                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00134-CR

MICHAEL DAVID FREDRICKSON,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                            From the 21st District Court
                              Burleson County, Texas
                               Trial Court No. 14,371


                           MEMORANDUM OPINION


       Michael David Fredrickson was convicted of injury to a child and sentenced to 20

years in prison. See TEX. PENAL CODE ANN. § 22.04 (West 2011). Because the evidence is

sufficient to support the culpable mental state for the offense, the trial court’s judgment

is affirmed.

BACKGROUND

       Fredrickson, his 13 month old child, A.F., A.F.’s three year old sibling, and the

children’s mother lived in two rooms of a hotel. After putting the children down for a
nap, Fredrickson awoke 30 minutes later to find A.F. face down in the bathtub. Law

enforcement officers and EMS responded to the hotel because A.F. was not breathing.

After trying to resuscitate A.F. at the scene, EMS transported A.F. to the hospital where

emergency room personnel were unsuccessful in reviving A.F.

ABATE FOR FINDINGS OF FACT AND CONCLUSIONS OF LAw

        Fredrickson first contends that we must abate this proceeding because the trial

court failed to prepare and file findings of fact and conclusions of law after a request by

Fredrickson following a partial denial of his two motions to suppress. The Court of

Criminal Appeals has held that a trial judge, upon the request of the losing party, must

make findings of fact and conclusions of law adequate to provide an appellate court a

basis for reviewing the ruling's correctness. State v. Mendoza, 365 S.W.3d 666, 670 (Tex.

Crim. App. 2012); State v. Cullen, 195 S.W.3d 696, 698-99 (Tex. Crim. App. 2006). We

abated this appeal for findings of fact and conclusions of law, which the trial court has

supplied, and gave Fredrickson time to file a supplemental brief raising any issue

regarding these findings and conclusions. To this date, he has not filed a supplemental

brief. Fredrickson’s first issue is dismissed as moot.

SUFFICIENCY OF THE EVIDENCE

        Fredrickson also contends the evidence is insufficient to support his conviction for

injury to a child by recklessly causing serious bodily injury to A.F. His specific complaint

is with the lack of evidence to support the culpable mental state of recklessness.


Fredrickson v. State                                                                  Page 2
        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). 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, 443 U.S. at 319. "Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well

established that the factfinder is entitled to judge the credibility of witnesses and can


Fredrickson v. State                                                                        Page 3
choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Under the Texas Penal Code, "[a] person commits an offense [of injury to a child]

if he ... intentionally, knowingly, or recklessly by omission, causes to a child ... serious

bodily injury...." TEX. PENAL CODE ANN. § 22.04(a)(1) (West 2011); Jefferson v. State, 189

S.W.3d 305, 312 (Tex. Crim. App. 2006). Injury to a child is a result-oriented offense

requiring a mental state that relates not to the specific conduct but to the result of that

conduct. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

        A person acts recklessly or is reckless with respect to the result of his conduct when

he is aware of but consciously disregards a substantial and unjustifiable risk that the

result will occur. Id. "The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the actor's standpoint." TEX. PENAL

CODE ANN. § 6.03(c) (West 2011). If the actor was aware of the risk he was creating, and

consciously disregarded that risk, however much he may have hoped that no harm

would result, he was acting recklessly. See Williams, 235 S.W.3d at 751; Young v. State, 358

S.W.3d 790, 802 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Direct evidence of the

required mental state is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.

2002). Instead, the required culpable mental state may be inferred from the surrounding

circumstances. Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984).


Fredrickson v. State                                                                    Page 4
        At the scene, Fredrickson contended that the injury to and resulting death of A.F.

was his fault. He told officers that he put A.F. and A.F.’s three year old sibling down to

take a nap. He sat them on a pallet in front of the T.V. while he went to the next room to

take a nap. A crib was available in the first room but was not used. Fredrickson said he

knew that the three year old child was capable of turning on the bathtub water and

covering the drain so that the tub would hold water. He also said that he knew A.F. was

capable of climbing into the bathtub. Fredrickson stated that he usually took the handles

off the faucets to prevent the three year old from turning on the water but that he forgot

this time.

        The officers also testified that the hotel rooms were a mess, with wires and clothes

everywhere and rotting food left out. They noticed pieces of oranges and peelings and

cigarettes all over the floor. When EMS workers tried to intubate A.F., they could not

because of chunks of oranges, some unpeeled, in his airway. They removed large

amounts of orange chunks and pieces twice before the tube could be placed in his airway.

During the autopsy, the medical examiner removed ten slices of miniature oranges from

A.F.’s stomach.

        The jury was charged with finding Fredrickson guilty of injury to a child if they

believed from the evidence that Fredrickson was reckless by omission by leaving A.F.

unattended or unsupervised after giving A.F. unpeeled fruit to eat or by leaving A.F. and

his sibling unattended or unsupervised and failing to remove the faucet handles from the


Fredrickson v. State                                                                  Page 5
bathtub. Reviewing the evidence in the light most favorable to the verdict, the jury could

have at least found that Fredrickson acted recklessly because he was aware of the risk he

was creating by leaving the children unsupervised and not taking faucet handles from

the bathtub and consciously disregarded that risk. Accordingly, the evidence is sufficient

to support the verdict and Fredrickson’s second issue is overruled.

CONCLUSION

        Having dismissed Fredrickson’s first issue as moot and overruled his second issue,

we affirm the trial court’s judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 26, 2015
Do not publish
[CR25]




Fredrickson v. State                                                                Page 6
