                                 NUMBER 13-11-00119-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


JAMES BALDWIN,                                                                          Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                      Appellee.


                      On appeal from the 377th District Court
                            of Victoria County, Texas.


                                 MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Garza and Vela
                   Memorandum Opinion by Chief Justice Valdez
        By five issues, which we have reorganized and renumbered, appellant, James

Baldwin, appeals his conviction and 15-month sentence for the state jail felony offense

of injury to a child by criminal negligence. See TEX. PENAL CODE ANN. § 22.04(a)(1), (g)

(West Supp. 2011). We affirm.1


        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
                               I. SUFFICIENCY OF THE EVIDENCE

       In his first issue, appellant argues that the evidence is insufficient to support his

conviction for injury to a child.

       A.      Standard of Review

       Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, 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 (1979); Brooks v. State, 323 S.W.3d 893, 899-99 (Tex.

Crim. App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering

all of the evidence in the light most favorable to the verdict, was a jury rationally justified

in finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of

the credibility of witnesses and of the weight to be given to their testimony. Anderson v.

State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).               Reconciliation of

conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies

in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000)).

       In reviewing the sufficiency of the evidence, we look at events occurring before,

during, and after the commission of the offense, and we may rely on actions of the

appellant that show an understanding and common design to do the prohibited act. See

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point




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directly and independently to the appellant’s guilt, so long as the cumulative effect of all

the incriminating facts is sufficient to support the conviction. Id.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 307

(Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       B.     Discussion

       Under a hypothetically correct jury charge, the State was required to prove that

appellant, acting with criminal negligence, caused a child serious bodily injury. See

TEX. PENAL CODE ANN. § 22.04(a)(1). Appellant complains that the State failed to meet

this burden because there was no eyewitness testimony offered at trial and because the

State’s evidence against him is therefore purely circumstantial.       But see Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.”).

       At trial, the State offered evidence and testimony that appellant caused serious

bodily injury to a child, age two months or younger, by grabbing the child with his hands

and shaking the child, thereby causing the child to suffer trauma to his head and torso.




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The evidence showed that appellant was home alone with the child at the time the child

sustained these serious bodily injuries.

       There was also expert medical testimony offered by the State showing that the

head injuries caused to the child in this case are seen in babies who have been ejected

from cars and babies who have been the victims of abusive trauma. There was also

expert medical testimony offered by the State showing that the torso injuries suffered by

the child in this case (rib fractures) may be caused by the whiplash from acceleration

and deceleration.    Finally, there was the following testimony from an employee of

Driscoll Children’s Hospital, where the child was taken to be treated after the injuries:

       [Appellant] said that he did have some concern with his style of burping
       the child, He said that he’s unsuccessful when he carries the child up near
       his shoulder, so he will hold the child while supporting his head and he
       pats him while the child is sitting up. And [appellant] said, “If that’s what
       caused all of this, it was me. I will never do that again.”

       We conclude that the foregoing evidence is sufficient to prove appellant’s guilt.

The evidence established that the child suffered serious bodily injuries.        There was

evidence that appellant was alone with the child at the time the child sustained the

injuries. In addition, the expert testimony established that the injuries were consistent

with physical abuse. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.—San

Antonio 1997, pet. ref’d) (stating that medical testimony and circumstantial evidence are

sufficient to prove causation) (citing Barrera v. State, 756 S.W.2d 884, 885 (Tex. App.—

San Antonio 1988, pet. ref’d)).

       To the extent appellant’s complaint that there was no eyewitness testimony

pertains to the jury’s finding of a culpable mental state, we note that a culpable mental

state generally must be established by circumstantial evidence and may be inferred



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from the acts, words, and conduct of the accused. See id. Moreover, “[intent] may also

be inferred from the extent of the injuries and the relative size and strength of the

parties.” Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In this case,

the jury’s finding that appellant acted with criminal negligence is supported by the

foregoing factors, in addition to appellant’s statement, “If that’s what caused all of this, it

was me. I will never do that again.”

        Accordingly, appellant’s first issue is overruled.

                                    II. EVIDENTIARY ERROR

        In issues two, three, four, and five, appellant complains of evidentiary error by the

trial court.

        A.     Standard of Review

        The standard of review for a trial court's ruling under the rules of evidence is

abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). If

the ruling was correct on any theory of law applicable to the case, in light of what was

before the trial court at the time the ruling was made, then we must uphold the

judgment. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Weatherred v.

State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Romero v. State, 800 S.W.2d 539,

543-544 (Tex. Crim. App. 1990).

        B.     Discussion

        In his second, third, fourth, and fifth issues, appellant complains that the trial

court erred in admitting evidence of extraneous bad acts involving injury to a child.

Before trial, appellant filed a motion in limine, which the trial court denied. When the

evidence was offered at trial, appellant did not object to its admission.



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       The trial court’s pre-trial ruling on a motion in limine is a preliminary ruling only

and normally preserves nothing for appellate review. See Geuder v. State, 115 S.W.3d

11, 14-15 (Tex. Crim. App. 2003). In this case, appellant’s motion in limine was a true

motion in limine, requesting that “the Court enter an order instructing the State, its

agents, its employees and its witnesses not to mention, allude to or refer to, in any

manner, [the complained of evidence] in the presence of the jury . . . [until] a hearing [is]

. . . held outside the presence of the jury for determination [of] whether [the evidence is

admissible].” See Draughon v. State, 831 S.W.2d 331, 333 n.1 (Tex. Crim. App. 1992)

(noting that the defendant’s motion was not a true motion in limine because “it does not

constitute a request that the admissibility of evidence or disposition of other matter by

the court be determined outside the jury’s presence . . . . Ordinarily, we do not consider

a motion in limine sufficient to preserve for appellate review the exclusion of evidence,

because there is no adverse ruling on the admissibility of such evidence until it is

tendered and an objection interposed”) (internal citations omitted). Accordingly, even

though the trial court denied appellant’s motion in limine before trial, it was still

necessary for appellant to object to the evidence when the State tendered it for

admission during trial. See Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App.

1985) (stating that “for error to be preserved with regard to the subject matter of the

motion in limine it is absolutely necessary that an objection be made at the time when

the subject is raised during trial”). Appellant failed to make an appropriate objection at

trial and therefore failed to preserve his complaint for appellate review. See Martinez v.

State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (explaining that to preserve error, an




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objection   must   be   timely,   specific,   pursued    to   an   adverse   ruling,   and

contemporaneous—that is, made each time inadmissible evidence is offered).

      Appellant’s second, third, fourth, and fifth issues are overruled.

                                     III. CONCLUSION

      The judgment of the trial court is affirmed.



                                                        __________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
16th day of August, 2012.




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