Dunn v. State

13 S.W.3d 95, 2000 Tex. App. LEXIS 518, 2000 WL 53266
CourtCourt of Appeals of Texas
DecidedJanuary 25, 2000
DocketNo. 06-98-00237-CR
StatusPublished
Cited by31 cases

This text of 13 S.W.3d 95 (Dunn v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. State, 13 S.W.3d 95, 2000 Tex. App. LEXIS 518, 2000 WL 53266 (Tex. Ct. App. 2000).

Opinion

OPINION

Opinion by

Justice ROSS.

Michael Dunn appeals from his conviction by a jury for injury to a child, a felony of the first degree. He was sentenced to thirty years’ imprisonment. Dunn contends that the evidence is insufficient to support the finding that he intentionally or knowingly caused serious bodily injury to the child. He also contends that the trial court erred by excluding his evidence concerning his own knowledge, and knowledge by the public in general, about the physical danger inherent in the act of shaking a child.

Dunn focuses his legal and factual insufficiency argument upon mens rea. He argues that he simply did not know, and should not have been automatically aware, that shaking his baby could kill her. Although his brief does not specify whether he is attacking the legal or factual sufficiency of the evidence, his counsel announced at oral argument that he is attacking both. Therefore, we will address both aspects.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979), and Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), and look to see whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 736 (Tex.Crim.App.1999).

In our review of the factual sufficiency of the evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Examples of such a wrong and unjust verdict include instances in which the jury finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135. If we find factual insufficiency, we vacate the conviction and remand for a new trial. Jones, 944 S.W.2d at 648; Clewis, 922 S.W.2d at 133-35.

Conflicts in the evidence are to be resolved by the jury. In doing so, it may accept one version of facts and reject another or reject any of a witness’ testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). It is the jury’s job to judge the credibility of the witnesses and the weight to be given their testimony, and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974).

When evidence both supports and conflicts with the verdict, we must assume that the fact finder resolved the conflict in [98]*98favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993).

Michael Dunn was the father of the eighteen-month-old child victim in this case. He testified that he shook the child while disciplining her and that the child went limp. In his written statement to the police, which was before the jury, Dunn admitted shaking the child and “slamming” her to the floor. At a suppression hearing, and again at trial, he vehemently denied “slamming” the child to the floor, and denied that he had made any such statement to the officers.

On the date of the occurrence, the child was taken to LSU Medical Center, where invasive brain surgery was performed in an effort to reduce pressure within her brain. She nevertheless died as a result of her injuries. The pathologist who performed the autopsy testified that he found exterior damage in the form of a hemato-' ma on the right side of the child’s head that was caused by a “significant blow.” He also testified that he found a very recent skull fracture on the left occipital area of the skull. He further testified that the treating physicians had removed a he-matoma within the brain and that he also saw a significant hemorrhage within the brain that would have been typically caused by either physically striking or violent shaking of the infant.1 In his written statement to the police, Dunn admitted “slamming” the child to the floor and to shaking the child. The evidence is legally and factually sufficient to support a finding that Dunn committed the acts that resulted in serious bodily injury to the child.

The more specific question involves the issue of whether the evidence was legally and factually sufficient to permit a jury to conclude that he had the mens rea or intent necessary to commit the offense for which he was charged. The jury found Dunn guilty of intentionally or knowingly causing serious bodily injury to a child. Tex. Pen.Code Ann. § 22.04(a),(e) (Vernon Supp.2000).

Injury to a child is a “specific result” offense. This means that it requires a culpable mental state which relates not to the nature of the circumstances surrounding the charged conduct, but to the result of the conduct. Banks v. State, 819 S.W.2d 676, 678 (Tex.App.-San Antonio 1991, pet. ref'd); Hoggins v. State, 785 S.W.2d 827, 828 (Tex.Crim.App.1990). Result-oriented offenses require specific mental culpability beyond intentional conduct. Schultz v. State, 923 S.W.2d 1, 4 (Tex.Crim.App.1996). An actor is said to act with intent with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Dues v. State, 634 S.W.2d 304, 305 (Tex.Ciim.App. [Panel Op.] 1982).

In such a prosecution, the State is required to put on some evidence that the accused either acted with intent to cause serious bodily injury to the child or knew that his actions were reasonably certain to cause that result. Withers v. State, 994 S.W.2d 742, 746 (Tex.App.-Corpus Christi 1999, no pet.). Proof of a culpable mental state is often made by circumstantial evidence. See Gardner v. State, 736 S.W.2d 179, 182 (Tex.App.-Dallas 1987), aff'd, 780 S.W.2d 259 (Tex.Crim.App.1989). Proof of knowledge2 is an inference that may be drawn by the fact finder both from direct evidence and from evidence of the circumstances surrounding the act. Dillon v. State, 574 S.W.2d 92, 94-95 (Tex.Crim.App.

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Cite This Page — Counsel Stack

Bluebook (online)
13 S.W.3d 95, 2000 Tex. App. LEXIS 518, 2000 WL 53266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-texapp-2000.