Nahidmobarekeh v. State

Full title: BEHROUZ NAHIDMOBAREKEH, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 22, 2006

Nos. 05-05-01528-CR, 05-05-01529-CR (Tex. App. Aug. 22, 2006)

Opinion

Nos. 05-05-01528-CR, 05-05-01529-CR

Opinion Filed August 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-55157-T F05-55158-T. Affirmed.

Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

A jury convicted Behrouz Nahidmobarekeh of two counts of tampering with a consumer product and assessed punishment at five years' confinement and a $3000 fine in each case. See Tex. Pen. Code Ann. § 22.09(b) (Vernon 2003). On appeal, Nahidmobarekeh argues the evidence is legally insufficient to support the convictions. We affirm the trial court's judgments.

Background

Customers of a Dallas grocery store began complaining about a foul odor on fresh-baked breads and cookies in the store's self-serve bakery section. One of the bakery section employees testified there appeared to be a brown powder substance on the baked goods that smelled like fecal matter. She said that on about eight different occasions, the employees had to throw all the baked goods away and clean the trays and display cases with bleach. On the last occasion, this employee saw a customer in the bakery section throw a brown powder substance on fresh-baked bread and cookies. She notified her supervisor, who in turn notified the store's loss prevention manager. Appellant was confronted and detained until Dallas police officers arrived. Appellant gave a statement in which he confessed that he took his feces, dried it in the sun, grated it into fine pieces, and sprinkled it on the store's baked goods on two separate occasions because the store's employees were rude to him. Tests conducted on two of the store's fresh-baked rolls were negative for the presence of salmonella, listeria, and the most common toxic form of E. coli, and positive for the presence of gram-positive cocci, a bacteria that can come from hands or fecal matter. The gram-positive cocci was not further tested to determine its source.

Standard of Review

When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000).

Applicable Law

To convict appellant on the charge of tampering with a consumer product, the State had to prove beyond a reasonable doubt that appellant (1) knowingly or intentionally (2) tampered with a consumer product (3) knowing it would be offered for sale to the public or as a gift to another. See Tex. Pen. Code Ann. § 22.09(b). "Tamper" means "to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury." Id. § 22.09(a)(2).

"Serious bodily injury" means 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. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2006). The code does not define "probable." When a word in a statute is not defined, we use its plain ordinary meaning. Smithwick v. State, 762 S.W.2d 232, 234 n. 1 (Tex.App.-Austin 1988, pet. ref'd) (citing Floyd v. State, 575 S.W.2d 21 (Tex.Crim.App. 1978)). "Probable" in this context means "possible, likely: probable applies to that which is so supported by evidence that is adequate although not conclusive or by reason that is worthy of belief or acceptance." Webster's Third New Int'l Dictionary 1806 (1981); see Ex parte Franklin, 72 S.W.3d 671, 676 (Tex.Crim.App. 2002) (holding that "probably resulted," for purpose of habeas corpus petitioner, meant "more likely than not") (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Discussion

In his sole issue, appellant challenges the legal sufficiency of the evidence, arguing specifically that the State's evidence showed only a "possibility" of "bodily injury" and not a "probability" of "serious bodily injury" from the ingestion of the contaminated baked goods. Appellant points out that the evidence showed the baked goods were contaminated only by gram-positive cocci, which is just as likely to come from someone's hands as from feces and unlikely to cause serious bodily injury. He argues the State's witnesses admitted that non-toxin E. coli can possibly cause bodily harm but that it is not probable that it would cause serious bodily injury. The State offered the testimony of Dr. John Carlo, Chief Epidemiologist for Dallas County Health and Human Services. Dr. Carlo testified that fecal matter contains a large number of bacteria, both good and bad, and 47,000 types of E. coli, of which about twenty are actually known to cause illness in any human that ingests it. E. coli is the bacteria that laboratories normally test for because it is specific to feces. But because it is very difficult to test for each type of E. coli, labs usually test for only the most common form known to cause illness. Dr. Carlo testified that the illnesses caused by ingestion of fecal matter are generally categorized as infections. These infections include diarrhea, ranging from mild to very serious; pneumonia; and abscesses, such as appendicitis, which are life-threatening. He also testified the severity of the illness depended in large part on the person's susceptibility to disease. The elderly, children, and people with compromised immune systems, for example, are more susceptible to these diseases than are healthy individuals. He also said the potential is there to cause anything from no effects to a very serious condition even in healthy people. The State asked Dr. Carlo whether the consumption of fecal matter by humans created a probability of causing serious bodily injury. Dr. Carlo answered, "Yes, it does. Consumption definitely does create a potential to cause bodily injury." Later in his testimony, Dr. Carlo stated, "Sure there is a probability [of serious bodily injury] anytime you have a situation, as we've known from studies of public health, that if you have fecal contamination of food, people will get sick." Appellant points out that on cross-examination, Dr. Carlo stated that "[c]onsumption of non-toxin E. coli is possibly able to cause serious illness, but not probable." But Dr. Carlo did not limit his testimony to only the E. coli found in human feces. He also testified there are "many, many different types of bacteria that are in stool" and that E. coli does not "take into account all the other bugs and things that are in stool . . . It's very difficult to actually go and test to rule out every single one of them that is going to cause disease." Appellant's expert, Dr. Paul M. Southern, Jr., professor of pathology and infectious diseases at the University of Texas Southwestern Medical Center in Dallas, agreed that "[t]here are a tremendous amount of strains and bacteria that can be found in fecal matter" and that E. coli has not "even scratched the surface" of the number of bacteria in human feces. When Dr. Carlo was asked whether anyone could deny that "with the consumption of fecal matter comes the probability of serious bodily injury," he said, "No. I don't think anyone is going to deny that." We conclude the evidence is legally sufficient to show the jury could have believed beyond a reasonable doubt that appellant's tampering with the baked goods made it probable that serious bodily injury would result. We overrule appellant's sole issue.

Conclusion

Having overruled appellant's sole issue, we affirm the trial court's judgment.