                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                  NO. 2-09-166-CR


DERICK DION RECTOR                                                 APPELLANT

                                          V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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                                  I. INTRODUCTION

      A jury convicted Appellant Derick Dion Rector of injury to a child and

assessed his punishment at twelve years’ confinement. In a single issue, Rector

argues that the evidence is factually insufficient to support the jury’s implied

rejection of his parental justification defense. We will affirm.




      1
       See Tex. R. App. P. 47.4.
                           II. FACTUAL BACKGROUND

      Sometime in the mid-afternoon on December 22, 2008, LaQuita Y.

instructed Rector, her boyfriend, to whip her seven-year-old son, Q.Y., because

he had wet his bed again. After Q.Y. removed his clothes and laid on a bed at

LaQuita’s and Rector’s direction, Rector whipped Q.Y. with a leather belt at least

eight times. LaQuita also whipped Q.Y.—at least seven times—for ―talking back‖

to her.

      Officer Adam Maloney responded to a check-welfare-of-a-child call at

LaQuita’s home later that same day. LaQuita told Officer Maloney that Q.Y. had

been whipped with a leather belt, and Officer Maloney observed that Q.Y.’s hand

was swollen to about twice the size of his other hand.           A CPS worker

subsequently arrived and examined Q.Y. In addition to a swollen hand, Q.Y. had

multiple red marks and discoloration or bruises on his arm, multiple abrasions

and bruises on his leg, an open cut on his ribcage, and a cut on the back of his

knee. Both Rector and LaQuita were arrested.2 The State indicted Rector for




      2
       LaQuita was arrested that same day. Rector was arrested sometime
later. LaQuita pleaded guilty to injury to a child and was serving five years’
community supervision at the time of Rector’s trial.

                                        2
injury to a child.3 At trial, the trial court instructed the jury on Rector’s penal code

section 9.61 parental justification defense.4

                            III. EVIDENTIARY SUFFICIENCY

      In his sole issue, Rector argues that the evidence is factually insufficient to

support the jury’s implied rejection of his parental justification defense because

he did not beat Q.Y. but merely disciplined him, no witness testified that he was

exclusively responsible for Q.Y.’s injuries, and Q.Y.’s injuries were merely

temporary.

      A.     Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the


      3
        The indictment alleged in relevant part that on or about December 22,
2008, Rector ―did then and there intentionally or knowingly cause bodily injury to
[Q.Y.], a child fourteen years of age or younger, by striking said [Q.Y.] with a belt
across his arms, hands, body and/or legs.‖
      4
       The trial court instructed:

             Therefore, if you find that the defendant, Derick Dion Rector,
      did intentionally or knowingly cause bodily injury to [Q.Y.], a child
      fourteen years of age or younger, by striking said [Q.Y.] with a belt
      across his arms, hands, body and/or legs, but you further find that
      the defendant was acting in loco parentis to [Q.Y.], and the force
      was used when and to the degree the defendant reasonably
      believed the force was necessary to discipline [Q.Y.], you will then
      find the defendant not guilty.

                                           3
evidence supporting the conviction, although legally sufficient, is nevertheless so

weak that the factfinder’s determination is clearly wrong and manifestly unjust or

whether conflicting evidence so greatly outweighs the evidence supporting the

conviction that the factfinder’s determination is manifestly unjust. Steadman, 280

S.W.3d at 246; Watson, 204 S.W.3d at 414–15, 417. To reverse under the

second ground, we must determine, with some objective basis in the record, that

the great weight and preponderance of all the evidence, although legally

sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417. In reviewing a

challenge to the factual sufficiency of the evidence to support a jury’s rejection of

a defense to prosecution, we use the same standards used in reviewing the

sufficiency of the evidence to support a guilty verdict, looking at the sufficiency of

the evidence to support both the verdict as well as the rejection of the defense.

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Ortiz v. State, No.

05-08-00490-CR, 2009 WL 1664940, at *13 (Tex. App.—Dallas June 16, 2009,

pet. ref’d) (not designated for publication).

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, ―particularly those

determinations concerning the weight and credibility of the evidence.‖ Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at

246. Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.



                                           4
      B.     Injury to a Child and Parental Justification Defense

      A person commits the offense of injury to a child if he intentionally or

knowingly causes the child bodily injury. Tex. Penal Code Ann. § 22.04(a)(3)

(Vernon Supp. 2010). ―Child‖ means a person fourteen years of age or younger.

Id. § 22.04(c)(1). ―Bodily injury‖ means physical pain, illness, or any impairment

of physical condition. Id. § 1.07(a)(8) (Vernon Supp. 2010). Injury to a child is

considered a result-oriented crime; that is, the accused acts with intent if it is his

conscious objective or desire to cause the result. Assiter v. State, 58 S.W.3d

743, 748 (Tex. App.—Amarillo 2000, no pet.). Intent may be inferred from the

acts and the words of the accused, as well as the surrounding circumstances. Id.

      The parental justification defense provides that the use of force, but not

deadly force, against a child younger than eighteen years is justified if the actor is

the child’s parent or stepparent or is acting in loco parentis to the child and ―when

and to the degree the actor reasonably believes the force is necessary to

discipline the child or to safeguard or promote his welfare.‖ Tex. Penal Code

Ann. § 9.61 (Vernon 2003). ―In loco parentis‖ includes anyone who has express

or implied consent of the parent.5 Id. § 9.61(b). The use of force under section

9.61 is not justified simply because of a parent’s subjective belief that the force is

necessary; rather, the use of force is justified only if a reasonable person would

have believed the force was necessary to discipline the child or to safeguard or


      5
       It is undisputed that Rector was acting in loco parentis.

                                          5
promote the child’s welfare. Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex.

App.—Fort Worth 2005, pet. ref’d) (citing Assiter, 58 S.W.3d at 748).           The

―reasonable belief‖ standard is thus an objective standard. Id.; see Tex. Penal

Code Ann. § 1.07(a)(42) (stating that a reasonable belief means a belief that

would be held by an ordinary and prudent man in the same circumstances as the

actor).

      Because reasonable discipline is a justification, the State is not required to

affirmatively produce evidence which refutes the claim; rather, the State has the

burden to prove its case beyond a reasonable doubt. See Tex. Penal Code Ann.

§ 9.02 (Vernon 2003); Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App.

1991) (reasoning that State does not have burden of production but rather

burden of persuasion in disproving defense); Goulart v. State, 26 S.W.3d 5, 10

(Tex. App.—Waco 2000, pet. ref’d); see also Zuliani, 97 S.W.3d at 593–94. A

verdict of guilty is an implicit rejection of a defendant’s defensive argument.

Zuliani, 97 S.W.3d at 594.

      C.    Evidence Factually Sufficient

      Officer Maloney testified that when he observed Q.Y. on December 22,

2008, Q.Y. was holding his hand up against his torso, his hand was swollen to

twice the size of his other hand,6 and he had multiple red marks and discoloration

or bruises on his arm, multiple abrasions and bruises on his leg, an open cut on

      6
       Officer Maloney agreed that Q.Y.’s right hand was ―significantly smaller‖
than his left hand.

                                         6
his ribcage, and a cut on the back of his knee. When Officer Maloney ―ever so

lightly‖ touched Q.Y.’s swollen hand, Q.Y. pulled his hand back and winced as if

the contact had hurt him.

      Q.Y. testified that Rector hit him with a belt when he was lying on the bed

and that it hurt him. K.W., LaQuita’s half-sister, testified that Rector whipped

Q.Y. with a belt, that Q.Y. screamed and yelled when he was struck, that the

whipping took a ―long‖ time, and that Q.Y. just laid in bed and did not want to eat

dinner that night or watch television.

      Scott Myers, an emergency room physician, testified that Q.Y.’s injuries

would have caused a child younger than fourteen years old pain. In regard to a

photograph of Q.Y.’s swollen hand, Myers testified

      You can see that there’s a significant amount of swelling in the hand
      there, and then you can see the contrast between the color right
      there. So this is - - this is bruising or this is - - This would probably
      be even more consistent with what we call hematoma[,] which is a
      little bit more severe form of bruising where there’s more of a
      collection of blood under the skin and some swelling there.

      LaQuita testified that she instructed Rector to whip Q.Y.; that Rector

whipped Q.Y. with a leather belt at least eight times; that she thought Rector

struck Q.Y.’s left hand, causing it to swell up; that it is possible that Rector struck

Q.Y. with the belt’s buckle; that she knew Q.Y. was hurt by the whipping; that she

did not know if the injuries shown in the photographs entered in evidence

depicting Q.Y.’s injuries were caused by her or Rector; that she did not think it

was reasonable or ―right‖ for Rector to strike Q.Y. with the belt in the manner that


                                          7
he did; and, significantly, that striking Q.Y. with the belt was more than what was

reasonably necessary to discipline him.          On cross-examination, however,

LaQuita testified that she thought Rector’s actions were an exercise of

reasonable parental discipline.

      In light of the above evidence, a rational jury could have concluded that an

ordinary and prudent person in the same circumstances as Rector would not

believe that the force used by Rector against Q.Y.—using a belt to repeatedly

whip Q.Y.’s body, causing and leaving multiple visible bruises, cuts, and a

significantly swollen hand—was necessary to discipline him or to safeguard or

promote his welfare.       See Roberts v. State, No. 10-04-00203-CR, 2005 WL

979002, at *1–2 (Tex. App.—Waco Apr. 27, 2005, no pet.) (mem. op., not

designated for publication) (holding evidence that appellant whipped child with a

belt that had a metal buckle, causing child injuries to his head, neck, back, arm,

buttocks, and legs, factually sufficient to support appellant’s conviction for injury

to a child); Jones v. State, No. 01-06-01078-CR, 2007 WL 4278722, at *5 (Tex.

App.—Houston [1st Dist.] Dec. 6, 2007, no pet.) (mem. op., not designated for

publication) (holding evidence that appellant whipped child with belt, causing

child injuries to her arms, back, and thighs, factually sufficient to support

appellant’s conviction for injury to a child).     And that Q.Y.’s injuries were

temporary does not mean that they were not ―bodily injuries‖ as defined by penal

code section 1.07(a)(8).



                                         8
      As for Rector’s causation argument, LaQuita specifically testified that she

thought Rector struck Q.Y.’s left hand, causing it to swell, and that Rector could

have struck Q.Y. with the belt’s buckle. Even in the absence of this evidence, in

light of the record, Rector is not absolved of criminal responsibility for causing

Q.Y. bodily injury. See Tex. Penal Code Ann. § 6.04 (Vernon 2003) (stating that

a person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the

concurrent cause was clearly sufficient to produce the result and the conduct of

the actor clearly insufficient).

      Rector argues that the evidence is factually insufficient to support the jury’s

implied rejection of his defense because the facts of this case are distinguishable

from those in Goulart, another case in which the appellant was prosecuted for

whipping a child. 26 S.W.3d at 7. The evidence is not factually insufficient in this

case even if the evidence here of the intensity of the ―discipline‖ was less brutal

than that reviewed in Goulart.

      Accordingly, viewing the evidence in a neutral light, favoring neither party,

we hold that the evidence is factually sufficient to support the jury’s guilty verdict

and its implied rejection of Rector’s parental justification defense. We overrule

Rector’s sole issue.




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                                IV. CONCLUSION

      Having overruled Rector’s only issue, we affirm the trial court’s judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 23, 2010




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