Jonathan Baker v. State

ACCEPTED
12-14-00185-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/18/2015 10:55:31 AM
CATHY LUSK
CLERK
NO. 12-14-00185-CR
IN THE COURT OF APPEALS FILED IN
12th COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS
AT TYLER 2/18/2015 10:55:31 AM
CATHY S. LUSK
Clerk
JONATHAN BAKER,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On appeal from the 283rd Judicial District Court of Dallas County
In Cause Number F13-00422-T
STATE’S BRIEF
Counsel of Record:
Susan Hawk Johanna H. Kubalak
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24014297
Frank Crowley Courts Bldg.
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3639
(214) 653-3643 fax
Anna.Kubalak@dallascounty.org
ATTORNEYS FOR THE STATE OF TEXAS
TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................... iv
STATEMENT OF THE CASE .................................................................... 1
STATEMENT OF FACTS .......................................................................... 1
A. Joniah Baker is born on December 29, 2010, to appellant and
his fiancée, Tamika Sanford.......................................................... 1
B. At about seven months of age, Joniah begins exhibiting
troubling symptoms...................................................................... 2
C. On December 7, 2011, after a day spent alone with appellant,
Joniah is brought to the emergency room in cardiac arrest and
with multiple injuries. .................................................................. 3
D. Detectives interview appellant in an attempt to obtain an
explanation for Joniah’s injuries. .................................................. 5
E. A physician who specializes in child-abuse cases determines
that Joniah’s injuries are consistent with physical abuse. ................ 9
F. Joniah dies two days after he is brought to the hospital. ............... 11
G. An autopsy reveals the full extent of Joniah’s injuries. ................. 11
H. An expert witness testifies for the defense that Joniah’s death
was caused by complications from a prior injury.......................... 14
I. Appellant’s sister-in-law testifies in support of the defense
theory that Joniah’s injuries occurred prior to December 7,
2011. ......................................................................................... 17
J. A second medical examiner who was present during Joniah’s
autopsy disagrees with the opinions of the defense expert............. 18
SUMMARY OF ARGUMENT ................................................................. 20
ARGUMENT ........................................................................................... 22
i
RESPONSE TO ISSUE ONE:
The evidence is legally sufficient to prove that appellant
intentionally or knowingly caused the victim’s death. ......................... 22
A. A legal-sufficiency review assesses the rationality of the jury’s
verdict. ...................................................................................... 22
B. Capital murder requires proof of causation and an intentional
or knowing act. .......................................................................... 23
C. The evidence is legally sufficient to prove that appellant
caused Joniah’s death. ................................................................ 24
1. Joniah sustained his injuries after he was left alone with
appellant. ............................................................................ 25
2. Appellant’s various accounts of the events of that day did
not explain the severity of Joniah’s injuries. .......................... 28
3. The jury was entitled to reject the defense’s theories about
the cause of Joniah’s death and the nature of his skin
injuries................................................................................ 31
D. The evidence is legally sufficient to prove that appellant acted
intentionally or knowingly. ......................................................... 36
RESPONSE TO ISSUES TWO AND THREE:
Appellant failed to preserve his complaint that the trial court
erred in allowing testimony from a witness whose name did
not appear on the State’s witness list at least 30 days prior to
trial. ................................................................................................. 40
A. Appellant did not raise his constitutional claims at trial, and
he failed to request a continuance to preserve his claim that he
was not prepared for the witness’s testimony. .............................. 40
B. Even if appellant preserved his complaint, the trial court did
not err in allowing the witness to testify....................................... 46
PRAYER .................................................................................................. 48
ii
CERTIFICATE OF COMPLIANCE ......................................................... 49
CERTIFICATE OF SERVICE .................................................................. 49
iii
INDEX OF AUTHORITIES
Cases
Barnes v. State,
876 S.W.2d 316 (Tex. Crim. App. 1994) .................................................. 45
Cuadros–Fernandez v. State,
316 S.W.3d 645 (Tex. App.—Dallas 2009, no pet.) .................................. 25
Duff-Smith v. State,
685 S.W.2d 26 (Tex. Crim. App. 1985) ................................................... 45
Fuller v. State,
253 S.W.3d 220 (Tex. Crim. App. 2008) .................................................. 44
Garcia v. State,
16 S.W.3d 401 (Tex. App.—El Paso 2000, pet. ref’d) ............................... 25
Geesa v. State,
820 S.W.3d 154 (Tex. Crim. App. 1991) .................................................. 31
Guevara v. State,
152 S.W.3d 45 (Tex. Crim. App. 2004) ................................................... 31
Hamann v. State,
428 S.W.3d 221 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) . 46, 47, 48
Hernandez v. State,
819 S.W.2d 806 (Tex. Crim. App. 1991) .................................................. 36
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................ 22, 23
Isassi v. State,
330 S.W.3d 633 (Tex. Crim. App. 2010) ....................................... 22, 36, 37
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................................................... 22, 23
Kemmerer v. State,
113 S.W.3d 513 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) ............ 28
iv
Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009) ............................................. 23, 31
Lindley v. State,
635 S.W.2d 541 (Tex. Crim. App. 1982) .................................................. 45
Louis v. State,
393 S.W.3d 246 (Tex. Crim. App. 2012) ....................................... 24, 37, 38
Mart. v. State,
246 S.W.3d 246 (Tex. App.—Houston [14th Dist.] 2007, no pet.)........ 34, 36
Martinez v. State,
867 S.W.2d 30 (Tex. Crim. App. 1993) ................................................... 46
Merritt v. State,
368 S.W.3d 516 (Tex. Crim. App. 2012) .................................................. 32
Montgomery v. State,
198 S.W.3d 67 (Tex. App.—Fort Worth 2006, pet. ref’d) .................... 30, 39
Nobles v. State,
843 S.W.2d 503 (Tex. Crim. App. 1992) .................................................. 47
Oprean v. State,
201 S.W.3d 724 (Tex. Crim. App. 2006) .................................................. 45
Patrick v. State,
906 S.W.2d 481 (Tex. Crim. App.1995)................................................... 36
Paulson v. State,
28 S.W.3d 570 (Tex. Crim. App. 2000) ................................................... 31
Sanders v. State,
No. 05-12-01186-CR, 2014 Tex. App. LEXIS 4430 (Tex. App.—Dallas Apr.
23, 2014, pet. ref’d) (not designated for publication) ................................. 46
Tamez v. State,
205 S.W.3d 32 (Tex. App.—Tyler 2006, no pet.) ................................ 45, 48
Wise v. State,
364 S.W.3d 900 (Tex. Crim. App. 2012) ............................................. 23, 31
v
Wood v. State,
18 S.W.3d 642 (Tex. Crim. App. 2000) ................................................... 46
Statutes
Tex. Penal Code Ann. § 12.31 (West Supp. 2014) .......................................... 1
Tex. Penal Code Ann. § 19.02 (West 2011) ................................................. 23
Tex. Penal Code Ann. § 19.03 (West Supp. 2014) .................................... 1, 23
Tex. Penal Code Ann. § 6.03 (West 2011) .............................................. 24, 39
Tex. Penal Code Ann. § 6.04 (West 2011) ................................................... 24
Rules
Tex. R. App. P. 33.1 ............................................................................. 44, 45
vi
TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in response to the brief of appellant,
Jonathan Baker.
STATEMENT OF THE CASE
A jury convicted appellant of capital murder of a child under the age of
ten. (C.R.: 8, 45, 48; R.R. 7: 69). See Tex. Penal Code Ann. § 19.03(a)(8)
(West Supp. 2014). The State did not seek the death penalty, so the trial court
imposed the mandatory sentence of life imprisonment without the possibility
of parole. (C.R.: 48; R.R. 7: 69). See id. § 12.31(a)(2).
STATEMENT OF FACTS
A. Joniah Baker is born on December 29, 2010, to appellant and his
fiancée, Tamika Sanford.
Tamika Sanford and appellant met in 2009 and began dating. (R.R. 3:
19). Several months into their relationship, Tamika became pregnant. (R.R.
3: 20). The couple moved in together and eventually became engaged. (R.R.
3: 18-20). Their son, Joniah Baker, was born on December 29, 2010. (R.R. 3:
21; R.R. 7: SX-17). At the time of Joniah’s birth, both Tamika and appellant
were unemployed. (R.R. 3: 21-22). When Joniah was about five months old,
in May or June 2011, Tamika took a job as a barista at a Starbucks coffee shop.
(R.R. 3: 22, 40, 61). She normally worked from five or seven o’clock in the
1
morning until two or four o’clock in the afternoon. (R.R. 3: 23). Appellant
would stay home with Joniah while Tamika was at work. (R.R. 3: 23, 31-32).
Initially, appellant’s mother was living in the home, too. (R.R. 3: 21). She
moved out a few months after Tamika began working. (R.R. 3: 23).
B. At about seven months of age, Joniah begins exhibiting troubling
symptoms.
On July 28, 2011, when Joniah was almost seven months old, Tamika
and appellant took him to the emergency room because he had spit up a little
bit of blood. (R.R. 3: 66, 78, 114-15). They took him to the emergency room
again on September 19 for an upper-respiratory infection. (R.R. 3: 64-65; R.R.
5: 75). At that visit, they also reported that Joniah had been crying a lot and
that his activity level and appetite had changed. (R.R. 3: 66; R.R. 5: 75).
Eleven days later, Joniah was back in the emergency room with a fever and
vomiting. (R.R. 3: 64-65; R.R. 5: 75-76).
During the last week of November, Joniah rolled off his parents’ bed
while he was in Tamika’s care. (R.R. 3: 24, 63). He landed on his back on the
floor, which was covered only by thin, unpadded carpeting. (R.R. 3: 24, 69).
He cried for a few minutes and then seemed fine. (R.R. 3: 24-25). A few days
later, appellant told Tamika that Joniah had fallen off the bed again while she
was at work. (R.R. 3: 28-29). After this second reported fall, Joniah began
acting differently. (R.R. 3: 29). He seemed weak and sick, and he was
2
throwing up frequently. (R.R. 3: 29-30). About a week later, on Monday,
December 5, Tamika and appellant took Joniah to the pediatrician. (R.R. 3:
30, 70-71). The pediatrician was not concerned about the two falls from the
bed but did suggest that the parents try to feed Joniah yogurt since he was
refusing milk. (R.R. 3: 30-31).
C. On December 7, 2011, after a day spent alone with appellant,
Joniah is brought to the emergency room in cardiac arrest and
with multiple injuries.
Wednesday, December 7, 2011, began as a normal work day for
Tamika. (R.R. 3: 34, 39). She got up early to get ready for her 7 a.m. shift and
then woke up appellant and Joniah so that appellant could drive her to work,
since the couple only had one car. (R.R. 3: 34, 39-40). Appellant dropped her
off at work, and Tamika said goodbye to Joniah. (R.R. 3: 40). At about 10
a.m., Tamika called home and spoke to appellant. (R.R. 3: 41). He told her
that Joniah was sleeping. (R.R. 3: 41). Tamika finished her shift at 4 p.m. and
waited for appellant and Joniah to pick her up. (R.R. 3: 42-43). While she
was waiting, appellant called and told her that Joniah’s breathing was “faint”
and that they needed to go to the hospital. (R.R. 3: 43). About five minutes
later, appellant drove up. (R.R. 3: 44). Tamika jumped in the front seat, and
they headed to Children’s Medical Center. (R.R. 3: 44, 154, 159). Joniah was
in his car seat directly behind Tamika, so she could not see him. (R.R. 3: 45).
3
As they drove, she asked appellant to put a hand on the baby’s chest to check
his breathing. (R.R. 3: 45). Appellant did, and he told Tamika that it was still
faint. (R.R. 3: 45).
They arrived at the hospital at about 4:30 p.m. and pulled into the
parking garage. (R.R. 3: 45, 158). Tamika got out of the car, but appellant
would not let her get Joniah. (R.R. 3: 45-46). Instead, he told her to just get
her things. (R.R. 3: 46). Appellant grabbed Joniah from the backseat and
began running with him toward the entrance to the hospital. (R.R. 3: 46-47).
It was then that Tamika noticed that Joniah, who was wearing a hoodie and
sweatpants, was not moving. (R.R. 3: 46-47). When they reached the doors of
the hospital and appellant handed Joniah over to hospital staff, Tamika
noticed that the baby’s skin was a bluish-grayish color and his lips were pale.
(R.R. 3: 47-48).
Dr. Jo-Ann Nesiama was the physician in charge of the emergency room
at Children’s that afternoon and one of the first physicians to see Joniah when
he was brought in. (R.R. 3: 154, 158-59, 170). She quickly determined that
the baby was not breathing and had no heartbeat. (R.R. 3: 160-61). He was
also very cold. (R.R. 3: 163). This, along with the bluish-grayish color of his
skin, suggested to Dr. Nesiama that Joniah had not been breathing for quite
some time. (R.R. 3: 160, 163-64). Dr. Nesiama and other hospital staff
4
immediately began resuscitative efforts. (R.R. 3: 160-62). After about 40
minutes of active chest compressions, Joniah finally regained a pulse. (R.R. 3:
166-67). He was still not breathing on his own, however, so he was placed on
a ventilator and moved to the intensive care unit. (R.R. 3: 174). After they
had stabilized Joniah, doctors examined him further and discovered that he
had numerous injuries, including a head injury, fractured ribs, and multiple
linear skin injuries — which were initially thought to be scratches or abrasions
— to different surfaces of his body. (R.R. 3: 51, 56; R.R. 4: 74, 78, 163-66;
R.R. 5: 90-91; R.R. 6: 66-68). He also had what appeared to be bite marks on
his heels. (R.R. 4: 87, 164).
Appellant told Dr. Nesiama that Joniah had woken up sick that morning
and had taken two naps during the day. (R.R. 3: 171-72). When Joniah was
still “not acting like himself” after he woke up from his second nap at about 3
p.m., appellant decided to bring him to the hospital. (R.R. 3: 172). Because
appellant’s account of the events of that day did not explain Joniah’s many
injuries, Dr. Nesiama contacted the hospital social worker who, in turn,
contacted CPS and the police. (R.R. 3: 172; R.R. 4: 73-75).
D. Detectives interview appellant in an attempt to obtain an
explanation for Joniah’s injuries.
Glen Slade, a detective in the Dallas Police Department’s child-abuse
division, was assigned to investigate this case. (R.R. 4: 68, 70, 72-73; R.R. 5:
5
28-29). Detective Slade, accompanied by another child-abuse detective,
Johnny Van, went to the hospital on the evening of December 7, 2011, to
speak with medical personnel and Joniah’s parents. (R.R. 4: 73-75). Detective
Slade interviewed Tamika, while Detective Van interviewed appellant. (R.R.
4: 75). After these initial interviews failed to yield any explanation for Joniah’s
injuries, Detective Slade requested permission to search the couple’s home.
(R.R. 4: 76-77; R.R. 5: 35). Appellant signed a consent-to-search form and
accompanied the detectives to the house, where he walked them through his
day with Joniah. (R.R. 4: 77-78, 117). Appellant told detectives that Joniah
had gone limp in his arms while he was giving him a bath and that he may
have scratched the baby with his fingernails. (R.R. 4: 78-80, 87). Detective
Slade photographed the plastic baby tub where Joniah was bathed. (R.R. 4:
79; R.R. 7: SX-3). He also photographed the bed that Joniah had reportedly
fallen off of twice a couple of weeks earlier. (R.R. 4: 80; R.R. 7: SX-4). Using
a tape measure, he determined that the top of the bed was approximately two
feet off the ground. (R.R. 4: 80-81; R.R. 7: SX-19).
After searching the house, Detectives Slade and Van asked appellant to
accompany them back to the police station so they could talk to him further.
(R.R. 4: 83-84). Appellant agreed. (R.R. 4: 84). At the station, appellant was
placed in an interview room that was equipped with a video camera, and his
6
subsequent conversations with the detectives were videotaped. (R.R. 4: 85).
Detective Slade interviewed appellant first, while Detective Van observed from
another room. (R.R. 4: 85). At trial, Detective Slade recounted the
explanations that appellant gave him for how Joniah might have been injured:
He stated that he doesn’t know why the baby went limp in
his arms because he was just giving the baby a bath. He said the
baby was crying a lot, the baby was frustrated, the baby was
fighting him giving him a bath, wriggling around. And he slipped
in his hands and that’s how he scratched him.
He said his hands went down his legs and he scratched his
legs. He didn’t explain any other scratches on the baby. No head
injuries. At one time he said, “It’s possible maybe when he
slipped in my hands he might have hit his head on the tub.” But
the tub is plastic and it wouldn’t have hurt him.
I asked him — because we also saw bite marks on the child’s
heels. I asked him about those and he thought about it a minute
and then he said, “Well, yeah. I remember after the tub incident I
laid him on the bed and he was fighting me so I had to hold his
feet with my teeth so I could put his pants on him.”
(R.R. 4: 87). Appellant told Detective Slade that after dressing Joniah, he
propped him up with some juice. (R.R. 4: 128). He said that Joniah drank
some of the juice but was leaning over to the side. (R.R. 4: 128). When he
went to pick him up to go get Tamika, he noticed that Joniah was “groaning a
little bit.” (R.R. 4: 128-29).
At some point during the interview, appellant seemed to be getting
nervous and told the detectives that he wanted to go home. (R.R. 4: 89-90).
7
The detectives then made the decision to place appellant under arrest for
suspicion of injury to a child. (R.R. 4: 90). Appellant begged the officers not
to arrest him and asked for another chance to explain. (R.R. 4: 90). This time,
Detective Van interviewed appellant while Detective Slade observed. (R.R. 4:
90). Detective Slade testified at trial that appellant admitted, during his
conversation with Detective Van, that he had shaken Joniah:
The father tried to explain to Van that the child was crying a
lot and he was trying to calm him down and he did shake him but
he knows you can’t shake with your arms fully extended. Just do
it in the body like this and you can’t hurt them.
And he did that a couple of times but it wasn’t severe. And
he tried to explain how the child fell out of his arms. On several
occasions his hands would go around like this, trying to show how
he scratches the baby’s legs.
(R.R. 4: 91). Detective Van brought a doll into the interview room and had
appellant demonstrate the type of mild shaking he was describing. (R.R. 4:
94). Appellant admitted to being frustrated with Joniah and to saying things
like, “Why you tripping, fool?” and “Dude, you’re pissing me off.” (R.R. 4:
94-95, 103-04). But he never admitted to violently hitting or shaking the baby.
(R.R. 4: 94, 104, 120).
Before taking appellant into custody, the detectives photographed his
fingernails and collected scrapings from underneath them. (R.R. 4: 104-05;
R.R. 5: 24-25; R.R. 7: DX-7, -8, -9, -10). Subsequent DNA analysis detected
8
low-level amounts of DNA in the scrapings. (R.R. 4: 136-37, 140). A partial
DNA profile obtained from the left-hand fingernail scrapings matched Joniah’s
DNA profile. (R.R. 4: 140-41).
E. A physician who specializes in child-abuse cases determines that
Joniah’s injuries are consistent with physical abuse.
Dr. Matthew Cox is a board-certified child-abuse pediatrician and the
medical director of the REACH program, which evaluates children when there
are concerns about possible abuse or neglect. (R.R. 4: 156-58). Dr. Cox
examined Joniah at Children’s Medical Center on the afternoon of December
8, 2011, approximately 24 hours after the baby’s admission to the hospital.
(R.R. 4: 159-60, 220). In addition to performing his own head-to-toe
assessment of Joniah, Dr. Cox also reviewed Joniah’s medical records and
imaging studies, spoke to the other doctors and nurses who had treated him,
and obtained his medical history. (R.R. 4: 160-61). From Tamika, Dr. Cox
learned of Joniah’s two previous falls from the bed at home. (R.R. 4: 161-62).
Dr. Cox testified at trial that Joniah’s head injuries consisted of both a
newer, or acute, brain hemorrhage and an older, or chronic, brain hemorrhage.
(R.R. 4: 165-67). The pattern of diffuse, or all-over, brain injury that Joniah
exhibited could not, according to Dr. Cox, have been caused by his rolling off
the bed or hitting his head — even several times — on a plastic baby tub.
(R.R. 4: 169-73). Instead, Joniah’s brain injury was consistent with a “severe
9
and violent traumatic event.” (R.R. 4: 169). Dr. Cox testified that Joniah also
had extensive retinal hemorrhaging as well as retinal detachment, both of
which are hallmarks of the most severe and forceful type of traumatic event.
(R.R. 4: 207-08, 212-13). Ultimately, Dr. Cox concluded that Joniah had
suffered at least two distinct traumatic episodes, at least ten days apart, with
the second episode occurring on the day he was brought to the hospital. (R.R.
4: 166-67, 173-74, 181-82).
Upon examining Joniah’s skin, Dr. Cox determined that the multiple
linear marks previously thought to be scratches or abrasions were actually
burns. (R.R. 4: 163-64, 173). The overlying skin was gone on some of the
marks — which Dr. Cox observed on the palm of one of Joniah’s hands and
on his buttocks, abdomen, thighs, and calves — and others had formed blisters.
(R.R. 4: 163, 179).
Dr. Cox told Detective Slade about the burns on the morning of
December 9. (R.R. 4: 96, 105, 202). After obtaining consent from Tamika,
Detective Slade went back to the house to see if he could find whatever it was
that had caused Joniah’s “branding iron type” burns. (R.R. 4: 96). In the
master bedroom, where appellant said he had spent most of the day with
Joniah, Detective Slade noticed a radiator-style space heater with six, evenly
spaced, vertical bars. (R.R. 3: 35-36; R.R. 4: 97, 123; R.R. 6: 7; R.R. 7: SX-2).
10
He plugged the heater in, and it became extremely hot after just a few seconds.
(R.R. 4: 97). Detective Slade confiscated the heater, and subsequent DNA
analysis detected low-level amounts of DNA on it. (R.R. 4: 97, 140, 142-43).
Both appellant and Joniah were found to be possible contributors of this DNA.
(R.R. 4: 142).
F. Joniah dies two days after he is brought to the hospital.
Joniah never regained consciousness, and further testing confirmed that
he had no brain activity. (R.R. 3: 57; R.R. 4: 163). On the afternoon of
December 9, 2011, less than three weeks before his first birthday, Joniah was
declared brain dead. (R.R. 3: 58; R.R. 6: 102; R.R. 7: SX-17). Tamika agreed
to donate Joniah’s organs, so he was continued on life support until the
following day. (R.R. 3: 58; R.R. 6: 102-03; R.R. 7: SX-17).
G. An autopsy reveals the full extent of Joniah’s injuries.
Dr. Stephanie Burton, a forensic pathologist with the Dallas County
Medical Examiner’s Office, performed Joniah’s autopsy on December 11,
2011. (R.R. 3: 188-89, 192; R.R. 6: 102; R.R. 7: SX-17). In her autopsy report
and in her testimony at trial, Dr. Burton described the many external injuries
that she observed on Joniah:
 two contusions on the back of his head;
 two linear, parallel burns on the back of his head;
11
 an abrasion on his left upper neck;
 two small abrasions on his chest;
 a linear burn on his abdomen;
 two linear, parallel burns on his back;
 two linear, parallel burns on his left buttock;
 two linear, parallel burns on the palm of his right hand;
 three circular-to-oval burns on the back of his right hand;
 two linear, parallel burns on the front of his right thigh;
 two sets of linear, parallel burns — four total — on the back of his
right lower leg;
 a circular burn on the back of his right lower leg;
 two sets of linear, parallel burns — four total — on the front of his
left thigh;
 two linear, parallel burns on the back of his left lower leg;
 two paired, curvilinear-patterned contusions on his right heel; and
 two paired, curvilinear-patterned contusions on his left heel.
(R.R. 3: 196-201, 203; R.R. 7: SX-17). In all, Dr. Burton observed a total of 26
thermal burns on Joniah’s body, all of which were partial to full thickness.
(R.R. 3: 199-200; R.R. 4: 42). The paired, linear, parallel burns were about
one and three-fourths inches apart from midline to midline, which Dr. Burton
later determined was consistent with the distance between the vertical heating
12
elements on the portable radiator seized from appellant’s house. (R.R. 3: 201-
02; R.R. 7: SX-17). Dr. Burton testified that the pattern of the contusions on
Joniah’s heels was “very suspicious-looking for a bite mark.” (R.R. 3: 203).
Dr. Burton’s internal examination of Joniah revealed the following
injuries:
 three areas of hemorrhage underneath the scalp on the back of his
head;
 severe cerebral edema, or swelling of his brain;
 an acute subdural hemorrhage over the top of his brain;
 an acute subdural hemorrhage over the base of his brain;
 an acute subarachnoid hemorrhage that was diffused over the top
and bottom of his brain;
 a chronic subdural hemorrhage;
 diffuse retinal hemorrhages;
 a detached retina in his left eye;
 an area of subcutaneous hemorrhage underlying the abrasions on
his chest;
 an acute posterior rib fracture;
 a healing posterior rib fracture;
 a subcutaneous contusion adjacent to the burns on his back;
 a subcutaneous contusion on his right lower back and buttock; and
13
 a subcutaneous contusion on his left buttock.
(R.R. 3: 204-19; R.R. 7: SX-17). Dr. Burton testified that there were three
different impact sites on Joniah’s head. (R.R. 3: 211-12). She stated that the
acute bleeding in his brain was significant and would have caused an
“immediate change” in his consciousness as well as “probable seizure
activity.” (R.R. 3: 216-18). This was in contrast to the older subdural
hemorrhage, which was less diffuse and significantly smaller, although it might
still have caused symptoms such as vomiting and changes in appetite and sleep
patterns. (R.R. 4: 38, 40). According to Dr. Burton, neither the older nor the
newer hemorrhage was consistent with a fall from a bed two feet off the
ground. (R.R. 3: 220-21; R.R. 4: 39). Regarding the acute hemorrhage, Dr.
Burton testified that it was “indicative of acceleration-deceleration injury,”
such as what would have occurred if the baby had been moved very quickly
and then slammed into a hard object. (R.R. 3: 119-20, 227).
Dr. Burton concluded that Joniah died as a result of a closed-head
injury, with the thermal injuries a contributing factor, and that the manner of
his death was homicide. (R.R. 3: 221).
H. An expert witness testifies for the defense that Joniah’s death was
caused by complications from a prior injury.
Dr. Janice Ophoven, a pediatric forensic pathologist, was hired by the
defense to provide a second opinion as to the cause of Joniah’s death. (R.R. 5:
14
49-52, 59). After reviewing all the medical records and forensic reports, Dr.
Ophoven concluded that Joniah suffered from complications of a chronic
subdural hematoma that occurred months prior to his death. (R.R. 5: 63-65).
She testified that this chronic subdural hematoma was caused by some sort of
blunt-force trauma to the head and that the resulting condition was, in her
words, a “time bomb.” (R.R. 5: 78, 127, 135, 144). She described how she
believed the earlier injury ultimately led to Joniah’s death:
He then suffered subsequent impacts in the days prior to his
collapse. And on the date of his collapse suffered sudden
irreversible increased intercranial pressure, subdural bleeding.
And that pressure and bleeding, the lack of balance in his head
that started sometime in the past resulted in cardiac arrest on the . .
. 7th or on that Wednesday.
(R.R. 5: 65).
According to Dr. Ophoven, the violent impact that set these events into
motion likely occurred sometime in July 2011. (R.R. 5: 65, 135, 144, 156).
She made this determination after reviewing Joniah’s medical records and
plotting his growth from the time of his birth until his death. (R.R. 5: 68; R.R.
7: DX-2). She testified that, in her opinion, Joniah experienced a “catastrophic
change in his growth” starting at seven months of age, when he stopped
gaining weight and began exhibiting symptoms such as frequent vomiting,
lethargy, and irritability. (R.R. 5: 68, 72-73, 77-80). These symptoms,
15
according to Dr. Ophoven, were the result of increased intercranial pressure
caused by the chronic subdural hematoma. (R.R. 5: 79-81).
Dr. Ophoven disagreed with Dr. Burton’s assessment that Joniah
suffered an acute traumatic head injury on the day he was brought to the
hospital. (R.R. 5: 89). Specifically, Dr. Ophoven attributed much of the acute
brain hemorrhage noted by Dr. Burton to the consequences of brain death or
“respirator brain.” (R.R. 5: 116-17). She testified that there was also some re-
bleeding from the chronic subdural hematoma. (R.R. 5: 109-10). Regarding
the three contusions on Joniah’s head, Dr. Ophoven testified that none was
“big enough or serious enough” to permit the conclusion that it resulted from a
violent impact. (R.R. 5: 119, 139). She testified that the contusions could
have been caused by a fall from a short distance or they could have simply
been “little baby bumps,” a common occurrence for an active 11-month-old.
(R.R. 5: 119). Moreover, the contusions appeared to Dr. Ophoven to be of
different ages. (R.R. 5: 119). Additionally, Dr. Ophoven testified that retinal
hemorrhage alone is not an indicator of trauma. (R.R. 5: 120-22, 143-33).
Dr. Ophoven testified that without any significant impact injury to the
head or trauma to the brain itself, she could not conclude that Joniah was the
victim of a “fresh assault” on the day he went into cardiac arrest. (R.R. 5: 128-
29, 139, 147-48). Ultimately, according to Dr. Ophoven, it could have been
16
something as seemingly mild as Joniah’s hitting his head on the tub while
taking a bath that triggered his collapse. (R.R. 5: 140, 156).
Dr. Ophoven also disagreed with the conclusions of both Dr. Burton and
Dr. Cox that all of Joniah’s skin injuries were burns. (R.R. 5: 89). Although
she agreed that the parallel marks on the palm of Joniah’s right hand were
indeed thermal injuries, she testified that, in her opinion, the rest of the marks
were “most consistent with deep abrasions or gouging,” such as by a
fingernail. (R.R. 5: 99, 101). Dr. Ophoven also testified that the intravenous
fluids that caused Joniah’s body to swell while he was in the hospital would
have also caused the wounds on his skin to “spread apart more.” (R.R. 5: 98).
Addressing Joniah’s chest injuries, Dr. Ophoven attributed the abrasions and
soft-tissue injury to the compressions from CPR. (R.R. 5: 106-07). Although
she acknowledged that the rib fractures could not have been caused by CPR,
she testified that they could have “theoretically” been caused by a fall from a
bed. (R.R. 5: 136, 154).
I. Appellant’s sister-in-law testifies in support of the defense theory
that Joniah’s injuries occurred prior to December 7, 2011.
Yolanda Monroe was married to appellant’s brother. (R.R. 6: 113-14).
She described appellant as a good father, who was affectionate and playful
with Joniah. (R.R. 6: 121). She testified that a week or two before Joniah’s
death, Tamika told her that Joniah had fallen off the bed and burned his hand
17
on the portable heater. (R.R. 6: 116). Monroe said that she saw the resulting
burns on Joniah’s hand and that they looked “[l]ike lines or something.” (R.R.
6: 116). Monroe also claimed that when Joniah was eight or nine months old
and “pulling up on everything,” she saw him bump his head on the coffee table
and get a “knot” on his forehead. (R.R. 6: 117).
Monroe testified that she observed a change in Joniah’s behavior when
she had him over for a weekend visit about a month before he died. (R.R. 6:
117-18). She recalled that the normally playful Joniah was withdrawn, cried a
lot, and slept more than he used to. (R.R. 6: 118). She also recalled that
Joniah didn’t want to be picked up and that he “just didn’t like being bothered
anymore.” (R.R. 6: 118). He also seemed to be disturbed by loud noises, such
as the barking of Monroe’s dog. (R.R. 6: 119).
J. A second medical examiner who was present during Joniah’s
autopsy disagrees with the opinions of the defense expert.
Dr. Reade Quinton, the soon-to-be deputy chief medical examiner for
Dallas County, testified that he observed Joniah’s autopsy and concluded, like
Dr. Burton, that the marks on the baby’s skin were burns. (R.R. 6: 35-39). Dr.
Quinton also agreed with Dr. Burton’s conclusions regarding the cause and
manner of Joniah’s death. (R.R. 6: 45). In Dr. Quinton’s opinion, the older
subdural bleed had nothing to do with Joniah’s death. (R.R. 6: 44-45). Dr.
18
Quinton explained that a five-month-old, healed subdural is simply not capable
of causing death:
First of all, I guess the main point is that a subdural, if it was
that old, has well healed. This is something that has scarred over.
It’s done. There’s nothing left to kill you with mechanically. My
argument would be how do you think mechanically this old injury
would kill you?
The answer is I can’t come up with one. The analogy I
would use is if you had something that old, that it’s like a scar.
You can see it microscopically. It’s there. But if you cut your
hand within the first few days after you cut it when it’s got a scab
on it then obviously you could split that again. It could re-bleed.
You could have complications.
If you had a cut on your hand and four months later it’s just
a scar, it’s not going to spontaneously explode. It doesn’t do that.
Scars don’t do that.
(R.R. 6: 42-43). Dr. Quinton also testified that there are many possible
explanations for a child’s failure to gain weight — or “failure to thrive” — and
that environmental factors are often to blame. (R.R. 6: 51-52). Specifically,
Dr. Quinton pointed to neglect as a common cause of failure to thrive. (R.R.
6: 51-52).
Dr. Quinton testified that the newer blood observed on Joniah’s brain
was not re-bleeding from the chronic subdural; it was, instead, indicative of a
separate and distinct traumatic event. (R.R. 6: 43-44, 74). He noted that there
were multiple points of impact underneath Joniah’s scalp. (R.R. 6: 41-42, 94).
He also testified that there was no correlation between the size of the bruising
19
on Joniah’s scalp and the severity of the underlying injury or the amount of
force inflicted. (R.R. 6: 41-42). He stated that it was “highly unlikely” that
Joniah’s new subdural bleed was caused by a fall from a bed two feet off the
ground, but he acknowledged that “there are times a child could fall the right
way in certain situations and sustain a lethal head injury.” (R.R. 6: 46-47). He
also acknowledged that a baby with a prior subdural hematoma might be more
susceptible to increased injury from future head trauma. (R.R. 6: 97). In the
end, however, it was the “totality of the scene” that led Dr. Quinton to
conclude that what had happened to Joniah was a homicide:
Again we are not looking at one injury. We’re looking at
multiple injuries. We’re looking at multiple events. To say that —
this is a child who supposedly was eating, sleeping, doing all these
things and then suddenly is unresponsive and somewhere in that
time frame we gained burns, bites, other things, can I say beyond a
shadow of a doubt that those bruises occurred at that point? No.
Could be days prior.
This kid clearly has had multiple injuries. We have old rib
fractures, newer rib fractures, all these things. It’s a chronically
abused and tortured child really when you talk about burns. Take
it as you will. It is what it is.
(R.R. 6: 107-08).
SUMMARY OF ARGUMENT
Response to First Issue: The evidence is legally sufficient to support
appellant’s capital-murder conviction. Based on the evidence showing that
20
Joniah suffered his fatal injuries while he was in appellant’s sole care, that the
injuries could not have resulted from a routine household accident, and that
appellant gave inconsistent and implausible stories to investigators, a rational
juror could have reasonably inferred that appellant caused the baby’s death.
Additionally, a rational juror could have considered the evidence about the
extent and severity of Joniah’s injuries as proof that appellant was, at the very
least, aware that his actions were reasonably certain to result in the baby’s
death.
Response to Second and Third Issues: The trial court did not err in
permitting a witness to testify whose name the State did not include on its
witness list at least 30 days prior to trial, as required by the court’s discovery
order. Nothing indicates that the State acted in bad faith by not disclosing the
witness’s name until the week prior to trial, when the State learned of the
unavailability of the witnesses it had intended to call to testify to the same
matters as the undisclosed witness. Moreover, the name of the witness, an
emergency-room physician who treated Joniah when he was brought to the
hospital, appeared in the medical records provided to the defense more than a
year before trial. Accordingly, appellant could have reasonably anticipated
that the State would call the witness to testify.
21
ARGUMENT
RESPONSE TO ISSUE ONE
The evidence is legally sufficient to prove that appellant
intentionally or knowingly caused the victim’s death.
In his first issue, appellant contends that the evidence is legally
insufficient to support his conviction. He specifically challenges the sufficiency
of the evidence to prove that (1) he caused the victim’s death and (2) he did so
intentionally or knowingly.
A. A legal-sufficiency review assesses the rationality of the jury’s
verdict.
In evaluating the legal sufficiency of the evidence to support a
conviction, the reviewing court considers all the evidence in the light most
favorable to the verdict and determines whether, based on that evidence and all
reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19
(1979)). The reviewing court’s role is not to become a “thirteenth juror”; the
court may not reevaluate the weight and credibility of the evidence and thereby
substitute its judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). Instead, the appellate court must defer to the
responsibility of the trier of fact to fairly resolve conflicts in the testimony, to
22
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Hooper, 214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318-19).
The appellate court’s role is “restricted to guarding against the rare occurrence
when a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517-
18 (Tex. Crim. App. 2009).
Circumstantial evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to support a
conviction. Id. Thus, the legal-sufficiency standard of review is the same for
both direct and circumstantial-evidence cases. Id. The State need not disprove
all reasonable alternative hypotheses that are inconsistent with the defendant’s
guilt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Rather, the
reviewing court should consider only whether the inferences necessary to
establish guilt are reasonable based upon the cumulative force of all the
evidence when considered in the light most favorable to the verdict. Id.
B. Capital murder requires proof of causation and an intentional or
knowing act.
A person commits the offense of capital murder if he intentionally or
knowingly causes the death of an individual under ten years of age. Tex. Penal
Code Ann. § 19.02(b)(1) (West 2011), § 19.03(a)(8). Here, the indictment
alleged that appellant intentionally or knowingly caused Joniah’s death by
23
striking Joniah with appellant’s hand or by striking Joniah “with and against
an unknown object.” (C.R.: 8).
Capital murder is a result-of-conduct offense. Louis v. State, 393 S.W.3d
246, 251 (Tex. Crim. App. 2012). A person acts intentionally, or with intent,
with respect to a result of his conduct when it is his conscious objective or
desire to cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011). 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. § 6.03(b). A person is criminally responsible for causing a result if
the result would not have occurred but for his conduct, operating either alone
or concurrently with another cause, unless the concurrent cause was clearly
sufficient to produce the results and the conduct of the actor clearly
insufficient. Id. § 6.04(a).
C. The evidence is legally sufficient to prove that appellant caused
Joniah’s death.
Appellant argues that the State failed to prove that he was responsible for
Joniah’s death because there was “no evidence as to when [Joniah] allegedly
suffered trauma to his head.” (Appellant’s Brief, p. 43). He also argues that
the State failed to rebut the possibility that Joniah’s fatal head injury occurred
months prior to his death.
24
1. Joniah sustained his injuries after he was left alone with appellant.
Texas case law is replete with holdings that when an adult defendant had
sole access to a child at the time the child was injured, the evidence is sufficient
to support a conviction for injury to child or, if the child dies, for murder.
Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d); see
Cuadros–Fernandez v. State, 316 S.W.3d 645, 654 (Tex. App.—Dallas 2009, no
pet.). In the instant case, Tamika testified that Joniah was fine when she left
him in appellant’s care on the morning of December 7, 2011. (R.R. 3: 39-40).
She stated that there was nothing unusual about his behavior the previous day,
either, and recalled that he was eating, drinking, and crawling around
normally. (R.R. 3: 34-35). She testified that she gave Joniah a bath on the
evening of December 6 and that she did not see any burns, bite marks, or
unusual bruising on his body at that time. (R.R. 3: 34-35, 129). During his
interviews with Detectives Slade and Van, appellant was asked several times if
anyone else had been in the house while Tamika was at work on December 7.
(R.R. 4: 95-96). Appellant confirmed that he was home alone with Joniah all
day. (R.R. 4: 96; R.R. 5: 39).
Tamika described the marks she saw on Joniah’s body in the hospital as
“horrifying” and unlike anything she had ever seen before on her child, who
she acknowledged suffered from eczema and would sometimes scratch himself.
25
(R.R. 3: 90-92, 113). She testified that Joniah never played near the space
heater and that she had never seen him touch it. (R.R. 3: 75). She also
testified that although she would sometimes playfully bite her son’s heels to
make him laugh, she had never bit him hard enough to leave a mark with
“teeth holes,” such as the ones Joniah had on his heels when she saw him in
the hospital. (R.R. 3: 103, 118, 127-28). Additionally, there was evidence that
Joniah had been to the pediatrician just two days before his hospitalization.
(R.R. 3: 30-31, 62). The wounds on his skin, photographs of which were
admitted into evidence at trial, would have been obvious during even the most
cursory medical examination. (R.R. 7: SX-7, -8, -9, -10, -11, -12, -13, -14, -15).
And yet, the doctor did not see anything concerning and pronounced Joniah a
“healthy baby” at that visit. (R.R. 4: 31; R.R. 5: 25).
Both Dr. Cox and Dr. Burton testified that Joniah’s fatal head injury
would have rendered him immediately symptomatic. (R.R. 3: 217-18; R.R. 4:
40; R.R. 4: 167-68). According to Dr. Cox, the newer bleeding observed in
Joniah’s brain would have been a “that day type injury based on his clinical
presentation,” which included altered breathing and muscle tone. (R.R. 4:
167). He also testified that Joniah “would be acting differently immediately
after a traumatic event of the severity that [he] would have had to sustain to
cause his injuries.” (R.R. 4: 167). Dr. Burton testified that the acute bleeding
26
in Joniah’s brain would have caused an “immediate change in the child’s
consciousness,” as well as “probable seizure activity.” (R.R. 3: 217-18). She
stated that Joniah would not have been able to eat or drink normally after
sustaining such an injury. (R.R. 3: 218).
The evidence, viewed in the light most favorable to the verdict, shows
that Joniah was alive and not visibly injured before being left in appellant’s
sole care on the morning of December 7. After approximately nine hours
alone with appellant, Joniah was brought to the hospital, where he was
essentially dead on arrival, with a severe brain injury and with multiple
external injuries, including 26 burns all over his body. (R.R. 3: 161, 200, 202-
03, 216-17; R.R. 4: 42; R.R. 5: 66). From this evidence, the jury could have
rationally concluded that Joniah sustained his injuries, including his fatal head
injury, while he was in appellant’s sole care. See, e.g., Cuadros-Fernandez, 316
S.W.3d at 654 (holding that the evidence was sufficient to support the
defendant’s conviction for capital murder of a child where the child was fine
before being left with the defendant, and the defendant was alone with the
child for at least two hours before the child collapsed).
27
2. Appellant’s various accounts of the events of that day did not explain the
severity of Joniah’s injuries.
In addition to the evidence showing that appellant was the only adult
with access to Joniah at the time the injuries were inflicted, the jury was also
entitled to consider, as further evidence of appellant’s guilt, his shifting
versions of events and the inconsistencies between his explanations for
Joniah’s injuries and the medical evidence. See, e.g., Kemmerer v. State, 113
S.W.3d 513, 515-16 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). At the
hospital, appellant told the emergency-room physician, Dr. Nesiama, that
Joniah had woken up sick that morning and had not been “acting like himself”
all day. (R.R. 3: 171-72). But he later told Detective Slade that Joniah was
fine when Tamika went to work that morning. (R.R. 4: 95). Tamika also
testified that Joniah was fine when she saw him that morning and that
appellant did not report any concerns to her when she called to check in. (R.R.
3: 40-43).
During his interview with Detective Slade, appellant claimed that Joniah
had gone “limp” in his arms while he was giving him bath. (R.R. 4: 79, 87).
But he also claimed that Joniah was “fighting him” during the bath and
“wiggling around.” (R.R. 4: 87). To explain the bite marks on Joniah’s heels,
appellant told Detective Slade that Joniah was kicking his legs while appellant
28
was trying to get him dressed, and that he had to hold the baby’s feet with his
teeth in order to put his pants on. (R.R. 4: 87-88). Detective Slade testified
that appellant’s explanation made no sense “because the child had already
gone limp in his arms” and because it would have been impossible for
appellant to put pants over the baby’s legs while simultaneously holding the
baby’s feet in his mouth. (R.R. 4: 88; R.R. 5: 39-40). At another point in the
interview, appellant contradicted his story about Joniah’s fighting his efforts to
put pants on and claimed that while Joniah would normally resist getting
dressed, this time he was “just laying there.” (R.R. 4: 130-32; R.R. 5: 36-37,
39-40).
During his interview with Detective Van, appellant for the first time
admitted to being frustrated with Joniah and to shaking him, although he
claimed that he had done so gently and only in an effort to calm the baby
down. (R.R. 4: 91, 93-94, 103-04). Appellant told Detective Van that he had
attended a “shaken baby class” and knew “that you can’t shake a baby with
your arms fully extended because that’s when children get hurt.” (R.R. 4: 91-
92). According to Detective Slade, appellant could not provide a
chronological sequence of events and revised his story as he was confronted
about Joniah’s specific injuries. (R.R. 4: 135; R.R. 5: 41-42). The jury was
entitled to regard appellant’s different versions of events as evidence of his
29
consciousness of guilt and to conclude that appellant changed his stories
because he had something to hide. See Montgomery v. State, 198 S.W.3d 67, 87
(Tex. App.—Fort Worth 2006, pet. ref’d).
Moreover, in light of the medical evidence presented at trial about the
nature and extent of Joniah’s injuries, the jury could have reasonably and
rationally rejected each of appellant’s various accounts as not credible. The
only explanations that appellant ultimately gave for Joniah’s injuries were that
the baby had recently rolled off the bed twice, that he might have accidentally
scratched the baby with his fingernails, that the baby might have bumped his
head on the plastic bathtub, and that he had shaken the baby gently. But the
State’s experts testified that Joniah was not scratched but severely burned — 26
times on his head, abdomen, back, hand, and legs — and that the distinctive
pattern of the majority of the burns suggested that they had been inflicted by
the portable radiator in appellant’s bedroom. (R.R. 3: 196-203; R.R. 4: 163-64,
211; R.R. 6: 39-40). The State’s experts also testified that Joniah’s fatal brain
injury was caused by blunt-force trauma of a severe and violent nature, such as
the baby’s having been put in rapid motion and then slammed into a hard
object. (R.R. 3: 219-20, 226-27; R.R. 4: 169, 175; R.R. 6: 92-94, 103, 105).
The jury was entitled to regard the implausibility of appellant’s explanations
for Joniah’s injuries as additional evidence of his guilt. See, e.g., Guevara v.
30
State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding that “inconsistent
statements . . . and implausible explanations to the police are probative of
wrongful conduct and are also circumstances of guilt”).
3. The jury was entitled to reject the defense’s theories about the cause of
Joniah’s death and the nature of his skin injuries.
Appellant argues that the State failed to rebut what he contends are the
“alternative reasonable hypotheses” in this case: that the marks on Joniah’s
skin were actually fingernail scratches — accidentally inflicted while he was
giving the baby a bath — and that Joniah’s death was actually caused by a
head injury sustained months prior — in July 2011, to be exact. (Appellant’s
Brief, p. 44, 51-57). But the State was not required, at trial, to affirmatively
disprove every reasonable alternative hypothesis that was inconsistent with
appellant’s guilt. See Wise, 364 S.W.3d at 900; Laster, 275 S.W.3d at 520. Nor
is this Court, in reviewing the sufficiency of the evidence to support appellant’s
conviction, required to determine whether the evidence excluded every
reasonable hypothesis other than his guilt. See Laster, 275 S.W.3d at 520-21; see
also Geesa v. State, 820 S.W.3d 154, 155 (Tex. Crim. App. 1991) (abandoning
the “reasonable hypothesis analytic construct” for circumstantial-evidence
cases), overruled, in part, on other grounds by Paulson v. State, 28 S.W.3d 570, 573
(Tex. Crim. App. 2000). Indeed, for this Court to do so would place it in the
31
improper position of a thirteenth juror, “thereby repudiating the jury’s
prerogative to weigh the evidence, to judge the credibility of witnesses, and to
choose between conflicting theories of the case.” Merritt v. State, 368 S.W.3d
516, 527 (Tex. Crim. App. 2012).
Moreover, there was no dispute at trial that Joniah had sustained a
previous head injury. On this point, each of the State’s medical experts agreed
with the defense’s expert, Dr. Ophoven, that there was evidence of prior blunt-
force trauma to Joniah’s head. (R.R. 3: 217; R.R. 4: 38-39, 166-67, 169-70,
173-74; R.R. 5: 64-65, 135; R.R. 6: 44-45, 73). Indeed, Joniah also had rib
fractures in various stages of healing — further evidence that he was, as Dr.
Quinton stated, a “chronically abused” child. (R.R. 3: 207-08; R.R. 4: 39;
R.R. 6: 107-08). The State’s experts also agreed that the prior head injury
could have occurred several months before Joniah’s death. (R.R. 4: 166-67,
181-82; R.R. 6: 44, 73). Where they disagreed with Dr. Ophoven was as to her
theory that a five-month-old subdural hemorrhage, which had completely
healed, could have spontaneously re-bled and resulted in Joniah’s collapse and
ultimate death. (R.R. 4: 58-60, 174, 215; R.R. 6: 42-45). Dr. Quinton testified
that he had never seen such a scenario reported in any forensic literature and
that, in his opinion, it was not possible. (R.R. 6: 74-75). Dr. Burton testified
that an old subdural hemorrhage might bleed microscopically, “but they do not
32
produce large subdural hemorrhages or when they do re-bleed, it’s such little
blood, it does not cause loss of consciousness.” (R.R. 3: 58). She also testified
that “respirator brain” does not cause acute bleeding in the brain. (R.R. 4: 60).
Furthermore, although Dr. Ophoven attributed Joniah’s failure to gain
weight after seven months of age to increased intercranial pressure from the
initial head trauma, she failed to consider other possible reasons for Joniah’s
“failure to thrive.” She admitted that she was not aware that the baby’s health
problems started around the time — after Tamika had gone back to work and
appellant’s mother had moved out of the house — that appellant became the
child’s primary caregiver. (R.R. 3: 22-23, 114-15; R.R. 5: 134-35). Dr.
Quinton testified that in determining the cause of failure to thrive, he would
first look to environmental factors: “Has something in the environment
changed, being they changed the way that the baby was fed, the routine of the
baby, something like that.” (R.R. 6: 51). He testified that in many instances,
failure to thrive “can be just from neglect. They are not getting enough intake
or the correct kind of intake.” (R.R. 6: 51-52).
Here, three medical doctors, including the pathologist who performed
Joniah’s autopsy, testified that Joniah’s fatal injury was his acute brain
hemorrhage and that this hemorrhage was caused by a severe and violent
traumatic event that occurred on December 7, the day he was brought to the
33
hospital. (R.R. 3: 215-17, 219-20, 226-27; R.R. 4: 28-29, 38, 40, 57-58, 166-69,
171-72, 174; R.R. 6: 43-44, 46-47, 73-74, 92-95, 105). The State’s experts also
testified that Joniah’s head injury was intentionally inflicted — and not the
result of a routine household accident, such as a fall from the bed or a bump on
the bathtub — and would have caused immediate, severe, and unmistakable
symptoms. (R.R. 3: 217-23, 226-27; R.R. 4: 167-69, 172-74, 176, 185, 205;
R.R. 6: 46-47, 92-93, 103, 105, 107). The jury could have rationally concluded
that the only person who could have inflicted this injury was the person who
was alone with Joniah when he collapsed — appellant. Cf. Martin v. State, 246
S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding
that the evidence was legally sufficient to prove that the defendant caused the
child’s fatal injuries where the medical evidence showed that the child would
have been immediately and severely symptomatic upon sustaining the injuries,
and the defendant was the only one who had contact with the child during the
time frame in which the injuries could have occurred).
In arguing that the evidence is insufficient to show that Joniah’s head
injury was the result of abuse, appellant discounts the significance of the baby’s
skin injuries, claiming that it is “absurd” that the State’s medical experts
concluded that all of the linear marks were burns. (Appellant’s Brief, p. 49).
He argues that, with the exception of the ones on Joniah’s palm, it is “much
34
more likely” that the marks were scratches, caused by his “unusually long
fingernails.” (Appellant’s Brief, p. 49, 51). He points out that Joniah’s DNA
was found in his fingernail scrapings. (R.R. 4: 140-41). He also points out that
he was not normally the one who bathed Joniah — indeed, Tamika testified
that he had only done so once before, when Joniah was about a week old —
and argues that it was that his inexperience with holding a slippery baby in the
bathtub that led to the scratches. (R.R. 3: 34). But all three of the State’s
experts, each of whom saw the injuries firsthand, testified that the marks on
Joniah’s skin were definitely burns and not scratches. (R.R. 3: 196-203; R.R.
4: 163-64, 177-78, 211, 221; R.R. 6: 39-40, 103, 109). Even the defense’s
expert witness described the linear marks as “deep scratches,” “gouges,” “full
thickness abrasions,” and “incision[s].” (R.R. 5: 94-95, 97, 102, 106). She also
acknowledged that the marks on the back of Joniah’s head were consistent
with burns. (R.R. 5: 137-38). The jurors viewed photographs of the skin
injuries, as well as photographs of appellant’s fingernails, and could have
reasonably concluded — relying on their own common sense and the
testimony of the State’s experts — that the 26 marks all over Joniah’s body
were not accidental fingernail scratches but were, instead, further proof of the
abuse that appellant inflicted on Joniah prior to the baby’s death. (R.R. 7: SX-
7, -8, -9, -10, -11, -12, -13, -14, -15; DX-7, -8, -9, -10).
35
Viewing all the evidence in this case in the light most favorable to the
prosecution, any rational juror could have found, beyond a reasonable doubt,
that appellant was the person who inflicted Joniah’s fatal head injury.
Accordingly, the evidence is legally sufficient to prove that appellant caused
Joniah’s death.
D. The evidence is legally sufficient to prove that appellant acted
intentionally or knowingly.
The evidence is also legally sufficient to support the jury’s finding that, in
causing Joniah’s death, appellant acted intentionally or knowingly. Mental
culpability must generally be inferred from the circumstances under which a
prohibited act occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.
App. 1991). The requisite mental state to commit capital murder can be
inferred from the acts, words, and conduct of the accused; the extent of the
victim’s injuries; the method used to produce the injuries; and the relative size
and strength of the parties. Martin, 246 S.W.3d at 263 (citing Patrick v. State,
906 S.W.2d 481, 487 (Tex. Crim. App.1995)). Evidence of a particularly
brutal or ferocious mechanism of death, inflicted upon a helpless victim, can be
controlling on the issue of intent or knowledge. Id.
In a sufficiency review, the reviewing court affords the jury’s inference of
culpable intent as much deference as it does to the evidence supporting proof
of culpable conduct. Isassi, 330 S.W.3d at 643. As long as the jury’s finding of
36
a culpable intent is supported by a reasonable inference, it is within the
province of the factfinder to choose which inference is most reasonable. Id.
Appellant relies on Louis v. State, 393 S.W.3d 246 (Tex. Crim. App.
2012), to support his argument that the evidence is insufficient to prove that he
caused Joniah’s death intentionally or knowingly. In Louis, the Court of
Criminal Appeals held that the evidence was legally insufficient to establish
that the defendant intended to cause the death of his girlfriend’s two-year-old
son because, although the defendant admitted to striking the child repeatedly
with a leather belt on the thighs, buttocks, and back, the evidence showed that
the child’s mother continued to abuse the child after the defendant had left the
house. 393 S.W.3d at 251. The Court pointed out that the child’s death was
caused by a combination of the defendant’s and the mother’s acts, and there
was no evidence that the defendant knew that, after he left the house, the
mother would repeatedly strike the child’s head and hang him by his arms in a
closet. Id. at 251-52. The Court held that, in the absence of any evidence
showing that the child could or would have died from the injuries caused by
the defendant alone, the jury could not have reasonably inferred that the
defendant intended to cause the child’s death. Id. at 252.
Appellant contends that “[t]he evidence of possible abuse committed by
the defendant against the child in Louis is far more compelling than the
37
evidence presented against Appellant.” (Appellant’s Brief, p. 46). But what
prompted the Court of Criminal Appeals to hold, in Louis, that the evidence
was insufficient to establish the requisite culpable mental state for capital
murder was the fact that the injuries inflicted by the defendant were not fatal in
and of themselves but became fatal only in combination with later injuries
separately inflicted by the child’s mother. 393 S.W.3d at 252. Louis has no
application to the present case. Here, the evidence, viewed in the light most
favorable to the jury’s verdict, shows that appellant was the only person
responsible for Joniah’s death.
Furthermore, the jury could have reasonably inferred, from the extent
and severity of the injuries, that appellant acted at least knowingly when he
caused Joniah’s death. Dr. Cox testified that Joniah’s brain injury was
“extensive” and could only have been caused by a “severe and violent
traumatic force.” (R.R. 4: 169, 213). He also testified that Joniah had
“extensive and diffuse” retinal hemorrhages as well as retinal detachment, both
of which “are things seen in the most severe traumatic event.” (R.R. 4: 207-
08). Dr. Cox likened Joniah’s injuries to those he might see in a child who had
been in a car accident, who had fallen out of a third-story window, or who had
endured some other type “extreme trauma.” (R.R. 4: 169, 220).
38
Dr. Burton testified that Joniah had three different impact sites on his
head, that he had bleeding all over his brain, and that the pattern of his injuries
was not consistent with a short fall, such as from a bed. (R.R. 3: 212, 216-17,
219-21, 226; R.R. 4: 56-58; R.R. 7: SX-18). Rather, she testified, it was
consistent with an “acceleration-deceleration injury,” where the child was put
into motion and then slammed into a hard object. (R.R. 3: 219-20, 227).
A rational jury could have concluded, beyond a reasonable doubt, that
an adult male who strikes an 11-month-old, approximately 22-pound baby in
the head with the amount of force that was required to cause the injuries that
Joniah sustained would, at the very least, have been aware that his conduct
was reasonably certain to result in the child’s death. (R.R. 5: 93; R.R. 7: SX-
17; DX-2). See Tex. Penal Code Ann. § 6.03(b); cf. Montgomery, 198 S.W.3d at
87-88 (holding, after considering the extent of the child’s injuries, the amount
of force that would have been required to cause those injuries, and the
disparities in size and strength between a 16-month-child and a grown man,
that the evidence was legally sufficient to prove that the defendant acted at
least knowingly in causing the child’s death). The evidence is legally sufficient
to support appellant’s conviction. His first issue should be overruled.
39
RESPONSE TO ISSUES TWO AND THREE
Appellant failed to preserve his complaint that the trial court
erred in allowing testimony from a witness whose name did
not appear on the State’s witness list at least 30 days prior to
trial.
In his second and third issues, appellant contends that the trial court
erred in allowing the emergency-room physician, Dr. Nesiama, to testify
because the State failed to provide timely notice of its intention to call her as a
witness. He argues that the State violated the trial court’s pretrial discovery
order, which required the State to provide 30 days’ notice of the identities of all
of its witnesses, and that the trial court, by allowing Dr. Nesiama to testify,
violated his Sixth Amendment right to confrontation and his right, under the
First, Fifth, and Fourteenth Amendments, to a “neutral and impartial judge.”
(Appellant’s Brief, p. 70).
A. Appellant did not raise his constitutional claims at trial, and he
failed to request a continuance to preserve his claim that he was
not prepared for the witness’s testimony.
On May 27, 2014, prior to the start of voir dire, defense counsel
addressed the trial court about a provision in counsel’s “omnibus pretrial
40
motion”1 that required the State to provide 30 days’ notice of the witnesses it
intended to call to testify:
[DEFENSE COUNSEL]: Also on omnibus number 11
which you have there 30 days prior to trial, we were supposed to
get notice of their identity and what they intend to testify about.
We did not get notice until May 7th that an additional doctor Joni
McClain was going to testify. We were not given any information
about what she intends to testify about.
[PROSECUTOR]: Take her off.
[DEFENSE COUNSEL]: We were given notice on May
7th of Dr. Marita Thompson.
THE COURT: Who does the State intend to call?
[PROSECUTOR]: The experts are Dr. Burton and Dr.
Matt Cox.
....
[DEFENSE COUNSEL]: Both of those I have sufficient
notice on.
[PROSECUTOR]: I had put a Marita Thompson. I can’t
remember the other one.
[DEFENSE COUNSEL]: Nesiama.
[PROSECUTOR]: Thompson is now unavailable and there
was another one Murphy became unavailable that I have — I let
you know last week about Nesiama. I gave you her phone
1
Neither this motion nor any orders associated with it appear in the record before this
Court. The prosecutor did not, however, dispute defense counsel’s representation that there
was a pretrial order in place that required the State to give 30 days’ notice of the witnesses it
intended to call at trial. (R.R. 2: 18-21; R.R. 3: 151-53).
41
number. Quite frankly, most of what she’s going to do is really fat
[sic].
[DEFENSE COUNSEL]: With respect to Dr. Nesiama, I
wasn’t given notice of her until last Tuesday and, of course, that’s
not in compliance with the Court’s pretrial orders. It really doesn’t
allow me the time —
THE COURT: Is she the treating physician at the ER?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: I didn’t see her on the records.
That was Dr. Marissa — Marita and Murphy.
[PROSECUTOR]: They got a lot of names on there. I
admit that but she’s one of the names that’s on the ER doctor.
[DEFENSE COUNSEL]: We weren’t given notice she was
going to testify.
THE COURT: She’s going to testify based on the same
records that were submitted regarding the other ER doctors?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: Your objection is overruled.
[DEFENSE COUNSEL]: We except to that, Your Honor.
Is it the State’s representation that Dr. Nesiama is going to testify
to exactly the same records that were going to be testified to by —
well, actually, Your Honor, none of the notices were given timely
except for Dr. Cox and Tammy Robertson and Ikler (phonetic)
who was the person who contacted the M.E.’s office. None of
these experts were provided within 30 days of trial.
THE COURT: When did you receive the ER records?
....
42
[DEFENSE COUNSEL]: Last year.
THE COURT: Your objection is overruled.
(R.R. 2: 18-21).
Prior to Dr. Nesiama’s testimony, the trial court, at appellant’s request,
held a hearing outside the presence of the jury. (R.R. 2: 21; R.R. 3: 134-153).
At this hearing, the State informed the trial court that it had previously
tendered to the defense a CD containing the medical records that Dr. Nesiama
was going to testify from. (R.R. 3: 134-35). The State also produced two
binders full of printed material and represented to the trial court that all of the
printed material was contained on the CD provided to the defense. (R.R. 3:
134-35). The parties were then permitted to question Dr. Nesiama about her
qualifications and experience and the substance of her intended testimony.
(R.R. 3: 136-47). At the conclusion of this questioning, the trial court ruled
that he would “allow this witness to testify about the treatment, the injuries
and to testify that the criteria was met for her to alert the social worker. But
I’m not going to allow her to testify as to her opinion whether they were
accidental or a result of abusive behavior.” (R.R.3: 147). Defense counsel,
reiterating that she had not received the required 30 days’ notice of the State’s
intention to call Dr. Nesiama, made the following objection:
So we would object that there — allowing this witness to testify
violates the Court’s pretrial orders upon which we relied in doing
43
our trial prep, thereby depriving my client of his constitutional
Fifth and Sixth Amendment right to effective assistance of
counsel. It violates the ruling this Court made in regard to
omnibus number 11 in which the State was supposed to give 30
days[’] notice, what they intend to testify about. And we object to
her testimony on that basis.
(R.R. 3: 151-53). The trial court again asked defense counsel when she had
received the CD containing the emergency-room records. (R.R. 3: 153).
Counsel replied that she had received it “probably 12 to 18 months ago.”
(R.R. 3: 153). The trial court overruled the objection. (R.R.3: 153).
As a prerequisite to presenting a complaint for appellate review, the
record must show that the complaint was made to the trial court by a timely
request, objection, or motion that stated the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context. Tex. R. App. P.
33.1(a)(1)(A). It is well-settled that even constitutional claims are forfeited if
not raised in the trial court. See Fuller v. State, 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008).
Here, appellant objected at trial that allowing Dr. Nesiama to testify
would be a violation of the trial court’s discovery order and would deprive him
of his constitutional right to the effective assistance of counsel. (R.R. 2: 19-20;
R.R. 3: 151-53). Appellant never complained at trial, as he does on appeal, of
a deprivation of his constitutional rights to confrontation or to a “neutral and
44
impartial judge.” These complaints have not, therefore, been preserved for
appellate review. See Tex. R. App. P. 33.1(a)(1)(A).
Moreover, although appellant claims that the late notice concerning Dr.
Nesiama’s testimony caused him to be unprepared for trial, he never asked the
trial court for additional time to prepare for her testimony. (R.R. 2: 19-20;
R.R. 3: 153). The proper procedure when alleging surprise due to a violation
of a trial court’s discovery order is to request a continuance. Duff-Smith v. State,
685 S.W.2d 26, 33 (Tex. Crim. App. 1985); see Tamez v. State, 205 S.W.3d 32,
40 (Tex. App.—Tyler 2006, no pet.). If a witness’s name is not furnished to a
defendant before trial despite a court order, any error in allowing that witness
to testify over a claim of surprise is forfeited by the defendant’s failure to move
for a continuance. See Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App.
1994); see also Oprean v. State, 201 S.W.3d 724, 730 n.10 (Tex. Crim. App.
2006) (Cochran, J., concurring) (noting that, when there has been a violation
of a discovery order, “the trial court may always exclude the undisclosed
evidence, but if he does not, any error in causing “surprise” to the defense is
forfeited on appeal unless the defendant has also requested a postponement or
recess”) (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982)).
Here, by failing to request a continuance, appellant forfeited his complaint that
the trial court erred in allowing Dr. Nesiama to testify. See, e.g., Sanders v.
45
State, No. 05-12-01186-CR, 2014 Tex. App. LEXIS 4430, at *8-9 (Tex. App.—
Dallas Apr. 23, 2014, pet. ref’d) (not designated for publication) (holding that
any error in the trial court’s allowing the State’s expert witnesses to testify
despite the State’s failure to comply with the trial court’s discovery order was
forfeited where the defendant did not request a continuance). Appellant’s
second and third issues should be overruled.
B. Even if appellant preserved his complaint, the trial court did not
err in allowing the witness to testify.
Generally, notice of the witnesses that the State intends to call at trial
must be given upon request by the defense. Hamann v. State, 428 S.W.3d 221,
227 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Martinez v. State,
867 S.W.2d 30, 39 (Tex. Crim. App. 1993)). A trial court’s decision to allow a
witness to testify who was not on the State’s list is reviewed for an abuse of
discretion. Id. Among the factors a reviewing court considers in determining
whether the trial court abused its discretion are (1) whether the State’s actions
in calling a previously undisclosed witness constituted bad faith, and (2)
whether the defense could have reasonably anticipated that the witness would
testify. Id. at 227-28 (citing Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim.
App. 2000)). In determining whether the State acted in bad faith, the principal
inquiry is whether the State intended to deceive the defense by withholding the
46
identity of the witness. See id. at 228 (citing Nobles v. State, 843 S.W.2d 503,
515 (Tex. Crim. App. 1992)).
Here, appellant does not point to any evidence suggesting that the State
acted in bad faith by not disclosing Dr. Nesiama as a witness until the week
before trial. The prosecutor stated that he informed defense counsel about Dr.
Nesiama after the two other emergency-room physicians he had originally
given notice of became unavailable to testify. (R.R. 2: 19-20). Cf. Hamann,
428 S.W.3d at 228 (holding that there was no evidence of bad faith in the
State’s failure to disclose the name of its fingerprint expert where the State had
previously disclosed its plans to call such an expert). He also stated that he
provided defense counsel with Dr. Nesiama’s cell-phone number and that he
told Dr. Nesiama to expect a call from defense counsel. (R.R. 2: 19; R.R. 3:
140-41, 152-53).
Furthermore, defense counsel acknowledged that she had received a
copy of Joniah’s emergency-room records at least a year prior to trial. (R.R. 2:
20-21; R.R. 3: 153). The prosecutor stated that Dr. Nesiama’s name was
included in those records. (R.R. 2: 20). Dr. Nesiama testified at the sub rosa
hearing that she was one of Joniah’s treating physicians in the emergency
room and that she was involved in his initial resuscitation. (R.R. 3: 149-50).
She also testified that she was the “charge physician” that day, responsible for
47
overseeing the entire emergency department. (R.R. 3: 149). Appellant could
have reasonably anticipated that the State would call Dr. Nesiama to testify
regarding Joniah’s treatment.
Moreover, Dr. Nesiama’s testimony that Joniah’s injuries met the
hospital’s criteria for alerting a social worker was not the kind of expert
testimony, assuming it was expert testimony at all, for which appellant would
have needed “exceptional formal notice.” (R.R. 3: 148, 170-73). Tamez, 205
S.W.3d at 39. Indeed, having been informed that the REACH physician, Dr.
Cox, was going to testify as an expert in this case, appellant could have
reasonably anticipated that the State would present testimony that Joniah’s
injuries led emergency-room doctors to suspect abuse. (R.R. 2: 19; R.R. 3:
152). Additionally, the trial court gave appellant the opportunity to question
Dr. Nesiama before she testified, effectively remedying any surprise about the
witness’s identity. (R.R. 3: 140-51). See Hamann, 428 S.W.3d at 228.
The trial court did not abuse its discretion in allowing Dr. Nesiama to
testify. Appellant’s second and third issues should be overruled.
PRAYER
The State prays that this Honorable Court affirm the trial court’s
judgment.
48
Respectfully submitted,
/s/ Johanna H. Kubalak
Susan Hawk Johanna H. Kubalak
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24014297
Frank Crowley Courts Bldg.
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3639
(214) 653-3643 fax
Anna.Kubalak@dallascounty.org
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief, inclusive of all contents, is
12,513 words in length according to Microsoft Word 2010, which was used to
prepare the brief, and complies with the word-count limit in the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 9.4(i).
/s/ Johanna H. Kubalak
Johanna H. Kubalak
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing State’s brief was served
on Michael Mowla, attorney for appellant, via electronic delivery to
Michael@mowlalaw.com on February 18, 2015.
/s/ Johanna H. Kubalak
Johanna H. Kubalak
49