                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00048-CR
                            ____________________

                  GERALD GLENN NUGENT JR., Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________              ______________

                    On Appeal from the 253rd District Court
                           Liberty County, Texas
                          Trial Cause No. CR28370
________________________________________________________              _____________

                           MEMORANDUM OPINION

      The trial court found Gerald Glenn Nugent Jr. guilty of murder, and

sentenced him to sixty years in prison. Nugent maintains that his jury waiver was

invalid, and that the evidence is insufficient to support the conviction.

                                   THE EVIDENCE

      Brook was the daughter of Gerald Nugent and Martina Sellers. On October

20, 2005, Sellers arrived at Cleveland Regional Medical Center with seven-week-

old Brook. A registration clerk saw Sellers holding Brook in the lobby. Sellers was

                                           1
upset. The clerk noticed bruising on Brook’s forehead and neck. Brook stiffened in

the clerk’s arms, and was not focusing or visibly breathing. The clerk called the

nurse. The nurse came immediately and took Brook to a room.

      Lisa Paxton, a nurse at Cleveland Regional, testified that she first had

contact with Brook in the emergency room. Brook was very pale, her arms were

rigid and down by her sides, her legs were stiff, her eyes were deviated to the left

and not focusing, and her body was jerking. She was seizing and her breathing was

labored. Paxton described Brook’s injuries as life-threatening.

      Paxton observed bruising under Brook’s chin and on her forehead. When

Paxton removed Brook’s clothes, Brook had obvious bruising to her chest and

abdomen. Paxton testified Sellers denied knowing the bruises were there. Sellers

said that she had been at work and that she did not know what had happened, and

that maybe her other child had picked the baby up out of the swing or dropped a

toy on her. When Sellers went to work, she left Brook with Brook’s father.

      Dr. Paul Allencherril, a physician in internal medicine, testified that he was

working in the emergency room at Cleveland Regional. Allencherril described

Brook as being limp and in respiratory distress. The medical staff intubated Brook

and stabilized her. She was administered multiple doses of medicine to control

seizures. Her hemoglobin was extremely low, which indicated she had sustained

                                         2
blood loss. Allencherril indicated that Brook tested positive for marijuana and

tricyclic antidepressant.

      A CAT scan showed that Brook had sustained blunt-force injury to the head,

multiple skull fractures, and multiple areas of bleeding inside the brain.

Allencherril noted there were bruises on Brook that would have indicated grabbing

with excessive force. The skull injuries were consistent with “strong hands, against

a wall, on the floor.” Allencherril described the force necessary to cause the skull

injuries as “[c]onsiderable force,” and he agreed that the force necessary to cause

those injuries would be a force that the actor would know would result in serious

injuries to the child. Allencherril testified the injuries were life-threatening. He

described her condition as being the result of “inflicted” injuries and “non-

accidental trauma.” The hospital did not do further tests or x-rays to determine

whether Brook had any healing injuries, because of the necessity to stabilize and

transfer her for further treatment.

      Brook was transferred to Texas Children’s Hospital in Houston for a higher

level of care. Dr. Jeanine Graf, a pediatric intensive care physician at Texas

Children’s, testified that Brook’s condition upon arrival was life-threatening.

Brook’s care team was concerned that Brook would die. The staff at the hospital

considered taking Brook off life-support.

                                            3
      Brook’s head injuries were caused by “a severe degree of blunt force . . .

[similar] to a motor vehicle accident where a child or an adult is thrown head first

into a windshield” which “may have been combined with a shaking injury.” Graf

testified that Brook’s head injuries could not “have been going on for hours or

days[,]” that Brook would have immediately been symptomatic, and that the

severity of her injuries would have been “readily apparent to any lay observer or

any medical personnel” because Brook would not have been breathing normally

and would have changed color.

      In addition to a parietal skull fracture, bleeding within the skull, and retinal

hemorrhages, Brook also had evidence of old healing fractures of the ninth and

tenth ribs, her left big toe, and left distal femur. Graf explained that Brook’s

injuries were non-accidental and that the rib fractures were consistent with a

squeezing injury. Graf stated that there were new and old injuries. Brook was

abused on at least two occasions. Brook also had external bruising that did not

“necessarily correlate” with her fractures. Graf and Allencherril testified that

Brook’s injuries were not consistent with the account of a child being held in a

person’s arms and the striking of the child’s head on a door frame without even a

cry from the child. Neither were the injuries consistent with those allegedly arising

from the activity of the children jumping on a bed while Brook was lying on the

                                          4
bed, from Brook’s being tossed across a bed and rolling down on the floor, or with

a person’s holding Brook and dropping her.

      Brook was discharged from Texas Children’s in November 2005 and went

into foster care. She was able to breathe on her own but required a feeding tube.

She required medication to control her seizures. Graf believed Brook’s condition

would not improve. Graf did not know how long Brook would live.

      Two foster mothers who cared for Brook at different times testified

regarding the specialized care provided to Brook in their homes. Brook required

twenty-four-hour-a-day care, and never improved. Brook could not talk, walk,

reach for anything, roll completely over, or sit up independently.

      Brook had a feeding button implanted in her stomach and had surgery at

Texas Children’s for her severe reflux. The foster mother caring for Brook at the

time thought Brook was improving after the surgery, but Brook died November 23,

2007. The foster mother found Brook unresponsive in her crib and called the

authorities.

      Dr. Kathryn Haden-Pinneri, a forensic pathologist, testified that she

reviewed Brook’s medical records and performed the autopsy on Brook. Haden-

Pinneri stated that at the time of the autopsy Brook showed no sign of recent

injuries. The toxicology screening presented normal results and a check of Brook’s

                                          5
electrolytes showed she was not dehydrated. Haden-Pinneri explained that in the

weeks prior to Brook’s death Brook had experienced complications such as not

tolerating the feeding tubes, and she had developed a urinary tract infection. Since

her release from the hospital in 2005, Brook was in a persistent vegetative state and

could have died from complications at any time. Haden-Pinneri testified that in her

opinion Brook’s death was due to complications of remote, non-accidental, blunt

head trauma that she suffered on October 20, 2005. Brook had undergone a

“jejunostomy tube replacement, which is a feeding tube that goes from the outside

of the body into the intestines” approximately two weeks prior to her death. The

pathologist saw no evidence that the surgery contributed to the cause of death.

      Stacey Greke, a child abuse investigator for CPS, went to Cleveland

Regional early on the morning of October 21st. She spoke with hospital personnel,

took photographs of Brook, and interviewed Brook’s parents. Greke testified that

when she first began questioning Nugent, he initially appeared “flippant,” but then

became more serious as the interview progressed. Greke asked Nugent what had

happened to Brook. Nugent at first said, “I don’t know. You tell me.” He

subsequently told Greke that around 10 p.m. on October 19th he was reaching up

into a closet to grab a diaper and had bumped Brook’s head against the door frame.

He said that her head was partly protected by how he was holding her in his arm,

                                         6
that it was not a strong use of force, and that she did not cry. She did not appear

hurt until the evening of the 20th while Sellers was at work. Brook became listless

and turned pale.

      Nugent did not tell Greke that Brook was symptomatic prior to the time

Sellers left for work. Nugent told Greke he had no knowledge of the source of the

bruising on Brook’s neck and stomach, but told her the bruising might have been

caused by the way he burped her. He denied drug or alcohol abuse.

      Sellers told Greke that she did not know what happened to Brook. She had

been at work when Nugent called her, and she only knew what Nugent told her.

Sellers told Greke she had never seen any bruises on Brook.

      Gary Martin, a detective with the Liberty Police Department, went to

Cleveland Regional Medical Center on the morning of October 21, 2005. He saw

Brook. Paxton and Allencherril explained Brook’s condition. Martin was informed

that Brook was in critical condition and that they were trying to stabilize her for

transport to Texas Children’s Hospital in Houston. Martin spoke with Sellers and

her mother. Nugent also spoke to Martin alone.

      Martin asked Nugent if he knew the source of Brook’s bruises. Nugent told

him that the bruise on Brook’s forehead occurred on October 18th when Nugent

accidentally bumped Brook’s head into the door frame as he was getting a diaper.

                                        7
He said that Brook did not cry and seemed to be fine. He called Sellers to let her

know what happened and let her know that there did not appear to be any injury.

Nugent told Martin he had not noticed any of the other bruises.

      Nugent said that on October 20th he and his two sons had gone to the

laundromat for approximately five hours to do laundry. Sellers was home with

Brook. Nugent and his sons came home from doing the laundry around 3:30 p.m.,

and Sellers left around 3:45 p.m. for work.

      Nugent was Brook’s caregiver while Sellers was at work. The only other

people at the home while Sellers was at work were Nugent’s three-year-old and

five-year-old sons. After Sellers left, Brook slept for some time. Nugent woke her

up to feed her. Brook would not take her formula, and seemed groggy, tired, and

fussy. Nugent held Brook and watched television while he tried to feed her. Nugent

told Martin that around 7 p.m. he noticed Brook turning pale, and her lips turning a

pinkish color. He said he called Sellers and asked if she could come home because

Brook was sick. Nugent told Martin that Sellers told Nugent to give Brook a bath

and that she would be home shortly. Sellers took Brook to the hospital when she

got home from work.

      Later on October 21st, Martin and Police Chief Bill Griffin went to Texas

Children’s Hospital. At Texas Children’s Hospital, Nugent again voluntarily talked

                                         8
to Martin and Griffin. Nugent offered more details. The audio recording of the

interview was played at trial.

      During the recorded interview at Texas Children’s Hospital, Nugent

indicated that while he was caring for Brook around October 13th, he left Brook on

a bed with his son and stepson. He heard her screaming. The boys had been

jumping on the bed. Nugent stated that after that Brook did not act normal and was

grunting and was tired all the time. Nugent explained that on October 19th around

10 p.m. he accidentally hit Brook’s head on the closet door frame. According to

Nugent’s recorded statement, Brook’s symptoms on the morning of October 20th

were the same as for the preceding week. Brook began showing new symptoms at

about 6 p.m. on October 20. At 7:45 p.m. Nugent called Sellers at work. Brook had

difficulty breathing, was spitting her food out, and moving slower. Her lips

changed color.

      John Bickel was the clinical social worker in the emergency department at

Texas Children’s Hospital when Brook arrived. Bickel interviewed Nugent and

Sellers. Neither parent admitted causing Brook’s injuries or gave an explanation of

what caused her injuries. Nugent told Bickel that he became concerned after he

changed and fed her around noon, because he had left Brook on the bed, and her

siblings were on the bed. He heard Brook crying and he returned to the bedroom.

                                        9
She started to shut her eyes, and when he tried to feed her she kept spitting up.

Nugent said that after Sellers left for work, Brook began grunting, her lips were

turning pink, and she was moving her arms like she was swimming. She fell

asleep. Around 6 p.m. Nugent had difficulty waking her, and he called Sellers at

work and told her to come home. Nugent told Bickel that he and Sellers thought

that Brook was dehydrated like before when she was diagnosed with “reflux.”

Nugent told Bickel that Sellers arrived home around 8:45 p.m. Nugent told her to

take Brook to the hospital while he stayed home with Brook’s siblings.

      Sellers reported that she noted a difference in Brook’s crying during her 10

a.m. feeding prior to Sellers’ leaving for work at 3:15 p.m. She reported that at

7:30 p.m. Nugent called her and she came home at 10 p.m. She then took Brook to

the hospital. At a meeting on October 24th when medical staff explained the

amount of force necessary to cause Brook’s injuries, Brook’s parents expressed a

concern that a baby-sitter a few weeks prior might have caused the injuries.

      Martin spoke with Sellers at Cleveland Regional, and again at Texas

Children’s Hospital on October 21, but she declined to give Martin any further

interviews. Sellers could not explain Brook’s injuries but told Martin that Nugent

had told her that one of the boys possibly hit Brook in the head with a toy. She also

told Martin that Nugent had told her he had accidentally hit Brook’s head on a door

                                         10
frame. Even though Sellers was the one who said she always bathed Brook, Sellers

told Martin that she had never noticed any bruises on the child. Neither Sellers nor

Nugent ever attempted to call 9-1-1 regarding Brook’s condition.

      According to Martin, after Sellers heard about the seriousness of Brook’s

injuries, Seller’s demeanor at the hospital was non-responsive and sometimes

appeared “uncaring.” Martin observed Nugent to have a similar demeanor that day.

      Jonathan Sellers, Sellers’ son from her prior marriage, testified to what he

remembered had happened at the apartment the day Brook was taken to the

hospital. He said he would have been about five years old. He remembers that his

mother went to work that night. Jonathan recalled seeing Nugent rock Brook and

change her diaper that night, but he did not remember Nugent ever trying to feed

her, though Sellers had left a bottle on the counter before she left. Jonathan was in

his room playing and he heard Brook crying in the living room. He walked into the

hallway and saw Nugent sitting on the floor holding Brook in front of him.

Jonathan said Nugent was holding her around the chest area and was being

“mean.” Jonathan yelled at Nugent “over and over” to stop because Jonathan did

not want Nugent to hold Brook like that. Jonathan testified Nugent was hurting

Brook and that Nugent did not say anything to Jonathan or stop what he was doing

after Jonathan told him to stop. This incident was the only occasion Jonathan had

                                         11
seen Nugent be mean to Brook. Jonathan indicated he had never seen his mother or

brother or anyone else be mean to Brook. When his mother got home from work

that evening, she looked “sad” and took Brook to the hospital while the two boys

and Nugent stayed at the apartment. Jonathan stated that since that night he has

talked with his mother about it “a couple of times” and also talked to his

grandparents.

      Jacob Nugent, Sellers’ and Nugent’s son, also testified. He was nine years

old at the time of trial. He stated his dad was never mean to him or his brother

Jonathan. He remembered his mother being mean to Brook two times: one time

when she was shouting at Brook and one time when he saw her throw Brook

against the wall. He testified that when he was eight he told a lady talking to him at

Bridgehaven that his dad told him his mother had slammed Brook into the wall.

      Angelia Cabrera testified she worked alongside Sellers at a Mexican

restaurant in Liberty on the evening of October 20, 2005. Sellers came to work that

evening and at some point said that her baby was sick. Cabrera later took a phone

call from Nugent who was calling to talk with Sellers. Cabrera did not overhear the

conversation or know whether Sellers had talked to Nugent earlier, because Sellers

also answered the phone at the restaurant. Cabrera asked Sellers if she needed to go

home, but she said no. Sellers and Cabrera left work between 9:30 p.m. and 10

                                         12
p.m. The call from Nugent that Cabrera answered was thirty minutes to an hour

before she and Sellers left the restaurant.

      Various statements by Nugent were admitted into evidence. In the

statements, Nugent gave differing time frames for when Brook was symptomatic,

when Nugent called Sellers at work, and when Sellers came home from work.

Martin stated that whenever Nugent voluntarily came in after October 21st to give

more details concerning what had happened, he would make a point of saying

things to make Sellers look bad.

       In one statement, Nugent explained that the week prior, he laid Brook on

the bed in the apartment, left the room, and heard her scream. The boys had been

jumping on the bed. He indicated he did not notice the other bruising, but he said

that the bruise on her head was from hitting it on the closet door frame. In another

statement, Nugent explained that Sellers kept coming up with excuses for how

Brook was injured: perhaps Sellers had a seizure and dropped Brook but did not

remember it; maybe Brook had brittle bone disease; or perhaps Brook had some

problems stemming from her birth. Nugent indicated Sellers abused prescription

pills, and he believed Sellers lost her temper and shook Brook.

      In a different statement, Nugent told law enforcement that he had not been

honest in his prior statements because he was protecting Sellers. He wanted her to

                                          13
get mental help and not go to prison, and he was scared she would take the children

from him. Nugent said what actually happened was that when he came home from

the laundromat, he walked up the stairs to their apartment, found the door locked,

and heard Brook crying. When he quietly opened the door, he saw Sellers just as

she was lifting her hand off Brook’s chest. Sellers was sweating. It looked like

Sellers had just hit Brook, and then he heard Brook whimper. He also stated that

when he and Sellers were alone in the apartment one evening after coming home

from Texas Children’s, Sellers admitted to him that she did not mean to do it, but

Brook would not stop crying, and she threw Brook against the wall. Nugent’s

grand jury testimony from December 2005 and his CPS deposition taken May 11,

2006, were also admitted into evidence.

      Nugent testified at trial. He did not recall seeing any bruises on Brook on

October 19, 2005. He had no explanation for the testimony that Brook had healing

fractures prior to October 19, 2005, and he denied causing any injuries to Brook on

or prior to October 19, 2005, that would have caused a break or fracture of the ribs,

foot, or femur. He admitted taking Vicodin for “recreational” purposes and

drinking alcohol in October 2005.

      Nugent explained that on the morning of October 20, 2005, he left around 10

a.m. to go to the laundromat. Nothing out of the ordinary happened that morning.

                                          14
Brook was “a little fussy, hungry.” Nugent came back to the apartment around 4

p.m. He saw Sellers tapping on Brook’s chest. He admitted that he had exaggerated

in prior statements when he said she had hit Brook. Sellers told him that Jonathan

had aggravated her all day, and Brook was “real fussy” and had slept most of the

day. Nugent agreed that when he was confronted in November and December of

2005 about Brook’s injuries, he exaggerated in at least one of his statements and

tried to make it look like Sellers was being secretive by saying she had locked the

door.

        After Sellers left for work, Nugent checked on Brook and she was sleeping.

At some point he tried to feed Brook. She would not eat. Brook was making a

swimming motion and she was not interacting like she normally would, so Nugent

called Sellers at work. He thought Brook might be reacting to her medicine and

asked Sellers if she had given Brook her medicine. He called Sellers later that

evening and said she needed to come home. He thought Brook needed to go to the

doctor. He did not call 911 because he did not think it was that serious: Brook was

acting like she had in the prior weeks when she was suffering from reflux.

        Nugent agreed that he called Sellers at 8:18 p.m. at work and described

Brook’s symptoms as not just fussy: she had labored breathing, pale coloration,

and lips changing color. Sellers told him to give Brook a bath and see if that would

                                        15
help. Nugent did not bathe her. Phone records show an incoming call at 8:31 p.m.,

and Nugent agreed that it could have been Sellers calling back to check on Brook.

Nugent explained that Sellers came home later and was in the apartment for about

ten minutes before leaving with Brook around 10 p.m. for the hospital. Nugent

stayed at the apartment with the boys.

      Nugent admitted to smoking three joints of marijuana on October 19, 2005,

but denied using Vicodin on October 19, 2005, or October 20, 2005. He stated that

while he was waiting for the laundry to finish on October 20, 2005, he got a six

pack of beer from the store and drank four of the beers before going home.

      At trial, Nugent denied causing any of Brook’s injuries. He could not give an

explanation for her injuries but said that Sellers did it. Nugent admitted to lying in

all eleven of his statements to different individuals in the case. Nugent stated that

he and Sellers both lied separately throughout the investigation. He testified he lied

to law enforcement officers when he told them that Sellers told him she threw

Brook against the wall. He never confronted Sellers about why Brook had

antidepressant medication in her system on October 20, 2005. He knew Sellers

took a prescribed antidepressant. He admitted that the only explanation Sellers

gave him for what could have happened to Brook was that she did not know.




                                         16
                          WAIVER OF RIGHT TO A JURY TRIAL

      In his first issue, Nugent argues that although there is a written waiver of

jury trial in the record, “nowhere in the record does it show that [he] executed the

waiver in person in open court.” The clerk’s record demonstrates Nugent executed

a written waiver of jury trial, and a supplemental reporter’s record demonstrates

Nugent presented the written waiver in open court. The trial court approved the

written waiver of a jury trial after Nugent testified that he read and understood the

written waiver and the charges against him, and that he was waiving his

constitutional right to a jury trial. Issue one is overruled.

                            SUFFICIENCY OF THE EVIDENCE

      In his second issue, Nugent contends the evidence is insufficient to support

his conviction. The Jackson v. Virginia legal-sufficiency standard applies. Brooks

v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). As a reviewing court, we

must defer to the trier of fact on the resolution of conflicting testimony, the weight

to be given the evidence, and the reasonable inferences drawn from the testimony.

Jackson, 443 U.S. at 318-19. A person commits murder if he commits or attempts

to commit a felony, other than manslaughter, and in the course of and in

furtherance of the commission or attempt, he commits or attempts to commit an act

                                           17
clearly dangerous to human life that causes the death of an individual. Tex. Penal

Code Ann. § 19.02(b)(3) (West 2011). Nugent argues that the evidence showed he

was not the only adult to have access to his daughter in the twelve hours prior to

Brook’s admission to the hospital. He also asserts that surgery on Brook was an

intervening cause that resulted in her death.

      Medical professionals in this case testified that none of the explanations

posed by Nugent and Sellers were consistent with Brook’s injuries. The medical

professionals stated that Brook suffered a blunt-force injury to her head. They

testified that Brook would have been symptomatic immediately or “very soon”

after suffering the blunt force trauma to her head. Nugent reported Brook’s

symptoms to Sellers while Brook was in his care. At one point, he admitted to

causing the bruise on Brook’s head but claimed it was an accident. Jonathan

testified he saw Nugent hurting Brook that night after Sellers left for work. Nugent

admitted he lied in all the statements he gave in the case, and many of his

statements were admitted into evidence. He admitted he lied when he told law

enforcement that Sellers had confessed to throwing Brook against the wall.

Although Haden-Pinneri explained that Brook had undergone surgery weeks

before her death, Haden-Pinneri stated that the surgery was not a contributing

factor in Brook’s death. No other evidence suggested that the surgery was an

                                          18
intervening cause that contributed to her death. A fact finder could rationally find

beyond a reasonable doubt that appellant murdered Brook. The evidence is

sufficient to support the conviction. Issue two is overruled.

      The trial court’s judgment is affirmed.

      AFFIRMED.


                                           ________________________________
                                                    DAVID GAULTNEY
                                                          Justice

Submitted on June 18, 2013
Opinion Delivered September 4, 2013
Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.




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