No. 13-05-183-CR
Memorandum Opinion Delivered and Filed July 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 36th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Elisa Ann Chapa, was charged with intentionally or knowingly causing serious bodily injury to her youngest daughter (victim) by burning said child with a hair iron and alternatively charged with recklessly causing serious bodily injury to the victim by burning said child with a hair iron. See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). A jury found appellant guilty of intentionally or knowingly causing injury to a child. The jury sentenced appellant to seven years' confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $5,000. By two issues, appellant contends the evidence was factually and legally insufficient to support her conviction. We reverse and remand for a new trial.
I. Background
On May 19, 2004, appellant brought the victim to Sinton Pediatric Clinic with a complaint of burns the child received on the back of her left thigh and calf. Appellant told the physician assistant that she had been in the bathroom and heard the victim start crying, then ran to the bedroom, found the child hunched over with a blanket around her legs, and found that she had been burned to the back side of her leg by a hair straightener. The victim was sent to Driscoll Children's Hospital because of the physician assistant's suspicions about how the burns occurred. In Driscoll's emergency room, the victim was seen by Sivakumar Padmanabhan, M.D., Valerie Curiel, a social worker on the Child Abuse and Resource Evaluation team, and a forensic nurse examiner. Curiel spoke with appellant and her husband about what had happened. Curiel did not interview the victim at that time because she was nonverbal. Appellant maintained the story that she had told previously to the physician assistant at the pediatric clinic. Curiel examined the child's medical history and found a previous burn injury that appellant said occurred a few months before when the victim was jumping on the couch and either jumped off or fell off the couch and landed on the curling iron. After conferring with the nurse and doctor, Curiel decided to contact law enforcement and the Texas Department of Family and Protective Services (CPS) to investigate. Leo Martinez, an investigator for the Sinton Police Department, and Robin Arnold, a CPS caseworker, were called to Driscoll on May 19, 2004 for investigation of the injuries to the victim. When asked how the victim received the burns, appellant maintained the same story. Later that day, Martinez and Arnold met with appellant and her husband at their residence to observe the site where the injury occurred, take photographs, and attempt to recreate the accident. Appellant was subsequently indicted and found guilty of injury to a child. II. Sufficiency of the Evidence
By two issues, appellant argues the evidence was factually and legally insufficient to support her conviction. A. Standard of Review 1. Legal Sufficiency
In a legal sufficiency review, we consider all of the properly or improperly admitted evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003) (en banc); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct 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 restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. 2. Factual Sufficiency
In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000) (en banc). We must determine whether, considering all of the evidence, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support a finding of guilt beyond a reasonable doubt. Id. Second, weighing the evidence contrary to the verdict against the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. When reversing for factual insufficiency, we must detail all the evidence relevant to the issue and clearly state why the jury's finding is either factually insufficient or is so against the great weight and preponderance of the evidence that it is manifestly unjust. Johnson, 23 S.W.3d at 9 (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex. 1994)). Under both standards, "the jury is the exclusive judge of the credibility of witnesses and of the weight to be given to testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (en banc) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)); see TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979). B. Analysis 1. Legal Sufficiency
In her second issue, appellant contends the evidence is legally insufficient. More specifically, appellant argues that the evidence is legally insufficient to support the finding of two elements of the offense: 1) that it was appellant that committed the offense and 2) that appellant acted intentionally or knowingly. In order to prove that appellant committed the offense she was found guilty of under section 22.04(a)(1) of the Texas Penal Code, the State had to prove that appellant intentionally or knowingly caused serious bodily injury to the victim. See TEX. PEN. CODE ANN. § 22.04(a)(1) (Vernon 2003). Section 22.04 is focused on the result of the suspect's conduct which means that, under said statute, a person acts intentionally when it is her conscious objective or desire to cause serious bodily injury to a child and a person acts knowingly when she is aware that her conduct is reasonably certain to cause serious bodily injury to a child. Beggs v. State, 597 S.W.2d 375, 377 (Tex.Crim.App. 1980); see Tex. Pen. Code Ann. § 6.03 (Vernon 2003). Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). Here, appellant testified that she had used the hair iron but was not sure whether she left it on or left it off on the day that the injury occurred. We conclude that, from appellant's testimony, the jury was permitted to infer that appellant, herself, left the hair iron on after using it the morning of the incident. The State, relying on Morgan v. State, 692 S.W.2d 877 (Tex.Crim.App. 1985), argues that the victim's previous injury is evidence that appellant harbored a guilty intent, intentionally or knowingly, in relation to the victim's subsequent injury. In Morgan, the defendant's conduct was capable of both an innocent and a criminal interpretation, and the doctrine of chances was used to prove that the criminal explanation was more likely. Id. at 882. The doctrine of chances permits the jury to infer intent or knowledge based on previous similar injuries. See id.; Estelle v. McGuire, 502 U.S. 62, 68 (1991). Here, there was a previous similar injury sustained by the victim. Both injuries occurred while appellant was the only adult caring for the victim, both injuries were burns to an inner thigh, and appellant claims that both injuries happened accidently when the victim fell onto a hot curling iron or hair straightener. We conclude that evidence of the single previous injury sustained by the victim under similar circumstances permitted the jury to infer that appellant acted intentionally or knowingly in the alleged offense. See Morgan, 692 S.W.2d at 881; see also Estelle, 502 U.S. at 68; Robbins v. State, 88 S.W.3d 256, 267-68 (Tex.Crim.App. 2002). In addition, the State relies on the medical witnesses' testimony to establish the requisite mental state of appellant. Jerry Lynch, the physician assistant, testified that he was concerned as to the number of burns on the victim's leg and that he was somewhat suspicious and uncertain as to how they could have happened accidentally. Dr. Padmanabhan testified that the burns on the victim's leg were in an unusual site for an accidental injury. His official diagnosis was "second degree burns to the left inner thigh, possibly non-accidental trauma." Although the medical witnesses did not conclusively establish that the injury was non-accidental, we conclude that testimony of the possibility that the injury was not an accident permitted the jury to infer that the victim was intentionally or knowingly injured. See Jackson, 443 U.S. at 319. Furthermore, the investigating officer testified that he was unable to recreate an accidental occurrence based on appellant's description of the incident. The officer testified that based on the location where appellant said she plugged in the hair iron, he could not make the hair iron fall to the same location where appellant said she found the victim entangled with the blanket and hair iron. Because the jury is the exclusive judge of the credibility of witnesses and is permitted to draw reasonable inferences from the evidence, Jackson, 443 U.S. at 319, we conclude that the jury could have inferred that the injury was not an accident and the victim was intentionally or knowingly injured. Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have 1) found that it was appellant that committed the offense and 2) inferred the requisite mental state, be it intentionally or knowingly, essential to the commission of the offense for which appellant was found guilty. Therefore, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's second issue. 2. Factual Sufficiency
In her first issue, appellant contends the evidence is factually insufficient. More specifically, appellant argues that, assuming that the burns were of criminal origin and not the result of an accident, the State did not prove that appellant was the perpetrator. The record does not reflect whether appellant was found guilty of injury to a child by failing to unplug the hair iron or actually pressing the hair iron against the victim's leg. Under either theory we conclude the evidence is factually insufficient to support a finding of guilt beyond a reasonable doubt. The evidence supporting the verdict on the theory that appellant, herself, injured her child by leaving the hair iron on all day includes the following: on the day the injury occurred, appellant used the hair iron before 8:00 a.m.; the victim had a previous similar injury; and appellant did not want to take the victim to the hospital right away because she was afraid of CPS getting involved. The injury occurred at approximately 8:00 p.m. There is no evidence that appellant left the hair iron on after using it that morning, or, if she did leave it on, that appellant knew she had done so. There were approximately twelve hours between appellant using the hair iron and the victim getting burned. The fact that the victim had sustained a previous similar injury provides no evidence about what occurred the day the victim sustained the injury in question. The fact that appellant was afraid CPS might get involved does not explain who had access to the hair iron throughout the day the injury occurred. Without additional direct or circumstantial evidence that appellant left the hair iron on knowing the child could be injured, the evidence supporting this theory, considered alone, is too weak to support a finding beyond a reasonable doubt that appellant, herself, intentionally or knowingly injured the victim. The evidence supporting the verdict on the theory that appellant injured her child by pressing the hair iron against the victim's leg includes the following: medical witness testimony that the burns were possibly non-accidental because there were separate burns and they were in an unusual site for an accident; appellant's reluctance to bring the victim to the hospital; the victim's prior injury; the police officer's testimony that he could not recreate the accident; the social worker's assessment that CPS and law enforcement needed to be notified; the fact that appellant was the only adult at home with the victim at the time the burns were sustained; and the police officer's testimony that appellant changed her story from being in the bathroom at the time of the injury to being near the bedroom door. The State offered no evidence that appellant was in the room at the time the victim was injured. The medical witness testimony only shows that the injuries were possibly not the result of an accident. Appellant's reluctance to bring the victim to the hospital shows that appellant recognized the severity of the burns but is not evidence that appellant inflicted the burns on the victim. The victim's prior injury does not establish that appellant pressed the hair iron to the victim's leg. The fact the appellant was the only adult in the apartment when the victim sustained the injury is not specific enough to establish appellant's presence in the bedroom with the victim when she was burned. Appellant testified she was outside of the bedroom. The social worker's assessment as well as the police officer's inability to recreate the accident do not establish that appellant, herself, burned the victim. Without additional direct or circumstantial evidence that appellant was in the room when the victim was burned or that appellant, herself, burned the victim, the evidence supporting this theory, considered alone, is too weak to support a finding beyond a reasonable doubt that appellant, herself, intentionally or knowingly injured her child by pressing the hair iron against the child's leg. Thus, we conclude that the evidence is too weak to support a finding of guilt beyond a reasonable doubt, and therefore, is factually insufficient. We also conclude that the verdict of guilt was clearly wrong and manifestly unjust. We sustain appellant's first issue. III. Conclusion
Accordingly, we reverse and remand for a new trial.