Quentin Jamal Walker v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00196-CR
___________________________
QUENTIN JAMAL WALKER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1759203
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Following the death of two-year-old K.R.,1 a jury found Appellant Quentin
Jamal Walker guilty of manslaughter, injury to a child, and aggravated assault. See Tex.
Penal Code Ann. §§ 19.04, 22.02(a)(1), (b)(1)(A), 22.04(a)(1), (e). The jury assessed
Walker’s punishment at fifteen years’ confinement for manslaughter, thirty years’
confinement for injury to a child, and twenty years’ confinement for aggravated
assault; the trial court sentenced him accordingly. In three points on appeal, Walker
argues that (1) the evidence is insufficient to support his convictions for manslaughter
and injury to a child, (2) the evidence is insufficient to support the deadly-weapon
element of his conviction for aggravated assault, and (3) his conviction for
manslaughter should be vacated because his convictions for both manslaughter and
aggravated assault violate double-jeopardy principles. We will overrule Walker’s
sufficiency complaints and sustain his double-jeopardy complaint. Accordingly, we
will vacate Walker’s conviction for manslaughter and affirm the remainder of his
convictions.
1
To protect the anonymity of the victim in this case, we will use his initials to
refer to him and will refer to his relatives by their relation to him. See Tex. R. App.
P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
2
II. BACKGROUND
A. Walker’s Relationship with K.R.’s Mother
In or around 2018, Walker began communicating with K.R.’s mother, B.R.
(Mother), on Instagram. At that time, Walker was living in Arlington, Texas, and
Mother was living near Houston, Texas, with K.R. and her mother, A.R.
(Grandmother). During the following months, Walker and Mother started
communicating by phone and FaceTime. In or around February 2019, Walker and
Mother met for the first time in person when Walker traveled to the Houston area.
Around that time, Mother was having disagreements with Grandmother about
Mother’s lifestyle, and Grandmother gave Mother thirty days’ notice to leave the
home that they shared.
In March 2019, Mother and K.R. moved to Arlington to be with Walker.
According to Mother, her understanding was that Walker had a place to live and that
she and K.R. would be moving into an apartment with him. In reality, however,
Walker did not have a place to live.2 Over the ensuing months, Walker, Mother, and
K.R. stayed in hotels and slept in cars. Walker and Mother earned money by
2
According to Walker, Mother knew that he was living in a car when they
decided to move in together.
3
delivering food for DoorDash. According to Mother, they would spend around eight
hours each day “DoorDashing” with K.R. in the car with them.3
During the months that Mother and K.R. were living with Walker, Walker
shared in the responsibilities of parenting K.R., including disciplining him and
attempting to potty train him. At trial, Mother testified that when he disciplined K.R.,
Walker would “whoop [him] with a belt to the point where [K.R.’s] legs would
bleed.”4 Mother stated that Walker would discipline K.R. in this manner if K.R. got
off the toilet before Walker told him to or if K.R. had gotten out of bed during a nap.
She also indicated that Walker would “spank” or “whoop” K.R. for “peeing or
pooping in his pull-up” and that K.R. had stopped telling them whenever he went
“pee or poop in his pull-up.” According to Mother, the discipline would last
“[m]aybe two, three minutes, five at the most,” and Walker would hit K.R. “[m]aybe
five or six” times. Mother said that when she confronted Walker about his discipline
of K.R., he told her that he knew what he was doing and that K.R. would “grow up to
be soft” if he was not properly disciplined.
At trial, Walker admitted that as a form of discipline he had “tap[ped] [K.R.] on
his butt with a belt,” but Walker denied ever spanking K.R. with a belt on the legs.
Mother also briefly worked at a warehouse.
3
While she worked at the
warehouse, K.R. remained with Walker.
When speaking with detectives on the evening of K.R.’s death, however,
4
Mother told detectives that Walker did not “go hard with the discipline.”
4
Despite the discipline, Mother testified that Walker was “pretty good” with K.R., that
K.R. loved Walker, that K.R. followed Walker around, and that K.R. referred to
Walker as “Daddy.” Walker stated that he and K.R. had a good relationship and that
they were “joined at the hip.”
B. The Day of K.R.’s Death
On July 18, 2019, Walker, Mother, and K.R. woke up in a red car that they had
been renting.5 With K.R. in tow, Walker and Mother began “DoorDashing.” At
2:12 p.m., they went to the Cobblestone apartment complex in Arlington.6 At
2:28 p.m., Walker got out of the car to throw trash away. K.R. started “whining”
when Walker got out of the car because K.R. “want[ed] to get out,” too. According
to Mother, when Walker arrived back at the car, he was upset that K.R. was whining.
According to Walker, Mother was “annoyed” that K.R. was whining, and she told
Walker that he “need[ed] to do something” about it and that Walker was “too soft.”
Walker took K.R. out of the car while Mother remained inside and watched videos on
her phone. Mother testified that when Walker and K.R. first got out of the vehicle
5
The vehicle had been rented in Mother’s name and had not been returned per
the rental agreement. The vehicle was reported stolen on July 14, 2019.
6
According to Mother, they stopped at the apartment complex to clean out the
rental car and so that she and Walker could smoke marijuana. She indicated that she
and Walker had smoked marijuana “[m]aybe 30 minutes to an hour before” the
“incident” happened. According to Walker, he and Mother did not use drugs on
July 18, 2019, but he admitted that they had “smoke[d]” on July 17, 2019.
5
and walked away, she saw K.R. fall down but that he got back up. She then lost sight
of them. Mother stated that K.R. was “fine” when he left the car with Walker.
Around twenty minutes later, Walker came back to the car without K.R. When
Mother asked about K.R.’s whereabouts, Walker indicated that K.R. was “laying in the
grass.” Walker told Mother that he needed to change K.R.’s diaper, and he got a
diaper from the vehicle and walked away. Mother testified that she did not look for
K.R. because she was still watching videos on her phone. Five to ten minutes later,
Walker returned to the car carrying K.R. and placed him in the back seat.
After Walker and K.R. returned to the car, Walker said that he would drive to
Walmart so that they could purchase some water. Walker drove the trio out of the
apartment complex at 2:59 p.m. When they arrived at Walmart, Mother went inside
to purchase the water while Walker remained in the vehicle with K.R.7 According to
Walker, he watched videos on his phone while Mother made the purchase, and he did
not check on K.R. When Mother returned to the car, she gave the bottles of water
that she had purchased to Walker, who poured some water in the cap of a bottle to
give to K.R. When K.R. would not take the water, Mother looked back at him and
saw that he was “slumped over” in his seat. Mother indicated that K.R. looked
“sleepy” and that he was breathing “really slow.” When Mother asked Walker what
was wrong with K.R., Walker stated that K.R. had fallen “in the grass.”
7
The water was purchased at 3:07 p.m.
6
Mother became increasingly concerned because K.R. began vomiting, his “eyes
started rolling,” and “he started breathing really fast and really heavy, and then he just
stopped.” Mother told Walker that they needed to take K.R. to the hospital.
According to Mother, Walker did not take K.R.’s condition seriously until K.R. began
vomiting. After K.R. vomited, Walker drove the trio to the hospital.
At 3:27 p.m., Mother entered the hospital carrying K.R. while Walker parked
the car.8 An emergency room physician did a head-to-toe physical examination of
K.R. and did not notice any outward signs of trauma. But the physician observed that
K.R.’s pupils were unequal and sluggish, which indicated to him that K.R. had
suffered “[s]ome type of head trauma or brain injury.” During a CT scan, K.R. went
into cardiac arrest. After attempts to resuscitate him failed, K.R. was pronounced
dead.
C. Walker’s Explanation
At trial, Walker testified about what had occurred between K.R. and himself
after he took K.R. out of the car at the Cobblestone apartment complex. According
to Walker, he took K.R. to a grassy area inside the complex. He stated that he and
K.R. ran around the grassy area for around fifteen to twenty minutes. He said that he
and K.R. were essentially playing a game in which K.R. tried to catch him. According
to Walker, while they were playing, he looked behind him and saw K.R. on the
At trial, Walker admitted that he did not park the car at the hospital because it
8
was stolen.
7
ground trying to get up. Walker testified that he saw K.R. lying on K.R.’s back, but
Walker stated that K.R. “had to [have] fall[en] on his stomach because he [had been]
chasing [Walker].” Walker said that he went over to K.R., grabbed him, checked on
him, and wiped the grass out of his hair. Walker admitted to “shaking” K.R. while
checking on him, although Walker denied “violently shak[ing]” K.R.
Walker testified that he noticed that K.R.’s diaper was wet and weighing him
down. So Walker went to the car to get a diaper while K.R. sat in the grass. Walker
then picked K.R. up and carried him to the apartment complex’s laundry room to
change his diaper. Walker testified that K.R. was “normal at this point” but “seemed
tired.” After he changed K.R.’s diaper, Walker carried K.R. back to the car and placed
him in the back seat. Walker stated that he did not know what caused K.R.’s death.
Walker denied hitting K.R. in the head or slamming his head against a wall or hitting
his head with an object. Walker also denied shaking K.R., apart from when he was
checking on him after the alleged fall.
Walker also gave numerous statements to police, hospital personnel, and others
about what occurred at the Cobblestone apartment complex. While many of these
statements were repetitive of what he ultimately testified to at trial, there were several
inconsistencies with his statements, and in some instances, there were outright lies.
We detail the notable inconsistencies and lies:
• While Walker stated at trial that he had seen K.R. on his back after the alleged
fall, he told detectives that K.R. had fallen on his stomach or had fallen “face
8
forward,” and he demonstrated to a police officer that K.R. had fallen “face
first” with his arms out.
• While Walker testified at trial that he went over to K.R., grabbed him, and
checked on him after the alleged fall, he told detectives and hospital personnel
that K.R. had “popped right back up” after the fall. He later told detectives
that K.R. was on the ground for “a minute and [a] half or two minutes” after
the alleged fall. He told another person that he shook K.R. for between twenty
seconds to a minute while checking on him after the alleged fall.
• While Walker stated at trial that K.R. was sitting in the grass while Walker went
to get a diaper from the car, he told detectives and hospital personnel that K.R.
ran to the car after the alleged fall. Walker admitted at trial that he had lied
when he had stated that K.R. had run to the car after the alleged fall.
• While Walker testified at trial that K.R. seemed “normal” in the laundry room,
a person who interviewed Walker testified that Walker told him that K.R.
began losing consciousness in the laundry room.
• While Walker admitted at trial that he had driven the stolen rental car to the
hospital, he told a police officer that they had arrived at the hospital in either an
Uber or a Lyft. At the hospital, Walker also told police that earlier in the day,
the trio had been traveling in a gray sedan and that Mother had been driving.
When asked about the location of that vehicle, Walker gave the officer “a
couple of different locations,” mentioning that the vehicle was at Walmart and
the Cobblestone apartment complex. At trial, Walker admitted that he had lied
about the car.
• During an interview with police, Walker told detectives that his mother and
sister were close to K.R. and Mother. At trial, Walker admitted that this was a
lie. He indicated that his mother had never even met K.R. or Mother.
D. K.R.’s Autopsy
Marc Krouse, a former deputy chief medical examiner for the Tarrant County
Medical Examiner’s Office (TCMEO), performed an autopsy on K.R.’s body.
Because Krouse was no longer employed by TCMEO at the time of trial, Tasha
9
Greenberg, the deputy chief medical examiner for TCMEO at the time of trial,
reviewed the autopsy report made by Krouse and testified.
Greenberg testified that K.R. had sustained a single-sided subdural hematoma.
She told the jury that subdural hematomas are typically caused by “some form of
trauma.” Greenberg stated that K.R. did not have any bruising on his scalp and that
he did not have any skull fractures. She explained to the jury that this injury indicated
“an impact . . . with a softer object” or “a different mechanism, something more like
shaking with a rotational component.” Greenberg testified that K.R.’s injuries could
have been caused by someone shaking K.R. with his or her hand or hands or could
have been caused by someone “striking [K.R.] with or against a hard or soft object or
surface.” She told the jury that hands can be considered a deadly weapon and that
hands “can kill somebody and cause somebody’s death.” Greenberg opined that she
did not believe that K.R.’s subdural hematoma was caused by a forward fall onto
grass. But she stated that it was “[t]heoretically . . . possible” for an injury like K.R.’s
to be sustained from a child’s head coming into contact with a rock or a tree stump.
Greenberg also noticed that K.R. had “a small amount of arachnoid
hemorrhage” on his “right side.” She explained that the “arachnoid is the membrane
that’s tightly adherent to the brain” and that K.R.’s arachnoid hemorrhage was “a
blush of blood that is right over the surface of the brain” and “right over the right
temporal lobe of the brain.” She stated that this injury was “consistent with the same
trauma” associated with K.R.’s subdural hematoma. Greenberg noted that K.R.’s eyes
10
were examined by an ophthalmologic pathologist, who identified optic-nerve
hemorrhages as well as retinal hemorrhages in both of K.R.’s eyes. Greenberg
testified that retinal hemorrhages are consistent with incidents of blunt trauma of the
head and incidents of shaking. Greenberg stated that the “presentation” of K.R.’s
injuries “look[ed] a little bit more like a blunt[-]trauma” case than a “typical shaking”
case because K.R. had a “single-sided subdural” while in a “typical shaking” case,
there is damage on “both sides of the brain.”
Krouse ruled that K.R.’s manner of death was homicide. Greenberg agreed.
Krouse also determined that K.R.’s cause of death was blunt-force trauma of the
head. Greenberg “[e]ssentially” agreed with that ruling, noting that K.R.’s cause of
death was “head trauma.” Greenberg testified that “[b]ut for being shaken [or] struck
with or against something . . . K.R. would be alive today,” noting that he was “an
otherwise healthy child.”9
Suzanne Dakil, an assistant professor of pediatrics at UT Southwestern and a
board-certified physician in child-abuse pediatrics, reviewed K.R.’s medical records
and autopsy records and testified at trial. When asked for her opinion regarding what
caused K.R.’s injuries, Dakil stated, “So it was all on one side of his head or unilateral,
9
In January 2019—before Mother and Walker met in person—K.R. hit his
head on a bedpost and was taken to the emergency room at a hospital in The
Woodlands, Texas. A CT scan from that hospital visit revealed “[n]o acute
intracranial abnormalities” and no injuries. Both Mother and Grandmother testified
that K.R. was “fine” after that incident. Greenberg testified that K.R.’s “knock in the
head in January of 2019” did not contribute to his death.
11
and most commonly that implies a blunt force to the head that results in that type of
one-sided brain injury.” Dakil opined that Walker’s description of shaking K.R. was
not consistent with his injuries, noting that an injury caused by shaking a child
typically results in “bleeding on both sides of the brain because the brain is moving so
much with that repetitive motion.” According to Dakil, K.R.’s injuries were “[m]ost
likely [caused by] a direct blow of some kind to that side of the head, a violent strike
or falling from a height.” Dakil opined that K.R.’s injuries could not have been
caused “by a ground fall from hi[s] running,” stating that “a child -- a not quite three-
year-old walking or running from standing height, falling . . . would not result in a
fatal head bleed.” Dakil also told the jury that potty training is a “trigger for abuse.”
E. Procedural Background
Walker was indicted on four counts: capital murder of a child, murder, injury
to a child, and aggravated assault.10 Following trial, the jury found Walker guilty of
manslaughter (a lesser-included offense of the capital-murder charge), injury to a
child, and aggravated assault. As noted above, the jury assessed Walker’s punishment
at fifteen years’ confinement for manslaughter, thirty years’ confinement for injury to
a child, and twenty years’ confinement for aggravated assault. The trial court rendered
With respect to the aggravated-assault charge, the indictment alleged that
10
Walker had used or exhibited a deadly weapon, namely, his hand or hands, in the
commission of the offense.
12
judgment in accordance with the jury’s verdicts and ordered Walker’s sentences to run
concurrently. This appeal followed.
III. DISCUSSION
A. Walker’s Sufficiency Complaints
In his first two points, Walker challenges the sufficiency of the evidence to
support certain elements of his convictions.
1. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
2021). We may not re-evaluate the evidence’s weight and credibility and substitute
our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State,
13
569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not engage
in a ‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d
at 608.
To determine whether the State has met its burden to prove a defendant’s guilt
beyond a reasonable doubt, we compare the crime’s elements as defined by a
hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,
622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568,
572 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by
state law.”). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the
indictment means the statutory elements of the offense as modified by the charging
instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021);
see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads
a specific element of a penal offense that has statutory alternatives for that element,
the sufficiency of the evidence will be measured by the element that was actually
pleaded, and not any alternative statutory elements.”).
14
The standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing guilt. Carter v.
State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021).
2. Sufficiency of Walker’s Convictions for Manslaughter and Injury to a
Child
In his first point, Walker argues that the evidence is insufficient to support his
convictions for manslaughter and injury to a child. Specifically, Walker argues that
“there is no evidence of [his] actions or the requisite mental state” to support his
convictions.
a. Applicable Law
A person commits manslaughter if he recklessly causes the death of an
individual. Tex. Penal Code Ann. § 19.04(a). “A person acts recklessly, or is reckless,
with respect to circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur.” Id. § 6.03(c). “The risk must be of
such a nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint.” Id. “Manslaughter is a result-oriented offense:
the mental state must relate to the results of the defendant’s actions.” Britain v. State,
412 S.W.3d 518, 520 (Tex. Crim. App. 2013).
15
A person commits a first-degree felony of injury to a child when the person
intentionally or knowingly commits an act that causes a child serious bodily injury.
Tex. Penal Code Ann. § 22.04(a)(1), (e). “A person acts intentionally, or with intent,
with respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result.” Id.§ 6.03(a). “A person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist.” Id. § 6.03(b). Moreover, “[a]
person acts knowingly, or with knowledge, with respect to a result of his conduct
when he is aware that his conduct is reasonably certain to cause the result.” Id.
“Injury to a child is a result-oriented offense requiring a mental state that relates not
to the specific conduct but to the result of that conduct.” Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
A factfinder may infer that a person intends the natural consequences of his
acts. Harmel v. State, 597 S.W.3d 943, 954 (Tex. App.—Austin 2020, no pet.); Nicholson
v. State, 594 S.W.3d 480, 487 (Tex. App.—Waco 2019), aff’d 682 S.W.3d 238 (Tex.
Crim. App. 2024). “A jury may also infer a defendant’s knowledge or intent from any
facts tending to prove its existence, including the method of committing the crime
and the accused’s acts, words, and conduct.” Nicholson, 594 S.W.3d at 487 (citing Hart
v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)).
16
b. Analysis
To convict Walker of manslaughter, as modified by the indictment, the State
had to prove that (1) Walker; (2) recklessly; (3) by shaking K.R. with his hand or
hands, by striking K.R. with or against a hard or soft object or surface, or by manner
and means unknown; (4) caused K.R.’s death. See Tex. Penal Code Ann. § 19.04(a).
To convict Walker of injury to a child, as modified by the indictment, the State had to
prove that (1) Walker; (2) intentionally or knowingly; (3) by shaking K.R. with his
hand or hands, by striking K.R. with or against a hard or soft object or surface, or by
manner and means unknown; (4) caused K.R. serious bodily injury. See id.§ 22.04(a)(1), (e).
Here, the evidence reflects that K.R. was “fine” when he got out of the vehicle
at the Cobblestone apartment complex and went with Walker. From that point until
K.R.’s injuries began to manifest, Walker was the only person who was alone with
K.R. Shortly after Walker returned K.R. to the car following their trip to the grassy
field and the laundry room, K.R. “slumped over,” looked “sleepy,” and was breathing
“really slow.” He then vomited; his “eyes started rolling”; “he started breathing really
fast and really heavy”; and “then he just stopped.”
K.R.’s autopsy revealed that he suffered a single-sided subdural hematoma, an
arachnoid hemorrhage to his right side, optic-nerve hemorrhages, and retinal
hemorrhages. Greenberg testified that those injuries were consistent with head
trauma and that the presentation of K.R.’s injuries looked like a “blunt[-]trauma” case.
17
K.R.’s manner of death was ruled a homicide, and Greenberg agreed with that ruling.
K.R.’s cause of death was ruled as blunt[-]force trauma of the head, and Greenberg
testified that the cause of K.R.’s death was “head trauma.” Dakil testified that K.R.’s
injuries were “[m]ost likely [caused by] a direct blow of some kind to that side of the
head, a violent strike or falling from a height.”
Both Greenberg and Dakil discounted Walker’s theories of K.R.’s injuries—
that he had been injured after a fall while playing or had been injured when Walker
shook him while checking on him. To that end, Greenberg opined that she did not
believe that K.R.’s subdural hematoma was caused by a forward fall onto grass, and
Dakil opined that K.R.’s injuries could not have been caused “by a ground fall from
hi[s] running” and that Walker’s description of shaking K.R. after the alleged fall was
not consistent with his injuries.
The jury could have reasonably believed that Walker—who had “whooped”
K.R. in the past as a form of discipline when K.R. had soiled a diaper—became angry
after hearing K.R. “whining” and after K.R. urinated in his diaper. Given the extent
of K.R.’s injuries and the fact that Walker was the only person alone with K.R. before
his injuries began manifesting, the jury could have reasonably believed that Walker
struck K.R. with or against a hard or soft object or surface, or shook K.R. with his
hand or hands, in such a violent manner that his actions resulted in K.R.’s death. See
Perez Hernandez v. State, No. 13-16-00696-CR, 2019 WL 2127895, at *8 (Tex. App.—
Corpus Christi–Edinburg May 16, 2019, pet. ref’d) (mem. op., not designated for
18
publication) (“When an adult defendant has had sole access to a child at the time the
child sustained injuries, Texas courts have repeatedly found the evidence sufficient to
support a conviction for intentional injury to a child or murder if the child dies.”);
Martinez v. State, 468 S.W.3d 711, 716 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (concluding that evidence was sufficient to support conviction for serious bodily
injury to a child where the appellant “had been alone with [the child] at the
approximate time he sustained extremely severe injuries”); Elledge v. State, 890 S.W.2d
843, 846–47 (Tex. App.—Austin 1994, pet. ref’d) (affirming conviction for injury to a
child where the child suffered head injuries while alone with the appellant).
After viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found, beyond a reasonable doubt,
that Walker recklessly caused K.R.’s death. See Tex. Penal Code Ann. § 19.04; Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; see also Perez Hernandez, 2019 WL 2127895, at *8;
Guzman v. State, No. 02-14-00297-CR, 2015 WL 6664471, at *4 (Tex. App.—Fort
Worth Oct. 29, 2015, no pet.) (mem. op., not designated for publication) (“In
determining whether a defendant recklessly caused serious bodily injury to a child, a
jury is entitled to consider the extent of the child’s injuries, the relative size of the
child compared to the defendant, and expert testimony that a severe trauma was the
cause of the child’s injuries.”).
Similarly, after viewing all the evidence in the light most favorable to the
verdict, we conclude that a rational trier of fact could have found, beyond a
19
reasonable doubt, that Walker knowingly caused K.R. serious bodily injury. See Tex.
Penal Code Ann. § 22.04(a)(1), (e); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Martinez,
468 S.W.3d at 716; Elledge, 890 S.W.2d at 846–47.
Even if we could have found to the contrary were we sitting as the factfinder,
we cannot act as the “thirteenth juror,” and we may not substitute our judgment for
that of the jury. See Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014);
Burgess v. State, No. 02-19-00203-CR, 2021 WL 3556953, at *3 n.6 (Tex. App.—Fort
Worth Aug. 12, 2021, no pet.) (mem. op., not designated for publication) (“[T]he
factfinder alone—in this case, the jury—judges the evidence’s credibility, and we may
not act as a thirteenth juror, re-evaluating the weight and credibility of the evidence
and, thus, substituting our judgment for that of the factfinder.”).
Moreover, the jury could have reasonably believed that Walker’s inconsistencies
in his explanation of what occurred at the Cobblestone apartment complex and his
lies evidenced a consciousness of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.
Crim. App. 2004) (concluding that defendant’s inconsistent statements and lies
concerning his relationship with an accomplice were probative of wrongful conduct
and were circumstances of guilt); Bradley v. State, No. 01-16-00375-CR, 2017 WL
4682184, at *3 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, pet. ref’d) (mem. op.,
not designated for publication) (holding that the defendant’s “inconsistent statements,
coupled with [his] admission that he lied to the police, support a reasonable inference
of consciousness of guilt”); Gray v. State, No. 02-14-00249-CR, 2015 WL 6081668,
20
at *4 (Tex. App.—Fort Worth Oct. 15, 2015, no pet.) (mem. op., not designated for
publication) (“Moreover, the essential aspect of Gray’s version of what happened—
that Donovan fell down three or four stairs—is not supported by the evidence. Dr.
Roberts testified that he had never seen a case in which a child’s fall down three steps
caused a subdural hematoma.”). We overrule Walker’s first point.
3. Sufficiency of Walker’s Conviction for Aggravated Assault
In his second point, Walker argues that the evidence is insufficient to support
his conviction for aggravated assault because the evidence is insufficient to support a
finding that he used or exhibited a deadly weapon.11
a. Applicable Law
A deadly weapon is “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” Tex. Penal Code Ann.
§ 1.07(a)(17)(B). A hand may be a deadly weapon based on its manner of use and its
capacity to produce death or serious bodily injury. Lane v. State, 151 S.W.3d 188, 191
(Tex. Crim. App. 2004) (citing Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App.
11
The argument section relating to Walker’s second point is limited to a
discussion of whether or not the evidence shows that he used or exhibited a deadly
weapon. We thus limit our analysis to that argument. See Tex. R. App. P. 47.1. To
the extent that Walker sought to challenge any additional elements relating to his
conviction for aggravated assault, he has waived such a challenge. See Moblin v. State,
No. 07-07-0175-CR, 2008 WL 2511202, at *3 (Tex. App.—Amarillo June 24, 2008, no
pet.) (mem. op., not designated for publication) (“Although appellant indicates that he
challenges the sufficiency of the evidence supporting his conviction, he has failed to
provide any briefing on that matter. Because of that[,] the complaint was waived, and
we overrule it.”).
21
[Panel Op.] 1983)); Hopper v. State, 483 S.W.3d 235, 239 (Tex. App.—Fort Worth
2016, pet. ref’d). A person need not have intended to cause serious bodily injury or
death or to have actually caused serious bodily injury or death for his hand to
constitute a deadly weapon. Hopper, 483 S.W.3d at 239. As long as the totality of the
evidence shows that the defendant’s hand was capable of causing serious bodily injury
or death in the manner that he used it, the jury is authorized to find that his hand
qualified as a deadly weapon. Id. The injuries suffered by a victim are factors to be
considered in determining whether a hand was used as a deadly weapon. Lane,
151 S.W.3d at 191.
b. Analysis
Here, K.R. suffered from a single-sided subdural hematoma, an arachnoid
hemorrhage to his right side, optic-nerve hemorrhages, and retinal hemorrhages.
Greenberg testified that K.R.’s injuries could have been caused by someone shaking
K.R. with his or her hand or hands or could have been caused by someone striking
K.R. with or against a hard or soft object or surface. She also told the jury that hands
can be considered a deadly weapon and that hands “can kill somebody and cause
somebody’s death.” Moreover, Greenberg testified that K.R.’s injuries were
consistent with head trauma and that the presentation of his injuries looked like a
“blunt[-]trauma” case. Dakil similarly testified that K.R.’s injuries were “[m]ost likely
[caused by] a direct blow of some kind to that side of the head, a violent strike or
falling from a height.” Dakil also stated that K.R.’s injuries could not have been
22
caused “by a ground fall from hi[s] running”—the type of fall described by Walker.
Greenberg similarly stated that K.R.’s injuries were not caused by a forward fall onto
grass. And, here, K.R.’s cause of death was listed as blunt[-]force trauma of the head,
and Greenberg testified that the cause was “head trauma.”
After viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found, beyond a reasonable doubt,
that Walker used or exhibited his hand or hands as a deadly weapon in the
commission of his aggravated assault against K.R. See Tex. Penal Code Ann.
§ 22.02(b); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lane, 151 S.W.3d at 192 (holding
that evidence was sufficient to support a finding that the appellant used his hand and
his foot as a deadly weapon when the appellant’s assault of the victim resulted in the
victim’s suffering “a concussion to the brain, bruising, and temporary loss of
consciousness”); Hopper, 483 S.W.3d at 240 (“Based on the rational inferences the jury
could have drawn from the admitted evidence, the evidence is sufficient to show that
Hopper used his hands in a manner that was capable of causing death or serious
bodily injury.”); Gutierrez v. State, No. 05-07-01330-CR, 2009 WL 1335154, at *4 (Tex.
App.—Dallas May 14, 2009, pet. ref’d) (not designated for publication) (holding that,
despite no witnesses to the alleged crime, the evidence was sufficient to support the
jury’s finding that the appellant used his hands as a deadly weapon to shake the almost
two-year-old victim when “there was medical evidence indicating that the cause of
[the victim’s] brain and retina injuries was severe, violent shaking” and when experts
23
testified that shaking a child constituted the use of hands as a deadly weapon);
Dismuke v. State, No. 05-04-01856-CR, 2006 WL 3200113, at *4–5 (Tex. App.—Dallas
Nov. 7, 2006, pet. ref’d) (not designated for publication) (holding that, despite no
witnesses to the alleged crime, the evidence was sufficient to support the appellant’s
conviction for capital murder of one-year-old victim by either shaking the victim with
his hands or striking the victim with and against an unknown object where “it [was]
undisputed that [the appellant] was alone with [the victim] during the time when [the
victim’s] injuries occurred” and “the jury heard medical testimony that [the victim’s]
injuries were so severe they could not have been caused by accident or by ordinary
events”); see also Garcia v. State, No. 14-19-00975-CR, 2021 WL 3576372, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 12, 2021, pet. ref’d) (mem. op., not designated for
publication) (“The fact that no witness, including [the victim], saw the knife in [the]
appellant’s hands is not determinative. There was circumstantial evidence at trial
supporting the finding that [the] appellant used or exhibited a knife.”). We overrule
Walker’s second point.
B. Walker’s Double-Jeopardy Complaint
In his third point, Walker argues that we should vacate his conviction for
manslaughter because his convictions for both manslaughter and aggravated assault
violate double-jeopardy principles. The State agrees and urges us to vacate Walker’s
conviction for manslaughter. We likewise agree with Walker’s double-jeopardy
complaint.
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The Double Jeopardy Clause of the Fifth Amendment protects a defendant
from multiple punishments for the same offense. U.S. Const. amend. V; Brown v.
Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977). The Double Jeopardy Clause is
made applicable to the states through the Fourteenth Amendment. U.S. Const.
amend. XIV; Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015). When a
defendant fails to preserve his double-jeopardy complaints, he may raise them for the
first time on appeal if enforcing the usual rules of procedural default would serve no
legitimate state interest and the undisputed facts show that the violation is clearly
apparent on the face of the record. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim.
App. 2006); Stephenson v. State, 673 S.W.3d 370, 387–88 (Tex. App.—Fort Worth 2023,
pet. ref’d).
In the context of multiple punishments, two offenses may be the same if one is
a lesser-included offense of the other or if the two offenses are defined under distinct
statutory provisions but the Legislature made it clear that only one punishment is
intended. Littrell v. State, 271 S.W.3d 273, 275–76 (Tex. Crim. App. 2008). “When
multiple punishments arise out of one trial, the Blockburger test is the starting point in
analyzing the two offenses.”12 Bigon v. State, 252 S.W.3d 360, 370 (Tex. 2008). “Under
the Blockburger test, two offenses are not the same if one requires proof of an element
12
See Blockburger v. United States, 284 U.S. 299, 300–05, 52 S. Ct. 180, 180–82
(1932).
25
that the other does not.” Id. To make that determination, courts look to the elements
as alleged in the charging instrument. Id.Here, while similar, the elements for the charges for manslaughter and
aggravated assault contain some differences. For example, the manslaughter charge
required proof that Walker caused K.R.’s death, while the aggravated-assault charge
required only proof of serious bodily injury to a member of Walker’s family or
household. See Tex. Penal Code Ann. §§ 19.04(a), 22.02(b)(1). Because the two
offenses are not the same under the Blockburger test, we turn to whether the
Legislature made it clear that only one punishment is intended under these
circumstances. See Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007)
(“Application of Blockburger does not serve, however, to negate otherwise clearly
expressed legislative intent.”); Roy v. State, 76 S.W.3d 87, 95 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (“Even when two penal statutes have unique elements, and
are therefore not the same under Blockburger, other factors may lead to the conclusion
that the legislature did not intend to permit multiple punishments when the same
conduct violates both statutes.”).
The following factors are used to determine whether the Legislature intended
only a single punishment for multiple offenses even though the Blockburger test
produced the conclusion that the offenses have different elements and presumptively
permit multiple punishments: (1) whether the offenses are in the same statutory
section or chapter, (2) whether the offenses are phrased in the alternative, (3) whether
26
the offenses are named similarly, (4) whether the offenses have common punishment
ranges, (5) whether the offenses have a common focus or gravamen, (6) whether the
common focus tends to indicate a single instance of conduct, (7) whether the
elements that differ between the two offenses can be considered the same under an
imputed theory of liability that would result in the offenses being considered the same
under Blockburger, and (8) whether there is legislative history containing an articulation
of an intent to treat the offenses as the same or different for double-jeopardy
purposes. Benson, 459 S.W.3d at 72–73 (citing Ervin v. State, 991 S.W.2d 804, 814 (Tex.
Crim. App. 1999)). “These factors are not exclusive, and the question ultimately is
whether the legislature intended to allow the same conduct to be punished under both
of the offenses.” Bigon, 252 S.W.3d at 371.
As to whether the offenses are in the same statutory section, we note that
manslaughter and aggravated assault appear in different chapters of the penal code,
but this “does not necessarily mean that the Legislature intended the same conduct
against the same victim to be punished under both statutes.” Shelby v. State,
448 S.W.3d 431, 437 (Tex. Crim. App. 2014). And because the two statutes appear in
different penal code chapters, they cannot be phrased in the alternative; thus, our
consideration of that factor does not apply. Id. at 438 (“The two statutes cannot be
phrased in the alternative because they appear in separate sections of the penal
code. . . . The second Ervin factor, therefore, is not applicable.”). While, facially,
manslaughter and aggravated assault do not appear to be named similarly, “like
27
aggravated assault, manslaughter denotes an elevated level of assaultive conduct, so
the names of the offenses are somewhat similar under the third factor.” Gunter v.
State, 673 S.W.3d 335, 346 (Tex. App.—Corpus Christi–Edinburg 2023, pet. ref’d).
“Of the Ervin factors, a common focus between the two statutes is the most
reliable indicator of legislative intent and can be outcome determinative.” Id. Here,
manslaughter and aggravated assault have a common focus. The focus of
manslaughter is “the death of an individual.” Tex. Penal Code Ann. § 19.04(a). The
focus of aggravated assault is “serious bodily injury.” Id. § 22.02(b)(1)(A). “‘Serious
bodily injury’ means 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.” Id. § 1.07(a)(46). Moreover, both
manslaughter and aggravated assault are result-oriented offenses. Cf. Gunter,
673 S.W.3d at 346 (stating that both intoxication manslaughter and aggravated assault
are result-oriented offenses). And, here, the result of Walker’s commission of both
offenses was K.R.’s death. Cf. id. (“Therefore, although intoxication manslaughter
and aggravated assault are not the same offense in all situations, under the
circumstances of this case, both offenses resulted in [the victim’s] death, and ‘the
sameness of the result is an indication that the Legislature did not intend to impose
multiple punishments.’”).
In our consideration of these factors, we may also look to the allowable unit of
prosecution. Bigon, 252 S.W.3d at 371; Gunter, 673 S.W.3d at 346. “This analysis can
28
be instructive even though the two offenses are found in different statutory sections.”
Gunter, 673 S.W.3d at 346 (citing Bigon, 252 S.W.3d at 372). “The allowable unit of
prosecution for an assaultive offense in Texas is each victim.” Shelby, 448 S.W.3d
at 439. “This is especially true when the assaultive conduct results in homicide.”
Gunter, 673 S.W.3d at 346; see Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App.
2012) (“With only one victim, there can be only one murder, regardless of how that
murder is committed.”). Applying those principles here, we hold that, under the
circumstances of this case, Walker was punished twice for the same conduct that
caused K.R.’s death. See Gunter, 673 S.W.3d at 346. Given the shared focus of the
two offenses and the allowable unit of prosecution, we conclude that the Legislature
did not intend for Walker to be punished under both statutes for the same conduct.
See id. (“[W]e conclude that the Legislature did not intend for Gunter to be punished
under both statutes for the same conduct.”). Accordingly, we agree with Walker and
the State that Walker’s convictions for both manslaughter and aggravated assault
violate double-jeopardy principles. We thus sustain Walker’s third point.
When a multiple-punishment violation occurs, “the remedy is to affirm the
conviction for the most serious offense and vacate the other convictions.” Bigon,
252 S.W.3d at 372. Generally, the “most serious offense [is] the offense in which the
greatest sentence was assessed.” Id. at 373 (citing Ex parte Cavazos, 203 S.W.3d 333,
338 (Tex. Crim. App. 2006)). Here, the jury assessed Walker’s punishment at twenty
years’ confinement for aggravated assault and fifteen years’ confinement for
29
manslaughter. Accordingly, the proper remedy in this case is to affirm Walker’s
conviction for aggravated assault and vacate his conviction for manslaughter.
IV. CONCLUSION
Having overruled Walker’s first two points but having sustained his third, we
vacate Walker’s conviction for manslaughter and affirm the remainder of his
convictions.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 11, 2024
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