NO. 07-09-00308-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 12, 2010
RICHARD P. ESCH, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-412,999; HONORABLE JIM BOB DARNELL, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Richard P. Esch, appeals his conviction by jury for the offense of
causing serious bodily injury to a child, 1 and jury-assessed punishment of fifty-five years
incarceration in the Institutional Division of the Texas Department of Criminal Justice
(ID-TDCJ). We will modify the judgment and affirm.
Background
In the early morning hours of March 7, 2005, personnel at University Medical
Center (UMC) in Lubbock, Texas, reported their suspicion that appellant’s daughter,
1
See TEX. PENAL CODE ANN. § 22.04 (a)(1), (e) (Vernon Supp. 2009).
Kylie, had been the victim of child abuse. According to members of the staff, Kylie had
suffered multiple injuries, including shaken baby syndrome.
Appellant and Kylie’s mother, Stephanie Hersom, had three children together.
Kylie was the youngest of these children and was approximately two and a half months
old at the time that the suspected abuse was reported. At that time, appellant was the
primary caretaker of the children, so he was considered the primary suspect in the
abuse.
On March 4, 2005, appellant watched the children while Hersom went to work.
During a break in her work day, Hersom called appellant to check on the children, and
appellant informed Hersom that Kylie had thrown up three or four times. Hersom called
appellant again during a later break, and appellant informed her that the children were
with Cathy and Crystal Timms so that appellant could go look for a job. The Timmses
watched the children on March 4 for approximately five hours. When Hersom returned
home from work, Kylie appeared to be well and in good spirits.
On March 5, Hersom again had to work. She did not notice anything wrong with
Kylie before leaving for work. Hersom called appellant during a break and appellant told
her that Kylie did not eat much, but appellant did not seem concerned about this.
Hersom’s cousin, Lisa Murdock, contacted Hersom and offered to watch Kylie for a
portion of the day. Hersom was still at work when Murdock arrived to take Kylie. When
Murdock entered the home, she noticed that the two older children were covered in
baby oil and had been writing on each other with markers. Murdock found Kylie alone
in the master bedroom with her face covered by a blanket. Kylie was sucking on an
2
empty bottle. Murdock described Kylie as unresponsive and, when Murdock picked
Kylie up, Kylie wimpered and moaned, which struck Murdock as odd. Murdock changed
Kylie’s diaper and noticed that Kylie had a new bruise on her chest. When she asked
appellant about the bruise, appellant told her that one of the older children had fallen on
Kylie. Over the course of the time that Murdock spent with Kylie, Murdock felt that Kylie
was just not acting like herself. According to Murdock, Kylie was lethargic,
unresponsive, and appeared to be in pain. Murdock called Hersom at work and
recommended that Kylie be taken to the emergency room. Hersom called appellant and
asked him to take Kylie to the emergency room, but appellant got upset and refused to
take Kylie.
Hersom went straight home after she got off work. Murdock still had Kylie.
Hersom again talked to appellant about taking Kylie to the emergency room. After
some argument, appellant agreed to pick Kylie up from Murdock and take her to the
emergency room. At the Levelland Hospital emergency room, Hersom informed the
staff of the symptoms that Murdock had described to her. Appellant added that Kylie
had been vomiting and had diarrhea. The emergency room diagnosed Kylie with
gastroenteritis and dehydration and released her.
The following morning, March 6, Hersom awoke to find appellant tending to Kylie.
Kylie was crying and Hersom witnessed appellant spank Kylie on the behind. Hersom
confronted appellant regarding the spanking, which angered appellant. Kylie looked
worse than she had the night before and cried throughout the morning. By the evening,
Kylie’s condition had deteriorated further. She had become very pale and laid in her
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crib lifelessly. Around 5:00 p.m., Hersom noticed that Kylie’s hands and feet began to
twitch and, at some point thereafter, Kylie’s face began to twitch as well. Appellant and
Hersom took the children to Hersom’s mother’s house as her mother was going to
watch the children that evening. Upon seeing Kylie’s condition, Hersom’s mother told
appellant and Hersom to take Kylie to the emergency room immediately.
At the emergency room, Hersom and appellant again recounted Kylie’s
symptoms to the doctors. After examining Kylie, the doctors informed Hersom and
appellant that blood was found in Kylie’s spinal column and that she would have to be
“life-flighted” to UMC in Lubbock.
As mentioned before, personnel at UMC suspected that Kylie had been abused,
so they contacted Children’s Protective Services (CPS). CPS investigator, Jamie
Blount, went to the hospital to investigate the report. As part of the investigation, Blount
interviewed appellant. Blount described appellant as “curt and dismissive” during the
interview. Appellant admitted that he was Kylie’s primary caretaker on March 5 and 6.
Appellant told Blount that one of the older children had fallen on Kylie’s chest, and that
Kylie had not had much to eat or drink since that incident. Because appellant was
Kylie’s primary caregiver during the times that Kylie’s injuries were believed to have
occurred, Blount believed that appellant was the primary suspect in causing Kylie’s
injuries.
Subsequently, the Wolfforth Police Department began a criminal investigation
into the injuries to Kylie. Wolfforth Police Chief Rick Scott obtained background
information on the case from CPS and Kylie’s doctors. Appellant was interviewed by
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police on four different occasions and gave two written statements to the police. In one
of the interviews, about a week after the investigation began, appellant told police that
he had performed CPR on Kylie on March 4. According to appellant, Kylie appeared to
have asphyxiated on vomit necessitating appellant’s performance of CPR. However,
appellant did not call emergency services nor did he inform Hersom of his need to
perform CPR on Kylie on March 4. After an approximate year-long investigation into
Kylie’s injuries, Chief Scott determined that appellant likely caused Kylie’s injuries.
Appellant was indicted for the offense of causing serious bodily injury to a child.
He was further alleged to have used a deadly weapon in the commission of the offense,
to-wit, his hands. Appellant pled not guilty and the case proceeded to trial. At the close
of evidence, the jury found appellant guilty of the indicted offense and made an
affirmative deadly weapon finding. Following a hearing on punishment, the jury
sentenced appellant to incarceration in the ID-TDCJ for a period of fifty-five years and
assessed a $10,000 fine. The trial court subsequently entered a Judgment of
Conviction by Jury that memorialized the jury’s verdicts, but that also assessed court
costs against appellant in an amount of $9,637.50. 2 It is from this judgment that
appellant appeals.
By his appeal, appellant presents four issues. By his first two issues, appellant
challenges the factual sufficiency of the evidence used to establish his guilt, specifically
in reference to identity and causation. By his third issue, appellant contends that the
trial court abused its discretion by excluding expert witness testimony offered by
2
The Judgment further delineates that $373.00 of these costs are for court costs,
while the remaining $9,264.50 are for court-appointed attorney’s fees.
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appellant. By his fourth issue, appellant contends that the evidence was legally
insufficient to support the trial court’s assessment of court-appointed attorney’s fees
against appellant.
Factual Sufficiency
By his first two issues, appellant challenges the factual sufficiency of the
evidence to support his conviction for the offense of injury to a child. Specifically,
appellant challenges the sufficiency of the evidence to establish that he was the person
that committed the crime, and that the serious bodily injuries sustained by Kylie were
the result of a crime.
Standard of Review
When an appellant challenges the factual sufficiency of the evidence supporting
his conviction, the reviewing court must determine whether, considering all the evidence
in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).
In performing a factual sufficiency review, we must give deference to the fact finder’s
determinations if supported by evidence and may not order a new trial simply because
we may disagree with the verdict. See id. at 417. As an appellate court, we are not
justified in ordering a new trial unless there is some objective basis in the record
demonstrating that either the evidence supporting the jury’s verdict is so weak as to be
clearly wrong or manifestly unjust or the great weight and preponderance of the
evidence contradicts the jury’s verdict. See Laster v. State, 275 S.W.3d 512, 518
6
(Tex.Crim.App. 2009); Watson, 204 S.W.3d at 417. Additionally, an appellate opinion
addressing factual sufficiency must include a discussion of the most important evidence
that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603
(Tex.Crim.App. 2003). However, when a defendant’s version of the facts conflicts with
other evidence, it is the jury’s prerogative to judge the credibility of the evidence and to
ascribe the weight to be given to the evidence. Jones v. State, 944 S.W.2d 642, 647-48
(Tex.Crim.App. 1996).
Identity
By his first issue, appellant contends that the evidence that he was the person
that caused Kylie’s injuries was factually insufficient. Appellant’s contention is premised
on the emergency room diagnosis of March 5, which appellant contends is inconsistent
with Kylie having sustained shaken baby syndrome injuries on or before March 5. The
State responds that the evidence is factually sufficient to establish that appellant caused
Kylie’s injuries and, further, appellant did not raise this alternative hypothesis at any
time during trial.
In the present case, appellant contends that, if the evidence establishes that
Kylie did not sustain the injuries for which he is charged until after March 5, then the
evidence is too weak to establish that appellant, rather than Hersom, caused Kylie’s
injuries. Appellant cites the emergency room report of March 5 as providing that Kylie
“looks well, alert, and in no distress.” Combined with expert medical opinion testimony
that the onset of symptoms in a shaken baby syndrome case appear almost
immediately and rapidly deteriorate, appellant’s main argument presented by this issue
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is that it was more probable that Kylie’s injuries occurred on March 6, when both
appellant and Hersom spent the day with the child.
None of the medical experts could testify as to the specific time that Kylie
sustained the injuries for which appellant was tried. Further, there was no eyewitness of
the incident causing Kylie’s injuries. Therefore, evidence establishing that anyone
caused Kylie’s injuries will be circumstantial. Evidence was presented that Kylie had
sustained injuries at varying periods of time, and that at least one of these periods was
when appellant had nearly exclusive care of the child. Further, the jury heard evidence
that appellant was reluctant to take Kylie for medical care, even after Kylie’s condition
began to rapidly deteriorate. In addition, Hersom testified that appellant’s attitude
toward Kylie had become one of anger or frustration and that, in the morning of March
6, she saw appellant spank Kylie for keeping appellant awake all night. Clearly, the
evidence established that appellant had access to Kylie throughout the time that Kylie
may have sustained these injuries.
However, the jury also heard evidence that Hersom had access to the child
during the evening and night hours of March 5 and throughout the day of March 6.
Evidence was presented that Hersom exhibited a somewhat cavalier attitude in the way
that she cared for her children. In addition, while Hersom suffered from a disability to
her legs, evidence was presented to the jury that would have allowed the jury to infer
that Hersom had the physical ability to have inflicted the injuries to Kylie.
Appellant’s main argument under his first issue is nothing more than a
reasonable alternative hypothesis of how Kylie sustained the shaken baby syndrome
8
injuries. While such a reasonable hypothesis may be relevant to our review of the
factual sufficiency of the evidence, it is not determinative. See Wilson v. State, 7
S.W.3d 136, 141 (Tex.Crim.App. 1999). According to appellant’s hypothesis, Kylie’s
injuries could have been caused by Hersom, rather than appellant, because Hersom
had the opportunity to commit the offense. While it is possible that Kylie was not injured
until a time when Hersom had access to, and, therefore, opportunity to have inflicted the
injuries on Kylie, appellant’s hypothetical version of the facts conflicts with other
evidence that presents a version of the facts in which appellant intentionally or
knowingly caused Kylie’s serious bodily injury. By definition, evidence that would allow
a jury to rationally conclude that appellant intentionally or knowingly caused Kylie
serious bodily injury beyond a reasonable doubt is factually sufficient evidence,
regardless of the existence of evidence that would support the possibility that Kylie’s
injuries might have been caused by another person. Further, when an appellant
presents a factual sufficiency challenge based on a version of the facts that conflicts
with other evidence, it is the jury’s prerogative to judge the credibility of the evidence
and to ascribe the weight to be given to the evidence, Jones, 944 S.W.2d at 647-48,
and we, as a reviewing court, are not at liberty to substitute our judgment for that of the
jury. See Watson, 204 S.W.3d at 417.
Consequently, we overrule appellant’s first issue.
Causation
By his second issue, appellant contends that the evidence that Kylie’s injuries
were the result of shaken baby syndrome is factually insufficient. Appellant’s argument
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is premised on the Levelland Hospital’s March 6 diagnosis of Kylie possibly having
meningitis. The State responds that the great weight and preponderance of the medical
evidence in the case supports the conclusion that Kylie’s symptoms were the result of
shaken baby syndrome.
Appellant points to the diagnosis of possible meningitis contained in the above-
referenced medical record and then presents a number of symptoms of meningitis that
are consistent with the symptoms exhibited by Kylie. However, none of these
symptoms of meningitis were presented to the jury in any manner. Rather, appellant
cites sources outside of the record to support his argument. In fact, this theory of
causation was evidenced to the jury, in total, by nothing more than the diagnosis of
possible meningitis found in this one medical record. Even if we were to assume that
the jury should have seized upon this one piece of evidence to the exclusion of the
other evidence of causation, the medical record cited by appellant diagnoses Kylie with
either meningitis or trauma. Further, all of the expert medical opinion testimony offered
at trial was consistent that Kylie’s injuries were the result of shaken baby syndrome.
We overrule appellant’s second issue.
Exclusion of Expert Testimony
By his third issue, appellant contends that the trial court erred in excluding the
expert testimony of Wendy Thal. According to appellant, Thal’s testimony was relevant
to implicate Hersom in causing Kylie’s injuries and, thus, would have decreased the
likelihood that appellant committed the crime. The State responds that appellant failed
to timely designate Thal as an expert witness, as had been ordered by the trial court,
10
and, even if it was error for the trial court to have excluded Thal as an expert, the error
was harmless because Thal’s testimony was cumulative.
A trial court’s decision to admit or exclude evidence, including determining
whether a witness is qualified as an expert, is reviewed under an abuse of discretion
standard. See TEX. R. EVID. 104(a); Penry v. State, 903 S.W.2d 715, 762
(Tex.Crim.App. 1995). The trial court abuses its discretion if its ruling is so clearly
wrong as to be outside the zone of reasonable disagreement. See McDonald v. State,
179 S.W.3d 571, 576 (Tex.Crim.App. 2005). Error in ruling on the admissibility of
evidence is generally non-constitutional error, see Walters v. State, 247 S.W.3d 204,
219 (Tex.Crim.App. 2007), and, as such, reversal is justified only if the error affected
appellant’s substantial rights. See TEX. R. APP. P. 44.2(b).
Appellant offered Thal as an expert witness to testify regarding her evaluation of
Hersom and Kylie’s interaction and bonding as of May of 2005. Thal, who performed
this evaluation as a nurse consultant for CPS, testified, by way of a bill of exception, that
Kylie was not bonded to Hersom and that Kylie appeared to be uncomfortable in her
mother’s presence. Thal further testified that she had evaluated appellant at the time
that she evaluated Hersom, but that the bonding assessment report she had prepared
relating to appellant had been lost.
While it appears that the trial court excluded Thal as an expert on the basis of
appellant’s failure to disclose her as an expert witness in his pre-trial disclosures, we
11
believe that the record establishes that the trial court’s ruling was firmly within the zone
of reasonable disagreement. 3
First, nothing in the bill of exception presenting Thal’s testimony establishes that
she would be qualified to testify as an expert on the subject matter upon which she was
to testify. See Penry, 903 S.W.2d at 762. According to Thal’s testimony, at the time of
trial, she was an assistant professor at Texas Tech University and she taught both
undergraduate classes and classes in the nurse practitioner program. In 2005, Thal
was working with West Texas A & M University and as a nurse consultant with CPS.
While Thal testified that she performed bonding assessments as part of her duties as a
CPS consultant, nothing in her testimony established how she would be expertly
qualified to perform such an assessment. Thal did not testify regarding her education,
did not quantify her experience working with CPS, and did not identify any additional
training that would reasonably qualify her to be an expert in assessing the bond
between a mother and an infant child. Thus, because appellant wholly failed to
establish that Thal was an expert on the subject matter upon which she was called to
testify, we conclude that the trial court did not abuse its discretion in excluding Thal’s
testimony as an expert. 4
Further, even if the evidence should have been admitted as expert testimony, its
exclusion was not harmful to appellant. The lack of a bond between Hersom and Kylie
3
For purposes of our analysis of this issue, we will assume that the trial court’s
exclusion of Thal based on appellant’s failure to disclose her as an expert witness was
erroneous. However, we wish to emphasize that this assumption is not an expression
of our opinion on that matter.
4
Appellant did not offer Thal’s testimony as a fact witness.
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would be expected when four-month-old Kylie had been separated from her mother for
the previous two months. Additionally, this evidence was cumulative of other evidence
establishing that Hersom was not an ideal mother to Kylie or to her other children.
Finally, because Thal’s bonding assessment relating to appellant was not available,
Thal’s assessment of Hersom was significantly lessened in terms of exculpating
appellant since the jury was unable to compare the assessments and because nothing
in Thal’s assessment of Hersom in any way indicated that Hersom exhibited violent
tendencies toward Kylie.
Because the trial court did not abuse its discretion in excluding Thal as an expert
on the basis of her lack of qualifications, and because the exclusion of Thal’s expert
testimony did not affect a substantial right of appellant, we overrule appellant’s third
issue.
Assessment of Court-Appointed Attorney’s Fees
By his fourth and final issue, appellant contends that the evidence was legally
insufficient to support the trial court’s assessment of court-appointed attorney’s fees.
The State concedes error under this issue. Both parties contend that the error may be
remedied by this Court striking the assessment of attorney’s fees from the trial court’s
judgment.
Article 26.05(g) of the Texas Code of Criminal Procedure provides, “[i]f the court
determines that a defendant has financial resources that enable him to offset in part or
in whole the costs of the legal services provided, . . . the court shall order the defendant
to pay during the pendency of the charges or, if convicted, as court costs the amount
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that it finds the defendant is able to pay.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g)
(Vernon Supp. 2009). The key factors in determining the propriety of ordering
reimbursement of fees are the defendant’s financial resources and ability to pay. Mayer
v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010). “Without evidence to demonstrate
appellant’s financial resources to offset the costs of the legal services, the trial court
erred in ordering reimbursement of appointed attorney fees.” Mayer v. State, 274
S.W.3d 898, 901 (Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d at 558.
Here, the record includes no evidence that appellant had the ability to pay
attorney’s fees at the time that the trial court assessed them. As such, we conclude that
the evidence supporting this portion of the judgment is legally insufficient and modify the
judgment to remove the assessment of $9,264.50 for attorney’s fees. See id. at 902.
We sustain appellant’s fourth issue and will modify the judgment to delete the
trial court’s assessment of attorney’s fees.
Conclusion
For the foregoing reasons, we modify the judgment of the trial court to delete the
assessment of $9,264.50 for attorney’s fees. As modified, we affirm the judgment of the
trial court.
Mackey K. Hancock
Justice
Do not publish.
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