GADDIEL ALEJANDRO GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 20, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01267-CR
............................
GADDIEL ALEJANDRO GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-00685
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OPINION
Before Chief Justice Thomas and Justices Francis and Murphy
Opinion By Chief Justice Thomas
        A jury convicted appellant of injury to a child fourteen years of age or younger and assessed punishment at five years' imprisonment. In two issues, appellant asserts the evidence is legally and factually insufficient to establish he caused the child's injury. We affirm the trial court's judgment.
Background
 
        At approximately 8:00 p.m. on Friday, May 19, 2006, M.A.M., a twenty-three month old child, was brought into the emergency room at Children's Medical Center by his mother, Celia M. (Mother), and appellant, Mother's boyfriend. M.A.M. underwent emergency surgery at approximately midnight on Friday night during which Dr. Nilda Garcia, the pediatric surgeon, discovered M.A.M. had a transected, or completely severed, duodenum and that a portion of M.A.M.'s jejunum was dead. The duodenum is the first section of the small intestine after the stomach. The jejunum is the section of the small intestine following the duodenum.
        Garcia testified that when she saw M.A.M. in the emergency room, his abdomen was very distended and he was in shock. M.A.M. also had bruising on his face, back, abdominal wall, and extremities. A CAT scan showed free fluid in M.A.M.'s abdomen, which usually means what is supposed to be in the intestines is in the abdominal cavity. Garcia immediately operated on M.A.M. M.A.M. was already septic when he came into the hospital, and Garcia operated on M.A.M. a total of six times to “clean him out” and repair the injury. Garcia was unable to close M.A.M.'s abdomen for a week to ten days.
         According to Garcia, the cause of the injury was a “pretty impressive blunt trauma force.” During surgery, Garcia observed M.A.M.'s overall bruising was a “lot of bruising for one impact.” However, she was unable to determine whether there was more than one impact to the abdomen. Garcia believed something hit M.A.M.'s abdomen. She has never seen this injury before other than from a seatbelt in a high velocity automobile collision.
        Garcia testified something behind M.A.M., such as a floor or a bed, could have pinched his intestine against his spine when the force hit his stomach. The resulting pressure caused the duodenum to burst. Garcia did not believe the injury was caused by a basketball or from M.A.M. falling on a cast on his arm. The injury could have been caused by an adult male kicking M.A.M. in the stomach. It could also have been caused by a bicycle or a twelve-year old child jumping off something and landing on M.A.M.'s stomach with a knee.
        Garcia's first impression during surgery was the injury was not a new injury because there was exudate, a type of pus, on the edges of the bowel which takes between twenty-four and forty- eight hours to form. Garcia suspected the injury occurred between twenty-four and seventy-two hours before the surgery. Garcia agreed it was possible the trauma that caused the injury “really hurt” the bowel, but the bowel stayed intact for some time. However, the bowel would likely perforate within a day or a day-and-a-half of the injury. In Garcia's opinion, M.A.M. would have died if the injury was four or five days old.
        According to Garcia, M.A.M. would not have eaten following the injury. He would have vomited and had diarrhea. M.A.M. might also have been difficult to wake up, refused to eat, and acted tired after the injury occurred. In Garica's opinion, if M.A.M. ate normally on Wednesday afternoon, then he probably did not have the injury at that time. Further, if M.A.M. ate normally on Thursday morning, the injury probably had not happened. Depending on how much he ate, M.A.M. could have possibly eaten a casserole Thursday night with the injury. M.A.M. could not have tolerated a full meal Thursday night if he had the injury. Garcia testified that M.A.M. eating normally on Thursday “kind of doesn't fit with what I saw.”
        Dr. Matthew Cox, a pediatrician specializing in child abuse at Children's, examined M.A.M. Cox noted M.A.M. had multiple bruises on his head, face, arms, leg, and penis, a fracture of his right forearm, and both new and healing rib fractures. Cox spoke to both Mother and appellant. Although Mother claimed M.A.M.'s bruises were caused by falls, Cox believed there were too many bruises to be caused by M.A.M. being a “rough-and-tumble boy.” Further, Cox was concerned about the location of the bruises. Cox was given no explanation for the bruises on M.A.M.'s penis. In Cox's opinion, the bruises on the tip of M.A.M.'s penis were not due to problems with his circumcision and could have been caused by someone pinching the penis.
        In Cox's opinion, a blunt force trauma is the best explanation for M.A.M.'s abdominal injury. A hand, a foot, or some kind of object striking the abdominal wall would cause the injury. The injury could also be caused by a seatbelt during an automobile collision or from the child landing hard against another object. The injury required severe force and could not be caused by roughhousing. The injury could not be caused by a child of the same or similar age as M.A.M. or from M.A.M being hit in the stomach by a basketball. Neither Mother nor appellant provided Cox with any explanation for M.A.M.'s injury and did not give Cox a history of any trauma to M.A.M. In Cox's experience, parents are sometimes not truthful because they are trying to conceal the cause of the injury. Cox believed M.A.M. exhibited a case of “classic child abuse.”
        Cox testified M.A.M would have shown immediate signs of pain from the injury. Soon after the injury, M.A.M. would have been unable to eat because his bowel was split apart. M.A.M. would act tired and would vomit if he tried to eat. The symptoms would get worse over time. Based on the pathology slides, the injury had to have occurred at least twenty-fours before M.A.M.'s surgery. In Cox's opinion, the injury occurred one to five days before M.A.M.'s surgery. The earliest the injury could have occurred was the Monday prior to surgery and the latest the injury could have occurred was midnight Thursday.
        In response to Cox's questions about M.A.M.'s abdominal injuries, Mother told Cox that M.A.M. ate some casserole on Thursday night. Mother said M.A.M. started vomiting and acting ill on Friday. She also said M.A.M. was acting sick and was not his normal self on Friday morning. According to Cox, appellant sat with his head in his hands during the conversation. Although appellant could have been showing an emotional response to distress, his reaction was different from the reaction Cox normally sees.
        Dr. Reade Quinton, a medical examiner for the Dallas County Medical Examiner's Office, reviewed surgical pathology slides from M.A.M.'s duodenum and appendix. Quinton testified that microscopic changes occur to an injury over time as the body tries to heal. In the slides from M.A.M.'s duodenum, Quinton saw fresh hemorrhage and neutrophilic infiltrate on the outer edge of the tissue. These healing changes usually appear within the first two days following an injury. Quinton also saw a significant amount of granulation tissue formation and scattered hemosiderin- laden macrophages on the slides. These changes usually appear from three to seven days following an injury. Further, the rib fractures seen on M.A.M.'s x-rays would only show up when there had been a healing change to the ribs. This would demonstrate an older abdominal injury.
        It is possible M.A.M. had an injury that occurred within one or two days of the surgery and a second injury that occurred three to seven days before the surgery. M.A.M. could also have had one injury approximately three days before the surgery. Finally, Quinton agreed there could have been severe bruising to the intestine that caused the tissue to die and tear away over time. However, Quinton believed the injury to the jejunum was separate from the injury to the duodenum. The dead tissue in the jejunum would not cause the duodenum to tear. Further, a small perforation in the tissue would not typically lead to a complete transection of the intestine. In Quinton's opinion, a blunt force trauma between one and two days prior to the surgery caused the transection of the duodenum. Quinton has never seen this injury caused by being hit by a basketball.
        According to Quinton, it is necessary to consider the entire history to evaluate when the injury occurred. Following the injury, M.A.M. would complain of abdominal pain. Although M.A.M. could initially eat following the injury, he would have difficulty “keeping down” the food. Following the injury, M.A.M. might have had vomiting and diarrhea, been tired, and had a fever. The injury occurred between when M.A.M. last ate normally and twenty-fours before the surgery. If the duodenum was torn on Monday, Quinton would not expect M.A.M. to be alive at midnight Friday night. Further, M.A.M. would probably not have been alive Friday night if the injury occurred on Tuesday. In Quinton's opinion, if M.A.M. ate a hamburger and french fries on Wednesday afternoon and did not vomit, the injury had not occurred on Wednesday. If M.A.M. ate breakfast Thursday morning and did not have symptoms, the injury had not occurred. If M.A.M. ate dinner Thursday night and did not have symptoms, it is unlikely he had the injury.
        Mother testified she dated appellant for approximately eight or nine months before he moved in with her, M.A.M., and M.A.M's four-year-old brother, O.M., in March 2006. Mother admitted the number of bumps and bruises seen on M.A.M. at the hospital did not appear until after appellant moved in with the family. She further admitted that when M.A.M. broke his arm, only appellant, O.M., and M.A.M. were home.
        Mother stated she worked Monday, May 15th, from 9:00 a.m. until approximately 6:30 p.m. On Tuesday, Mother and the children woke up at 10:00 a.m. M.A.M. seemed healthy on Tuesday. He was eating and not vomiting. Mother worked from 1:00 p.m. until 6:30 p.m. on Tuesday.
        Mother did not work on Wednesday because she had a doctor's appointment. The children's maternal grandmother watched M.A.M. and O.M. while Mother and appellant went to Mother's doctor's appointment. Appellant and Mother picked the children up at approximately 1:00 p.m. M.A.M was healthy on Wednesday. He was eating and not vomiting.
        On Thursday, Mother worked from 9:00 a.m. until 6:45 p.m. Appellant stayed with M.A.M. and O.M. Mother cooked a casserole for dinner. The children fed themselves at a separate table. Mother testified M.A.M. ate the casserole “fine” and did not vomit. Mother left the house twice on Thursday evening for approximately five minutes each time to take invitations to M.A.M.'s birthday party to M.A.M.'s grandmother and aunt. According to Mother, M.A.M. did not complain of any pain Thursday night, did not vomit, and did not wake Mother during the night.
        On Friday morning, M.A.M. was sleepy and fussy and did not want to get out of bed. M.A.M. did not eat breakfast at home because Mother was running late. Mother's sister, Stephanie L., took the children to the babysitter's house. Appellant picked up the children from the babysitter on Friday afternoon. Around 2:00 p.m., appellant called Mother and told her M.A.M. was vomiting. When appellant picked Mother up from work on Friday evening, M.A.M. was lethargic, and Mother could tell he was really sick. After M.A.M. threw up in the car, the family went home so Mother and M.A.M. could change clothes. Mother and appellant took O.M. to his grandmother's apartment and went to Target to buy Pedialyte. Mother and appellant then took M.A.M. to Children's.         Mother does not believe appellant injured M.A.M. Mother also denied that she injured M.A.M. Mother testified O.M. told her months after the injury that on Wednesday, M.A.M. was hit in the stomach by a basketball thrown by another child.
        Stephanie L., Mother's sister, cared for M.A.M. on Monday or Tuesday. According to Stephanie, M.A.M. was fine when she watched him. M.A.M. was eating, not vomiting, and did not complain about his stomach. M.A.M. still had a cast on his arm on the day Stephanie cared for him.
        Nancy M., M.A.M.'s grandmother, testified she kept M.A.M. and O.M., on Wednesday from approximately 11:00 a.m. until 3:00 p.m. According to Nancy, M.A.M. was fine on Wednesday, ate pizza for lunch, and did not vomit. M.A.M. was not tired and did not complain about any pain in his stomach.
        Nancy thought appellant treated Mother, M.A.M., and O.M. well, and testified she had never seen appellant abuse the children. However, M.A.M. began having more bruises after appellant moved in with Mother and the children. Nancy discussed M.A.M.'s injuries with a friend who worked as a security officer at the grocery store. Although the friend told Nancy to call Child Protective Services, she did not do so.
        Lena M., Mother's sister, saw appellant care for the children. Lena testified appellant did not discipline the children. When M.A.M. had a hairline fracture to his arm, Mother and appellant brought him to the medical clinic where Lena worked to have the arm set. Appellant said M.A.M. fell off the bed. M.A.M.'s cast was removed by a doctor on Wednesday afternoon. According to Lena, M.A.M. was not complaining or vomiting on Wednesday afternoon.
        Stephanie picked up the children on Friday morning to take them to a babysitter's house. Although M.A.M. was usually happy to go with Stephanie, he cried during the entire trip that morning. Stephanie left the children with Concepcion Adame, or Concha, between 6:30 a.m. and 7:00 a.m. According to Concha and Stephanie, M.A.M. was crying and wanted to stay with Stephanie. Concha also testified M.A.M. would not stop crying throughout the day and started having diarrhea. M.A.M. did not want to eat and ate only a little jello and Cheerios. When appellant picked up the children between 2:30 p.m. and 3:00 p.m., Concha told appellant that M.A.M. had been sick.
        Appellant testified he was eighteen years old in 2006 when he moved in with Mother and the children. On Wednesday, May 17th, he did not go to work. The family had breakfast and then he and Mother took the children to their grandmother's apartment. They picked up the children after Mother's doctor's appointment. They went to Wendy's where M.A.M. ate half of a hamburger and some french fries and had a drink. A doctor then removed the cast from M.A.M.'s arm. Appellant testified he did not recall being home when M.A.M. broke his arm.
        On Thursday, the children were with appellant all day. Appellant testified he made the children “raviolis or something” for breakfast at 10:00 a.m. or 10:30 a.m. M.A.M. did not vomit after breakfast. Appellant checked M.A.M.'s diaper and saw that he was bleeding. Appellant called Mother and then bought Vaseline and gauze for M.A.M.'s penis. Appellant was responsible for toilet training M.A.M. He denied losing his temper with M.A.M. or pinching M.A.M.'s penis.
        After washing his vehicle, appellant took the children home and watched a movie. He took a nap, and the children woke him at approximately 6:00 p.m. They picked up Mother from work, ate dinner, and watched a movie. The children ate at a separate table from Mother and appellant, and appellant did not watch M.A.M. eat dinner. M.A.M did not complain, vomit, or have diarrhea Thursday evening. Mother left for a while to deliver invitations to M.A.M.'s birthday party. Appellant went to bed around 10:00 p.m.
        Appellant got up at approximately 5:00 a.m. on Friday and left for work without seeing the children. After appellant finished work at 2:30 p.m., he went to Concha's to pick up the children. Concha was not there, but her mother was watching the children. Concha's mother did not tell him that M.A.M had been sick. M.A.M. appeared tired and did not want to walk to the car.
        After appellant returned home with the children, he began watching a movie. M.A.M. started acting as if his stomach hurt. Appellant asked M.A.M. if he wanted to take a bath, and M.A.M. said “yes.” Appellant put both children in the bathtub and went to retrieve some toys. M.A.M. vomited in the bathtub while appellant was out of the room. Appellant called Mother. He then gave M.A.M. some fruit and juice, and M.A.M vomited again. Appellant called Mother again.
        Appellant and the children picked up Mother when she got off work. M.A.M vomited in the car. The family went home, and Mother changed her clothes and M.A.M.'s clothes. They took O.M. to his grandmother's house and went to Target to buy Pedialyte. They then took M.A.M. to Children's. Appellant did not think M.A.M. had a serious illness.
        Irish Burch works at the Children's Advocacy Center as the Forensic Interview Program Director. Burch interviewed O.M. on Monday, May 22nd. O.M. told Burch what he saw, and Burch believed O.M. was consistent in his statements.   See Footnote 1 
        Kim Mayfield, a detective with the Dallas Police Department child abuse unit, was called to Children's after M.A.M. was admitted into the hospital. On Monday, May 22nd, she took O.M. to be interviewed at the advocacy center. She watched Burch interview O.M. She arrested appellant later the same day. She did no further investigation other than obtaining medical information because she had all the evidence she needed.
        Alex Lopez, a child abuse detective for the Dallas Police Department, participated in arresting appellant. Lopez testified that when appellant was informed he was under arrest, appellant said “What, you have evidence?” Appellant testified that when he was arrested, he said “Why am I arrested? Do you got evidence or what?” After he was released on bond, appellant went to the Mexican Consulate. He then went to Mexico. Appellant testified he returned to the United States in less than three days because he did not want to run from something he did not do. Appellant denied hitting, kicking, or punching M.A.M.
        The jury convicted appellant of injury to a child fourteen years of age or younger and this appeal ensued.
Standard of Review
 
        In two issues, appellant asserts the evidence is neither legally nor factually sufficient to prove he caused the injury to M.A.M. In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at 517; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Laster, 275 S.W.3d at 517; Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
        When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only if (1) the evidence supporting the conviction is too weak to support the verdict, or (2) the fact finder's verdict is against the great weight and preponderance of the contrary evidence as to render the verdict clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall, 210 S.W.3d at 625. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625. We must have a “high level of skepticism about the jury's verdict” before we may reverse based on factual insufficiency. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex. Crim. App. 2009). Further, we may not reverse for factual insufficiency merely because there are “reasonably equal competing theories of causation.” Id. at 247 (quoting Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)).
        “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d at 13; see King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In a circumstantial- evidence case, it is unnecessary for every fact to point directly and independently to the defendant's guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). The standard of review is the same for cases based on direct and circumstantial evidence. Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 565.
 
Analysis
 
        Appellant argues the State did not establish beyond a reasonable doubt that he caused the injury because the medical evidence established that M.A.M. could have been injured anytime between Monday and Friday morning and M.A.M. had multiple caregivers during that time period. Appellant further asserts that, considering all the evidence, “the only reasonable deduction from the evidence is [M.A.M.] received his injury after the Appellant went to bed Thursday night and prior to him picking him up from the babysitter (Concha) on Friday afternoon.” The State did not file a brief.
        The State had the burden to prove beyond a reasonable doubt that appellant is the person who committed the crime charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.-Texarkana 2008, no pet.). Identity may be proved by direct evidence, circumstantial evidence, or reasonable inferences from such evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd).
        Garcia, Quinton, and Cox all testified the injury occurred before midnight on Thursday and was caused by blunt force trauma to M.A.M.'s stomach. Garcia and Quinton agreed the trauma could have severely bruised the intestine, causing it to die and tear over time. However, Quinton testified the dead tissue in the jejunum would not have caused the transection of the duodenum. Further, both Garcia and Quinton believed if the injury had occurred on Monday or Tuesday, M.A.M would likely have been dead by midnight on Friday night. Finally, Garcia, Quinton, and Cox testified M.A.M. would not have eaten normally following the injury.
        Stephanie, Nancy, Lena, Mother, and appellant all testified M.A.M. was fine on Wednesday. Nancy, appellant, and Mother testified that M.A.M. ate normally and did not vomit on Wednesday. Further, M.A.M. was seen by a physician on Wednesday afternoon to have the cast removed from his arm and did not receive any other medical treatment.
        Appellant was alone with the children during the day on Thursday. Appellant and Mother cared for the children Thursday evening, but appellant was alone with the children when Mother briefly left twice to deliver birthday invitations. Appellant testified M.A.M. ate normally on Thursday morning and did not vomit. Appellant and Mother testified M.A.M. ate Thursday evening and did not vomit. However, both appellant and Mother testified the children ate at a separate table, and appellant testified they were watching a movie as they ate. Further, although Garcia believed M.A.M. could have eaten some casserole on Thursday evening with the injury, M.A.M. eating normally on Thursday did not “fit” with what Garcia saw during surgery. Both appellant and Mother denied injuring M.A.M.
        Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could find M.A.M.'s injury occurred on Thursday while appellant was alone with the children. Further, the evidence supporting the conviction is not so weak or so against the great weight and preponderance of the contrary evidence that the verdict seems clearly wrong or manifestly unjust. Accordingly, we conclude the evidence is legally and factually sufficient to support the jury's determination appellant caused M.A.M.'s injury.
        We overrule appellant's two issues and affirm the trial court's judgment.
 
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
081267F.U05
 
Footnote 1 The trial court found O.M. was not competent to testify at trial based on O.M.'s failure to respond to questioning by the State and the trial court.