Timothy Wayne Towery v. The State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed July 26, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00078-CR

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TIMOTHY WAYNE TOWERY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 21,888-A

  O P I N I O N

Timothy Wayne Towery appeals his conviction by a jury of the offense of injury to a child, O.J. The trial court assessed his punishment at twenty-five years in the Texas Department of Criminal Justice, Institutional Division. Towery contends in two issues that the evidence is legally and factually insufficient to prove that he intentionally and knowingly caused serious bodily injury to a child because there is insufficient evidence to prove intent. We affirm.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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, 319 (1979). 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.

Carla Early testified that she is in her seventeenth year as a caseworker with Children=s Protective Services. After receiving a report to go to the home of Roblyn Dannette Jackson, with whom she had previously worked, Early observed numerous injuries to O.J., Jackson=s son. Early took O.J. to her office and made photographs of his injuries. Several of the photographs showing injuries to O.J.=s side, back, scalp, face, and neck were admitted into evidence. She indicated that she had never seen anything like it before. She stated that, after she contacted police, Detective Brian Trail was assigned to the investigation.

BrianTrail testified that he is a detective with the Abilene Police Department who is assigned to the Child Advocacy Center to investigate crimes against children. He said that, after being assigned to investigate Jackson and Towery, he observed and operated recording equipment while a forensic interviewer interviewed O.J. and K.J., Jackson=s two children. Detective Trail indicated that, after observing the interview with the children, he talked to Towery, who gave him a written statement. In the statement, Towery acknowledged disciplining O.J. for eating too much peanut butter at one time and for turning on the gas stove. He said that he struck O.J. from ten to twelve times with a red cable. He admitted that he had hit O.J. on the back and legs with the red cord and that he had disciplined O.J. with a belt. In the statement, Towery insisted that he was not trying to bruise O.J. like that and never wanted that to happen.

Several pictures that Detective Trail identified as photographs he made of O.J. were admitted into evidence. Detective Trail said that he had been doing this kind of work for more than two years and that he had never seen a child injured like this before. On cross-examination, Detective Trail acknowledged that O.J. had said that the injury to his head was from a child pushing him down.

O.J. testified, raising his shirt so that the jury could observe the injuries on his back. He said ATim@ had done that to him. He stated that ATim@ did not stop when he cried or when he begged him to stop.

Dr. James Morrison testified that he is an emergency room physician at Hendrick Trauma Center. He indicated that O.J. was brought in so that he might evaluate the injuries he had sustained. He stated that O.J. had numerous abrasions and whelps of varying ages across his back and flanks. He expressed his belief that O.J. had serious bodily injury, significant permanent scarring that was still present at the time of trial. Elaborating, he said that O.J. had serious permanent disfigurement and that he would always have significant scarring. He also indicated that spanking with the red cord or cable wrapped around one=s hand would be consistent with the injuries he had observed on O.J.=s backside. According to Dr. Morrison, the injuries had the potential for causing serious risk of death. On cross-examination, Dr. Morrison acknowledged that he did not have personal knowledge as to how the injuries occurred. On redirect examination, he said that the injuries appeared to be of varying ages that would be consistent with potentially an ongoing problem.

Jackson identified Towery as her husband. She said that she told Detective Trail in a written statement that she and Towery had spanked O.J. and her daughter before. She indicated in the statement that Towery spanked O.J. more than she did because she could not handle chasing him down, fighting with him, and Ahim kicking me@ because she was seven and one-half months pregnant. She related that she sought Towery=s help in disciplining her children but that he was reluctant to do so because they were not his biological children. She said that, after spanking the children, Towery would hug on them and cry with them.

Jackson testified that she started spanking the children with a belt because spanking without it hurt her hand. She said that Towery spanked them with a belt and that both she and Towery had spanked O.J. on his leg, arms, and torso. She insisted that Towery did not purposely do it but that it happened when O.J. was running or hiding. She stated that the intention was to spank the children on their butt. She related that she had spanked O.J. with the red cable three or four times but had only seen Towery spank him once with it. She identified the marks on O.J. as having come from her and Towery spanking him. She insisted that after the whelps occurred when Towery used the red cord the first time, Towery did not whip O.J. again after he saw them. She said that Towery did not intend to do this and that he is not a mean or evil person.

On cross-examination, Jackson acknowledged that she had told the prosecutor that she did not take the children for any kind of medical treatment because she did not want them to feel like they were being pampered. She denied that Towery had struck O.J. ten times while she watched. She acknowledged that there were no marks on O.J.=s rear end. She further acknowledged that the children did not have the scars when they were picked up before Towery came into their life and that they had never been beaten like that before Towery came into their life.

Early, when recalled as a witness, testified that, at the time of her intervention in this case, she had known Jackson for quite a period of time and had never noticed any injury to either child until that time. She indicated that Jackson, rather than showing any remorse for O.J.=s condition, suggested that it was the fault of Children=s Protective Services that she could not do the discipline she needed to do on her kids. We hold that the evidence is legally and factually sufficient to support the conviction.

Towery contends that the evidence is insufficient because it does not show that he intentionally and knowingly caused O.J.=s injuries. His contention appears to be based upon a suggestion that Jackson was the instigator of punishing the children and upon testimony from him and Jackson that he did not mean to inflict the injury on O.J. that he inflicted.

Proof of a defendant=s culpable mental state is almost invariably proven by circumstantial evidence. Morales v. State, 828 S.W.2d 261, 263 (Tex. App.CAmarillo 1992), aff=d, 853 S.W.2d 583 (Tex. Crim. App. 1993). With respect to intent, the jury is called upon to review all the evidence and may reasonably conclude from the circumstantial evidence that the requisite mental state existed, which may be inferred from acts, words, or conduct. Id. The jury, having heard Towery=s admission that he inflicted the injuries suffered by O.J., was not required to believe Towery=s assertions that he did not intend to inflict the injuries. Id. We overrule issues one and two.

The judgment is affirmed.

PER CURIAM

July 26, 2007

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

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.