                                                                          PD-1429-14
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 12/1/2015 5:02:37 PM
                                                          Accepted 12/2/2015 9:30:10 AM
                                                                          ABEL ACOSTA
                 ORAL ARGUMENT REQUESTED                                          CLERK



                                                             December 7, 2015

                             NO. PD-1429-14

              IN THE COURT OF CRIMINAL APPEALS
                    OF THE STATE OF TEXAS
                   SITTING AT AUSTIN, TEXAS


                       KENNETH WALKER,
                                Petitioner,

                                  VS.

                      THE STATE OF TEXAS
                                 Respondent


                 On Petition for Discretionary Review
                   To the Court of Appeals Twelfth
                  Supreme Judicial District Cause
                         No. 12-12-00378-CR


                      BRIEF ON THE MERITS


James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net

ATTORNEY FOR PETITIONER
           IDENTITY OF THE PARTIES AND COUNSEL

APPELLANT:
    Kenneth Walker

APPELLANT’S TRIAL COUNSEL:
    Scott Ellis
    419 West Houston Street
    Tyler, Texas 75702
    903-596-7600
    903-596-7605 (Fax)

     Cameron Castleberry
     422 South Spring Avenue
     Tyler, Texas 75702
     903-330-3909

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jason Parrish
    Jeff Wood
    Kenneth Biggs
    Smith County District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720



                                 i
APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720




                                 ii
                                   TABLE OF CONTENTS

DESCRIPTION                                                            PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    The Court of Appeals erred in finding legally sufficient
    evidence in this case, and allows this Court to reexamine the
    issue of factually sufficient evidence from Brooks v. State,
    323 S.W.3d 893 (Tex. Crim. App. 2010)

ISSUE TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    The Court of Appeals erred in allowing a speculative verdict to
    stand in contrast to this Court’s instructions.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

        A. Clewis and Brooks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
        B. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
        C. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
        D. Speculative Verdict Allowed to Stand. . . . . . . . . . . . . . . . . . . 20
                                                   3
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25




                                                  4
                               INDEX OF AUTHORITIES

STATUTES
TEX. PENAL CODE ANN. §22.04(a)(1) (West 2011). . . . . . . . . . . . . . . . . . . 2

CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).. . . . . 3, 6, 7, 17
Clayton v. State, 235 S.W. 3d 772 (Tex. Crim. App. 2007). . . . . . . . . . 22
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1997). . . . . . . . . . . 7, 8
Garcia v. State,367 S.W.3d 683, 687 (Tex. Crim. App. 2012). . . . . . . . 22
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). . . . . . . . . . 21
Jackson v. Virginia, 443 U.S. 307, 319 (1979). . . . . . . . . . . . 7, 18, 19, 20
Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990). . . . . . . . . 9
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Texas 1986). . . . . . . . . . . 9
Ex parte Schuessler, 846 S.W.2d 850 (Tex. Crim. App. 1993). . . . . . . . . 8
Tibbs v. Florida, 457 U.S. 31 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Walker v. State, 12-12-00379-CR, 2014 Tex. App. LEXIS 10466 (Tex.
App. – Tyler). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Walker v. State, No. 12-12-00378-CR, 2014 Tex. App. LEXIS 10443
(Tex. App. – Tyler) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

RULES
TEX. R. APP. P. ANN. 9.4 (West 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 25




                                                 5
                              PD-1429-14

KENNETH WALKER,                     §        IN THE COURT OF
PETITIONER                          §
                                    §
VS.                                 §        CRIMINAL APPEALS
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §        AUSTIN, TEXAS


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Kenneth Walker, Petitioner and Defendant in the trial court,

respectfully submits this Brief on the Merits complaining of the ruling

and opinion by the Court of Appeals for the Twelfth Supreme Judicial

District, and would show the Court as follows:



           STATEMENT REGARDING ORAL ARGUMENT

      This Court has granted oral argument so that all matters may be

clarified and any questions presented by the briefs of the parties may

be addressed in a proper manner. Counsel is prepared to appear at the

Court’s pleasure.




                                    1
                    STATEMENT OF THE CASE

     Kenneth Walker was indicted for the first degree offense of injury

to a child in Smith County Texas on May 10, 2012. CR 1-21; TEX PENAL

CODE ANN. §22.04(a)(1) (West 2011). The case was consolidated for

trial with his wife, Shelley Walker. IV RR 21-252. Following the

presentation of evidence, the Walkers were convicted. CR 266. The

jury assessed punishment at twenty-five years confinement. CR 281,

285-86. Notice of appeal was timely filed. CR 298. The Court of

Appeals affirmed the trial court’s judgment in an unpublished opinion.

This Court granted discretionary review.




     1
       References to the Clerk’s Record are noted as “CR” with
an arabic numeral following “CR” specifying the correct page.
     2
       References to the Reporter’s Record are noted as “RR” with
a roman numeral preceding “RR” indicating the volume, and an
arabic numeral following specifying the applicable page in the
record.

                                   2
                        ISSUES FOR REVIEW

ISSUE ONE: The Court of Appeals erred in finding legally
sufficient evidence in this case, and allows this Court to reexamine
the issue of factually sufficient evidence from Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010).

ISSUE TWO: The Court of Appeals erred in allowing a speculative
verdict to stand in contrast to this Court’s instructions.




                       STATEMENT OF FACTS

     Shelley and Kenneth Walker adopted their three grandchildren

after they were removed by CPS due to abuse and neglect. V RR 54,

VIII RR 70-71. B.W., one of the adopted grandchildren was alleged as

the victim in this indictment.3 B.W. had scald burns to both feet, most

likely caused by water in the family’s bathtub. VI RR 104-5.

     The State’s theory was that B.W. was forcibly immersed by both

of the Walkers and held in the water. IX RR 136. The Walkers theory

was that B.W. caused the injuries herself accidentally.

     B.W. had been burned at approximately 8:35 to 8:38 that

morning. VII RR 65. Shelley Walker began calling Amanda Walker at


     3
         References to juveniles are made by initials.

                                    3
8:38 that morning. VII RR 109. At that point, B.W.’s feet were red and

Amanda instructed Shelley Walker to put them in cold water. VII RR

111. Then B.W.’s skin began to peel and Amanda instructed the

Walkers to call EMS. VII RR 112. At 8:54 Kenneth Walker called 911

and was connected with the Tyler Police Department. VII RR 19, 25.

EMS was dispatched at 8:56 a.m. VII RR 139.

     Upon initial inspection by police, the water heater was set one

level below the maximum temperature. VII RR 120. The thermostat

was then turned on and allowed to heat for thirty minutes. VII RR 121.

At that thermostat setting the water temperature was checked in the

kitchen, the master bathroom sink and the bathtub and each resulted

in a maximum temperature of 120-122 degrees Fahrenheit. VII RR

122-23. The officers then increased the setting to the maximum and

were able to achieve a maximum temperature of 131 degrees in the

master bathroom from the tap. VII RR 127. In the tub, with four to six

inches of water the maximum temperature was 128 to 129 degrees. VII

RR 127.

     A ten to fifteen second exposure to water at 130 degrees would be

sufficient to cause these types of injuries. VI RR 111.   However, if the
                                    4
water was 126-129 degrees, a second degree burn could take two

minutes. VIII RR 24. Initially, the treating physician believed that the

burns were severe and would require grafting. VIII RR 11. The burns

were able to heal without the need for skin grafts or reconstruction. VI

RR 110.

     Water heated to this temperature would not produce burns

instantly, and if water that temperature had been splashed onto the

skin, it would not have left any splash marks. VI RR 121, 123. The tub

itself even when completely turned off allowed a pencil size stream of

water to enter the tub. VII RR 64-65, 79.

     B.W. and N.W. both had their underclothes on the floor in the

bathroom. VI RR 145, XVI RR State Ex. 40. The height of the bathtub

meant that B.W. could not climb in or out of the tub one foot at a time,

like an adult. VI RR 144, VII RR 63-64. She would have to sit on the

edge of the tub to get in or out. B.W. also had scrapes on her thighs

consistent with sliding over a metal railing to get in or out of the

bathtub. VI RR 134-35. The bathtub had sliding glass doors with a

metal frame surrounding the doors including on the tub itself. VII RR

49, XVI RR State Ex. 40. N.W., had been diagnosed as autistic and
                                    5
described as an ‘instigator.’ VI RR 35, VIII RR 100. He has previously

pulled his sister B.W. into the bathroom and locked the door. VI RR

363.



                   SUMMARY OF THE ARGUMENT

       This case, and the companion case Shelley Walker v. State, PD-

1430-14, illustrate the necessity for a factual sufficiency of the evidence

review. Following the opinion in Brooks, the Court of Appeals analyzed

these cases using only a legal sufficiency analysis. The Walkers seek a

reversal of the Brooks plurality opinion and find the evidence was

factually insufficient to support the conviction. In this case, the

analysis at the Court of Appeals, following Brooks, allowed the

judgments to stand despite investigating officers changing the setting

of the water heater and a verdict which can only be characterized as

supported by inference upon inference based on speculation which is in

contrast with this Court’s previous rulings.




                                    6
                  ARGUMENT AND AUTHORITIES

Issue One, Restated: The Court of Appeals erred in finding legally
sufficient evidence in this case, and allows this Court to reexamine the
issue of factually sufficient evidence from Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010).

Issue Two, Restated: The Court of Appeals erred in allowing a
speculative verdict to stand in contrast to this Court’s instructions.



                          A. Clewis and Brooks

     Jackson established the standard of review to determine if

evidence was legally sufficient to support the verdict. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). The critical inquiry was, in viewing the evidence in the light

most favorable to the prosecution, whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. Jackson, 443 U.S at 319.

     In 1997, this Court held that because of Texas constitution and

statutory provisions, appellate courts were able to review fact

questions. Clewis v. State, 922 S.W.2d 126, 128 (Tex. Crim. App. 1997).

The idea that a factual sufficiency analysis was proper using the

Jackson standard was not sufficient for a review of factual claims.
                                   7
Clewis, 922 S.W.2d at 129. The proper standard was to view all the

evidence without the prism of “in the light most favorable to the

prosecution” and set aside the verdict only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust.

Clewis, 922, S.W.2d at 129.

     There are key differences between a Jackson and Clewis analysis.

If the evidence is legally insufficient, the case should not have been

submitted to a jury and an acquittal must be ordered. Tibbs v. Florida,

457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982). This substitutes

the finding of the appellate court for the jury decision. Clewis, 922

S.W.2d at 133. In contrast, a factual sufficiency review is a question of

fact. Ex parte Schuessler, 846 S.W.2d 850, 852, n. 5 (Tex. Crim. App.

1993). A reversal based on factual sufficiency will result in the

judgement being vacated and the case remanded for a new trial.

Clewis, 922 S.W.2d at 133-34.

     The Jackson standard does not incorporate a factual sufficiency

review, rather it is the minimum standard for comporting with federal

due process. Clewis 922 S.W.2d at 134.

     The Court has discussed sufficient safeguards so that an appellate
                                     8
decision does not usurp the jury function. Meraz, 785 S.W.2d 146, 154

(Tex. Crim. App. 1990). The Court recommended that the evidence

should be detailed as to the issue in question and clearly state why the

jury’s finding is so factually insufficient as to be manifestly unjust; why

it shocks the conscience; or clearly demonstrates bias. Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The appellate court should

also state in what regard the contrary evidence greatly outweighs the

evidence in support of the verdict. Id.

     In 2010, the Court eliminated the Clewis factual sufficiency

review. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The

Court found that the analysis between Clewis and Jackson was barely

distinguishable and that the legal sufficiency standard was the only

test to apply to determine whether the evidence was sufficient to

support each element beyond a reasonable doubt. Brooks, 323 S.W.2d

at 895. While Clewis had recognized there was an inherent difference

between the review for legally sufficient evidence and factually

sufficient evidence, the Court in Brooks found that there was no

meaningful distinction.



                                    9
                           B. Relevant Facts

     The Walkers had adopted three siblings through CPS. Walker at

*6. Evidence established that two of the children had overflowed the

bathtub and water flowed out from under the bathroom door. Walker

at *9. Two of the children had locked themselves in the bathroom and

overflowed the sink, toilet and tub. Id.. The Walkers installed locks on

the bathroom doors after these incidents. Id. These actions occurred

even though sliding glass doors with railings were installed on the tub.

Walker at *10.

     During the investigation, the water heater was set one level below

the maximum temperature. VII RR 120. The thermostat was then

turned on and allowed to heat for thirty minutes. VII RR 121. The

officers then increased the setting to the maximum and were able to

achieve a maximum temperature of 131 degrees in the master

bathroom from the tap. VII RR 127. In the tub, with four to six inches

of water the maximum temperature was 128 to 129 degrees. VII RR

127. Water heated 126-129 degrees would not produce burns instantly,

and if water that temperature had been splashed onto the skin, it

would not have left any splash marks. VI RR 121, 123.
                                   10
     A ten to fifteen second exposure to water at 130 degrees would be

sufficient to cause these types of injuries. VI RR 111.   However, if the

water was 126-129 degrees, a second degree burn could take two

minutes. VIII RR 24. So, the time required for these burns was up to

two minutes, during which time the Walkers were to have held the

child suspended in the water.

     B.W. and N.W. both had their underclothes on the floor in the

bathroom. VI RR 145, XVI RR State Ex. 40. The height of the bathtub

meant that B.W. could not climb in or out of the tub one foot at a time,

like an adult. VI RR 144, VII RR 63-64. She would have to sit on the

edge of the tub to get in or out. B.W. also had scrapes on her thighs

consistent with sliding over a metal railing to get in or out of the

bathtub. VI RR 134-35. The bathtub had sliding glass doors with a

metal frame surrounding the doors including on the tub itself. VII RR

49, XVI RR State Ex. 40. N.W., had been diagnosed as autistic and

described as an ‘instigator.’ VI RR 35, VIII RR 100.

     Amanda Walker testified that she did not believe that Shelley or

Kenneth Walker burned B.W. as the State alleged. VI RR 14. The

Walkers never raised their voice to the children. VI RR 36. Kenneth
                                    11
Walker has had a heart attack, a stroke, a pacemaker and degenerative

discs in his back. VI RR 162. Shelley Walker has back problems and

arthritis. VI RR 163. For either of the Walkers to forcibly immerse

B.W. in the tub would require more strength or physical exertion than

they would be able to perform. If this were an immersion burn, B.W.

would be expected to fight back, struggle, kick or try to get away from

the water. VI RR 164; X RR 34. There was no evidence of that in this

case.

        A twenty-six year old CPS worker who had not had a heart

attack, or stroke or other significant medical issues found it difficult to

hold a 27 pound doll in the same manner in an in-court demonstration.

VII I RR 104-105. A forty-one year old doctor did not find holding a

similar weighted doll in the position necessary to be the easiest thing. X

RR 36. The doctor had not had a heart attack, stroke or back problems.

X RR 37.

        One of the first Tyler Police Department officers to arrive at the

house testified that the case appeared to be an issue of an accident and

not enough supervision. VII RR 36-37.

        A different patrol officer believed because there were no splash
                                      12
marks, this was a forced immersion. VII RR 70-71. He also testified

that he had no experience as to how hot water had to be to cause burns,

and admitted to questioning by the State that everything he testified to

regarding B.W. was speculation. VII RR 77. This officer also testified

that when he arrived the tub was still full, and that if the tub had been

drained he would have taken that as an indication of hiding evidence.

VII RR 61-62. This despite his statement that he believed the Walker’s

as prudent parents should have drained the water. VII RR 61.

     The State’s primary expert witness on the issue of the injuries was

Dr. Wolf, the Chief of Burn Services and Professor and Vice Chairman

for Research in the Department of Surgery at the University of Texas

Southwestern Medical Center. VI RR 87. The only way that these

injuries would rise to the level of serious bodily injury, that is bodily

injury which creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment os

the function of any bodily member or organ would be if the burns were

left untreated. VI RR 117. Only if the burns were left untreated could

they rise to the level of serious bodily injury because of

a risk of infection and ongoing systemic problems. VI RR 117. As long
                                     13
as the burns were treated, it was “relatively straightforward.” VI RR

117. . Almost immediately, the skin would be red, but the peeling or

blistering consistent with a second degree burn would not develop for

some time. VI RR 119. It was possible for B.W. to walk down the hall

and seek assistance prior to the blisters developing. VI RR 120.

     So during the final witness for the prosecution, the State was left

with two possible conclusions from the evidence. One, that B.W. was in

the water accidentally ands was walking around on her own; or two

that she was submerged or immersed her and held in an elevated

position. X RR 32-33, 72, 91.

     Dr. Cox, the State’s final witness described how a three year old

child could be treated while in pain. At different points during the

case, Dr. Cox was either concerned about the scrapes and scratches to

B.W.’s legs, or not overly concerned. X RR 44-45. Dr. Cox also based

his assessment that this was abuse on the fact that he had treated

B.W.’s brother, T.W., for injuries years previously. X RR 47. This

occurred before the Walker’s adopted the children or were care-givers.

X RR 47. He ordered a skeletal survey and found no sign of previous

undiagnosed or untreated injuries. X RR 48-49. He found nothing in
                                   14
the family history to suggest abuse either. X RR 49.

     Dr. Cox assumed, and testified previously, that the water

temperature was at least 135 degrees and was probably well over 135

degrees. X RR 50-51. He did not know the results of the temperature

testing conducted by the Tyler police. X RR 52. His assessment was

conducted, and he based his opinion only on information in the first two

days following the burns, and was not reevaluated based on any other

evidence. X RR 53.

     Significantly, Cox also stated that there were no bruise marks or

hand prints or grasp marks to indicate B.W. was restrained in the

water. X RR 95.

     The Walkers called Dr. Scott Lawrence, a former engineer and

pilot in the Air Force and a physician since 2000. X RR 168. He was a

graduate of the Air Force Academy, received a master’s of science in

engineering management, and his medical training at the University of

Texas Medical Branch. X RR 168, 171. He currently works as an

emergency room and family practice physician. X RR 168-170. Dr.

Lawrence reviewed the police reports, the medical records, the pictures,

the interviews in the case, and did not agree to testify for the Walkers
                                    15
until he was well into the review process. X RR 173. Based on Dr.

Lawrence’s review of the evidence, the burns to B.W. were accidental in

nature. X RR 174.

     Like Dr. Cox, he considered the skeletal survey, all the

photographs, the family history. X RR 176-77. However, he also had

access to the actual location and bathtub where this occurred. X RR

176. He determined that the total slope in the bathtub was an inch and

a half, and that with a child, her feet shoulder width apart, the

difference in the burn marks of half an inch proved that she was trying

to get out and blocked by the shower door. X RR 180-81. Dr. Lawrence

provided the most thorough review and explanation of the evidence. X

RR 180-188.

     He also reviewed and analyzed the Walkers medical history and

came to the conclusion that neither Kenneth or Shelley Walker

individually or jointly were physically capable of holding B.W.

suspended in the air for the time required to cause the burns. X RR

188-192, 193. Neither of the Walkers had any burns to their hands or

arms, there was no evidence they were in the tub. X RR 192.



                                    16
                                C. Analysis

     In analyzing the facts, and in an effort to comply with this Court’s

guidance from Brooks, the appellate court stacked supposition upon

supposition in order to support the verdict in the case. B.W. could not

have been responsible for starting the water, despite evidence the

children had done that before. One of the Walkers must have knocked

the shower doors from the tracks, despite evidence about their age and

medical condition. Walker at *20-21. One of the Walkers, with their

medical conditions, must have held B.W. suspended in the tub of

scalding water with a child presumably fighting against them to escape

the water. Even the State’s experts testified that it would be difficult

for either of the Walkers to take these actions. Walker at *21. The

court examined, and disregarded, evidence of splash marks which did

not support the State’s theory. Walker at *13.

     The court resolved testimony regarding whether B.W. had the

physical ability to turn the faucet on by herself in favor of the verdict (a

detective opined she did not, while a treating physician noted that B.W.

had climbed out of a hospital crib with railings). Walker at *14-15.

     While there was testimony regarding the temperature of the
                                     17
water in the tub of less than 130 degrees, (at *11), the lack of splash

marks was an indicator of abuse because it showed that B.W. did not

fight or struggle. Walker at *15. However the temperature tested

could not raise to a temperature to cause splash marks. Id. A lack of

sparing to B.W.’s feet meant she was moving around in the tub, and not

being held to the bottom, despite Mr. Walker’s heart attack, stroke and

a pacemaker, carpal tunnel syndrome and wrist and shoulder surgery;

or Mrs. Walker’s hypertension, compression arthralgia hypertrophy

and arthritis. Walker at 817, 20-21.

     The State’s theory that B.W. was held suspended in the scalding

water disregards the scrapes and bruises present, and also disregards

the lack of finger marks or bruising consistent with being held securely.

Walker at 814, n. 7, and 819-20. The appellate court stated that

neither of the State’s experts considered: (1) the scratches on B.W.’s

chest and leg; (2) the fact that the bathtub had a metal track

surrounding the shower door; (3) the fact that the shower door was off

the track; (4) the Walkers’ physical capabilities. Walker at *34.

     In an effort to uphold the verdict, the Court of Appeals, in

accordance with a Jackson legal sufficiency analysis, ruled in every
                                    18
aspect to support the State’s theory. Simply regarding the State’s

evidence, the court found legally sufficient evidence despite: the

testimony that both the CPS worker and doctor found it ‘difficult’ to

demonstrate holding 26 pounds for the required amount of time; the

fact that it appears the officers changed the setting on the water heater

thermostat to produce the maximum temperature; the fact that Dr. Cox

did not know of the temperature testing performed and testified the

burns were consistent with a higher temperature (in excess of 135

degrees) than was possible; that Dr. Cox based his conclusion partially

on abuse which had occurred years previously before the Walkers were

involved in the lives of these children; that Dr. Cox disregarded the

absence of injuries which would have indicated forcible restraint; that

one of the first officers on scene determined this was an accident and

not intentional; that another officer determined this was a forced

immersion; that good parents would have drained the tub, but that if

the tub had been drained he would have believed they were hiding

evidence; that he had no knowledge of how hot water had to be to burn

and admitted that his opinion was speculation.

     Again based on a Jackson analysis, the court disregarded the
                                    19
evidence offered by Dr. Lawrence’s opinion that the burns were

accidental. Dr. Lawrence was the only expert to have access to the

scene as well as the complete medical history and offense reports. He

was the only witness able to identify and explain the discrepancy in

burn marks and the scrapes indicating an effort to leave the tub by the

child. He also was the only witness to review the Walkers medical

history and concluded that neither were individually or jointly capable

of holding B.W. suspended for the time required to cause these burns.

      Respectfully, these two cases establish the need not just for a

legal sufficiency review by the appellate courts, but a factual sufficiency

review. These cases demonstrate that while there may be legally

sufficient evidence, the verdict was so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.



                 D. Speculative Verdict Allowed to Stand

      By only analyzing the case under a Jackson analysis, the court

improperly allowed the verdicts in this case to be supported, inference

upon inference. While the reviewing court is to give deference to the

responsibility of the trier of fact to fairly resolve conflicts in testimony,
                                      20
to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts, specifically in this case, the reviewing court

viewed every fact and inference to uphold the verdict. Jackson, 4443

U.S. at 318-19.

     While juries are allowed to draw multiple inferences as long as

each inference is supported by the evidence, that did not occur here.

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). An inference

is a conclusion reached by considering other facts and deducing a

logical consequence from them. Id. A conclusion reached by

speculation may not be completely unreasonable, but it is not

sufficiently based on facts or evidence to support a finding beyond a

reasonable doubt. Id. While it is difficult to recognize the difference

between an inference and speculation, it is not impossible and is a fact

driven analysis.

     While this court expressed its disapproval of the term inference

stacking as adding unnecessary confusion, it has clearly disapproved a

speculative verdict and relied on the courts using a Jackson analysis to

determine if it was speculative. Hooper 214 S.W.3d at 18. As in these

cases, the appellate courts will draw these successive inferences even
                                     21
when there are serious questions as to the credibility of witnesses or

whether those inferences are even valid.

     A reviewing court should 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. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

As in this case, appellate courts can stack inferences even when that

type of analysis is not permitted. Garcia v. State, 367 S.W.3d 683, 687

(Tex. Crim. App. 2012).

     The difference in analysis is profound. By looking at the evidence

to support the verdict, courts apply one rational. Without a factual

sufficiency review, they are, as here, free to disregard reasonable

conclusions from the credible evidence and allow a speculative verdict

to stand. Without another discussion of the facts from this case, the

jury’s verdict is only based upon speculation, and possibly emotion, and

is not reasonable when examined cumulatively. These verdicts are

manifestly unjust and should be reversed.




                                    22
                             CONCLUSION

     Under all circumstances, the Court of Appeals erred in affirming the

trial court’s decision. This Court should either reverse the lower court and

remand to the trial court for a new trial by reinstating a factual

sufficiency review, or reverse the judgment of the trial court having found

that the verdict is based on speculation, not reasonable conclusions and

inferences from credible evidence.



                                PRAYER

     WHEREFORE, Petitioner prays the Court to reverse the judgment

of the Court of Appeals; and for such other and further relief to which he

may show himself justly entitled.


                                     Respectfully submitted,


                                     /s/ James Huggler
                                     James W. Huggler
                                     State Bar No. 00795437
                                     100 E. Ferguson, Suite 805
                                     Tyler, Texas 75702
                                     Telephone: 903-593-2400
                                     Facsimile: 903-593-3830
                                     ATTORNEY FOR PETITIONER


                                     23
                     CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing Petition

has been forwarded to the District Attorney, Smith County, Texas, and on

the State Prosecuting Attorney by regular mail or through the State of

Texas Electronic Filing System on this the 1st day of December, 2015 at

the addresses listed below



                                    /s/ James Huggler
                                    James W. Huggler


Mike West
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702

Lisa McMinn
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711




                                    24
                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 5,060 words as counted by
Corel WordPerfect version x6.

/s/ James Huggler
James W. Huggler, Jr.




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