PD-1430-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/1/2015 5:15:52 PM
Accepted 12/2/2015 9:30:26 AM
ABEL ACOSTA
ORAL ARGUMENT REQUESTED CLERK
December 7, 2015
NO. PD-1430-14
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
SITTING AT AUSTIN, TEXAS
SHELLEY WALKER,
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
On Petition for Discretionary Review
To the Court of Appeals Twelfth
Supreme Judicial District Cause
No. 12-12-00379-CR
BRIEF ON THE MERITS
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net
ATTORNEY FOR PETITIONER
IDENTITY OF THE PARTIES AND COUNSEL
APPELLANT:
Shelley Walker
APPELLANT’S TRIAL COUNSEL:
Scott Ellis
419 West Houston Street
Tyler, Texas 75702
903-596-7600
903-596-7605 (Fax)
Cameron Castleberry
422 South Spring Avenue
Tyler, Texas 75702
903-330-3909
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jason Parrish
Jeff Wood
Kenneth Biggs
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
i
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
ii
TABLE OF CONTENTS
DESCRIPTION PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Court of Appeals erred in finding legally sufficient
evidence in this case, and allows this Court to reexamine the
issue of factually sufficient evidence from Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010)
ISSUE TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Court of Appeals erred in allowing a speculative verdict to
stand in contrast to this Court’s instructions.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Clewis and Brooks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. Speculative Verdict Allowed to Stand. . . . . . . . . . . . . . . . . . . 20
3
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4
INDEX OF AUTHORITIES
STATUTES
TEX. PENAL CODE ANN. §22.04(a)(1) (West 2011). . . . . . . . . . . . . . . . . . . 2
CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).. . . . . 3, 6, 7, 17
Clayton v. State, 235 S.W. 3d 772 (Tex. Crim. App. 2007). . . . . . . . . . 22
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1997). . . . . . . . . . . 7, 8
Garcia v. State,367 S.W.3d 683, 687 (Tex. Crim. App. 2012). . . . . . . . 22
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). . . . . . . . . . 21
Jackson v. Virginia, 443 U.S. 307, 319 (1979). . . . . . . . . . . . 7, 18, 19, 20
Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990). . . . . . . . . 9
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Texas 1986). . . . . . . . . . . 9
Ex parte Schuessler, 846 S.W.2d 850 (Tex. Crim. App. 1993). . . . . . . . . 8
Tibbs v. Florida, 457 U.S. 31 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Walker v. State, 12-12-00379-CR, 2014 Tex. App. LEXIS 10466 (Tex.
App. – Tyler). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Walker v. State, No. 12-12-00378-CR, 2014 Tex. App. LEXIS 10443
(Tex. App. – Tyler) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
RULES
TEX. R. APP. P. ANN. 9.4 (West 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5
PD-1430-14
SHELLEY WALKER, § IN THE COURT OF
PETITIONER §
§
VS. § CRIMINAL APPEALS
§
THE STATE OF TEXAS, §
APPELLEE § AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Shelley Walker, Petitioner and Defendant in the trial court,
respectfully submits this Brief on the Merits complaining of the ruling
and opinion by the Court of Appeals for the Twelfth Supreme Judicial
District, and would show the Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
This Court has granted oral argument so that all matters may be
clarified and any questions presented by the briefs of the parties may
be addressed in a proper manner. Counsel is prepared to appear at the
Court’s pleasure.
1
STATEMENT OF THE CASE
Shelley Walker was indicted for the first degree offense of injury to
a child in Smith County Texas on May 10, 2012. CR 1-21; TEX PENAL
CODE ANN. §22.04(a)(1) (West 2011). The case was consolidated for
trial with her husband, Kenneth Walker. IV RR 21-252. Following the
presentation of evidence, the Walkers were convicted. CR 266. The
jury assessed punishment at twenty-five years confinement. CR 281,
285-86. Notice of appeal was timely filed. CR 298. The Court of
Appeals affirmed the trial court’s judgment in an unpublished opinion.
This Court granted discretionary review.
1
References to the Clerk’s Record are noted as “CR” with
an arabic numeral following “CR” specifying the correct page.
2
References to the Reporter’s Record are noted as “RR” with
a roman numeral preceding “RR” indicating the volume, and an
arabic numeral following specifying the applicable page in the
record.
2
ISSUES FOR REVIEW
ISSUE ONE: The Court of Appeals erred in finding legally
sufficient evidence in this case, and allows this Court to reexamine
the issue of factually sufficient evidence from Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010).
ISSUE TWO: The Court of Appeals erred in allowing a speculative
verdict to stand in contrast to this Court’s instructions.
STATEMENT OF FACTS
Shelley and Kenneth Walker adopted their three grandchildren
after they were removed by CPS due to abuse and neglect. V RR 54,
VIII RR 70-71. B.W., one of the adopted grandchildren was alleged as
the victim in this indictment.3 B.W. had scald burns to both feet, most
likely caused by water in the family’s bathtub. VI RR 104-5.
The State’s theory was that B.W. was forcibly immersed by both
of the Walkers and held in the water. IX RR 136. The Walkers theory
was that B.W. caused the injuries herself accidentally.
B.W. had been burned at approximately 8:35 to 8:38 that
morning. VII RR 65. Shelley Walker began calling Amanda Walker at
3
References to juveniles are made by initials.
3
8:38 that morning. VII RR 109. At that point, B.W.’s feet were red and
Amanda instructed Shelley Walker to put them in cold water. VII RR
111. Then B.W.’s skin began to peel and Amanda instructed the
Walkers to call EMS. VII RR 112. At 8:54 Kenneth Walker called 911
and was connected with the Tyler Police Department. VII RR 19, 25.
EMS was dispatched at 8:56 a.m. VII RR 139.
Upon initial inspection by police, the water heater was set one
level below the maximum temperature. VII RR 120. The thermostat
was then turned on and allowed to heat for thirty minutes. VII RR 121.
At that thermostat setting the water temperature was checked in the
kitchen, the master bathroom sink and the bathtub and each resulted
in a maximum temperature of 120-122 degrees Fahrenheit. VII RR
122-23. The officers then increased the setting to the maximum and
were able to achieve a maximum temperature of 131 degrees in the
master bathroom from the tap. VII RR 127. In the tub, with four to six
inches of water the maximum temperature was 128 to 129 degrees. VII
RR 127.
A ten to fifteen second exposure to water at 130 degrees would be
sufficient to cause these types of injuries. VI RR 111. However, if the
4
water was 126-129 degrees, a second degree burn could take two
minutes. VIII RR 24. Initially, the treating physician believed that the
burns were severe and would require grafting. VIII RR 11. The burns
were able to heal without the need for skin grafts or reconstruction. VI
RR 110.
Water heated to this temperature would not produce burns
instantly, and if water that temperature had been splashed onto the
skin, it would not have left any splash marks. VI RR 121, 123. The tub
itself even when completely turned off allowed a pencil size stream of
water to enter the tub. VII RR 64-65, 79.
B.W. and N.W. both had their underclothes on the floor in the
bathroom. VI RR 145, XVI RR State Ex. 40. The height of the bathtub
meant that B.W. could not climb in or out of the tub one foot at a time,
like an adult. VI RR 144, VII RR 63-64. She would have to sit on the
edge of the tub to get in or out. B.W. also had scrapes on her thighs
consistent with sliding over a metal railing to get in or out of the
bathtub. VI RR 134-35. The bathtub had sliding glass doors with a
metal frame surrounding the doors including on the tub itself. VII RR
49, XVI RR State Ex. 40. N.W., had been diagnosed as autistic and
5
described as an ‘instigator.’ VI RR 35, VIII RR 100. He has previously
pulled his sister B.W. into the bathroom and locked the door. VI RR
363.
SUMMARY OF THE ARGUMENT
This case, and the companion case Kenneth Walker v. State, PD-
1429-14 illustrate the necessity for a factual sufficiency of the evidence
review. Following the opinion in Brooks, the Court of Appeals analyzed
these cases using only a legal sufficiency analysis. The Walkers seek a
reversal of the Brooks plurality opinion and find the evidence was
factually insufficient to support the conviction. In this case, the
analysis at the Court of Appeals, following Brooks, allowed the
judgments to stand despite investigating officers changing the setting
of the water heater and a verdict which can only be characterized as
supported by inference upon inference based on speculation which is in
contrast with this Court’s previous rulings.
6
ARGUMENT AND AUTHORITIES
Issue One, Restated: The Court of Appeals erred in finding legally
sufficient evidence in this case, and allows this Court to reexamine the
issue of factually sufficient evidence from Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010).
Issue Two, Restated: The Court of Appeals erred in allowing a
speculative verdict to stand in contrast to this Court’s instructions.
A. Clewis and Brooks
Jackson established the standard of review to determine if
evidence was legally sufficient to support the verdict. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979). The critical inquiry was, in viewing the evidence in the light
most favorable to the prosecution, 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.
In 1997, this Court held that because of Texas constitution and
statutory provisions, appellate courts were able to review fact
questions. Clewis v. State, 922 S.W.2d 126, 128 (Tex. Crim. App. 1997).
The idea that a factual sufficiency analysis was proper using the
Jackson standard was not sufficient for a review of factual claims.
7
Clewis, 922 S.W.2d at 129. The proper standard was to view all the
evidence without the prism of “in the light most favorable to the
prosecution” and set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.
Clewis, 922, S.W.2d at 129.
There are key differences between a Jackson and Clewis analysis.
If the evidence is legally insufficient, the case should not have been
submitted to a jury and an acquittal must be ordered. Tibbs v. Florida,
457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982). This substitutes
the finding of the appellate court for the jury decision. Clewis, 922
S.W.2d at 133. In contrast, a factual sufficiency review is a question of
fact. Ex parte Schuessler, 846 S.W.2d 850, 852, n. 5 (Tex. Crim. App.
1993). A reversal based on factual sufficiency will result in the
judgement being vacated and the case remanded for a new trial.
Clewis, 922 S.W.2d at 133-34.
The Jackson standard does not incorporate a factual sufficiency
review, rather it is the minimum standard for comporting with federal
due process. Clewis 922 S.W.2d at 134.
The Court has discussed sufficient safeguards so that an appellate
8
decision does not usurp the jury function. Meraz, 785 S.W.2d 146, 154
(Tex. Crim. App. 1990). The Court recommended that the evidence
should be detailed as to the issue in question and clearly state why the
jury’s finding is so factually insufficient as to be manifestly unjust; why
it shocks the conscience; or clearly demonstrates bias. Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The appellate court should
also state in what regard the contrary evidence greatly outweighs the
evidence in support of the verdict. Id.
In 2010, the Court eliminated the Clewis factual sufficiency
review. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The
Court found that the analysis between Clewis and Jackson was barely
distinguishable and that the legal sufficiency standard was the only
test to apply to determine whether the evidence was sufficient to
support each element beyond a reasonable doubt. Brooks, 323 S.W.2d
at 895. While Clewis had recognized there was an inherent difference
between the review for legally sufficient evidence and factually
sufficient evidence, the Court in Brooks found that there was no
meaningful distinction.
9
B. Relevant Facts
The Walkers had adopted three siblings through CPS. Walker at
*6. Evidence established that two of the children had overflowed the
bathtub and water flowed out from under the bathroom door. Walker
at *9. Two of the children had locked themselves in the bathroom and
overflowed the sink, toilet and tub. Id.. The Walkers installed locks on
the bathroom doors after these incidents. Id. These actions occurred
even though sliding glass doors with railings were installed on the tub.
Walker at *10.
During the investigation, the water heater was set one level below
the maximum temperature. VII RR 120. The thermostat was then
turned on and allowed to heat for thirty minutes. VII RR 121. The
officers then increased the setting to the maximum and were able to
achieve a maximum temperature of 131 degrees in the master
bathroom from the tap. VII RR 127. In the tub, with four to six inches
of water the maximum temperature was 128 to 129 degrees. VII RR
127. Water heated 126-129 degrees would not produce burns instantly,
and if water that temperature had been splashed onto the skin, it
would not have left any splash marks. VI RR 121, 123.
10
A ten to fifteen second exposure to water at 130 degrees would be
sufficient to cause these types of injuries. VI RR 111. However, if the
water was 126-129 degrees, a second degree burn could take two
minutes. VIII RR 24. So, the time required for these burns was up to
two minutes, during which time the Walkers were to have held the
child suspended in the water.
B.W. and N.W. both had their underclothes on the floor in the
bathroom. VI RR 145, XVI RR State Ex. 40. The height of the bathtub
meant that B.W. could not climb in or out of the tub one foot at a time,
like an adult. VI RR 144, VII RR 63-64. She would have to sit on the
edge of the tub to get in or out. B.W. also had scrapes on her thighs
consistent with sliding over a metal railing to get in or out of the
bathtub. VI RR 134-35. The bathtub had sliding glass doors with a
metal frame surrounding the doors including on the tub itself. VII RR
49, XVI RR State Ex. 40. N.W., had been diagnosed as autistic and
described as an ‘instigator.’ VI RR 35, VIII RR 100.
Amanda Walker testified that she did not believe that Shelley or
Kenneth Walker burned B.W. as the State alleged. VI RR 14. The
Walkers never raised their voice to the children. VI RR 36. Kenneth
11
Walker has had a heart attack, a stroke, a pacemaker and degenerative
discs in his back. VI RR 162. Shelley Walker has back problems and
arthritis. VI RR 163. For either of the Walkers to forcibly immerse
B.W. in the tub would require more strength or physical exertion than
they would be able to perform. If this were an immersion burn, B.W.
would be expected to fight back, struggle, kick or try to get away from
the water. VI RR 164; X RR 34. There was no evidence of that in this
case.
A twenty-six year old CPS worker who had not had a heart
attack, or stroke or other significant medical issues found it difficult to
hold a 27 pound doll in the same manner in an in-court demonstration.
VII I RR 104-105. A forty-one year old doctor did not find holding a
similar weighted doll in the position necessary to be the easiest thing. X
RR 36. The doctor had not had a heart attack, stroke or back problems.
X RR 37.
One of the first Tyler Police Department officers to arrive at the
house testified that the case appeared to be an issue of an accident and
not enough supervision. VII RR 36-37.
A different patrol officer believed because there were no splash
12
marks, this was a forced immersion. VII RR 70-71. He also testified
that he had no experience as to how hot water had to be to cause burns,
and admitted to questioning by the State that everything he testified to
regarding B.W. was speculation. VII RR 77. This officer also testified
that when he arrived the tub was still full, and that if the tub had been
drained he would have taken that as an indication of hiding evidence.
VII RR 61-62. This despite his statement that he believed the Walker’s
as prudent parents should have drained the water. VII RR 61.
The State’s primary expert witness on the issue of the injuries was
Dr. Wolf, the Chief of Burn Services and Professor and Vice Chairman
for Research in the Department of Surgery at the University of Texas
Southwestern Medical Center. VI RR 87. The only way that these
injuries would rise to the level of serious bodily injury, that is bodily
injury which creates a substantial risk of death or that causes death,
serious permanent disfigurement, or protracted loss or impairment os
the function of any bodily member or organ would be if the burns were
left untreated. VI RR 117. Only if the burns were left untreated could
they rise to the level of serious bodily injury because of
a risk of infection and ongoing systemic problems. VI RR 117. As long
13
as the burns were treated, it was “relatively straightforward.” VI RR
117. . Almost immediately, the skin would be red, but the peeling or
blistering consistent with a second degree burn would not develop for
some time. VI RR 119. It was possible for B.W. to walk down the hall
and seek assistance prior to the blisters developing. VI RR 120.
So during the final witness for the prosecution, the State was left
with two possible conclusions from the evidence. One, that B.W. was in
the water accidentally ands was walking around on her own; or two
that she was submerged or immersed her and held in an elevated
position. X RR 32-33, 72, 91.
Dr. Cox, the State’s final witness described how a three year old
child could be treated while in pain. At different points during the
case, Dr. Cox was either concerned about the scrapes and scratches to
B.W.’s legs, or not overly concerned. X RR 44-45. Dr. Cox also based
his assessment that this was abuse on the fact that he had treated
B.W.’s brother, T.W., for injuries years previously. X RR 47. This
occurred before the Walker’s adopted the children or were care-givers.
X RR 47. He ordered a skeletal survey and found no sign of previous
undiagnosed or untreated injuries. X RR 48-49. He found nothing in
14
the family history to suggest abuse either. X RR 49.
Dr. Cox assumed, and testified previously, that the water
temperature was at least 135 degrees and was probably well over 135
degrees. X RR 50-51. He did not know the results of the temperature
testing conducted by the Tyler police. X RR 52. His assessment was
conducted, and he based his opinion only on information in the first two
days following the burns, and was not reevaluated based on any other
evidence. X RR 53.
Significantly, Cox also stated that there were no bruise marks or
hand prints or grasp marks to indicate B.W. was restrained in the
water. X RR 95.
The Walkers called Dr. Scott Lawrence, a former engineer and
pilot in the Air Force and a physician since 2000. X RR 168. He was a
graduate of the Air Force Academy, received a master’s of science in
engineering management, and his medical training at the University of
Texas Medical Branch. X RR 168, 171. He currently works as an
emergency room and family practice physician. X RR 168-170. Dr.
Lawrence reviewed the police reports, the medical records, the pictures,
the interviews in the case, and did not agree to testify for the Walkers
15
until he was well into the review process. X RR 173. Based on Dr.
Lawrence’s review of the evidence, the burns to B.W. were accidental in
nature. X RR 174.
Like Dr. Cox, he considered the skeletal survey, all the
photographs, the family history. X RR 176-77. However, he also had
access to the actual location and bathtub where this occurred. X RR
176. He determined that the total slope in the bathtub was an inch and
a half, and that with a child, her feet shoulder width apart, the
difference in the burn marks of half an inch proved that she was trying
to get out and blocked by the shower door. X RR 180-81. Dr. Lawrence
provided the most thorough review and explanation of the evidence. X
RR 180-188.
He also reviewed and analyzed the Walkers medical history and
came to the conclusion that neither Kenneth or Shelley Walker
individually or jointly were physically capable of holding B.W.
suspended in the air for the time required to cause the burns. X RR
188-192, 193. Neither of the Walkers had any burns to their hands or
arms, there was no evidence they were in the tub. X RR 192.
16
C. Analysis
In analyzing the facts, and in an effort to comply with this Court’s
guidance from Brooks, the appellate court stacked supposition upon
supposition in order to support the verdict in the case. B.W. could not
have been responsible for starting the water, despite evidence the
children had done that before. One of the Walkers must have knocked
the shower doors from the tracks, despite evidence about their age and
medical condition. Walker at *20-21. One of the Walkers, with their
medical conditions, must have held B.W. suspended in the tub of
scalding water with a child presumably fighting against them to escape
the water. Even the State’s experts testified that it would be difficult
for either of the Walkers to take these actions. Walker at *21. The
court examined, and disregarded, evidence of splash marks which did
not support the State’s theory. Walker at *13.
The court resolved testimony regarding whether B.W. had the
physical ability to turn the faucet on by herself in favor of the verdict (a
detective opined she did not, while a treating physician noted that B.W.
had climbed out of a hospital crib with railings). Walker at *14-15.
While there was testimony regarding the temperature of the
17
water in the tub of less than 130 degrees, (at *11), the lack of splash
marks was an indicator of abuse because it showed that B.W. did not
fight or struggle. Walker at *15. However the temperature tested
could not raise to a temperature to cause splash marks. Id. A lack of
sparing to B.W.’s feet meant she was moving around in the tub, and not
being held to the bottom, despite Mr. Walker’s heart attack, stroke and
a pacemaker, carpal tunnel syndrome and wrist and shoulder surgery;
or Mrs. Walker’s hypertension, compression arthralgia hypertrophy
and arthritis. Walker at 817, 20-21.
The State’s theory that B.W. was held suspended in the scalding
water disregards the scrapes and bruises present, and also disregards
the lack of finger marks or bruising consistent with being held securely.
Walker at 814, n. 7, and 819-20. The appellate court stated that
neither of the State’s experts considered: (1) the scratches on B.W.’s
chest and leg; (2) the fact that the bathtub had a metal track
surrounding the shower door; (3) the fact that the shower door was off
the track; (4) the Walkers’ physical capabilities. Walker at *34.
In an effort to uphold the verdict, the Court of Appeals, in
accordance with a Jackson legal sufficiency analysis, ruled in every
18
aspect to support the State’s theory. Simply regarding the State’s
evidence, the court found legally sufficient evidence despite: the
testimony that both the CPS worker and doctor found it ‘difficult’ to
demonstrate holding 26 pounds for the required amount of time; the
fact that it appears the officers changed the setting on the water heater
thermostat to produce the maximum temperature; the fact that Dr. Cox
did not know of the temperature testing performed and testified the
burns were consistent with a higher temperature (in excess of 135
degrees) than was possible; that Dr. Cox based his conclusion partially
on abuse which had occurred years previously before the Walkers were
involved in the lives of these children; that Dr. Cox disregarded the
absence of injuries which would have indicated forcible restraint; that
one of the first officers on scene determined this was an accident and
not intentional; that another officer determined this was a forced
immersion; that good parents would have drained the tub, but that if
the tub had been drained he would have believed they were hiding
evidence; that he had no knowledge of how hot water had to be to burn
and admitted that his opinion was speculation.
Again based on a Jackson analysis, the court disregarded the
19
evidence offered by Dr. Lawrence’s opinion that the burns were
accidental. Dr. Lawrence was the only expert to have access to the
scene as well as the complete medical history and offense reports. He
was the only witness able to identify and explain the discrepancy in
burn marks and the scrapes indicating an effort to leave the tub by the
child. He also was the only witness to review the Walkers medical
history and concluded that neither were individually or jointly capable
of holding B.W. suspended for the time required to cause these burns.
Respectfully, these two cases establish the need not just for a
legal sufficiency review by the appellate courts, but a factual sufficiency
review. These cases demonstrate that while there may be legally
sufficient evidence, the verdict was so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.
D. Speculative Verdict Allowed to Stand
By only analyzing the case under a Jackson analysis, the court
improperly allowed the verdicts in this case to be supported, inference
upon inference. While the reviewing court is to give deference to the
responsibility of the trier of fact to fairly resolve conflicts in testimony,
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to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts, specifically in this case, the reviewing court
viewed every fact and inference to uphold the verdict. Jackson, 4443
U.S. at 318-19.
While juries are allowed to draw multiple inferences as long as
each inference is supported by the evidence, that did not occur here.
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). An inference
is a conclusion reached by considering other facts and deducing a
logical consequence from them. Id. A conclusion reached by
speculation may not be completely unreasonable, but it is not
sufficiently based on facts or evidence to support a finding beyond a
reasonable doubt. Id. While it is difficult to recognize the difference
between an inference and speculation, it is not impossible and is a fact
driven analysis.
While this court expressed its disapproval of the term inference
stacking as adding unnecessary confusion, it has clearly disapproved a
speculative verdict and relied on the courts using a Jackson analysis to
determine if it was speculative. Hooper 214 S.W.3d at 18. As in these
cases, the appellate courts will draw these successive inferences even
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when there are serious questions as to the credibility of witnesses or
whether those inferences are even valid.
A reviewing court should determine whether the necessary
inferences are reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the
verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
As in this case, appellate courts can stack inferences even when that
type of analysis is not permitted. Garcia v. State, 367 S.W.3d 683, 687
(Tex. Crim. App. 2012).
The difference in analysis is profound. By looking at the evidence
to support the verdict, courts apply one rational. Without a factual
sufficiency review, they are, as here, free to disregard reasonable
conclusions from the credible evidence and allow a speculative verdict
to stand. Without another discussion of the facts from this case, the
jury’s verdict is only based upon speculation, and possibly emotion, and
is not reasonable when examined cumulatively. These verdicts are
manifestly unjust and should be reversed.
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CONCLUSION
Under all circumstances, the Court of Appeals erred in affirming
the trial court’s decision. This Court should either reverse the lower
court and remand to the trial court for a new trial by reinstating a
factual sufficiency review, or reverse the judgment of the trial court
having found that the verdict is based on speculation, not reasonable
conclusions and inferences from credible evidence.
PRAYER
WHEREFORE, Petitioner prays the Court to reverse the
judgment of the Court of Appeals; and for such other and further relief
to which she may show herself justly entitled.
Respectfully submitted,
/s/ James Huggler
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
ATTORNEY FOR PETITIONER
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition
has been forwarded to the District Attorney, Smith County, Texas, and on
the State Prosecuting Attorney by regular mail or through the State of
Texas Electronic Filing System on this the 1st day of December, 2015 at
the addresses listed below
/s/ James Huggler
James W. Huggler
Mike West
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Lisa McMinn
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711
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CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 5,060 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
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