                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-021-CR


BRANDON LYNN HAMPTON                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      Appellant Brandon Lynn Hampton appeals his conviction for the murder

of his seventeen-month-old son, Jody. Jody was injured while in Hampton’s

care when Jody’s mother was at work. Jody died of his injuries two days later.

In four points, Hampton argues that the trial court erred by denying his request




      1
           See Tex. R. App. P. 47.4.
that a lesser included charge of deadly conduct be included in the jury charge,

that the evidence is legally and factually insufficient, and that the trial court

erred by admitting the testimony of two experts.          After this case was

submitted, Hampton filed a motion to withdraw his first and fourth points. We

granted the motion and therefore will address only his second and third points

dealing with the sufficiency of the evidence. We will affirm.

                           II. F ACTUAL B ACKGROUND2

                             A. Before “The Fall”

      Hampton, Jody, and Jody’s mother Melissa Mena lived together at the

Rosemeade Apartments. Brian Adkins lived in a nearby apartment on the same

floor. Adkins testified that on the morning of May 25, 2007, his apartment

door was open, and he heard yelling followed by two back-to-back thuds. He

said that the two thuds came from the second floor and sounded like something

hitting the wall or the floor twice; the noise did not sound like a child falling

down stairs. Adkins walked to his apartment door and did not see anything

outside. He said that if Jody had fallen down the stairs, he would have seen

Jody because from his doorway, he had “no choice but to see the stairwell.”




      2
       Because the evidence presented by the State                 is   primarily
circumstantial, we provide a detailed recitation of the facts.

                                       2
                                 B. “The Fall”

       Hampton told the police that after Melissa left for work on the morning

of May 25, he decided to take Jody to McDonald’s for breakfast. He said that

he was holding Jody’s hand when they exited the apartment but said that he

had to let go of Jody’s hand to lock the door. As he was locking the door, he

heard “plunk, plunk” and saw Jody on the stairs. He could not remember if it

was two, three, or four steps that Jody fell down.

       Melissa testified that Jody was fine when she left him with Hampton on

May 25 and went to work. After she arrived at work, she received a call from

Hampton, saying that Jody was not breathing. She rushed home, and when

she arrived about ten minutes later, Jody was not conscious, his eyes were

closed, and his body was stiff. Hampton told her that Jody had fallen down the

stairs. Melissa told Hampton to breathe into Jody’s mouth while she called

911.

             C. Testimony from Those at the Apartment Complex

       Fady Abdo, Hampton’s neighbor, testified that on the day in question, he

saw Hampton come running out of his apartment, crying out for help. Hampton

and Melissa asked Abdo to perform CPR on their baby, but Abdo told them that

the baby needed a doctor because he was breathing but his eyes were not

responding. Hampton was nervous and angry that the ambulance did not arrive

                                       3
immediately. Hampton told Abdo that Jody had fallen down the stairs and said,

“I’m in trouble.”

      Michael Bender, who was in charge of the maintenance at the Rosemeade

Apartments, testified that he saw an emergency squad in front of Hampton’s

apartment building on the day in question. He heard a neighbor crying, “That

baby, that baby, that poor baby is hurt.” Bender saw Hampton come out of his

apartment and walk down the stairs, and Bender heard Hampton scream, “Shit,

shit,” as he clenched his fists and exhibited a mad facial expression.

      Donna Jones, who lived in the apartment across from Hampton and used

to babysit Jody, remembered the ambulance coming on May 25 and hearing

Hampton tell the paramedics, “Hurry up, he’s not breathing.” She saw Jody in

the middle of the floor with his eyes and mouth half open; his chest was up like

he was taking a deep breath, but his stomach was flat. The paramedics asked

her, Hampton, and Melissa to leave, and Hampton stood over Melissa “beating

like this” 3 and saying, “You is the one who caused this; you is the one who

caused this.” Jones said that the paramedics left with Jody on a stretcher.




      3
           From the record, we cannot tell what motion Jones was describing.

                                       4
                      D. The Paramedics’ Observations

      William Bostwick, a firefighter and paramedic with the City of Dallas

Fire/Rescue Department, testified that he arrived at the Rosemeade Apartments

on May 25 after receiving a call about an unconscious person. He said that

Hampton was hollering from the second-floor balcony that the patient had

stopped breathing and was yelling, “Save my son, save my son.” Hampton

scooped up Jody from the couch and brought him to the paramedics, frantically

asking them to hurry and get Jody to the hospital. Bostwick took Jody and laid

him on the living room floor. Hampton said that Jody had fallen down a flight

of concrete stairs. Bostwick looked through Jody’s scalp and did not see any

abrasions but noted that he was unconscious and thought that Jody’s injuries

must have been caused by trauma. Before placing a cervical collar on Jody’s

neck, Bostwick noticed that there was a scratch on the left side of Jody’s neck

that was consistent with a fingernail scratch.     He could not say how the

scratch occurred, nor could he say that Jody’s injuries were not the result of

an accident; the Dallas Fire Department described the injuries as unintentional.

      Spencer Smith, a flight paramedic with Care Flite, testified that he took

Jody to Children’s Medical Center in Dallas via helicopter. He noted that Jody’s

airways were partially obstructed, that he had a decreased level of




                                       5
consciousness, and that he was “posturing,” which was an indication of a head

injury.

                               E. At the Hospital

      Dr. Matthew Cox, who is an assistant professor of pediatrics at UT

Southwestern Medical School and is the medical director of the child abuse

evaluation team at Children’s Medical Center, testified that he has been doing

child abuse evaluations for six and a half years and sees 250–300 cases a year.

When Jody presented to the emergency department at Children’s Medical

Center on May 25, Dr. Cox was contacted to help with the evaluation due to

the severity of Jody’s head injury. 4       Jody presented with a severe, life-

threatening head injury and associated retinal hemorrhages, and the initial

history of falling down the stairs was not of a severity to adequately explain the

extent of his injuries.

      When Dr. Cox went to the emergency room, he saw that Jody was on life

support, that he was not responsive, and that he was being prepped for brain

surgery. He quickly looked at Jody and noted that he had an abrasion and

some surrounding bruising on the left side of his forehead, that he had a red




      4
       Dr. Cox testified that it is hospital protocol for the emergency
department to contact the child abuse evaluation team when there are concerns
about a child’s injury.

                                        6
abrasion on the side of his neck, 5 and that there was not any significant

swelling or injury to the scalp tissue.     Dr. Cox also saw that Jody had a

patterned scar on his left buttock, a loop mark on his “left butt cheek,” some

linear scars on his other “butt cheek,” and straight line scars on the outer part

of his left leg. Jody had no broken bones and no signs of abdominal injuries.

      Dr. Cox then went to the emergency room’s waiting room to attempt to

get a history from Jody’s parents. When Dr. Cox asked Jody’s parents for a

history, they told him “no” and that they had already talked to the doctors and

were not going to talk to anyone else. This concerned Dr. Cox because no

family had ever refused to provide information, and he believes that parents are

the best source of information. While Dr. Cox attempted to question Hampton,

he was angry and yelling, and a security guard was called to calm him down.

Ultimately, Hampton said that Jody had fallen down four or five stairs and that

he was limp when he picked him up.          Hampton said that he called Jody’s

mother and that they called 911 after she returned home from work.

      Dr. Cox testified that Hampton’s explanation—that Jody fell down several

stairs—was not consistent with Jody’s injuries. Dr. Cox said that stairway falls



      5
        After seeing a photo depicting the abrasion on Jody’s neck, Dr. Cox
noted that the abrasion had no scab, that it appeared to be new, and that it had
characteristics similar to fingernail scratches because there was a peeling of the
outer layer of skin.

                                        7
typically cause bumps and bruises and that concrete steps usually cause skin

injuries.   Dr. Cox stated that children have a tendency to fall head down

because their heads are disproportionately larger than the rest of their bodies.

Consequently, a child falling down stairs usually endures a series of falls and

has minor, superficial, nonfatal injuries, like a bump on the head.

       But here, Jody had no skin injuries on his head other than a superficial

abrasion on the left of his forehead 6 and one along the side of his neck, a

location that Dr. Cox noted would be unusual for a fall down stairs, and yet

Jody’s CT scan showed bleeding around Jody’s brain and brain swelling. Dr.

Cox explained that the subdural hemorrhage and hematoma (i.e., blood that

was collecting) on the right side of Jody’s brain was exerting pressure on the

brain and causing a midline shift of the brain structures. Dr. Cox explained that

typically, subdural hemorrhages are indicators of a traumatic event, as are

retinal hemorrhages. Dr. Cox testified that Jody underwent a craniotomy to

drain the blood that was exerting pressure on his brain.

       Dr. Cox opined that Jody’s injuries were the result of severe traumatic

forces because Jody’s height and weight would not have generated enough




       6
         Dr. Cox could not say whether the abrasion on the left side of Jody’s
forehead occurred with the severe head injury. He did not see any external
injuries to suggest the point of impact.

                                       8
force to cause this kind of injury by falling down four or five steps. Based on

Dr. Cox’s training and experience, he opined that some object had to strike

Jody in the head or that he struck some object with his head in order to cause

his injuries or that shaking could have caused his injuries. 7 He did not think it

was an accident because of the severity of Jody’s injuries. Instead, he said

that there was no indication of anything other than trauma causing the

hemorrhage.

      During cross-examination, Dr. Cox agreed that short falls can produce

intracranial hemorrhaging but that he does not see that very often. 8 Dr. Cox

agreed that if Jody had recently injured his neck from the fall on the stairs, he

could have, if the fall was severe enough, suffered bleeding from arteries and

veins in the lower portion of his neck. Dr. Cox did not agree, however, that if

there had been bleeding in Jody’s neck that no one noticed that it could

account for some of the hemorrhaging that was attributed to the front right of

his brain. Dr. Cox said that no other area of hemorrhaging was noted other

than that seen in the CT scan on the right top side of the brain. Moreover,


      7
       Dr. Cox could not quantify how much force it would take to cause this
type of injury and said that he was not comfortable discussing mens rea
because he did not know the intent or motive.
      8
        Dr. Cox was presented with a paper used by the defense, discussing
a study of 363 children who had been involved in stairway falls; of those in the
study, zero went to the ICU and zero died.

                                        9
there were no medical findings to suggest that Jody had any preexisting

conditions; Jody’s pediatrician told Dr. Cox that Jody had been otherwise

healthy and had normal development. And because Jody was walking and

acting normally earlier that day, Dr. Cox testified that it was highly unlikely that

Jody had brain swelling before May 25. Instead, Dr. Cox stated that based on

the symptoms Jody presented with, he had a new head injury, and Dr. Cox’s

best medical evaluation was that Jody’s injury occurred right before he

developed neurological symptoms when he was found limp.

      Dr. Cox testified that Jody ultimately died on May 27, two days after he

was admitted to the hospital.      When asked to explain what caused Jody’s

death, Dr. Cox testified that Jody was brain dead; he did not have signs of

neurologic function as a result of a brain tissue injury that led to a fatal

intracranial injury.

                              F. Autopsy Findings

      Dr. Reade Quinton of the Dallas County Medical Examiner’s Office

performed the autopsy on Jody. 9 He noted no evidence of bruising on Jody’s

back, legs, or arms but found a few small scars on the right and left buttocks




      9
       Dr. Quinton admitted that he made a mistake in his autopsy report
when he used standard language to describe Jody’s kidneys, which were
absent because they had been harvested prior to the autopsy.

                                        10
that were consistent with trauma and a small linear red abrasion on the left side

of Jody’s neck. There were dark areas evidencing trauma to the scalp, but Dr.

Quinton said that some of that was caused by the craniotomy.

      Dr. Quinton said that the eyes are removed in autopsies, particularly when

children have suffered head injuries, because it may show a manifestation of

trauma.   He explained that retinal hemorrhaging shows trauma because it

reveals an increase in pressure in the head. Here, when Dr. Quinton removed

Jody’s eyes, he saw a number of small, dot-like retinal hemorrhages that were

distributed over the retinas in both eyes. Dr. Quinton stated that there was

increased pressure in Jody’s brain because there was a large subdural

hematoma taking up space in his skull; Dr. Quinton said that when there is an

injury to the brain that causes it to swell, there is no place for it to go but down

to the base of the brain stem, where it can shut down the respiratory system

and ultimately cause death.

      Dr. Quinton stated that his autopsy findings all fall under the heading of

“blunt force injury of the head”: there was diffuse soft tissue hemorrhage of

the right side of the scalp (i.e., bleeding under the scalp); patchy subdural

hemorrhage on both the right and left sides, but greater on the right side;

patchy subarachnoid hemorrhage, which is basically an additional hemorrhage

right over the surface of the brain itself; the optic nerve sheath hemorrhage;

                                        11
retinal hemorrhages; prominent cerebral edema (i.e., swelling of the brain);

evidence of surgical intervention (i.e., craniotomy); and scattered small

abrasions on the left side of the face and neck. He noted nothing significant

during the internal exam of Jody’s organ systems and no previous skull

fractures. Instead, he said that Jody’s severe head trauma was an acute injury

that had not had time to heal.

      Dr. Quinton could not tell the jury what force was used but disagreed

with Dr. Cox that a seventeen-month-old child could be exclusively shaken to

death without some type of impact as well; Dr. Quinton opined that this was

not a shaking case. He clarified that he could not say that there was not some

shaking, but he did not care about that because this case involved an impact.

Dr. Quinton also disagreed with Dr. Plunkett’s stance, as set forth in a study

paper introduced by the defense, that short falls can kill children.

      To determine the cause and manner of Jody’s death, Dr. Quinton spoke

to the police and reviewed the crime scene investigation. 10 He said that the

findings did not match the story that the child had fallen down four or five

stairs because the force of falling down a few stairs would not generate this

type of subdural traumatic brain injury. After a fall, he would have expected to



      10
        Dr. Quinton stated that without the crime scene investigation, he
would have ruled the cause of Jody’s death as undetermined.

                                       12
see outward injuries to the scalp, but none were documented. Dr. Quinton

therefore concluded that Jody’s death was related to blunt force injuries to

Jody’s head and that the manner of his death was homicide.

                         G. Findings of Investigation

      Gary O’Pry, who was formerly with the Dallas Police Department’s crime

scene unit, testified that he went to the Rosemeade Apartments on May 26,

2007 to look for evidence and to photograph the scene. He found a child’s

shirt that had blood on it and noted that the neck of the shirt was torn, and he

took pictures of the bedroom, showing two indentations of fist prints in the wall

over the bed. He said that there were no signs of a fall on the stairs and that

the only blood that was found was on the child’s shirt.

      Katherine Zimmer, a crime scene detective with the Dallas Police

Department, testified that she took photographs of and fingernail clippings from

Hampton on the evening of the incident. Another crime scene investigator,

Jeffrey Coats, read the DNA test results from Hampton’s fingernail clippings

into evidence:

      Based on the analysis, the DNA obtained from Sample 3T1,
      swabbing of fingernails, right hand, of Brandon Hampton, is at least
      136 million times more likely that Brandon Hampton and Jody
      Hampton were the sources of the DNA obtained from Sample 3T1,
      which is the fingernails of the right hand of Brandon Hampton . . .
      than if Brandon Hampton and an unknown individual were the
      source of the DNA obtained from 3T1, swabbing of right fingernails
      -- or swabbing of fingernails from right hand of Brandon Hampton.

                                       13
Coats testified that “you’d have to grab somebody pretty hard to get skin cells

underneath [your fingernails].”

                            H. Result of Investigation

       Sabra Garibay, a child abuse investigator with the Dallas Police

Department, testified that during her interview of Hampton at the hospital, he

was aggravated that he had to tell his story to her. Garibay asked Hampton

how Jody had received his injuries and found it peculiar that Hampton described

“snot” going everywhere because he did not mention Jody crying. Garibay said

that   Hampton’s      explanation    for    Jody’s   injuries   raised   red   flags

because Hampton talked about blood around Jody, but Jody had no cuts.

Garibay also found it odd that Hampton did not call 911 before he called

Melissa, even though Hampton said that Jody was gasping for breath.

Hampton told Garibay during the interview that he did not want to stay and

asked if he could leave; she told him he could, and he asked, “So I can just get

up and walk out the door?”

       After his interview, Hampton yelled at Melissa, telling her that she did not

have to say anything, that she should not write anything, and that she did not

have to talk to Garibay.     Garibay observed that after Hampton’s outburst,

Melissa acted very intimidated and did not want to talk to her.




                                           14
      Garibay spoke with Dr. Cox and became increasingly concerned because

Jody’s medical history did not match up with the history of events given by

Hampton.    After speaking with Dr. Cox 11 and knowing that Hampton was

Jody’s sole caretaker when he was injured, Garibay arrested Hampton. The

factors that Garibay took into account before making the decision to arrest

Hampton included Jody’s medical history, the sequence of the injury as

explained by Hampton and its inconsistency with Jody’s injuries, the fact that

Hampton was alone with Jody when the injury occurred, and the fact that Jody

was fine when Melissa left for work that morning. Garibay testified that she

is confident beyond a reasonable doubt that Jody’s injuries were not the result

of an accident.

                               I. Result of Trial

      After hearing the above evidence, the jury found Hampton guilty of

murder as alleged in the indictment and assessed his punishment at twenty-five

years’ confinement. The trial court imposed the sentence assessed by the jury,

and this appeal followed.




      11
         Garibay testified that she also spoke with people at the apartment
complex and others but that her talk with Dr. Cox was more important because
he is an expert in child abuse cases.

                                      15
                            III. S TANDARDS OF R EVIEW

                              A. Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

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

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).         Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all



                                        16
the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

                            B. Factual Sufficiency

      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 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.




                                       17
      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.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution

of the conflict “often turns on an evaluation of credibility and demeanor, and

those jurors were in attendance when the testimony was delivered.” Johnson,



                                        18
23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right

to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008). An opinion addressing factual sufficiency must include a discussion of

the most important and relevant evidence that supports the appellant’s

complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.

2003).

                IV. S UFFICIENT E VIDENCE TO S UPPORT C ONVICTION

      In his second and third points, Hampton argues that the evidence is

legally and factually insufficient to support his conviction.       Specifically,

Hampton challenges the sufficiency of the evidence to show (1) that shaking

caused Jody’s death, (2) that Hampton struck Jody’s head or caused it to strike

an unknown object, and (3) that Hampton administered a blow that had

sufficient force to cause Jody’s death.

                              A. Law on Murder

      A person commits murder if he intentionally or knowingly causes the

death of an individual or intends to cause serious bodily injury and commits an

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

Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).




                                       19
                        B. Legally Sufficient Evidence

      Hampton combines his legal and factual sufficiency claims, which are

based almost entirely on whether the State established “legal causation.”

Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that Hampton was the sole person who was present when Jody

started having trouble breathing.      On the morning in question, one of

Hampton’s neighbors heard yelling followed by two back-to-back thuds that

sounded like something hitting the wall or the floor twice and did not see

anything outside in the stairwell. Photographs of Hampton’s bedroom revealed

two fist-sized indentations in the wall. Photographs also showed that Jody’s

neck had a scratch on it, and DNA test results of the fingernail swabbing taken

from Hampton revealed that it was at least 136 million times more likely that

he and Jody were the sources of the DNA that was tested than any other two

people were the sources of the DNA. Jody’s shirt had a tear in the neck and

had blood on it; however, no blood was found on the stairs.

      Both Dr. Cox and Dr. Quinton testified that the version of events recited

by Hampton about Jody’s falling down four or five stairs was not consistent

with the severe, fatal injuries that Jody sustained, and both doctors testified

that a fall down four or five stairs could not have caused Jody’s injuries. Based

on Dr. Cox’s training and experience, he opined that Jody’s injuries were not



                                       20
an accident; instead, he said that some object had to strike Jody in the head or

he had to strike some object with his head in order to cause his injuries or that

shaking could have caused his injuries. Dr. Quinton also concluded that Jody’s

death was not an accident and instead ruled that the manner of his death was

homicide.

      The record also reflects that Hampton failed to call 911 before calling

Melissa, became hostile at the hospital when he was asked to tell his story to

Dr. Cox, told Melissa not to talk to anyone at the hospital, and made

incriminating statements to people at the apartment complex, including a

statement that he was “in trouble.”

      After viewing all of the evidence in the light most favorable to the jury’s

verdict, we hold that a rational trier of fact could have found beyond a

reasonable doubt that Hampton committed an act clearly dangerous to human

life by shaking Jody, by causing Jody to strike an unknown object, or by

striking Jody with an unknown object, which caused his death. 12 See Jackson,


      12
        Here, Hampton’s indictment contained handwritten changes that
caused the indictment to read as follows:

      on or about the 25th day of May, 2007, . . . did then and there
      commit or attempt a felony, to-wit: injury to a Child, and in the
      course of and in furtherance of the commission or attempt of said
      Injury to a Child offense, the defendant committed or attempted to
      commit an act clearly dangerous to human life, to wit; by shaking
      Jody Hampton, by causing Jody Hampton to strike an unknown

                                       21
443 U.S. at 319, 99 S. Ct. at 2789; Brown, 270 S.W.3d at 568; Clayton, 235

S.W.3d   at     778;   Kelley   v.   State,   187   S.W.3d    761,    763–64       (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d) (holding evidence legally sufficient

to support injury to a child conviction when every expert testified that baby’s

injuries could not have been caused by an accident on changing table as

described by appellant); Tejeda v. State, No. 13-95-00394-CR, 1997 WL

33641979, at *4 (Tex. App.—Corpus Christi Apr. 10, 1997, no pet.) (not

designated for publication) (holding evidence legally sufficient to support

conviction for murder of twenty-nine-day-old infant when expert testimony

discounted    appellant’s   stories    and    established   that   infant   died   from

hemorrhaging around brain that could have resulted from sudden impact with

hard object or from vigorous shaking). Accordingly, we hold that the evidence

is legally sufficient to support Hampton’s conviction, and we overrule his

second point.




      object, or by striking Jody Hampton with an unknown object, that
      caused the death of Jody Hampton[.]

The jury charge tracked the indictment language above and instructed the jury
to find Hampton guilty of murder if they believed from the evidence beyond a
reasonable doubt that Hampton committed the acts alleged in the indictment.
Because the jury charge allowed the jury to find that Hampton caused the death
of Jody by shaking or by causing Jody to strike an unknown object or by
striking Jody with an unknown object, the jury was not required to find that
Hampton caused Jody’s death solely by shaking him.

                                          22
                       C. Factually Sufficient Evidence

      Hampton also argues that the evidence is factually insufficient to show

“legal causation” because there was conflicting evidence by the experts

regarding shaking, there was no direct proof of striking, and the experts could

not specify an exact force.

      The record reveals that the expert testimony was not conflicting; Dr. Cox

included shaking as one of the ways that Jody’s injuries could have been

caused, and Dr. Quinton did not rule out shaking completely but instead stated

that Jody’s injuries could not have been caused solely by shaking and that he

was more focused on the fact that there was an impact to Jody’s head.

      As set forth above, the jury was not required to find that Hampton caused

Jody’s death by both shaking and striking, but the record also contains factually

sufficient evidence of striking.

      The State presented circumstantial evidence of striking:        a neighbor

testified that he heard thuds, photographs showed indentations in Hampton’s

bedroom wall, and Hampton was alone with Jody when he suffered fatal head

injuries. Although no one testified that Hampton struck Jody, there was no

other explanation given for Jody’s fatal head injuries after initial reports of an

“unintentional” accident were ruled out following the crime scene investigation.




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      With regard to the force used, Dr. Cox and Dr. Quinton could not specify

the exact force necessary to cause Jody’s injuries but said that it was more

traumatic or severe than falling down four or five stairs. Garibay said that

Hampton gave the stairs as the only explanation for Jody’s injuries, but the jury

was free to disbelieve him.

      We have reviewed the evidence in a neutral light, and we find no

objective basis in the record for holding that the jury’s verdict was clearly

wrong or manifestly unjust or that it was contradicted by the great weight and

preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the verdict, and no contrary evidence exists that would render the

evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417; Mendoza

v. State, No. 14-95-00704-CR, 1997 WL 367938, at *3 (Tex. App.—Houston

[14th Dist.] July 3, 1997, pet. ref’d) (not designated for publication) (holding

evidence factually sufficient to support felony offense of injury to child when

baby died of traumatic injury to the head which he suffered while in appellant’s

care even though mother stated that appellant had only spanked baby); see also

Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (reasoning that

“[c]ircumstantial evidence, by itself, may be enough to support the jury’s



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verdict”).   Accordingly, we hold that the evidence is factually sufficient to

support Hampton’s conviction, and we overrule his third point.

                                V. C ONCLUSION

      Having overruled Hampton’s second and third points, we affirm the trial

court’s judgment. See Tex. R. App. P. 47.1.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

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

DELIVERED: February 25, 2010




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