Elizabeth Ruth Will v. State ( 2011 )

NO. 07-10-00293-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 22, 2011
ELIZABETH RUTH WILL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE CRIMINAL DISTRICT COURT 2 OF TARRANT COUNTY;
NO. 1199012R; HONORABLE WAYNE F. SALVANT, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Elizabeth Ruth Will appeals from her jury conviction of the offense of
injury to a disabled individual by omission1 and the resulting sentence of nineteen years
of imprisonment. Through one issue, appellant challenges the sufficiency of the
evidence supporting her conviction. We will affirm.
1
Tex. Penal Code Ann. § 22.04 (West 2011). This is a first degree felony
punishable by imprisonment for life or for any term of not more than 99 years or less
than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (West
2011).
Background
Evidence showed that in July 2009, appellant’s nineteen-year-old son Terry
collapsed on the floor of his family’s apartment. Terry weighed between four and five
hundred pounds. On July 31, appellant called 9-1-1, reporting that Terry had been on
the floor for thirty days. She later told paramedics he had been on the floor for two
weeks. Terry was found in layers of maggot-infested feces and his body was in poor
condition. He was hospitalized for two weeks, then transferred to a rehabilitation center.
In an interview with police, appellant told officers she was responsible for Terry’s
care because she was his mother and was in the process of becoming his guardian to
handle his Social Security benefits. She stated Terry was not capable of caring for
himself and had not been able to do so for the last six months. Terry did not work.
Appellant also agreed Terry had not left the family’s apartment for the last six months.
Appellant’s trial testimony was generally consistent with the statements she
made to police. She also stated that after Terry fell, she brought him food, drink, and
medications and cleaned him. She told the jury Terry had been on the floor for ten days
but she assumed he was crawling to bed at night. She also testified she was too
“overrun and overtired” to obtain medical assistance and Terry did not want her to call
for help. She denied her initial 9-1-1 report that Terry had been on the floor for thirty
days and suggested the 9-1-1 tape had been altered.
Given the choices of finding appellant not guilty, guilty of the indicted offense or
guilty of a lesser offense of recklessly causing serious bodily injury to her son by
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omission, the jury found appellant guilty of the indicted charge, and sentenced her to
nineteen years of imprisonment. This appeal followed.
Analysis
Standard of Review
Appellant couches part of her argument on appeal as a contention evidence was
factually insufficient. Under Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010),
appellate courts review the sufficiency of the evidence to support a conviction only
under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979). Too, appellant’s argument is founded on the contention the trial
court erred by denying her motion for directed verdict. That contention is a challenge to
the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693
(Tex.Crim.App. 2003). For both those reasons, we will review appellant’s sufficiency
claim under the standard set forth in Jackson, 443 U.S. at 319. In assessing the
sufficiency of the evidence to support a criminal conviction under the standard set out in
Jackson, we consider all the evidence in a light most favorable to the verdict and
determine whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id. When conducting such a review, we must
recognize the jury's role as the judge of the credibility of witnesses and the weight to be
given their testimony. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).
In our review, we consider both direct and circumstantial evidence and all
reasonable inferences that may be drawn from the evidence. Hooper v. State, 214
S.W.3d 9, 13 (Tex.Crim.App. 2007). Circumstantial evidence alone is sufficient to
3
establish the guilt of the accused, and the standard of review as to the sufficiency of the
evidence is the same for both direct and circumstantial evidence cases. Id. Each fact
need not point directly and independently to the guilt of the accused, so long as the
cumulative force of all the evidence, when coupled with reasonable inferences to be
drawn from that evidence, is sufficient to support the conviction. Id.
Appellant challenges the State’s evidence of two elements of the offense,
arguing the evidence was insufficient to establish beyond a reasonable doubt that she
had assumed cared, custody or control2 of Terry; and that it was insufficient to show
Terry was a disabled individual.3 She points out he was an adult in July 2009 and she
was not his legal guardian. She also characterizes Terry as “self-sufficient,” capable of
clothing, feeding and protecting himself, and making his own decisions concerning his
care. We disagree with appellant’s contentions, and find the evidence sufficient.
Application
Under Penal Code § 22.04, a person assumes care, custody or control of
another when by act, words, or course of conduct, the person acts so as to cause a
reasonable person to conclude that she has accepted responsibility for protection, food,
shelter, and medical care for the other person. Tex. Penal Code Ann. § 22.04(d) (West
2
See Tex. Penal Code Ann. § 22.04(a) (West 2011) (stating, in pertinent part, a
“person commits an offense if he . . . intentionally, knowingly, or recklessly by omission,
causes to a . . . disabled individual: (1) serious bodily injury; (2) serious mental
deficiency, impairment, or injury; or (3) bodily injury).”
3
See Tex. Penal Code Ann. § 22.04(b) (West 2011) (stating, in pertinent part,
that an omission causing serious bodily injury to a disabled individual is conduct
constituting an offense under § 22.04 if: (1) the actor has a legal or statutory duty to act;
or (2) the actor has assumed care, custody, or control of a disabled individual).
4
2011). The statute defines “disabled individual” as “a person older than 14 years of age
who by reason of age or physical or mental disease, defect or injury is substantially
unable to protect himself from harm or to provide food, shelter, or medical care for
himself.” Tex. Penal Code Ann. § 22.04(c)(3) (West 2011).
The jury heard evidence from which it rationally could have concluded, beyond a
reasonable doubt, that Terry was a disabled individual. There was evidence Terry
suffered from a mental defect. A psychologist testified she evaluated Terry and
concluded he was mentally retarded with an IQ of fifty-seven. He had significant
deficits, present before the age of 18, making it unlikely he would be able to attain
employment and take care of his basic needs such as food, clothing, shelter and health
care. A guardian was appointed for Terry after he was released from the hospital. His
aunt agreed Terry did not appear to have the mentality of a normal nineteen-year-old
and did not appear to be able to care for himself. A case worker for Adult Protective
Services testified Terry “absolutely could not take care of himself” and she contacted
Tarrant County Mental Health and Mental Retardation Services.
Evidence of appellant’s own statements supports the jury’s finding. She told a
police officer she was responsible for Terry and he had not been capable of taking care
of himself in the six months prior to July 2009. She also agreed she had been taking
care of Terry his entire life.
Moreover, although Terry did not testify at trial and no witness attempted to
explain why he did not or could not get up, the jury manifestly could have viewed Terry
as disabled by reason of physical disease, defect or injury from his apparent inability to
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get up from the floor where he lay for many days. Appellant seems to suggest that
Terry made a conscious decision to remain on the floor. She argues, “Simply because
someone is obese does not make them disabled. Testimony showed that prior to the
fall Terry walked and moved around by himself without any assistance.” That Terry was
able to move about before he collapsed does not show he remained able to do so
afterward.
When paramedics responded to appellant’s call at the end of July 2009, they
noted the stench coming from the apartment was “about the same as a dead body a
couple of days old.” Terry, weighing over 400 pounds, was lying in “layers of feces” that
were infested with maggots and flies, surrounded by garbage and general filth. Blood
was pooled in his body from the pull of gravity. Terry had skin tears and bruising with
blood and other fluids seeping through his skin. Taken to the hospital, he was
diagnosed with cellulitis and sepsis. He had a blood clot in one leg. A treating doctor
testified Terry had what appeared to be rodent bite marks on his toes and emergency
room staff reported to her they found mice and rat feces between Terry’s toes. Terry
was anemic and otherwise nutritionally deficient.
The responding paramedic testified Terry was unable to provide his social
security number or his phone number, or to say when he had last been seen by a
doctor, or if he remembered going to school. Terry did not understand where the
paramedics were taking him even though it was explained to him. The treating doctor
testified Terry behaved like a second or third grader and deferred to appellant every
time doctors asked him a question. Consent for hospital procedures was obtained from
appellant.
6
Appellant testified that before he fell Terry made the decision to postpone seeing
a doctor about issues with his leg. She said he continued to refuse medical care even
after he fell. She argues also on appeal his enthusiasm for video games and his
reading of video game magazines demonstrate his capacity for rational decision-
making.
Appellant contrasts the evidence of Terry’s condition with that of the victim in
Benton v. State, 237 S.W.3d 400 (Tex.App.—Waco 2007, pet. ref’d), and concludes the
evidence is insufficient to show Terry is disabled. In Benton, the victim lived in a group
home for disabled individuals because he suffered permanent brain injury from a vehicle
accident. Id. at 402. The injury caused severe thought process delays rendering the
victim unable to live alone, defend himself physically or provide food, care, and shelter
for himself. Id. Testimony indicated the victim’s IQ was 60. Id. The court concluded the
evidence was sufficient to show the victim was disabled as defined by section
22.04(c)(3). Id.; citing Tex. Penal Code Ann. § 22.04(c)(3) (West 2011). We do not
disagree with appellant that the disability shown in Benton was of a different quality than
that shown here. We do disagree, however, that the evidence presented showed only
that Terry was a self-sufficient person who was not disabled.
Further, we note that much of the testimony suggesting Terry’s self-sufficiency
came from appellant. The jury was not required to accept her characterization of his
capabilities. Applying the applicable standard of review, we find the evidence sufficient
to show Terry was disabled under the statutory definition. Jackson, 444 U.S. at 319;
Hooper, 214 S.W.3d at 13.
7
We also find the evidence permitted the jury to find beyond reasonable doubt that
appellant had assumed care, custody or control of Terry. Her acts, words and course of
conduct would cause a reasonable person to conclude that she had assumed
responsibility for his protection, food, shelter, and medical care. Tex. Penal Code Ann.
§ 22.04(b)(2), (d) (West 2011).
Terry continued to live with appellant after he became an adult. Appellant’s
husband and Terry’s brother also lived in the apartment. Appellant told officers she was
Terry’s guardian and she was trying to obtain legal documentation to that effect. She
also stated she was responsible for him and Terry had not been capable of taking care
of himself in the six months prior to July 2009. She also agreed she had been taking
care of Terry his entire life.
At trial, appellant said she had removed Terry from public school after he
completed fifth grade and homeschooled him until he was thirteen. She testified he had
not left the family’s apartment in the six months leading up to his fall. She told the jury
Terry was not able to work or obtain medical care. She also stated that after Terry fell
on the floor, she “was medicating him. I was helping him. I was nursing him. And I was
making sure that his needs were taken care of.” She also stated she was cleaning
Terry and cleaning his skin wounds and infections. She “brought him food . . . and drink
. . . and his medications.”
The paramedic testified appellant assisted Terry with “all the answers.” The
paramedic agreed it appeared appellant had taken charge of Terry’s medical treatment.
8
As noted, a treating physician testified appellant gave consent for Terry’s medical
treatment and Terry deferred to appellant when asked questions.
We conclude from the evidence presented the jury reasonably could have
concluded appellant assumed responsibility for protection, food, shelter, and medical
care for Terry. Viewing the evidence in the light most favorable to the jury’s verdict, we
find it sufficient and overrule appellant’s sole issue. Jackson, 443 U.S. at 319; Hooper,
214 S.W.3d at 13.
Although she did not raise the issue in her appellate brief, at oral argument
appellant asserted that the evidence was insufficient she caused Terry serious bodily
injury by omission. We will address the issue briefly.
In her testimony, the physician who treated Terry while he was hospitalized
described more than one condition that might constitute serious bodily injury. Hospital
tests revealed Terry had a blot clot in his leg, leading physicians to give him a blood
thinner. But his body would not tolerate the thinner so a vascular surgeon installed a
filter in the vein to keep the clot from becoming dislodged and traveling to a vital organ.
The treating physician testified about the seriousness of blood clots and their potential
to cause death. She told the jury that morbid obesity predisposes patients to the
formation of clots, and that sedentariness also is a factor. She said, “But in . . . Terry’s
situation[s], the fact that he was left there for two weeks, supposedly, and also . . . in
combination[s] with the morbid obesity, . . . that does put him at risk for the blood clot.”
The Penal Code defines causation in terms of a “but for” causal connection. Tex.
Penal Code Ann. § 6.04(a) (West 2010) (person is criminally responsible “if the result
9
would not have occurred but for his conduct”); Robbins v. State, 717 S.W.3d 348, 351
(Tex.Crim.App. 1986); Grotti v. State, 209 S.W.3d 747, 758 (Tex.App.—Fort Worth
2006), aff’d 273 S.W.3d 273 (Tex.Crim.App. 2008). The indictment and charge
described appellant’s omission as a failure “to obtain or provide reasonable medical
care or assistance.” The State’s burden therefore was to show beyond a reasonable
doubt that Terry would not have suffered serious bodily injury but for appellant’s failure
to give or get help for her son.
We need not decide whether the physician’s testimony that Terry’s remaining on
the floor, together with his obesity, “put him at risk” of developing a clot meets the
causation requirement for appellant’s conviction,4 because we find sufficient evidence
that another of his conditions constituted serious bodily injury and would not have
occurred but for appellant’s omission.
"Serious bodily injury" is "bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(46) (West
2011). Here, the evidence supports a conclusion Terry sustained a protracted
impairment of the function of his skin.
As noted, at the hospital, Terry was diagnosed with cellulitis, which the physician
defined as an infection of “your skin and soft tissue.” Based on the indications of
4
See Tex. Penal Code Ann. § 6.04(a) (West 2010) (concerning concurrent
causes).
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infection, and the presence of other factors, physicians added a diagnosis of sepsis.5
Referring to the condition of Terry’s skin, she said “he was in the poorest condition I
have ever seen.” She testified the cellulitis affected 70 to 80% of his body. She also
said his “skin breakdown was severe from top to bottom.” Asked to define “skin
breakdown,” she said it involves a “skin tear,” and added, “Excoriations . . . actually you
can see the skin sloughing off. And sometimes you can see . . . the tissue underneath
exposed.” She said Terry’s skin was mottled, also indicating “inflammatory conditions.”
Photographs were introduced at trial showing the condition of Terry’s skin. The
paramedic also testified Terry’s skin was in poor condition with “lots of skin tears.” He
observed lividity and blood seeping out of several wounds.
The physician attributed Terry’s infection to the entry of bacteria into his body.
Referring to Terry’s skin, she further noted that “once you lose integrity of your . . .
natural barrier . . . you are prone to any kind of bacteria going through there and
causing infection.”6 Referring to the effect of the delay in medical attention, she said “if
the infection[s] was recognized early, he wouldn’t have gone into sepsis.” The
physician also described the treatment provided for the infection, and identified
photographs showing areas of Terry’s body that were healing.
Terry had been hospitalized with cellulitis before, in 2006. Appellant was made
familiar with the condition from his hospitalization on that occasion. From the evidence,
5
The physician described sepsis as referring to a “disregulation in the body,”
placing the patient in a “sicker state,” potentially leading to systemic response or organ
damage.
6
The paramedic’s testimony is pertinent here also. He said, “Urine and fecal
matter is full of bacteria and he was laying [sic] in it with open wounds.”
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the jury rationally could have determined that but for her failure to obtain or provide
reasonable medical care or assistance for Terry on this occasion, he would not have
suffered the serious deterioration and impairment of his skin’s function. The evidence
she caused him serious bodily injury is sufficient.
Having overruled appellant’s challenges to the sufficiency of the evidence
supporting her conviction, we affirm the trial court’s judgment.
James T. Campbell
Justice
Do not publish.
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