
11th Court of Appeals
Eastland, Texas
Opinion
 
Kenneth Joe Presswood
            Appellant
Vs.                  No. 11-02-00316-CR – Appeal from Nolan County
State of Texas
            Appellee
 
            The jury convicted Kenneth Joe Presswood of recklessly, by omission, causing serious bodily
injury to an elderly person, a second degree felony.  The trial court assessed appellant’s punishment
at confinement for 8 years and a $10,000 fine.  The trial court suspended the confinement portion
of the sentence and placed appellant on community supervision for 8 years.  We affirm.
             Appellant brings four points of error on appeal.  First, he asserts that the trial court committed
harmful error when it excluded expert testimony.  Appellant also contends that there is a fatal
variance between the indictment, the jury charge, and the evidence at trial.  Appellant further alleges
that the indictment failed to give notice of the manner and means of the omission giving rise to the
offense and, therefore, appellant’s conviction is void.  Finally, appellant asserts that the evidence is
legally and factually insufficient to support the verdict. 
            Appellant, a 57-year-old man, lived with his mother, Mrs. Presswood who was  the 92-year-old victim in this case.  Appellant had lived with his mother for 56 years and 9 days prior to her
death on October 27, 2001.  He had provided care for his mother from time to time when she became
ill.  He provided such care in March 1995 when Mrs. Presswood broke her hip and required surgery. 
Doctors also determined that Mrs. Presswood’s preexisting circulatory problems had become more
serious.  In April 1996, Mrs. Presswood saw a doctor for a physical examination.   The examination
at that time showed a blood supply blockage, and the doctor recommended surgery.  Mrs. Presswood
had had what she considered to be negative experiences between her family and the medical
profession, and she declined to have the surgery.  In 1997, Mrs. Presswood began to get weaker, and
she started to use a walker.  As Mrs. Presswood became weaker, appellant began giving her
nutritional supplements to make her stronger, and she showed some improvement in 1998-1999. 
Appellant continued to give his mother nutritional supplements from 1998 into 2001.  In May 1999,
Mrs. Presswood could not get out of bed, but she could sit up on the side of the bed to eat.  Appellant
bathed, dressed, changed sheets, and cooked for Mrs. Presswood.  Appellant cooked four different
types of menus for Mrs. Presswood, all but one of which lasted for a week at a time and one of which
was repeated every other week.  However, he did not state how much his mother ate at each meal. 
            In August 2001, appellant began to notice black marks that were indicative of bedsores.  The
marks continued to grow; and, in the first week of September 2001, they turned into open sores.  The
sores were on Mrs. Presswood’s knees, buttocks, hip, shoulder, and ankle.  Appellant treated the
bedsores at home, but they continued to get worse.  Appellant testified that he would make bandages
out of paper towels, put Betadine in the sores, and put a diaper rash ointment at the edge of the sores.
Appellant testified that it was time consuming and difficult to get his mother to eat and to keep her
clean.  The open bedsores would become contaminated with urine and fecal material. 
            By  September 11, 2001, the bedsores were worse, and appellant began trying to find a health
care facility that would use nutrition as a treatment rather than regular pharmaceuticals.  Appellant
testified that he took that course of action because he wanted to continue “with the nutritional
regimen that [he] had her on.” Although he had been giving Mrs. Presswood nutritional supplements
since 1998, appellant was looking for herbs or additional nutritional aid to treat his mother’s sores.
Appellant was given the name of Dr. Steven Wayne Hines, a naturopathic doctor, who could be
reached through a health food store in Abilene.  Dr. Hines gave appellant a nutrition regimen over
the telephone, and appellant began to administer some of this treatment in mid-September 2001.
Appellant testified that he was too busy taking care of Mrs. Presswood to go purchase the rest of the
nutritional items recommended by Dr. Hines and that he just used what he already had.  Although
he was using some of the products recommended by Dr. Hines, appellant testified that “it was just
beginning to get more than [he] could do physically and keep up with it.”  Mrs. Presswood did not
get any better.  
            Sometime after September 13, 2001, appellant began to call individual doctors.  Appellant
testified that he did not want to take Mrs. Presswood to a doctor but that he just wanted to talk to
one.  On September 19, 2001, he called to make an appointment with Family Medical Associates for
the following day.  However, appellant called and cancelled the appointment “because it was still
too much to take care of [his] mother and leave like that and [he] just didn’t want to do it.”  Then,
on September 21, 2001, appellant called Mitchell County Ambulance Service and asked them about
taking Mrs. Presswood to a hospital in Abilene.  Appellant was told that, unless a local doctor
transferred a patient to Abilene, the patient would have to pay the bill.  Appellant did not make an
appointment. 
            On Saturday, September 22, 2001, at about 12:30 p.m., appellant called “Rolling Plains
Health Care Facility”; however, they had closed at noon.  That evening, appellant tried to call a
doctor but was unsuccessful.  Sunday evening, appellant was able to contact another doctor. 
Appellant testified that he “was still trying to find doctors that would use nutrition.” Appellant was
told that Dr. Jerome Smola used nutrition in his treatment programs.  Appellant contacted Dr. Smola
on Sunday and was instructed to make an appointment through his office on Monday.  Dr. Smola’s
office scheduled an appointment at the hospital, and an ambulance took Mrs. Presswood there on
September 24, 2001.  She was admitted to the hospital in Sweetwater and then transferred to SCCI
Hospital in San Angelo.  Upon admission to the hospital in Sweetwater, Mrs. Presswood had 11
open bedsores.  A bedsore on her hip was infected to the bone, and the infection had spread from her
hip to the adjacent bone.  Appellant testified that the bedsores continued to get worse while his
mother was in the hospital.  Mrs. Presswood died on October 27, 2001.
            Toni Everett, one of the registered nurses who performed the initial evaluation at the hospital,
testified that Mrs. Presswood had cool extremities, below normal temperature, and poor skin turgor,
all of which was evidence of dehydration.  Carol Higdon, another nurse who treated Mrs. Presswood
in the emergency room, testified that she looked malnourished and dehydrated.  Higdon further
testified that poor nutritional status, inability to move, and being left in one position for a long period
of time could lead to the development of bedsores.  She also testified that Mrs. Presswood had no
“pedal pulses” in the foot, an indication that she had poor circulation that made her more susceptible
to bedsores.  Mrs. Presswood showed signs of methicillin-resistant staphylococcus aureus. “MRSA
and MRSE bacteria” were found in the wounds.  Both types of bacteria were antibiotic resistant and
were very difficult to treat.  
            Mrs. Presswood’s treating physician consulted Dr. Fred Kassis at the hospital.  Dr. Kassis
testified that the three big issues of concern for Mrs. Presswood were malnutrition, dehydration, and
dementia. Mrs. Presswood’s albumin level, the molecule in the blood that is used to determine
malnutrition, was at 1.7 when she came to the hospital.  A person with an albumin level of 2.1 is
considered to be severely malnourished.  Appellant testified that Mrs. Presswood had not eaten
anything except honey and nutritional supplements for six days before entering the hospital.  Dr.
Kassis testified that it would take “a while” for a person’s albumin level to get as low as Mrs.
Presswood’s was when she was first admitted to the hospital.  Mrs. Presswood’s malnourished cells
could not fight off the infection in her body.  Dr. Kassis testified that the three major causes of
bedsores were pressure, malnutrition, and circulation.  It would take about six to eight weeks for
infection to reach the bone, as it had on the bedsore on the hip of Mrs. Presswood.  Dr. Kassis
testified that many people over 80 years of age suffer from hardening of the arteries.  However, he
also testified that, while he had treated many patients with hardening of the arteries and bedsores,
he had very rarely seen bedsores as serious as those on Mrs. Presswood.  Dr. Kassis testified that the
level of care Mrs. Presswood received prior to her last hospital admission was very poor and that her
condition met the legal definition of serious bodily injury. 
            We will first discuss appellant’s sufficiency claims.  As related to his case, a person commits
the offense of injury to an elderly individual if:  (1)  a person with the duty to act,  (2) intentionally,
knowingly, or recklessly, (3) by omission, (4) causes serious bodily injury, (5) to an elderly
individual.  TEX. PENAL CODE ANN. § 22.04(a) (Vernon 2003).  An elderly individual is a person
65 years or older.  TEX. PENAL CODE ANN. § 22.04(c)(2) (Vernon 2003).  An omission
constitutes an offense when a person has the duty to act, when there is a legal or statutory duty
present, or when the actor has assumed care of the elderly individual.  TEX. PENAL CODE ANN.
§ 22.04(b) (Vernon 2003). A person has assumed care of an individual when, by act, words, or
course of conduct, he has acted in such a manner that a reasonable person could conclude that the
actor has accepted responsibility for the medical care of an elderly individual.  TEX. PENAL CODE
ANN. § 22.04(d) (Vernon 2003).  There are religious exceptions to this offense that do not apply in
this case.  TEX. PENAL CODE ANN. § 22.04(k)(2) (Vernon 2003). 
            In order to determine if the evidence is legally sufficient, we must review all of the evidence
in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the
evidence is factually sufficient, we must review all of the evidence in a neutral light and determine
whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and
manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is
so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction
clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002);
Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11
(Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d
126 (Tex.Cr.App.1996).  
            Here, the evidence established that Mrs. Presswood was an elderly individual and that
appellant had assumed her care and, therefore, had a duty to act.  The evidence further showed that
the care she received was not proper.  Dr. Kassis testified that the treatment Mrs. Presswood received
was poor and that the severity of the bedsores could have been prevented.  Appellant argues that
there is no evidence to support a finding that his mother did not receive proper medical attention for
a year or more.  We disagree.  The evidence shows that Mrs. Presswood had been bedridden since
May 1999 and that appellant did not seek medical attention for her.  Appellant attempted to provide
naturopathic care for his mother, but the evidence established that she was severely malnourished
and dehydrated and that this condition exacerbated her bedsores.  Appellant admitted on numerous
occasions that he did not obtain medical help for Mrs. Presswood because he wanted to continue his
nutritional program.  On cross-examination of appellant by the State:
Q:  Why didn’t you call in an ambulance on September 11th?
 
A:  Because I was trying to use nutritional supplements to help. 
 
*    *    *
 
Q:  Why didn’t you call for an ambulance on the 19th to get medical care?
 
A:  Because I wanted to use the nutritional supplements. 
 
            We point out that, although appellant contacted many television, radio, and local ministries
for prayer, neither he nor Mrs. Presswood had any religious objections to medical doctors or to the
medical profession.  He was merely unhappy with some of the treatment they gave.  The evidence
presented was both legally and factually sufficient to support the jury’s verdict. We overrule
appellant’s third and fourth points of error. 
            In appellant’s second point of error, he contends that there is a fatal variance between the
indictment and the evidence at trial and that the indictment did not provide notice of the manner and
means of the omission with which he was charged. Appellant’s indictment read in relevant part:
KENNETH JOE PRESSWOOD...did then and there intentionally and knowingly, by
omission, cause serious bodily injury to Katherine Presswood, an individual 65 years
of age or older, by allowing Katherine Presswood to remain bedridden for over one
year without proper medical attention.
 
KENNETH JOE PRESSWOOD did then and there recklessly, by omission, cause
serious bodily injury to Katherine Presswood, an individual 65 years of age or older,
by allowing Katherine Presswood to remain bedridden for over one year without
proper medical attention.  (Emphasis added)
 
            A variance between the indictment and the evidence at trial is fatal if it materially affects the
defendant’s substantial rights.  Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App.2001).  A variance
occurs when there is a discrepancy between the allegations in the charging instrument and the proof
at trial.  A variance occurs when the State has proven the defendant guilty of a crime, but has proven
its commission in a manner that varies from the allegations in the charging instrument.   Gollihar
v. State, supra. To determine if it is a material variance, we ask: Does the indictment, as written,
inform the defendant of the charge against him sufficiently to allow him to prepare an adequate
defense at trial and does prosecution under the deficiently-drafted indictment subject the defendant
to the risk of being prosecuted later for the same crime?  Gollihar v. State, supra at 257 (citing
United States v. Sprick, 233 F.3d 845 (5th Cir. 2000)).  
            Based on the evidence in this case, there is not a variance between the indictment and the
evidence at trial.  The State established that the victim was bedridden without medical attention for
over one year.  The indictment notified appellant of the charges against him, and he was able to
present a proper defense.  Appellant is not in danger of being tried twice for the same offense in this
case.  Appellant’s second point of error is overruled. 
            Finally, we will discuss the trial court’s decision to exclude the expert testimony of Dr.
Hines.  The trial court’s decision to admit scientific evidence is reviewed under an abuse-of-discretion standard.  Griffith v. State, 983 S.W.2d 282, 287 (Tex.Cr.App.1998), cert. den’d, 582 U.S.
826 (1999).  An appellate court will not reverse a trial court’s ruling unless that ruling falls outside
the zone of reasonable disagreement.  Burden v. State, 55 S.W.3d 608, 615 (Tex.Cr.App.2001). 
            The trial court’s role is to act as a “gatekeeper” by admitting only expert testimony that will
help the trier of fact understand the evidence or to determine a fact in issue.  Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 595-99 (1993).  A proponent of expert evidence must show,
by clear and convincing evidence, that the evidence proffered was sufficiently relevant and reliable
to assist the jury in reaching accurate results.   TEX.R.EVID. 702; Kelly v. State, 824 S.W.2d 568
(Tex.Cr.App.1992).  Relevant testimony is testimony that ties scientific principles to the facts of the
case.  Jordan v. State, 928 S.W.2d 550 (Tex.Cr.App.1996).  Reliable testimony derived from
scientific theory must satisfy three criteria:  (1) the underlying scientific theory must be valid;  (2)
the technique applying the theory must be valid; and (3) the technique must have been properly
applied.   Kelly v. State, supra at 573.  Reliability of testimony based on training and experience is
subject to less stringent standards.  In such cases, the questions to answer are: (1) whether the field
of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the
scope of that field; and (3) whether the expert’s testimony properly relies upon and utilizes the
principles involved in that field. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000)(citing 
Nenno v. State, 970 S.W.2d 549, 561 (Tex.Cr.App.1998), overruled on other grounds by State v.
Terrazas, 4 S.W.3d 720 (Tex.Cr.App.1999)). 
            Dr. Steven Wayne Hines, N.D. testified that he was a naturopathic doctor and had clinics in
Acuna, Mexico; San Angelo; Lubbock; Abilene; and Durango, Colorado.  He received his doctorate
in naturopathic medicine from the Herbal Healer Academy of Naturopathic Medicine in Mountain
View, Arkansas.  Before receiving his degree in naturopathy, Dr. Hines had practiced naturopathic
medicine for six years under several different medical doctors.  Dr. Hines testified that, because
Texas does not have a State Board of Naturopathy, he could not “put substances into the veins of
[his] patients” in Texas.  Dr. Hines stated that he has about 600 patients.  He also explained the
differences between naturopathic medicine and “mainstream or allopathic medicine.”  It is the belief
of naturopaths that diseases are a result of toxic exposure to chemicals and solvents as well as
nutritional deficiencies and gastric disturbances.   Naturopaths use natural elements to detoxify the
body and control the patient’s diet.  Dr. Hines testified that he had lectured on the subject of
naturopathy in various settings and had also written several articles and books.  Specifically, he had
lectured on herbal organic medicine.  Dr. Hines testified that there were hundreds of studies done
all over the United States pertaining to naturopathy.  While he could discuss the nature and some
results of one specific test, Dr. Hines was unable to testify as to where the study took place, where
the findings were published, as well as the name of the study.   Dr. Hines could not identify any of
the names of the tests conducted in relation to naturopathic medicine or where they were conducted,
and he only gave general results of the tests.  See Weatherred v. State, supra at 543.  He recalled one
journal article relating to naturopathy that was published in the New England Journal of Medicine
but did not know when it was published or the name of the study.  Also, a copy of the journal was
not entered into evidence.  Dr. Hines testified that he was able to see beneficial results from
naturopathic treatment  in his patients.  He further testified that naturopathic medicine could be
chosen as a form of treatment because of religious convictions or bad past experiences with
conventional medicine. 
            Dr. Hines testified that he never saw Mrs. Presswood,  that he only talked to appellant on the
phone about her care, and that he recommended some nutritional supplements.  Dr. Hines also talked
to Mrs. Presswood’s treating physician at the hospital about some of his recommendations for her
treatment.  Dr. Hines told the jury about the benefits of each nutritional supplement that was on the
list of supplements that appellant gave to his mother.  However, he did not give details as to the
specific effects the 11 nutritional supplements had on Mrs. Presswood, and he stressed that he never
saw her.  He reviewed the medical records but did not know how the supplements affected Mrs.
Presswood.  Dr. Hines also testified that appellant indicated to him that he did not want his mother
to go to the hospital at all costs and that, finally, appellant took his mother to the hospital because
he was unable to care for her anymore.  
            The trial court did not abuse its discretion when it excluded Dr. Hines’s testimony.  Appellant
failed to show that Dr. Hines’s testimony was either reliable or relevant.  See Daubert v. Merrell
Dow Pharmaceuticals, Inc., supra; Weatherred v. State, supra; Nenno v. State, supra; Jordan v.
State, supra; Kelly v. State, supra.  Appellant’s first point of error is overruled. 
            We affirm the judgment of the trial court.
 
                                                                                    JIM R. WRIGHT
                                                                                    JUSTICE 
 
December 11, 2003
Publish.  See TEX.R.APP.P. 47.2(b).
Panel consists of:  Arnot, C.J., and
Wright, J., and McCall, J. 
