TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00786-CR
Tommy Dean Brown, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 53,033, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Tommy Dean Brown of intentionally or knowingly causing
serious bodily injury to a child. See Tex. Pen. Code Ann. § 22.04(a), (e) (West 2003). On appeal,
appellant contends that his conviction should be reversed and a new trial granted because there was
factually insufficient evidence to support his conviction. We will affirm the judgment of the district
court.
BACKGROUND
Appellant and Shannon Lambert met while both were stationed at Fort Hood. The
two began living together and became engaged. During the early afternoon hours of November 17,
2001, Lambert decided that she would go grocery shopping at the commissary on the grounds of the
base. Appellant informed her that he would remain at home with their twenty-five-day-old son,
Dameon. Lambert left the residence at approximately 1:00 p.m. According to Lambert’s testimony
at trial, she noticed nothing unusual about Dameon or his physical condition when she returned at
approximately 3:00 p.m. When, after a couple of hours, Lambert decided to wake and feed the baby,
she noticed a small bruise under his eye. According to Lambert, appellant had been Dameon’s sole
caretaker while she was gone and the bruise was not there when she left for the commissary. She
testified that appellant told her that he had given the baby a bath and had put the baby to sleep in his
bassinet and did not know what had caused the bruise.
At approximately 7:00 p.m., Dameon began to cry. Lambert went to feed him and
change his diaper. While changing the diaper, Lambert noticed various light red and purple bruises
that were just beginning to form on Dameon’s chest and stomach. Again Lambert asked appellant
what had caused the bruises, and he again gave no explanation. Lambert decided that they should
take Dameon to the hospital to ensure that he had no threatening medical condition. When they
arrived at the Darnell Army Community Hospital, Lambert stated to personnel that she believed that
Dameon was having an allergic reaction or had a rash. However, after medical examination, medical
personnel determined that Dameon had experienced some sort of nonaccidental trauma.
The hospital doctors called social services and authorities. Lambert informed them
that whatever had happened to Dameon must have happened to him while he was under appellant’s
care. Lambert also told the social service authorities that appellant had been angry at Dameon the
night before because he cried and did not sleep through the night. She described how appellant got
out of bed and took the baby to the living room because Lambert delayed in getting up to care for
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him. When appellant returned to the bedroom, he punched a large hole in the closet door. Lambert
also testified that appellant had a problem with mood-anger control and that his treatment included
medication and a previous hospital stay in Darnell’s mental ward for mood-anger control problems.
Brian Cummins, a special agent with the U.S. Army criminal investigation command,
testified that he had conducted the investigation concerning the injuries to Dameon. During the
course of his investigation, Agent Cummins took a sworn written statement from appellant and
conducted a videotaped interview of appellant. The statement was admitted into evidence and read
to the jury. In relevant parts, appellant stated that after Lambert went to the commissary, he changed
the baby’s diaper and that the smell made him “puke.” He later gave the child a bath, during which
the baby “kept whining” and “smelled really bad.” Appellant stated that he rubbed the baby’s legs
especially hard during the bath because of the smell. When appellant put the baby on the changing
table, the top shelf broke and the baby rolled and hit a wooden ledge. Appellant then picked the
child up and cradled him, which made the baby more comfortable. When appellant walked into the
living room, he stubbed his toe on a rocking chair, which made him “more mad.” Appellant’s
statement goes on to read, “I took him to the living room, grabbed him by . . . his mid-back, and
threw him in the bassinet. When I threw him, he landed on his front side, his . . . head hit and he
bounced back.” Appellant also stated that he threw the baby into the bassinet “pretty hard” and that
he spanked Dameon on his buttocks because appellant was “just upset.”
Agent Cummins later took another statement from appellant, which was videotaped
to record appellant’s nonverbal actions. The videotape was entered into evidence and shown to the
jury. During the second statement, appellant recounted the events of November 17, 2001 to Agent
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Cummins, relating all of the details based on a “scale of anger.” Appellant stated that his anger
continuously rose during the time that Lambert was at the commissary. He stated that he “beat [the
baby] on the bottom . . . about ten times,” which “left bruises on him.” Appellant admitted in his
statement that he had hit Dameon “probably a little too hard.” He also told Agent Cummins that he
had taken the baby’s hand and used it to hit the baby around the right eye, about “six or seven times.”
Appellant then stated that he decided to give the baby a bath, which further increased
his anger because it “took [him] around 15, 20 minutes to do.” After the bath, appellant carried the
baby to the changing table, and when the shelf on the table broke and the baby continued to cry,
appellant stated that he became furious. According to appellant, “That was my breaking point. I hit
my ten.” Upon further questioning, appellant admitted that he “proceeded to bop [the baby] into the
closet door . . . mak[ing] kind of a bunk sound.” Appellant stated that Dameon eventually stopped
crying. Appellant believed that at that point the baby must have been thinking, “[H]oly f-----g s--t,
I think Dad just gave me a major f-----g concussion.” Appellant also believed that he “almost killed
[Dameon’s] ass.” At the conclusion of the second statement, appellant said that he had taken his
anger medication and that had he not, he “would have probably put [the baby] through the closet
door . . . or . . . would have picked up the closet door, set him on the floor and beat him to death.”
The jury also heard the testimony of two doctors who treated Dameon. Dr. Michael
Luszczak testified that the baby suffered from ecchymosis, a medical term for bruising or bleeding
under the skin, and that the injuries were consistent with the injuries that would be sustained by an
unrestrained passenger in a high speed vehicle crash. Dr. David Ray Hardy testified that the injuries
were consistent with a fall from a second story floor. He also testified that, in his medical opinion,
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the child will remain severely impaired: “He will never be able to walk. I do not expect him to be
able to gain any language. He will probably have to have surgery to place a tube into his belly so he
can be fed, and . . . I suspect that these injuries will eventually shorten his life and precipitate his
death.”
The jury returned a verdict of guilty and imposed a sentence of sixty years and a fine
of $10,000. On appeal, appellant argues that the evidence is factually insufficient to support the
verdict.
DISCUSSION
If the defendant challenges the factual sufficiency of a finding of guilt on appeal, the
reviewing court must determine whether: (1) the evidence is so weak as to make the verdict
manifestly unjust, and (2) the finding of a vital fact is so contrary to the weight and preponderance
of the evidence as to be clearly wrong. See Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App.
2003); Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). In reviewing the factual
sufficiency of the evidence, we view the evidence in a neutral light favoring neither party. Johnson
v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In reviewing evidence, the trier of fact has the
responsibility of weighing all evidence, resolving all conflicts, and drawing reasonable conclusions
from the evidence. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Furthermore, a
decision is not manifestly unjust simply because the trier of fact resolved conflicting views of the
evidence in the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet.
ref’d).
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Appellant contends that the evidence is factually insufficient to support the jury’s
finding of guilt because the evidence does not clearly identify him as the only individual with the
opportunity to have caused the injuries to Dameon. Although it is true that appellant was not the
only person with the opportunity to cause Dameon’s injuries, appellant admitted to beating Dameon
and he never sought to contradict the State’s evidence that his actions caused the injuries. Nor did
appellant present any evidence tending to suggest to the jury that another person inflicted the injuries
on Dameon.1 Based on Lambert’s testimony that Dameon was in good health when she went to the
commissary, the jury could have reasonably believed that she did not cause her son’s injuries. Thus,
after examining all of the evidence, including appellant’s own two statements in which he admitted
that he had injured and even “beat” Dameon, we conclude that the evidence of guilt is neither so
weak nor so outweighed by contrary evidence as to render the guilty verdict manifestly unjust. The
finding that appellant was the person who inflicted the injuries on the child is not so contrary to the
weight and preponderance of the evidence as to be clearly wrong. See Zuliani, 97 S.W.3d at 593.
The jury weighed all the evidence, resolved all the conflicts, and drew reasonable conclusions from
the evidence. See Garcia, 57 S.W.3d at 441. We overrule appellant’s sole point of error.
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Appellant’s defense at trial consisted of cross-examination of the State’s witnesses and a
closing argument. During cross-examinations, counsel elicited testimony that appellant was excited
about the baby, that Lambert was not concerned about leaving the child in appellant’s care, and that
some of the bruises had not been accounted for in appellant’s two statements to Agent Cummins.
In his closing argument, counsel argued that, at most, appellant’s conduct was reckless and not
intentional or knowing.
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CONCLUSION
Because we find that the evidence factually supports the finding of guilt, we affirm
the judgment of the district court.
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: July 11, 2003
Do Not Publish
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