Keydrin Arceneaux v. State

Opinion issued February 7, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00996-CR
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KEYDRIN ARCENEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1486680
MEMORANDUM OPINION
A jury convicted appellant, Keydrin Arceneaux, of reckless injury to a
child.1 After he pleaded true to enhancement paragraphs, the jury assessed his
1
See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2016).
punishment at seventy-five years’ confinement.2 In three issues, appellant argues
that (1) the evidence was insufficient to support his conviction; (2) the trial court
erred in allowing evidence of an extraneous offense; and (3) the trial court erred in
refusing to charge the jury on the lesser-included offense of negligently causing
bodily injury to a child.
We affirm.
Background
The complainant is K.J., a girl who was five months old at the time of her
death. K.J.’s mother, Laquisha Jackson, had begun dating appellant after she
became pregnant with K.J. Before Jackson gave birth to K.J., she and appellant
moved into a two-bedroom apartment with appellant’s father and appellant’s
father’s girlfriend. After K.J.’s birth, Jackson continued to live with appellant, and
appellant sometimes helped her care for both K.J. and K.J.’s older sister.
On January 9, 2013, Jackson took K.J. to the emergency room because she
had been suffering from an eye infection and nasal congestion that had appeared to
worsen. The emergency room doctor described K.J. as appearing alert and normal,
aside from the eye infection and congestion. Jackson returned home at
approximately 3:30 a.m. and put K.J., who was sleeping, in her bassinet. K.J. later
2
See id. § 12.42(b) (West Supp. 2016) (providing punishment range for repeat and
habitual offender convicted of second-degree felony with prior felony
convictions); § 22.04(e) (providing that reckless injury to child is second degree
felony).
2
woke up. Appellant offered to feed her a bottle and eventually left the room with
K.J. At approximately 9:00 a.m., appellant woke Jackson to tell her he was leaving
for the day. As he left, Jackson checked on K.J. and found that she was not
breathing. Despite efforts to revive her by the Baytown Fire Department, Baytown
EMS, and personnel from the emergency room at San Jacinto Hospital, K.J. was
officially pronounced dead at 10:31 a.m. Appellant was charged with recklessly
causing serious bodily injury to a child in connection with K.J.’s death. The
indictment alleged that he recklessly caused serious bodily injury to K.J. by
shaking her with his hands or by striking her against a blunt object.
At appellant’s trial, Jackson testified regarding the events of January 8 and
9, 2013. On January 8, 2013, Jackson took K.J. to her pediatrician, Dr. Maryam
Taghadosi, because K.J. had congestion in her eyes and nose. The pediatrician
prescribed an eye cream and warned Jackson to take K.J. to the emergency room if
she seemed to be having an allergic reaction. Later that night, Jackson observed
that K.J.’s left eye was swollen, so she took K.J. to the emergency room where she
was seen by Dr. Robert Panzarella.
Both Taghadosi and Panzarella testified at trial that K.J. appeared alert and
was a happy, normal baby with an eye infection and congestion. Panzarella
testified that when he examined K.J., she was alert, sitting upright, and playing.
Neither doctor saw any sign of injury.
3
Jackson and K.J. returned home at approximately 3:30 a.m. on January 9,
2013, and Jackson put K.J. to bed. K.J was fussy because she was hungry, and
appellant offered to feed her. Jackson testified that, at one point, she observed
appellant sitting with K.J. at the edge of the bed and she asked him if everything
was okay. Appellant told her that he could not get K.J. to burp. Jackson stated that
she told appellant to stand up and walk around with K.J., and appellant told her he
would take K.J. to the other room so Jackson could get some sleep. Jackson saw
him leave the room with K.J. and then fell back asleep. Jackson did not hear
appellant come back in the room or lay K.J. in her bassinet, but she woke up later
and noticed that appellant was in the bed beside her.
At approximately 9:00 a.m., appellant woke Jackson just before he left the
apartment for the day. As appellant left, Jackson checked on K.J. and discovered
she was not breathing. Jackson ran out the door to try to catch appellant, and she
called him to tell him to return home. She then called 9-1-1 and attempted to
resuscitate K.J. When the paramedics arrived, they took over care for K.J. Jackson
testified that she could not understand what had happened and that she had
examined K.J. looking for any sign of injury or explanation. Before she left the
home with the paramedics and K.J., she asked appellant, who had returned home
by this point, what had happened earlier that morning:
I said, Did you feed her right? Like, What happened? You know, Was
she able to burp? Did you burp her right? What happened whenever
4
you went in the living room? Did you bump her head against
something? Did you have a seizure?
And he was just, like, No, no, no, no. You know, I did burp her,
she didn’t drink all her bottle, you know.
I said, Well, did you lay her down right? . . . . He said, I laid her
down on her side and she must have turned over on her back. . . .
Jackson also testified that, on a different occasion prior to K.J.’s death, she
had asked appellant to put K.J. into her bassinet. Jackson left the room to use the
restroom, then she heard K.J. start to cry. Through the crack of the door, Jackson
observed appellant standing over the bassinet and making a motion with his left
arm, leading Jackson to believe that either K.J. kicked appellant, or appellant hit
K.J. Jackson also acknowledged, however, that appellant had been a good
caregiver to K.J.
Finally, the State presented evidence in the form of testimony from K.J.’s
former daycare teacher, Cynthia Hill. The trial court held a hearing outside the
presence of the jury to determine whether Hill’s testimony was properly admissible
pursuant to Texas Code of Criminal Procedure article 38.37. Appellant objected to
Hill’s testimony on the ground that the State was attempting to admit evidence of
an extraneous bad act, that the State was offering the evidence in order to establish
the bad character of appellant, and that its evidentiary value was outweighed by its
prejudicial effect. The State argued that the evidence was admissible in that it was
evidence of a similar circumstance in which appellant was informed of the risk
involved in shaking a baby.
5
Over appellant’s objection, the trial court allowed Hill to testify about an
incident between appellant and K.J. that Hill witnessed in October 2012, when K.J.
was approximately three months old. As appellant dropped K.J. off at daycare, Hill
came to greet them. Hill testified that K.J. was awake and alert. Hill turned to get
K.J. signed in for the day in the school’s “daily book.” When she looked back, Hill
witnessed appellant saying “Wake up, wake up, wake up” to K.J. while shaking the
baby so violently that K.J.’s arms were flailing. He then appeared to be trying to
put K.J. on the floor, and Hill took K.J. from appellant. Hill became concerned
with the way appellant was holding his hands and asked if he required medical
assistance. Appellant declined and responded that his hands were “cramping up.”
Hill also stated that appellant appeared alert, that he was still able to speak, and
that he was able to walk around. Hill testified that she was shocked by the incident
because she had never “see[n] someone just shake a baby like that in person.” She
told appellant that he could not shake a baby in that manner, and she reported the
incident to the director of day care.
Jackson was aware of this incident. She testified that she was “shocked”
when she learned of what happened at the daycare. She testified that appellant did
not tell her about the incident, but she was able to discuss it with him later.
Appellant told her “that he almost had a seizure, that he was having a seizure and
he almost dropped [K.J.].” She stated that, at that point, she did not have any
6
reason to doubt him because she was not at the daycare when it happened.
However, she also testified that from that point forward, she and appellant “started
to grow apart” and their relationship became “strained.”
Regarding the investigation of K.J.’s death, the State presented the testimony
of Baytown Police Department Officer H. Shedd, who was the first officer on the
scene on January 9, 2013. Officer Shedd testified that when she approached the
apartment, she saw appellant outside talking on his phone and crying. Although
Shedd interviewed appellant, he made no mention of any interaction he had had
with K.J. that morning.
Detective G. Gonzalez was assigned to investigate K.J.’s death. During his
initial interview with appellant at the apartment, appellant told Gonzalez that K.J.
had been sick, that Jackson had taken K.J. to the pediatrician and the emergency
room the day before, that he had also been sick, and that he was worried he may
have gotten the baby sick. Gonzalez further testified that appellant told him he
woke up around 7:30 a.m., went to the restroom, and checked on K.J. but did not
see anything suspicious. Appellant told Gonzalez that he had not handled K.J. that
morning and could not tell Gonzalez what time K.J. was put down in her bassinet.
Gonzalez asked appellant questions such as, “[D]id she fall, was she disciplined,
has she been . . . hit; and [appellant] says no, that she was too young to be hit and
that she hadn’t fallen.”
7
Detective Gonzalez made several attempts to interview appellant at the
police department, but appellant continuously put him off, making excuses and
rescheduling appointments. Gonzalez was eventually able to interview appellant at
the police station on February 8, 2013, and appellant admitted for the first time that
he had been the one to put K.J. down to sleep on January 9, 2013, contradicting his
earlier statement to Gonzalez. Appellant cut that meeting short, complaining of leg
pain.
Gonzalez was unable to persuade appellant to come in to the police
department again. After receiving the preliminary report from the Medical
Examiner’s office, declaring K.J.’s death a homicide, Gonzalez contacted appellant
on April 11, 2014. Detective Gonzalez conducted a phone interview with
appellant, which he recorded. During the course of this interview, Gonzalez asked
appellant about K.J.’s death, and appellant again “change[d] his account of the
early morning hours of January the 9th,” telling Gonzalez that he held K.J. and
shook her to get her to settle down to sleep. Appellant also expressed that he
worried that something he had done had hurt the baby, that he was concerned about
what had happened to K.J., and that he viewed K.J. as his own child. Detective
Gonzalez followed up with more questions about what appellant meant when he
said he “shook” her. Appellant told Detective Gonzalez that he gently shook or
rocked K.J. while she ate, then he laid her down, and she moved, so “it wasn’t like
8
she was dead already, to me.” Following this conversation, Gonzalez contacted the
district attorney’s office, and appellant was charged in relation to K.J.’s death.
Assistant medical examiner Dr. Morna Gonsoulin conducted the autopsy on
K.J. She found a bruise at K.J.’s left temple and on her right arm. She also found
some abrasions. This was concerning to Gonsoulin because K.J. did not have the
mobility necessary to inflict these injuries upon herself at the age of five months.
Gonsoulin found a large volume of blood inside K.J.’s skull and spinal column.
Gonsoulin also found both a subdural and subarachnoid hemorrhage in K.J.’s skull,
a subdural hemorrhage to K.J.’s optic nerve, and a subcutaneous hemorrhage in
K.J.’s back. Gonsoulin concluded that K.J.’s cause of death was the hemorrhages
in her skull caused by blunt force trauma, that these injuries occurred within 24 to
48 hours before K.J.’s death, and that the effects of the injuries would have been
noticeable almost immediately. Gonsoulin testified that after sustaining injuries
such as those suffered by K.J., if the child “didn’t seem at least a little sleepy or
dazed, [she] would just pass out or become limp immediately.” Gonsoulin testified
that a child who had the type of acute injury that killed K.J. would not be very
responsive, nor would she eat or play.
Dr. Gonsoulin also testified that blunt force trauma, as demonstrated in
K.J.’s case, meant that “the child has been subjected to some force, either through
an impact or through some, what we call rotational force, that was enough to cause
9
bleeding or damage to the vessels.” She testified that the type of force necessary to
create such an injury was “outside the range of what is normal . . . in handling a
child. . . . It’s not like even, say, you know, you drop a baby onto a couch or maybe
the baby bumps its head against a wall. It’s something that’s extraordinary.”
Gonsoulin further testified that it was not necessary that there be an outward sign
of injury such as a gash or visible bruise in order for a child to have sustained a
blunt force trauma to the head, such as the one K.J. had. She testified that there
were various mechanisms for creating the type of blunt force trauma K.J.
exhibited—in which there were traumatic internal injuries, but minimal external
signs—such as shaking, grabbing, squeezing, or hitting the baby’s head against
some object that was solid but padded in some way.
Appellant questioned Dr. Gonsoulin regarding the scientific basis for her
statement that K.J.’s injuries were caused by blunt force trauma, potentially
consistent with being shaken. Dr. Gonsoulin testified that scientific observations
and case studies supported her conclusion, but she also acknowledged that some
pathologists believe that shaking alone could not cause the type of injuries that K.J.
sustained. However, she testified that it was generally accepted within the
scientific community that someone could shake a baby to death. Regarding K.J.’s
death specifically, she testified:
I can’t necessarily say [that the cause of death is] exclusively shaking,
because there’s evidence of impact that [is] not part of the routine in a
10
five-month-old. The child’s head has obviously been subjected to
some blunt force on two sides of the head in addition to whatever
mechanism, shaking or hitting up against something. So whatever the
cause is, it’s not exclusively shaking. There is some impact. So either
way, it’s still a blunt force.
Dr. Glenn Sandberg, a forensic neuropathologist, testified that he observed
subdural hematomas in K.J.’s brain that “occurred at or around the time of death.”
Sandberg also observed subarachnoid hemorrhages in K.J.’s brain, bleeding around
her spinal cord, and hemorrhages in her eyes, including around the retinas and
optic nerve. He testified that these injuries were indicative of “significant traumatic
injury.” Sandberg also testified that K.J. had some resolving injuries that could
have been consistent with an injury two or three months prior to her death.
However, he identified the acute injuries as occurring at or near her time of death.
Sandberg stated that he would expect a person with the acute injuries he observed
in K.J. to be “immediately symptomatic in some way,” such as becoming dazed or
unconscious, or experiencing seizures, vomiting, or nausea. He further testified
that, based on her age and the extent of her injuries, he would have expected K.J.
to experience “an immediate loss of consciousness.”
Sandberg testified that the type of injuries sustained by K.J. were consistent
with “rotational acceleration/deceleration injuries.” He stated that such injuries
could be caused by shaking, by “tak[ing] a punch to the side of the face, the chin,
that would spin your head around,” or by some other impact or mechanism that
11
would cause the “head [to] whip[] around all over the place.” Sandberg
acknowledged that there “is controversy” about whether an infant can experience
this type of injury due to shaking alone, but he believed that it was possible and
consistent with the injuries he had observed.
Dr. Sandberg stated that K.J.’s injuries could not have been the result of “[a]
simple accidental injury like household injury”:
Just, you know, dropping an infant on the floor, an infant falling off a
couch, off a changing table, you know, just the usual things that, if
any of you have kids, that happen to them around the house usually do
not result in these sorts of catastrophic injuries.
Sandberg testified that the types of injuries he observed in K.J. could be consistent
with several causes:
[P]robably the most common scenario is an impact. So a caregiver
impacting a child’s head against a firm object or a hard object, and
that generates quite a bit of force. I can also imagine a scenario where
there could be previous shaking and shaking combined with an
impact, and that’s also an accepted way of finding these changes.
Dr. Deborrah Pinto, a forensic anthropologist, found fractures on K.J.’s ribs
that were consistent with forcefully grabbing a baby around her chest and that were
inconsistent with the normal handling of a baby, although she also stated that they
could have been inflicted by performing CPR.
These experts, having examined K.J., concluded that K.J. suffered some sort
of blunt trauma to the head, such as that caused by shaking accompanied with a
blow to the head by an unidentified object. This severe head trauma caused K.J. to
12
vomit and aspirate the vomited baby formula, leading to respiratory distress, and,
ultimately, cardiac arrest.
Appellant presented testimony of family members that he suffered from
epileptic seizures. His godmother, Kim Cook, testified that she believed appellant
suffered from epilepsy and that she had witnessed him having seizures on two
occasions. On one occasion, while she was home visiting her mother Cynthia
Jackson, who had been appellant’s guardian for most of his life, appellant was in
his room when he “stopped talking mid sentence,” and she “noticed that there was
sort of a glaze over his eyes.” She asked if he was okay, but he could not respond.
His hands and body began to shake and his “body had become very tense.” Once
he relaxed, she asked again if he was okay, and “he just shook his head.” Cook also
recounted a second occasion when she observed appellant have a seizure in the
garage at her mother’s house. Cook believed that appellant had obtained medical
treatment for his seizures.
Cynthia Jackson, appellant’s aunt who raised him from a young age, also
testified that appellant, who was 31 at the time of trial, had been suffering from
seizures since he was approximately 25 or 26 years old, and she had observed
several of them. She stated that the seizures were “very intense” and that appellant
“would be very, very tired afterwards and would have to rest up and kind of gather
13
his thoughts.” She did not recall having any conversations with appellant regarding
his having had a seizure at or around the time that K.J. died.
Appellant also introduced into evidence his medical records from treatment
he received in February 2012. The records demonstrate that he was admitted to the
hospital experiencing “sudden clenching of his hand,” during which episode he did
not lose consciousness. He was evaluated for “seizure activity,” although the
testing conducted was “negative for epileptiform activity” and revealed “[n]o
findings to explain the patient’s seizures.”
The jury charge instructed the jury that “[o]ur law provides that a person
commits an offense if he recklessly, by act, causes to a child, serious bodily
injury.” The charge further instructed the jury on the elements of reckless injury to
a child.
The charge allowed the jury to convict appellant if it found:
from the evidence beyond a reasonable doubt that on or about the 9th
day of January, 2013, in Harris County, Texas, [appellant] did then
and there unlawfully, recklessly cause serious bodily injury to [K.J.], a
child younger than fifteen years of age, by shaking [K.J.] with a
deadly weapon, namely his hand; or
If [it found] from the evidence beyond a reasonable doubt that on or
about the 9th day of January, 2013, in Harris County, Texas,
[appellant] did then and there unlawfully, recklessly cause serious
bodily injury to [K.J.], a child younger than fifteen years of age, by
striking [K.J.] against a deadly weapon, namely a blunt object, then
you will find the defendant guilty of recklessly causing serious bodily
injury to a child younger than fifteen years of age, as charged in the
indictment.
14
The charge further admonished the jury, “Unless you so find from the evidence
beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will
acquit the defendant and say by your verdict ‘Not Guilty.’”
Appellant objected to the jury charge, requesting an instruction on the lesser-
included offense of criminally negligent injury to a child. He based his objection
on an argument that he had a history of seizures and that a seizure could have been
the cause of the injury to K.J. The trial court overruled appellant’s objection to the
jury charge.
The jury convicted appellant of recklessly causing serious bodily injury to
K.J., as charged in the indictment. During the punishment phase, appellant pled
true to having been previously convicted of the felony offense of burglary of a
habitation in 2005 and 2008. The jury subsequently assessed appellant’s
punishment at seventy-five years’ confinement. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant argues that the evidence was insufficient to
support his conviction.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
15
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State,
29 S.W.3d 616, 623 (Tex. App.––Houston [1st Dist.] 2000, pet. ref’d) (stating jury
can choose to disbelieve witness even when witness’s testimony is uncontradicted).
We may not reevaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the
jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination.”).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
16
circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at
778). “Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
B. Injury to a Child
A person commits the offense of injury to a child if he “intentionally,
knowingly, recklessly, or with criminal negligence, by act . . . causes to a
child . . . serious bodily injury.” TEX. PENAL CODE ANN. § 22.04(a)(1) (West Supp.
2016); Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006). The
offense is a second degree felony when the conduct is engaged in recklessly. TEX.
PENAL CODE ANN. § 22.04(e). The offense is a “state jail felony when the person
acts with criminal negligence.” Id. § 22.04(g).
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) (West 2011). The risk must be of such a
nature and degree that its disregard constitutes a gross deviation from the standard
17
of care that an ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint. 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, 235
S.W.3d at 750. Thus, “[t]he State must prove that a defendant caused a child’s
serious bodily injury with the requisite criminal intent.” Id.; see also Jefferson, 189
S.W.3d at 312 (“This Court’s prior case-law also supports a decision that the
essential element or focus of the statute is the result of the defendant’s conduct (in
this case, serious bodily injury to a child) and not the possible combinations of
conduct that cause the result.”); Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim.
App. 1985) (holding that because injury-to-child statute does not specify “nature of
conduct,” conduct is inconsequential to its commission as long as conduct is
voluntary and done “with the required culpability to effect the result the
Legislature has specified”) (emphasis in original); Beggs v. State, 597 S.W.2d 375,
377 (Tex. Crim. App. 1980) (stating that injury-to-child statute focuses on result of
defendant’s conduct).
Direct evidence of the required mental state is not required. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002). Instead, the required culpable mental state
may be inferred from the surrounding circumstances. Ledesma v. State, 677
S.W.2d 529, 531 (Tex. Crim. App. 1984).
18
C. Analysis
Here, the State presented evidence that K.J. was acting normally into the
early morning hours of January 9, 2013, the day she died. Jackson, Dr. Taghadosi,
and Dr. Panzarella all testified that, other than exhibiting symptoms of congestion
and an eye infection, K.J. was a normal and healthy five-month-old. Jackson
testified that she returned home from the hospital at approximately 3:30 a.m. on
January 9, 2013, and put K.J. to bed. K.J. became fussy, and appellant offered to
feed her and walked out of the room with her. Jackson did not see K.J. again until
later in the morning of January 9, when Jackson discovered K.J. in her bassinet,
not breathing.
Appellant gave inconsistent statements to the police regarding his contact
with K.J. on January 9. Officer Shedd testified that when she interviewed
appellant, he made no mention of any interaction he had had with K.J. that
morning. Detective Gonzalez testified that appellant was evasive about completing
his interview. Although appellant originally denied having any contact with K.J.,
during the interview with Gonzalez on February 8, 2013, appellant acknowledged
for the first time that he had been the one to put K.J. down to sleep on January 9,
2013. He later told Detective Gonzalez that he gently shook or rocked K.J., but he
did not believe his actions caused the baby’s death.
19
However, medical experts testified regarding K.J.’s condition at the time of
her death and her cause of death. Dr. Gonsoulin testified that K.J. had a bruise over
her left temple and that she had some abrasions, which was unusual because K.J.,
at the age of five months, did not have the mobility necessary to inflict these
injuries on herself. Gonsoulin found a large volume of blood inside K.J.’s skull and
spinal column, and she also found both subdural and subarachnoid hemorrhages in
K.J.’s skull, a subdural hemorrhage to K.J.’s optic nerve, and a subcutaneous
hemorrhage in K.J.’s back. Gonsoulin concluded that K.J.’s cause of death was the
hemorrhages in K.J.’s skull due to blunt force trauma. Dr. Sandberg testified that
the subdural and subarachnoid findings in K.J.’s brain combined with her spinal
cord injuries and hemorrhages in her eyes and optic nerve were indicative of a
traumatic injury like shaking or impacting her head against a firm object. The
experts also testified that K.J.’s injuries did not come from a simple injury or an
accidental fall, but rather from impacting her head against a firm object or shaking
combined with an impact. This caused severe head trauma, which caused K.J. to
vomit. K.J. then aspirated her baby formula, which resulted in respiratory distress
and cardiac arrest. The medical experts also all testified that the effects of her
injuries would have been immediately noticeable and that the injuries occurred
shortly before her death.
20
Considering all of this evidence together, we conclude that there is sufficient
evidence supporting the jury’s finding that appellant recklessly caused serious
bodily injury to K.J. See TEX. PENAL CODE ANN. § 22.04(a)(1); Jefferson, 189
S.W.3d at 312. K.J. had been acting normally prior to appellant’s leaving the room
to feed her early on January 9, 2013. Just a few hours later, Jackson found K.J. not
breathing. No one had touched K.J. between the time when appellant had fed her
and walked around with her and when Jackson discovered that she was not
breathing. Medical experts agreed that she died from injuries obtained within a few
hours prior to her death, while she was in appellant’s care, and that her injuries
could not have been caused by a simple injury or an accidental fall. See Bearnth v.
State, 361 S.W.3d 135, 140–41 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(holding that evidence was sufficient to support felony-murder conviction when
defendant was only adult present when child sustained injuries, defendant provided
“changing narrative” of how injuries occurred, and medical evidence demonstrated
that defendant’s explanation of cause of injuries was not possible); Williams v.
State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(holding that evidence was sufficient in injury-to-child case when medical
examiner testified that child’s injuries could not have occurred as defendant
described and were sustained by violent physical abuse at time when defendant
was alone with child).
21
Appellant argues that the evidence was insufficient because there was no
eyewitness or other direct evidence that he shook or otherwise harmed K.J.
However, the State need not have established appellant’s guilt with direct
evidence—circumstantial evidence is as probative as direct evidence in
establishing guilt, and circumstantial evidence alone can be sufficient to establish
guilt. See Sorrells, 343 S.W.3d at 155. “Injury to a child cases particularly depend
on circumstantial evidence because ‘there is rarely direct evidence of exactly how
the child’s injuries occurred.’” Bearnth, 361 S.W.3d at 140 (quoting Williams, 294
S.W.3d at 683). Here, the combined and cumulative force of all the circumstances
permits the conclusion that the jury was rationally justified in finding appellant
guilty beyond a reasonable doubt. See id. Appellant was the person caring for K.J.
at the time she received the fatal injuries. See id.; see also Garcia v. State, 16
S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d) (“Texas case law is replete
with holdings that when an adult defendant has had sole access to a child at the
time its injuries are sustained, the evidence is sufficient to support a conviction for
injury to a child, or murder if the child dies.”).
Appellant also points to evidence that he argues is so overwhelming that it
outweighs the evidence of his guilt. He argues that the jury received evidence that
he was crying when police arrived, that K.J. showed no outward sign of trauma,
that lethal aspiration can be caused by failure to burp, that appellant was a careful
22
caregiver, that some medical experts believe that it is impossible to shake a baby to
death, and that appellant’s seizures could have contributed to K.J.’s death.
We first observe that appellant’s argument that contrary evidence in the
record “outweighs” evidence of his guilt does not conform to the applicable
standard of review used in evaluating challenges to the sufficiency of the evidence.
When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 859 (holding that Jackson
standard is only standard to use when determining sufficiency of evidence).
Employing this standard, viewing all of the evidence in the light most favorable to
the jury’s verdict, we conclude that, even considering the evidence identified by
appellant, the jury could have found the essential elements of the offense beyond a
reasonable doubt. See Adames, 353 S.W.3d at 859.
The jury, as the sole judge of the credibility of the witnesses and the weight
to be given their testimony, was free to weigh all of the evidence before it,
including evidence of appellant’s actions and demeanor. See Bartlett, 270 S.W.3d
at 150; Williams, 294 S.W.3d at 683. Regarding the medical evidence, while Dr.
Gonsoulin and Dr. Sandberg both acknowledged some controversy within the
scientific community regarding whether a person can shake a baby with enough
23
force to cause injuries like the ones K.J. sustained here, they also testified that it
was commonly accepted that some combination of shaking and an impact to the
head was a cause of the types of injuries K.J. received.
Gonsoulin and Sandberg also agreed that, while K.J. did not show outward
signs of trauma, her internal injuries were nevertheless consistent with some sort of
blunt force trauma. And they testified that, although respiratory distress could be
caused by numerous other causes, given the nature of K.J.’s head injuries, they
believed her subsequent vomiting and respiratory distress were caused by her head
trauma. They testified that, in their expert opinions, K.J.’s death was caused by
blunt force trauma associated with some kind of impact or an impact combined
with shaking. The jury was entitled to credit this testimony. See Shah v. State, 403
S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (“Reconciliation
of conflicts and contradictions in the evidence was within the province of the
[factfinder], and such conflicts will not call for reversal if there was enough
credible testimony to support the conviction.”).
We overrule appellant’s first issue.
Admission of Evidence of Extraneous Offense
In his second issue, appellant argues that the trial court erred in allowing
evidence of an extraneous offense by permitting Cynthia Hill to testify that she had
previously seen appellant shaking K.J. and that she had told him he could not
24
shake a baby in that manner. Appellant contends that Hill’s testimony should not
have been admitted because it was irrelevant, it attempted to show his bad
character, and its prejudicial effect outweighed its probative value.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.
2002). A trial court’s ruling will not be reversed unless it falls outside the zone of
reasonable disagreement. Id.
An extraneous offense is “any act of misconduct, whether resulting in
prosecution or not, that is not shown in the charging papers.” Rankin v. State, 953
S.W.2d 740, 741 (Tex. Crim. App. 1995) (emphasis omitted). In general,
extraneous offense evidence is inadmissible “to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character.” See TEX. R. EVID. 404(b)(1); Batiste v. State, 217 S.W.3d 74, 84 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
However, for crimes against children, such as reckless injury to a child, the
Texas Code of Criminal Procedure provides:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
25
(2) the previous and subsequent relationship between the defendant
and the child.
TEX. CODE CRIM. PROC. ANN art. 38.37, § 1(b) (West Supp. 2016). Code of
Criminal Procedure article 38.37 also provides that it “does not limit the
admissibility of evidence of extraneous crimes, wrongs, or acts under any other
applicable law.” See id. art. 38.37, § 4.
Thus, article 38.37 is itself an exception to Rule 404(b) for certain cases and
eliminates the necessity of showing that the evidence falls within an enumerated
exception under Rule 404(b). See Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—
Austin 2001, pet. ref’d) (holding that article 38.37 supersedes Rule 404);
McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont 2001, pet. ref’d)
(holding that article 38.37 eliminates necessity of proving evidence falls within
Rule 404(b)’s exceptions). However, even when extraneous acts are relevant under
article 38.37, the evidence may be excluded under Rule 403 if its probative value is
substantially outweighed by the danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needless presentation of cumulative evidence.
Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.); Hitt, 53
S.W.3d at 706.
The relevant factors in determining whether the prejudice of an extraneous
offense substantially outweighs its probative value include: (1) how compellingly
26
the extraneous-offense evidence serves to make a fact of consequence more or less
probable—a factor that is related to the strength of the evidence presented by the
proponent to show the defendant in fact committed the extraneous offense; (2) the
potential the other offense evidence has to impress the jury “in some irrational but
nevertheless indelible way”; (3) the time the proponent will need to develop the
evidence, during which the jury will be distracted from consideration of the
indicted offense; and (4) the force of the proponent’s need for this evidence to
prove a fact of consequence, i.e., whether the proponent has other probative
evidence available to him to help establish this fact, and whether this fact is related
to an issue in dispute. Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston
[1st Dist.] 2011, pet. dism’d) (citing Mozon v. State, 991 S.W.2d 841, 846–47
(Tex. Crim. App. 1999)).
In determining whether potentially prejudicial evidence was properly
admitted, the appropriate inquiry is not whether the evidence was more prejudicial
than probative, but rather, whether the probative value was substantially
outweighed by the danger of unfair prejudice or needless presentation of
cumulative evidence. See Resendiz v. State, 112 S.W.3d 541, 545 (Tex. Crim. App.
2003). In the balancing analysis, however, a presumption favors probative value
over unfair prejudice or cumulative effect. See Goldberg v. State, 95 S.W.3d 345,
375 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Whether evidence is
27
admissible under Rule 403 is within the sound discretion of the trial court. See
Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
B. Analysis
Here, the trial court conducted a hearing outside the presence of the jury to
determine whether Hill’s testimony would be adequate to support a finding by the
jury that appellant committed the extraneous act beyond a reasonable doubt. See
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a (West Supp. 2016). The State made
a proffer of Hill’s anticipated testimony, and appellant objected on the grounds that
the State was attempting to admit evidence of an extraneous bad act, that the State
was offering the evidence in order to establish appellant’s bad character, and that
its evidentiary value was outweighed by its prejudicial effect. The State argued that
the evidence was admissible pursuant to article 38.37 and that it was necessary to
prove that appellant acted recklessly, in that he had been involved in a previous
incident of shaking K.J. and knew the harm that could result from handling a baby
in that manner.
The trial court overruled appellant’s objections and permitted Hill to testify.
Hill testified that she witnessed appellant saying “Wake up, wake up, wake up” to
K.J. while shaking the baby so violently that K.J.’s arms were flailing. Hill
testified that she was shocked by the incident because she had never “see[n]
someone just shake a baby like that in person.” She told appellant that he could not
28
shake a baby in that manner, and she reported the incident to the director of K.J.’s
day care.
We agree with the State that the evidence of this incident falls under article
38.37, which provides that for crimes against children, such as reckless injury to a
child, “evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense” is admissible “for its
bearing on relevant matters” such as the defendant’s state of mind and the previous
relationship between the defendant and the child. See TEX. CODE CRIM. PROC. ANN.
art. 38.37, § 1. Thus, to the extent appellant is complaining on appeal that Hill’s
testimony constituted extraneous offense evidence that violated Rule 404(b) in that
it sought “to prove [his] character in order to show action that on [this] particular
occasion [he] acted in accordance with the character,” we overrule his complaint.
In creating an exception to Rule 404(b) for certain cases, article 38.37 eliminates
the necessity of establishing that the evidence falls within an exception enumerated
under Rule 404(b) in order for it to be admissible. See Hitt, 53 S.W.3d at 705;
McCulloch, 39 S.W.3d at 684.
Appellant also complained that the evidentiary value of Hill’s testimony was
outweighed by its prejudicial effect. Evidence admissible under article 38.37 is still
subject to analysis under Rule 403. See Belcher, 474 S.W.3d at 847; Hitt, 53
S.W.3d at 706. In determining whether the trial court erred in admitting Hill’s
29
testimony under Rule 403, we first consider the probative value of Hill’s
testimony. See Burke, 371 S.W.3d at 257. Here, the extraneous act evidence was
probative of the relationship between appellant and K.J., in that it showed a
previous incident in which appellant’s conduct subjected K.J. to a risk of harm. See
Hinojosa v. State, 995 S.W.2d 955, 957–58 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (evidence of extraneous acts committed by appellant against
complainant, including other incidents of abuse, showed their previous and
subsequent relationship as well as their states of mind).
Nor did this evidence have strong potential to impress the jury “in some
irrational but nevertheless indelible way.” See Burke, 371 S.W.3d at 257. Although
startling, the incident described in Hill’s testimony did not cause serious bodily
injury to K.J. and, thus, is no more heinous than the alleged conduct that caused
K.J.’s death. See, e.g., Jones v. State, 119 S.W.3d 412, 422–23 (Tex. App.—Fort
Worth 2003, no pet.) (holding that evidence of extraneous offense that was less
heinous than charged acts was not likely to create such prejudice in minds of
jurors); see also Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)
(holding extraneous evidence of prior murder was no more heinous than charged
offense and was not likely to create such prejudice that jurors would have been
unable to limit their consideration of extraneous evidence to its proper purpose).
And Hill’s testimony that she saw appellant shake K.J. was not likely to create an
30
irrational or overly emotional response in the minds of the jurors such that they
would have been unable to limit their consideration of the evidence to its proper
purpose. See Salazar v. State, 90 S.W.3d 330, 336 (Tex. Crim. App. 2002)
(assessing prejudicial effect of victim impact evidence and standard for assessing
“the potential of the evidence to impress the jury in some irrational, but
nevertheless indelible way,” including through overly emotional evidence).
The State did not spend an excessive amount of time in developing Hill’s
testimony. Hill’s testimony regarding the incident constituted only seven pages of
a lengthy record in which the State spent the majority of its effort in establishing
the elements of the charged offense. See Burke, 371 S.W.3d at 257. And, as the
State argued, this evidence was relevant in establishing that appellant acted
recklessly in relation to K.J. at the time of her death, in that he knew handling the
baby in a rough manner was dangerous. Thus, the evidence was necessary to show
an essential and disputed element of the charged offense. See Prescott v. State, 123
S.W.3d 506, 515 (Tex. App.—San Antonio 2003, no pet.) (holding evidence was
admissible for limited purpose of proving culpable mental state in case involving
reckless injury to child). The evidence was also necessary to rebut the defensive
theory that appellant was a good caregiver and did not cause K.J.’s death.
Accordingly, we conclude that appellant has failed to show that any
prejudice created by the admission of Hill’s testimony regarding appellant’s
31
shaking of K.J. at the daycare substantially outweighed its probative value. We
hold that the trial court did not err in overruling appellant’s Rule 403 objection.
We overrule appellant’s second issue.
Charge Error
In his third issue, appellant argues that the trial court erred by denying his
request to charge the jury on the lesser-included offense of criminally negligent
injury to a child.
A. Standard of Review
We use a two-step process in reviewing jury charge error. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005); Steele v. State, 490 S.W.3d 117, 126
(Tex. App.—Houston [1st Dist.] 2016, no pet.). First, we determine whether error
exists in the charge. Ngo, 175 S.W.3d at 743; Steele, 490 S.W.3d at 126. If error
does exist, we review the record to determine whether the error caused sufficient
harm to require reversal of the conviction. Ngo, 175 S.W.3d at 743; Steele, 490
S.W.3d at 126. When the defendant properly objected to the error in the charge,
reversal is required unless the error was harmless. Ngo, 175 S.W.3d at 743–44;
Steele, 490 S.W.3d at 126; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (providing that, to preserve error in jury charge, defendant must
object or request specific charge).
32
Here, appellant was charged with recklessly causing serious bodily injury to
K.J., but he contends that he was entitled to a jury instruction on the lesser-
included offense of negligently causing serious bodily injury to a child. We review
the trial court’s decision regarding the failure to submit a lesser-included offense
instruction for an abuse of discretion. Steele, 490 S.W.3d at 126; Brock v. State,
295 S.W.3d 45, 49 (Tex. App.––Houston [1st Dist.] 2009, pet. ref’d).
Code of Criminal Procedure article 37.09 provides that an offense
constitutes a lesser-included offense of a charged offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Steele, 490 S.W.3d at 127.
We use the statutory elements and the facts alleged in the charging instrument to
find lesser-included offenses. See Hall v. State, 225 S.W.3d 524, 535–36 (Tex.
Crim. App. 2007); Steele, 490 S.W.3d at 127.
We employ a two-step analysis in determining whether the trial court should
have given an instruction on a lesser-included offense. Hall, 225 S.W.3d at 535–
33
36; Steele, 490 S.W.3d at 127. First, we must determine whether an offense is a
lesser-included offense of the charged offense, and this is a question of law that
does not depend on the evidence to be produced at trial. Hall, 225 S.W.3d at 535;
Steele, 490 S.W.3d at 127. This step must be capable of being performed before
trial “by comparing the elements of the offense as they are alleged in the
indictment or information with the elements of the potential lesser-included
offense.” Hall, 225 S.W.3d at 535–36. The second step of the analysis asks
whether there is evidence that supports giving the lesser-included offense
instruction to the jury. Id. at 536.
The Court of Criminal Appeals has held that:
[a] defendant is entitled to an instruction on a lesser-included offense
where the proof for the offense charged includes the proof necessary
to establish the lesser-included offense and there is some evidence in
the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser-included offense.
Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). There
must be affirmative evidence that both raises the lesser-included offense and rebuts
or negates an element of the greater offense. See Cavazos v. State, 382 S.W.3d
377, 385 (Tex. Crim. App. 2012). In this portion of the analysis, anything more
than a scintilla of evidence entitles the defendant to the instruction. Hall, 225
S.W.3d at 536. The evidence must establish the lesser-included offense as “a valid,
rational alternative to the charged offense.” Id.; Williams, 294 S.W.3d at 681
34
(stating that “[t]here must be affirmative evidence in the record raising the lesser
offense before an instruction is warranted”).
The test for determining whether evidence is legally sufficient and the test
for determining whether to submit a lesser-included offense instruction are “quite
different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009)
(quoting Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005)); Steele,
490 S.W.3d at 128. “The evidence could easily be legally sufficient to support a
conviction for a lesser-included offense but not justify the submission of a lesser-
included-offense instruction because the evidence does not show that the defendant
is guilty only of the lesser-included offense.” See Wasylina, 275 S.W.3d at 909–10
(emphasis in original).
B. Analysis
Appellant’s indictment alleged that he recklessly caused serious bodily
injury to K.J. by shaking her with his hands or by striking her against a blunt
object. The trial court’s charge likewise instructed the jury that it could find
appellant guilty if it found that he recklessly caused serious bodily injury to K.J.
either by shaking her or by striking her against a blunt object. Appellant objected
to the jury charge, arguing that he was entitled to a jury instruction on the lesser-
included offense of negligent injury to a child. In the first step of our analysis, we
must determine whether the trial court’s refusal to include this instruction in the
35
jury charge constituted error. See Ngo, 175 S.W.3d at 743; Steele, 490 S.W.3d at
126.
The State concedes that negligent serious bodily injury to a child is a lesser-
included offense of the charged offense here, reckless serious bodily injury to a
child. See Hall, 225 S.W.3d at 535; Steele, 490 S.W.3d at 127. 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. TEX. PENAL CODE ANN. § 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. On the other hand, a person acts with criminal negligence
when he takes some action and ought to be aware of a substantial and unjustifiable
risk that the result (in this case, injury to a child) will occur. See id. § 6.03(d).
Negligent serious bodily injury to a child is distinguishable from reckless
serious bodily injury to a child only in the culpable mental state that the State is
required to prove, and criminally negligent conduct requires a lesser culpable
mental state than reckless conduct. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1),
(3); see also Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. App. 2013)
36
(holding that reckless and criminally negligent injury to child are lesser-included
offenses of intentional and knowing injury to child).
However, the State argues that there is no affirmative evidence to support an
instruction on the lesser-included offense of criminally negligent serious bodily
injury to a child, and we agree. Appellant argues that “the evidence shows that
Laquisha Jackson testified that [a]ppellant described to her how his seizure caused
him to almost drop the baby at the daycare.” He also points to Cook’s and Cynthia
Jackson’s testimony of his history of seizures and his medical records. However,
none of this evidence indicates that he had a seizure on the morning that K.J. was
injured and died. The fact that appellant had a history of seizures does not
constitute evidence that he had a seizure while he was caring for K.J. on January 9,
2013, or that his having a seizure while caring for K.J. could have caused the type
of injuries that K.J. received. There were no witnesses or medical evidence
indicating that appellant had a seizure on January 9, 2013. See Hall, 225 S.W.3d at
536; see also Wortham, 412 S.W.3d at 558 (holding that evidence that defendant is
guilty only of lesser-included offense “cannot be mere speculation—it must consist
of affirmative evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense”).
Furthermore, there is no evidence that rebuts the culpability element of the
greater offense, recklessly causing serious bodily injury to a child. See Wortham,
37
412 S.W.3d at 558. There was no evidence that appellant was merely criminally
negligent in caring for K.J. in spite of his history of seizures, rather than reckless in
causing the fatal blunt force trauma. Laquisha Jackson testified that, after K.J. was
taken away by the paramedics, she asked appellant what had happened, and he
specifically denied having a seizure. And Dr. Gonsoulin and Dr. Sandberg both
testified that the injuries K.J. sustained could not have been caused by a simple
injury or an accidental fall, but rather were caused by a substantial and forceful
impact to her head or by a combination of an impact and shaking.
Thus, the jury could not have rationally found that appellant was guilty only
of criminally negligent injury to a child and not the greater offense of reckless
injury to a child. See Hall, 225 S.W.3d at 536. Accordingly, the trial court did not
abuse its discretion in refusing to submit an instruction on criminally negligent
injury to a child to the jury. See Steele, 490 S.W.3d at 126; Brock, 295 S.W.3d at
49.
We overrule appellant’s third issue.
38
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
39