Alandus Weaver v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00333-CR

ALANDUS WEAVER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1
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I. Introduction

In four points, Appellant Alandus Weaver appeals from his conviction for

the murder of his eight-month-old daughter, D.W. We affirm.

1
See Tex. R. App. P. 47.4.
 II. Factual and Procedural Background

On June 9, 2009, Tamaira Creagh, D.W.’s mother, called 911 and reported

that a man had entered her North Dallas apartment, attempted to rape her, and

then kidnapped D.W.2 Weaver arrived at the apartment shortly after Dallas

police and was told about the attack and abduction. Dallas police took Weaver,

and, after she was released from medical care, Creagh to police headquarters to

question them about D.W.’s disappearance. Police placed Creagh and Weaver

alone together in an interview room, and Creagh told Weaver that she had

signed consent-to-search forms. Weaver became visibly angry, swore, and said

that there was blood on the baby’s bed. The police videotaped the couple’s

conversation.

After obtaining a search warrant, police searched the couple’s Denton

County apartment and found a red towel on the floor, a baby’s onesie with blood

on it, a pack-n-play with a red stain, and sheets, a comforter, a blanket, and

pillow cases with possible blood stains. The police also found two baby blankets

inside a nearby dumpster.

On June 13, 2009, Creagh, through her attorney, contacted the detectives

assigned to the case and told them that she and Weaver had fabricated the rape

and kidnapping story to cover up D.W.’s death. Dallas police then questioned

2
At the time of D.W.’s death, Weaver and Creagh were moving from an
apartment complex in North Dallas to an apartment in Denton County. The 911
call reporting D.W.’s kidnapping originated from the couple’s North Dallas
apartment.

2
Weaver. On July 2, 2009, after several interviews in which he gave several

versions of events, Weaver admitted that D.W. died in his care.3 D.W.’s body

was never found.

After he was indicted for D.W.’s murder, Weaver filed a motion to suppress

the recordings of his conversation with Creagh and his statements to the police.4

At the suppression hearing, Dallas Police Detective Abel Lopez stated that he

had used his new iPhone as a recording device during the July 2, 2009

interrogation. He said that some portions of the interview were not recorded

because every incoming call or text message had caused the recording to stop,

and that it remained stopped until Lopez noticed and restarted it. Although

Weaver testified that he had requested an attorney several times during the

interrogations, Dallas Police Detectives Emilio Henry, Corey Foreman, and

Lopez all testified that Weaver never asked for an attorney.

The trial court denied Weaver’s motion as to all of Weaver’s recorded

statements, but it sustained his motion on any unrecorded statements. Following

the suppression hearing, the trial court issued written findings of fact and

conclusions of law. The trial court found (1) that Weaver was given his Miranda

warnings before each interview, (2) that the detectives’ testimonies were credible

and convincing, and (3) that Weaver’s testimony was not credible or convincing.

3
Because Weaver challenges the sufficiency of the evidence to uphold his
conviction, we set out the evidence in detail below.
4
The record does not contain a copy of Weaver’s written motion.

3
The trial court also concluded that all of Weaver’s recorded statements were

made freely and voluntarily and that Weaver did not invoke his right to counsel at

any time.

At trial, Weaver stated that he had ―no objection‖ to the admission of the

videotaped recording of the conversation between Creagh and himself. Weaver

objected to the admission of all of his other statements to the police. A jury

convicted Weaver of murder. The trial court assessed punishment and

sentenced Weaver to life imprisonment. This appeal followed.

III. Suppression of Statements

In his third point, Weaver argues that the content and recordings of his

statements should have been suppressed because the statements were not

voluntary. State’s exhibit six is a recording of Weaver’s interaction with Creagh

while they were alone together in the interrogation room. Weaver claims that his

statements were not voluntary because he was not properly warned of his rights

and was not aware that he was being recorded. The remaining exhibits are

recordings of both noncustodial and custodial interrogations in which the

warnings were given. Weaver claims that the statements in those recordings

were not voluntary because he was denied his right to counsel.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

4
In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

5
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

B. Applicable Law

The United States Constitution provides that no person ―shall be compelled

in any criminal case to be a witness against himself.‖ U.S. Const. amend. V.

When an individual is taken into custody or otherwise deprived of his freedom by

the authorities in any significant way and is subjected to questioning, the privilege

against self-incrimination is jeopardized. Miranda v. Arizona, 384 U.S. 436, 478,

86 S. Ct. 1602, 1630 (1966). The Fifth Amendment thus requires officers to

advise a suspect whom they have arrested that he has the right to remain silent

and to have an attorney present during questioning. ED.W.ards v. Arizona, 451

U.S. 477, 481–82, 101 S. Ct. 1880, 1883 (1981). The Fifth Amendment right to

counsel will attach only when affirmatively invoked by the suspect. Miranda, 384

U.S. at 473–74, 86 S. Ct. at 1627.

6
C. Analysis

Weaver first asserts that his statements on the recording of his

conversation with Creagh, including his statement that there was blood in D.W.’s

bed, were not voluntary because he was not given Miranda warnings. See

Miranda, 384 U.S. at 478, 86 S. Ct. at 1630.

At trial, Weaver, outside the presence of the jury, reurged his motion to

suppress, which the trial court denied. However, when the recording was then

offered during trial, Weaver’s counsel said, ―Your Honor, I have no objection.‖

When a pretrial motion to suppress evidence is overruled, the accused need not

subsequently object to the admission of the same evidence at trial in order to

preserve error. James v. State, 772 S.W.2d 84, 97 (Tex. Crim. App.), vacated on

other grounds, 493 U.S. 885 (1989). However, when the accused affirmatively

asserts during trial that he has ―no objection‖ to the evidence, he waives any

error in its admission. Id. Therefore, Weaver waived any error in the trial court’s

suppression ruling as to State’s exhibit six and forfeited the right to complain

about it on appeal.5

5
Even if the issue had been preserved, Weaver does not suggest that he
was in custody or that there was any questioning by law enforcement officers
when the statements on this recording were made. Miranda only applies to
custodial interrogations. Miranda, 384 U.S. at 467, 86 S. Ct. at 1624 (―[T]he
process of in-custody interrogation of persons suspected or accused of crime
contains inherently compelling pressures . . . .‖). Weaver also argues that these
statements should have been suppressed because he was unaware that he was
being recorded. However, the law does not require that he be so informed. See,
e.g., Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005); Moore v. State, 882
S.W.2d 844, 846 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995).

7
 Weaver further asserts that his statements to the police should have been

suppressed because he requested to have an attorney present but was denied

that right. At the suppression hearing, the trial court heard testimony from the

interrogating officers that Weaver did not make any requests for an attorney.

Additionally, Weaver testified that he had requested an attorney during gaps in

the recordings and during a restroom break, that he did not think he had asked

for an attorney at one interview, and that he asked ―towards the end‖ of another

interview. In his written findings of fact and conclusions of law, the trial court

stated that it found the officers’ testimony to be credible and convincing and that

Weaver’s testimony was not.

Because the question turns entirely on the credibility of the witnesses, we

defer to the trial court’s findings of fact. See Kelly, 204 S.W.3d at 818–19.

These findings are dispositive of the legal ruling: that Weaver did not invoke his

right to counsel at any point. Id. at 818. We overrule Weaver’s third point.

IV. Legal Sufficiency

In his second point, Weaver argues that the evidence was legally

insufficient to prove that he committed felony murder or the underlying felony,

injury to a child. Specifically, Weaver asserts that the State failed to prove that

he was responsible for D.W.’s death, rather than some third party, and that the

8
State failed to prove that he had the requisite culpable mental state required for

injury to a child.

A. Standard of Review

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). The standard of review is the same for direct

and circumstantial evidence cases; circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor. Clayton, 235 S.W.3d at 778;

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In determining the

sufficiency of the evidence to show an appellant’s intent, and faced with a record

that supports conflicting inferences, we ―must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflict

in favor of the prosecution, and must defer to that resolution.‖ Matson v. State,

819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Juries may draw multiple

reasonable inferences as long as each inference is supported by the evidence

presented at trial. Hooper, 214 S.W.3d at 15. The sufficiency of the evidence

should be measured by the elements of the offense as defined by the

hypothetically correct jury charge for the case, not the charge actually given.

Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009); Malik v. State, 953

9
S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App.), cert. denied, 130 S. Ct. 515 (2009); Malik, 953 S.W.2d at 240.

B. Applicable Law

A person may be convicted of murder when ―in the course of and in

furtherance of the commission or attempt [of a felony], . . . he commits or

attempts to commit an act clearly dangerous to human life that causes the death

of an individual.‖ Tex. Penal Code Ann. § 19.02(b)(3) (West 2011). Here, the

underlying felony is injury to a child. A person commits the offense of injury to a

child ―if he intentionally, knowingly, recklessly, or with criminal negligence, by act

or intentionally, knowingly, or recklessly by omission, causes to a child, . . . : (1)

serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3)

bodily injury‖. Id. § 22.04(a) (West 2011). Injury to a child is a result-oriented or

―result of conduct‖ crime. Patterson v. State, 46 S.W.3d 294, 301 (Tex. App.—

Fort Worth 2001, no pet.). That is, the culpable mental state relates not to the

nature of or circumstances surrounding the charged conduct, but to the result of

the defendant’s conduct. Id. (citing Haggins v. State, 785 S.W.2d 827, 828 (Tex.

Crim. App. 1990)); see also Alvarado v. State, 704 S.W.2d 36, 38–39 (Tex. Crim.

App. 1985); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. [Panel Op.]

1980). Put another way, the conduct must be done with the required culpability

10
to effect the result. Patterson, 46 S.W.3d at 301 (citing Alvarado, 704 S.W.2d at

39).

Here, the jury charge stated that Weaver

commit[ted] or attempt[ed] to commit a felony, to-wit: Injury to a
Child, and in the course of and in furtherance of the commission or
attempt of said Injury to a Child offense, the defendant committed or
attempted to commit an act clearly dangerous to human life, to-wit:
by shaking [D.W]., by causing [D.W.] to strike an unknown object, by
striking [D.W.] with an unknown object, by repeatedly pouring water
in [D.W.’s] mouth or by submersing [D.W.] in water that caused the
death of [D.W].[6]

C. Evidence at Trial

1. Creagh’s Testimony

Creagh testified that on June 13, 2009, she recanted the rape and

kidnapping story and told police that she left D.W. with Weaver when she went to

work on June 8, 2009; that when Weaver picked her up from work later that day,

D.W. was not with him; that when they arrived at the Denton County apartment,

D.W. was lying on the floor under a red towel, naked and covered with bruises;

that D.W. was limp and not breathing; and that Weaver would not allow Creagh

to call 911. She said that after Weaver’s attempts to revive D.W. failed, they put

D.W. in a car seat in the back seat of Weaver’s car and drove around to find a

place to dispose of D.W.’s body. When Weaver and Creagh determined that

they did not have enough gas to get to Lake Lewisville, they returned to their

apartment, left D.W.’s body in the car, and went to bed.

6
Weaver does not challenge any part of the trial court’s charge to the jury.

11
 Creagh said that the next day, with D.W.’s body in the back seat of the car

and beginning to smell, Weaver took Creagh to work at 2:30 p.m. and told her to

obtain a daily bonus sufficient to pay for enough gas to get to Lake Lewisville.

She said that Weaver, still with D.W.’s body in the car, picked Creagh up from

work around 9:00 p.m., purchased gas with a ten-dollar bonus Creagh had

earned, and headed to Lake Lewisville to dispose of D.W.’s body. On the way to

the lake, Creagh recalled Weaver asking a police officer for directions. She also

said that Weaver stopped at a construction site to pick up a sandbag that he later

tied to D.W.’s leg before dropping her body into the water. Creagh said the

couple then went to the Dallas County apartment where they staged the story

about the attempted rape and kidnapping. To make the story more believable,

Creagh said that Weaver stretched her clothes, pulled her hair, and hit her in the

face.

Creagh said that she cooperated with Weaver because she was afraid of

him. During her testimony, the State introduced Creagh’s timeslips from her job

showing when she worked on June 8, 2009, and June 9, 2009.7 Also during

Creagh’s testimony, the State published to the jury the June 10, 2009 recording

of Weaver and Creagh in the police interview room showing Weaver’s

displeasure at Creagh’s signing consent-to-search forms.

7
Although Creagh testified that she worked from 2 p.m. to 9 p.m. on June 8
and from 3 p.m. to 9 p.m. on June 9, her timesheet reflects that she actually
worked from 3 p.m. to 9 p.m. on June 8 , and from 2 p.m. to 9 p.m. on June 9.

12
 2. Dallas Police Detective Emilio Henry’s Testimony

Detective Henry testified that he was involved from the beginning of the

investigation and that he interviewed Creagh and Weaver early in the morning on

June 10, 2009. He stated that Weaver remained steadfast in the rape and

kidnapping story. He confirmed that Creagh had signed consent forms allowing

police to search the couple’s Denton County apartment and that when Weaver

learned of Creagh’s consent, Weaver became visibly angry with her and stated,

―You didn’t have to sign shit. You know there’s blood in the baby’s bed.‖8

Detective Henry said that on June 13, 2009, after speaking with Creagh,

the course of the investigation changed from rape and kidnapping to tampering

with evidence and murder. He stated that on June 13, 2009, he also spoke with

Weaver, who had been arrested and was being held on an unrelated traffic

warrant, and that after Weaver waived his rights, Weaver admitted that the rape

and kidnapping story was not true.

Detective Henry testified that he next spoke with Weaver at Weaver’s

request on July 2, 2009, at the Denton County jail. Detective Henry then recited

the events depicted in State’s exhibit nine, a recording of his last interview with

Weaver that was published to the jury at the end of the Detective’s testimony,

which we detail below. He concluded by confirming that on July 3, 2009, Weaver

took the detectives to the construction site where he had obtained the sandbag

8
In addition to recording Weaver and Creagh in the interview room, the
officers observed them ―live‖ via closed-circuit monitors.

13
used to weigh down D.W.’s body and to the location on the bridge where he

dropped D.W.’s body into Lake Lewisville.

3. State’s Exhibit Nine: Recording of Weaver’s July 2, 2009

Interview9

On July 2, 2009, at Weaver’s request, Detectives Henry, Lopez, and

Foreman met with Weaver at the Denton County jail. After waiving his rights,

Weaver first told the officers that D.W.’s neck had swollen after she had eaten an

orange and that although she had trouble swallowing, he did not take her to the

doctor. He then said that he had D.W. with him when he picked up Creagh from

work on June 9, 2009, and that after he went to the North Dallas apartment, he

put the baby carrier down on the floor, flipped open the top, noticed that D.W.

was not breathing, and performed CPR.

Weaver later admitted that on June 9, 2009, while bathing D.W., he had

poured six to eight cups of water on her head to rinse the soap out of her hair,

and that she had choked on the water. He said that D.W. seemed lifeless as he

dried her and put her diaper on, that her eyes looked like she was falling asleep,

that he did not feel her move when he was doing her hair, and that he left her on

a towel on the floor. He admitted that D.W. died two hours before he picked

Creagh up from work and that he and Creagh left D.W.’s body in the car

9
Although all of Weaver’s recorded pretrial statements were admitted into
evidence, only the recording of his July 2, 2009 statement was published to the
jury.

14
overnight. He confirmed that he had asked a neighbor about a lake, that he had

stopped at a construction site to pick up a sandbag to weigh D.W.’s body down,

and that he had talked to a police officer before he and Creagh had disposed of

D.W.’s body in Lake Lewisville. Weaver then offered to show the detectives

where he had dumped D.W.’s body into the lake. At the conclusion of the

interview, Weaver confirmed that he had asked to speak to the detectives and

that he did so voluntarily.

4. Additional Prosecution Witnesses’ Testimonies

Dr. Matthew Cox, a board-certified pediatrician, testified that the vast

majority of infant drownings are accidental and result from neglectful supervision,

such as ―children left unsupervised in a bath tub who have become submerged

and can’t protect themselves.‖ He also said that based on his experience and

training, physical signs that a child was drowning would include a ―struggle, trying

to breathe . . . gasping for breath, moving around. . . . [C]hoking noises.‖ He also

testified that appropriately performed CPR would leave at most small bruises

over the breast bone, but no bruising on the child’s face or stomach.

Search One Rescue Team Member Paul Lake testified that two dogs

trained to detect human remains independently alerted on Weaver’s car. Hickory

Creek Police Officer Jason Stevens testified that on June 9, 2009, he observed

Weaver run a stop sign but said that before he could pull Weaver over, Weaver

pulled over alongside his marked patrol car, indicated that he was trying to get to

a hospital and asked Stevens for directions to Lewisville. Stevens said he

15
directed Weaver to Interstate Highway 35—a route that included a bridge across

Lake Lewisville. Dallas County Crime Lab Analysts Christi Wells and Angela

Fitzwater testified that the items collected from Creagh and Weaver’s apartment

tested positive for human blood and that based on DNA analysis, there was a

one in 3.42 trillion chance that Weaver and Creagh were not the biological

parents of the person whose blood was on the collected items. Dallas Crime

Scene Detective Will Vick testified that he found sand on the front passenger

floorboard of Weaver’s car.

All Nations Fellowship Church Pastor Robert Cannady, Creagh’s pastor,

testified that on June 12, 2009, Creagh told him what had happened to D.W. and

that he advised her to contact an attorney and to tell the police the truth. Tammy

Creagh, Creagh’s aunt, and Pamara Childress, Creagh’s mother, both testified

that on the night of the alleged rape and kidnapping, Weaver did not appear

distraught about D.W.’s disappearance. Harold Hall, Weaver and Creagh’s

Denton County neighbor, testified that about 3:30 p.m. on June 9, 2009, Weaver

asked him about lakes in the area, and he told Weaver that Lake Lewisville was

close by.

Bryan Perry, Weaver’s childhood friend who was called by the prosecution,

testified on cross-examination that he had never seen Weaver physically hurt

Creagh but that he had witnessed Creagh attack Weaver.

16
 5. Weaver’s Testimony

Weaver testified that he was D.W.’s primary caregiver, that Creagh was

with D.W. when she stopped breathing, and that because Creagh feared she

would go to jail, she insisted that they hide the body. He said that the couple

drove to Lake Lewisville the night of D.W.’s death but that he convinced Creagh

not to drop D.W.’s body in. He also said that he took Creagh back to their

apartment, left for a while, and returned to find that Creagh had called 911 with

the kidnapping story that she had made up.

During cross-examination, Weaver admitted that he had lied to the police

and that he had told police several versions of the events. He also admitted that

he told police that D.W. had drowned and that he had thrown D.W.’s body into

Lake Lewisville.

D. Analysis

1. Proof of Identity

Weaver argues that no direct evidence proves that he was the guilty

party.10 The State relied extensively on circumstantial evidence, but

circumstantial evidence can be as probative as direct evidence. Clayton, 235

S.W.3d at 778; Hooper, 214 S.W.3d at 13. As we have detailed above, the

record is replete with Weaver’s admissions, attempts to conceal incriminating

10
Weaver suggests various alternate hypotheses consistent with the
evidence. However, the alternate reasonable hypothesis theory does not apply
to a legal sufficiency review. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim.
App. 1999).

17
evidence, inconsistent statements, and implausible explanations, which are all

probative of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004). These not only tend to prove that the crime occurred, but also tend to

point specifically to Weaver as the guilty party. See id. Although Weaver’s

extrajudicial admissions do not amount to a full confession, they do permit a

reasonable inference of his guilt. The jury was free to draw multiple reasonable

inferences from Weaver’s conflicting admissions. See Zavala v. State, 956

S.W.2d 715, 722 (Tex. App.—Corpus Christi 1997, no pet.) (―Given the number

of times appellant changed her story, we conclude that a jury could have

found . . . that she committed the crimes of her own volition.‖).

Because we must presume that the factfinder resolved any conflicting

inferences against Weaver and defer to that resolution, we hold that a rational

factfinder could have believed that Weaver was the guilty party beyond a

reasonable doubt. See Matson, 819 S.W.2d at 846.

2. Proof of Culpable Mental State

Weaver points out that the State did not present any direct evidence of a

culpable mental state as an element of injury to a child. 11 However, mental state

may be inferred from circumstantial evidence such as acts, words, and conduct.

11
The felony murder rule dispenses with the necessity of proving mens rea
accompanying the homicide itself; the underlying felony supplies the culpable
mental state. See generally Flores v. State, 102 S.W.3d 328, 330 (Tex. App.—
Eastland 2003, pet. ref’d) (citing Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim.
App.1999)).

18
Guevara, 152 S.W.3d at 50. In injury to a child cases, there is rarely direct

evidence of exactly how the injuries occurred, which is why the culpable mental

state may be inferred from circumstantial evidence. Williams v. State, 294

S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

The evidence supports the reasonable inference that Weaver acted with

one of the culpable mental states alleged in the indictment and set out in the jury

charge. First, there was testimony that Weaver prevented Creagh from calling

911 when she found D.W.’s body. A reasonable juror could infer that this

showed a consciousness of guilt and that, therefore, D.W.’s death was not

caused by a mere accident, but rather by an intentional, knowing, reckless, or

criminally negligent act. See Tex. Penal Code Ann. § 6.03 (West 2011); Fuentes

v. State, 880 S.W.2d 857, 860–61 (Tex. App.—Amarillo 1994, pet. ref’d) (stating

that the jury could infer that defendant acted intentionally or knowingly by

omission when he failed to seek medical care when he thought baby’s arm was

broken).

A similar inference could be drawn from the false kidnapping story.

Weaver’s efforts to conceal D.W.’s body strongly imply a consciousness of guilt.

So, too, does Weaver’s angry outburst when Creagh told him she had signed the

consent-to-search forms. We defer to the factfinder’s resolution of any conflicting

inferences. See Matson, 819 S.W.2d at 846. There was sufficient evidence for

the jury to reasonably infer that Weaver acted with one of the alleged mental

states. See Guevara, 152 S.W.3d at 50; Haggins, 785 S.W.2d at 827.

19
 Based on the evidence set out above, we conclude that a rational trier of

fact could have found each element of injury to a child and of felony murder

beyond a reasonable doubt. We overrule Weaver’s second point.

V. Accomplice Testimony

In his first point, Weaver contends that his conviction was improperly

based on accomplice testimony.

A. Standard of Review

Article 38.14 of the code of criminal procedure provides that

[a] conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the
defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).

When evaluating the sufficiency of corroboration evidence under the

accomplice-witness rule, we ―eliminate the accomplice testimony from

consideration and then examine the remaining portions of the record to see if

there is any evidence that tends to connect the accused with the commission of

the crime.‖ Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008)

(quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). To

meet the requirements of the rule, the corroborating evidence need not prove the

defendant’s guilt beyond a reasonable doubt by itself. Malone, 253 S.W.3d at

257; Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999); Gill v. State,

873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Nor is it necessary for the

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corroborating evidence to directly link the accused to the commission of the

offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert.

denied, 528 U.S. 1082 (2000). Rather, the evidence must simply link the

accused in some way to the commission of the crime and show that ―rational

jurors could conclude that this evidence sufficiently tended to connect [the

accused] to the offense.‖ Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim.

App. 2009).

There is no set amount of nonaccomplice corroboration evidence that is

required for sufficiency purposes; ―[e]ach case must be judged on its own facts.‖

Malone, 253 S.W.3d at 257 (quoting Gill, 873 S.W.2d at 48). Circumstances that

are apparently insignificant may constitute sufficient evidence of corroboration.

Trevino, 991 S.W.2d at 852.

Additionally, ―[p]roof that the accused was at or near the scene of the crime

at or about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish

sufficient corroboration to support a conviction.‖ Malone, 253 S.W.3d at 257

(quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). But

―mere presence alone of a defendant at the scene of a crime is insufficient to

corroborate accomplice testimony.‖ Id. (quoting Golden v. State, 851 S.W.2d

291, 294 (Tex. Crim. App. 1993)).

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 The accomplice-witness rule is a statutorily imposed sufficiency review and

is not derived from federal or state constitutional principles that define the legal

sufficiency standards. Cathey, 992 S.W.2d at 462–63.

B. Analysis

The record contains significant nonaccomplice evidence tending to

connect Weaver with the crime, including Weaver’s own statements. In State’s

exhibit nine, Weaver admitted that D.W. died while alone with him and that D.W.

was not with him when he picked Creagh up from work. Weaver also admitted

driving to the lake, finding a sandbag to tie to D.W.’s body, and dropping D.W.’s

body into the water. Weaver’s admissions corroborate Creagh’s accomplice

testimony and tend to connect Weaver with the crime. See Malone, 253 S.W.3d

at 257; see also Cox v. State, 830 S.W.2d 609, 611–612 (Tex. Crim. App. 1992)

(concluding that appellant’s confession that he was at scene, combined with

other suspicious factors, was sufficient to corroborate accomplice testimony);

Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990) (noting that a

defendant’s confession that is not dependent upon accomplice testimony for

proof may be sufficient to corroborate accomplice testimony), overruled on other

grounds by Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1994); Jackson

v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (―It is well established that

appellant’s admission . . . , under most circumstances, will be sufficient to

corroborate the accomplice witness.‖)

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 Additionally, Weaver’s admissions were not the only nonaccomplice

evidence. Hall testified that on the afternoon of June 9, 2009, while Creagh was

still at work, Weaver asked him if he knew ―where any good lakes were,‖ and that

he directed Weaver to Lake Lewisville. Officer Stevens testified that he

encountered Weaver near Lake Lewisville at the relevant time. Cadaver search

dogs alerted on Weaver’s car, sand was found on the car’s floor, and D.W.’s

blood (identified by DNA testing) was found on several items taken from the

Denton County apartment and on two blankets found in a nearby dumpster.

Additionally, Creagh’s timesheets from her job corroborated that she was away

from the apartment at the critical time. All this evidence tends not only to show

that an offense was committed but also to connect Weaver to the offense. See

Tex. Code Crim. Proc. Ann. art. 38.14; Carillo v. State, 566 S.W.2d 902, 908

(Tex. Crim. App. 1978) (holding that sufficient evidence ―meshe[d] perfectly‖ with

accomplice testimony).

The above non-accomplice corroborating evidence need not have been

sufficient to prove guilt beyond a reasonable doubt. Simmons, 282 S.W.3d at

508. It was, however, sufficient for a rational jury to have concluded that the

corroborating evidence tended to connect Weaver to the murder. See id.;

Cathey, 992 S.W.2d at 462. We overrule Weaver’s first point.

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 VI. Mistrial

In his fourth point, Weaver contends that the trial court abused its

discretion by denying his motion for a mistrial following a question about Weaver

hitting Creagh.

We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert.

denied, 542 U.S. 905 (2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.

App. 2000).

Mistrial is appropriate for only ―highly prejudicial and incurable errors,‖ and

the trial court is required to grant a motion for a mistrial only when the improper

evidence is ―clearly prejudicial to the defendant and is of such character as to

suggest the impossibility of withdrawing the impression produced on the minds of

the jurors.‖ See Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648; see also

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (stating that a

motion for mistrial will be granted only in ―extreme circumstances, where the

prejudice is incurable‖). When an improper question is not answered, an

instruction to disregard will usually render any error harmless. Turner v. State,

719 S.W.2d 190, 194 (Tex. Crim. App. 1986).

Weaver’s issue is based on the following exchange:

Q. [State] Did you ever see the picture of [Creagh] in
the hospital where she had the cut on the
inside of her mouth?

A. [Detective Foreman] I didn’t see the picture, no.

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 Q. [State] Well, if she had a cut on the inside of her
mouth, that might be evidence that
someone hit her, though?

[Defense]: Objection, Your Honor. Assuming facts not
in evidence.

The Court: Sustained.

[Defense]: Ask the Court to instruct the jury to
disregard.

The Court: Ladies and gentlemen, you’ll disregard the
last question.

[Defense]: Move for a mistrial, Your Honor.

The Court: Denied.

We note first that the objected-to question was not answered, so the trial

court’s instruction to disregard rendered any error harmless unless it was clearly

prejudicial or of such a character that its impression could not be withdrawn. See

id. We further note that before this exchange, the photograph in question had

already been admitted into evidence without objection and that Creagh had

testified, also without objection, that she received the cut depicted when Weaver

hit her to substantiate the attempted rape story. In addition, Creagh later

testified, in response to defense counsel’s questions, to numerous beatings by

Weaver. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)

(holding that no error occurred ―when other such evidence was received without

objection, either before or after the complained-of ruling‖). Under these

circumstances, the unanswered question was neither clearly prejudicial nor

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impossible to disregard. As a result, the trial court did not abuse its discretion in

denying the motion for a mistrial. We overrule Weaver’s fourth point.

VII. Conclusion

Having overruled each of Weaver’s points, we affirm the trial court’s

judgment.

BOB MCCOY
JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 15, 2011

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