Derrick Jermaine Black v. State ( 2012 )

Opinion issued June 7, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00261-CR

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Derrick JERMAINE Black, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1285553

MEMORANDUM OPINION

A jury found appellant, Derrick Black, guilty of the felony offense of injury to a child and assessed his punishment at seven years’ confinement.  See Tex. Penal Code Ann. § 22.04(a) (West 2011).  On appeal, Black contends that the evidence is legally insufficient to support his conviction.  We hold that sufficient evidence supports Black’s conviction and therefore affirm.

Background

Dominique Franklin and Derrick Black began dating in 2009.  In 2010, Black moved into Franklin’s apartment with Franklin and her two sons, J.L.F. and J.F.  At the time, J.L.F. was eleven months old and J.F. was five years old. 

Franklin worked during the day.  She sent J.L.F. and J.F. to daycare or to her mother’s house while she was working.  In May 2010, Franklin began leaving her sons with Black on days when Black did not work.

One day in early June, Franklin left the boys with Black at her apartment.  When Franklin returned, she noticed that J.L.F. had bruises and multiple bite marks covering his body.  She asked Black if he had bitten J.L.F., and Black admitted that he had. Black said he was sorry and that he did not “understand” J.L.F. and could not “relate” to him. 

Franklin did not report the incident to the police that day, but continued living in her apartment with Black for several days.  She did not leave immediately after the incident or report it to the police because Black had threatened her.

On June 10, 2010, Franklin gathered J.L.F. and J.F. and left her apartment.  She called the police and reported Black’s assault on J.L.F. Deputy Dansby responded to the call.  He met with Franklin and her two sons, J.L.F. and J.F. in a parking lot.  When Deputy Dansby arrived, he observed apparent bite marks on J.L.F.’s body.  Deputy Dansby concluded that the bite marks were between three and four days old, because some were scabbing over.  He alerted Child Protective Services (“CPS”), and Franklin released J.L.F. and J.F. into CPS’s care.

          A CPS caseworker took J.L.F. to Texas Children’s Hospital, where Dr. Ricardo Quinonez treated him for human bite marks.  J.F. accompanied his brother to the hospital. He told Dr. Quinonez that his mother’s boyfriend had bitten J.L.F.  Dr. Quinonez opined that the size and shape of the marks suggested that an adult had bitten J.L.F., not a child. 

          At trial, the State presented testimony from J.F., then six years old. He testified that Black bit J.L.F. while Black was babysitting them.  J.F. recalled that J.L.F. had cried after Black bit him. 

The State also presented evidence of a prior domestic disturbance in which Black had threatened Franklin.  According to Franklin, the couple had a heated argument the day before Black bit J.L.F. During the altercation, Black threatened to hit Franklin with a table.  In response, J.F. attempted to dial 9-1-1.  Black chased J.F. to the phone, and J.F. fled the apartment and reported the incident to the apartment manager, who called the police.  Franklin testified that she suspected that Black bit J.L.F. in retaliation for this incident. 

Black presented no evidence in his defense during the guilt-innocence phase of trial.

Discussion

Standard of Review

We review all evidentiary sufficiency challenges under the same standard.  See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson v. Virginia legal-sufficiency standard 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 required to prove beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781(1979)).  Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Viewed in the light most favorable to the verdict, the evidence is insufficient when either: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt.  See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. 2786, 2789 n.11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.  This standard applies equally to both direct and circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

We do not weigh any evidence or evaluate the credibility of any witnesses, as this was the function of the fact finder.  Williams, 235 S.W.3d at 750.  Instead, we determine whether both the explicit and implicit findings of the fact finder are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict and resolving any inconsistencies in the evidence in favor of the verdict.  Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

Injury to a Child

Black contends that the evidence is insufficient to prove that he intentionally or knowingly injured J.L.F.  Injury to a child is a “result of conduct” crime and he claims that insufficient evidence supports a finding that he intended to cause the result of his conduct—bodily injury to J.L.F.

A person commits an offense of injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence, causes bodily injury to a child under fifteen years of age.  Tex. Penal Code Ann. § 22.04(a).  Injury to a child is a “result of conduct” offense.  Morales v. State, 853 S.W.2d 583, 584 (Tex. Crim. App. 1993) (en banc); Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985).  This means that the culpable mental state relates to causing the injury rather than engaging in the conduct.  See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994).  A person acts intentionally when “it is his conscious objective or desire to engage in the conduct or cause the result.”  Tex. Penal Code Ann. § 6.03(a) (West 2011).  A person acts knowingly with respect to a result of his conduct when “he is aware that his conduct is reasonably certain to cause a result.”  Id. § 6.03(b).  Mental culpability may be inferred from a defendant’s conduct and the surrounding facts and circumstances.  Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).  

Citing Graves v. State, Black contends that the bite marks alone are insufficient evidence of abuse. 779 S.W.2d 469 (Tex. App.—El Paso 1989, no pet.) (reversing conviction for injury to child based solely on evidence of bruising).  We disagree.  Black, an adult male, admitted to Franklin that he had bitten J.L.F., an eleven-month-old child, while J.L.F. was in his care.  Dr. Quinonez observed between seven and eight bite marks on J.L.F.’s body in various stages of healing.  According to Deputy Dansby, J.L.F.’s injuries covered a large portion of his body—he had bites “just about anywhere you could think that someone could have a bite mark.”  Finally, J.F. recounted that his brother had cried after being bitten. This evidence denotes more than bruising of an undetermined origin, and supports a finding that Black intentionally or knowingly injured J.L.F.  See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (en banc) (intent may be inferred from extent of injuries and relative size and strength of parties); see also Peterson v. State, 137 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (circumstance of intent included medical testimony about victim’s injuries and likely reaction); Morales v. State, 828 S.W.2d 261, 263–64 (Tex. App.—Amarillo 1992) (circumstance of intent included evidence of child’s injuries), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993). Accordingly, we hold that legally sufficient evidence supports the jury’s finding that Black intended to injure to J.L.R. by biting him. See Assiter v. State, 58 S.W.3d 743, 750 (Tex. App.—Amarillo 2000, no pet.) (legally sufficient evidence that father intended to injure children with paddle).

Alternatively, Black claims that the evidence is insufficient because it could have been Franklin who bit J.L.F. to “get [Black] in trouble.”  But Black points to no evidence in the record suggesting that Franklin caused J.L.F.’s injuries, and the jury chose to accept Franklin and J.F.’s testimony to the contrary.  He also does not dispute that, on occasion, J.L.F. was left in his sole care.  See Johnson v. State, No. 01-06-00402-CR, 2007 WL 2447002, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30, 2007, no pet.) (mem.op., not designated for publication) (observing, “Texas law is replete with holdings that when an adult defendant has had sole access to a child at the time [his] injuries are sustained, the evidence is sufficient to support a conviction for injury to a child.”). As the fact-finder, the jury was in a position to evaluate the credibility of the trial witnesses.  See Peterson, 137 S.W.3d at 745. The jury was free to believe or disbelieve all or any part of any of the witnesses’ testimony.  See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); McKinny v. State, 76 S.W.3d 463, 468–69 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  As an appellate court, we are not free to reject evidence as insufficient merely “because a defendant offers an explanation of the facts that is different from the explanation offered by the State.”  Peterson, 137 S.W.3d at 745 (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983) (en banc)).

Conclusion

          We conclude that sufficient evidence supports Black’s conviction for injury to a child.  We therefore affirm the judgment of the trial court.

                                                                      Jane Bland

                                                                      Justice

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).