, such as "acceleration, deceleration or inertial types of movement of the head," or impact between the head and the floor or some other object. Dr. Sandberg testified that R.W.'s injuries were consistent with someone striking R.W. with (or against) a blunt object.
Dr. Sandberg also found acute bleeding around the spinal cord, called an epidural hemorrhage, as well as some hemorrhage at the bottom part of the spine. Finally, Dr. Sandberg observed scattered hemorrhages in the front part of R.W.'s left eye. Dr. Sandberg testified that hemorrhages appearing in the front part of the eye are "more indicative of a trauma cause for the hemorrhage," such as a "repetitive or rotational acceleration [or] deceleration." Dr. Sandberg testified that the injuries to R.W.'s eyes were consistent with this type of repetitive movement.
Dr. Sandberg testified that, most of the time, children with injuries such as those found on R.W. would be "symptomatic almost immediately" and would not "be acting normal after this injury." He testified that with the combination of findings and injuries suffered by R.W., it was unlikely he was "normal" or exhibited a "lucid interval" because this "type of trauma is more damaging to the brain and causes immediate symptoms." He also testified that the "usual everyday behavior," "accidents around the house," or "mischief" of a two-year old "would be extremely unlikely to cause these types of injuries."
Dr. Rebecca Girardet, a child abuse pediatrician with the University of Texas Medical School in Houston, reviewed R.W.'s medical and autopsy records and opined that R.W.'s injuries were consistent with a blow to the head, striking the head against a blunt object, or shaking. She further testified that these injuries were not consistent with a fall from a bunk bed, running into a freezer, or some other domestic accident. Dr. Girardet opined that, based on these injuries, R.W. would have been "immediately symptomatic," meaning he would not have "gotten up and started playing for a period of time after suffering all of the impacts to his head." Dr. Girardet testified that, based on the severe head injuries, bleeding along R.W.'s spine, multiple bruises, and older scars on his body, R.W. "had been previously physically abused and then acutely injured [the] day [of his death.]" Based on her training and experience, Dr. Girardet opined that these multiple injuries and impacts indicated R.W. was abused. Dr. Girardet admitted she had not treated or examined R.W. in person, and her opinions were based on the medical records and reports alone.
L.W., R.W.'s seven-year-old sister, testified that Keating "whoop[ed]" her and R.W. on June 24. However, on cross-examination, she contradicted this testimony, stating she did not see Keating "whoop" R.W. on that day. L.W. also testified that she did not know how R.W. died, only that R.W. was not in the bedroom with her but was in the living room when she heard "a crying sound." L.W. testified that R.W. did not run into a freezer or fall out of his bed on the day he died.
Sufficiency of the Evidence and Fatal Variance
In his two issues on appeal, Keating contends (1) there was a fatal variance between the indictment and the evidence offered at trial because the indictment failed to allege that he caused R.W.'s death, and (2) the evidence was legally insufficient to support his conviction for felony murder because there was insufficient evidence that he committed an act dangerous to human life. Because variances are considered in connection with the sufficiency of the evidence, we consider the law related to these two issues together.
A. Standard of Review
1. Legal Sufficiency
In reviewing the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). This standard requires us to resolve any evidentiary inconsistencies in favor of the verdict, keeping in mind that the fact finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). On appeal, our role is only to ensure that the fact finder reached a rational verdict, we do not reevaluate the weight and credibility of the evidence produced at trial or substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 56 (Tex. Crim. App. 2000). When the record supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the verdict and defer to that determination. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. See Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's liability theories, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) (quoting Malik, 953 S.W.2d at 240). Measuring the sufficiency of the evidence against the hypothetically correct jury charge ensures that a defendant will be acquitted when the State fails to meet its burden of proof rather than when the State includes a simple error in the indictment or jury charge. Malik, 953 S.W.2d at 240. The "law as authorized by the indictment" consists of the statutory elements of the offense and those elements as modified by the factual details and legal theories contained in the indictment. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). This sufficiency standard "can uniformly be applied to all trials, whether to the bench or to the jury, whether or not the indictment is facially complete, and regardless of the specific wording of the jury charge actually given." Malik, 953 S.W.2d at 240.
An indictment is facially complete if it alleges all of the essential elements of a criminal offense. Malik v. State, 953 S.W.2d 234, 239 n.4 (Tex. Crim. App. 1997).
2. Variances
A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof offered at trial. Byrd, 336 S.W.3d at 246 (citing Gollihar, 46 S.W.3d at 246). Stated differently, when a variance arises, "the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument." Gollihar, 46 S.W.3d at 246. A fatal variance between indictment and proof at trial will render the evidence insufficient. Id. at 257. A fatal variance renders a conviction infirm, and the only remedy is to render an acquittal. Thomas, 444 S.W.3d at 8.
A variance between the wording of a charging instrument and the evidence presented at trial is fatal only if it is material and prejudices the defendant's substantial rights. Gollihar, 46 S.W.3d at 257. A variance is material if it (1) failed to provide the defendant with sufficient notice of the charges against him such that he was unable to prepare an adequate defense at trial, or (2) would subject the defendant to the risk of being prosecuted later for the same crime. Id. The defendant bears the burden of establishing surprise and prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
B. Elements of Felony Murder and Injury to a Child
The felony murder statute provides that a person commits murder if he "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code § 19.02(b)(3). Essentially, the State must prove (1) an underlying felony, (2) an act clearly dangerous to human life, (3) the death of an individual, (4) causation (the dangerous act causes the death), and (5) a connection between the underlying felony and the dangerous act ("in the course of and in furtherance of . . . or in immediate flight from"). Contreras v. State, 312 S.W.3d 566, 583-84 (Tex. Crim. App. 2010). The offense of "injury to a child" can qualify as an underlying felony in a felony murder prosecution. Id.
A defendant is guilty of "injury to a child" if he "intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury." Tex. Penal Code § 22.04(a).
C. Analysis
1. There is No Material Variance
In his first issue, Keating argues that there is a material or fatal variance between the indictment and the proof at trial because the indictment failed to allege that he caused the death of R.W., an essential element of felony murder. See id. § 19.02(b)(3). The indictment, captioned "Felony Murder," alleged that, on or about June 24, 2017, Keating:
We do not interpret Keating's first issue as challenging the sufficiency of the indictment or asserting jury-charge error, but instead only as raising a material variance argument. Although Keating includes a discussion of the allegedly defective indictment in his first issue, he acknowledges that a defendant who fails to object to a defective indictment waives the issue unless the indictment fails to give notice of the criminal statute under which the State intends to prosecute. Tex. Code Crim. Proc. arts. 1.14(b), 27.08; Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007) ("Texas law now requires the defendant to object to any error in the indictment before the day of trial and certainly before the jury is empaneled."). He concedes that he not only failed to object to the indictment at trial, but that the indictment provided him with sufficient notice that he was being prosecuted for felony murder and allowed him to prepare his defense to the felony-murder charge. Keating also includes a discussion of the jury charge in his first issue, noting that the jury charge's application paragraph omitted the phrase "caused the death of R.W." However, he concedes that he did not object to the jury charge and that, because the jury charge accurately defined the offense of felony murder elsewhere, the omission of the phrase "caused the death of R.W." did not result in egregious harm. See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (absent trial objection, court of appeals may not reverse conviction on basis of jury-charge error absent finding of egregious harm); see also Riley v. State, 447 S.W.3d 918, 923 (Tex. App.-Texarkana 2014, pet. ref'd) (quoting Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012)) ("Although the application paragraph 'specifies the factual circumstances under which the jury should convict or acquit,' it need not set forth specifically all of the elements necessary to convict a defendant if those elements have been accurately set forth in another section of the charge."). Thus, we interpret Keating's first issue only as raising a material variance between the indictment and proof at trial, and we address that issue alone.
unlawfully, intentionally and knowingly commit[ted] the felony offense of Injury to a Child by intentionally, knowingly, recklessly, and with criminal negligence cause[d] serious bodily injury to R.W. . . . by striking [R.W.] with and against a blunt object, and while in the course and furtherance of said offense did commit an act clearly dangerous to human life, to-wit; striking [R.W.] with and against a blunt object.
unlawfully, intentionally and knowingly commit[ted] the felony offense of Injury to a Child by intentionally, knowingly, recklessly, and with criminal negligence cause[d] serious bodily injury to R.W. . . . by shaking [R.W.], and while in the course and furtherance of said offense did commit an act clearly dangerous to human life, to-wit; shaking [R.W.]
unlawfully, intentionally and knowingly commit[ted] the felony offense of Injury to a Child by intentionally, knowingly, recklessly, and with criminal negligence cause[d] serious bodily injury to R.W. . . . by striking [R.W.] with a belt, and while in the course and furtherance of said offense did commit an act clearly dangerous to human life, to-wit; striking [R.W.] with a belt.
Keating contends that a variance existed because, by failing to include the element of causation, the indictment only charged him with injury to a child, but the "proof offered at trial supported felony murder, a greater offense than pleaded in the indictment." Under these circumstances, Keating argues, the variance between the indictment and the proof should be considered fatal "because it subjected him to a conviction greater than that charged in the indictment."
We disagree. The material variance rule applies in cases where there has been a "failure of proof," i.e., where the indictment sets out one distinct offense, but the proof shows an entirely different offense, see Byrd, 336 S.W.3d at 247, or where the State has proven the defendant guilty of a crime, "but has proven its commission in a manner that varies from the allegations in the charging instrument." Gollihar, 46 S.W.3d at 246. Stated another way, a variance occurs where the State has failed to prove an allegation in the indictment. For example, where the indictment alleges that the defendant killed one person, but the State proves at trial that the defendant killed a different person, "[t]hat is a big mistake. Murder may be murder, but killing one person is not the same offense as killing an entirely different person." Byrd, 336 S.W.3d at 246. In that case, the State has failed to prove its allegation that the defendant killed the person identified in the indictment, and the defendant is entitled to an acquittal. Id. at 246-47.
In contrast, Keating's argument is not that the State failed to prove an allegation in the indictment, but rather that the State proved more than what was alleged in the indictment due to the missing element. This argument appears to be another way to challenge a substantive defect in the indictment-failure to include the causation element-which Keating waived by failing to object to the indictment in the trial court. See Teal, 230 S.3d 172, 177 (Tex. Crim. App. 2007); see also Rodriguez v. State, 799 S.W.2d 301, 303 (Tex. Crim. App. 1990) (noting "[t]he failure of a charging instrument to allege an element of an offense is a substance defect," but holding appellant waived defect because of his failure to object "before the date on which the trial on the merits commenced"); Studer v. State, 799 S.W.2d 263, 268, 273 (Tex. Crim. App 1990) (noting "a failure to allege an element of an offense in an indictment or information is a defect of substance," and it is incumbent upon defendant to object to such defect before trial). Applying the material variance rule in this situation would convert claims of charging-instrument defects-which Studer and other cases meant to foreclose absent a pretrial objection-into material variance sufficiency of the evidence claims.
Keating does not point to any case law, nor have we found any, where a court has found a material variance in this situation. Applying Keating's theory would allow a defendant to evade the holding in Studer and later cases by not objecting to the defective charging instrument, and then arguing on appeal that his complaint is not about a missing element from a charging instrument, but instead a failure of proof.
Even if we were to undertake the material variance analysis, we conclude that there is no variance in this case, or if there is, it is immaterial. First, as noted, the sufficiency of the evidence must be viewed in light of a hypothetically correct jury charge. Gollihar, 46 S.W.3d at 253. The hypothetical jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018). "As authorized by the indictment" means the statutory elements of the offense as modified by the charging instrument. Id. Here, even though the indictment failed to include the causation element of felony murder, a hypothetical jury charge would include all statutory elements, including the causation element omitted from this indictment. See Malik, 953 S.W.2d at 240 (holding sufficiency of evidence should be measured against hypothetically correct jury charge in all trials, including those involving facially incomplete indictments); see also Luna v. State, No. 08-13-00084-CR, 2015 WL 1949176, at *3 (Tex. App.-El Paso Apr. 29, 2015, pet. ref'd) (not designated for publication) (including intent element of engaging in organized criminal activity in hypothetical jury charge, even though "[n]either the indictment nor the jury charge required proof of intent to participate as a member of a criminal street gang," and concluding court conducting sufficiency-of-evidence review would determine whether evidence was legally sufficient to prove intent). And, as Keating concedes, there was sufficient evidence presented at trial that a dangerous act, i.e., shaking or blunt force trauma, caused R.W.'s death.
Keating states in his brief that "the proof offered at trial supported felony murder." Further, in his second issue, Keating does not challenge the causation element of felony murder, i.e., that a dangerous act caused R.W.'s death. Instead, he only argues that there was not sufficient evidence that it was Keating who engaged in the dangerous act that caused R.W.'s death.
Second, Keating has not demonstrated that any variance, to the extent one exists, is material. A variance is material if it prejudices a defendant's substantial rights by (1) failing to provide the defendant with sufficient notice of the charges against him such that he was unable to prepare an adequate defense at trial, or (2) subjecting the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 257. Keating does not argue that the indictment failed to provide him notice of the charges against him such that he was unable to prepare a defense. To the contrary, Keating admits in his brief that the indictment was captioned "felony murder," and included additional paragraphs alleging that he used a deadly weapon to commit murder. Citing to pretrial motions and his counsel's statements at voir dire, Keating also admits that he was "aware that he was charged with felony murder and conducted his defense accordingly." Therefore, Keating has not demonstrated that he was prevented from preparing an adequate defense.
Keating likewise does not demonstrate that the indictment as written would subject him to the risk of being prosecuted later for the same crime, in violation of the Double Jeopardy Clause. "The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the 'same offense,' including a subsequent prosecution for the 'same offense' following acquittal or conviction." Lam v. State, 17 S.W.3d 381, 382 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (quoting Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994)). As Keating acknowledges, however, both greater and lesser included offenses are deemed the same for double jeopardy purposes so as to bar successive prosecution as to one following acquittal or conviction of the other. See id. (quoting Parrish, 869 S.W.2d at 354) ("[G]reater inclusive and lesser included offenses are the same for jeopardy purposes."); see also Contreras, 312 S.W.3d at 584 (noting offense of "injury to a child" can qualify as underlying felony in felony murder prosecution); Ex parte Watson, No. 12-07-00127-CR, 2007 WL 4328265, at *2 (Tex. App.-Tyler Dec. 12, 2007) (mem. op., not designated for publication), aff'd, 306 S.W.3d 259 (Tex. Crim. App. 2009) (citing Harris v. Oklahoma, 433 U.S. 682, 682 (1972)) ("[W]hen conviction for felony murder requires proof of a predicate felony, the predicate felony is the 'same offence' as the felony murder offense for double jeopardy purposes.").
Although Keating acknowledges this point of law, he does not elaborate on if, or how, "the deficiently drafted indictment would subject [him] to the risk of being prosecuted later for the same crime." Gollihar, 46 S.W.3d at 257. Rather, Keating only argues that because the indictment charged him with injury to a child, but the proof offered at trial supported felony murder, this subjected him to a greater offense than pleaded in the indictment and was a fatal variance. This does not address the issue of whether he could be prosecuted again under the same facts, particularly where he recognizes that injury to a child (the offense the indictment charged) was a lesser included offense of felony murder, which he acknowledges the proof at trial supported. See Megas v. State, 68 S.W.3d 234, 241 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (holding appellant did not show variance, if any, was material and affected his substantial rights because appellant did not explain how he could be prosecuted again under same facts).
Under these circumstances, and considering it is the defendant's burden to show prejudice and surprise, we conclude that Keating has not demonstrated the existence of a material variance affecting his substantial rights. Accordingly, we overrule Keating's first issue.
2. There is Legally Sufficient Evidence that Keating Committed an Act Dangerous to Human Life
In his second issue, Keating argues that the evidence is insufficient to support his conviction for felony murder because there is no evidence that he committed an act dangerous to human life. Keating acknowledges that the evidence "unanimous[ly]" established that R.W.'s injuries were caused by shaking and blunt force trauma, and he admits that shaking and blunt force trauma to a two-year-old "are clearly dangerous acts." He contends, however, that the evidence did not prove he committed the dangerous acts because the evidence demonstrated the offender was likely Gaspar.
Keating does not challenge any other elements of his felony-murder conviction- only that the evidence was insufficient to show he was the person who committed a dangerous act that caused R.W.'s death.
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that Keating committed a dangerous act beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Numerous medical experts testified at trial that R.W.'s injuries could not have been caused by an accidental fall or running into a freezer. Dr. Potepalov, the emergency room physician, testified that the nature of R.W.'s injuries was not consistent with an accidental fall or running into a freezer. Dr. Potepalov testified that he observed multiple visible injuries all over R.W.'s body, including "a severe contusion on the left side of [his] head." Dr. Potepalov opined it was "highly unlikely" that R.W.'s multiple contusions running "from his head, chest, back, arms, [and] legs . . . were accidental." Instead, he concluded "[R.W.] was beaten up." In Dr. Potepalov's opinion, R.W.'s injuries were consistent with child abuse. Dr. Girardet, the child abuse pediatrician, likewise testified that R.W.'s injuries were consistent with a blow to the head, striking the head against a blunt object, or shaking, as opposed to a fall from a bunk bed, running into a freezer, or some other domestic accident.
Dr. Hopson, the medical examiner, stated that R.W.'s injuries "in constellation" were consistent with inflicted injuries, i.e., "someone being struck with a blunt object," and were not "consistent with one single fall from a height." Likewise, Dr. Sandberg testified that R.W.'s injuries to his brain, spinal cord, and eyes were consistent with repetitive rotational movement, i.e., shaking, or impact with a blunt object. According to Dr. Sandberg, it was "extremely unlikely" that "usual everyday behavior," "accidents around the house," or "mischief" of a two-year-old would have caused the type of injuries suffered by R.W.
Furthermore, several of the State's medical experts testified that R.W. would not have appeared normal after suffering these injuries, but instead would have been symptomatic almost immediately. For instance, Dr. Potepalov testified that, with an injury such as the intercranial hemorrhage suffered by R.W., death would not occur immediately at the time of the injury. Instead, it would take about 20-30 minutes for the "blood to flood the brain and cause herniation or collapse of the brain downward." Dr. Potepalov further testified that although there would be a "lucid period" after a child sustains such an injury, it would only be about five to ten minutes. And, according to Dr. Potepalov, a child would not be acting normal during this "lucid period," but instead would have a headache, vomit, and look pale or unwell.
Dr. Sandberg similarly testified that children with injuries such as those found on R.W. would be "symptomatic almost immediately" and would not "be acting normal after this injury." He testified that with the combination of findings and injuries suffered by R.W., it was unlikely R.W. was "normal" or exhibited a "lucid interval" because this "type of trauma is more damaging to the brain and causes immediate symptoms." Dr. Girardet also testified that, based on his injuries, R.W. would have been "immediately symptomatic." And although none of the experts could state who inflicted these injuries, they were able to conclude that the injuries contributing to his death were fresh and would have occurred a few hours before R.W.'s death.
Keating acknowledges that the expert testimony unanimously concluded R.W.'s injuries were not accidental. However, he argues that he was "an unlikely candidate to serve as chief disciplinarian in the Gaspar household," and, noting Gaspar had been with the children until Keating arrived, that the evidence did "not exclude the possibility that [R.W.'s] injuries were actually inflicted by Gaspar." However, Keating's own testimony belies this possibility considering the extensive expert testimony that R.W. would not have been acting normally after sustaining these injuries, but instead would have been "symptomatic almost immediately." Keating testified at trial that when he arrived at the apartment on June 24, R.W. was in the children's bedroom watching television, appeared to be "fine," and acted normal. Keating testified that he saw a red mark on R.W.'s cheek but did not see any bruises on R.W.'s face or a "black eye." He further testified that he did not see any bruises on R.W.'s body. He admitted, and surveillance video from the apartment complex confirmed, that Gaspar left him alone with the children for about 90 minutes, between 8:00 p.m. and 9:30 p.m.
Keating testified that even after R.W. fell off the bed, R.W. was conscious, not crying, and "looked like he wanted to keep watching TV." According to Keating, R.W. walked into the living room and sat in the chair. It was only sometime after Keating went back outside to smoke that he noticed R.W. "wasn't looking too good . . . [and] eventually ended up falling on the floor," vomiting. Thus, it is clear from Keating's own testimony that R.W. was not injured at the time Gaspar left him alone with Keating, and that R.W. was injured during the time he was left alone with Keating.
Furthermore, Keating's explanation of how and where R.W. was injured changed over time. Keating testified at trial that while he was outside smoking and drinking, he heard a "thud" from inside the apartment. When Keating went inside, he found R.W. lying on the floor of the children's bedroom. In contrast, Officer McNall testified that Keating recounted on the evening of June 24, that he had been in the master bedroom when he heard a "loud thump" from the living room, and when he came into the living room, he saw R.W. on the floor.
"[T]he verdict will withstand a sufficiency challenge as long as the combined and cumulative force of all the circumstances permits the conclusion that the jury was rationally justified in finding the defendant guilty of each element of the crime beyond a reasonable doubt." Williams v. State, 294 S.W.3d 674, 683 (Tex. App.- Houston [1st Dist.] 2009, pet. ref'd) (holding evidence was sufficient in injury to child case when medical examiner testified that child's injuries could not have occurred as defendant described and were sustained by violent physical abuse at time when defendant was alone with child). Injury to a child cases particularly depend on circumstantial evidence because "there is rarely direct evidence of exactly how the child's injuries occurred." Id. "Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time [his] injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies." Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd).
The jury would have been rationally justified in concluding that Keating caused the injury to R.W. as a basis for felony murder given the testimony that R.W.'s injuries were not consistent with a fall, that R.W. would have been "symptomatic almost immediately," and that Keating was the only adult in the house at the time R.W. sustained his injuries. See id. at 139-141 (holding evidence was sufficient to support conviction for felony murder through injury to a child because expert testimony demonstrated child's injuries were more extensive than what would result from the short fall that defendant claimed occurred, the effects of child's injury would have been quickly apparent, and defendant was only adult in house at time child was injured); see also Gutierrez v. State, No. 01-15-00490-CR, 2016 WL 929215, at *3 (Tex. App.-Houston [1st Dist.] Mar. 10, 2016, pet. ref'd) (mem. op., not designated for publication) (holding evidence sufficient to support conviction for felony murder through injury to child because witness testimony demonstrated that child likely suffered fatal injuries when he was alone with defendant, child was acting normal before he was left alone with defendant, and defendant was the only adult with child at time child became unresponsive). Further, Keating's inconsistent and changing narrative as to how and where R.W. was injured is additional circumstantial evidence of guilt. See Bearnth, 361 S.W.3d at 140-41 (holding defendant's changing narrative as to how child was injured was further circumstantial evidence of guilt); Kemmerer v. State, 113 S.W.3d 513, 515 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (holding jury could view evidence child's injury required more force than defendant's explanation of short fall and defendant's changing explanations as evidence of guilt).
We therefore hold the evidence is sufficient to support Keating's conviction for felony murder through injury to a child. See Williams, 294 S.W.3d at 683; Bearnth, 361 S.W.3d at 141. We overrule Keating's second issue.
Conclusion
We affirm the judgment of the trial court.