                                   NO. 07-09-00308-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   OCTOBER 12, 2010


                             RICHARD P. ESCH, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-412,999; HONORABLE JIM BOB DARNELL, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, Richard P. Esch, appeals his conviction by jury for the offense of

causing serious bodily injury to a child, 1 and jury-assessed punishment of fifty-five years

incarceration in the Institutional Division of the Texas Department of Criminal Justice

(ID-TDCJ). We will modify the judgment and affirm.


                                       Background


       In the early morning hours of March 7, 2005, personnel at University Medical

Center (UMC) in Lubbock, Texas, reported their suspicion that appellant’s daughter,

       1
           See TEX. PENAL CODE ANN. § 22.04 (a)(1), (e) (Vernon Supp. 2009).
Kylie, had been the victim of child abuse. According to members of the staff, Kylie had

suffered multiple injuries, including shaken baby syndrome.


         Appellant and Kylie’s mother, Stephanie Hersom, had three children together.

Kylie was the youngest of these children and was approximately two and a half months

old at the time that the suspected abuse was reported. At that time, appellant was the

primary caretaker of the children, so he was considered the primary suspect in the

abuse.


         On March 4, 2005, appellant watched the children while Hersom went to work.

During a break in her work day, Hersom called appellant to check on the children, and

appellant informed Hersom that Kylie had thrown up three or four times. Hersom called

appellant again during a later break, and appellant informed her that the children were

with Cathy and Crystal Timms so that appellant could go look for a job. The Timmses

watched the children on March 4 for approximately five hours. When Hersom returned

home from work, Kylie appeared to be well and in good spirits.


      On March 5, Hersom again had to work. She did not notice anything wrong with

Kylie before leaving for work. Hersom called appellant during a break and appellant told

her that Kylie did not eat much, but appellant did not seem concerned about this.

Hersom’s cousin, Lisa Murdock, contacted Hersom and offered to watch Kylie for a

portion of the day. Hersom was still at work when Murdock arrived to take Kylie. When

Murdock entered the home, she noticed that the two older children were covered in

baby oil and had been writing on each other with markers. Murdock found Kylie alone

in the master bedroom with her face covered by a blanket. Kylie was sucking on an

                                           2
empty bottle. Murdock described Kylie as unresponsive and, when Murdock picked

Kylie up, Kylie wimpered and moaned, which struck Murdock as odd. Murdock changed

Kylie’s diaper and noticed that Kylie had a new bruise on her chest. When she asked

appellant about the bruise, appellant told her that one of the older children had fallen on

Kylie. Over the course of the time that Murdock spent with Kylie, Murdock felt that Kylie

was just not acting like herself.        According to Murdock, Kylie was lethargic,

unresponsive, and appeared to be in pain.         Murdock called Hersom at work and

recommended that Kylie be taken to the emergency room. Hersom called appellant and

asked him to take Kylie to the emergency room, but appellant got upset and refused to

take Kylie.


       Hersom went straight home after she got off work.         Murdock still had Kylie.

Hersom again talked to appellant about taking Kylie to the emergency room. After

some argument, appellant agreed to pick Kylie up from Murdock and take her to the

emergency room. At the Levelland Hospital emergency room, Hersom informed the

staff of the symptoms that Murdock had described to her. Appellant added that Kylie

had been vomiting and had diarrhea.        The emergency room diagnosed Kylie with

gastroenteritis and dehydration and released her.


       The following morning, March 6, Hersom awoke to find appellant tending to Kylie.

Kylie was crying and Hersom witnessed appellant spank Kylie on the behind. Hersom

confronted appellant regarding the spanking, which angered appellant. Kylie looked

worse than she had the night before and cried throughout the morning. By the evening,

Kylie’s condition had deteriorated further. She had become very pale and laid in her

                                            3
crib lifelessly. Around 5:00 p.m., Hersom noticed that Kylie’s hands and feet began to

twitch and, at some point thereafter, Kylie’s face began to twitch as well. Appellant and

Hersom took the children to Hersom’s mother’s house as her mother was going to

watch the children that evening. Upon seeing Kylie’s condition, Hersom’s mother told

appellant and Hersom to take Kylie to the emergency room immediately.


       At the emergency room, Hersom and appellant again recounted Kylie’s

symptoms to the doctors. After examining Kylie, the doctors informed Hersom and

appellant that blood was found in Kylie’s spinal column and that she would have to be

“life-flighted” to UMC in Lubbock.


       As mentioned before, personnel at UMC suspected that Kylie had been abused,

so they contacted Children’s Protective Services (CPS).          CPS investigator, Jamie

Blount, went to the hospital to investigate the report. As part of the investigation, Blount

interviewed appellant. Blount described appellant as “curt and dismissive” during the

interview. Appellant admitted that he was Kylie’s primary caretaker on March 5 and 6.

Appellant told Blount that one of the older children had fallen on Kylie’s chest, and that

Kylie had not had much to eat or drink since that incident. Because appellant was

Kylie’s primary caregiver during the times that Kylie’s injuries were believed to have

occurred, Blount believed that appellant was the primary suspect in causing Kylie’s

injuries.


       Subsequently, the Wolfforth Police Department began a criminal investigation

into the injuries to Kylie.   Wolfforth Police Chief Rick Scott obtained background

information on the case from CPS and Kylie’s doctors. Appellant was interviewed by

                                             4
police on four different occasions and gave two written statements to the police. In one

of the interviews, about a week after the investigation began, appellant told police that

he had performed CPR on Kylie on March 4. According to appellant, Kylie appeared to

have asphyxiated on vomit necessitating appellant’s performance of CPR. However,

appellant did not call emergency services nor did he inform Hersom of his need to

perform CPR on Kylie on March 4. After an approximate year-long investigation into

Kylie’s injuries, Chief Scott determined that appellant likely caused Kylie’s injuries.


       Appellant was indicted for the offense of causing serious bodily injury to a child.

He was further alleged to have used a deadly weapon in the commission of the offense,

to-wit, his hands. Appellant pled not guilty and the case proceeded to trial. At the close

of evidence, the jury found appellant guilty of the indicted offense and made an

affirmative deadly weapon finding.       Following a hearing on punishment, the jury

sentenced appellant to incarceration in the ID-TDCJ for a period of fifty-five years and

assessed a $10,000 fine.        The trial court subsequently entered a Judgment of

Conviction by Jury that memorialized the jury’s verdicts, but that also assessed court

costs against appellant in an amount of $9,637.50. 2         It is from this judgment that

appellant appeals.


       By his appeal, appellant presents four issues. By his first two issues, appellant

challenges the factual sufficiency of the evidence used to establish his guilt, specifically

in reference to identity and causation. By his third issue, appellant contends that the

trial court abused its discretion by excluding expert witness testimony offered by

       2
        The Judgment further delineates that $373.00 of these costs are for court costs,
while the remaining $9,264.50 are for court-appointed attorney’s fees.
                                              5
appellant.   By his fourth issue, appellant contends that the evidence was legally

insufficient to support the trial court’s assessment of court-appointed attorney’s fees

against appellant.


                                    Factual Sufficiency


       By his first two issues, appellant challenges the factual sufficiency of the

evidence to support his conviction for the offense of injury to a child.         Specifically,

appellant challenges the sufficiency of the evidence to establish that he was the person

that committed the crime, and that the serious bodily injuries sustained by Kylie were

the result of a crime.


Standard of Review


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

In performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because

we may disagree with the verdict. See id. at 417. As an appellate court, we are not

justified in ordering a new trial unless there is some objective basis in the record

demonstrating that either the evidence supporting the jury’s verdict is so weak as to be

clearly wrong or manifestly unjust or the great weight and preponderance of the

evidence contradicts the jury’s verdict.     See Laster v. State, 275 S.W.3d 512, 518


                                              6
(Tex.Crim.App. 2009); Watson, 204 S.W.3d at 417. Additionally, an appellate opinion

addressing factual sufficiency must include a discussion of the most important evidence

that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603

(Tex.Crim.App. 2003). However, when a defendant’s version of the facts conflicts with

other evidence, it is the jury’s prerogative to judge the credibility of the evidence and to

ascribe the weight to be given to the evidence. Jones v. State, 944 S.W.2d 642, 647-48

(Tex.Crim.App. 1996).


Identity


       By his first issue, appellant contends that the evidence that he was the person

that caused Kylie’s injuries was factually insufficient. Appellant’s contention is premised

on the emergency room diagnosis of March 5, which appellant contends is inconsistent

with Kylie having sustained shaken baby syndrome injuries on or before March 5. The

State responds that the evidence is factually sufficient to establish that appellant caused

Kylie’s injuries and, further, appellant did not raise this alternative hypothesis at any

time during trial.


       In the present case, appellant contends that, if the evidence establishes that

Kylie did not sustain the injuries for which he is charged until after March 5, then the

evidence is too weak to establish that appellant, rather than Hersom, caused Kylie’s

injuries. Appellant cites the emergency room report of March 5 as providing that Kylie

“looks well, alert, and in no distress.” Combined with expert medical opinion testimony

that the onset of symptoms in a shaken baby syndrome case appear almost

immediately and rapidly deteriorate, appellant’s main argument presented by this issue

                                             7
is that it was more probable that Kylie’s injuries occurred on March 6, when both

appellant and Hersom spent the day with the child.


       None of the medical experts could testify as to the specific time that Kylie

sustained the injuries for which appellant was tried. Further, there was no eyewitness of

the incident causing Kylie’s injuries.     Therefore, evidence establishing that anyone

caused Kylie’s injuries will be circumstantial. Evidence was presented that Kylie had

sustained injuries at varying periods of time, and that at least one of these periods was

when appellant had nearly exclusive care of the child. Further, the jury heard evidence

that appellant was reluctant to take Kylie for medical care, even after Kylie’s condition

began to rapidly deteriorate.     In addition, Hersom testified that appellant’s attitude

toward Kylie had become one of anger or frustration and that, in the morning of March

6, she saw appellant spank Kylie for keeping appellant awake all night. Clearly, the

evidence established that appellant had access to Kylie throughout the time that Kylie

may have sustained these injuries.


       However, the jury also heard evidence that Hersom had access to the child

during the evening and night hours of March 5 and throughout the day of March 6.

Evidence was presented that Hersom exhibited a somewhat cavalier attitude in the way

that she cared for her children. In addition, while Hersom suffered from a disability to

her legs, evidence was presented to the jury that would have allowed the jury to infer

that Hersom had the physical ability to have inflicted the injuries to Kylie.


       Appellant’s main argument under his first issue is nothing more than a

reasonable alternative hypothesis of how Kylie sustained the shaken baby syndrome
                                              8
injuries. While such a reasonable hypothesis may be relevant to our review of the

factual sufficiency of the evidence, it is not determinative.    See Wilson v. State, 7

S.W.3d 136, 141 (Tex.Crim.App. 1999). According to appellant’s hypothesis, Kylie’s

injuries could have been caused by Hersom, rather than appellant, because Hersom

had the opportunity to commit the offense. While it is possible that Kylie was not injured

until a time when Hersom had access to, and, therefore, opportunity to have inflicted the

injuries on Kylie, appellant’s hypothetical version of the facts conflicts with other

evidence that presents a version of the facts in which appellant intentionally or

knowingly caused Kylie’s serious bodily injury. By definition, evidence that would allow

a jury to rationally conclude that appellant intentionally or knowingly caused Kylie

serious bodily injury beyond a reasonable doubt is factually sufficient evidence,

regardless of the existence of evidence that would support the possibility that Kylie’s

injuries might have been caused by another person.           Further, when an appellant

presents a factual sufficiency challenge based on a version of the facts that conflicts

with other evidence, it is the jury’s prerogative to judge the credibility of the evidence

and to ascribe the weight to be given to the evidence, Jones, 944 S.W.2d at 647-48,

and we, as a reviewing court, are not at liberty to substitute our judgment for that of the

jury. See Watson, 204 S.W.3d at 417.


      Consequently, we overrule appellant’s first issue.


Causation


       By his second issue, appellant contends that the evidence that Kylie’s injuries

were the result of shaken baby syndrome is factually insufficient. Appellant’s argument

                                            9
is premised on the Levelland Hospital’s March 6 diagnosis of Kylie possibly having

meningitis. The State responds that the great weight and preponderance of the medical

evidence in the case supports the conclusion that Kylie’s symptoms were the result of

shaken baby syndrome.


      Appellant points to the diagnosis of possible meningitis contained in the above-

referenced medical record and then presents a number of symptoms of meningitis that

are consistent with the symptoms exhibited by Kylie.           However, none of these

symptoms of meningitis were presented to the jury in any manner. Rather, appellant

cites sources outside of the record to support his argument. In fact, this theory of

causation was evidenced to the jury, in total, by nothing more than the diagnosis of

possible meningitis found in this one medical record. Even if we were to assume that

the jury should have seized upon this one piece of evidence to the exclusion of the

other evidence of causation, the medical record cited by appellant diagnoses Kylie with

either meningitis or trauma. Further, all of the expert medical opinion testimony offered

at trial was consistent that Kylie’s injuries were the result of shaken baby syndrome.


      We overrule appellant’s second issue.


                             Exclusion of Expert Testimony


      By his third issue, appellant contends that the trial court erred in excluding the

expert testimony of Wendy Thal. According to appellant, Thal’s testimony was relevant

to implicate Hersom in causing Kylie’s injuries and, thus, would have decreased the

likelihood that appellant committed the crime. The State responds that appellant failed

to timely designate Thal as an expert witness, as had been ordered by the trial court,
                                            10
and, even if it was error for the trial court to have excluded Thal as an expert, the error

was harmless because Thal’s testimony was cumulative.


       A trial court’s decision to admit or exclude evidence, including determining

whether a witness is qualified as an expert, is reviewed under an abuse of discretion

standard.    See TEX. R. EVID. 104(a); Penry v. State, 903 S.W.2d 715, 762

(Tex.Crim.App. 1995). The trial court abuses its discretion if its ruling is so clearly

wrong as to be outside the zone of reasonable disagreement. See McDonald v. State,

179 S.W.3d 571, 576 (Tex.Crim.App. 2005).          Error in ruling on the admissibility of

evidence is generally non-constitutional error, see Walters v. State, 247 S.W.3d 204,

219 (Tex.Crim.App. 2007), and, as such, reversal is justified only if the error affected

appellant’s substantial rights. See TEX. R. APP. P. 44.2(b).


       Appellant offered Thal as an expert witness to testify regarding her evaluation of

Hersom and Kylie’s interaction and bonding as of May of 2005. Thal, who performed

this evaluation as a nurse consultant for CPS, testified, by way of a bill of exception, that

Kylie was not bonded to Hersom and that Kylie appeared to be uncomfortable in her

mother’s presence. Thal further testified that she had evaluated appellant at the time

that she evaluated Hersom, but that the bonding assessment report she had prepared

relating to appellant had been lost.


       While it appears that the trial court excluded Thal as an expert on the basis of

appellant’s failure to disclose her as an expert witness in his pre-trial disclosures, we




                                             11
believe that the record establishes that the trial court’s ruling was firmly within the zone

of reasonable disagreement. 3


       First, nothing in the bill of exception presenting Thal’s testimony establishes that

she would be qualified to testify as an expert on the subject matter upon which she was

to testify. See Penry, 903 S.W.2d at 762. According to Thal’s testimony, at the time of

trial, she was an assistant professor at Texas Tech University and she taught both

undergraduate classes and classes in the nurse practitioner program. In 2005, Thal

was working with West Texas A & M University and as a nurse consultant with CPS.

While Thal testified that she performed bonding assessments as part of her duties as a

CPS consultant, nothing in her testimony established how she would be expertly

qualified to perform such an assessment. Thal did not testify regarding her education,

did not quantify her experience working with CPS, and did not identify any additional

training that would reasonably qualify her to be an expert in assessing the bond

between a mother and an infant child.           Thus, because appellant wholly failed to

establish that Thal was an expert on the subject matter upon which she was called to

testify, we conclude that the trial court did not abuse its discretion in excluding Thal’s

testimony as an expert. 4


       Further, even if the evidence should have been admitted as expert testimony, its

exclusion was not harmful to appellant. The lack of a bond between Hersom and Kylie

       3
         For purposes of our analysis of this issue, we will assume that the trial court’s
exclusion of Thal based on appellant’s failure to disclose her as an expert witness was
erroneous. However, we wish to emphasize that this assumption is not an expression
of our opinion on that matter.
       4
           Appellant did not offer Thal’s testimony as a fact witness.
                                               12
would be expected when four-month-old Kylie had been separated from her mother for

the previous two months. Additionally, this evidence was cumulative of other evidence

establishing that Hersom was not an ideal mother to Kylie or to her other children.

Finally, because Thal’s bonding assessment relating to appellant was not available,

Thal’s assessment of Hersom was significantly lessened in terms of exculpating

appellant since the jury was unable to compare the assessments and because nothing

in Thal’s assessment of Hersom in any way indicated that Hersom exhibited violent

tendencies toward Kylie.


         Because the trial court did not abuse its discretion in excluding Thal as an expert

on the basis of her lack of qualifications, and because the exclusion of Thal’s expert

testimony did not affect a substantial right of appellant, we overrule appellant’s third

issue.


                      Assessment of Court-Appointed Attorney’s Fees


         By his fourth and final issue, appellant contends that the evidence was legally

insufficient to support the trial court’s assessment of court-appointed attorney’s fees.

The State concedes error under this issue. Both parties contend that the error may be

remedied by this Court striking the assessment of attorney’s fees from the trial court’s

judgment.


         Article 26.05(g) of the Texas Code of Criminal Procedure provides, “[i]f the court

determines that a defendant has financial resources that enable him to offset in part or

in whole the costs of the legal services provided, . . . the court shall order the defendant

to pay during the pendency of the charges or, if convicted, as court costs the amount
                                             13
that it finds the defendant is able to pay.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g)

(Vernon Supp. 2009).       The key factors in determining the propriety of ordering

reimbursement of fees are the defendant’s financial resources and ability to pay. Mayer

v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010). “Without evidence to demonstrate

appellant’s financial resources to offset the costs of the legal services, the trial court

erred in ordering reimbursement of appointed attorney fees.”         Mayer v. State, 274

S.W.3d 898, 901 (Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d at 558.


        Here, the record includes no evidence that appellant had the ability to pay

attorney’s fees at the time that the trial court assessed them. As such, we conclude that

the evidence supporting this portion of the judgment is legally insufficient and modify the

judgment to remove the assessment of $9,264.50 for attorney’s fees. See id. at 902.


        We sustain appellant’s fourth issue and will modify the judgment to delete the

trial court’s assessment of attorney’s fees.


                                        Conclusion


        For the foregoing reasons, we modify the judgment of the trial court to delete the

assessment of $9,264.50 for attorney’s fees. As modified, we affirm the judgment of the

trial court.


                                                        Mackey K. Hancock
                                                             Justice



Do not publish.


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