Opinion issued June 12, 2008
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-07-00664-CR
____________
DONOVAN ROBINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1071943
MEMORANDUM OPINION
Appellant, Donovan Robins, appeals from a judgment convicting him of capital murder for the death of complainant, Jahzara Robins, his fourteen-month-old daughter. See Tex. Penal Code Ann. § 19.03(a)(8) (Vernon 2003). Appellant pleaded not guilty to the jury. The jury found appellant guilty and the court assessed punishment at life imprisonment without parole. See Tex. Penal Code. Ann. § 12.31(a) (Vernon Supp. 2007). In two issues, appellant contends that the evidence is legally and factually insufficient to prove that he intentionally and knowingly caused the death of complainant. We conclude that the evidence is legally and factually sufficient to support the conviction. We affirm the judgment of the trial court.
Background
Appellant moved from Jamaica to New York when he was 17, where he lived until moving to Houston to live with complainant’s mother, Telicha Hills. Appellant and Hills lived together for approximately seven years, beginning sometime in 2000 and ending three to four months after complainant died. The appellant and Hills were not ceremonially married but held themselves out to the public as husband and wife, and Hills considered their union a common-law marriage. Complainant, the daughter of appellant and Hills, was born on December 6, 2004 in perfect health after a full-term pregnancy without complication.
Hills bathed complainant on March 1, 2006 and did not notice any bruises on her. Two days later, at about 6:20 in the morning, complainant’s mother and brother left the house, where they left complainant, who was still sleeping, solely in appellant’s care. About three hours later, appellant called Hills at work to tell her that he spanked complainant because she was trying to go up the stairs. One half hour after that, Hills called appellant to tell him that she would be home late, and while they were speaking on the telephone, appellant quickly hung up stating that complainant had “boo-booed real bad.”
Appellant called 911 at 3:39 in the afternoon to report that complainant stopped breathing; an ambulance was then dispatched within two minutes and arrived at the apartment within five minutes of the dispatch. The paramedics found complainant lying on the kitchen table, not breathing and cold to the touch. According to one of the paramedics, a body that is cold to the touch “means that that heart has not been beating for a number of hours—more than 20 minutes, at least.” The paramedics noticed what they later discerned to be applesauce coming out of complainant’s mouth when they tried to perform cardiopulmonary resuscitation (CPR). Appellant told the paramedics that he was feeding complainant a bottle when she choked and stopped breathing. Another paramedic overheard the appellant explaining something about feeding complainant an apple and a bottle.
The paramedics noticed that complainant had bruises on the arms, legs, abdomen, and partially on the back. Complainant was taken to the hospital and never resumed breathing.
A police officer with the Houston Police Department and a caseworker with Children’s Protective Services subsequently spoke to appellant about what happened to cause the death of complainant. Appellant told the officer that he was feeding complainant a piece of apple and a bottle. Appellant told the caseworker that he was feeding complainant pureed fruit when she started choking, but also said that complainant fell down the stairs around 10:30 or 11:00 that morning.
Appellant also told other people about how complainant died. On the day complainant died, appellant told Hills that complainant choked on a bottle. Two days after complainant’s death, appellant told Hills’s mother that complainant “had choked on the bottle. Then he came back and told her that she choked on an apple. Then he come back and told her that she had fell down the stairs.”
Post-autopsy, the medical examiner testified that complainant died from acute blunt impact trauma to the torso, causing a tear of the mesentery and internal bleeding, and blunt force trauma to her extremities and head. The medical examiner defined “acute” to mean “happening close to or at the time of death.” The medical examiner further testified that the injuries were not consistent with falling down the stairs, choking, CPR, or any other type of household accident. The medical examiner determined the manner of death to be homicide, which means death at the hands of another. According to the medical examiner, the contusions were consistent with inflictions that occurred on the same day of complainant’s death during the time frame of 6:30 in the morning to 3:45 in the afternoon on the day of her death and were consistent with being struck with or against an object, foot, or hand. The medical examiner also noted that complainant sustained non-acute blunt impact injuries to the head, consisting of a healed fracture of the skull and another lesser injury that was already in the healing process. According to the medical examiner, complainant had no significant medical disease that contributed in any way to her death.
Appellant did not testify at trial. The defense’s sole witness was Hills, who was questioned about her prior testimony.
Legal Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence to support the intent element of capital murder. Appellant contends the evidence fails to support any finding that appellant intentionally or knowingly caused the death of complainant and that no evidence linked him to her death. Appellant asserts that no witness testified that he intentionally or knowingly caused the death of complainant. Appellant points to the lack of evidence to show he had any history of abuse or violence toward anyone. Appellant claims the medical examiner could not determine the exact time the injuries occurred. Furthermore, appellant contends that his explanation that complainant fell down the stairs shows he did not commit capital murder.
In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). A person commits capital murder if he intentionally or knowingly causes the death of an individual under six years of age. Tex. Penal Code Ann. § 19.03(a)(8).Viewing the evidence in the light most favorable to the verdict, the evidence shows that the jury could have rationally concluded that appellant intentionally or knowingly caused the death of complainant. According to the medical examiner, the injuries were consistent with being inflicted during the time frame that appellant was alone with complainant on the day of her death, and with being inflicted by another person. The medical examiner also stated the injuries were inconsistent with choking on food or beverage or falling down the stairs.
The jury is free to infer intent to kill from the nature of the injury inflicted. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994). The medical examiner testified as to the extensive nature of the bruising on complainant’s body. The medical examiner documented five bruises on complainant’s lower torso and abdomen. The medical examiner also documented deep-tissue bruises to the buttocks. Complainant also showed bruising over the right side of the body as well as over the right arm, wrist, hand and hip. The medical examiner further documented a large bruise on the outside of the left arm, with more bruising over the elbow and extensive bruising along the forearm and wrist. Complainant also showed bruising on the left shin. Due to the extensive bruising over complainant’s body, the jury could have rationally inferred appellant had the intent to kill complainant. See id.
A defendant’s intent to kill may also be inferred from his words, acts, and conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Appellant made multiple inconsistent statements in regard to what caused complainant’s death. Appellant told a paramedic that he was feeding complainant a bottle when she choked. Another paramedic overheard appellant explaining something about feeding complainant an apple and a bottle. Appellant also told a police officer that he was feeding complainant a piece of apple and a bottle. Appellant told a caseworker for Child Protective Services that he was feeding complainant pureed fruit when she started choking, but also said that complainant fell down the stairs the morning of her death. Appellant told an aunt of Hills that complainant had choked on a bottle, then that she had choked on an apple, and then that she had fallen down the stairs. Appellant told Hills that complainant had choked on a bottle, and when she later asked again what happened, he told her “You wouldn’t believe.” Hills also testified that she had not seen appellant react in any manner to his daughter’s death up until the date that she testified. From appellant’s multiple explanations for the injuries to complainant combined with his unresponsive reaction to the complainant’s death, the jury also could have rationally inferred that appellant had the intent to kill complainant. See Patrick, 906 S.W.2d at 487.
Viewed in a light most favorable to the verdict, the evidence shows that a rational juror could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the death of complainant. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2788–99. We hold that the evidence is legally sufficient to prove capital murder. We overrule appellant’s first issue.
Factual Sufficiency of the Evidence
In his second issue, appellant challenges the factual sufficiency to sustain the conviction. Appellant acknowledges evidence of the requisite element of intent, as follows:
1. Mr. Robins was babysitting the complainant when he called the mother and said he spanked the complainant for going up the stairs;
2. Mr. Robins later called the mother and said their daughter boo-booed real bad and rushed off the phone;
3. Mr. Robins was the only person home with the complainant when he called 911 because she was not breathing;
4. Mr. Robins first stated that the complainant choked on a bottle and then that she fell down the stairs and hurt herself; and
5. Mr. Robins did not show much emotion after the alleged incident.
Appellant contends that the evidence that tends to disprove the existence of the requisite element of intent includes the following:
1. Mr. Robins called 911 to report that his daughter had stopped breathing;
2. Mr. Robins attempted to follow the 911 operator’s instructions and perform C.P.R. on the child;
3. Mr. Robins had no prior history of abuse, violence or hurting anyone;
4. Ms. Hills had never seen Appellant discipline their daughter other than verbally reprimanding her;
5. Mr. Robins cooperated with the police and Child Protective Services;
6. Mr. Robins admitted that his daughter fell down the stairs to Child Protective Services;
7. Mr. Robins did not attempt to leave the apartment or hospital;
8. Ms. Hills continued to live with Mr. Robins for three months after the alleged incident;
9. No witness provided testimony that linked Appellant to the death of his daughter; and
10. Mr. Robins was not charged with any crime until three months after the alleged incident.
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10–11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of the evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). When reviewing the sufficiency of the evidence, we remain mindful of the jury’s role as the exclusive judge of the credibility of witnesses and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
Proof of a culpable mental state almost invariably depends upon circumstantial evidence. Montgomery v. State, 198 S.W.3d 67, 87 (Tex. App.—Fort Worth 2006, pet. ref’d); Morales v. State, 828 S.W.2d 261, 263 (Tex. App.—Amarillo 1992), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993). Intent can be inferred from the extent of the injuries to the victim, the method used to produce the injuries, and the relative size and strength of the parties. Patrick, 906 S.W.2d at 487. In addition, culpable mental state can be inferred from the acts, words, and conduct of the accused. Id.
The physical evidence shows appellant intended to kill complainant. The medical examiner’s testimony described physical injuries on complainant caused by great force. The medical examiner testified that complainant’s injuries were consistent with being inflicted by another person and were inconsistent with choking or falling down the stairs. The most significant injury, the tear of the mesentery resulting in massive blood loss, is typically seen in auto accidents. The physical evidence shows appellant used great force to injure complainant and that appellant therefore intended to injure her. See id.
The jury also could have inferred intent from the size disparity between appellant and complainant, with appellant being approximately 6’3” tall and weighing one hundred and ninety to two hundred pounds, and complainant weighing a mere seventeen pounds at fourteen months of age. See Martin v. State, 246 S.W.3d 246, 264 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that evidence was factually sufficient where defendant mother killed her ten-month old baby, who weighed approximately seventeen pounds). In regard to appellant’s inconsistent explanations for complainant’s death, “the jury could have reasonably concluded that appellant changed his story because he had something to hide.” Montgomery, 198 S.W.3d at 87.
Although appellant points to evidence that suggests he did not intend to harm complainant, appellant’s position is undermined by evidence of older unaccounted-for injuries to complainant and by the physical evidence that showed great force was used to cause complainant’s death. Moreover, reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).
The proof of appellant’s guilt in this case is neither so weak that the verdict is clearly wrong and manifestly unjust, nor is it against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 10–11.
We hold the evidence is factually sufficient to sustain the conviction. We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Nuchia, Alcala and Hanks
Do not publish. See Tex. R. App. P. 47.2.