11th Court of Appeals
Eastland, Texas
Opinion
Damion Dion Warren
Appellant
Vs. No. 11-03-00260-CR -- Appeal from Harris County
State of Texas
Appellee
Appellant, Damion Dion Warren, appeals the conviction of recklessly causing serious bodily injury to a child younger than 15 years of age. TEX. PEN. CODE ANN. § 22.04 (Vernon 2003). The jury assessed punishment at 20 years confinement. Appellant contends in one point of error that the evidence is factually insufficient to support his conviction. Specifically, appellant argues that the evidence is factually insufficient to establish that he was the person who actually committed the offense. We affirm.
Standard of Review
In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Cr.App.2003); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). Deference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Cain v. State, supra at 407. We will set aside a verdict only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong and manifestly unjust or if the evidence contrary to the verdict is so strong that the State’s burden of proof could not have been met. A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Clewis v. State, supra at 135; see also Zuniga v. State, supra; Cain v. State, supra.
Evidence at Trial
Appellant lived with Iso Thomas and her 21-month-old son, Jalen Thomas. Periodically throughout the day of January 31, 2002, Jalen was under the sole care of appellant while Thomas ran several errands.
At approximately 1:45 p.m., paramedic Wesley Hurst was dispatched to Thomas’s apartment in response to a report of a child not breathing. Jalen was given CPR until his pulse returned; he was then transported to Texas Children’s Hospital. At Texas Children’s Hospital, Jalen was first under Dr. Michelle Anderson Lyn’s care in the emergency room where Dr. Lyn described him as critical. While Jalen was in the emergency room, he was on a ventilator and was given medications to maintain his blood pressure and heart rate.
At 6:28 p.m. Jalen underwent a CAT scan. Dr. Jill Vanesssa Hunter testified that the CAT scan revealed two major findings: (1) subdural blood and (2) abnormal coloration to the brain. Dr. Hunter further testified that a variety of mechanisms could cause this, including shaken baby syn-drome. Dr. Hunter expressed her opinion that these injuries most likely occurred within the last 12 to 6 hours. After the CAT scan, Jalen was moved to the intensive care unit (ICU) where he was under the care of Dr. Stephanie Horwitz Abrams.
Dr. Abrams met with Thomas, appellant, and several other family members. They spoke for approximately 45 minutes about the events that transpired that day. Dr. Abrams testified that appellant told her that, at about 1:00 p.m., appellant left Jalen standing up on the edge of the couch, holding on to the side rail. Appellant said that he left Jalen alone for approximately 20 minutes. When appellant returned, he found Jalen lying on his right side on the ground next to the couch with his upper arms shivering, his eyes rolled back, and with pink milk coming from his mouth. Appellant ran over to Jalen, picked him up, and tried to pat him on the back. Appellant said Jalen’s head was hanging over to the side. When Jalen did not move, appellant went to the phone and called 911.
Dr. Abrams pointed out some inconsistencies between the story that appellant told her and Jalen’s injuries. Dr. Abrams testified that, when the exterior of Jalen’s head was examined, there were no fractures and there were no swellings or abnormalities of the cranium. Dr. Abrams testified that a full eye exam was performed on Jalen and that retinal hemorrhages were found. Dr. Abrams concluded that the combination of subdural bleeding, with little or no external trauma, and retinal hemorrhages was most likely caused by shaking an infant.
Dr. Laura Jean Piippo testified that she had performed a complete eye examination on Jalen early on February 1, while Jalen was in ICU. Dr. Piippo found hemorrhages on Jalen’s retina which she described as “abnormal finding[s].” Dr. Piippo concluded that the most common cause of such hemorrhages is a rapid acceleration/deceleration type of injury, “similar to a whiplash type of injury you might see with...a child being shaken.”
Analysis
Appellant argues that the jury could not find him to be the cause of Jalen’s injuries because the State’s evidence proved only that the injury occurred sometime within the 24 hours preceding the CAT scan. Appellant contends that, because no specific time for the injury was established, the jury could not reasonably infer that these injuries occurred while Jalen was under the sole care of appellant.
At 6:28 p.m. on the day Jalen was admitted to Texas Children’s Hospital, a CAT scan was performed on Jalen. Dr. Abrams, Jalen’s ICU doctor, testified that she reviewed the CAT scan. From the appearance of the blood on the CAT scan, it appeared that the injuries were new in the sense that they were only hours old.
Dr. Hunter, Jalen’s pediatric neuroradiologist, testified that she would not expect the injuries to have occurred more than six hours prior to the CAT scan. This placed the injuries no earlier than 12:28 p.m. Appellant was alone with Jalen at that time.
Dr. Harminder Narula, Harris County Assistant Medical Examiner, placed the injuries at the time Jalen became symptomatic. Dr. Abrams testified that appellant told her that appellant was alone with Jalen when he went to the restroom. Upon his return, Jalen was on the floor shaking. Dr. Abrams’s testimony could lead a reasonable jury to infer that Jalen’s injuries were sustained while Jalen was in appellant’s sole care.
The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Articles 38.04 & 36.13. Several doctors testified as to the possible time frame that these injuries could have occurred. While counsel for appellant vigorously questioned each doctor for other possible causes of Jalen’s death, a reasonable jury could have found that none of the doctors gave a plausible alternative explanation. The jury reasonably concluded that Jalen’s injuries were sustained while he was in the sole care of appellant.
We hold that the evidence is factually sufficient to support the jury’s verdict. We overrule appellant’s sole point of error.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
January 6, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.