Matthew David Kelley v. State

Opinion

Affirmed and Majority and Dissenting Opinions filed February 28, 2006

Affirmed and Majority and Dissenting Opinions filed February 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00485-CR

MATTHEW DAVID KELLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 43,498

M A J O R I T Y   O P I N I O N

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 subdural 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 Afairly 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 had 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 Afairly severe trauma,@ or a Asevere blow to the head.@  Dr. Swischuk testified that for the baby=s injuries to be accidental would have required a fall from a great distance.  Dr. Nesti testified that had the baby not been taken to the hospital immediately, she most likely would not have lived.

Appellant contended at trial that the baby=s injuries were either accidental or caused during a traumatic forceps delivery, which resulted in bruising on the right side of her head.  Both theories were discredited by the expert testimony.  Every expert testified that the baby=s injuries could not have been caused by the accident on the changing table as described by appellant.  Further, Dr. Gunderson testified that any hemorrhages due to birth trauma would be healed within six to ten weeks of birth.

If any rational juror could find the elements of the offense beyond a reasonable doubt when viewing the evidence in the light most favorable to the verdict, the verdict will be upheld in a legal sufficiency review.  Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000).  In determining whether appellant=s conduct was reckless, the jury was entitled to consider the extent of the baby=s injuries, the relative size of a three-month-old baby compared to appellant, and the expert testimony that a severe trauma was the cause of the baby=s injuries.  From the expert testimony and the facts surrounding the event including the relative size and strength of the parties and the fact that appellant was alone with the baby, a rational juror could have found appellant was aware of, but consciously disregarded, the risk to the baby.  Appellant=s first point of error is overruled.

In his second point of error, appellant argues the evidence is legally insufficient to support a conviction of injury to a child by causing the child to strike an object unknown to the grand jury.  Because we have found the evidence legally sufficient to support appellant=s conviction for injury to a child caused by shaking the child, we need not address whether the evidence was sufficient to show the injury was caused by striking an object.  Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions filed February 28, 2006.

Panel consists of Justices Hudson, Edelman, and Seymore.(Seymore, J., dissenting).

Publish C Tex. R. App. P. 47.2(b).