Kelley v. State

187 S.W.3d 761, 2006 Tex. App. LEXIS 1563, 2006 WL 461482
CourtCourt of Appeals of Texas
DecidedFebruary 28, 2006
Docket14-04-00485-CR
StatusPublished
Cited by24 cases

This text of 187 S.W.3d 761 (Kelley 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
Kelley v. State, 187 S.W.3d 761, 2006 Tex. App. LEXIS 1563, 2006 WL 461482 (Tex. Ct. App. 2006).

Opinions

[762]*762MAJORITY OPINION

J. HARVEY HUDSON, Justice.

Appellant, Matthew David Kelley, appeals his conviction for recklessly causing serious bodily injury to a child. Appellant was sentenced following a jury trial to eight years’ confinement and a $2500 fine. In two points of error, appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm.

On May 31, 2002, appellant’s three-month-old daughter was left in his care while her mother, Nicole Williamson, was at work. When Williamson left for work, the baby was sleeping in her crib. That afternoon, Williamson called home to check on the baby. Appellant said the baby seemed groggy and tired, but told Williamson she did not need to come home. Later that day, appellant called Williamson and told her he was changing the baby’s diaper and sat her up on the changing table. When he reached for a diaper, the baby slumped over on the changing table. The baby then cried, gasped for air, and arched her back. Appellant noticed after he changed her diaper, the baby’s jaw was tight and her tongue was pushed to the roof of her mouth. Appellant called Williamson and asked her to come home.

Williamson arrived approximately five minutes later and took the baby to the pediatrician’s office. The pediatrician examined the baby and decided to transfer her by ambulance to the University of Texas Medical Branch (UTMB) in Galveston. At the hospital the baby was admitted to the pediatric intensive care unit. Dr. Frances' Nesti examined the baby when she arrived at the hospital and testified that when she arrived, the baby was non-responsive. While in the pediatric intensive care unit, the baby became less responsive and stopped breathing for periods of time, so she was intubated. Dr. Nesti noted the baby had a bruise on her face and small bruises on her ears. A CT scan revealed a subdural hematoma, which the doctor described as bleeding in the brain. Dr. Nesti testified that when a three-month-old has a subdural hematoma, it is almost uniformly caused by shaken baby syndrome. Other diseases or disorders in a child that age would result in other forms of bleeding or injury, not sub-dural hematoma. Dr. Nesti stated the hematoma and the retinal hemorrhages could not have happened as a result of the child falling approximately one foot while sitting on the changing table and hitting her head as described by appellant.

Dr. Charlise Gunderson is a pediatric ophthalmologist who examined the baby in the hospital. Dr. Gunderson found bleeding in all four quadrants and all three layers of both of the baby’s eyes. The hemorrhages found in the baby’s eyes were so numerous that they were not due to a minor trauma, such as slumping and hitting her head on a changing table. Dr. Gunderson also testified that any hemorrhages due to birth trauma would be gone by the time the baby was six weeks old. Dr. Gunderson ruled out several possible diseases or disorders that could have caused the bleeding and determined the bleeding in the eyes was caused by a “fairly severe trauma.” The pattern of hemorrhaging aided Dr. Gunderson in determining the cause of the retinal bleeding. Dr. Gunderson testified that the most likely cause of the pattern of retinal hemorrhaging found in the baby’s eyes was a shaking type of injury or a severe blow to the head.

Dr. Leonard Swischuk, director of pediatric radiology at UTMB, testified that absent a disease, bleeding disorder, or external trauma, the cause of the subdural hematoma was shaking. Dr. Swischuk testified that if the baby’s injuries had been caused by a fall, the fall would have [763]*763had to have been from a great distance to cause the subdural hematoma and retinal hemorrhages. An accidental injury of that nature most likely would have produced a hematoma on the outside of the baby’s head and possibly a skull fracture. Dr. Swischuk testified that a single recent event caused the baby’s injuries. When a baby is shaken, the veins in the subdural space tear and cause bleeding in the brain and the eyes.

In his first point of error, appellant argues there is legally insufficient evidence to support a conviction of injury to a child by shaking the child. Specifically, appellant contends the State failed to show the force necessary to cause the injury was of such force to show appellant knew his actions could cause injury to the child or that he consciously disregarded the risk to the child.

In a legal sufficiency review, we consider all the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000).

A person commits the offense of injury to a child if he recklessly, either by act or omission, causes serious bodily injury to a child fourteen years or younger. Tex. Penal Code Ann. § 22.04(a)(1) (Vernon Supp.2005). A person acts recklessly if he is aware of, but consciously disregards a substantial and unjustifiable risk. Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). Injury to a child is a result-oriented crime. Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985). That means the culpable mental state relates to causing the result rather than merely engaging in the conduct. See Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App.1994). Mental culpability usually must be inferred from circumstances of the act or words. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998). It may be inferred from the extent of injury and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995). The extent of a victim’s injuries is a reflection of the strength of a defendant’s attack, and therefore, involves the defendant’s conduct. Moore, 969 S.W.2d at 16, n. 5 (Keller, J. concurring and dissenting).

Appellant contends his conviction is not supported by legally sufficient evidence because the State failed to introduce evidence that would show the conduct necessary to cause the trauma. Appellant argues the medical experts did not testify as to what amount of force, either specifically or generally, could cause shaken baby syndrome. To the contrary, three medical experts testified that the baby’s injuries could not have been caused by a minor accident. Dr. Gunderson testified the cause of the retinal bleeding was a “fairly severe trauma,” or a “severe blow to the head.” Dr.

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Kelley v. State
187 S.W.3d 761 (Court of Appeals of Texas, 2006)

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Bluebook (online)
187 S.W.3d 761, 2006 Tex. App. LEXIS 1563, 2006 WL 461482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-texapp-2006.