Pete Marin III v. State ( 2009 )

Opinion Issued August 20, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00517-CR

PETE MARIN, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 43885

MEMORANDUM OPINION

          Under Texas Rule of Appellate Procedure 50, we withdraw our June 25, 2009 opinion, substitute this opinion in its place, and vacate our June 25, 2009 judgment.  See Tex. R. App. P. 50.

The State charged appellant Pete Marin, III, with capital murder for intentionally causing the death of Jake Horrocks, a child under age six.  See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2003).  A jury found Marin guilty, and, as the State did not seek the death penalty, the trial court imposed an automatic sentence of confinement for life.  Marin appeals, contending that the evidence is legally and factually insufficient to support his conviction.  Specifically, Marin argues that the medical testimony was legally and factually insufficient because the doctors who testified at trial were not qualified to express an opinion about when Jake suffered his fatal skull fracture.  We affirm.

Background

The decedent, Jake Horrocks, was the ten-month-old child of Marin’s former girlfriend, Jennifer Horrocks.  Jake, Horrocks, and her eight-year-old daughter lived with Horrocks’s parents in Needville, Texas.  While Jennifer was pregnant with Jake, she began a romantic relationship with Marin. Marin and Horrocks knew each other in elementary and high school, and reconnected as adults.  Marin was married, but he left his wife and children to move into the Horrocks’ home.  Horrocks and Marin ended their relationship when Jake was about two months old, and Marin moved out of Horrocks’ home.

After Jake was born, Jake’s grandfather, Bill Horrocks, cared for Jake while Horrocks and her mother were at work.  Horrocks and her parents testified that Jake was a happy baby who loved his mother, his older sister, and his grandfather.  Jake was sometimes shy around strangers, but he was generally friendly and liked people.  

In December 2005, when Jake was then eight months old, Horrocks and Marin resumed their relationship.  Marin began to visit Horrocks at her home in the early hours of the morning, around 3:00 or 4:00 a.m., two or three days per week, to have sex.  Marin and Horrocks spent this time in her bedroom, which she shared with Jake.  During these visits, Marin and Horrocks also spent time talking or playing with Jake if he awoke. 

Marin told Horrocks that he was interested in “bonding” with Jake, and he wanted to spend time alone with him to facilitate the bonding.  At Marin’s request, Horrocks regularly permitted Marin to take Jake out to his truck in the driveway and spend fifteen to twenty minutes alone with Jake in the truck.

On February 23, 2006, when Jake was ten months old, Marin visited Horrocks at her home around 3:00 or 3:30 a.m.  Horrocks performed oral sex on Marin, but she was interrupted when Jake briefly awoke and then went back to sleep.  Shortly thereafter, Jake interrupted again, and Horrocks fed him a bottle.  Jake was groggy, but during his interactions with Horrocks and Marin, he laughed.  Marin told Horrocks that he wanted to spend time alone with Jake, and Horrocks accompanied Marin and Jake out to Marin’s truck.  Horrocks returned to the house and gathered a few things she had purchased for Marin at the store.  She took those items out to the truck and gave them to Marin.  Jake whined when Horrocks returned and indicated that he wanted to go to her, but Marin asked for a few more minutes with Jake, and Horrocks went back inside the house.  About ten minutes later, Horrocks heard a loud noise that sounded like a car door slam followed by another loud noise.  She walked to the front door and opened it.  Marin was standing in front of the door holding Jake’s limp body in his arms. Marin told Horrocks that Jake was choking.  Horrocks called for her mother and then called 9-1-1.

A police officer arrived at the home, followed by the paramedics.  Horrocks informed a paramedic that Jake was choking. The paramedic testified that Jake exhibited agonal breathing, taking gasping breaths every fifteen seconds, and had blood and a milky white substance coming from his nose and mouth. He delivered five blows to Jake’s back in an attempt to stop the choking, but his condition did not improve. The paramedic then intubated and ventilated him to provide him with oxygen.  Again, Jake’s condition did not improve.  The paramedics secured Jake and transported him by ambulance to Oak Bend Hospital in Richmond.  In the ambulance, one paramedic administered an IV to Jake, who did not respond to the pain of the needle insertion.  The paramedic testified that, even when unconscious, children usually flinch from pain. Shortly after Jake’s arrival at Oak Bend, he was transported by helicopter to Texas Children’s Hospital in Houston.

Upon arrival at Texas Children’s, Jake was placed in the pediatric intensive care unit, where Dr. Jeanine Graf was the attending physician in charge of the unit.  Dr. Graf had been a licensed physician for approximately fifteen years and was certified in both pediatrics and pediatric critical care.  She had worked in the pediatric intensive care unit at Texas Children’s for eleven years, and she also worked as an associate professor at Baylor College of Medicine, specializing in critical care.   Throughout her career, Dr. Graf has treated hundreds, if not one thousand, children with head injuries or neurological problems.  She has qualified as a testifying expert in the state of Texas on many occasions.

Dr. Graf testified that Jake was in dire condition when he arrived at the hospital, and he showed no signs of brain function.  Because his condition was unstable, doctors were not able to perform a CT scan on Jake until about seven-and-a-half hours after he arrived at the hospital. The CT scan revealed multiple skull fractures and a loss of the grey/white matter distinction in Jake’s brain, which is consistent with a lack of oxygen to the brain.  Dr. Graf testified that one of these skull fractures was fresh, and that it was her opinion Jake sustained a blow to the head, rendering him unconscious and unable to breathe normally.  Jake then suffered brain damage caused by a lack of oxygen. Dr. Graf opined that Jake would have become immediately symptomatic after the injury was inflicted and would have not have appeared normal for any time after the injury.  She stated that it is not possible to time the loss of the grey/white matter distinction.   The doctors determined that Jake was brain dead and removed him from life support on February 24, one day after he arrived at Texas Children’s.

Dr. Graf also testified that Jake had old fractures in two of his ribs, in his tibia, and in his skull.  The old skull fractures showed no signs of intercranial bleeding and thus were not likely to have caused brain damage.  Dr. Graf reported these findings to Horrocks and her parents.  She told the family that Jake had old and new traumatic injuries that were consistent with child abuse and that she would have to report it to the Texas Department of Family and Protective Services.  Dr. Graf testified that Horrocks and her parents were shocked and upset, and none of them seemed to understand how Jake could have been abused.    

Dr. Graf testified that it would be possible for a loving caregiver or doctor to miss signs of rib fractures, tibia fractures, or skull fractures in a child who cannot speak and cannot walk.  Horrocks and her parents each testified that they had not observed any signs of Jake’s injuries, and that Jake acted normal and happy.  In January 2006, Horrocks took Jake to the pediatrician for a bump on his head the size of the palm of her hand.  At the time, Marin tried to dissuade Horrocks from seeking care for Jake because the Department for Family and Protective Services might get involved. Horrocks also testified that Marin mentioned to her that DFPS might take his other children, even though no one had suggested at that point that Jake had been abused.  The pediatrician told Horrocks and her family that the bump was only a contusion and should recede on its own, which it did. 

Dr. Rajesh Krishnamurthy is a diagnostic radiologist at Texas Children’s who examined x-rays of Jake’s entire body, after his doctors suspected that his injuries were not accidental.  Dr. Krishnamurthy specializes in diagnostic imaging of children, or studying images that are taken for the purpose of diagnosing injuries or illness.  Dr. Krishnamurthy testified that Jake’s skull fracture showed no signs of healing, meaning it was less than two days old.  Dr. Krishnamurthy testified that Jake also had fractures in two of his ribs and in his right tibia.  The location of Jake’s rib fractures immediately raised a suspicion of non-accidental injury because they were of the kind that are frequently inflicted by compressive force, such as a person holding a child and squeezing him too tightly.  The fractures were non-displaced, which makes them difficult to diagnose.  Jake’s tibia fracture was a spiral fracture, which a child who is beginning to walk could sustain in daily activities.  Dr. Krishnamurthy testified that the tibia fracture would have been easier to detect than the rib fractures because the child would most likely stop bearing weight on his leg and would change his behavior accordingly.  If the child was not able to walk, however, the tibia fracture could have been difficult to detect, although a caregiver would be likely to notice the child’s response to pain when handling his leg.[1]  Because Jake’s fractures showed signs of healing, Dr. Krishnamurthy testified that the rib fractures and tibia fracture were at least two weeks old and maybe as much as eight weeks old. 

Dr. Paul Steinkuller is a pediatric ophthalmologist at Texas Children’s.  Dr. Steinkuller has been practicing pediatric ophthalmology since 1976 and has worked as a professor at both University of Texas Medical Branch in Galveston and Baylor College of Medicine.  He has treated thousands of children throughout his career. Dr. Steinkuller observed retinal hemorrhaging in Jake’s eyes.  Retinal hemorrhaging occurs when the blood vessels inside the retinas break, and the retinas become covered in blood, which can be caused by accidental or non-accidental trauma to the eyes or head.  Dr. Steinkuller testified that Jake’s retinal hemorrhaging was consistent with a blunt force head trauma, which Jake could not have inflicted on himself. Jake’s hemorrhages were very severe, and Dr. Steinkuller testified that it would have rendered Jake blind, which a caregiver should notice immediately.  Dr. Steinkuller testified that retinal hemorrhages cannot be precisely dated but testified, with a reasonable degree of medical certainty, that Jake’s hemorrhages occurred concurrent with his head trauma.  Dr. Steinkuller testified that he had never seen, nor was aware of any case in the literature, where a patient with this type of retinal hemorrhaging was not immediately rendered unconscious.

Dr. Roger Milton, an assistant medical examiner in the Harris County Medical Examiner’s Office, performed an autopsy on Jake’s body.  Dr. Milton has been employed by the Medical Examiner for about ten years, and has performed about seventy-five autopsies on children under the age of six.  Dr. Milton confirmed that Jake had fractures in his ribs and his right tibia.  He believed the tibia fracture was at least two months old because it was almost completely healed.  The rib fractures appeared to be ten to fourteen days old and were consistent with Jake’s body having been squeezed too tightly.  Dr. Milton also observed multiple fractures on the back of Jake’s skull in an eggshell-like pattern, going in many different directions, which were healing.  Dr. Milton testified that he dated these fractures as being ten to fourteen days old, like the rib fractures, but they could have been older and coincided with the hematoma on Jake’s skull for which he saw the pediatrician in January 2006. The older fractures were not associated with any bleeding or brain damage.  The pattern of the eggshell fractures was consistent with a compression injury, or someone having squeezed Jake’s skull.

Jake suffered a four-inch, linear fracture to the right side of his skull. Dr. Milton characterized the fracture as acute, meaning it had been inflicted within two days, and as severe, requiring significant force to inflict the injury.  Linear fractures are caused by directional force hitting the head, such as an object striking the head or the head being used to strike an object.    Here, Dr. Milton opined that Jake’s head contacted a broad, yielding surface, as opposed to being hit with a narrow, unyielding object.  Jake’s injury was a rotational injury, consistent with a deep tissue brain injury, which causes an incapacitation that can lead to immediate loss of consciousness, subsequent brain swelling, and death.  Due to the pattern of Jake’s head injury, Dr. Milton opined that Jake’s head struck a surface that has the ability to deform or take the shape of the head, which could include a dashboard, a steering wheel, the roof of a vehicle, a car seat or headrest, the flat panel of the exterior of a vehicle, or even a person’s body part like a palm or forearm.  Dr. Milton explained that the softer the contact surface, the greater the force necessary to cause this type of injury. Dr. Milton likened the amount of force necessary to inflict an injury of this nature to the type of force one might sustain in a motor vehicle crash.  This was more than the amount of force a child of Jake’s size and weight would have been able to inflict on himself.  Dr. Milton, like Dr. Graf, observed a loss of the grey/white matter distinction in Jake’s brain.  He testified that generally, this loss does not occur until ten to twelve hours after injury, but it is not possible to set a precise time frame.

According to Dr. Milton, the force necessary to cause Jake’s injury would likely have caused an immediate neurological change, probably unconsciousness, possibly accompanied by agonal or gasping breathing.  Dr. Milton testified that the nature of Jake’s injury would have rendered him instantly unconscious.  On cross-examination, defense counsel questioned Dr. Milton regarding the nature of Dr. Milton’s previous statements to defense counsel indicating that the injury could have occurred earlier and manifested itself at a later point.  Dr. Milton testified that he had previously believed that Jake showed earlier manifestations of his symptoms, but he later changed his opinion. Dr. Milton testified that he changed his opinion after reviewing Horrocks’s and Marin’s statements to the police about Jake’s behavior before he became unconscious.

The defense called Dr. John Plunkett, a forensic pathologist, as an expert to testify about Jake’s injuries.  Dr. Plunkett retired from hospital duties in 2004 and has since worked as a consultant, teacher, and writer in the field of infant injury evaluation.  Dr. Plunkett has published articles and letters in this field as well.  He has testified as an expert many times.  Dr. Plunkett reviewed Dr. Milton’s autopsy report, the police investigative report, and Marin’s statement.  Like Dr. Milton, Dr. Plunkett determined that Jake suffered respiratory arrest caused by an impact trauma to the skull, which resulted in a brain injury.  Dr. Plunkett described the skull fracture as acute, meaning that the injury had happened within two or three days of Jake’s death, but the impact to Jake’s skull could have caused either immediate unconsciousness from rapid brain swelling or delayed unconsciousness from a slow development of brain swelling.  Dr. Plunkett testified that the size of Jake’s fracture did not indicate the severity of the impact that caused the injury. 

Dr. Plunkett completed a study on “lucid intervals” in children with head injuries.  A lucid interval occurs when a child has a head injury but appears normal for some time after the injury occurs and later loses consciousness.  The children in Dr. Plunkett’s study ranged from twelve-months to thirteen-years, and most sustained their injuries from low-level falls off of playground equipment.  The children’s lucid intervals ranged from five minutes to a couple of days.  Thus, Dr. Plunkett opined that it was possible that Jake suffered gradual-onset swelling in the brain accompanied by a lucid interval, and not instant unconsciousness.  Thus it was possible that Jake’s injury had occurred before he was alone with Marin in the truck, but the onset of his symptoms was delayed until he was alone with Marin. 

Dr. Plunkett also noted that the loss of the grey/white matter distinction in the brain that the treating doctors observed in Jake usually does not occur until ten or twelve hours after injury.  Jake’s CT scan, showing the loss of the distinction, was taken only seven-and-a-half hours after he lost consciousness while in the truck with Marin. Therefore, Dr. Plunkett suggested that the loss of the grey/white matter distinction in Jake’s brain supported his conclusion that Jake’s injury occurred before he was alone with Marin.  Dr. Plunkett stated, however, that this was also only a suggestion and not entirely reliable.  He told the jury that a recent scientific study showed that some children lost this distinction before ten hours had elapsed.  He also testified that it is not possible to date retinal hemorrhages.  Ultimately, Dr. Plunkett testified that, although Jake was probably a battered child, it was not possible to say with reasonable medical certainty that Jake’s skull fracture caused an immediate loss of consciousness.    

Discussion

Marin contends that the evidence presented at trial was legally and factually insufficient to support his conviction because the State failed to prove that Marin inflicted Jake’s fatal head injury.  Marin also contends that Dr. Graf and Dr. Steinkuller were not qualified to express opinions on the timing of Jake’s injury, and their opinions that Jake immediately lost consciousness after sustaining his head injury were unreliable. 

The trial court conducted a Daubert hearing on Dr. Graf’s qualifications to testify.  See Daubert v. Merrell Dow Pharm., Inc., 516 U.S. 869, 116 S. Ct. 189 (1995); Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996) (observing that Daubert standard is “virtually identical to the one adopted by this Court”).  The Daubert hearing revealed that Dr. Graf had fifteen years of experience as a licensed physician.  She had worked in the pediatric intensive care unit at Texas Children’s for eleven years, and was certified in both pediatrics and pediatric critical care, specializing in critical care, where she treated many children with neurological injuries and illnesses.  She also worked as an associate professor at Baylor College of Medicine, and had previously qualified as a testifying expert.  The trial court allowed Dr. Graf to testify

…[A]s to her findings relative to her examination and the history she took regarding Mr. Horrocks’s cause of death and the opinions she established.  I think she is qualified to do that.  What she has testified to, in my opinion, doesn’t go into the child abuse area.  If she opines that it is child abuse, I will not allow that.  But as to the timing and the cause of death, I think that falls within her area of expertise, and I will allow that testimony.

Texas Rule of Evidence 702 provides,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702.  The trial court heard testimony that qualifies Dr. Graf as an expert in pediatric injuries and their causes.  We hold that the trial court did not abuse its discretion in finding Dr. Graf qualified to testify as to the cause of Jake’s death.  See Tex. R. Evid. 702.

Trial counsel failed to object to any of Dr. Steinkuller’s testimony, nor did he challenge Dr. Steinkuller’s credentials in a Daubert hearing.  We hold that any challenges under Texas Rule of Evidence 702 to Dr. Steinkuller qualifications or the admissibility of his opinions regarding the timing of Jake’s injury are waived.  See Tex. R. App. P. 33.1.  Once admitted, we consider expert testimony together with all of the evidence admitted in the case, to determine whether it is legally sufficient to support the jury’s implied finding as to cause of death.  We thus consider whether the lay and expert testimony in this case is legally and factually sufficient to support the jury’s finding that Marin caused Jake’s fatal skull fracture.

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). 

When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson, 204 S.W.3d at 417.  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id. 

At trial, the jury heard lay and medical testimony regarding the cause and timing of Jake’s injuries from multiple witnesses.  Marin contends that the State failed to prove that Jake’s injury rendered him unconscious immediately—Jake indisputably suffered head trauma, but the timing of the injury is at issue.

According to Dr. Milton, the type of force that struck Jake’s skull was likely to cause immediate neurological changes, including loss of consciousness. He believed it was very unlikely that Jake could have suffered the head injury at an earlier time, appeared normal afterward, and then degraded from neurologically normal to comatose in a period of thirty seconds.  Dr. Milton agreed that, generally, the loss of the grey/white matter distinction in the brain, as seen in Jake, does not manifest itself until about twelve hours after the injury, but that this time frame is variable, depending on the severity of the injury and the amount of swelling and lack of oxygen to the brain.  Dr. Milton testified that he believed with reasonable medical certainty that the onset of Jake’s unconsciousness occurred immediately after his injury.  This matches other facts adduced at trial—that Jake was conscious and laughed just prior to Marin’s taking him to the truck.  Only after that time did Jake exhibit “choking” symptoms and bleeding into his eyes and mouth.

In contrast, Dr. Plunkett testified for the defense that he believed it was possible that Jake could appear neurologically normal after his injury, but then slowly deteriorate and become unconscious.  Dr. Plunkett opined that the loss of the grey/white matter distinction in the brain suggested that the injury could have occurred earlier, but qualified that the loss of this distinction can appear earlier than the generally accepted ten-to-twelve-hour time frame, and that this time frame is only a suggestion, not a certainty.

Marin attacks the testimony of the State’s expert witnesses, arguing that none of the medical experts expressed their opinions in terms of reasonable medical certainty.  Marin further argues that Dr. Milton’s testimony is legally insufficient because he failed to exclude the possibility that Jake’s head injury occurred before he was in Marin’s exclusive care. 

We disagree.  It is unnecessary for the circumstances to exclude, to a moral certainty, every feasible hypothesis, if a cause of death can be determined with reasonable medical certainty.  See Turro v. State, 950 S.W.2d 390, 397 (Tex. App.—Fort Worth 1997, pet. ref’d), citing Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983).  In Turro, the defendant contended that the complainant died as a result of drowning, whereas the medical examiner, based on his autopsy of her body and other circumstantial evidence, testified that the victim was manually strangled before she entered the water.  Id.  The medical examiner conceded that his opinions about the time and cause of the victim’s death were not absolute and that he could not entirely eliminate a possibility that she had died from an accidental drowning.  Id.  The court of appeals concluded that proof beyond a reasonable doubt need not be proof beyond all doubt, and that the evidence in the case was consistent with the theory that the victim was strangled.  Id. 

Here, legally sufficient evidence supports the jury’s finding beyond a reasonable doubt that Marin inflicted Jake’s head trauma, causing his death.  An evaluation of the medical evidence turns on the credibility assessment of the testifying experts.  See Hisey v. State, 129 S.W.3d 649, 658 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d).  The jury was free to believe Dr. Milton’s testimony that Jake’s injury rendered him immediately unconscious because the record contains underlying facts supporting his conclusion.  First, the fracture was severe, causing retinal hemorrhaging and bleeding from the nose and mouth.  The ophthalmologist, Dr. Steinkuller, testified that this sort of bleeding into the eyes would happen at the time of the trauma.   Second, Marin was the only person with Jake during the fifteen to twenty minutes before he became symptomatic.  Horrocks, from inside the house, heard two loud bangs before Marin brought Jake inside.  Third, Horrocks testified that Jake laughed in the minutes before Marin took him to the truck—indicating that he was not at that point suffering from severe head trauma. Jake was then unconscious.  We hold that the physical evidence and the medical history of the head trauma in this case provide a sufficiently reliable foundation to support Dr. Milton’s medical opinion that Jake’s intracranial swelling was not delayed in its onset but was medically certain to have been a result of blunt force trauma delivered while Marin was alone with Jake.  The jury was free to reject the implication that some other person could have caused Jake’s injuries.  Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004) (holding that jury, not reviewing court, is responsible for accepting or rejecting properly supported alternative theories of causation).  Thus, we conclude that legally sufficient evidence supports the jury’s verdict.

          Viewing all the evidence in a neutral light, factually sufficient evidence also supports the jury’s finding.  The jury heard both Dr. Milton and Dr. Plunkett’s testimony.  Neither doctor could say exactly when the injury occurred, but Dr. Milton opined with reasonable medical certainty that Jake had become immediately unconscious. Dr. Plunkett testified that there was a “suggestion” that Jake’s injury had worsened only gradually, indicating the possibility that Jake was lucid for an interval after he suffered the skull fracture.  He was very clear, however, that this was only a suggestion and not a certainty. 

Marin contends that the State did not prove that he injured Jake because others had access to Jake and could have harmed him.  He argues that there was no evidence that he ever mistreated Jake, and, on the contrary, the witnesses testified that he was loving and patient with Jake and with other children.  Jake had suffered previous injuries, which, Marin contends, could have been inflicted by any of his caregivers.  Jake’s rib, tibia, and prior skull fractures occurred after Marin moved out of the Horrocks’ home.  Marin, however, had been spending time with Horrocks and Jake within the time period that Jake’s other injuries occurred, and had been taking Jake alone to his truck in the middle of the night for short periods of time to “bond” with him.  Marin counters that Horrocks’s father cared for Jake during the day, giving him the better opportunity to injure Jake, and he suggests Horrocks’s prior struggle with post-partum depression after her older child was born makes her a suspect as well.  Horrocks and her parents testified that they were unaware of Jake’s prior injuries and had no idea how they occurred.  Given the evidence of the circumstances surrounding Jake’s death—including evidence that Jake was alone with Marin when he became distressed and began to choke and to bleed into his eyes, nose, and mouth, and that Jake was conscious and laughed prior to Marin’s taking him to be alone with Marin in his truck—we cannot say that the evidence supporting the verdict is so weak as to be manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. We hold that the evidence is factually sufficient to support the verdict.

Conclusion

We hold that Marin waived his challenge to the qualifications of the State’s expert witnesses.  We further hold that the evidence is both legally and factually sufficient to support Marin’s conviction for capital murder.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Judges Bland, Sharp, and Taft.[2]

Do not publish.  Tex. R. App. P. 47.4

---

[1] Bill Horrocks testified that Jake was able to pull up, stand, and sometimes take a few steps. Debra Horrocks testified that once when she was changing Jake’s diaper, she lifted him by the legs, and he screamed. Other than that, Horrocks and her parents all testified that they had not observed any injuries or changes in Jake’s behavior.

[2] Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on April 28, 2009.