Gregory Kirk Cavanaugh v. The State of Texas--Appeal from 167th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-339-CR
GREGORY KIRK CAVANAUGH,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 93-931, HONORABLE TOM BLACKWELL, JUDGE

PER CURIAM

A jury found appellant guilty of the offense of injury to a child. 1981 Tex. Gen. Laws, ch. 604, 1 at 2397 (Tex. Penal Code Ann. 22.04(a)(1), since amended). (1) The court assessed punishment at forty years' imprisonment.

In his first point of error, appellant argues there is insufficient evidence to show that he caused serious bodily injury to the victim. In reviewing the sufficiency of the evidence to sustain the conviction, the standard of review on appeal is the same for both direct and circumstantial-evidence cases. The critical inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, 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, 318-19 (1979); McGoldrick v. State,, 682 S.W.2d 573, 577 (Tex. Crim. App. 1985). In circumstantial-evidence cases, we must also determine whether the evidence viewed in the light most favorable to the verdict excludes every reasonable hypothesis except the defendant's guilt. Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983). (2) All evidence presented, whether properly or improperly admitted, is considered. Id. Questions regarding the sufficiency of the evidence must be resolved in light of the charge which is given. Polk v. State, 749 S.W.2d 813, 815 (Tex. Crim. App. 1988).

The charge recites, in pertinent part:

 

Now, if you find from the evidence beyond a reasonable doubt, that on or about the 20th day of July, 1988, in Travis County, Texas, the defendant, Gregory Kirk Cavanaugh, did then and there intentionally or knowingly engage in conduct that caused serious bodily injury to Anthony Nelson White, a child younger than 14 years of age by causing an object unknown to the Grand Jury to impact with the head of the said Anthony Nelson White you will find the defendant guilty of the offense of injury to a child, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."

 
I. BACKGROUND

Appellant brought Cora Nelson's two and one-half year old son, Anthony Nelson White to the Brackenridge hospital emergency room at approximately 10:00 p.m. on July 20, 1988. Cora arrived shortly thereafter. (3) Anthony was in respiratory arrest and near death. Dr. Eric Levy, a board-certified pediatrician, was the emergency room resident on call the evening Anthony was brought to the emergency room. Dr. Levy provided the initial emergency treatment to Anthony. From observing Anthony's physical condition, Dr. Levy determined that the child had a life-threatening brain injury. The doctor also observed two abrasions on Anthony's forehead and a circular burn scar, consistent with a cigarette burn, on his abdomen. After stabilizing the child, Dr. Levy ordered a CAT scan of Anthony's head to determine if surgery was required. Dr. Levy then went to obtain a history from appellant and Cora to determine how Anthony had been injured.

Dr. Levy testified that appellant told him that at 9:00 p.m. that evening he had been walking up some stairs with Anthony when Anthony lost his balance and fell backwards onto the concrete stairs. Appellant picked Anthony up and observed that the child was "woozy." Appellant took Anthony back to Cora's apartment. Anthony got sleepy, became unresponsive, and was brought to the emergency room. Dr. Levy testified that, after listening to appellant's explanation of what happened, he became suspicious that Anthony had been the victim of child abuse.

In addition to statements appellant made to treating physicians, he also provided two written statements to Austin police and testified at trial. We will summarize relevant portions of appellant's statements and testimony. According to appellant, Anthony had sustained two falls prior to admission to the Brackenridge emergency room on July 20. The first fall occurred on July 17, 1988. Appellant and Anthony were walking down a flight of five or six stairs at the apartment complex where they lived when Anthony fell forward. Appellant stated that Anthony's head hit a brick wall. Anthony sustained two abrasions to his forehead as a result of this fall. (4) Appellant treated the scrapes with peroxide and an ice pack.

The second fall occurred on the evening of July 20, 1988. Between 9:00 and 10:00 p.m., appellant and Anthony were returning to their apartment from Henry Hughes' apartment (5), where Anthony earlier had spent part of the day. Prior to starting up a flight of stairs, while, "playing" with Anthony, appellant picked him up and shook him hard. Appellant stated Anthony laughed when shaken. He put the child down and they walked up the flight of stairs. Then, Anthony fell backward down the stairs. Appellant picked Anthony up. Anthony's body shook a few times and his eyes rolled back into his head. Appellant rushed the child to his apartment and into the bathroom, where he sprayed water on the boy's face in an attempt to revive him. Appellant noticed that Anthony's lips had turned blue. He began mouth-to-mouth resuscitation and he and Cora rushed to get a ride to the hospital.

 
II. EVIDENCE FAVORABLE TO THE PROSECUTION

Dr. Levy testified that appellant's version of events was completely inconsistent with his physical findings. Dr. Levy stated that the time frame was consistent with the degree and severity of Anthony's injury, that is, that Anthony had been injured at approximately 9:00 p.m. and brought into the emergency room at approximately 10:00 p.m. But the mechanism of injury was completely inconsistent with the extent of the injury. In Dr. Levy's medical opinion, Anthony suffered a very forceful and traumatic blow or injury to the head, at or about 9:00 p.m. on the date of his admission to the emergency room. Dr. Levy based his opinion on the history appellant provided, his physical examination of the child and the child's condition on admission. Dr. Levy testified it would take extreme, violent, sudden force to cause Anthony's brain injury. It was Dr. Levy's opinion that falling downstairs could not have caused Anthony's injury. Dr. Levy further stated that in child abuse cases all of the aspects surrounding the injury are accurate except for how it occurred. Dr. Levy testified that the highest probability was that the injury occurred within two hours of admission. The lowest probability was that the injury occurred eight to twelve hours earlier.

Dr. Levy also testified that he did not believe the injury was caused by multiple falls whose additive effect finally resulted in the brain injury. Nor did Dr. Levy believe that Anthony's injury was due to "shaken-baby syndrome," a phenomena in which an infant is shaken abruptly and violently, causing severe head trauma. (6)

Dr. Armando Correa is the chief pediatric resident of Children's Hospital at Brackenridge. Dr. Correa cared for Anthony after he was discharged from intensive care and continued to be Anthony's pediatrician, through the East Austin Clinic. Dr. Correa testified that he was present at the emergency room when Anthony was brought in. Dr. Correa asked appellant what happened to Anthony. Dr. Correa testified that appellant told him that Anthony was walking up a set of stairs and became limp, collapsed, and a few minutes later stopped breathing, so appellant gave him mouth-to-mouth resuscitation and rushed him to the hospital.

Dr. Correa testified that Anthony's brain lesion could have been caused only by a severe blow to the head and that it would have had to be more forceful than a fall. Dr. Correa also testified that he believed he was dealing with child abuse because the history appellant provided was not consistent with the extent of the injuries and because appellant changed the explanation several times.

Dr. Correa stated that while it was possible that Anthony suffered the injury twelve hours before being brought to the hospital, it was unlikely. Dr. Correa testified that, based on the extent of the injuries, it was more likely that Anthony was injured within one hour of being brought to the hospital. Dr. Correa also testified very little possibility exists that Anthony's injury was due to shaken-baby syndrome. Dr. Correa further testified that the injury was not the result of an accumulation of small falls and bumps on the head that finally culminated in the brain injury Anthony sustained.

Dr. Linda Norton is a forensic pathologist, a subspecialty in the general field of pathology that deals with the effects of trauma on the human body. She has investigated between 500 and 1000 child-abuse cases. Dr. Norton reviewed Anthony's medical records, the statements made by appellant and Cora, and photographs of Anthony taken at the time he was admitted to Brackenridge. Dr. Norton testified that the brain injury Anthony suffered is characteristically seen when a moving head is thrown against a stationary object. This type of injury is associated with a great deal of force. She testified that only three types of injuries exist when enough force can be generated in order to create a life-threatening head injury to a child: (1) automobile accidents when the child is ejected from the motor vehicle; (2) falls from great heights, such as from two-stories onto cement; and (3) child abuse episodes when the child is thrown, slammed, backhanded, or kicked so as to propel the child through the air, causing the head to hit a hard flat surface with enough force to cause the brain to be injured inside the skull. She also stated there would not necessarily be evidence of external bruising if the blow were to the back, side or top of the head.

Dr. Norton stated that injury to the brain is the key to how much force was used to inflict the trauma. Dr. Norton testified that normal falls which children sustain everyday do not cause any injury to the brain. The doctor also testified that it was virtually impossible for Anthony to have suffered his brain injury from falling downstairs. Also, it was extremely unlikely that the injury was the result of shaking. Dr. Norton testified that she could say with a reasonable medical certainty that Anthony's injury occurred within an hour of his being brought to Brackenridge hospital.

It was Dr. Norton's medical opinion that shortly before Anthony was brought to the hospital, his head was thrown with great force into a hard flat surface by an unknown method. She further testified that the individual responsible for inflicting the injury had to be an adult large enough to throw or slam Anthony. Dr. Norton testified that based on statements made by appellant and Cora, and on the medical records, both injury episodes occurred when Anthony was alone with appellant. Dr. Norton's opinion is that the blow which caused Anthony's brain injury was deliberately inflicted in an assaultive fashion and that appellant was responsible for the injury.

She believed this was a child abuse case, in part, because the stories given by appellant as to how the injury was caused are typical of stories that are given by child abusers. She testified that abusers always attribute the cause of the trauma to "a fall or some sort of minor accident that results in brain injury that we associate with automobile accidents." She further testified that "invariably, what happens is, the individual who was alone with the child when the injury occurs will give some story about how the injury was an accident."

 
III. OTHER EXPERT TESTIMONY

Dr. Young P. Oliver is a neurologist. He was called by the defense. He treated Anthony for seizures on July 25, 1988. It was Dr. Oliver's opinion that Anthony's injury most likely occurred within six hours of admission to the hospital, but could have occurred as long as twenty-four hours before admission.

 
IV. DISCUSSION

Appellant argues that because it was possible that Anthony's injury could have been inflicted up to twenty-four hours prior to his collapse, and appellant did not have exclusive or continuous access to him during that interval, the evidence supports a reasonable hypothesis other than appellant's guilt.

The State need not prove to a moral certainty that the circumstances presented exclude every hypothesis that another person may have committed the offense. It must only exclude every reasonable hypothesis raised by the evidence that tends to exculpate the defendant. If the combined and cumulative force of all the incriminating circumstances warrant a conclusion of guilt, the evidence is sufficient. Not every fact need point directly and independently to the defendant's guilt. Brandley v. State, 691 S.W.2d 699, 703 (Tex. Crim. App. 1985). Furthermore, the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Cr. App. 1974). The jury is free to reject any and all of the evidence presented at trial. Russeau v. State, 785 S.W.2d 387, 391 (Tex. Cr. App. 1990).

The jury had the opportunity to observe and listen to the testimony of Hughes and Cora, both of whom had access to Anthony during the twenty-four hours preceding his admission to Brackenridge. Neither testified to observing Anthony fall or receive a blow to the head, nor did they observe signs that Anthony was injured prior to his purported fall down the stairs. Three experts testified that based on all the information they had available to them, it was most likely Anthony was injured within one to two hours of his admission to the hospital. While the experts conceded the possibility that the injury could have occurred eight to twenty-four hours earlier, all testified that the longer time-frame constituted the least likely time during which the injury could have occurred. The history provided by appellant does not indicate that the child suffered any other blow during the prior twenty-four hours. Furthermore, Dr. Norton testified that if the injury had occurred earlier in the day, there would have been a gradual deterioration of Anthony's neurologic status accompanied by bleeding which would have been picked up by the initial CAT scan. The initial CAT scan did not reveal evidence of bleeding. There was no testimony revealing gradual deterioration of Anthony's neurologic status. Immediately prior to this fall, Anthony appeared fine. Hughes, who babysat Anthony that afternoon and from whose apartment appellant and Anthony had departed just moments before Anthony's fall, testified that Anthony "seemed like Anthony, to me." Appellant testified the child had laughed when playfully shaken just prior to his fall. Based on this evidence, the jury was free to conclude that Anthony was injured in the hour immediately preceeding his admission to Brackenridge hospital while he was in the exclusive possession of appellant, and that, therefore, neither Cora nor Henry harmed Anthony.

In light of the expert testimony that Anthony's brain injury could not have been caused by a fall, the jury reasonably could have disbelieved appellant's story that Anthony's sudden and acute onset of life-threatening symptoms of brain injury followed a fall down the apartment steps. The jury was free to believe the expert testimony that an abuser typically attributes a child's serious injury to an accident incapable of inflicting the degree of injury that results; that appellant was Anthony's abuser; and that he was lying about the cause of Anthony's injury. The jury was also free to believe Dr. Norton's opinion that appellant, as the person who was alone with Anthony when both injury episodes occurred, was the person who inflicted the blow resulting in Anthony's brain injury and that the blow was deliberate, assaultive, and violent. We believe the evidence is sufficient to support the jury's implied finding that it was appellant who caused Anthony's brain injury. The evidence excludes every reasonable hypothesis other than appellant's guilt. Appellant's first point of error is overruled.

In his second point of error, appellant argues there is insufficient evidence to show that he, or anyone else, struck the victim's head with an object, as alleged in the indictment. The indictment alleged that appellant did "engage in conduct that caused serious bodily injury to Anthony Nelson White . . . by causing an object . . . to impact with the head of the said Anthony Nelson White." Appellant argues that the clear import of these words is that appellant hit Anthony in the head with some sort of object. Appellant asserts that the expert testimony is that Anthony's injury was caused by an adult having thrown or slammed the child's head into a hard flat surface. Appellant alleges the State did not prove the indictment because the evidence does not support the wording in the indictment.

There is not a fatal variance between the indictment and proof regarding the manner and means by which the offense was committed. Appellant's interpretation of the import of the words used in the indictment is but one possible interpretation. One may cause an object to impact with a head by striking the head with the object or by throwing or slamming the head into contact with the object. The State's evidence is sufficient to sustain an implied finding by the jury that the latter means caused the injury. Furthermore, there is also evidence to support the conviction under appellant's narrow reading of the indictment. Dr. Levy testified that "Anthony Nelson suffered a very forceful and traumatic either blow or injury to the head." Dr. Correa testified that "the type of lesion that he [Anthony] had had to come from a severe blow to the head." Appellant's second point of error is overruled.

The judgment of the trial court is affirmed.

 

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Affirmed

Filed: December 11, 1991

[Do Not Publish]

1. The jury found appellant guilty of injury to a child "as alleged in the indictment." The indictment alleges the appellant engaged in the offending conduct intentionally and knowingly, making the offense a first degree felony. 1981 Tex. Gen. Laws, ch. 202, 4 at 472 and 1981 Tex. Gen. Laws, ch. 604, 1 at 2397 (Tex. Penal Code Ann. 22.04(b), since amended).

2. This holding in Carlsen was prospectively overruled in Geesa v. State, No. 290-90 (Tex. Crim. App., Nov. 6, 1991). Carlsen continues to apply to cases tried before November 6, 1991.

3. Appellant lived with Cora and her son at the time of this incident. Appellant and Cora have since married, and Cora's last name is now Cavanaugh.

4. These were the abrasions that Dr. Levy observed the night of the 20th.

5. Hughes is appellant's cousin. Both apartments are in the same complex.

6. Dr. Levy testified that shaken-baby syndrome generally occurs with infants who are six to nine months old and have not developed good head control. Levy considered Anthony's head control sufficiently developed to make it unlikely that such shaking had caused his injury.