Tezino v. State

765 S.W.2d 482, 1988 WL 144486
CourtCourt of Appeals of Texas
DecidedApril 5, 1989
Docket01-88-00145CR
StatusPublished
Cited by35 cases

This text of 765 S.W.2d 482 (Tezino 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
Tezino v. State, 765 S.W.2d 482, 1988 WL 144486 (Tex. Ct. App. 1989).

Opinion

*483 OPINION

DUGGAN, Justice.

A jury found appellant guilty of the offense of injury to a child. Following a pre-sentence investigation, the court assessed punishment at 25 years confinement. Appellant asserts nine points of error.

By his first point of error, appellant urges that the evidence is insufficient to sustain his conviction for injury to a child because there is little evidence, if any, tending to disprove his claim that the child was injured during a car accident, and no evidence showing that the child’s injuries were caused by appellant’s commission of a criminal act.

The offense of injury to a child occurs when a person intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that causes to a child who is 14 years of age or younger:

(1) serious bodily injury;
(2) serious physical or mental deficiency or impairment;
(3) disfigurement or deformity; or
(4) bodily injury.

Tex.Penal Code Ann. sec. 22.04(a)(1)-(4) (Vernon Supp.1988).

The standard of review for circumstantial evidence cases on appeal is the same as for direct evidence cases. Alexander v. State, 740 S.W.2d 749, 757 (Tex.Crim.App. 1987). In reviewing the sufficiency of the evidence to support a conviction based on circumstantial evidence, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App. 1983) (op. on reh’g). However, a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190,195 (Tex. Crim.App.1984). But it is not necessary in a circumstantial evidence case that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances. Alexander, 740 S.W.2d at 758. Simply because the defendant presents a different version of the facts does not render the State’s evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985).

The complainant, Kevin Godfrey, was four-months-old at the time of the offense. His mother, Pamela Brownfield, was 18-years-old, and her boyfriend, appellant, Donald Tezino, was 17-years-old. It is undisputed that the only parties present at the time of the injury-producing events were appellant and the baby, and that Kevin was a healthy baby when he came into appellant’s care shortly before his fatal injuries. Pamela testified that when appellant took Kevin with him on June 24, 1986, Kevin was in perfect physical condition, with no marks, scratches, or bruises of any kind on his body, and that he had no difficulty crying.

Approximately two or three weeks earlier, appellant asked and received Pamela’s permission to take Kevin to see appellant’s cousin. Instead, appellant took the child to see appellant’s mother, and told her that Kevin was her grandchild. When appellant’s mother phoned Pamela to confirm appellant’s announcement, Pamela explained to her that appellant was not the father. When appellant returned with Kevin, the child had a cut or “busted” lip, which Pamela’s mother described. When Pamela asked appellant how the baby received its injury, appellant explained that he did not know, saying that he had left Kevin with his mother while he went to play basketball.

On June 24, 1986, after spending the night with Pamela and Kevin at Pamela’s sister’s boyfriend’s house, appellant told Pamela that he was going to visit his cousin, and asked if Kevin could ride with him. Pamela consented, and appellant took the baby with the understanding that he would be gone 30 minutes, or until approximately 1:00 p.m.

Appellant testified that he placed Kevin in the sub-compact automobile’s front pas *484 senger seat in an upright position, and that the infant sat there, there was no infant car seat; neither was the baby strapped in with a safety belt. Appellant testified that Kevin cried for approximately 10 minutes and that, when he stopped at a traffic stoplight, he picked the baby up and shook him for approximately two or three seconds to stop his crying. Thereafter, appellant stated, a car pulled out in front of him, causing him to hit the brakes suddenly. The cars did not collide, he testified, but his car hit the curb and bounced over the top of the curb. He testified that Kevin hit his head on the dashboard during this accident and fell to the floor of the car. The only damage to his car was bent hubcaps, he stated.

Appellant testified that after this incident, he drove to his cousin’s house, found no one at home, and waited there for 20 minutes before driving to his aunt’s apartment.

Nelda Malone, appellant’s great-aunt, testified that appellant came to her apartment to borrow money, and that he had a baby with him. She noticed that he carried the baby braced against his shoulder so that the baby’s face was away from her view. As Malone and appellant talked, she noticed an unusual sound to the infant’s breathing, and asked to see the baby. She observed that the baby’s eyes were swollen shut, its cheeks were bruised, and that there was blood on the inside of the baby’s mouth. The child was not alert and his breathing sounded “funny.” Malone testified that appellant told her that the baby was in its injured condition when he got the child at his girlfriend’s. Ms. Malone advised appellant to take the baby to the hospital or a doctor. The apartment maintenance man, Mickey Dwayne Gray, testified that Kevin’s eyes were swollen shut and his face was discolored along the cheeks and under the eyes. He also told appellant to take the baby to the hospital. Both witnesses testified that, based on appellant’s response to their urging, they believed that he would seek prompt medical attention for the child.

However, appellant did not take Kevin to the hospital or to a doctor, but to Pamela’s house, where he left him with her 10-year-old sister, despite the fact that he knew Pamela was waiting for him at her other sister’s, where he had left her. Appellant never said that anything was wrong with the baby, or that it was injured. To the contrary, he told the 10-year-old sister that the baby was sleeping. After leaving the baby, appellant drove to Orange, Texas, where he stayed overnight without contacting Pamela.

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Cite This Page — Counsel Stack

Bluebook (online)
765 S.W.2d 482, 1988 WL 144486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tezino-v-state-texapp-1989.