Opinion
No. 05-10-01321-CR
07-13-2012
JONATHAN ANDREW PEAK, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 13, 2012.
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-09-434
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
Jonathan Andrew Peak appeals his conviction for injury to a child. After finding appellant guilty and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at forty-two years in prison and a $10,000 fine. In two issues, appellant claims the evidence is legally insufficient to support his conviction and the trial court erred in denying his request for a lesser included instruction. We affirm.
Appellant claims the evidence is insufficient to support his conviction because no evidence shows Alexis Peak suffered serious bodily injury.
When addressing a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
A person commits an offense if he intentionally or knowingly causes a child serious bodily injury. Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2011). Serious bodily injury is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. § 1.07(a)(46) (West Supp. 2011). The indictment and jury charge allege appellant intentionally or knowingly caused serious bodily injury to Alexis Peak, a child 14 years of age or younger, “by shaking complainant with defendant's hands, a deadly weapon, or by squeezing complainant with defendant's hands, a deadly weapon, or by striking complainant with or against an object, a deadly weapon, the exact nature and description of which is unknown.”
Lori Peak was married to appellant and on April 19, 2009, she gave birth to twins, Alexis and Alexander. Peak returned to work on June 24; appellant, who was not working outside the home, was the babies' full time caregiver. On July 4, when Peak left for work at her usual time of 4:30 a.m., both children were fine. Later that morning, she received a text from appellant saying, “Alexis just beat me up with her head. She smacked her eye on my cheek bone.” Appellant sent a photo of Alexis from his cell phone and said she “smacked him on the face while he was burping her.” When Peak asked if he called the doctor, appellant said he did and was told to put ice on Alexis's eye where the bruising was.
Over the next two days, Alexis was unable to keep food down and was “ irritable and cranky.” Peak mentioned this to appellant who told her “you can figure it out.” Peak tried to take Alexis to the pediatrician's office but was told she could not get an appointment because she had several “NSF checks.” When Alexis had not improved by July 9, the pediatrician agreed to “fit her in somehow.” Appellant's grandmother went with Peak to the pediatrician's office where Beverly Hargrove, the pediatric nurse practitioner, examined Alexis and told Peak to take her to Children's “right away.” They took Alexis to the hospital at around “2:30, 3:00" that afternoon and learned she had subdural hematomas, two broken bones in her wrist, a broken tibia, and six broken ribs. Although Peak called appellant several times during the day, he told her he was working and would call her later. According to Peak, appellant did not seem too concerned. He arrived at the hospital around 11:30 p.m. Child Protective Services investigators came to the hospital and spoke with Peak who told them about the burping incident. After CPS spoke with appellant, he was then asked to leave the hospital.
Hargrove told the jury when she saw Alexis, she immediately noticed the bruise on her left temple. The bruise was starting to heal and was a yellowish green color. Hargrove was concerned because babies that age were not mobile and did not hurt themselves. According to Hargrove, a bruise on a three-month old gives a practitioner notice that an injury was inflicted somehow. When asked what happened, Peak said appellant had burped Alexis and she hit him with her head. Hargrove did not believe this, noting “there had to be something more to the explanation [because it] was so hard. It took a lot of force to make that bruise there.” After running blood tests, Hargrove believed Alexis had an internal bleed. Hargrove said the pediatrician's office had no record of any phone calls from appellant on July 4 and also said if he had called, they would have told him to bring the baby in the following day or take her to the hospital that same day. They would not have told him to put ice on the bruise.
Dr. Matthew Cox is board certified in pediatrics as well as child abuse pediatrics, and is the medical director for the child abuse program at Children's. Cox examined Alexis after she was admitted at Children's noting bruising on her face and casts on her right arm and leg. The imaging studies performed showed she had broken ribs and bleeding around her brain. When he asked how she received the injuries, Cox was given inconsistent reports. Peak repeated the burping incident appellant told her. In contrast, appellant told Cox he was burping Alexis and she squirmed, hitting her head on his knee. This concerned Cox because while three-month old babies might “head butt” a caregiver's head, they do not have the control or strength to cause bruising, let alone the injuries Alexis sustained.
Cox estimated the majority of rib fractures to be about five to seven days old, although one appeared to be one to two weeks old. The most likely cause of the fractures was an intentional “forceful compression” or squeezing of her chest. A three-month old baby's ribs are not fully formed and have more cartilage, making them less rigid and easier to bend. The amount of force required to fracture a baby's ribs is “well beyond routine care,” more a “violent squeezing compression” and “would be pretty obvious to the person causing the injury that it could cause harm to a child.” Cox explained that tossing a baby in the air or hugging or bundling her would not cause these injuries; he also said that, when CPR is performed on babies, it is rare to see these types of rib fractures. He noted broken ribs cause pain when there is any movement of the chest wall and would impair her breathing; he noted Alexis was tender to the touch.
Alexis also had a broken radius and ulna, two bones at the beginning of the wrist joint, as well as a broken tibia. The injuries appeared to have occurred within one to two weeks before Alexis went to Children's. According to Cox, these types of fractures are “a kind of injury that almost always is seen in the face of child abuse type events. . . meaning almost always it's caused by someone injuring the child, causing those bones to be broken in that way.” Cox termed these injuries as intentional, stating they often occur in children who have been “thrown or shaken about” violently. Cox noted that most fractures of arms and legs in babies Alexis's age do not require casting but that Alexis had such pain and tenderness, they had to immobilize her arm and leg.
Alexis also had subdural hematomas, the result of significant traumatic events that caused the surface of her brain to tear. Such traumatic events include car accidents or the violent shaking back and forth of a child. The MRI showed Alexis had both old and new blood around her brain, indicating she had “new and old traumatic injuries. . . injuries of different ages.” Cox estimated the new injury to be consistent with an event around July 4 while the older injury could have been after June 24.
Cox said Alexis's injuries were serious bodily injuries. One in four children die from traumatic brain injuries like the one Alexis sustained. Those who survive tend to have learning disabilities and seizures. In fact, Alexis had to be care-flighted back to the hospital five days after she was released because they were concerned about seizure activity. The rib fractures posed a risk to her internal organs, including bleeding or puncturing her liver or lungs which could cause prolonged loss and impairment. The broken ribs also impair breathing which placed her at risk for infection and other problems. Alexis's right arm and leg were in hard casts for “comfort and for treatment of her fractures.” The casts immobilized her arm and leg to minimize the movement and allow the bones to heal. Cox noted that it was uncommon for orthopedic doctors to actually cast such fractures unless the fractures were compound or painful. Cox said there would be protracted loss of her ability to move her leg and arm while in the casts.
CPS investigators were called to the hospital to interview Alexis's parents. They spoke first with Peak because appellant was not at the hospital. Peak called appellant and told him he needed to be interviewed. Appellant told the investigators Alexis bumped her head while he was burping her. When the investigators presented Peak and appellant with a safety plan for the twins that involved the twins staying with Peak's parents, appellant said he preferred they be placed in foster care. A few days later, appellant told CPS investigators he believed Peak's parents might have been responsible for Alexis's injuries.
In contrast, appellant's friend and family said he was a good, gentle father and was attentive to his children. His grandmother said Peak was depressed and not happy; she described Peak and Peak's mother as “violent people.” His mother remembered her jailhouse conversations with appellant but denied telling appellant he needed to “figure out how to explain these fractures, that they were just an accident.” She conceded appellant created a fictitious law firm so they could communicate without the district attorney's office or law enforcement knowing what they were discussing.
Although appellant claims no evidence establishes the injuries Alexis suffered were serious bodily injuries, we cannot agree. The record showed eleven-week-old Alexis was taken to Children's where she was diagnosed with subdural hematomas, two broken bones in her wrist, a broken tibia, and six broken ribs. The attending board certified pediatrician described her injuries as “serious bodily injuries.” He noted children with subdural hematomas had a mortality rate of 25% and that many who do survive later have learning disabilities and seizures. Although most orthopedic doctors do not cast fractures, Alexis's arm and leg were in hard casts to minimize her pain and to aid healing. Cox said there would be protracted loss of her ability to move her leg and arm while in the casts. In addition, he said her rib fractures posed a risk to her internal organs. Specifically, such fractures could cause internal bleeding or puncturing of her liver or lungs. The broken ribs also placed her at risk for infection and other problems because they impeded her ability to breathe. This medical evidence is sufficient for a jury to conclude Alexis suffered serious bodily injury. Under these circumstances, we conclude the evidence is legally sufficient to support appellant's conviction for injury to a child. We overrule appellant's first issue.
In his second issue, appellant claims the trial court erred in denying his request for an instruction on the lesser included offense of recklessly or with criminal negligence causing Alexis serious bodily injury.
We use a two-prong test to determine whether a defendant is entitled to the instructions. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). The first step requires us to determine whether the requested instruction is lesser included offense of the charged offense as defined by article 37.09 of the code of criminal procedure. Id. Appellant asserts, and the State agrees, the requested instructions (recklessly or with criminal negligence causing serious bodily injury to a child) were lesser included offenses of the charged offense (intentionally or knowingly causing serious bodily injury to a child).
The second step is whether the record contains some evidence that would permit a rational jury to find the defendant is guilty only of the lesser included offenses. Hall, 158 S.W.3d at 473. The evidence must establish the lesser included offenses as valid, rational alternatives to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). That is, there must be some evidence from which a rational jury could acquit appellant of the higher offense while convicting him of one of the lesser included offenses; in making this decision, we evaluate the evidence in the context of the entire record, but do not consider whether the evidence is credible, controverted, or in conflict with other evidence. Hall, 158 S.W.3d at 473. Mental culpability generally must be inferred from the circumstances under which an act occurs. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).
The indictment and jury charge alleged appellant intentionally or knowingly caused serious bodily injury to Alexis by shaking or squeezing Alexis with his hands, a deadly weapon, or by striking Alexis with or against an object, a deadly weapon, the exact nature and description of which is unknown. To be entitled to an instruction on the lesser included offense of recklessly or with criminal negligence causing serious bodily injury to Alexis, some evidence must have shown appellant was guilty only of acting recklessly or with criminal negligence. A person acts recklessly, or is reckless ,when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. See Tex. Penal Code Ann. § 6.03(c) (West 2011). 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).
Although appellant claims there is evidence he only acted recklessly or with criminal negligence, we do not agree. Appellant explained he was burping Alexis when she flailed and hit him with her head, and he hugged her to keep from dropping her. He later stated he did not hurt his child. This scenario, if true, does not establish he was reckless (aware of but ignored a substantial risk) or criminally negligent (should have been aware of a substantial risk). Rather, it shows he did not hurt her and was not responsible for her injuries. Appellant did not point us to evidence, and our review has found none, that would permit a rational jury to find appellant guilty only of the lesser included offenses of recklessly or with criminal negligence causing injury to a child. Under these circumstances, we cannot conclude the trial court erred in denying his request. We overrule appellant's second issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101321F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JONATHAN ANDREW PEAK, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01321-CR
Appeal from the 382nd Judicial District Court of Rockwall County, Texas. (Tr.Ct.No. 2-09- 434).
Opinion delivered by Justice Francis, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.
Judgment entered July 13, 2012.
MOLLY FRANCIS
JUSTICE