Maria Guadalupe Duran v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2010
• Docket: 08-08-00288-CR
• Status: Published

Opinion

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARIA GUADALUPE DURAN,                                     Appellant, v. THE STATE OF TEXAS,                                     Appellee.	§	No. 08-08-00288-CR Appeal from  409th District Court of El Paso County, Texas (TC # 20030D05977)

O P I N I O N

            Maria Guadalupe Duran was indicted for causing serious bodily injury to a child. A jury found her guilty and assessed punishment at ten years’ confinement and a fine of $10,000. Confinement was suspended and Appellant was placed on community supervision for ten years. Because the evidence is both legally and factually sufficient to support the conviction, we affirm.

FACTUAL BACKGROUND

            On November 15, 2003, Officer Matthew Jones responded to a call for a welfare check of a child. He met with Appellant and Alfonso Dozal III. Appellant told the officer she woke her newborn infant around 7 a.m. to feed him. The 9-1-1 call was made around 9 a.m. Appellant’s demeanor appeared calm, more so than that of a mother with a sick newborn. Officer Jones then contacted Child Protective Services.

            When paramedic Aaron Fierro arrived at the apartment, he found an infant wrapped in a blanket. Fierro unwrapped the child and noticed the baby had shallow respirations, was pale and cold, had mottled skin from his shoulders to his feet, and had dried blood around the nostrils. The child was transported by ambulance to the trauma unit of Providence Memorial Hospital.

            Detective Gabriel De La Hoya responded to Providence Memorial Hospital where he attempted to talk to Alfonso Dozal IV, the victim’s brother. De La Hoya was then instructed to go to the Advocacy Center for the Children of El Paso to interview the other siblings. De La Hoya and Detective Arbogast were only able to locate Natalie Blanco.

            Detective Arturo Ruiz transported Appellant to police headquarters to interview her. After being read her Miranda Rights, Appellant agreed to provide a written statement. She recalled that the baby had an appointment with pediatrician Dr. Miguel Ibarra on November 14, 2003 and was given a clean bill of health. On Friday night, she fed the baby around 10:30 p.m. and Dozal changed his diaper. Appellant put him to bed in his bassinet. Appellant and her husband went to bed between 11 p.m. and midnight. Around 1 a.m., the child awakened and Appellant fed him. Dozal changed his diaper and Appellant wrapped him in a blanket and put him back to sleep. She also covered him with two baby blankets because the heater was not turned on in the apartment. By now, it was 1:45 a.m.

            Appellant woke up around 7 a.m. and found it odd that the baby was still asleep because he usually woke up between 4 and 5 a.m. She reached over and moved the child a bit, but he did not respond. She prodded him a little harder and he stretched.Appellant then went into the bathroom for no longer than two minutes. When she returned, Dozal was folding some blankets. Appellant picked up the infant and noticed that he was cold to the touch, very pale, and had dried blood around his nose. The right side of his face and his arm were purple and he was breathing abnormally. Dozal first called his mother because they needed her car. Appellant changed the baby’s diaper and noticed that he was extra wet. She handed the baby to her husband so she could get dressed, but Dozal told her to call 9-1-1 because the child had stopped breathing. Dozal tapped him on the back until he started breathing again. Appellant called 9-1-1 and the ambulance arrived within two minutes. Appellant concluded her statement by explaining that she and her husband provided constant care for the baby and the other children were not allowed to hold him.

            Dr. Ibarra testified that he conducted a well-baby exam on November 14 and found no abnormalities. Appellant’s only complaint about her baby’s health was that he was “gassy.”

            Jose Escobar, a former CPS worker in El Paso, testified that when he asked Appellant about the baby’s health, she said his problems may have been caused by medication prescribed by the hospital or because he was discharged too early. Appellant also mentioned she had a great deal of financial stress during her pregnancy. She was unable to work and could not pay her bills. Dozal was not working either. Escobar followed protocol and contacted the police after speaking with Appellant because he was suspicious of a crime. The next day, he made an unannounced visit to the apartment. Appellant said she needed to tell him something that she hadn’t told the police. When asked why she did not tell the police initially, she responded that she was being treated in a condescending and disrespectful manner. She told Escobar that she had become suspicious that something may have happened with Ashley and the baby. Mother and daughter had had a conversation several days prior to Escobar’s visit. This led Escobar to believe that Appellant was pressuring Ashley to say something has happened so that Appellant would not be blamed. Escobar found no evidence that the baby’s injuries were caused by any of his siblings. As a result of Escobar’s findings, the children were removed from the home.

            Chetan Moorthy, a pediatric radiologist at Providence Memorial Hospital, testified he reviewed the radiologic exams of the victim. A CAT scan was performed on November 17, 2003. The scan contained white spots indicating there was bleeding within the baby’s brain. The outside area of the brain appeared very dark, which according to Dr. Moorthy was abnormal. The skin surrounding the skull was also swollen. The bone in the back of the baby’s head had been pushed in by force. This resulted in swelling on the back of the scalp. An MRI examination was conducted on December 3, 2003. The brain had shrunk since the time of the CAT scan as a result of the damage suffered. Because the brain had atrophied, the space between the brain and the skull filled with fluid mixed with blood. The MRI showed that the brain was turning to a “hull” and the brain tissue was lost forever. The brain also showed damage from oxygen deprivation. From these examinations, Dr. Moorthy was able to determine the cause of the injuries. He concluded that bleeding occurred at the junction of the outer heavy cortex and the inner lighter white matter of the brain. The only mechanism that could have caused such tearing was violent acceleration/deceleration. In other words, it was caused by back and forth shaking. The injury deprived the brain of oxygen and the baby either suffered a seizure or stopped breathing, or both.

            Dr. Moorthy also concluded that while a slam of the baby’s head could be responsible for the injury to the back of the skull, a slam alone could not cause all of the injuries that were suffered by the child. An average eight- or ten-year-old could not generate the necessary force to cause these injuries. The brightness of the blood on the CAT scans indicated that the injuries occurred within 24 or 48 hours of the November 17 examination. He opined that the injuries were inflicted, not accidental. In his opinion, the baby suffered from shaken-baby syndrome.

            Appellant testified at trial and denied doing anything to injure her baby, including shaking him. She had asked her daughter Ashley if she had ever seen Natalie pick up the baby. Ashley said no. Appellant then asked if Ashley had ever picked up the baby. Ashley paused and then responded, “If I say yes, will I get in trouble?” Appellant then told her, “If you did do anything and picked up the baby, you need to tell somebody, because they’re looking at us.”

            Natalie testified that Appellant instructed her and her siblings not to pick up the baby because they might drop him, but Ashley had picked him up because he was crying. Ashley was walking with him when she heard the toilet flush in the bathroom. She got scared and tried to put Alfonso back in the cuna but as she turned around, the baby hit his head and stopped crying. On cross-examination, Natalie admitted that she had originally testified that Ashley dropped the baby and that she had told her mother right away.

            Ashley testified that she picked up the baby against her parents orders. She could not stand to see her little brother cry so she picked him up when Appellant was in the bathroom. She got scared when she heard her mother coming and as she turned around, she felt his head first hit her shoulder and then the metal on the crib. He stopped crying and stared at Ashley like he was lost. The State showed the jury the video of the Advocacy Center’s interview with Ashley for the purposes of showing her size at the time of the incident.

            Dr. Shanker Sundrani, a nerosurgeon and neurologist, testified that he diagnosed the infant with mental retardation and hydrocephalus on October 19, 2004. Dr. Sundrani placed a shunt on October 27 to drain fluid off the brain and into the belly. After examining the radiology exams, Dr. Sundrani concluded that the large amount of blood and swelling indicated trauma from a significant blow.

SUFFICIENCY OF THE EVIDENCE

            Appellant brings one issue for review challenging the sufficiency of the evidence to prove that she caused the child’s serious bodily injuries.

Standard of Review

            In assessing the legal sufficiency of the evidence to support a conviction, an appellate court must consider all of the record evidence in the light most favorable to the verdict, and must determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; Klein v. State, 273 S.W.3d 297, 302 (Tex.Crim.App. 2008). We consider all of the evidence, whether admissible or inadmissible. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). When the record supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Clayton, 235 S.W.3d at 778. The same standard of review is used for both direct evidence and circumstantial evidence cases. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

            In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder’s determinations. See Johnson, 23 S.W.3d at 8-9; Clewis, 922 S.W.2d at 136. There are two ways in which the evidence may be factually insufficient. The first is that the evidence supporting the verdict, though legally sufficient, is nonetheless too weak to support it. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). The second is that, when considering conflicting evidence, the jury’s verdict is against the great weight and preponderance of the evidence. Thus, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11.

            Under the first part of this standard, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second part, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that the evidence is factually insufficient to support a verdict under the second part of the standard, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

            The existence of alternative reasonable hypotheses may be relevant to the factual sufficiency review but they are not determinative. Wilson, 7 S.W.3d at 141. When a defendant identifies an alternative reasonable hypothesis raised by the evidence, the standard of review remains the same. Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.--Dallas 1998, no pet).

Serious Bodily Injury to a Child

            A person commits the offense of injury to a child if she intentionally or knowingly, either by act or omission, causes serious bodily injury to a child who is fourteen years of age or younger. See Tex.Pen.Code Ann. § 22.04(a)(1) & (c)(1)(Vernon Supp. 2009). “Serious bodily injury” means bodily 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.Pen.Code Ann. § 1.07(a)(46)(Vernon Supp. 2009).

            The testimony of Dr. Moorthy and Dr. Sundrani established that the infant suffered serious bodily injury, so much so that he was diagnosed with mental retardation and hydrocephalus. Some of his brain tissue was “lost forever.” Such a catastrophic brain injury may have caused him to have a seizure or stop breathing. As a result, the victim suffered from protracted impairment of the function of his brain. This evidence is not contested by Appellant; instead she argues that the evidence was insufficient to prove that she committed the offense.

            Appellant and her husband were the only adults with the child prior to the 9-1-1 call. In her statement, Appellant admitted that she “moved” the child once, and then when he did not respond, she “moved him a little harder.” She also said that she “tapped” the child, but he did not respond, so she “tapped him a little bit harder.” The jury was free to interpret Appellant’s characterization as an attempt to minimize her actions toward the child.

            Appellant also exhibited behavior that provided circumstantial evidence of guilt. Circumstantial evidence is as probative as direct evidence in establishing guilt and even standing alone can be sufficient. Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007), citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). For example, Appellant told CPS investigator Escobar that Ashley may have been responsible. But Escobar testified that he believed Appellant was pressuring Ashley to say something had happened to deflect blame. Escobar found nothing to indicate that the injuries were caused by one of the siblings. Natalie Blanco also gave differing accounts to investigators. When she first told the story, she said that Ashley “dropped” the baby. Later she changed her story so that Ashley hit the baby’s head on the crib. The jury heard this evidence as well as Dr. Moorthy’s opinion that falling on the floor or hitting a bed rail would have caused a different kind of injury. Dr. Moorthy also opined that an average eight- to ten year old child could not generate the amount of force necessary to cause these injuries which he characterized as inflicted rather than accidental. Of course, the jury was free to resolve this conflict in the testimony against Appellant. They may have interpreted Appellant’s attempt to blame her daughter as consciousness of guilt. Consciousness of guilt may be one of the strongest indicators of guilt. Lee v. State, 866 S.W.2d 298, 302 (Tex.App.--Fort Worth 1993, pet. ref’d); Torres v. State, 794 S.W.2d 596, 598 (Tex.App.--Austin 1990, no pet.).

            Having viewed the evidence in a light most favorable to the verdict, we must conclude that the evidence could have led the jury to find Appellant guilty of causing serious bodily injury to her son. The jury was free to weigh any conflict in the testimony. We overrule Appellant’s legal insufficiency claim. And having viewed the evidence in a neutral light, we similarly find that the evidence was factually sufficient. We overrule sole point and affirm the judgment of the trial court.

June 30, 2010                                                                                                                                                  ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Bramblett, Judge

Bramblett, Judge, sitting by assignment

(Do Not Publish)