Michael David Lewis v. The State of Texas--Appeal from 238th District Court of Midland County

Opinion filed March 22, 2007

   In The

   Eleventh Court of Appeals

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   No. 11-05-00301-CR

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MICHAEL DAVID LEWIS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR 30,418

O P I N I O N

The jury found Michael David Lewis guilty of the capital murder of Jacob Christopher Lee Sinclair, a nine-month-old child. The trial court sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction in two issues. We affirm.

Standard of Review

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

The Evidence

The deceased baby=s mother, Jena Rene Sinclair, testified that she began dating appellant in June 2004 when Jacob was approximately five months old. She stated that Jacob and appellant seemed to get along well when they initially began dating but that their relationship started to deteriorate over time. Jena testified that she observed appellant becoming irritated with Jacob in August 2004. She related incidents where appellant scolded her for paying too much attention to Jacob. She also observed Jacob resisting having contact with appellant.

Appellant and Jena had planned to move into a trailer on November 1, 2004, along with Jacob. They were unable to move into the trailer on that date, however, because of a problem with the utilities at the trailer. They eventually moved into the trailer on Friday, November 5, 2004. It appeared that Jacob had a cold when he woke up on Saturday, November 6, 2004. Jena testified about an episode wherein appellant became agitated by Jacob=s crying on Saturday. Appellant brought Jacob into the bedroom where she was located, placed him on the floor, and then slammed the bedroom door.

On the morning of Sunday, November 7, 2004, Jena and appellant took Jacob to church with them. Jacob still seemed to have a bit of a cold on Sunday. Jena and appellant dropped Jacob off at the church nursery, but they were requested by the nursery to retrieve him before the end of the church service because he was fussy. After they returned to the trailer, Jena gave Jacob a bath and then laid him down for a nap. Appellant also laid down for a nap at this time. Jena attempted to do some laundry, but the washing machine at the trailer was not operating properly. She asked appellant to look at the washer. She reported that he appeared agitated by the situation.

While appellant looked at the washer, Jena stepped out of the trailer to smoke a cigarette. Jena heard Jacob crying loudly soon after she stepped outside of the trailer. Upon opening the door of the trailer to check on Jacob, Jena observed appellant holding Jacob. She also observed that Jacob was still crying. After appellant told Jena that he would take care of Jacob, she closed the door to the trailer and remained outside. She soon heard appellant scream, AJena, come here.@ She found appellant sitting in a chair holding Jacob=s limp body. Appellant told her, AI don=t know what=s going -- I don=t know what happened. It=s just like he went to sleep.@ Appellant and Jena immediately transported Jacob to Midland Memorial Hospital. On the trip to Midland Memorial, appellant told Jena, AI didn=t do anything, I promise.@

Appellant did not testify at trial. However, Deputy Steve Skaggs of the Midland County Sheriff=s Department testified that appellant gave the following oral recitation of the events that transpired:

Mr. Lewis advised that they were B that he and Ms. Sinclair were at their home with the baby and that the baby started crying and that he went in to get the baby, try to get it to quit crying, and that Ms. Sinclair was outside smoking a cigarette and that he brought the baby back into the living area and sat down. He did tell us that the baby is very attached to the mother and throws a fit whenever she=s not around, and so at one point, the mother came back into the house and Mr. Lewis advised her that everything was okay, he was taking care of it and so she went back outside. The baby continued to throw a fit, and at one point, the baby was moving around, and at some point while he was holding the baby, their heads bumped together, and so he was going to put the baby down on the couch, and there=s a wood partition between the seats on the couch, and so he was trying to clear off a place to put the baby and the baby slipped out of his hands or fell and hit his head on the wood partition at that point.

Appellant subsequently gave a recorded statement to deputies. Appellant=s recorded statement tracks the oral statement reported by Deputy Skaggs. In the recorded statement, appellant estimated the distance of Jacob=s alleged fall to the wooden portion of the couch to be two feet.

The health-care providers that treated Jacob at Midland Memorial determined that his condition was grave. They transferred him to Cook Children=s Hospital in Fort Worth by air ambulance. Jacob died at Cook on November 8, 2004, after the physicians that treated him there declared him Abrain dead.@ Dr. Angel Hernandez, a pediatric neurologist who treated Jacob at Cook, testified that he died as a result of non-accidental, blunt force trauma to the brain. He based his conclusion that the cause of death was not an accident because a simple fall would not have created the type of life threatening brain injuries that Jacob suffered. Dr. Hernandez specifically testified that a fall of two to three feet onto the wooden portion of the couch would not have caused the severe brain injury that Jacob suffered. He further testified that Jacob would have become unconscious almost immediately after the infliction of the severe blunt force trauma.

Dr. Mark Andrew Krouse is the pathologist who performed the autopsy on Jacob=s body. He agreed with Dr. Hernandez in his assessment of the severe and non-accidental nature of the fatal head injury that Jacob suffered. He also testified that Jacob would have become unconscious almost immediately after the injury. Dr. Krouse further testified that he observed thirty-five to forty bruises on Jacob=s body.

Analysis

Appellant argues that the evidence is legally insufficient to support his conviction because of the absence of direct evidence regarding the manner in which he allegedly inflicted the fatal injury. In making this argument, he contends that the State should have offered testimony from a grand juror to support the allegation in the indictment of an unknown manner and means. We disagree. When the evidence is inconclusive regarding the instrumentality that caused the death, it is not necessary for the State to put into evidence testimony that the grand jury used due diligence in attempting to ascertain the manner and means by which the murder occurred. See Hicks v. State, 860 S.W.2d 419, 425 (Tex. Crim. App. 1993). The evidence as to how appellant may have caused the fatal blunt force trauma to a nine-month-old baby while the two of them were alone was inconclusive.

The evidence reflects that Jacob became unconscious when he was in appellant=s care. The testimony of Dr. Hernandez and Dr. Krouse established that Jacob would have become unconscious almost immediately after the fatal injury was inflicted. Their testimony also ruled out the possibility that the fatal injury occurred as a result of an accident. Dr. Hernandez specifically rejected appellant=s account of dropping Jacob onto the wooden portion of the couch as the cause of Jacob=s severe head injury. Reviewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Appellant=s first issue is overruled.

Appellant bases his factual sufficiency challenge on the opinion nature of the physicians= testimony and the evidence that he never injured his own children. Contrary to appellant=s characterization, the testimony from Dr. Hernandez and Dr. Krouse was compelling. Furthermore, the evidence regarding how appellant interacted with his own children had little, if any, relevance to his conduct with Jacob. We conclude that the evidence supporting appellant=s conviction was not so weak that the verdict was clearly wrong and manifestly unjust. Furthermore, the verdict was not against the great weight and preponderance of the conflicting evidence. Appellant=s second issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 22, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.