Affirmed and Majority and Dissenting Opinions filed February 28, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00485-CR
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MATTHEW DAVID KELLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 43,498
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D I S S E N T I N G O P I N I O N
Because the evidence is legally insufficient to support appellant=s conviction for recklessly causing serious bodily injury to a child, I respectfully dissent.
Significantly, the State did not introduce testimony from an expert in shaken baby syndrome or head trauma. Instead, the jury reviewed diagnostic information directly from a pediatrician, a radiologist, and an ophthalmologist concerning factors such as the baby=s blood-clotting abnormalities and the location of the subdural hematoma. However, the jury was not qualified to evaluate the diagnostic information in relation to the force of the conduct that caused the injuries. Because the State failed to establish a forensic link between the baby=s medical diagnosis and reckless conduct on the part of appellant, there is no evidence from which a rational jury could conclude beyond a reasonable doubt that appellant was aware of but consciously disregarded a substantial and unjustifiable risk.
At trial, the pediatrician testified that the baby presented with a coagulopathy. She further explained that three of the baby=s coagulation factors tested outside the normal range and indicated a blood-clotting abnormality.[1] However, the jury was unable to evaluate the impact of the baby=s coagulopathy on the amount of force likely to have caused the baby=s injuries. At a voir dire hearing outside the presence of the jury, the pediatrician testified that she did not know the amount of force it would take to cause the baby=s injuries. In describing the amount of force to cause shaken baby syndrome in general terms, she stated it was a rotational movement that caused the injury, which is why someone not very large or forceful could cause shaken baby syndrome. She stated repeatedly that it would not take much physical force to cause the syndrome. At the conclusion of the hearing, the judge ruled that he would not allow any type of demonstration or testimony from the pediatrician concerning the amount of force necessary for the baby to sustain her injuries.
No other expert testified as to the amount of force, either specifically or generally, that could cause shaken baby or shaken impact syndrome. The ophthalmologist and a local physician were not asked and did not address the question. The radiologist testified that he could not determine how much force it would take to cause an injury to the baby. When questioned about the baby=s abnormal blood-clotting factors, the radiologist testified that the factors were Atoo much spaghetti@ for him, and Athe coagulopathy and what roll [sic] it plays in it is the clinician=s job.@ As a general matter, however, he testified that in cases where a blood disorder is found, the trauma causing the bleeding may be Aless than it would be in a normal person.@
Throughout the trial, the State=s experts referred to Dr. Lukefahr, a specialist consulted in the case. Dr. Lukefahr was described by the State and the pediatrician as a UTMB specialist in shaken baby syndrome and expert in forensic medicine, but he was not called to testify.[2] On voir dire, the pediatrician stated that Dr. Lukefahr was the expert qualified to answer questions related to the force of conduct involved in shaken baby or shaken impact syndrome. At trial, she testified that the baby was referred to Dr. Lukefahr, and Dr. Lukefahr is routinely called for consultation when shaken baby syndrome is the suspected diagnosis.[3] At closing, the State argued that Dr. Lukefahr was not needed at trial because the jury had Athe same information.@ However, unlike Dr. Lukefahr, the jury did not have the expertise to evaluate that information.
Both the pediatrician and the radiologist testified that the baby=s records indicated that Dr. Lukefahr inferred from diagnostic information that the baby suffered a contusion and listed the baby=s diagnosis as Ashake-impact@ syndrome.[4] The radiologist explained that when there was an impact, a contusion and skull fracture would typically appear on one side of the head, but a subdural hematoma would appear on the opposite side because Athe brain gets compressed against the skull as it reverberates from the injury.@ He further testified that shaken baby syndrome was usually more consistent with bilateral subdural hematomas or internal bleeding on both sides of the head. Here, the baby=s CT and MRI scans revealed that she had a unilateral subdural hematoma located on the right side of her head. The radiologist testified that there was no evidence from which to infer a contusion or external trauma. Other experts also testified that there were no broken or fractured bones, burns, cuts, bruises, or any other evidence that indicated external trauma to the head.
Again, because Dr. Lukfahr did not testify and the State did not present testimony from another qualified expert in head trauma, the jury had no factual basis to evaluate the significance of the diagnostic findings relative to criminal liability. Specifically, the jury could not assess whether the location of the subdural hematoma and the absence of bone fractures or other symptoms associated with shaken baby syndrome were findings more consistent with injuries caused by violent shaking or injuries caused by movements within the normal range of conduct.
The majority holds that there is legally sufficient evidence to support appellant=s conviction because the State=s experts ruled out the possibility that the baby=s injuries were caused by an Aaccident.@ On the day of the alleged offense, appellant called the baby=s mother and told her that he thought they should take the baby to the doctor because Ashe seemed kind of like a passed-out state [sic]@ and she Aslumped over@ on the changing table. However, appellant did not contend that the baby=s injuries were caused when she slumped over on the changing table. Rather, appellant argued that the medical experts could not determine what caused the baby=s injuries, or that the injuries were caused by re-bleeding from a traumatic forceps delivery that resulted in massive bruising on the right side of her head (the same side as the subdural hematoma).
Moreover, even if the jury viewed the State=s evidence of appellant=s statements as an exculpatory attempt, mere disbelief of exculpatory evidence does not relieve the State of its burden to prove all of the elements of the offense. Gold v. State, 736 S.W.2d 685, 689 (Tex. Crim. App. 1987), overruled in part on other grounds, Torres v. State, 785 S.W.2d 824, 825 (Tex. Crim. App. 1989). Here, the testimony as to appellant=s statements revealed no inconsistencies which would indicate his statements were false. There is also no evidence that appellant attempted to conceal the baby=s injuries from anyone or delay medical treatment. Nor is there evidence that appellant ever became angry or upset or lost control of his temper. To the contrary, the baby=s mother testified that appellant denied doing anything to hurt the baby. She also testified that she and appellant both loved the baby, and she had never seen appellant shake or cause injury to the baby.
Because there was no evidence from which a lay person could infer that appellant recklessly caused the baby=s injuries, the State could not prove its case without the testimony of an expert. In the absence of such testimony, the jury was unable to evaluate the significance of the diagnostic factors in relation to the physical force sufficient to cause the baby=s injuries. Without this crucial link between medical diagnosis and criminal culpability, a rational jury could not find beyond a reasonable doubt that appellant recklessly caused the baby=s injuries. Therefore, I would find the evidence legally insufficient to support appellant=s conviction, reverse the judgment of the trial court, and render a judgment of acquittal.
/s/ Charles W. Seymore
Justice
Judgment rendered and Majority and Dissenting Opinions filed February 28, 2006.
Panel consists of Justices Hudson, Edelman, and Seymore. (Hudson, J., majority.)
Publish C Tex. R. App. P. 47.2(b).
[1] The pediatrician specified the AD-dimer, the FDP, and the fibrinogen@ as the abnormal clotting factors. She also testified that small bruises were found on the baby=s cheek and left ear. When the baby=s mother was questioned about the bruising, she said she thought Ababies bruise easily.@ In addition, the baby was readmitted to the hospital approximately five weeks after the alleged child abuse when a follow-up exam revealed an Aincreased right subdural hematoma.@ The baby was in State custody at the time the subsequent bleeding occurred.
[2] There was no indication in the record as to why the State did not call Dr. Lukefahr as a witness.
[3] She further testified that per Dr. Lukefahr=s request, among other things, the baby was tested for a rare inheritable disease with symptoms similar to shaken baby syndrome. However, she did not know the results of the test, and stated again that Dr. Lukefahr was the expert qualified to testify regarding the disease.
[4] The record indicates that the terms Ashaken impact syndrome@and Ashaken baby syndrome@ reflect two different schools of thought. With respect to shaken baby syndrome, the view is that shaking alone is enough to cause the injuries consistent with the syndrome. With respect to shaken impact syndrome, the view is that the shaking must be accompanied by an impact of some sort.