         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00786-CR



                                 Tommy Dean Brown, Appellant

                                                  v.

                                   The State of Texas, Appellee




         FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
             NO. 53,033, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Tommy Dean Brown of intentionally or knowingly causing

serious bodily injury to a child. See Tex. Pen. Code Ann. § 22.04(a), (e) (West 2003). On appeal,

appellant contends that his conviction should be reversed and a new trial granted because there was

factually insufficient evidence to support his conviction. We will affirm the judgment of the district

court.


                                         BACKGROUND

               Appellant and Shannon Lambert met while both were stationed at Fort Hood. The

two began living together and became engaged. During the early afternoon hours of November 17,

2001, Lambert decided that she would go grocery shopping at the commissary on the grounds of the
base. Appellant informed her that he would remain at home with their twenty-five-day-old son,

Dameon. Lambert left the residence at approximately 1:00 p.m. According to Lambert’s testimony

at trial, she noticed nothing unusual about Dameon or his physical condition when she returned at

approximately 3:00 p.m. When, after a couple of hours, Lambert decided to wake and feed the baby,

she noticed a small bruise under his eye. According to Lambert, appellant had been Dameon’s sole

caretaker while she was gone and the bruise was not there when she left for the commissary. She

testified that appellant told her that he had given the baby a bath and had put the baby to sleep in his

bassinet and did not know what had caused the bruise.

                At approximately 7:00 p.m., Dameon began to cry. Lambert went to feed him and

change his diaper. While changing the diaper, Lambert noticed various light red and purple bruises

that were just beginning to form on Dameon’s chest and stomach. Again Lambert asked appellant

what had caused the bruises, and he again gave no explanation. Lambert decided that they should

take Dameon to the hospital to ensure that he had no threatening medical condition. When they

arrived at the Darnell Army Community Hospital, Lambert stated to personnel that she believed that

Dameon was having an allergic reaction or had a rash. However, after medical examination, medical

personnel determined that Dameon had experienced some sort of nonaccidental trauma.

                The hospital doctors called social services and authorities. Lambert informed them

that whatever had happened to Dameon must have happened to him while he was under appellant’s

care. Lambert also told the social service authorities that appellant had been angry at Dameon the

night before because he cried and did not sleep through the night. She described how appellant got

out of bed and took the baby to the living room because Lambert delayed in getting up to care for



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him. When appellant returned to the bedroom, he punched a large hole in the closet door. Lambert

also testified that appellant had a problem with mood-anger control and that his treatment included

medication and a previous hospital stay in Darnell’s mental ward for mood-anger control problems.

               Brian Cummins, a special agent with the U.S. Army criminal investigation command,

testified that he had conducted the investigation concerning the injuries to Dameon. During the

course of his investigation, Agent Cummins took a sworn written statement from appellant and

conducted a videotaped interview of appellant. The statement was admitted into evidence and read

to the jury. In relevant parts, appellant stated that after Lambert went to the commissary, he changed

the baby’s diaper and that the smell made him “puke.” He later gave the child a bath, during which

the baby “kept whining” and “smelled really bad.” Appellant stated that he rubbed the baby’s legs

especially hard during the bath because of the smell. When appellant put the baby on the changing

table, the top shelf broke and the baby rolled and hit a wooden ledge. Appellant then picked the

child up and cradled him, which made the baby more comfortable. When appellant walked into the

living room, he stubbed his toe on a rocking chair, which made him “more mad.” Appellant’s

statement goes on to read, “I took him to the living room, grabbed him by . . . his mid-back, and

threw him in the bassinet. When I threw him, he landed on his front side, his . . . head hit and he

bounced back.” Appellant also stated that he threw the baby into the bassinet “pretty hard” and that

he spanked Dameon on his buttocks because appellant was “just upset.”

               Agent Cummins later took another statement from appellant, which was videotaped

to record appellant’s nonverbal actions. The videotape was entered into evidence and shown to the

jury. During the second statement, appellant recounted the events of November 17, 2001 to Agent



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Cummins, relating all of the details based on a “scale of anger.” Appellant stated that his anger

continuously rose during the time that Lambert was at the commissary. He stated that he “beat [the

baby] on the bottom . . . about ten times,” which “left bruises on him.” Appellant admitted in his

statement that he had hit Dameon “probably a little too hard.” He also told Agent Cummins that he

had taken the baby’s hand and used it to hit the baby around the right eye, about “six or seven times.”

               Appellant then stated that he decided to give the baby a bath, which further increased

his anger because it “took [him] around 15, 20 minutes to do.” After the bath, appellant carried the

baby to the changing table, and when the shelf on the table broke and the baby continued to cry,

appellant stated that he became furious. According to appellant, “That was my breaking point. I hit

my ten.” Upon further questioning, appellant admitted that he “proceeded to bop [the baby] into the

closet door . . . mak[ing] kind of a bunk sound.” Appellant stated that Dameon eventually stopped

crying. Appellant believed that at that point the baby must have been thinking, “[H]oly f-----g s--t,

I think Dad just gave me a major f-----g concussion.” Appellant also believed that he “almost killed

[Dameon’s] ass.” At the conclusion of the second statement, appellant said that he had taken his

anger medication and that had he not, he “would have probably put [the baby] through the closet

door . . . or . . . would have picked up the closet door, set him on the floor and beat him to death.”

               The jury also heard the testimony of two doctors who treated Dameon. Dr. Michael

Luszczak testified that the baby suffered from ecchymosis, a medical term for bruising or bleeding

under the skin, and that the injuries were consistent with the injuries that would be sustained by an

unrestrained passenger in a high speed vehicle crash. Dr. David Ray Hardy testified that the injuries

were consistent with a fall from a second story floor. He also testified that, in his medical opinion,



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the child will remain severely impaired: “He will never be able to walk. I do not expect him to be

able to gain any language. He will probably have to have surgery to place a tube into his belly so he

can be fed, and . . . I suspect that these injuries will eventually shorten his life and precipitate his

death.”

                The jury returned a verdict of guilty and imposed a sentence of sixty years and a fine

of $10,000. On appeal, appellant argues that the evidence is factually insufficient to support the

verdict.


                                           DISCUSSION

                If the defendant challenges the factual sufficiency of a finding of guilt on appeal, the

reviewing court must determine whether: (1) the evidence is so weak as to make the verdict

manifestly unjust, and (2) the finding of a vital fact is so contrary to the weight and preponderance

of the evidence as to be clearly wrong. See Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App.

2003); Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). In reviewing the factual

sufficiency of the evidence, we view the evidence in a neutral light favoring neither party. Johnson

v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In reviewing evidence, the trier of fact has the

responsibility of weighing all evidence, resolving all conflicts, and drawing reasonable conclusions

from the evidence. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Furthermore, a

decision is not manifestly unjust simply because the trier of fact resolved conflicting views of the

evidence in the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet.

ref’d).




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               Appellant contends that the evidence is factually insufficient to support the jury’s

finding of guilt because the evidence does not clearly identify him as the only individual with the

opportunity to have caused the injuries to Dameon. Although it is true that appellant was not the

only person with the opportunity to cause Dameon’s injuries, appellant admitted to beating Dameon

and he never sought to contradict the State’s evidence that his actions caused the injuries. Nor did

appellant present any evidence tending to suggest to the jury that another person inflicted the injuries

on Dameon.1 Based on Lambert’s testimony that Dameon was in good health when she went to the

commissary, the jury could have reasonably believed that she did not cause her son’s injuries. Thus,

after examining all of the evidence, including appellant’s own two statements in which he admitted

that he had injured and even “beat” Dameon, we conclude that the evidence of guilt is neither so

weak nor so outweighed by contrary evidence as to render the guilty verdict manifestly unjust. The

finding that appellant was the person who inflicted the injuries on the child is not so contrary to the

weight and preponderance of the evidence as to be clearly wrong. See Zuliani, 97 S.W.3d at 593.

The jury weighed all the evidence, resolved all the conflicts, and drew reasonable conclusions from

the evidence. See Garcia, 57 S.W.3d at 441. We overrule appellant’s sole point of error.




        1
          Appellant’s defense at trial consisted of cross-examination of the State’s witnesses and a
closing argument. During cross-examinations, counsel elicited testimony that appellant was excited
about the baby, that Lambert was not concerned about leaving the child in appellant’s care, and that
some of the bruises had not been accounted for in appellant’s two statements to Agent Cummins.
In his closing argument, counsel argued that, at most, appellant’s conduct was reckless and not
intentional or knowing.

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                                        CONCLUSION

               Because we find that the evidence factually supports the finding of guilt, we affirm

the judgment of the district court.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: July 11, 2003

Do Not Publish




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