                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-16-00166-CR
                             _________________

                       BRIAN CHRISTOPHER KEITH

                                        V.

                            THE STATE OF TEXAS
________________________________________________________________________

                    On Appeal from the 75th District Court
                           Liberty County, Texas
                         Trial Cause No. CR30815
________________________________________________________________________

                         MEMORANDUM OPINION

      A jury convicted appellant, Brian Christopher Keith, of capital murder of a

child under the age of ten years, and the trial court sentenced him to life without

parole. See Tex. Penal Code Ann. § 19.03(a)(8) (West Supp. 2016). Keith challenges

the sufficiency of the evidence supporting the conviction, and he further complains

that he was egregiously harmed by the trial court’s failure to limit the applicable

conduct elements in the definitions of “intentionally” and “knowingly” in the jury

charge and that the trial court committed reversible error by denying the jury’s
                                        1
requests to review certain evidence during its deliberations in the guilt/innocence

phase of the trial. We affirm.

                                   I. Background

      The complainant N.K., born on May 31, 2013, was the infant daughter of S.K.1

While Keith was listed on N.K.’s birth certificate as the father, it was uncontroverted

that he was not the biological father of the child. During an extended period of

absence from the home by Keith, S.K. had an affair with another man, which

produced the child. There was testimony at trial that Keith had expressed his

contempt for the mother’s infidelity and that he suggested she should give the baby

up for adoption since he was not the father. After the child was born, Keith had little

interaction with the infant.

      Keith shared the master bedroom of a single-wide mobile home with S.K., her

two sons, and the infant daughter, N.K. Also living in the home was N.K.’s maternal

grandmother, who was disabled and slept in a recliner in the den, and a friend of

S.K., Kali Baucum, who slept in the opposite end of the mobile home.




      1
        To protect the privacy of the victim and her mother, we identify them by
using only their initials. See Tex. Const. art. 1 § 30 (granting crime victims “the right
to be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process”).
                                            2
      On the evening of July 1, 2013, N.K. was reportedly put to bed just before

midnight. On July 2, 2013, when the infant was only 33 days old, Keith awoke at

4:00 a.m. to get ready to go to work and stated the baby was crying. Based on

testimony at trial and the autopsy report, it was at this time that Keith may have

reached into the crib and “patted” the baby on the head, or he may have hit the baby,

or he may have rocked the baby back to sleep and placed her back in her crib. The

“or” is intentionally used in the preceding sentence as neither parent who had care,

custody, or control of the infant on the night of this incident testified, nor were any

written or recorded statements of the parents introduced into evidence in the trial of

this cause.2 The record contains only statements of others, who either spoke with or

interviewed the parents after the incident concerning the events of the evening before

or the early morning hours when this incident occurred, or other hearsay statements

included in the record which were admitted into evidence without objection.



      2
        We reference this fact only to emphasize that the record is wholly devoid of
any direct evidence from either parent as to the events leading to N.K.’s death. It is
well settled that the State may not comment on the accused’s failure to testify.
Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). Such a comment
offends both state and federal constitutions as well as Texas statutory law. See U.S.
Const. amend V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08
(West 2005); Griffin v. Cal., 380 U.S. 609, 615 (1965) (“[T]he Fifth Amendment . .
. forbids either comment by the prosecution on the accused’s silence or instructions
by the court that such silence is evidence of guilt.”). We do not consider Keith’s
decision not to testify in the trial during our review of this appeal.
                                             3
      Keith made a phone call to his supervisor, Joe Harrison, at 5:23 a.m. and left

for work. Keith parked his truck in the yard at his place of employment, Pioneer

Energy Services, and boarded a company truck that took him and his co-workers to

an oilfield rig for the day. The rig operator for Pioneer Energy Services, Gordon

Andrews, testified that when the company truck picked him up on the morning of

July 2nd at 5:45 a.m., Keith was in the truck. According to GPS records, the truck

proceeded to Mont Belvieu and arrived at the oilfield rig at 7:20 a.m.

      At 5:52 a.m., Keith called Kali and told her that he thought he left his truck’s

headlights on and instructed her to wake up his wife and get the spare set of keys

from her. At 5:55 a.m., Keith called Rhonda Ainsworth, S.K.’s aunt and the only one

with a car, and asked her to pick up the spare set of keys from his house and to go to

the yard and turn off his headlights. At 5:56 a.m., Keith called Kali to ensure she had

done as he requested. He called Kali again at 6:17 a.m. and spoke with her for just

over one minute. Keith neither made nor received any calls on his phone for the next

five hours.

      Kali testified that after she got the first phone call from Keith, she walked to

the far end of the mobile home and awoke S.K. and relayed his message. Without

checking on or seeing the infant, Kali returned to her room and went back to bed.



                                          4
      Rhonda Ainsworth testified that she received a phone call from Keith around

6:00 a.m. and told him that she would go get the keys once she was awake.

Somewhere around 9:45 a.m., Rhonda went to Keith’s home. She testified that when

she entered the master bedroom of the mobile home, S.K. was asleep in the bed with

one of her sons, the other son was in a twin bed in the room, and the infant appeared

to be asleep in her crib. She noted that the infant was on her stomach. Rhonda

awakened S.K., who got the keys off of the nightstand, handed them to Rhonda, then

turned over and went back to sleep. Rhonda left the home with the keys but forgot

about her task and instead, went to the VFW hall to have coffee with a friend.

      The maternal grandmother living in the home was receiving care from a home

healthcare nurse. At trial, the nurse testified that she called the grandmother between

9:00 a.m. and 9:30 a.m. on the morning of July 2nd to let her know what time she

would be at her home for treatment. The nurse testified that Keith answered the

grandmother’s phone when she called and that she recognized his voice.3

      The nurse arrived at the home between 10:45 a.m. and 11:00 a.m. When she

arrived, only the grandmother was awake in the household. She completed the



      3
        Because it was conclusively established by GPS records and testimony of
other witnesses that Keith could not have answered the maternal grandmother’s
phone when the nurse called, the jury could not reasonably have relied upon this
testimony in reaching a guilty verdict.
                                        5
grandmother’s treatment and was outside in her car preparing to leave for her next

appointment when Kali came running out of the front door screaming that the baby

was dead and she needed help. The nurse ran into the home and saw S.K., hysterical

and holding the baby in her arms. The infant’s arms and face were blue and her lips

were purple. The nurse called 911 from her cell phone and through the aid of a first

responder over the phone, the nurse began attempts at CPR. When other first

responders arrived, the infant was moved to an ambulance, where life-saving efforts

at CPR were continued. The infant was transported to a hospital, where she was

eventually pronounced dead.

      The home healthcare nurse testified that she did not see where the baby was

in the bedroom when the baby was discovered not breathing, and S.K. never told her

where she found the baby. The nurse also testified that she did not see Keith at the

house at any time after she arrived to treat the maternal grandmother.

      Kali called Keith at 11:16 a.m. and left a message on his voicemail telling him

that there was an emergency and to either call or come home. Six minutes later, at

11:22 a.m., Keith returned Kali’s call. Keith received permission from Andrews, the

rig operator for Pioneer Energy, to leave, and Andrews instructed Robert Taylor to

drive Keith back to the yard. Robert Taylor testified they left the rig somewhere



                                         6
around 11:30 a.m. to drive back to the yard, and it took approximately one hour to

travel the distance.

      The receptionist and office manager for Pioneer Energy Services each

testified that they arrived for work around 8:00 a.m. on the morning of this incident.

Both testified that the topic of conversation within the office on that morning was

the passing of Keith’s infant child. Specifically, the office manager recalled the

conversation was that someone was bringing Keith to the yard or had already brought

him to the yard, and the receptionist recalled that they were looking for someone to

go work in Keith’s place because his baby had passed away. Andrews, to whom

Keith reported his emergency and requested to leave the oil rig, testified that there

was no prior conversation on the oil rig about something being wrong with Keith’s

child before Keith reported the emergency. On cross-examination, the receptionist

agreed with the defense that if Keith had told someone in the office before he left on

the morning of the incident that his baby had died, Pioneer would not have sent him

to the oil rig that morning only to have to find a replacement for him.

      Kali, who was staying with the Keith family to help S.K., testified that Keith

called her multiple times on his way home from the rig. When Keith arrived home,

it was Kali’s opinion that Keith was upset. However, Sgt. Cummins with the Liberty

County Sheriff’s Department testified that he was at the home when Keith arrived

                                          7
and Keith was very calm, showed no signs of emotional distress, and began moving

car seats from one car to another before he went inside to console his wife. When

Sgt. Cummins observed the parents at the hospital, he testified that S.K. was very

upset and emotional upon arriving at the hospital, while Keith was calm and showed

no signs of emotional distress or being upset. Another deputy who also observed

Keith at the hospital testified, “It was unsettling. . . . [I]t appeared that he was smiling

and laughing and was energetic.” A nurse at the hospital testified that S.K. was

hysterical and had to be medicated at the hospital. The nurse happened to walk into

a room where Keith and S.K. were alone after the baby had been pronounced dead,

and she observed an angry Keith yelling at S.K., “Shut the f--- up. You f---ing did

this. You shut the f--- up[.]”

       The investigator assigned to the case in December 2013, testified that when

he called S.K. and requested that she come in for an interview, Keith became angry,

was cursing and insisted that S.K. only be interviewed while in his presence. After

S.K. was interviewed, Keith voluntarily met with the detectives and answered their

questions. Keith reportedly told the detectives that he got up at 4:00 a.m. on the

morning the baby died, and the baby was crying. He told the officers that he patted

the baby on the head. One officer testified that Keith said he may have hit the baby;

however, the other officer present never mentioned that Keith made such a

                                             8
statement. Keith represented to the officers that the baby was alive when he left for

work that morning.

      Dr. John Ralston, the chief forensic pathologist for Forensic Medical of Texas,

based in Beaumont, performed the autopsy on N.K. and testified on behalf of the

State regarding his findings. He testified that he has performed well over 2000

autopsies in his career. The purpose of an autopsy is to determine the cause and the

manner of death. Upon physical examination, Ralston noted a bruise on the infant’s

lower back and marked discoloration of the abdomen, which he noted as unusual.

He also noted that the fingernail beds were cyanotic, or blue in color, indicating a

lack of oxygen.

      Ralston attributed the abdominal discoloration to loose blood in the child’s

abdomen. Upon further examination, it was his opinion that the blood came from a

lacerated liver. He measured the amount of blood in the abdomen at around 30cc’s

or 8 percent of the child’s total blood volume. The discoloration of the abdomen was

caused by early onset of bacterial development from the free blood in the abdomen

and it was evident across the entirety of the abdomen from the diaphragm to the

pelvis. Dr. Ralston noted that this discoloration was different from the normal

“greening of the abdomen” seen in all corpses. From the staining of the skin, Dr.

Ralston opined that the child was lying face down, on her stomach, for at least a few

                                         9
hours after her death. He also noted blanching around the belly button, another

indication that the child was lying on her stomach after death. Further, Ralston

identified a photograph of the shoulder to the top of the head and noted discoloration

of the head, which he opined also indicated the child was face down after she died.

      Dr. Ralston testified that a lacerated liver bleeds quite profusely and will

continue to bleed as long as the heart is beating, usually requiring surgical

intervention to stop the blood flow. While he could not say exactly how long the

liver bled, Dr. Ralston estimated that it bled for a minute or two based on the amount

of free blood recovered from the abdomen.

      The bruise to the lower back was located centrally over the spinal column.

When Dr. Ralston entered the spinal column, he found actual tearing and

hemorrhaging on both sides of the spinal column from the spine being

hyperextended or being bent way too far back. Further examination revealed

petechial hemorrhages in the kidneys, the lungs, the heart, the thymus, and the spinal

column, where small blood vessels had hemorrhaged in these organs. He attributed

these injuries to compressional force being applied to the child’s back.

      The defense’s position was that all of these injuries to the child were caused

by efforts to save the child through CPR. While Dr. Ralston agreed that there was a

possibility that such injuries could have been caused by vigorous adult CPR

                                         10
methods, he indicated that it is unusual to find such injuries from infant CPR, which

is performed with two fingers to the chest instead of using the base of the palm as in

adult CPR. Further, based on reports from EMT personnel on the scene and hospital

emergency room records, Dr. Ralston determined that the child had been deceased

for at least a couple of hours before any resuscitative efforts were begun. The

petechial hemorrhages and the bleeding from the lacerated liver would only have

occurred if the heart was beating at the time of the injuries, as the circulatory system

collapses after death. While the official time of death was recorded by the hospital

as 12:10 p.m., Dr. Ralston indicated that the child had been deceased for a number

of hours before that time. An ER nurse recorded the infant’s body temperature upon

arriving at the hospital at 94.1 degrees Fahrenheit. Dr. Ralston discounted the

accuracy of using the temperature of the body as a means to determine the exact time

of death. While the human body temperature usually drops about 1 degree Celsius

or 1.5 degrees Fahrenheit each hour after death, it was his opinion that there are too

many variables involved to determine a realistic time of death using that method.

However, he agreed that the child’s body temperature indicated that she had been

deceased for at least a few hours before 12:10 p.m.

      Dr. Ralston testified that in his opinion, the cause of death was asphyxiation

due to compressional force being applied to the child’s back, while she was lying on

                                          11
her stomach, preventing the chest from expanding and the child from breathing for

a sufficient amount of time to cause her death. He recorded the final manner of death

as homicide. He rejected the defense theory that the infant died from asphyxiation

due to an unsafe sleep environment, noting that suffocation would not explain the

compressional injuries he found to the child’s internal organs. But for the evidence

of the compressional injuries to the internal organs, suffocation from an unsafe sleep

environment would have been high on Ralston’s index of suspicion. He also testified

that he had found no petechial hemorrhages in the infant’s eyes, and noted that if a

child is face down in soft bedding and can’t get her head up or the child is co-sleeping

with another person and somebody rolls over on the child, hemorrhages in the eyes

are commonly found.

      A grand jury indicted Keith for capital murder, specifically alleging that Keith

caused the death of N.K., a child under the age of ten years, by compressional

injuries. See Tex. Penal Code Ann. § 19.03(a)(8). The State elected not to pursue the

death penalty. After a trial, a jury found Keith guilty of capital murder by unanimous

verdict, and the trial court sentenced him to life in prison without the possibility of

parole. The trial court certified Keith’s right to appeal, and this appeal timely

followed.



                                          12
                          II. Sufficiency of the Evidence

      To obtain a conviction for capital murder in this case, the State was required

to prove that Keith intentionally or knowingly caused the death of N.K., a child under

the age of ten years. See Tex. Penal Code Ann. §§ 19.02(b)(1) (West 2011),

19.03(a)(8).

      In his first issue on appeal, Keith contends that the evidence is insufficient to

support the jury’s guilty verdict. He argues that the only evidence at trial shows that

the child died from asphyxia, more likely than not because of an unsafe sleeping

environment, and that any injuries to the child identified by the autopsy were

inflicted by aggressive and prolonged CPR efforts to resuscitate the child.

A. Standard of Review

      To properly assess the sufficiency of evidence supporting a jury’s verdict of

guilt, a reviewing court must “consider all the evidence in the light most favorable

to the verdict and determine whether, based on that evidence and reasonable

inferences therefrom, a rational juror could have found the essential elements of the

crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). In doing so,

we defer to the jury’s factual findings and resolve all reasonable inferences in favor

of their verdict, as the jury is the sole judge of the credibility of witnesses and the

                                          13
weight to be afforded to the testimony of each. Brooks v. State, 323 S.W.3d 893, 902

(Tex. Crim. App. 2010); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App.

2014). The jury may choose to believe or disbelieve any witness or any portion of a

witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

This Court’s role on appeal “is restricted to guarding against the rare occurrence

when a factfinder does not act rationally[,]” and we must “defer to the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal citations omitted). Thus, when

performing an evidentiary sufficiency review, “[t]his Court may not re-evaluate the

weight and credibility of the record evidence and thereby substitute our judgment

for that of the fact-finder.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). The

key question is whether “the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged.” Id.

      In his brief on appeal, Keith argues that the State did not offer any evidence

to exclude the possibility that something else significant didn’t occur with regard to

the baby after Keith left the house for work, such as the mother putting the baby in

bed with her after Keith left for work, then falling asleep and rolling over on N.K.,

                                           14
given the testimony that S.K. had previously co-slept with the infant, or that one of

the other children, who were 3 and 5 years of age, possibly climbing into the crib to

try to get their sister to stop crying and placing some or all of their weight on the

baby. However, in Geesa v. State, the Court of Criminal Appeals rejected the

“reasonable hypothesis analytical construct” as a method of appellate review for

evidentiary sufficiency in criminal cases. 820 S.W.2d 154, 156–61 (Tex. Crim. App.

1991), overruled on other grounds, 28 S.W.3d 570 (Tex. Crim. App. 2000). The

reasonable hypothesis analytical construct required that “[a] conviction based on

circumstantial evidence must exclude every other reasonable hypothesis except the

guilt of the accused.” Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983),

overruled by Geesa, 820 S.W.2d at 161. In rejecting the “reasonable hypothesis”

construct for appellate review, the Court noted that such a review in circumstantial

evidence cases “effectively repudiates the jury’s prerogative to weigh the evidence,

to judge the credibility of the witnesses, and to choose between conflicting theories

of the case.” Geesa, 820 S.W.2d at 159. Thus, it is now well settled that “[d]irect

evidence and circumstantial evidence are equally probative, and circumstantial

evidence alone may be sufficient to uphold a conviction so long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); see also Carrizales

                                         15
v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (holding that “[i]t is not

necessary that the evidence directly proves the defendant’s guilt; circumstantial

evidence is as probative as direct evidence in establishing the guilt of the actor”).

      Viewing all of the evidence under these established standards, we find that the

combined, cumulative force of the various incremental pieces of circumstantial

evidence is sufficient to support the verdict. See Clayton v. State, 235 S.W.3d 772,

778–79 (Tex. Crim. App. 2007).

B.    Evidence supporting conviction

      The evidence showed that the baby was reportedly put in her crib around

midnight. Keith was awake at 4:00 a.m. on the morning of the baby’s death, and he

admitted to others that the baby was awake and crying before he left for work. Keith

reportedly told the investigators that he reached into the crib and patted the baby on

her head and that he may have hit her. The autopsy report stated that Keith “rocked

the baby back to sleep at approximately 5:00 a.m.” There is no direct evidence in the

record as to the position the child was placed in the crib, but the home healthcare

nurse did testify that, on at least one previous visit, she had seen the child asleep on

its back in S.K.’s bed with pillows placed around the child. At around 9:45 a.m., the

infant was observed on her stomach in the crib by Rhonda Ainsworth. The record

reflects that the infant was found lying on her stomach or face down in the crib at

                                          16
around 11:15 a.m. The jury could have reasonably concluded that Keith was the only

person who handled the child on the morning before her death and further, that he

placed the child in the crib face down.

       Keith was shown to have had a motive to harm the child. He was upset and

embarrassed that his wife had had an affair with another man which produced the

child. Several witnesses testified that he did not want S.K. to keep the baby, referred

to the baby as “it” at times, and had very little to no interaction with the child after

her birth.

       Testimony in the trial showed Keith lacked sympathy or compassion for the

child or her mother. Once Keith arrived home after receiving word that the child was

found unresponsive, various witnesses testified that his emotional reaction to the

tragic situation was unusual and out of line for a parent. A police officer testified

Keith was very calm, with no signs of emotional distress or excited agitation and

that he went about transferring children’s car seats from one vehicle to another

before going in to console his wife. Another officer described Keith’s demeanor as

“unsettling” and reported that he was laughing and energetic at the hospital, while

the mother was hysterical. A nurse testified that she overheard Keith cursing at S.K.

at the hospital and showing no sympathy to the mother of the deceased child. In

contrast, the jury heard testimony that S.K. was emotionally distraught to the point

                                          17
of requiring medication, and Kali testified that she was awakened to a horrible

scream when S.K. discovered N.K. was not breathing.

      When the baby was found, her arms and face were blue and lips were purple.

A medic on the scene described the baby’s skin coloring as cyanotic, a grayish ash

color the skin turns when not properly perfused with oxygen. The first responders

found no signs of life in the baby. Likewise, the E.R. doctor testified that when the

baby arrived at the hospital, she had no spontaneous heart beat and no signs of being

alive. It was his opinion that the child was already dead when she arrived at the E.R.

While Dr. Ralston could not give a precise time of death, he stated that from the

staining of her skin on her abdomen, face and head, he opined that the baby had been

face down on her stomach for a period of at least a few hours after she died. And,

while Dr. Ralston dismissed using body temperature as an accurate method for

determining time of death, he estimated that with a body temperature of 94.1 at the

hospital, the baby had been dead for a few hours.

      Dr. Ralston found petechial hemorrhages on the child’s lungs, heart, thymus,

kidneys and around the spinal column and a laceration of the liver. He attributed the

hemorrhages and laceration of the liver to compressional forces. Ralston testified

that a lacerated liver will bleed profusely and continue to bleed, without surgical

intervention, until the heart stops beating. He estimated from the amount of blood

                                         18
he found in the abdominal cavity that the liver continued to bleed for one to two

minutes after it was injured. If the heart had continued to beat, there would have

been more blood in the abdominal cavity. While the defense attempted to show that

these same injuries could occur from aggressive CPR, Ralston indicated that

someone would have to use “way too much force” in performing CPR on a living

person to cause such injuries, and there is no such evidence in the record. Because

these are injuries with vital reaction, i.e. hemorrhaging of the blood vessels and

bleeding, it was his opinion that the injuries he identified were sustained at the time

of death or before the time of death. He explained that once the heart stops beating,

the circulatory system collapses. Because, in his opinion, CPR was not performed

on the child until long after her death, CPR could not have caused the injuries he

identified during the autopsy or caused the liver to bleed out the amount of blood

found in the abdominal cavity. It was his further opinion that even aggressive CPR

would not account for the tearing and hemorrhaging of the spinal column or the

subcutaneous bruise to the child’s back. In his opinion, Dr. Ralston concluded that

someone applied compressional force to the child’s back for a period of at least two

minutes while the child was face down in the crib, preventing her from expanding

her chest and breathing, with sufficient force to rupture the small capillaries of the

internal organs and lacerating the liver, and maintained such compression until the

                                          19
child died. Further, Dr. Ralston identified an autopsy photograph and explained to

the jury that the loose blood in the child’s abdomen had stained the abdominal wall

from the child’s body having lain on her stomach for some time after she died.

      The defense pathology expert disagreed with Dr. Ralston’s conclusions and

findings. Dr. Stephen Pustilnik, a forensic pathologist with his own private practice

and part-time pathologist for the Lubbock County Medical Examiner’s office,

maintained that the injuries identified by Dr. Ralston were all inflicted post-mortem

by the resuscitative efforts of CPR. Dr. Pustilnik agreed, though, that the child died

from asphyxiation and had been deceased at least a couple of hours prior to being

found around 11:15 a.m. He attributed the death to an unsafe sleeping situation and

would have labeled the incident an accident.

      However, all of the witnesses testified that to properly perform CPR on an

infant, the infant must be lying on their back. A jury could have reasonably

concluded that the evidence of staining on the child’s abdomen was inconsistent with

Dr. Pustilnik’s theory that the internal bleeding was caused postmortem by efforts

to resuscitate the child as the child would have always been on her back during such

procedures. If indeed the loose blood in the abdomen came from a lacerated liver

during CPR, there would not have been the amount of staining on the abdominal

wall. The only person shown to have had physical interaction with the infant on the

                                         20
morning of her death was Keith. Thus, the jury could have reasonably concluded

that Keith intentionally placed the child in the crib on her stomach and applied

compressional force downward to her back, with such force to prohibit the child

from expanding her chest to breathe and intentionally causing her death by

suffocation before he left for work that morning.

       The jury in this case had the opportunity to hear and see the witnesses,

including the officers and medical experts, as well as all the other evidence described

herein. According due deference to the jury’s exclusive right to determine the

credibility of the witnesses and the weight to attach to the evidence and viewing all

of the admitted evidence in the light most favorable to the verdict, we find that there

is sufficient evidence by which the jury could have found beyond a reasonable doubt

that Keith was guilty of capital murder as charged. We therefore overrule Keith’s

first appellate issue.

       In his second issue on appeal, Keith submits that it is not fair or equal for

defendants who assert an affirmative defense to have both a legal sufficiency review

and a factual sufficiency review of the evidence as was determined in Matlock v.

State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013), while defendants who do not

assert an affirmative defense only receive a legal sufficiency review as was

determined in Brooks v. State, 323 S.W.3d at 895. As an intermediate court, we are

                                          21
required to follow binding precedent in cases decided by the Court of Criminal

Appeals. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (“As

an intermediate appellate court, we lack the authority to overrule an opinion of the

court of criminal appeals.”), aff’d sub nom. State v. Colyandro, 233 S.W.3d 870

(Tex. Crim. App. 2007); Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (“[A]s an intermediate appellate court, we must

follow the binding precedent of the Court of Criminal Appeals.”); State v. Stevenson,

993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision

of the court of criminal appeals is binding precedent, we are compelled to comply

with its dictates.”); see also Tex. Const. art. V, § 5(a) (providing that in Texas, the

Texas Court of Criminal Appeals is the final authority regarding matters of criminal

law).

        Because the Texas Court of Criminal Appeals has held that when determining

whether the evidence is sufficient to support a criminal conviction, the only standard

an appellate court should apply is the Jackson v. Virginia test for legal sufficiency,

we are at liberty to apply no other standard. Brooks, 323 S.W.3d at 895. Therefore,

we overrule Keith’s second issue on appeal.




                                          22
                             III.   Jury Charge Error

      Keith asserts in his third and fourth issues on appeal that the trial court

committed reversible error, and caused Keith egregious harm, by including the

nature of conduct portion of the definitions of “intentionally” and “knowingly” in

the jury charge at the guilt/innocence phase of the trial. We analyze this issue under

the standard of Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g). Under Almanza, when an appellant does not preserve jury charge error by

a timely objection, the unobjected-to charge requires reversal only if it resulted in

egregious harm, i.e. the “error is so egregious and created such harm that [the

accused] has not had a fair and impartial trial[.]” Id. Keith concedes in his appellate

brief that no objections were lodged in the trial court to the definitions in question.

To determine the degree of harm, a reviewing court should consider “the entire jury

charge, the state of the evidence, . . . the argument of counsel[,] and any other

relevant information revealed by the record of the trial as a whole.” Id.; see also

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

      In this case, it is not enough for the State to prove that Keith engaged in

conduct with the requisite criminal intent; the State must also prove that Keith

caused the result intentionally or knowingly. See Delgado v. State, 944 S.W.2d 497,

498 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).

                                          23
      The instructions in this case read as follows:

              A person acts intentionally, or with intent, with respect to the
      nature of his conduct or to a result of his conduct when it is his
      conscious objective or desire to engage in the conduct or cause the
      result.

             A person acts knowingly, or with knowledge, with respect to the
      nature of his conduct or to circumstances surrounding his conduct when
      he is aware of the nature of his conduct or that the circumstances exist.
      A person acts knowingly, or with knowledge, with respect to a result of
      his conduct when he is aware that his conduct is reasonably certain to
      cause the result.

      These instructions, while correctly stating the law applicable to a crime

pertaining to conduct, were inappropriate to the charge against Keith, a crime which

is result-oriented. It is clear that the definitions in the charge erroneously included

references to conduct and not to the result of that conduct. See id.; Green v. State,

891 S.W.2d 289, 294 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). If the

instructions were taken alone, the jury could convict based on Keith’s intent to

engage in conduct without taking into account the motivation or intent to kill. This

was error.

      However, a mistake or error in a jury charge does not automatically create

reversible error. Green, 891 S.W.2d at 294. Neither does the failure to preserve error

in a jury charge bar appellate review. Warner v. State, 245 S.W.3d 458, 461 (Tex.

Crim. App. 2008). Rather, it establishes the degree of harm that is necessary for

                                          24
reversal. Id. Because Keith failed to object to the charge at trial, the error will not

result in reversal unless it is “so egregious and created such harm that appellant was

denied a fair trial.” Id. (quoting Warner v. State, No. 03-04-00203-CR, 2005 WL

2313591, at *5 (Tex. App.—Austin Sept. 22, 2005, pet. granted) (mem.op.)). “Errors

that result in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive

the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Id. at 461–

62 (quoting Warner, 2005 WL 2313591, at *5). In determining whether egregious

error exists, every charge error must be assessed in light of “the entire jury charge,

the state of the evidence, including the contested issues and weight of the probative

evidence, the arguments of counsel, and any other relevant information revealed by

the record of the trial as a whole.” Id. at 461 (quoting Warner, 2005 WL 2313591,

at *5). Egregious harm is a difficult standard to meet. Taylor v. State, 332 S.W.3d

483, 489 (Tex. Crim. App. 2011). The record must show “actual, not just theoretical,

harm to the accused[,]” and we must be able to conclude that Keith has been

“deprived of a fair and impartial trial.” Id. at 489–90. “In assessing harm resulting

from the inclusion of improper conduct elements in the definitions of culpable

mental states, we ‘may consider the degree, if any, to which the culpable mental

states were limited by the application portions of the jury charge.’” Hughes v. State,

897 S.W.2d 285, 297 (Tex. Crim. App. 1994) (quoting Cook v. State, 884 S.W.2d

                                           25
485, 492 fn.6 (Tex. Crim. App. 1994). Here, the application portion of the jury

charge read as follows:

      You must decide whether the state has proved, beyond a reasonable
      doubt, four elements. The elements are that:
      1. The defendant, BRIAN CHRISTOPHER KEITH, intentionally or
         knowingly caused the death of [N.K.] by compressional injuries;
      2. In Liberty County, Texas,
      3. On or about the 2nd day of July, 2013; and
      4. Said [N.K.] was an individual younger than 10 years of age.

      If you all agree the state has failed to prove, beyond a reasonable doubt,
      one or more of the elements 1, 2, 3, and 4 listed above[,] you must find
      the defendant “not guilty.”

      If you all agree the state has proved each of the four elements listed
      above, you must find the defendant “guilty.”

      The application paragraph of the charge correctly instructed the jury that they

must believe beyond a reasonable doubt that Keith “intentionally or knowingly

caused the death” before they could find him guilty. (Emphasis added.) “Where the

application paragraph correctly instructs the jury, an error in the abstract instruction

is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).

Accordingly, we determine the error did not result in egregious harm. Keith’s third

and fourth issues are overruled.

                           IV.     Jury Deliberation Error

      Keith also complains the trial court committed reversible error by denying the

jury’s request to review evidence during its deliberations. In issues five and six
                                       26
respectively, Keith complains that the trial court refused to provide the jury with

Keith’s phone records and the GPS records from Pioneer Energy’s company truck.

      During deliberations, the jury foreman sent out a note requesting the phone

records of Keith’s phone, the Pioneer Energy truck’s GPS records, and the transcript

of the testimony of Dr. Pustilnik. While Keith concedes there was no error by not

providing the transcript of Dr. Pustilnik’s testimony, Keith maintains his complaint

that the trial court’s response is silent as to whether or not it complied with the jury’s

request for written evidence admitted during the trial. There is nothing in the record

as to whether the trial court did or did not comply with such request. Nothing in the

record shows any objection by counsel for the defense that such exhibits were not

provided to the jury. Article 36.25 of the Texas Code of Criminal Procedure provides

that the trial court shall furnish the jury upon its request any exhibits admitted as

evidence in the case. Tex. Code Crim. Proc. Ann. art. 36.25 (West 2006). In light of

the clear instructions of article 36.25, without clear evidence in the record that the

trial court failed to comply with the law and without any objection in the record, we

presume the trial court fully complied with the jury’s request. See Tucker v. State,

990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (stating that to present a complaint for

appellate review, appellant must show the complaint was made to the trial judge by

timely request, objection, or motion sufficiently specific to make the judge aware of

                                           27
grounds of complaint and the judge ruled adversely or refused to rule). We overrule

issues five and six.

         Having overruled all issues of appellant, we affirm the judgment of the trial

court.

         AFFIRMED.


                                                ______________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on October 10, 2017
Opinion Delivered December 6, 2017
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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