Vickie Jones v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-05-00335-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

VICKIE JONES, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Vickie Jones appeals her conviction for the offense of injury to a child. In two issues, Appellant contends that the evidence is legally and factually insufficient to sustain the conviction. We affirm.

Background

When Appellant presented her son, D.V., to the emergency department at Trinity Mother Frances Hospital, the nineteen month old boy was in acute distress. The child was unresponsive and had multiple injuries including cuts to his face, some appearing to be more recent than others, and a large contusion, or area of swelling, on his forehead. Further examination revealed what appeared to be a burn to the child s lower back that was healing. A computed tomography (CT) scan was done, which revealed a subdural hematoma in the area of the swelling to his forehead.

Subdural hematomas are of varying intensity and danger. Minor hematomas are not treated with surgery and may resolve themselves after a period of time. D.V. s lack of consciousness and the results of his CT scan showed that his injury was significant. The injury to his head was causing bleeding within his skull. The bleeding increased the pressure within his skull and was causing his loss of consciousness. If not relieved, the buildup of pressure could have caused his death.

D.V. was flown by helicopter to a hospital in Dallas where a neurosurgeon operated on him immediately. Because of the seriousness of his condition, she performed an aggressive procedure called a decompressive craniectomy. The neurosurgeon testified that a decompressive craniectomy is only done with children as a last resort. The surgery involves removing a part of the skull. This is done to allow the surgeon to remove pooled blood and to provide room for the brain to expand. This was done on D.V., and the portion of his skull was stored in his abdomen. The neurosurgeon testified that many children who need this surgery do not survive and that many of the children who do survive suffer devastating brain injuries.

Because of the seriousness of D.V. s injuries, the emergency department doctor alerted both the Tyler police and Child Protective Services. Both agencies began investigations. Appellant told the police, as she had told the hospital personnel, that D.V. had fallen from bed at about 6:00 a.m. that morning. According to her statement, the child seemed uninjured and she returned to sleep. At 10:00 a.m., the child was unresponsive and she decided to take him to the hospital. Although she lived about a mile from the hospital, Appellant did not present D.V. at the hospital until 12:17 p.m.

Appellant offered innocuous, but uncorroborated, explanations for the child s other injuries and told the authorities that she had been the only adult at her home that morning.1 The police executed a search warrant at Appellant s home. They recovered items of physical evidence including a truncheon and took samples of what was later determined to be D.V. s blood in various places on the floor of the home. They measured the height of the bed from which Appellant said D.V. fell. The top of the bed was twenty six inches from the floor. The floor was constructed of particle board covered with vinyl tile.

A Smith County grand jury indicted Appellant for the offense of injury to a child resulting in serious bodily injury, a felony of the first degree. Appellant pleaded not guilty and the case was tried to a jury. At trial, there was expert testimony that the bleeding in D.V. s skull was recent and that an injury of this magnitude would not come as the result of a fall from a bed twenty-six inches from the floor. Rather, the expert witnesses testified that such an injury might result from a fall from eight or ten feet, but that it was more likely to have come from a very forcible strike to the head.

The jury found Appellant guilty and assessed punishment at sixty years of imprisonment. This appeal followed.

Sufficiency of the Evidence

In two issues, Appellant argues that the evidence was legally and factually insufficient to show that the injuries to D.V. were the result of an intentional act or that she was the one responsible.

Standard of Review Legal Sufficiency

The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). Examined in a light most favorable to the jury s verdict, evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

As authorized by the indictment, the State was required to prove that Appellant intentionally or knowingly caused serious bodily injury to D.V. and that D.V. was fourteen years of age or younger. Tex. Pen. Code Ann. 22.04(a), (c)(1), (e) (Vernon 2005).

Standard of Review Factual Sufficiency

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484 85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis

Appellant does not argue that D.V. did not suffer serious bodily injury or that he was not a child. Rather, her argument is that the evidence was not sufficient to show that she injured D.V. Two powerful facts support the conclusion that Appellant injured D.V. First, Appellant was the only adult present when D.V. was injured. Second, there was expert testimony that the injury D.V. sustained could not have come from a short drop to the floor and would have had to have come as the result of a tremendous amount of force being applied to his head. Since Appellant is the only person who could have applied that force, the evidence is sufficient to allow a rational trier of fact to conclude that Appellant was guilty beyond a reasonable doubt. See, e.g., Bryant v. State, 909 S.W.2d 579, 583 (Tex. App. Tyler 1995, no pet.).

These two essential facts are also persuasive in a neutral review of the evidence. Against these facts, and the inferences to be drawn from them, is Appellant s statement to the police. If Appellant s statement were true, that D.V. merely fell from bed, she could not be convicted of a knowing or intentional injury to a child.

After a careful review of the evidence, we conclude that the jury s choice between the two opposing scenarios was reasonable. There was no direct evidence that Appellant caused the injury. But the circumstantial inferences to be drawn from the fact that she had care and custody of D.V. when he suffered such a devastating injury coupled with the expert testimony about how the injury would have occurred are compelling. Furthermore, the evidence of the other injuries D.V. sustained in the weeks before this injury, and the physical evidence including his blood being located in several places in the home, lend further support to the verdict. The evidence was neither too weak to sustain the verdict nor was it outweighed by contrary evidence. We overrule Appellant s first and second issues.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 16, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 The child s father was in jail at the time of the injury.