AFFIRMED as MODIFIED and Opinion Filed December 14, 2018




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01052-CR

                         ANTHONY TROY CHIPLIN JR., Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 283rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1700211-T

                              MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Whitehill
       Appellant was charged with knowingly or intentionally causing injury to a child by

omission, and a jury convicted him of the lesser-included offense of recklessly causing serious

bodily injury by omission. Although the jury assessed punishment at ten years imprisonment and

a $10,000 fine, they recommended that the sentence be suspended and appellant placed on

community supervision. The trial court placed appellant on community supervision for ten years,

assessed a $10,000 fine, and ordered that appellant serve 180 days in jail as a condition of his

community supervision.

       Appellant argues the evidence is insufficient to support his conviction because it does not

establish that (i) he had a duty to act, (ii) causation between his conduct and the harm, and (iii) he
acted recklessly. Appellant also argues that the judgement should be reformed to reflect the

offense for which he was convicted and the related penal code provision.

          As discussed below, we conclude the evidence is sufficient to support appellant’s

conviction. We modify the judgment to reflect that appellant was convicted of recklessly causing

bodily injury to a child by omission under TEX. PENAL CODE §22.04(e), and as modified, affirm

the trial court’s judgment.

                                          I. BACKGROUND

          Appellant and Jessica Richardson had a romantic relationship. Appellant began spending

two to three nights a week at Richardson’s apartment, and was there for ten days straight the week

the child was injured.

          Appellant began physically disciplining Richardson’s children, including the four-year-old

complainant, J.R. Richardson said she asked appellant to stop, but he did not do so.

          On Wednesday July 9, 2014, Richardson heard appellant disciplining J.R. and heard J.R.

crying. J.R. stopped crying after about thirty minutes, and when Richardson went into the

bedroom, J.R. “was laying on the floor unconscious.” Appellant told Richardson not to call 911

and took her phone away. Initially, Richardson and appellant said that J.R. suffered a football

injury.

          Richardson retrieved her phone on Friday and called 911. Doctors at the hospital found

that J.R. had liver and kidney injuries, a broken rib, and bleeding inside his brain. He also had

extensive bruising to his right forehead, right eye, and knees, and he had burns on his buttocks.

          Appellant was charged with intentional or knowing injury to a child by omission.

Richardson pled guilty to injury by a child by omission, and pursuant to a plea bargain, agreed to

testify in the State’s case against appellant.




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       A jury found appellant guilty of the lesser-included offense of recklessly causing serious

bodily injury to a child by omission and assessed punishment at ten years imprisonment and a

$10,000 fine, but recommended that the sentence be suspended and appellant placed on community

supervision. The trial court placed appellant on community supervision for ten years, assessed a

$10,000 fine, and ordered that appellant serve 180 days in jail as a condition of his community

supervision. Appellant timely appealed.

                                            II. ANALYSIS

A.     First, Second, and Third Issues: Is the evidence sufficient to support the conviction?

       Appellant’s first three issues argue that the evidence is insufficient to support his conviction

because it does not establish (i) he had a duty to act, (ii) causation between his conduct and the

harm, and (iii) that he acted recklessly.

       As discussed below, viewing the evidence in a light most favorable to the verdict, we

conclude that a rational jury could have found all of the essential elements to support appellant’s

conviction for recklessly causing serious bodily injury by omission.

       1.      Standard of Review and Applicable Law

       We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

       This standard gives full play to the fact finder’s responsibility to resolve testimonial

conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.

Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the fact finder is

the sole judge of the evidence’s weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04;

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).


                                                –3–
       Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the factfinder’s. See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine

whether the necessary inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must

presume that the factfinder resolved any conflicting inferences in the verdict’s favor and defer to

that resolution. Id. at 448–49. The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170;

Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

       The penal code provides that injury to a child is “intentionally, knowingly, or recklessly,

by omission, causing serious bodily injury to a person fourteen years of age or younger. TEX.

PENAL CODE § 22.04(a)(1), (c) (1). “Serious bodily injury” means “bodily injury that creates a

substantial risk of death or that causes death, serious disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” TEX. PENAL CODE § 1.07(a)(46).

“Omission” means failure to act. Id. 1.07(a)(34).

       An omission causing serious bodily injury is an offense under §22.04 if: (i) the actor has a

legal or statutory duty to act, or (ii) the actor has assumed care, custody, or control of a child,

elderly individual, or disabled individual. Id. §22.04(b). An actor has assumed care, custody, or

control of a child if he has by act, words, or course of conduct acted so as to cause a reasonable

person to conclude that he has accepted responsibility for protection, food, shelter, and medical

care of a child. TEX. PENAL CODE § 22.04 (d). Thus, an omission that causes serious bodily injury

to a child is conduct constituting an offense if the actor has assumed care, custody, or control of a




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child. Id. §22.04(b)(2). On the other hand, a parent has a statutory duty to care for, control, protect,

and provide medical care for a child. TEX. FAM. CODE § 151.001(a)(2), (3).

       2.      Analysis

               a.      Duty

       Here, the jury was charged on the law of the parties. A person is a criminally responsible

party to an offense “if the offense is committed by his own conduct, by the conduct for another for

which he is criminally responsible, or by both.” TEX. PENAL CODE § 7.01.

       A person is criminally responsible for the conduct of another if, acting “with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense.” TEX. PENAL CODE § 7.02.

        Evidence is sufficient to sustain a conviction under the law of the parties if it shows the

defendant was physically present at the commission of the offense and encouraged the commission

of the offense either by words or other agreement. See Ransom v. State, 920 S.W.2d 288, 302

(Tex. Crim. App. 1994). Thus, the jury in this case could have found appellant guilty if they found

(i) he assumed care, custody, and control of J.R. and recklessly caused serious bodily injury by

omission, or (ii) committed the offense as a party with Richardson.

       Appellant argues that the language in the indictment and the jury charge merely alleged

that he had a statutory parental duty to act because the language said that he “had a legal and

statutory duty to act in behalf of [J.R.] in the [he] had assumed care, custody, and control of [J.R.].

       But we measure the sufficiency of the evidence of the challenged elements under a

hypothetically correct jury charge applicable to the case. See Malik v. State, 953 S.W.2d 234,240

(Tex. Crim. App. 1997). Under such a charge, the jury could have found appellant guilty if they

found that (i) he had a legal or statutory duty to act, (ii) he had assumed care, custody, and control




                                                 –5–
of J.R., or (iii) he was criminally responsible under the law of the parties. See TEX. PENAL CODE

§§ 22.04(b), 7.01.

       It is undisputed that appellant did not owe the statutory duty of a parent. Therefore, we

consider only whether he had a duty because he assumed care, custody, or control of the child or

was criminally responsible as a party.

       The evidence showed that appellant spent two to three nights a week with Richardson and

brought his seven-year-old daughter to her apartment every other weekend. Appellant did not have

a home of his own. He was at Richardson’s apartment every night from July 1, 2014 until July 11,

2014 (the week J.R. was injured).

       Appellant and Richardson were not working and spent a great deal of time together. In

addition, appellant took Richardson and her children (including J.R.) to a Dallas Mavericks game,

a Texas Rangers game, and “trade days.” Appellant began disciplining J.R. by spanking him on

the buttocks with a belt or on his legs with his hands. Sometimes he would hit J.R. in the chest or

make him hold his hands in the air. On two occasions, appellant hit J.R. on his head or back with

a “little” baseball bat, which Richardson said could have been playing rather than punishment.

       Appellant would sometimes turn the water on in the bathtub and lay J.R.’s clothes out. He

also helped Richardson try to teach J.R. his ABCs, colors, and numbers. According to Richardson,

appellant was a “responsible parent,” although she did not always agree with his disciplinary

measures.

       On the day Richardson heard appellant disciplining J.R. in the bedroom, J.R. was crying.

When Richardson checked on him thirty minutes later, J.R. was “laying on the floor unconscious,”

gazing off to the left, with his eyes “rolling in the back of his head.” J.R. had a “new mark on his

head.” Appellant was standing over J.R., and when Richardson asked what happened, appellant

said he did not do anything to J.R.

                                                –6–
       Appellant carried J.R. to the living room couch. J.R. was not making any sound or moving,

other than a few movements of his left hand, and began urinating on himself. Appellant told

Richardson that he did not want to get in trouble and that he would blame her for J.R.’s condition

if she called the police. Richardson did not call for help because appellant took her phone. Instead,

Richardson and appellant administered Tylenol and Pediasure to J.R. with a syringe. Appellant

had to use a “nose sucker” to remove excess liquid because J.R. could not swallow consistently.

       Appellant stayed with J.R. in the apartment that evening while Richardson went out to get

food and diapers for J.R. Appellant and Richardson stayed on the couch with J.R. all night, and

remained at the apartment all day Thursday. On Friday morning, Richardson retrieved her cell

phone from appellant’s pants pocket, and after charging it for about 3 hours, called 911. Appellant

was upset that she had done so, and told Richardson to say that J.R. got hurt playing football.

       Viewing this evidence in a light most favorable to the verdict, a rational jury could conclude

that appellant assumed care, custody, or control over J.R. Likewise, a rational jury could also have

found that appellant committed the offense as a party.

       Appellant insists that he has no party responsibility because he had no duty to prevent

Richardson from committing the offense. See TEX. PENAL CODE § 7.02(a)(3). This argument,

however, is misplaced.

       The penal code provides three alternate ways that a person can be criminally responsible

for another’s actions. Id. § 7.02 (a). And while the failure to prevent someone from committing

an offense is one of the alternatives, a person may also be criminally responsible if, acting with

the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids,

or attempts to aid in the commission of the offense. Id. at § 7.02(a)(2).

       It is undisputed that Richardson had a statutory duty to care for, control, protect, and

provide medical care for J.R. Appellant was physically present when J.R. was injured. He helped

                                                 –7–
Richardson administer medication. He told Richardson not to call the police and later told her to

say that J.R. was injured playing football. Appellant’s presence and actions demonstrate that he

acted with the intent to promote or assist the commission of the offense, and therefore, the jury

rationally could conclude that he was criminally responsible as a party. See id. We resolve

appellant’s first issue against him.

               b.      Causation

       Appellant argues that the evidence is insufficient to support his conviction because there is

no evidence that the delay in seeking medical treatment aggravated J.R.’s injury. We disagree.

       Under the penal code, “a person is criminally responsible if the result would 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.”

TEX. PENAL CODE § 6.04(a). The existence of a causal connection is determined by the jury. See

Fountain v. State, 401 S.W.3d 344, 358–60 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

       Here, the State was required to prove more than appellant (individually or collectively with

Richardson) failed to provide medical treatment for J.R.’s serious bodily injury. See Dusek v.

State, 978 S.W.2d 129, 133 (Tex. App.—Austin 1998, pet. ref’d); Peyton v. State, 106 S.W.3d

326, 327–28 (Tex. App.—Fort Worth 2003, pet ref’d). Instead, the State was required to prove

that J.R. suffered serious bodily injury because appellant (individually or collectively with

Richardson) failed to provide him with medical treatment. See Dusek, 978 S.W.2d at 133; Peyton,

106 S.W.3d at 329 (emphasis added).

       Appellant relies on Dusek to argue that the State failed to prove that the delay in seeking

treatment aggravated J.R.’s injuries. In that case, the Austin Court of Appeals reversed a

conviction for failure to obtain medical care for a young child. Dusek, 978 S.W.2d at 133-37. The

complainant’s mother took her son to the emergency room after her fiancé broke the child’s leg.


                                                 –8–
Id. at 131-33. The doctor determined that the child had multiple injuries, including a broken leg.

Id at 131. The mother was convicted on multiple injury to a child offenses, including the failure

to obtain medical care for the broken leg. Id. at 132.

          To convict on that offense, the jury had to find beyond a reasonable doubt that the boy

suffered serious bodily injury to his leg because his mother did not provide medical care. Id. at

133. The jury convicted the mother. Id. at 132.

          But, on appeal, the Austin court concluded that there was legally insufficient evidence that

the denial of medical care caused a serious bodily injury because there was no evidence that (i) the

mother failed to obtain medical treatment, (ii) any omission on her part aggravated the injury, (iii)

the leg had been broken for an unusual period of time, (iv) treatment had been delayed, or (v)

recovery was in any way hindered by a delay in receiving medical care. Id. at 133.

          Here, by contrast, there was evidence of delayed treatment for an unusual time period when

appellant and Richardson remained in the apartment with J.R. for nearly two days after he became

non-responsive.

          There was also evidence that the delay in seeking medical treatment aggravated J.R.’s

injury.    Dr. Megan Street, the emergency room treating physician, testified that J.R. was

unresponsive when he arrived and scored four on the Glasgow Coma Scale, which was “next to

the worst you can get.” He had bleeding inside his left ear and blood beside his left eardrum,

which indicated he might have bleeding inside his brain. Dr. Street said J.R. should have been

taken to the hospital when he stopped eating, drinking, and talking, and if the blood had been

removed from his brain earlier, he would not have suffered an ischemic injury to his brain from

oxygen deprivation due to the pressure of the bleeding in his brain.




                                                  –9–
          Dr. Kristen Reeder, a physician who treated J.R. and assisted Dr. Mathew Cox at the

REACH clinic,1 testified about Dr. Cox’s conclusion that J.R.’s brain injury was made worse by a

considerable delay in seeking medical care. Reeder opined that a person without medical training

could have recognized that J.R. needed to see a doctor.

          Dr. Dale Swift, a neurosurgeon, placed an intracranial pressure monitor in J.R.’s skull to

monitor the pressure caused by the swelling in J.R.’s brain. The left side of J.R.’s brain was “very,

very swollen” and J.R. was “quite” close to death, so surgery was required. Swift explained that

the delay in seeking medical treatment was significant because “things were getting worse without

necessarily having a new injury, but by not getting attention.” He also said, “I don’t think [J.R.]

would have made it without, you know, coming to medical attention.” According to Dr. Swift,

J.R.’s injuries were “completely life altering.”

          Appellant challenges Dr. Reeder’s and Dr. Swift’s testimony concerning the harm caused

by delay as speculative because it failed to establish “identifiable harm.” We disagree. The

doctor’s testimony that J.R.’s brain injury was made worse by delayed treatment is sufficient to

establish causation under the penal code. See TEX. PENAL CODE ANN. § 6.04(a).

          Thus, viewing the evidence in a light most favorable to the verdict, we conclude that the

jury rationally could have found that appellant’s delay in seeking medical care for J.R. aggravated

J.R.’s injuries. Alternatively, the jury also could have found that Richardson’s delay in seeking

medical care caused J.R. serious bodily injury and appellant promoted or assisted in the

commission of the offense as a party. We thus resolve appellant’s second issue against him.

                      c.         Mental State

          The jury found that appellant committed the offense recklessly. Appellant argues that since

injury to a child by omission is a “result of conduct” offense, the State was required to prove his


   1
       ‘REACH’ is an acronym for referral and evaluation of at risk children.

                                                                    –10–
mental state as it related to the result of his conduct—that is, that he acted with the requisite mental

state so as to affect the result. See Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990).

While we agree with appellant’s general statement of the law, we disagree that the evidence is

insufficient to establish this element of the offense.2

           The State had to prove that appellant was reckless regarding the result of his conduct by

showing that appellant was aware of but consciously disregarded a substantial and unjustifiable

risk that the result would occur. See TEX. PENAL CODE § 6.039(c). “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.”

Id.; see also Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). “Mere lack of

foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the

consequences . . . do not suffice to constitute . . . criminal recklessness.” Id. Rather, “recklessness

requires the defendant to actually foresee the risk involved and consciously decide to ignore it.”

Id. A defendant’s culpable mental state is usually grounded upon inferences drawn from the

circumstances, and may be inferred from the acts, words, and conduct of the accused. See Lane v.

State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989).

           Appellant told the investigating detective that he saw the change in J.R., who was playing

on Monday and Tuesday, but lying on the couch unable to get up on Wednesday and Thursday.

Appellant said that he and Richardson discussed calling 911, but decided to wait and see if J.R.

got better. Dr. Reeder opined that a person without medical training would have realized that J.R.

needed treatment.




     2
       Appellant also argues that we must disregard Richardson’s accomplice testimony about his state of mind because it is not corroborated. See
TEX. CODE CRIM. PROC. ANN. 37.14. But appellant did not challenge the sufficiency of the evidence corroborating Richardson’s testimony; instead,
he challenged the sufficiency of the evidence to prove his mental state. Moreover, even without Richardson’s testimony, the evidence is sufficient.

                                                                     –11–
          Moreover, appellant’s actions suggest a conscious disregard for the risk to J.R. because he

was concerned for himself. When Richardson found him standing over J.R., he said he didn’t do

anything. Appellant tried to prevent Richardson from calling for help because he did not want to

get in trouble. And when she finally did so, appellant told Richardson to say that J.R. was injured

playing football.

          From this evidence, the jury rationally could conclude that appellant and Richardson acted

recklessly. We thus resolve appellant’s third issue against him.

B.        Fourth Issue: Should the judgment be reformed?

          Appellant argues that the judgement should be modified to reflect that appellant was

convicted of recklessly causing bodily injury to a child by omission under TEX. PENAL CODE

§22.04(e), and the State agrees.3 We are authorized to reform a judgment to make the record speak

the truth when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26, 27

(Tex. Crim. App. 1993).

          Here, the record reflects that appellant that appellant was convicted of recklessly causing

bodily injury to a child by omission, an offense under TEX. PENAL CODE §22.04(e). We therefore

sustain the State’s cross-point and modify the judgment accordingly.




     3
       The judgment currently states that appellant was convicted of “Injury Child Elderly SBI” and states that the offense was a “1st degree
felony.”

                                                                  –12–
                                      III. CONCLUSION

       We modify the judgment to reflect that that appellant was convicted of recklessly causing

bodily injury to a child by omission, an offense under TEX. PENAL CODE §22.04(e), and as

modified, affirm.




                                                /Bill Whitehill/
                                                BILL WHITEHILL
                                                JUSTICE


Do Not Publish
TEX. R. APP. P. 47
171052F.U05




                                             –13–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                      JUDGMENT

 ANTHONY TROY CHIPLIN JR.,                        On Appeal from the 283rd Judicial District
 Appellant                                        Court, Dallas County, Texas
                                                  Trial Court Cause No. F-1700211-T.
 No. 05-17-01052-CR       V.                      Opinion delivered by Justice Whitehill.
                                                  Justices Stoddart and Boatright
 THE STATE OF TEXAS, Appellee                     participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
      to show that appellant was convicted of recklessly causing bodily injury to a child
      by omission under TEX. PENAL CODE § 22.04(e).

As REFORMED, the judgment is AFFIRMED.


Judgment entered December 14, 2018.




                                           –14–
