Efrian Sergio Sanchez v. State

Opinion issued January 28, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00925-CR
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EFRIAN SERGIO SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1295538
MEMORANDUM OPINION
A jury convicted Efrian Sergio Sanchez of reckless injury to his five-week-
old daughter, assessed punishment at 20 years’ imprisonment, and imposed a
$10,000 fine.1 In two issues, Sanchez contends (1) the evidence was insufficient to
1
TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2013).
support the jury’s verdict and (2) the trial court erred by admitting extraneous
evidence of Sanchez’s prior bad acts. We affirm.
Background
Sanchez and his wife, J. Covey, have three children. Covey had just put their
five-week-old daughter, E.S., down for a nap when Sanchez came home from
work. While Covey was in the shower, E.S. woke up and began to cry. Sanchez
tried to quiet her, but she continued to cry. Sanchez took E.S. into a bedroom and
locked the door because he worried one of the other children would open the door
and bother him. Sanchez tried to feed E.S.; she would not take a bottle and
continued to cry. According to Sanchez, he grew frustrated, “blanked out,” and
started shaking E.S. When E.S. continued to cry, Sanchez shook her harder.
When Covey got out of the shower, she tried to open the bedroom door to
check on E.S., but Sanchez did not immediately open the door. When she finally
entered the bedroom, she saw E.S. gasping for air. Covey could not feel any air
coming out of E.S.’s nose. According to Covey, Sanchez said that E.S. was trying
to sleep and not to worry about it. Covey ran to get her father who lived in the
same apartment complex. Covey and her father immediately took E.S. to Bayshore
Medical Center. Sanchez did not go to the hospital.
Bayshore Medical Center doctors assessed E.S.’s condition and decided to
transfer her by helicopter to Clear Lake Regional Medical Center. E.S. was having
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seizures when she arrived at Clear Lake. Dr. Malkani described her condition as
critical and observed that the soft spot on the top of her head bulged abnormally,
indicating increased pressure in her brain. A CAT scan showed a subdural
hematoma (bleeding inside the brain) on both sides. Dr. Malkani diagnosed E.S.
with shaken baby syndrome, a condition caused by severe shaking of a child that
results in ruptured blood vessels in the brain. Because of the acute nature of E.S.’s
bleeding, Dr. Malkani transferred her by helicopter to Memorial Hermann
Children’s Hospital for evaluation by a pediatric neurosurgeon.
At Memorial Hermann, doctors surgically drained some of the fluid from
E.S.’s brain to control her seizures. After reviewing the Bayshore records, Dr.
Girardet, E.S.’s treating physician at Memorial Hermann, testified that E.S. was in
critical condition when she arrived at Bayshore and might have died if Covey had
not immediately taken E.S. to the emergency room. Both Dr. Girardet and Dr.
Malkani ruled out all other potential causes of E.S.’s injuries and concluded that
severe shaking had caused permanent brain damage.
The jury found Sanchez guilty of reckless injury to a child. This appeal
followed.
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Sufficiency of the Evidence
In his first issue, Sanchez contends that the evidence is insufficient to
support the jury’s verdict because the State failed to prove that Sanchez caused
E.S. serious bodily injury.
A. Standard of review
We review the legal and factual sufficiency of the evidence under a single
standard. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see
Ervin v. State, 331 S.W.3d 49, 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d). Evidence is insufficient to support a conviction if, considering all the record
evidence in the light most favorable to the verdict, no rational fact finder could
have found each essential element of the charged offense was proven beyond a
reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is insufficient under this
standard when (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 320, 99 S. Ct. at
2786, 2789; see also Laster, 275 S.W.3d at 518.
We presume that the fact finder resolved any conflicts in the evidence in
favor of the verdict and defer to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235
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S.W.3d 772, 778 (Tex. Crim. App. 2007). We treat direct and circumstantial
evidence in the same way: they are equally probative in establishing the guilt of an
actor and circumstantial evidence alone can be sufficient. Clayton, 235 S.W.3d at
778; see also Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006)
(holding “cumulative force” of all circumstantial evidence can be sufficient to
support guilty verdict).
B. There was sufficient evidence of serious bodily injury
Sanchez argues that there was insufficient evidence that, by shaking E.S., he
inflicted serious bodily injury to her. The State points to expert medical testimony
emphasizing E.S.’s critical condition and the lasting effects of her injury.
A person commits the offense of injury to a child if he “intentionally,
knowingly, recklessly, or with criminal negligence” causes serious bodily injury to
a child. TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2013). Serious bodily
injury is defined as an “injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46)
(West Supp. 2013). To show protracted loss of a bodily member or organ, the
injuries must be “continuing . . . lingering . . . long-drawn . . . never-ending,
ongoing . . . [or] prolonged.” Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim.
App. 1987).
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When considering the sufficiency of evidence to establish a serious bodily
injury, we consider the injury “‘as it was inflicted, not after the effects had been
ameliorated or exacerbated by other actions such as medical treatment.’” Stuhler v.
State, 218 S.W.3d 706, 715 (Tex. Crim. App. 2007) (holding that only minor
dysfunction with “no serious long-term ramifications” did not meet statutory
requirements for serious bodily injury); cf. Bearnth v. State, 361 S.W.3d 135, 141
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (upholding felony-murder
conviction based on evidence of bruises from being beaten and skull fracture
caused by blunt force trauma to head).
1. Substantial risk of death
Serious bodily injury includes “bodily injury that creates a substantial risk of
death.” See Id. Whether there was a substantial risk of death turns upon the
likelihood the injury inflicted would result in death, regardless of what could have
occurred if the injury were left untreated. See Stuhler, 218 S.W.3d at 715. Rather
than examining what could have occurred, a court should examine what likely
“would” have occurred “absent medical intervention.” Id. at 715.
According to Dr. Malkani, a pediatric intensive care physician at Clear Lake
Regional Medical Center, E.S.’s condition was so critical that she could not be
treated at a community hospital. E.S. was barely able to breathe on her own,
requiring doctors to insert a breathing tube in her throat and put her on a ventilator.
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Her condition was so severe that she was twice transferred by helicopter to receive
more advanced emergency care. After reviewing CAT scan images, Dr. Malkani
described the bleeding in E.S.’s brain as “acute onchronic” meaning that the injury
causing the bleeding had occurred no more than a few hours before E.S. arrived at
the hospital. Clear Lake doctors observed that the “soft spot” on her skull was
swollen and bulging and that she was having seizures. Dr. Malkani testified that
the pressure caused by the bleeding was so severe that E.S. needed to be
transferred quickly to be examined by a pediatric neurosurgeon.
Dr. Malkani and Dr. Girardet both testified that E.S. suffered from shaken
baby syndrome—intentional violent force that can cause death. Dr. Malkani and
Dr. Girardet explained that the force of the shaking ruptured blood vessels in her
brain, allowing blood to pool on both sides of her brain, created a subdural
hematoma, and caused seizures. Unable to control E.S.’s seizures and continued
brain swelling, a Memorial Hermann neurosurgeon put two “burr holes” in the top
of her head to drain fluid from her brain. This procedure aimed to control E.S.’s
seizures and relieve pressure on her brain. Dr. Girardet, the treating doctor at
Bayshore, testified that if E.S. had not been given immediate medical treatment,
she risked death.
Based on this evidence, a rational jury could find that E.S.’s injuries caused
a substantial risk of death.
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2. Protracted loss of function
Because E.S.’s injuries are on-going, there is also sufficient evidence that
she suffered protracted loss of brain function. See TEX. PENAL CODE ANN. §
1.07(a)(46) (defining serious bodily injury as “protracted loss or impairment of the
function of any bodily member or organ”); Moore, 739 S.W.2d at 352 (loss of a
bodily member or organ is “protracted” when it is “continuing . . . never-ending
[or] ongoing.”); see also Gonzales v. State, 191 S.W.3d 741, 753 (Tex. App.—
Waco 2006, pet. ref’d) (holding that testimony that injury caused risk of brain
damage was sufficient to meet § 1.07(a)(46) definition).
Dr. Girardet testified that when Sanchez shook E.S., parts of her brain tissue
ruptured and died. E.S.’s doctors explained that dead brain tissue does not
regenerate. Dr. Malkani compared shaken baby syndrome injuries to injuries from
a stroke—once damage to the brain has occurred, the damage is irreversible.
After the incident, E.S. was placed in foster care. According to E.S.’s foster
mother, E.S.’s injuries caused developmental delays and require that she be treated
with anti-seizure medication for the rest of her life. She also testified that E.S. is
weak in her extremities, must use a leg brace on her right leg to walk, and has
differing levels of strength in her right and left arms. In order to develop muscle
strength and ensure that her condition does not regress, E.S. attends physical and
occupational therapies. Based on testimony that E.S.’s damage is irreversible and
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permanent, there was sufficient evidence from which a jury could conclude that
E.S.’s injuries were permanent. See Moore, 739 S.W.2d at 352.
Based on evidence that E.S.’s injuries created a substantial risk of death and
are protracted and ongoing, we conclude that a rational jury could likewise find
that Sanchez caused serious bodily injury to E.S. See TEX. PENAL CODE ANN. §§
1.07(a)(46), 22.04; Garcia v. Sate, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000,
pet. ref’d).
We overrule Sanchez’s first issue.
Admission of Evidence
In his second issue, Sanchez argues that the trial court improperly admitted
evidence of (1) a prior incident of putting a blanket into E.S.’s mouth to quiet her
and (2) his prior marijuana use.
A. Standard of review
We review a trial court’s evidentiary rulings for an abuse of discretion.
Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,
321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We will
uphold a trial court’s decision unless it falls outside the “zone of reasonable
disagreement.” Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22. In cases
involving injury to a child, evidence of a defendant’s other relevant bad acts may
be admitted to show: “(1) the state of mind of the defendant and the child; and (2)
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the previous and subsequent relationship between the defendant and the child.”
TEX. CRIM. PROC. CODE ANN. art. 38.37 (West Supp. 2013).
B. No abuse of discretion by admitting evidence of prior bad act
Covey testified that days before E.S. went to the hospital, Covey found E.S.
with the tip of a blanket in her mouth. Sanchez testified that he put the blanket tip
into E.S.’s mouth so that she would not wake her older sister if she cried. Sanchez
argues that the trial court abused its discretion by admitting evidence of this prior
bad act. The State responds that it was admissible because it showed Sanchez’s
mental state and the character of his relationship with E.S. We agree.
Specifically, Sanchez contends the evidence was inadmissible under Rule
403.2 Admissible evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Id. When determining whether the
prejudice of admitting evidence substantially outweighs the probative value, we
consider (1) the probative value of evidence, (2) the potential the evidence has to
impress the jury in some irrational but indelible way, (3) the time during trial
required to develop evidence, and (4) the State’s need for the extraneous evidence.
State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also Smith v.
State, 355 S.W.3d 138, 153–54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
2
In one sentence, Sanchez also cites Texas Rule of Evidence 404(b) to support his
contention that the trial court erroneously admitted such evidence. But, Sanchez
waived this argument because he neither raised this objection at trial nor discussed
it in his brief. See TEX. R. EVID. 404(b).
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A trial court has broad discretion to determine whether evidence is admissible. See
Montgomery v. State, 810 S.W.2d 372, 386, 390 (Tex. Crim. App. 1990). When the
trial court weighs the probativeness and prejudice, there is a presumption of
admissibility. Feldman v. State, 71 S.W.3d 738, 754–55 (Tex. Crim. App. 2002).
1. Blanket incident was relevant
To be admissible, the incident must be relevant. TEX. R. EVID. 401. Sanchez
argues that the blanket tip episode was not relevant because he was not on trial “for
the insert.” The State contends evidence that Sanchez previously put a blanket tip
into E.S.’s mouth to quiet her cries is relevant to the issue of his intent to harm E.S.
See TEX. CRIM. PROC. CODE ANN. art. 38.37; see Prescott v. State 123 S.W.3d 506,
515 (Tex. App.—San Antonio 2003, no pet.) (upholding conviction for reckless
injury to child and determining evidence admissible that defendant recklessly let
children wander unsupervised). Evidence of the blanket incident was also relevant
to demonstrate Sanchez’s relationship with E.S. and his inability to properly deal
with her when she cried. See Burke v. State, 371 S.W.3d 252, 257–58 (Tex. App.—
Houston [1st Dist.] 2011, pet dism’d w.o.j.) (holding that evidence of defendant’s
previous molestations of complainant was probative of relationship between
defendant and complainant). Because this case involved injury to a child, we
conclude that evidence of Sanchez’s state of mind and previous relationship with
E.S. was relevant. See TEX. CRIM. PROC. CODE ANN. art. 38.37.
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2. Probative value outweighs unfair prejudice
We next turn to whether the probative value of this evidence is substantially
outweighed by the danger it would have an unfairly prejudicial effect upon the
jury. See Feldman, 71 S.W.3d at 754–55.
Under the first Mechler factor for determining admissibility under Rule 403,
the probativeness of the evidence favors the State. The evidence is probative of
Sanchez’s conduct toward E.S., the nature of their past relationship, his mental
state, and his treatment of her. See Mechler, 153 S.W.3d at 440; see Keller v. State,
818 S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d).
The second factor—the potential the evidence has to impress the jury in
some irrational but indelible way—also favors the State. The incident was not
violent. The evidence further established Sanchez’s state of mind when he
committed the charged offense and did not prejudicially distract the jury. See Price
v. State, 351 S.W.3d 148, 153–154 (Tex. App.—Fort Worth 2011. pet. ref’d)
(admitting extraneous evidence of defendant’s previous robberies did not distract
jury from charged offenses).
The third Mechler factor, the time spent in developing the evidence, also
favors the State. The State spent relatively little time developing the evidence
regarding the blanket incident. See Mechler, 153 S.W.3d at 441 (favoring
admissibility when developing evidence “would not require an undue amount of
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time.”). Sanchez provided a brief explanation of his thought processes when he
decided to put the blanket into E.S.’s mouth; however, he was not asked to provide
additional details. Id.
The last Mechler factor focuses on the State’s need for the evidence. The
State had to prove Sanchez’s mental state. See TEX. PENAL CODE ANN. § 22.04
(requiring proof that injury to child was done “intentionally, knowingly, recklessly,
or with criminal negligence.”). To prove intent, the State may rely upon
circumstantial evidence, including evidence of other relevant bad acts. See TEX.
CRIM. PROC. CODE ANN. art 38.37 (noting admissible evidence in cases involving
injury to child); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.
2004) (“Intent may also be inferred from circumstantial evidence such as acts,
words, and the conduct of the appellant.”). This factor also favors the State.
In conclusion, the blanket tip evidence was probative, with little danger that
it would impress on the jury in some irrational way, took little time to develop, and
the State relied on the evidence to show Sanchez’s state of mind and his previous
relationship with E.S. See Mechler, 153 S.W.3d at 440. The danger of prejudicial
impact was minimal and did not substantially outweigh the probative value of the
evidence. We conclude the trial court did not abuse its discretion in admitting
testimony of the blanket incident.
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C. Sanchez did not preserve error regarding his prior drug use
Sanchez also argues that the trial court abused its discretion by admitting
evidence of his prior marijuana use.
To preserve a complaint for appellate review, a party must make a timely
request, objection, or motion with sufficient specificity to apprise the trial court of
the complaint and to afford the trial court an opportunity to rule on the objection.
TEX. R. APP. P. 33.1(a); see Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim.
App. 2002); Pipkin v. State, 329 S.W.3d 65, 69 (Tex. App.—Houston [14th Dist.]
2010, pet ref’d). Requiring a party to make a complaint to the trial court with a
specific and timely objection, request, or motion as a prerequisite for appellate
review ensures that the trial court will have an opportunity to prevent or correct
errors. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006); Pipkin,
329 S.W.3d at 69. Failure to do so results in waiver of the complaint on appeal.
Gillenwaters, 205 S.W.3d at 537; Pipkin, 329 S.W.3d at 69.
Before Covey testified, the trial court admitted without objection medical
records collected by a hospital social worker in which Sanchez reported using
marijuana. When Covey was about to testify, however, Sanchez’s attorney
requested a limiting instruction to preclude the State from asking questions about
Sanchez’s marijuana use. The trial court denied his request for a limiting
instruction. On direct examination by the State, Covey testified that Sanchez used
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marijuana on a weekly basis. Sanchez later testified that he did use marijuana but
not on the day of the incident.
By failing to object to the admission of the medical records and Dr.
Girardet’s testimony revealing Sanchez’s marijuana use, Sanchez waived his right
to challenge the admissibility of this evidence on appeal. See Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998) (“. . . [O]verruling an objection to
evidence will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling.”).
Accordingly, we hold that the trial court did not abuse its discretion by
admitting evidence of Sanchez’s prior bad acts.
We overrule Sanchez’s second issue.
Conclusion
We affirm.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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