COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00248-CR
PAVIELLE MONIQUE SIMPSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury found appellant Pavielle Simpson guilty of knowingly causing
serious bodily injury to her son, J.F. Simpson challenges the sufficiency of the
evidence and complains of an error in the indictment. We will affirm the trial
court‘s judgment.
1
See Tex. R. App. P. 47.4.
Background Facts
Simpson and her boyfriend, Jason Farrington, were living in an apartment
with their son J.F. and another couple, Marcus Simpson and Shayla Latham. On
March 26, 2009, one-month-old J.F. was admitted to Cook Children‘s Hospital
with ―orbital eye swelling and a skull fracture.‖ Donna Wright, a nurse at the
hospital, said the fractures were on both sides of his head and described them as
―significant‖ and the result of ―tremendous force.‖ Wright identified two separate
points of impact necessary to explain the stellate fractures on each side of J.F.‘s
head. Simpson believed the injuries were caused by the vacuum extractor used
during his birth and claimed she knew of no trauma that he might have suffered.
Doctors at the hospital believed the injuries were not consistent with a vacuum
extraction but were the result of intentional abuse. Child Protective Services
(CPS) was notified, and an investigator, Sky Gaeta, arrived at the hospital to take
custody of J.F.
Both Gaeta and Wright told Simpson that J.F. had been abused, but
Simpson insisted the injuries were from the vacuum extraction. Gaeta also
informed Simpson that CPS was removing J.F. from her custody and was
creating a safety plan that Simpson would have to agree to follow in order to
have her son returned to her. Simpson appeared concerned about J.F.‘s injuries
and interested in his return.
Detective Savage of the Crimes Against Children unit of the Arlington
Police Department interviewed Simpson at her apartment the next day. Simpson
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reiterated her belief that the injuries were from the vacuum extraction. Detective
Savage told her that they were not from birth, that they were intentional, and that
he believed Farrington had caused them. Simpson told Detective Savage that
she would do anything to get J.F. back, even if it meant leaving Farrington, and
that she could move to Waco to live with her aunt.
The CPS safety plan required Simpson to agree that J.F. ―will not have
contact (physical, verbal, written or other)‖ with Farrington, Marcus Simpson, or
Latham ―until notified otherwise.‖ Arlington police could not determine which of
the three had abused J.F., so Simpson was told that none of them, including
Farrington, could be around J.F. Simpson moved out of the apartment and
moved in with Tanesha Benjamin and Benjamin‘s boyfriend. Simpson told
Benjamin that the doctors did not know how J.F. received his injuries and that
she thought that they happened at his birth. Both Simpson and Benjamin signed
the safety plan.
The night after J.F. was returned to Simpson, Farrington went to
Benjamin‘s apartment. He went to the apartment again the next day and ―never
left.‖ Farrington lived with Simpson and J.F. in the apartment for the next three
months. Simpson told Benjamin that she loved Farrington and could not take
care of J.F. without his help. Farrington would watch J.F. when Simpson was at
work, and Simpson never seemed hesitant to leave J.F. with Farrington.
Gaeta, the CPS investigator, called Simpson on April 9, 2009, to get
contact information for Farrington. Simpson told Gaeta that Farrington had
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moved to New Jersey. Simpson also refused to provide Farrington‘s correct
contact information to Detective Savage, who felt she was hampering the
investigation.
Also on April 9, Simpson took J.F. for a follow-up visit at the hospital. X-
rays and CT scans revealed that J.F.‘s ribs had also been fractured back in
March. When Wright, the nurse who had attended to J.F., showed Simpson the
x-rays and scans, Simpson exclaimed, ―He could have killed my baby.‖ Wright
felt that Simpson adequately understood the danger the child would be in if he
were further exposed to the individual who inflicted the previous injuries.
In May 2009, Gaeta had to close her investigation (which was legally only
allowed to continue for sixty days) and transferred the case to Family Based
Safety Services (FBSS), which assigned it to John Whitfield. Whitfield called
Simpson five or six times before she returned his phone call. She told Whitfield
that she did not know where Farrington was, but she believed he had moved in
with his mother. FBSS gave Simpson a new safety plan, which also included the
condition that J.F. have no contact with Farrington until Farrington had completed
services and had met with CPS.2 Whitfield visited Simpson again on May 19,
2009, and Simpson claimed again not to have any contact information for
Farrington. While Whitfield was at the apartment, Farrington was hiding in the
back bedroom.
2
FBSS safety plans do not expire and are renewed every ninety days.
4
On June 24, 2009, Benjamin and Simpson were at work and Farrington
was alone in the apartment with J.F. Farrington called Simpson at work because
J.F. was not breathing. On the way to the apartment, Simpson called 911. After
speaking to the 911 operator, Simpson told Farrington over the phone that he
had to hide because he was ―not even supposed to be around [J.F.].‖ Farrington
left the apartment before medical services arrived, and Simpson and Benjamin
agreed that Benjamin would tell the police that she was watching J.F. that
morning.
At the hospital, doctors attempted to perform a CAT scan of J.F.‘s head,
but he went into arrest. The PICU doctor testified that his abdomen was filling
with blood as the result of a ―catastrophic injury‖ to his stomach. Because J.F.
kept arresting, they could not operate. The doctor told Simpson that J.F. was not
going to survive, and Simpson immediately made a phone call, screaming into
the phone, ―You killed him, you killed my baby.‖ The doctor tried to explain all of
J.F.‘s injuries to Simpson, but Simpson would not engage in the conversation,
texting and ―messing with her phone‖ instead. Simpson later asked the doctor if
she could get Farrington to admit what he did, whether that would ―make things
better for him.‖
CPS investigator Gaeta was notified and she went to the hospital.
Simpson told her that ―she knew that [Farrington] had caused the injuries, but
that he didn‘t mean to and he was sorry. And that he shouldn‘t go to jail because
he was sick and he just needed to get some help.‖ Gaeta noted that Simpson
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seemed ―unconcerned about [J.F.] and she was just more concerned about
[Farrington] and what would happen to him permanently.‖ Simpson admitted that
Farrington had moved in with her, but she claimed it was after the safety plan
had expired. Gaeta reminded Simpson that Farrington could not move in even
after the plan‘s expiration. Simpson did not respond. While at the hospital,
Simpson told her mother that Farrington had sworn that ―he wouldn‘t hurt [J.F.]
again.‖ Simpson also told her mother at the hospital that ―the only way‖ she
would leave Farrington was ―this situation.‖
Detective Hubbard of the Arlington Police Department also arrived at the
hospital. When he questioned Simpson about her story of the morning‘s events,
Simpson admitted that she had lied but now that her baby was dying, she was
going to tell the truth. Simpson then told Detective Hubbard that Farrington had
moved in, but only after the expiration of the safety plan. She showed the
detective a copy of the plan and pointed out the expiration date. Simpson later
handed Detective Hubbard her cell phone so he could speak to Farrington, who
admitted that he had struck J.F. with his hands on ―the leg, the butt, the stomach,
and the head.‖3
Eventually, the doctor attending to J.F. recommended that he be taken off
life support. Simpson agreed and then said she wanted to be with her new
boyfriend, who was waiting downstairs. Simpson left before J.F. died and
3
Farrington was later arrested and pleaded guilty to injury to a child. He is
currently serving a life sentence.
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returned after his death, asking to hold him. The PICU doctor testified that of all
the conversations she had with Simpson at the hospital, the only time Simpson
initiated a conversation about J.F. was ―the last one where she said, ‗I‘m ready to
turn the machines off, he‘s suffered enough.‘‖
The next day, Detective Hubbard interviewed Simpson again. He testified
that you ―wouldn‘t have known‖ by her demeanor that her child had just died.
She told Detective Hubbard that she had been praying for a sign from God to tell
her to leave Farrington and that J.F.‘s death was the sign she had been looking
for.
Simpson was charged with knowingly, by omission, causing serious bodily
injury to J.F. by failing to protect him from Farrington. A jury trial was held, and
Simpson was found guilty. She was sentenced to thirteen years imprisonment.
This appeal followed.
Standard of Review
Simpson‘s first four issues challenge the legal and factual sufficiency of the
evidence. Simpson‘s first issue claims that the evidence is factually insufficient
to support the jury‘s verdict that she committed first degree injury to a child.
Factual sufficiency claims are no longer viable in Texas because the court of
criminal appeals has held that the legal sufficiency standard articulated in
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), is the only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is
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required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996)). Accordingly, we overrule Simpson‘s first issue.
In her second issue, Simpson contends that the evidence is legally
insufficient to prove that she knew if she left her child with Farrington that it was
reasonably certain that serious bodily injury to the child would result. 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, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Discussion
Simpson contends that the evidence is legally insufficient to sustain the
jury‘s verdict that she knowingly, by her omission, caused serious bodily injury to
J.F. by failing to protect him from Farrington. See Tex. Penal Code Ann. § 22.04
(West 2011). Injury to a child is a ―result of conduct‖ offense. Johnston v. State,
150 S.W.3d 630, 634 (Tex. App.—Austin 2004, no pet.). This means that the
culpable mental state relates not to the nature or circumstances surrounding the
charged conduct, but to the result of that conduct. Patterson v. State, 46 S.W.3d
294, 301 (Tex. App.—Fort Worth 2001, no pet.). A person acts knowingly when
she is aware that her conduct is reasonably certain to cause the result. Tex.
Penal Code Ann. § 6.03(c) (West 2011).
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The jury could have reasonably concluded that Simpson knew that by
allowing Farrington access to J.F., it was reasonably certain that J.F. would be
seriously injured. Simpson knew that Farrington had caused J.F.‘s injuries in
March. She knew that those injuries were intentional and life-threatening. J.F.‘s
injuries were the result of more than a fall; they were the result of extreme force,
akin to ―slap[ping] a baby against the wall.‖ Simpson knew that if she had
protected J.F. from Farrington, J.F.‘s injuries would have been prevented. See
Payton v. State, 106 S.W.3d 326, 331 (Tex. App.—Fort Worth 2003, pet. ref‘d)
(holding that a grandfather knowingly failed to protect his grandson (of whom he
had custody) from the child‘s father when grandfather ―knew [the father] was very
cruel and hurting the children‖). The present case is quite different from Dusek v.
State, 978 S.W.2d 129 (Tex. App.—Austin 1998, pet. ref‘d). See Payton, 106
S.W.3d at 332 (acknowledging that the Dusek court relied on a lack of prior
serious injury in holding that appellant did not act knowingly). In Dusek, the
appellant‘s boyfriend had beaten the victim before, but never so as to create a
serious threat to the child‘s health. 978 S.W.2d at 134. The appellate court held
that the evidence was insufficient to support a finding that the appellant knew her
boyfriend was reasonably certain to inflict serious bodily injury to her child. Id.
Here, Simpson knew that Farrington was capable of inflicting serious bodily injury
to J.F. because he had done it before, only a few months previously.
This case is also unlike Patterson, which Simpson relies upon in her brief.
In Patterson, the appellant‘s ex-boyfriend broke into the appellant‘s house,
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kidnapped the appellant‘s children, and then killed one child and seriously injured
the other. 46 SW3d at 300. The appellant heard the kidnapping, but waited until
the morning to call 911. Id. at 301. This court held there was insufficient
evidence to prove that the appellant knew that if she attempted to stop the
kidnapping, she would have succeeded in preventing injury to her children. Id. at
303.
Here, Simpson could have been reasonably certain that if she had
prevented contact with Farrington as she had been told, Farrington could not
have injured J.F. Stated differently, but for Simpson‘s omission to protect her
child from Farrington, J.F. would not have been injured by Farrington and would
not have died. Simpson knew that Farrington was not allowed to have any
contact with J.F., and she was warned about such prohibited contact by at least
two CPS workers and one police officer. See Rankin v. State, 41 S.W.3d 335,
339–42 (Tex. App.—Fort Worth 2001, pet. ref‘d) (holding that appellant
knowingly, by omission, caused serious injury to a child when he failed to keep a
cover on his septic tank, after he had been warned repeatedly that the tank was
dangerous). Simpson violated that condition immediately, first by allowing
Farrington into the apartment the same night J.F. was released from the hospital
and then by allowing him to move in just days later. Even after seeing the x-rays
of J.F.‘s skull fractures, she continued to allow Farrington to watch J.F. alone.
Simpson admitted upon viewing the x-rays that Farrington could have killed J.F.
by inflicting the previous injuries. By this admission to the nurse practitioner, we
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do not have to speculate about Simpson‘s mental state. See Couchman v. State,
3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999, pet. ref‘d) (noting that proof
of a culpable mental state generally relies upon circumstantial evidence, such as
the suspicious conduct or statements of the actor). Based on the evidence, a
rational jury could have concluded beyond a reasonable doubt that Simpson
failed to protect her child from Farrington, knowing to a reasonable certainty that
Farrington would inflict serious bodily injury to him.
Benjamin testified that if she had known that Farrington had intentionally
caused J.F.‘s injuries, he would not have been allowed in the apartment.
Simpson‘s failure to keep Farrington away from J.F. and her lies to her
roommates about the source of J.F.‘s injuries were the only ways Farrington had
access to J.F. Although Farrington told Simpson it would not happen again,
neither Simpson nor Farrington had undertaken any of the services offered by
FBSS and there was no evidence that Farrington or Simpson had made any
other changes to their lifestyle that could help prevent harm to J.F.
Simpson lied repeatedly to CPS and the Arlington police about Farrington‘s
whereabouts, even as J.F. lay dying in the hospital. She also lied to Benjamin
about the source of J.F.‘s injuries. A jury may infer from a person‘s lying that ―he
had something to hide.‖ Couchman, 3 S.W.3d at 164. It would not be
unreasonable for the jury to have concluded that Simpson lied about Farrington‘s
whereabouts to protect him and so that he may have continued, unfettered
access to J.F. We therefore hold that the evidence is sufficient to support the
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jury‘s verdict that Simpson knowingly, by her omission, caused serious bodily
injury to J.F. by failing to protect him from Farrington. We overrule Simpson‘s
second issue. Because we affirm the trial court‘s judgment that Simpson acted
knowingly, we do not reach Simpson‘s third and fourth issues. See Tex R. App.
P. 47.1.
In her fifth issue, Simpson argues that the indictment is fundamentally
defective because it alleges that J.F. was ―a child younger than 15 years of age‖
instead of tracking the statutory language which defines a child as ―a person 14
years of age or younger.‖ See Tex. Penal Code Ann. § 22.04(c)(1). The record
reflects that Simpson did not raise this issue before trial. Therefore, she has not
preserved the issue for our review. See Studer v. State, 799 S.W.2d 263, 271
(Tex. Crim. App. 1990); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (West
2005); Tex. R. App. P. 33.1(a). We therefore overrule Simpson‘s fifth issue.
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Conclusion
Having overruled all of Simpson‘s dispositive issues, we affirm the
judgment of the trial court.
LEE GABRIEL
JUSTICE
PANEL: WALKER, McCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 2, 2011
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