                                      NO. 12-14-00101-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

BILLY WAYNE HASEL,                                    §         APPEAL FROM THE 3RD
APPELLANT

V.                                                    §         JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §         ANDERSON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Billy Wayne Hasel appeals his convictions for capital murder and injury to a child. He
raises one issue regarding the sufficiency of the evidence for each conviction. We affirm.


                                              BACKGROUND
       An Anderson County grand jury returned a three count indictment against Appellant for
the offenses of capital murder, murder, and injury to a child. Appellant pleaded “not guilty” to
each of the three counts, and a jury trial was held. The jury found Appellant guilty of capital
murder and injury to a child. Because the State did not seek the death penalty, Appellant was
automatically sentenced to life without parole for the capital murder offense. 1 The trial court
assessed Appellant’s punishment for the injury to a child offense at twenty years of imprisonment,
to run concurrently with his capital murder sentence. This appeal followed.




       1
           See TEX. PENAL CODE ANN. § 12.31 (West Supp. 2014)
                                        SUFFICIENCY OF THE EVIDENCE
         In his sole issue, Appellant challenges the sufficiency of the evidence and argues that his
convictions are “based upon no more fact than he was present during the injury, and thus had the
culpable mental state to effect murder or injury to the child.”2
Standard of Review
         When sufficiency of the evidence is challenged on appeal, we view all of the evidence in
the light most favorable to the verdict to decide whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). We defer to the trier of fact’s responsibility to resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. A jury is permitted to draw multiple reasonable
inferences as long as each inference is supported by the evidence presented at trial. Hooper v.
State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). However, juries are not permitted to come to
conclusions based on mere speculation or factually unsupported inferences or presumptions. Id.
Thus, in applying the Jackson v. Virginia standard, we determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict. See Garcia v. State, 367 S.W.3d 683, 687 (Tex.
Crim. App. 2012).
         The sufficiency of the evidence is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
A hypothetically correct jury charge 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. Id.
         As set forth in count I of the indictment, the State was required to prove beyond a
reasonable doubt that Appellant intentionally or knowingly caused the death of Deacon Jack
Garay, causing blunt force trauma by his hands, feet, an object, or in an unknown manner and



         2
            Appellant also argues that the evidence is factually insufficient to support the jury’s findings. “We do not
review the factual sufficiency of the evidence to support a jury’s finding on the elements of a criminal offense that the
State is required to prove beyond a reasonable doubt.” Lucio v. State, 351 S.W.3d 878, 895 (Tex. Crim. App. 2011).


                                                           2
means, and that Deacon Jack Garay was an individual younger than ten years of age. See TEX.
PENAL CODE ANN. § 19.02(b) (West 2011), § 19.03(a)(8) (West Supp. 2014).
       As set forth in count III of the indictment, the State was required to prove beyond a
reasonable doubt that Appellant intentionally or knowingly caused serious bodily injury or serious
mental deficiency, impairment, or injury to Deacon Jack Garay by blunt force trauma using his
hands, feet, an object, or in an unknown manner and means, and Deacon Jack Garay was a child
fourteen years of age or younger. See TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2014).
Applicable Law
       Capital murder and injury to a child are result oriented offenses. See Louis v. State, 393
S.W.3d 246, 251 (Tex. Crim. App. 2012); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). When the State prosecutes a result oriented offense, it is not enough to prove that the
defendant engaged in conduct with the requisite criminal intent. Lee v. State, 21 S.W.3d 532, 540
(Tex. Crim. App. 1978). The State must also prove that the defendant caused the result with the
requisite criminal intent. Id. Generally, this is proven by circumstantial evidence. See Dillon v.
State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978) (stating that proof of mental culpability
generally relies on circumstantial evidence).
       A person acts intentionally with respect to a result of his conduct when it is his conscious
objective or desire to cause the result. See TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Intent
may be inferred from the accused’s acts, words, and conduct. Patrick v. State, 906 S.W.2d 481,
487 (Tex. Crim. App. 1995). Intent may also be inferred from the extent of the injuries to the
victim, and the relative size and strength of the parties. Id.
       A person acts knowingly with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(b). The mental
state of “knowingly” does not refer to the defendant’s knowledge of the actual results of his
actions, but knowledge of what results his actions are reasonably certain to cause. Howard v.
State, 333 S.W.3d 137, 140 (Tex. Crim. App. 2011). Knowledge may be inferred from the
surrounding circumstances. Dunn v. State, 13 S.W.3d 95, 98–99 (Tex. App.—Texarkana 2000,
no pet.). And just as a jury may infer intent from the accused’s act, words, and conduct, the jury
may also infer knowledge. See id. In murder cases, evidence of a particularly brutal or ferocious
mechanism of death, inflicted upon a helpless victim, can also be controlling on the issue of intent




                                                   3
or knowledge. Martin v. State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).
         Because Appellant’s sole challenge concerns mens rea, we limit our discussion to factors
supporting inferences of knowledge and intent. See TEX. R. APP. P. 47.1.
Discussion
         On September 1, 2011, Appellant called Palestine EMS and reported that Deacon Jack
Garay, his two-year-old stepson, fell off the first step of the stairs and was unconscious. When
paramedics Nathan Cole and Andrea Stapleton arrived, they saw Deacon lying on the floor,
unresponsive, and in “very critical” condition. His chin was tucked down to the right, his feet
were pointed down, and he was “posturing.”3 His neck and arms were stiff and his pupils were
unequal and nonresponsive. All of these signs indicated that Deacon had suffered a brain injury.
         Deacon’s Injury
         Shilite Edwards was the charge nurse at Palestine Regional Medical Center when Deacon
arrived at the emergency room. She did not see any contusions to the back of Deacon’s head, or
any lacerations, discoloration, or blood anywhere else on his head. However, another nurse,
Meagan Linton Defrance, testified that she observed bruising on Deacon’s arms and “side of his
face.”4 She testified that Deacon was posturing, and had no reaction when intubated or stuck with
the IV. Defrance also testified that Deacon’s pupils indicated a “massive head injury,” which was
confirmed by a CT scan. A helicopter flew Deacon to Children’s Medical Center in Dallas where
he underwent neurosurgery that day.
         Deacon was diagnosed with having a blood clot and hemorrhaging in his brain. The
surgery and CT scans showed a “midline shift,” which is known to cause alterations in breathing
and consciousness, seizures, changes in pupils, and posturing. However, Deacon had no medical
history of seizures or neurological disorders, bleeding disorders, or spontaneous bruising.
         Dr. Matthew Cox, a physician at the University of Texas Southwestern Medical School
and medical director of the Referral Evaluation of At-Risk Children (REACH) in Children’s
Medical Center, examined Deacon after his surgery. Dr. Cox testified that he saw bruises on
Deacon’s arm, hand, leg, and foot, which he found concerning. He also observed bruising on
Deacon’s head, but he could not determine the cause of the bruising because it could have been
         3
             The record indicates that “posturing” is an involuntary motion that occurs as a result of a brain injury.
         4
           Lori Webb, another nurse working in the emergency room when Deacon arrived, testified that she saw
bruising on Deacon’s arms and legs.


                                                              4
the result of his injury or of the surgery. Dr. Cox concluded that the “pattern [of Deacon’s
injuries] is not consistent with accidental injuries in the absence of a clear and consistent history
of trauma, and the findings are consistent with inflicted injuries and child abuse.”
         Dr. Jeffrey Barnard, the chief medical examiner for Dallas County and director of the
Southwestern Institute of Forensic Science, conducted Deacon’s autopsy. The autopsy revealed
that Deacon suffered from hemorrhaging located at the sides of his head, but no contusions to the
back of his head.5 Dr. Barnard did not believe Deacon hit the back of his head because there was
no impact site in that area. He testified that the bruising he observed on the side of Deacon’s head
could either be evidence of treatment or evidence of the impact site. Dr. Barnard testified that if
the bruise was there when Deacon was first seen, it would be a traumatic injury, correlating with a
blunt force injury site.
         Dr. Barnard’s autopsy report stated that the “findings and circumstances are worrisome for
non-accident trauma.” Dr. Barnard believed Deacon died of blunt force injuries because an
asymmetrical injury to the brain, such as Deacon had, indicates a blunt force injury. However, Dr.
Barnard’s conclusion as to Deacon’s manner of death was “undetermined” because Deacon had
undergone medical treatment, and he could not determine whether the bruising on his head
occurred before or after medical treatment.6
         Appellant’s Statements
         Appellant reported to EMS that Deacon fell approximately three feet off the first step in
the apartment. He related a similar explanation to Deacon’s mother and to Palestine police officer
Marcos Lara. But he told paramedic Nathan Cole that Deacon fell over the banister and onto the
floor.
         Nurse Edwards testified that she heard Appellant explaining that Deacon acted like he was
choking and arched his back and neck before falling down the stairs. Appellant gave a similar
explanation to Investigator James Muniz the next day, stating that Deacon appeared to have a
seizure before falling. When he spoke to CPS investigator Monica Cole, Appellant told her that
Deacon acted “odd” the night before by “knock[ing] a cup of milk over several times and he
spilled it on the remote control and other items and laughed about it.” He told her that when

         5
           Dr. Barnard also noted bruising on Deacon’s tongue, left shoulder, right foot, base of right thumb, and
lower left of his abdomen and flank area.
         6
          Dr. Barnard testified that there are five manners of death: natural, suicide, homicide, accident, and
undetermined.


                                                        5
Deacon was told not to do it again, Deacon responded by saying “what” several times. However,
when Appellant spoke to Sergeant Larry Reeves, an investigator for the Inspector General’s
Office, he did not mention anything about Deacon’s spilling milk or anything out of the ordinary
happening the night before.
       Appellant’s Conduct
       Officer Lara testified that Appellant was emotional and “pacing” in and out of the
apartment while paramedics attempted to treat Deacon. Paramedic Andrea Stapleton testified that
when they arrived, Appellant consistently talked over Deacon’s mother and repeatedly said, “You
can’t let him die, he can’t die, you can’t let him die.” Stapleton testified that she believed
Appellant’s attitude towards Deacon was “more callous than loving.” She further testified that
she overheard Appellant talking on his cellular phone saying “[i]f [Deacon] died, they were going
to blame him.”
       The day after Deacon was admitted to Children’s Hospital, Investigator Cole met
Appellant at the apartment to gather clothing and belongings for Deacon’s two oldest siblings.
During this encounter, Appellant related that Deacon fell backwards and hit his head. Cole
testified that she maintained a safe distance from Appellant during her meeting with him because
he was a “very big guy” and she did not want to enter “his space.” As she continued her
conversation with him and talked about placing Deacon’s older brothers in foster care, Appellant
became increasingly agitated and “slapped” an ashtray that “went across the room towards the
kitchen and in the room.”
       Sergeant Larry Reeves testified that he interviewed Appellant at Children’s Medical
Center in Dallas, and at his apartment. Sergeant Reeves testified that he noticed a broken ashtray
near the couch in Appellant’s apartment. Appellant told Reeves they broke the ashtray in a rush
to get to the hospital the previous morning.
       Surrounding Circumstances
       Nurse Defrance testified that when she saw Deacon arrive at the emergency room on
September 1, 2011, she “wondered why CPS hadn’t removed [Deacon] from the home already.”
Defrance’s surprise was due to her having treated Deacon on June 30, 2011, for a head injury he
incurred while in his mother’s and Appellant’s care. The head injury consisted of a large bruise
on the right side of Deacon’s face and temple area. Deacon’s father told Nurse Defrance that




                                                6
Appellant was responsible for the injury. 7 The trial court admitted photographs showing that the
bruise went from Deacon’s right temple up to his forehead, above his right eye. Because the
bruise was not consistent with a fall, Defrance notified law enforcement and CPS.
          Marty Hollis was the CPS investigator who received the June 30 report alleging that
Appellant abused Deacon by striking him in the head.8 Hollis interviewed Appellant, Deacon’s
parents, grandparents and siblings, and the manager of the apartment complex.                             Due to the
allegations and Deacon’s visible injury, Hollis developed a safety plan that required Appellant to
live apart from Deacon’s mother and her three children. However, Appellant moved back in, with
CPS’s permission, on July 18, 2011.
          On July 28, 2011, Hollis conducted a visit of Appellant’s home and noted a small abrasion
on the left side of Deacon’s forehead. A photograph of Deacon’s injury was admitted into
evidence that actually showed two bruises. Appellant told Hollis that Deacon bruised his head by
running through the house and sliding into a wall. Hollis testified that Deacon then pointed at his
forehead and told him, “I hit my head.” Dr. Cox saw these photographs and testified that the
bruising was inconsistent with Appellant’s explanation.
          On August 10, 2011, Hollis conducted another visit during which Appellant advised him
that Deacon fell and cut his lip.9 But Appellant gave Deacon’s mother a different explanation.
Appellant told Deacon’s mother that he swung his arm back and hit Deacon in the lip when
Deacon was walking closely behind him.
          Martha Garay, Deacon’s paternal grandmother, testified that after Deacon was injured on
June 30, he never wanted to return to Appellant’s home.                          She stated that he would hide
underneath the kitchen table when it would be time for him to return.
          Lastly, Deacon’s mother testified that Appellant “is OCD” and that he “does not like
sticky at all.” She explained that once, when Appellant spilled a drink on himself, he cursed and
“threw the kids’ chair across the room.” She further testified that Appellant later told her that
right before they went back upstairs (on September 1, 2011), he had gotten into a “fight” with



          7
              Deacon’s father related that he learned from his two older children that Appellant was responsible for the
injury.
          8
              At the time of trial, Hollis was no longer a CPS employee.
          9
           Hollis did not see a visible injury, but medical records showed that Deacon had a “lip contusion” during
that time period.


                                                             7
Deacon because Deacon had spilled his drink. He related that he “had got onto him to the point
where [Deacon] was crying, and that was right before they went upstairs.”10
Conclusion
         It is undisputed that Deacon suffered hemorrhaging to the right side of his brain and none
to the back of his head. Nurse Defrance’s testimony about the bruising on the side of Deacon’s
face validated Dr. Cox’s and Dr. Barnard’s testimony that Deacon’s injury was caused by blunt
force trauma. Appellant does not challenge the sufficiency of the evidence proving that he
engaged in conduct that caused Deacon’s injury and death. See Lee, 21 S.W.3d at 540. His sole
complaint is that the evidence is insufficient to show that he caused the result with the requisite
criminal intent. See id.
         Appellant’s repeated exclamations that Deacon “couldn’t die,” his multiple versions of
how Deacon was injured, his “callous” attitude, and his telephone conversation about being held
responsible for Deacon’s injury indicate a consciousness of guilt. This evidence, when viewed in
light of Appellant’s size, his causing Deacon’s cut lip during an ongoing CPS investigation, his
explosive behavior in response to having spilled a drink, and his later admission that Deacon
spilled a drink on himself before going upstairs, supports a finding that Appellant was aware that
his conduct (blunt force trauma) was reasonably certain to cause Deacon’s injury and subsequent
death. See TEX. PENAL CODE ANN. § 6.03(b); Garcia, 367 S.W.3d at 687.
         After viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could reasonably infer that Appellant knowingly caused Deacon’s injury and
subsequent death. See Garcia, 367 S.W.3d at 687. The evidence is legally sufficient to support
Appellant’s convictions for capital murder and injury to a child. Accordingly, we overrule
Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
                                                                           BRIAN HOYLE
                                                                              Justice
Opinion delivered June 17, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                              (DO NOT PUBLISH)

         10
            During one of his interviews with Sergeant Reeves, Appellant related that Deacon “got choked” on a drink
and spilled some of it onto his chest, but Deacon told him he was okay.


                                                              8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 17, 2015


                                         NO. 12-14-00101-CR


                                      BILLY WAYNE HASEL,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31066)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
