Davis, DeWayne v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed November 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00484-CR

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DeWAYNE DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 965, 578

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M E M O R A N D U M O P I N I O N

Appellant DeWayne Davis challenges his conviction for injury to a child. In a single issue, he contends that the evidence presented at trial is legally and factually insufficient to support his conviction. We affirm.

 I.  Factual and Procedural Background

On October 20, 2003, at about 6:00 a.m., Tesheva Anderson left appellant s apartment to catch the bus to work. At this time, Anderson and her two-and-a-half-year-old son, Othay Anderson, lived with appellant, along with Crystal Cashel, a friend of appellant s. As she frequently did, Anderson left her son at the apartment in appellant s care. Appellant would care for the toddler during Anderson s shift at the International House of Pancakes ( IHOP ), and after her shift, appellant would bring the boy to Anderson.

A few hours after Anderson s departure on October 20th, appellant called Anderson at work and asked her to come home immediately. She did not do so. Appellant then called Anderson again a few hours later and informed her that Othay had slipped in the bathtub and suffered a seizure after hitting his head. He further informed her that the paramedics were on the way to the apartment. Othay, who had suffered life-threatening injuries, was life-flighted to Hermann Hospital in Houston. Appellant was the only person at home at the time of the incident.

Anderson left work immediately upon receiving appellant s call and met appellant at the bus stop. Anderson and appellant went to the hospital together. During the ride to the hospital, appellant stated very adamantly that he did not put Othay on the stove nor did he do anything to harm him. He also stated that he was sorry, and vowed to pass blame onto Cashel (who was not home at the time of the incident) if anyone accused him of any wrongdoing. Appellant also informed Anderson that he did not want to return to prison.

At the hospital, appellant told investigating officers that he decided to give Othay a bath because he had wet himself. Appellant testified that he left the room twice while the tub filled with water. He returned the second time upon hearing Othay scream and found him bleeding from the nose. After arriving at the hospital, Othay was examined fully for internal and external injuries. It was discovered that Othay had suffered the following injuries: (1) second degree burns on his feet, ankles and penis; (2) bruises on his abdomen; (3) bruises to the interior portion of his liver; (4) bruises to his internal abdominal wall; (5) gall bladder bruising; (6) a duodenal contusion; (7) internal bleeding; (8) hemorrhaging in the brain; and (9) retinal hemorrhaging. As a result of these injuries, Othay had to undergo two surgeries (one on his brain and one on his abdomen) before being discharged from the hospital. These injuries resulted in permanent physical and mental impairment.

Othay s treating physicians confirmed that his injuries were not consistent with an accident; rather, the injuries were inflicted intentionally, and were likely the result of an intentional burning and violent shaking. The doctors testified that based on their examinations of the child, the injuries had been inflicted shortly before Othay s arrival at the hospital.

Appellant was arrested and charged for the offense of injury to a child. Appellant waived his right to a jury trial and pleaded not guilty to this charge. After a bench trial, the trial court found appellant guilty and assessed punishment of 55 years in the Texas Department of Criminal Justice, Institutional Division. In his sole issue on appeal, appellant challenges the legal and factual sufficiency of the evidence.

I. Standard of Review

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses=testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We apply the same standards of review regardless of whether it is a verdict following a bench trial or a jury verdict. See Collins v. State, 901 S.W.2d 503, 505 (Tex. App. Waco 1994, pet. ref d).

II. Analysis

In challenging the legal and factual sufficiency of the evidence, appellant attacks the credibility of Anderson s testimony at trial and also contends that the State did not satisfy its burden of proof because it failed to call Anderson s young son (Othay) and the woman living with appellant and Anderson at the time (Cashel) as witnesses at trial.

In regard to Anderson, appellant contends that her testimony should not have been considered because she is an admitted liar. However, it was for the trial court, as trier-of-fact, to decide whether to believe Anderson s testimony. The trial court is entitled to believe all, none, or some of any of the witnesses testimony. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We do not realign, disregard, or reweigh the evidence. See Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App. Austin 1997, no pet.).

Appellant s contention that the State did not satisfy its burden of proof because it failed to call Othay and Cashel to testify at trial lacks merit. The State is not required to call a certain number of witnesses to prove its case. See Aguilar v. State, 77 (Tex. Crim. App. 1971). It is only necessary that the proof be present. The Texas Court of Criminal Appeals has addressed this subject in this way:

In general, a party, whether state or defendant, is permitted either to call or decline to call any competent witness. Some courts deem that the prosecuting officer ought, in murder or the like crimes, to call as witnesses all who were present at the transaction, whatever be the nature of their testimony. Others regard it properly within his discretion to produce such witnesses, and such only, as he thinks best. With the last-mentioned rule we concur, and we will add, if it has ever been the practice in this state to force the state to call all the witnesses to the transaction, we are not aware of such practice. Such a rule would work serious injury to the state, and tend to confusion.

Kidwell v. State, 35 Tex. Crim. 264, 267, 33 S.W. 342, 343 (Tex. Crim. App. 1895).

The State presented several witnesses to prove its case beyond a reasonable doubt Anderson, the investigating officers, and Othay s treating physicians. At trial, the evidence of appellant s guilt was overwhelming. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). Anderson left Othay in appellant s care. Appellant was the only person home at the time Othay was injured. Appellant called Anderson at work and informed her that Othay had slipped in the bathtub and suffered a seizure after hitting his head. He informed her that the paramedics were on the way to the apartment. During the ride to the hospital, appellant told Anderson that he did not put Othay on the stove nor did he do anything to harm him. He also stated that he was sorry, and threatened to blame Cashel for any wrongdoing, as he did not want to return to prison.

At the hospital, appellant informed the investigating officers that he decided to give Othay a bath because he had wet himself. Appellant testified that he left the room twice while the tub filled with water. He returned the second time upon hearing Othay scream and found him bleeding from the nose. Othay s treating physicians confirmed that the child s injuries were not consistent with an accident but appeared to have been intentionally inflicted and were likely the result of an intentional burning and violent shaking. The doctors testified that their examinations indicated the injuries had been inflicted shortly before the child s arrival at the hospital.

The surgeon who treated Othay testified that the abdominal and internal injuries likely occurred around 10:00 a.m. that morning (shortly after appellant called Anderson the first time). The neurosurgeon who treated Othay for his brain injuries testified that the injuries likely occurred in the afternoon shortly before Othay was life-flighted to the hospital. This medical testimony, along with appellant s admission that Othay suffered his alleged fall in the bathtub around noon, while no one else was present, established that appellant was the only person with Othay at the time he was injured.

The evidence is both legally and factually sufficient to prove that appellant was the person who caused the injuries to Othay. The trial court had before it the medical evidence that these injuries were intentional, not accidental. Moreover, the evidence also showed that appellant was the only person with Othay at this time. Finally, the trial court had before it the inconsistencies regarding appellant s version of how Othay was injured. From this evidence, a rational factfinder could have inferred that appellant intentionally caused injury to Othay, a child. See Guzman v. State, 20 S.W.3d 237, 240 (Tex. App. Dallas 2000), overruled on other grounds, 85 S.W.3d 242 (Tex. Crim. App. 2002) (finding medical evidence, appellant s assertion that he was the only person with the child at the time of injuries and appellant s inconsistent statements about the origin of injuries sufficient to support conviction); Goodman v. State, No. 14-97-01027-CR, 2002 WL 1478594, at *3 (Tex. App. Houston [14th Dist.] June 27, 2002, no pet.) (not designated for publication) (holding that evidence was sufficient to support defendant s conviction for offense of causing bodily injury to a child as emergency room nurse and physician who examined child after defendant brought her to hospital testified that child s injuries were not accidental and were inconsistent with defendant s explanations of their cause, and that some injuries appeared to have been caused by a person s hand, and evidence showed that defendant was only adult present when some of the injuries occurred); Gordon v. State, __ S.W.3d __, 2005 WL 2158824 (Tex. App. Fort Worth 2005, no pet) (holding that evidence was both legally and factually sufficient to sustain conviction, when among other evidence, two doctors opined that child s injuries were consistent with being struck rather than falling, doctor never wavered from his conclusion that child s injuries could only have occurred from being struck with or against heavy, flat object rather than falling, even from a significant height).

A trier of fact can view inconsistencies between a defendant s version of the events with the medical evidence as evidence of guilt. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). The cumulative force of all the incriminating evidence against appellant in this case provides legally and factually sufficient evidence to support his conviction. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Accordingly, we overrule appellant s sole issue.

The trial court s judgment is affirmed.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed November 3, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).