Cecil Derreck Clary v. The State of Texas--Appeal from 161st District Court of Ector County

Opinion filed May 17, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00210-CR

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CECIL DERRECK CLARY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-31,336

O P I N I O N

Cecil Derreck Clary appeals his conviction by a jury of the offense of injury to a child. The jury assessed his punishment at five years in the Texas Department of Criminal Justice, Institutional Division, probated, and a fine of $1,000. In a single issue on appeal, Clary contends that the evidence is legally insufficient to support his conviction. 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);Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).

Tammy Smith testified that she was an investigator with Child Protective Services and investigated allegations of abuse and neglect to children. She indicated that, after receiving a call on February 18, 2004, about physical abuse, she went to a residence and remained there until police officers arrived. She related that Clary answered the front door and identified himself after she and a police officer knocked on the door and told him that they were there regarding an intake involving a two-year-old child. She stated that, before she could see the child, Clary raised his hand and explained what injuries the child had. She said that, when Clary grabbed the child and pulled her to the front door, the child jumped toward her. Smith testified that, after the child jumped on her, she was grabbing her and whimpering. She said that, when she tried to pull the child away, she would shake her head and say no.

Smith testified the child had two black eyes. She indicated the left eye was a dark purple and blue and was almost swollen shut. She said it looked almost like it was trying to bleed. She described the right eye as also having a dark bruise but that it was in a different stage of healing. She described an adult bite mark that the child had. She stated that the child had a solid bruise on her right cheek and three linear marks extending from her cheek all the way up to her hairline. She testified that there was a purple bruise on the child=s left side that extended all the way back toward her head and back behind her ear and that the tip of her ear was purple. She added that the top of her forehead was brownish green and that it had swollen bumps on it. She said the child pointed at her bruises. Smith testified that Clary explained that the child had fallen off her bed. She indicated that she saw the bed, which was about twelve inches from the carpeted floor. She said that Clary also said that some of the child=s injuries had occurred in the living room when a black and white puppy had pounced on her and knocked her into a coffee table and couch. She stated that she observed the puppy, which was smaller than the child. She related that she took the child to the hospital and subsequently removed her from the care of her mother and Clary, who was the child=s stepfather. She stated that, in her opinion, the child=s injuries were not the result of an accident.

On cross-examination, Smith acknowledged that there was nothing to prevent the child from falling out of bed or jumping up and down on the bed. She further acknowledged that there was no physical evidence linking the bite marks on the child to Clary. She said Clary indicated that the family had Medicaid but that he did not think it would pay for the child=s injuries. Smith acknowledged that she had not observed Clary injure the child. She stated that, in her opinion, the child=s bruises did not all occur on the day that she received the call and went to the residence.

Dr. Christina Louise Carnes, a pediatrician, testified that she examined the child in question in February 2004 at Medical Center Hospital in Odessa. Dr. Carnes said her examination revealed that both of the child=s eyes were black, the left eye more than the right. She said that there was swelling in addition to a bluish-purple bruise. She also described bruising on the back of the ear and the scalp behind the ear. She indicated that there was green bruising on the forehead. Dr. Carnes also described a subconjunctival hemorrhage, which she said was a blood vessel that had burst in the white part of the child=s eye. She said that there was a purple bruise where there was an adult human bite mark on the child=s left cheek. She described greenish bruising underneath the child=s right eye, as well as greenish-blue bruising on the child=s neck. She related that two red abrasions or scratches appeared below that and that there were two penny-shaped brown bruises on the chest. She also described bruising consistent with an adult human bite on the child=s arm, as well as bruises on the child=s leg. She testified that the bruising did not occur all in the same day and that some could have been there up to eight to ten days. She said that, in her opinion, the child=s injuries occurred from blunt trauma and not from an accident or falling off of her bed. She insisted that there was no medical explanation for the child=s bruises other than child abuse. She said that the injuries to the child, in her opinion, were serious. She concluded that the child=s injuries were the result of physical abuse because the bruises were at various stages of the healing process, because there were inconsistencies between the history given and the physical findings, and because Athey@ delayed in seeking medical help. She acknowledged that she did not know to whom the bite marks belonged.

Larry Torres, an officer with the Odessa Police Department, testified about going to the residence with Smith, the worker for Child Protective Services. He affirmed that the child had bruises and bite marks and that her injuries appeared to him to be serious. He said that he was advised that the child was not taken for medical treatment because there was no money for a taxi. He indicated that Clary, who was not under arrest, went to the detective unit at the police department where it was determined that he was the caretaker of the child when she received her injuries.

Officer Torres acknowledged that Clary was cooperative, voluntarily allowing the officer and Smith to come into his house and voluntarily producing the child. He indicated that Clary not only allowed him to search the house but that he gave him a little tour. Officer Torres further acknowledged that he did not know if any teeth marks on the child were those of Clary. Officer Torres admitted that he did not see Clary injure the child, and he did not dispute the fact that the injuries occurred at different times. Damon McGilvray, an Odessa police officer who accompanied Officer Torres and Smith to the residence, confirmed the child=s injuries and acknowledged that he did not know whose teeth marks were on the child.

Anita Todd, a criminalistics tech at the police department, testified that the distance from the couch cushion to the living room floor in the residence in question was sixteen inches. She said the carpeting was plush and not worn out. She said the couch was all cushioned. She indicated that another couch in the room had the same measurement of sixteen inches and that the carpeting was the same under that couch. She indicated that the measurement from the top of the child=s mattress to the floor was seventeen to eighteen inches. Todd acknowledged that a dresser that is hard with sharp edges was near the bed when she made pictures at the residence.

Courtney Dawn Hinkle, the child=s mother, testified that on February 10, 2004, no one but Clary was taking care of her daughter. She indicated that, when she had gone to work that day, she had not noticed any physical injuries to the child. She said she first saw injuries to the child when she got home on that day. She indicated that she noticed more injuries to the child when she got home from work on February 16, 2004. She related that Clary was also caring for the child on that date.

Hinkle testified that on February 10, when she first observed the child=s injuries, she saw that the right side of the child=s face was Akind of swollen@ and that she had a black eye on her right side. She said that she did not see any more injuries to the child until February 16, when she observed a black eye on the child=s left side. She indicated that the black eye on the child=s right side was beginning to heal a little bit. She related that she had not sought medical attention for the child for the injuries on February 10 because Clary had threatened her and that she took the threats seriously.

Hinkle testified that on February 16 she observed a bite mark on the child=s arm. She indicated that the child did not have a habit of biting herself and that she did not bite the child herself. She said that the two puppies she kept in the house were gentle with the child and that she had never seen the dogs knock her down. She said that, when she returned from work on February 17, the left side of the child=s face Ahad gotten worse.@ She stated that Clary had been the child=s caretaker on that day also. She insisted that she had never used corporal punishment with the child and had never given anyone else authority to do so.

When asked who besides Clary had cared for the child between February 10 and February 18, Hinkle testified that Clary=s best friend took care of the child on the Friday before the child was taken from her. She said that the child=s injuries were the same after the friend took care of her. She said she thought her daughter=s injuries were serious. She acknowledged that she did not know what happened at the house because she was at work.

The evidence shows that the child suffered injuries at a time when she was under Clary=s care. Evidence was presented showing the unlikelihood of the injuries occurring as described by Clary. We hold that the evidence is sufficient to support Clary=s conviction. In support of his argument that the evidence is insufficient, Clary relies upon the case of Graves v. State, 779 S.W.2d 469 (Tex. App.CEl Paso 1989, no pet.). We find that case to be distinguishable. In Graves, evidence was presented by a child=s mother and by two witnesses outside the family as to what caused bruises and a burn to the child. Id.at 470. The evidence indicated that the only bruise attributed to Graves was caused when the child=s ears were bruised by rough material and seams on denims Graves was wearing as he was Aroughhousing@ with the child. Id. Captain Suzanne Cuda, a physician at the Beaumont Army Medical Center, testified that she suspected that the injuries were intentionally inflicted and constituted child abuse. Id. In holding that the evidence in Graves was insufficient, after noting the corroboration of the parents= version of the child=s injuries, the court stated that the physician only testified that she suspected child abuse, that the child appeared to be developing normally and was in good spirits, and that the child exhibited no fear of either parent. In the case at bar, the child=s injuries were more extensive; the child=s mother offered no explanation for the child=s injuries; Clary threatened the mother if she obtained medical care for the child; and Clary was the only one caring for the child at the time injuries occurred. Although there was another caretaker during the time period, there was evidence that the child had no visible additional injuries during the time that she was with that caretaker. The physician in this case affirmatively gave her opinion that the child=s injuries occurred from blunt trauma and not from an accident or falling off of her bed and further insisted that there was no medical explanation for the child=s bruises other than child abuse. We also note the child=s actions and demeanor when first picked up by the investigator from Child Protective Services. We overrule Clary=s sole issue on appeal.

The judgment is affirmed.

PER CURIAM

May 17, 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.