KELLY EIDSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 17, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01222-CR
............................
KELLY EIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F88-74340-UQ
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Lagarde
        Appellant Kelly Eidson was convicted of injury to a child and was sentenced to fifty years in the Texas Department of Corrections. She now appeals, alleging generally that the evidence is insufficient to support her conviction. Appellant states that in the absence of medical testimony, the State fails to sufficiently link the acts of appellant to injury to the child. Appellant also asserts that the State failed to refute exculpatory portions of a statement made by appellant; thus, she cannot have been found guilty beyond a reasonable doubt. Because we hold that the evidence is sufficient to support appellant's conviction, we overrule her point of error and affirm.
        The record reflects that the child, Richard Scott Mitchell, now deceased, was born to David and Melody Mitchell on November 7, 1986. David and Melody separated in August 1987 and Melody temporarily left the child with David in November 1987. At that time, David and appellant were living together. Both Melody and the child's first baby-sitter, Becky Beuchamp, testified that up until November 1987, the child's development was normal or above average.
        Soon after the child began living with appellant, Beuchamp testified that she began noticing bruises and "pinch marks" on the child. The bruises always appeared after the child had spent time away from Beuchamp and with David and appellant. Beuchamp also testified that on the occasions that she observed appellant and the child together, appellant appeared sullen and did not interact with the child. Another witness, Christy Karikan, testified that she baby-sat for the child in March and April of 1988. She stated that the child frequently exhibited bruises and that several times patches of his hair seemed to be cut out or shaved. Karikan said that appellant blamed Melody Mitchell for these injuries and accused Melody of child abuse, even though the record reflects that Melody did not see her child after November 1987. Karikan said that she last saw the child April 9, 1988 and on this day the child had dark, fresh bruises on his legs and backside. The witness also noticed a handprint-shaped bruise on the child's left cheek. She described the child as passive, with pale color. The child died in May 1988, although police did not discover his body until two months later. At the time of his death, the child was with appellant and David Mitchell.
        Without objection, the State introduced appellant's written statement into evidence. In summary, appellant stated that the child threw temper tantrums when spanked and tried to get into "anything and everything." She admitted hollering at the child and punishing him by standing him in the corner. She stated that she often became frustrated with the child and that she felt trapped. The child became a source of conflict between appellant and David, causing them to quarrel several times a week.
        Appellant stated that the child slipped and fell five or six times in the bathtub and that he had bruises on his body which would not heal. At times, he would go into trances and when he would come out of them, he was uncontrollable and self-abusive. Appellant wanted to take the child to a doctor, but did not, fearing that the doctor would think she had harmed the child. Appellant described the pressure of her living arrangement as "unbearable" and said that at times she thought about leaving the child in a trash can or dumping him back on Melody so that appellant could escape the situation.
        The night that the child died, appellant said that the child began going into a trance, and appellant told the child's father that she was afraid that the child would not come out of it. When David left the room, appellant stated that she took the child by the shoulders and shook him from side to side; she could not remember how hard she shook him. Appellant then put the child to bed.
        The next morning, appellant stated that she had a strange feeling and, when she went in to check on the child, she discovered that he was not breathing. David wanted to call the police or a hospital, but appellant dissuaded him, saying that "they wouldn't believe what really happened." Appellant and David then placed the child's body in a suitcase and drove to Missouri, where they abandoned the body by the side of a road.
        Mesquite Police Officer Thomas Forney stated that he arrested David and appellant during the July 4th weekend and took them both to Missouri. Appellant and David guided the police to the location of the child's body. When the police recovered the body, it was badly decomposed. Officer Forney testified that in places the bones showed through the flesh.
        Appellant's attorney and the State's attorney stipulated that, if called as a witness, the foreman of the grand jury that indicted appellant would state that appellant's acts caused the child serious bodily injury, but that the exact nature of the acts was unknown. The parties further stipulated that as a result of the body's prolonged exposure, its condition would not allow the medical examiner to determine the cause of death or the nature of the child's injuries; therefore, the specific wrongful and injurious acts of appellant were unknown to the grand jury.
        Appellant was convicted of injury to a child under section 22.03(a)(1) and (2) of the Texas Penal Code. FN:1 Appellant contends that the evidence offered by the State is insufficient because in the absence of medical testimony linking appellant's acts to the child's injury, all other reasonable hypotheses, besides appellant's guilt, are not excluded. Appellant contends that without this linkage, insufficient evidence exists to prove the corpus delicti of the offense. We first note that the phrase "corpus delicti" means that there was actual commission of a crime and that someone was criminally responsible for the crime. Scott v. State, 732 S.W.2d 354, 358 (Tex. Crim. App. 1987). A specific defendant's connection with the crime, including this appellant's connection with an injury to a child, is not part of the corpus delicti. See id. (discussing corpus delicti in a murder prosecution).
        Appellant's point of error will be treated as a straight-forward challenge to the sufficiency of the evidence. Accordingly, we will examine 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. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review holds true for both direct and circumstantial evidence. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). Still, a conviction based on circumstantial evidence cannot be sustained unless the evidence excludes every reasonable hypothesis except the guilt of the accused. Vaughn v. State, 607 S.W.2d 914, 921 (Tex. Crim. App. 1980). Proof amounting only to a strong suspicion is insufficient. Id. Nevertheless, every fact need not point directly and independently to the defendant's guilt; a conclusion of guilty can rest on the combined and cumulative force of all incriminating circumstances. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).
        At the outset, we note that the State need not necessarily offer medical testimony as to cause of death or type of injury in order to link appellant to the criminal act of injury to a child. See Scott, 732 S.W.2d at 358-59. In Scott, the appellant was charged with the murder of her infant child, by striking him with her hand and by manner and means unknown to the grand jurors. After the child's death, the body had been severely burned, completely obliterating any marks that might have existed on his skin. The medical examiner stated that he did not know the exact cause of death. In reviewing the sufficiency of the evidence, the Court of Criminal Appeals held that the State need not scientifically prove the cause of death in every case. Id. at 358-59. Circumstantial evidence may fully suffice. Id. at 358. In Scott, the court looked at evidence of prior abusive acts by the appellant towards the deceased, prior injuries that the deceased exhibited, and the apparently intentional destruction of the deceased's body in order to cover up the death circumstances. These and other factors led the Court to conclude that the guilty verdict was supported by the cumulative force of the incriminating circumstances. Id. at 359; see Jones v. State, 740 S.W.2d 497, 499 (Tex. App.--Dallas 1987, pet. ref'd)(stating that testimony from a pathologist is not always essential to establish the cause of death; circumstantial evidence may fully suffice); cf. Boone v. State, 689 S.W.2d 467, 468 (Tex. Crim. App. 1985)(holding that opinion evidence was not necessary to determine that the victim died from injuries sustained in a car wreck); Guerrero v. State, 605 S.W.2d 262, 264-65 (Tex. Crim. App. Panel Op. 1980)(holding that victim's physical condition before and after an auto wreck clearly showed that the victim's death resulted from the collision so medical opinion testimony was not required).
        In determining sufficiency of the evidence, we note that in appellant's voluntary statement, she admitted shaking the child. She further stated that she could not remember how hard she shook him. An admission of harmful conduct by appellant toward the child is one circumstance probative of appellant's guilt. Hignett v. State, 170 Tex. Crim. 342, 341 S.W.2d 166, 169 (Tex. Crim. App. 1960); Downing v. State, 761 S.W.2d 881, 883 (Tex. App.--Fort Worth 1988, pet ref'd); Stinnett v. State, 720 S.W.2d 663, 668 (Tex. App.--Amarillo 1986, no pet.). Further, appellant stated that she contemplated leaving the child in a trash can so she could escape.
        In addition to appellant's statement, other circumstances tend to support the conviction. Melody Mitchell and the child's first baby-sitter, Becky Beuchamp, testified that the child appeared healthy and normal up until November 1987. During this month, appellant began living with the child's father and appellant and Melody had no further contact with the child. After November 1987, Beuchamp began noticing pinch marks and bruises on the child. Evidence of recent, prior abuse, taken with other evidence, can render circumstantial evidence sufficient. Scott, 732 S.W.2d at 359: Tezino v. State, 765 S.W.2d 482, 485 (Tex. App.--Houston [1st Dist.] 1988, pet ref'd). The child regularly exhibited bruises and patches of missing hair after appellant began living with him. Testimony shows that the child's appearance was normal up until the time appellant came on the scene. The child's normal appearance before he met appellant and his altered, abnormal appearance after he lived with appellant constitutes another circumstance tending to support appellant's conviction. See generally Tezino, 765 S.W.2d at 485; Downing, 761 S.W.2d at 882. The child lived with his father, as well as appellant, but the altered appearance occurred only during the time appellant lived with the child. When the child lived with David and Melody Mitchell, evidence indicates a normal appearance. Circumstances need not exclude to a moral certainty every hypothesis that an act may have been committed by another. Vaughn, 607 S.W.2d at 921. The hypothesis intended must be reasonable and consistent with the facts and circumstances. Id. Commission of the offense by another person cannot constitute a reasonable hypothesis when it is out of harmony with the evidence. Id. On appeal, the evidence should demonstrate that a fact finder could reasonably conclude that every reasonable hypothesis other than the guilt of the accused was excluded. Nathan v. State, 611 S.W.2d 69, 75 (Tex. Crim. App. 1981). In reviewing the evidence, especially that of the child's altered appearance and appellant's voluntary statements about the child, we conclude that David Mitchell's participation in the charged offense does not rise to the level of a reasonable hypothesis because it is out of harmony with the evidence.
        When questioned in April 1988 by the child's second baby-sitter, Christy Karikan, about the child's bruises, appellant explained that the child's natural mother had inflicted the injuries. Yet Melody Mitchell testified that she last saw her child in November 1987. No evidence was introduced in contradiction to Melody's testimony; clearly, she could not have injured the child since she was not even with the child. Appellant's explanation for the child's bruises is unreasonable and incredible in view of the evidence presented and, as such, supports an inference of guilt. Tezino, 765 S.W.2d at 485; see Mills v. State, 742 S.W.2d 831, 834 (Tex. Civ. App.--Dallas 1987).
        Further, appellant dissuaded David Mitchell from reporting the child's death to a hospital or to the police. Instead, she proposed that they hide the body. Appellant and David transported the body to another state and left it exposed to the elements in a wooded area. Appellant's attempt to conceal relevant evidence also supports an inference of guilt. Livingston v. State, 739 S.W.2d 311, 330 (Tex. Crim. App. 1987) cert. denied, 108 S. Ct. 2858 (19__); Scott, 732 S.W.2d at 359.
        After reviewing the evidence in the light most favorable to the verdict, we hold that the cumulative force of all the incriminating circumstantial evidence would allow a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt of the offense of injury to a child.
        Appellant also asserts that her statement contained exculpatory statements which the State did not disprove; therefore, she argues that she is entitled to an acquittal because her guilt has not been proven beyond a reasonable doubt. Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986); see Palafox v. State, 608 S.W.2d 177, 181 (Tex. Crim. App. 1980). We hold that the rule concerning exculpatory statements enunciated in Palafox and Ibanez does not apply in this case because appellant's statement, although exculpatory, does not also contain an admission of guilt. Before the accused can invoke the Palafox rule, she must admit doing acts which constitute the gravamen of the offense. County v. State, No. 69, 793 (Tex. Crim. App. March 29, 1989)(not yet reported). An admission of guilt plus an assertion that exculpates the accused triggers application of the Palafox rule. Id. In this case, appellant admitted shaking, but not injuring the child. She explained his bruises as resulting from slips in the bathtub, from self abuse, and from abuse by his natural mother. Appellant did not admit to abusing the child. Instead, she declined to seek medical help for the child, fearing that she would be charged with abuse. When the accused makes no admission of guilt but offers only exculpatory statements, the Palafox rule is not invoked. Id. FN:2 We hold that appellant's statement is wholly exculpatory and, therefore, appellant cannot invoke the Palafox voucher rule.
        Appellant's point of error is overruled and her conviction is affirmed.
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-122.1/me
 
 
 
 
 
 
 
FN:1 Tex. Penal Code Ann. (Vernon 1974).
         § 22.04    Injury to a Child or an Elderly Individual
 
         (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that causes to a child who is 14 years of age or younger or to an individual who is 65 years of age or older:
 
            (1) serious bodily injury;
            (2) serious physical or mental deficiency or impairment . . .
    
FN:2 The State relies on two recent court of appeals cases in making an argument that the Palafox voucher rule has been completely abrogated by rule 607 of the Texas Rules of Criminal Evidence. See Downing, 761 S.W.2d at 833; Gale v. State, 747 S.W.2d 564, 566 (Tex. App.--Fort Worth 1988, no pet.). In view of our holding on the Palafox issue, we do not reach the issue of whether rule 607 completely abrogated the voucher rule.
File Date[11-17-89]
File Name[8801222F]