No. 01-06-00946-CR
Opinion issued February 7, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1053411.
Panel consists of Justices TAFT, KEYES, and ALCALA.
TIM TAFT, Justice.
A jury convicted appellant, Bartholomew Antonio Guzman, of causing serious bodily injury to a child and, having found true the enhancement paragraphs alleging two prior convictions for burglary of a habitation, assessed his punishment at 90 years' confinement. See TEX. PEN. CODE ANN. § 22.04 (Vernon 2003 and Supp. 2007). We determine whether the evidence is factually sufficient to prove that appellant committed the offense. We affirm.
Facts
E.A. was 17 months old when she was left at home in appellant's care. E.A.'s mother, Susan Bravo, had taken one of appellant's children and one of her own ice-skating, leaving E.A. and appellant's 18-month-old daughter with appellant. Unhappy that she was not allowed to go ice-skating, E.A. cried when Bravo and the others left. E.A. could walk, talk, breathe, eat, and play like other normal toddlers when Bravo left. When Bravo returned home around 10:00 p.m., appellant informed Bravo that E.A. was sleeping, but had fallen in the tub earlier in the night. Appellant took E.A. out of her room and brought her to the room that he shared with Bravo. Bravo noticed a red mark on E.A.'s head and noted that E.A. was "snoring heavily." Bravo did not try to wake E.A. Bravo then showered, and appellant returned E.A. to her room. Bravo considered appellant's behavior in taking E.A. out of her room while she was sleeping unusual because he had never done that before. Appellant also professed his love to Bravo for the first time that night. Before leaving for work the next morning, appellant asked Bravo if she had checked on the children during the night. He also called 20 minutes after leaving to ask about E.A. Bravo stated that E.A. was not yet awake, but that she would probably take her to the doctor because of the fall in the bathtub the previous night. Appellant told Bravo not to take E.A. to the doctor because Child Protective Services would become involved. Appellant called again about 40 minutes later and asked about E.A. Around that time, E.A's older sister, J.A., tried to wake E.A., but was unable to do so. After trying to arouse E.A. several times, J.A. saw E.A. having what may have been a seizure. A short time later, Bravo called 9-1-1. The paramedics could not get E.A. to respond to verbal stimuli. The paramedics noted multiple injuries, including those to E.A's forehead, right foot, back, and buttocks. After examining E.A., Dr. Len Tanaka diagnosed her with left subdural hemorrhage, or bleeding on the left side of the brain. Dr. Tanaka concluded that, in addition to the injuries noted by the paramedics, E.A. had bruising to her neck, her pelvic region, her perineal, and her genitals and had suffered permanent brain injuries caused by severe and forceful shaking. As a result, E.A. now requires artificial help to breathe and to eat. Dr. Tanaka testified that E.A. would have shown the effects of being violently shaken immediately. Dr. Tanaka's diagnosis was further confirmed by Dr. Helen Hittner, a pediatric ophthalmologist, who testified that E.A. suffered retinal hemorrhaging that was caused by a violent back and forth motion, or intentional shaking. While in jail, appellant sent multiple letters to Bravo in which he professed his love and his intent to marry her. Appellant repeatedly asked Bravo to give him another chance and to forgive him. He wrote, "I ask God everyday to let you forgive me." Appellant never indicated for what he sought forgiveness. Factual Sufficiency
In his sole point of error, appellant contends that the evidence was factually insufficient to prove that he committed the offense of intentionally or knowingly causing serious bodily injury to a child. Appellant does not contest the fact that E.A. suffered serious bodily injury; rather, appellant claims that he did not cause the injury. A. Standard of Review
In evaluating factual sufficiency, we consider all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). We set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Rather, before concluding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. We must also discuss the evidence that most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). B. Sufficiency of the Evidence
Bravo and J.A. testified that E.A. was not injured when they left to go ice-skating around 6:00 in the evening. E.A. was crying and asking to go with them, but could walk and talk normally. Based on testimony that E.A. was never seen conscious again, that E.A. did not wake up when appellant carried her about the house, that the house remained silent throughout the night, and that J.A. could not wake E.A. the next morning, the jury could have made a reasonable deduction that E.A. suffered the traumatic event that caused her severe injuries during the time that Bravo and the children were ice-skating and E.A. was left in appellant's sole care. Appellant contends that evidence of his "mere presence" at the time that E.A. sustained the injuries should not suffice to establish his guilt. However, appellant acknowledges that the case law is "replete with holdings that when an adult defendant has had sole access to a child at the time its [sic] injuries are sustained, the evidence is sufficient to support a conviction for injury to a child." See Bryant v. State, 909 S.W.2d 579, 583 (Tex.App.-Tyler 1995, no pet.); Butts v. State, 835 S.W.2d 147, 150-51 (Tex.App.-Corpus Christi 1992, pet. ref'd). The medical evidence showed that the injuries to E.A. would have been immediately apparent and that those injuries were the result of intentionally forceful shaking. When Bravo left for ice-skating, E.A. was crying, talking, and walking. Bravo never again saw E.A. in a state physically capable of those things. Additionally, appellant's unusual behavior in carrying E.A. around the house and repeatedly calling from work to check on her, which he never otherwise did, and his requests for forgiveness, albeit vague, written to Bravo from jail support an inference of guilt. See Yost v. State, 222 S.W.3d 865, 876 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (explaining that, although proof of motive or of request for forgiveness is not required, these are significant circumstances indicating guilt). Appellant contends that testimony that E.A. fell down the stairs approximately 10 days before she exhibited the severe injuries renders the evidence contrary to the verdict. Appellant suggests that Bravo's testimony that E.A. "was not okay" and "was very quiet" after the fall should undermine confidence in the jury's verdict. However, appellant told investigators that E.A. acted normally after her fall down the stairs, exhibiting no injuries other than a sprained ankle. Furthermore, the medical evidence is uncontradicted that the injuries that E.A. exhibited when the ambulance arrived were immediately symptomatic and could not have been sustained 10 days prior. Appellant testified that E.A. and his daughter played, ate, bathed, and went to sleep without incident on the night that she was left alone in his care while Bravo and the others went ice-skating. Appellant contradicted much of Bravo's testimony regarding what occurred after she returned from skating and the next morning. Appellant denied that he disciplined his own children by whipping and kicking, contrary to Bravo and J.A.'s testimony. Appellant denied ever shaking E.A. The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n. 5 (Tex.Crim.App. 1997). The jury is free to accept some testimony over that of other witnesses, including that of the defendant, and to disregard any inconsistencies. Glockzin v. State, 220 S.W.3d 140, 147 (Tex.App.-Waco 2007, pet. ref'd); see also Perez v. State, 113 S.W.3d 819, 838B39 (Tex.App.-Austin 2003, pet. ref'd). As an appellate court, we must avoid re-weighing the evidence and substituting our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998); see Wilson v. State, 863 S .W.2d 59, 65 (Tex.Crim.App. 1993); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). We defer to the jury's implicit findings. The State's evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient. We hold that factually sufficient evidence supports the verdict. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.