                                                                                 PD-0883-15
                             PD-0883-15                        COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 7/15/2015 3:06:42 PM
                                                                 Accepted 7/17/2015 2:03:35 PM
                                                                                 ABEL ACOSTA
                       NO.__________________________                                     CLERK

═══════════════════════════════════════════════

          IN THE COURT OF CRIMINAL APPEALS OF TEXAS

═══════════════════════════════════════════════

                               JAVIER URIAS,
                                  Appellant
July 17, 2015
                                       v.

                           THE STATE OF TEXAS,
                                 Appellee
═══════════════════════════════════════════════
              From the Eighth Court of Appeals

                              No. 08-12-00090-CR

                Affirming Conviction in Cause Number 20090D03338

═══════════════════════════════════════════════
      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
═══════════════════════════════════════════════
JAIME GÁNDARA
El Paso County Chief Public Defender


William Robinson Cox                               Benjamin Joseph Gutiérrez
First Assistant                                    Solo Practitioner
State Bar No. 00792933                             State Bar No. 24094693
500 E. San Antonio, Room 501                       Post Office Box 41
El Paso, Texas 79901                               El Paso, Texas 79940
Tel. No. 915.546.8185                              Tel. No. 915.239.0793
Fax 915.546.8186                                   Fax No. 866.399.5268
wcox@epcounty.com                                  bjgutierrez@miners.utep.edu

                       ORAL ARGUMENT REQUESTED
                      ORAL ARGUMENT REQUESTED

      The Appellant submits that oral argument would aid this Court in its

decisions with the issue presented of sufficiency of evidence for serious injury to a

child when evidence amounts to mere presence and strong suspicion or mere

probability to prove corpus delicit. This Court’s holdings in Plunkett v. State, 580

S.W.2d 815 (Tex. Crim. App. 1978) and Johnson v. State, 673 S.W.2d 190 (Tex.

Crim. App. 1984) remain good law and provide precedence in these matters. The

El Paso Courts of Appeals’ holding below declines to follow this Court.




                                          i
                 IDENTITIES OF PARTIES AND COUNSEL

     Pursuant to Texas Rules of Appellate Procedure, Rule 38.1(a), Appellant
offers the following names of all parties, trial and appellate counsel:
Appellant:                              Javier Urias
Counsel:                                Jamie Gándara
                                        El Paso County Public Defender
                                    William Robinson Cox
                                    First Assistant
                                    State Bar No. 00792933
                                    500 East San Antonio, Room 501
                                    El Paso, Texas 79901
                                    Benjamin Joseph Gutiérrez
                                    Solo Practitioner
                                    State Bar No. 24094693
                                    Post Office Box 41
                                    El Paso, Texas 79940

Appellee:                           State of Texas
Counsel:                            Jaime Esparza
                                    El Paso County District Attorney
                                    500 East San Antonio, Suite 201
                                    El Paso, Texas 79901

Trial Court Defendant:              Javier Urias
Counsel:                            Joseph D. Vasquez
                                    300 East Main, Suite 700
                                    El Paso, Texas 79901
                                    (Counsel in Eighth Court of Appeals)
State’s Trial Court Prosecutor:     El Paso County District Attorney
Counsel:                            Alyssa Perez and Humberto Acosta
                                    Assistant District Attorneys
State’s Court of Appeals Counsel:   Joe Monsivais
                                    Appellant Division Chief of El Paso County
                                    District Attorney Office
Trial Court:                        243rd Judicial District Court
                                    Honorable Bill Hicks Presiding

                                      ii
                                         TABLE OF CONTENTS

ORAL ARGUMENT REQUESTED..........................................................................i
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................iv
GROUNDS FOR REVIEW ....................................................................................... v
ISSUES PRESENTED..............................................................................................vi
STATEMENT OF THE FACTS ............................................................................... 1
ARGUMENT ............................................................................................................. 3
    Issue No. 1: It is an error to affirm conviction of injury to a child as
    legally sufficient when evidence amounts to mere presence and strong
    suspicion or mere probability to prove corpus delicit? Yes. ................ 3
CONCLUSION ........................................................................................................ 16
PRAYER .................................................................................................................. 18
CERTIFICATE OF SERVICE ................................................................................ 18
CERTIFICATE OF COMPLIANCE ....................................................................... 19
COURT OF APPEAL’S OPINION ............................................................ Appendix
                                       INDEX OF AUTHORITIES
Cases
Bryant v. State, 909 S.W.2d 579 (Tex. App.— Tyler 1995) .....................8, 9, 10, 14
Butts v. State, 835 S.W.2d 147 (Tex. App. – Corpus Christi 1992) ..........6, 7, 10, 13
Crawford v. State, 2014 WL 5878112 (Tex. App.– Ft. Worth 2014). .......10, 11, 14
Elledge v. State, 890 S.W.2d 843 (Tex. App.– Austin 1994). ............7, 8, 10, 13, 14
Garcia v. State, 16 S.W.3d 401 (Tex. App. — El Paso 2000) ................9, 10, 12, 14
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................................... 4
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................. 3
Johnson v. State,
       673 S.W.2d 190 (Tex. Crim. App. 1984) ......... 3, 4, 5, 6, 7, 11, 13, 14, 15, 16
Plunkett v. State,
       580 S.W.2d 815 (Tex. Crim. App. 1978) ..... 3, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16
Urias v. State,
       2014 WL 1259397 (Tex. App.-- El Paso, Mar. 26, 2014).............v, 11, 12, 16
                                                            iii
═══════════════════════════════════════════════

               IN THE COURT OF CRIMINAL APPEALS OF TEXAS

═══════════════════════════════════════════════

                                         JAVIER URIAS,
                                            Appellant

                                                   v.

                                    THE STATE OF TEXAS,
                                          Appellee

═══════════════════════════════════════════════
           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
═══════════════════════════════════════════════
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

          COME NOW, Javier Urias, appellant herein, and respectfully moves this

Court to grant discretionary review, pursuant to Texas Rules of Appellate

Procedure 66 et. seq., and would show the Court as follows:

                                 STATEMENT OF THE CASE

          On July 21 2009, Javier Urias was indicted for one count of allegedly

intentionally and knowingly causing serious bodily injury to a child younger than

fifteen years of age, J. A.1, on or about March 25, 2009. Mr. Urias’ indictment

stated three paragraphs by which he could have caused serious injury to J.A.: (1)

striking J.A. about the head with an unknown object, (2) striking J.A.’s head


1
    As per the spirit of TRAPP 9.8, children will be referred to by initials only.
                                                   iv
against an unknown object, or (3) shaking J. A.’s body. (CR 2-3)2. At trial, a jury

convicted Mr. Urias without specifying which paragraph of the indictment their

decision was held. RR 6 at 6-8. The same jury assessed punishment to be

confinement for 45 years and a $10,000 fine. (6 RR 112-116) (2 CR 656)


                  STATEMENT OF PROCEDURAL HISTORY

       In January 2012, Javier Urias was convicted by a Jury for first degree felony

of serious injury to a child in the 243rd Judicial District Court, the Honorable Bill

Hicks Presiding. Mr. Urias timely filed notice of appeal. (2 CR 680) The Eighth

Court of Appeals affirmed his conviction in an unpublished opinion on March 26,

2014. Urias v. State, 2014 WL 1259397 (Tex. App.-- El Paso, Mar. 26, 2014).

       A petition for discretionary review was not previously filed. A mandate

issued from the Eighth Court of Appeals on September 12, 2014. Mr. Urias filed a

pro se writ under § 11.07 of the Texas Code of Criminal Procedure requesting the

opportunity to file an out of time petition for discretionary review. This court

granted that request on May 20, 2015. The mandate issued from that holding on

June 15, 2015. This petition follows.


                                  GROUNDS FOR REVIEW



2
  Citations to the clerk’s record will be denominated as CR and the page number, to the
reporter’s record as RR, volume and page number. State’s exhibits will be described as SX and
number, defense exhibits as DX and number.
                                              v
           This Court should grant discretionary review, because the Eighth Court of

Appeals decision below conflicts with applicable decisions by this Court’s on an

important question of law. Tex. R. App. Proc. 66.3(c)


                                                          ISSUES PRESENTED

1. It is an error to affirm conviction of injury to a child as legally sufficient when
   evidence amounts to mere presence and strong suspicion or mere probability to
   prove corpus delicit? ......................................................................................................................... Yes




                                                                         vi
                              STATEMENT OF FACTS

      On March 25, 2009, Appellant, Javier Urias, called 911 to report an

emergency concerning his fifteen month old stepson J.A.. (CR 210) (SX 1) (SX 3)

A team lead by Dr. Alan Tyroch treated J.A. at R.E. Thomason General Hospital in

El Paso, Texas. J. A. was diagnosed with acute subdural hematoma, a head injury.

(3 RR 105) Fortunately, J.A. had neither neck injuries nor any internal injuries. (3

RR 154-155) J.A. received prompt medical attention that lead to a prognosis of

J.A. being able to live a normal life. (3 RR 116-117) However, there was evidence

that J. A. also had another older brain injury. (3 RR 114) Accordingly, Dr. Tyroch

and his team have “a very low threshold to look for child abuse in any child that

comes in, especially a child that comes in with a head injury.” (4 RR 139) On Dr.

Tyroch’s direction, an ophthalmology expert days later assessed J.A.’s eyes for

retinal hemorrhages or bleeding in the retinal fields. Id. In a one page medical

report Dr. Adams noted the presence of retinal bleeding to which Dr. Tyroch cited

as evidencing abuse.

      Another physician, Dr. Fadi Hanbali, assessed J.A.’s prior injury to be three

weeks to four months old. (4 RR 105, 120) Dr. Hanbali believed the latest trauma

occurred within 72 hours prior to J.A.’s admission to the hospital and conceded it

was possible the symptoms manifested then even though Mr. Urias “did not lay a

hand on [J.A.].” (4 RR 123-125) Other witnesses testified Mr. Urias was never

                                         1
violent with the children, never hit them, and never spanked them. (4 RR 172) No

one saw anyone hit J.A., strike J.A., or hit J.A.’s head against something. (4 RR 58,

135)

       On the day of J.A. sustained an acute subdural hematoma Mr. Urias reported

on the 911 call that J. A. fell off the bed. All of Mr. Urias’ subsequent statements

consistently recounted his initial statements. (CR 210) (SX 1) (SX 3) (3 RR 45-46)

Mr. Urias explained that J.A. had woken up from a nap and was sat up on a bed

whereupon Mr. Urias left the room to get diaper wipes. When Mr. Urias returned,

J.A. was on the floor screaming and crying, then J.A.’s mouth locked whereupon

breathing became shallower and J.A unresponsive. Mr. Urias called an ambulance

and attempted to “blow into his mouth” but could not because the baby’s jaw was

clenched and his mouth was closed. (CR 210) (SX 1) (SX 3) (3 RR 45-46) Mr.

Urias met emergency personal with J.A. unconscious in Urias’ arms. (3 RR 23)

       The trier of fact found Mr. Urias guilty of serious injury to a child as per the

indictment containing three alternative means of causation3 and assessed a

punishment of 45 years imprisonment and a $10,000,000 fine. Mr. Urias timely

appealed where the Eighth Court of Appeals denied Mr. Urias any relief.

Accordingly, Mr. Urias now presents this petition for discretionary review to the

Texas Court of Criminal Appeals.

3
 Paragraph a, striking J.A. about the head; paragraph b, striking J.A.’s head against an unknown
object; and paragraph c, shaking J.A.’s body. (CR 2-3)
                                               2
                                   ARGUMENT

I.    Mr. Urias’ Mere Presence when J.A. was admitted to the Hospital and
      Evidence Amounting Only to Strong Suspicion or Mere Probability of
      Mr. Urias’ Culpability is Legally Insufficient to Prove Corpus Delicit.

      The critical inquiry on review of the sufficiency of the evidence to support a

criminal conviction must be to determine whether the record evidence could

reasonably support a finding of guilt beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318 (1979). A mere modicum of evidence cannot rationally

support a conviction beyond a reasonable doubt. Id. at 320.


      Each fact need not point directly and independently to the guilt of the

accused, however, as the cumulative effect of all the incriminating facts may be

sufficient to support the conviction. Plunkett v. State, 580 S.W.2d 815 (Tex. Crim.

App. 1978). Complicity in an offense is not show by mere presence alone when the

proof shown amounts to only strong or mere probability and there is not showing

that the act was committed intentionally and knowingly. Johnson v. State, 673

S.W.2d 190, 197 (Tex. Crim. App. 1984). There must be legal and competent

evidence pertinently identifying the defendant with the transaction constituting the

offense charged against him. Id. at 196. The fact that the trier of fact is entitled to

disregard the defendant’s version of events does not mean that the missing

elements of the offense are supplied by rejection. Id. Juries are not permitted to

come to conclusions based on mere speculation or factually unsupported inferences
                                          3
or presumptions. Hooper v. State, 214 S. W. 3d 9, 15-16 (Tex. Crim. App. 2007);

also see Johnson at 196. In Hooper this Court further explained:


       [A]n inference is a conclusion reached by considering other facts and
       deducing a logical consequence from them. Speculation is mere theorizing
       or guessing about the possible meaning of facts and evidence presented. 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. at 16.

       The record shows Mr. Urias was in sole possession of J.A. for about thirty-

five minutes prior to J.A. being admitted to a hospital. (3 RR 159-60) J.A. did not

sustain permanent injuries and will live a normal life. (3 RR 116-17) The State

charged Mr. Urias by indictment with serious bodily injury to J.A. by three

alternative means. (CR 2-3) Mr. Urias’ guilt was found without denoting the

specific means of his culpability. Id. Mr. Urias received a prison sentence of forty-

five years. (6 RR 112) El Paso’s Court of Appeals held evidence was sufficient to

support a finding of guilt beyond a reasonable doubt based on the two inferences

that Mr. Urias was present at time of injury and characteristics of the injury were

dispositive that an accident did not occur. See Urias v. State, 2014 WL 1259397

(Tex. App.-- El Paso, Mar. 26, 2014).




                                          4
      A review of associated case law provides a greater appreciation for the

Courts of Appeals divergence and circumvention of this Court precedential

holding:

   A. This Court has Held in Cases Involving Serious Injuries to Children
      Cumulative Incriminating Evidence Supports Conviction, but Mere
      Presence with Only Strong Suspicion or Mere Probability of Culpability
      is Insufficient.

      In Plunkett v. State the cumulative effect of incriminating evidence

supported conviction of murder when defendant’s actions were injurious despite

his supposed benevolent intent. Plunkett v. State, 580 S.W.2d at 821. Larry

Plunkett described finding A.D.P. lying on the floor in her bedroom when he

attempted to resuscitate her and may have used too much force. Id. at 820. Upon

A.D.P.’s death, the autopsy showed injuries such as some forty bruises all over her

body, skull fractures, and tears to organs: heart, liver, spleen, pancreas, and

intestinal tissues. Id. at 818-19. Mr. Plunkett argued the evidence was only

sufficient to demonstrate he attempted to help A.D.P. but was insufficient to show

A.D.P.’s death was intentionally or knowingly caused. Id. at 823. Texas’ Court of

Criminal Appeals of Texas affirmed conviction. Id. at 825. This Court reasoned

that the law of accident focuses on actions, not causation. Id. at 823. Each fact need

not point directly and independently to guilt, the cumulative effect of all the

incriminating facts was sufficient to support Mr. Plunkett’s conviction. Id. at 821.


                                          5
      In Johnson v. State this Court reversed conviction holding corpus delicti is

insufficiently meet when defendant’s version of child’s death and serious injuries

were negated facilitating conviction by default without showing defendant

committed any criminal act. Johnson v. State, 673 S.W.2d at 196. Karl Johnson

explained how he found B.F. under his vehicle when the car accidently fell off the

jack. Id. at 192. Several states’ witnesses, including experts, described their

investigation showed the injuries in conjunction with the scene were not consistent

with Mr. Johnson’s story. Id. at 192-93. A forensic pathologist stated with

reasonable medical certainty the trauma was caused by a blow with a very blunt

object. Id. at 192. The extent of Mr. Johnson’s relationship with B.F. was unclear,

but there was no showing of any prior child abuse or hostility. Id. at 194. Texas’

Court of Criminal Appeals reversed conviction. Id. at 197. This Court reasoned

mere presence alone is not sufficient proof, even when coupled with strong or mere

probability of culpability. Id. The trier of fact was entitled to disregard Mr.

Johnson’s explanation but that did not mean that the missing elements of the crime

were supplied by showing that Mr. Johnson was complicit in the crime alleged. Id.

at 196-97


   B. Texas’ Courts of Appeals have Held Mere Presence is Sufficient in
      Many Circumstances.




                                        6
      In Butts v. State the court found Plunkett permitted finding corpus delicit

when characteristics of the injuries established culpability and declined following

Johnson holding inapplicability. Butts v. State, 835 S.W.2d 147, 151 (Tex. App. –

Corpus Christi 1992). Baby sitter Patty Butts had no explanation for J.A.’s knot on

his head, skull fracture, and the resulting permanent injuries of paralysis, blindness,

and severe learning disabilities. Id. at 148. Ms. Butts and the state contested when

the injuries could have occurred. Id. State expert concluded that the severity of

J.A.’s injuries and the characteristics were caused by either being picked up,

slammed, or thrown, and were equivalent to falling on concrete from a two-story

window. Id. at 149-50. Corpus Christi Court of Appeals affirmed conviction. Id. at

152. The court reasoned that, unlike Johnson, the jury’s conclusion was supported

by state’s witnesses’ testimony regarding characteristics of injuries sustained while

in the exclusive possession of Ms. Butts supported the jury’s prerogative of

holding that Ms. Butts intentionally caused the injuries. Id. at 151. The court citing

to Plunkett found a rational juror may find from the circumstances that an offense

was committed by Ms. Butts. Id.


      In Elledge v. State the court held expert testimony noting implausibility of

injuries occurring other than when defendant was in sole custody of child

established he was the perpetrator. Elledge v. State, 890 S.W.2d 843, 846 (Tex.

App.– Austin 1994). Richard Elledge, father of R.G.E., described to R.G.E.’s

                                          7
mother that their five week old baby had fallen between the pillow of the bed and

the railing managing to wrap his arm around one of the bars. Id. at 845. Shortly

after the parents decided it was necessary to bring R.G.E. to the hospital: R.G.E.

died two days later. Id. The autopsy and other medical testimony showed R.G.E.

suffered massive trauma to his brain and right side skull fracturing caused by a

considerable blow to the head. Id. A physician further testified that injuries were

very acute that it was not plausible for the injuries to have occurred more than hour

prior to hospital admittance. Id. at 848. The record undisputedly placed Mr.

Elledge as the only person alone with the baby when the fatal injury was sustained.

Id. at 847. Among the three points of error Mr. Elledge appealed, sufficiency of

evidence was not one of them. Austin’s Court of Appeals affirmed conviction. Id.

at 849. The court while addressing the weight of newly discovered evidence

reasoned that the circumstances permitted culpability when undisputed medical

testimony placed Mr. Elledge as the only person alone with R.G.E. when the fatal

injury was inflicted. Id. at 847.


      Like Plunkett, in Bryant v. State the defendant claims he intentionally acted

with benevolence but did not intend the injurious results to a child under his care.

Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.— Tyler 1995). Robert E. Bryant

had sole possession of C.L. for about four hours before her admittance to the

hospital where his account of events was little more than unexplained seizure. Id.

                                         8
at 581. C.L. suffered from fractured legs, bruises, and brain injuries sustained from

severe skull fractures and hemorrhaging. Id. at 580. One physician noted Mr.

Bryant smelled of alcohol the night in question and another physician ruled out

infections or any natural phenomenon as potential causes. Id. at 581. Both

physicians agreed the brain injuries occurred within thirty minutes prior to

admittance and various other fractures occurred within days or a couple weeks

thereof. Id at 580-81. Mr. Bryant claimed C.L.’s injuries occurred prior to his sole

possession, but C.L.’s mother denied that C.L. was sick on the day in question. Id.

at 582-83. As information became available as to C.L.’s injuries, Mr. Bryant’s

version of events varied as he described at points in time C.L. had fallen of the

couch and hit the back of her head on the floor, he also remembered hitting C.L. on

the back of the head and pushing C.L.’s stomach to dislodge a penny C.L. was

choking on, and Mr. Bryant even admitted to shaking C.L. at some point. Id. at

582. During trial, Mr. Bryant said he held back on his disclosure of events since he

was afraid it would be thought he intentionally hurt C.L.. Id. Tyler’s Court of

Appeals affirmed conviction. Id. at 583. The court reasoned the evidence showed

C.L. was in relatively healthy condition when Mr. Bryant took possession of C.L.

and the acute nature of injuries demonstrated the trauma occurred thirty minutes

prior to admittance. Id. Therefore, it was undisputedly that injuries were sustained




                                         9
when C.L. was in the sole possession of Mr. Bryant and the state did not need to

disprove other reasonable hypotheses, such as Mr. Bryant’s account(s). Id.


      Like Plunkett, the defendant in Garcia v. State admitted to acts that would

directly result in injuries as the child was found to sustain when the adult defendant

had sole access to child and evidence was upheld as sufficient. Garcia v. State, 16

S.W.3d 401, 406 (Tex. App.- El Paso 2000). Miguel A. Garcia admitted while

taking care of his three month old daughter C.G. he shook her, punched her in the

stomach, and karate chopped her nose the day C.G. was pronounced dead. Id. at

405. Mr. Garcia provided a plethora of illustrations of his intentional infliction of

injuries to C.G. over the course of two months, explaining he would “lose it” when

she cried and caused most of C.G.’s injuries by shaking her “real hard” but rarely

hit C.G. with his fist. Id. The indictment alleged death by shaking and Mr. Garcia

challenged the sufficiency of evidence to support his conviction, El Paso’s Court of

Appeals affirmed. Id. at 404. El Paso’s Court of Appeals began its analysis with

“Texas case law is replete with holdings that when an adult defendant has had sole

access to a child at the time its injuries are sustained, the evidence is sufficient to

support a conviction for injury to a child, or murder if the child dies” citing Bryant,

Elledge, and Butts. Id. at 405. The court went on to reason that in regards to Mr.

Garcia’s case a rational trier of fact could conclude the cause of death, and Mr.



                                          10
Garcia’s culpability therein, since he admitted to being alone with C.G. when she

sustained injuries and his related intentional actions. Id. at 406.


       Like Plunkett, the defendant in Crawford v. State admitted to acts that would

directly result in injuries as the child was found to sustain and evidence was upheld

as sufficient. Crawford v. State, 2014 WL 5878112 (Tex. App.– Ft. Worth 2014).

Austin Crawford was saying ten month old K.M. was blue as K.M.’s mother woke

up the day her daughter was pronounced dead. Id. at 2. The jury heard from several

witnesses that Mr. Crawford admitted to shaking K.M. and were played a

recording taped while Mr. Crawford was in custody attesting to that effect. Id. at 2-

3. A Detective further stated Mr. Crawford also admitted to throwing K.M. on the

couch where Mr. Crawford later found K.M. not breathing. Id. at 3. K.M.’s treating

physician characterized the injuries as non-accidental as they were consistent with

someone violently shaking K.M. or striking her. Id. at 2. K.M.’s medical examiner

found evidence of blunt head trauma concluding K.M. was struck or caused strike

something. Id. at 3. Mr. Crawford contested the sufficiency of the evidence since

he was not in exclusive possession of K.M. at the time her injuries were sustained.

Id. Fort Worth’s Court of Appeals affirmed conviction. Id. at 5. The court reasoned

that necessary inferences are reasonable when based upon the cumulative force of

the evidence and sole possession was simply a factor for incrimination, not a

perquisite of culpability. Id. at 3-4.

                                           11
   C. El Paso Court of Appeals holding in Urias.

      Like Johnson, here the evidence presented at trial amounts to only strong

suspicion or mere probability that Javier Urias is culpable of serious injury to a

child. Urias v. State, 2014 WL 1259397 (Tex. App.— El Paso 2014). Mr. Urias,

while dating J.A.’s mother, was taking care of J.A. and called emergency services

to report J.A. sustained injuries when J.A. fell off a bed. Id. at 1. J.A. had minor

old bruises, but visibly, little more. Id. A computerized tomography scan revealed

building cranial pressure from two separate hematomas. Id. One hematoma was

sustained no more than seven-two hours prior, and the other one anywhere from

three weeks to four months old. Id. J.A. immediately underwent surgery. Id. The

only other caretakers of J.A. testified Mr. Urias treated J.A. appropriately. Id.

There were no notable averse actions of Mr. Urias evidenced otherwise, with

exception of Mr. Urias explaining he “tried to slap [J.A.] around a little bit to wake

him up” when J.A. lost consciousness. Id. One of J.A.’s treating physicians

testified that J.A.’s injuries could have been sustained at the time from falling off a

bed due to the past hematoma. Id. at 2. The physician went on to say while

referring to findings of another physician, who did not testify, that J.A.’s retinal

bleeding suggested the injuries were intentionally caused and not accidentally. Id.

El Paso’s Court of Appeals affirmed conviction. Id. at 5. The court reasoned a jury

could infer that J.A.’s injuries were sustained when in the sole possession of Mr.

                                          12
Urias4 (citing Garcia) and could also infer that that injury was intentionally caused

and not a result of accident5 or natural effect. Id. at 3.


Stare Decisis of Johnson is Applicable to Urias.

       The court of Butts focusing on dicta in Johnson found the evidentiary burden

to be met by an expert witness’ belief that J.A.’s injuries occurred as an intentional

act perpetrated by an adult during the time J.A. was in Ms. Butts’ exclusive care.

Butts, 835 S.W.2d at 150. The court went on to state that it was the jury’s

prerogative to determine the cause of J.A.’s injury to be Ms. Butts. Id. at 151. In

order to reach this conclusion the court of Butts cites Plunkett. Id. However, as

detailed above this Court explained in Plunkett evidence supports affirming

conviction when its cumulative effects sufficiently incriminate the defendant. This

Court in Johnson specifically stated that its holding was contingent upon Wright:

it is not within the prerogative of jurors to find guilt simply by negative

disjunction. Johnson v. State, 673 S.W.2d at 197; see Wright v. State, 603 S.W.2d

838 (Tex. Crim. App. 1980). Moreover, in Johnson this Court held complicity is

not demonstrated by mere presence and proof amounting to strong or mere


4
  To establish Mr. Urias was present the court found injuries occurred shortly before J.A.
exhibited symptoms for three reasons: (1) children’s larger brains hastens the onset of
neurological symptoms, (2) prior injury reduced the space inside the cranium even further before
the second bleed began, and (3) a shift in a child’s brain from those injuries would cause total
comatose towards the seventy-two-hour widow limit.
5
  The court noted that the lack of any discernable trauma on J.A.’s body combined with the
presence of retinal bleeding indicated J.A.’s injuries stemmed from being shaken vigorously.
                                              13
probability when there is no showing that the related act was committed

intentionally and knowingly. Id.

      Unlike Butts, the court of Elledge does not even mention Johnson. This is

likely do the fact that Mr. Elledge did not appeal on the issue of sufficiency of

evidence. In Elledge the assessment of the weight of the evidence was in regards to

the effects new evidence would have upon a new trial. Elledge v. State, 890

S.W.2d at 847. There was not discussion of Plunkett or Johnson and the standards

therein.

      Whereas, Bryant, Garcia, and Crawford all satisfy the evidentiary standard

in Plunkett, in that the cumulative effect of incriminating evidence points to an

intentional action(s) on the part of the defendant that directly caused serious

injuries or death to a child. Therefore, it is in meeting the standard in Plunkett that

there was more than mere presence and evidence amounting to only strong

suspicion or mere probability of culpability. Crawford was correct in that exclusive

possession held in Garcia is simply factor for incriminating evidence, not a

perquisite of culpability. Crawford, 2014 WL 5878112, 3.


      Accordingly, El Paso’s Court of Appeals below erred when it cited Garcia is

determinative on this matter that evidence is sufficient for injury to a child

conviction where it shows an adult defendant has had sole access to a child at the

time the child sustained her injuries. This Court held in Johnson and Plunkett the

                                          14
State must demonstrate more against Mr. Urias than has been shown, mere

presence and resulting strong suspicion or mere probability of culpability is not

sufficient to uphold Mr. Urias’ conviction.

      To establish Mr. Urias was present at the time of injuries, and the false

inference of Mr. Urias’ complicity, the court below denoted dispositive reasons as

follows:


      (1) children’s larger brains hastens the onset of neurological symptoms,

      (2) prior injury reduced the space inside the cranium even further before the
      second bleed began,

      (3) a shift in a child’s brain from those injuries would cause total comatose
      towards the seventy-two-hour widow limit, and

      (4) the lack of any discernable trauma on J.A.’s body combined with the
      presence of retinal bleeding indicated J.A.’s injuries stemmed from being
      shaken vigorously.

Urias v. State, 2014 WL 1259397 at 3. None of the reasons supplied by the court

supply proof beyond strong suspicion or mere probability that Mr. Urias may have

or may not have been complicit in any related act resulting in the crime alleged.

Furthermore, it is presumptive for the court to find causation for the jury when the

Jury was presented three alternative means and did not specific which method

alleged they found culpability upon.

      During the time medical testimony said J.A. could have sustained his

injuries, the record definitely shows J.A. had multiple care takers: Guadalupe

                                        15
Salas, J.A.’s great aunt, watched J.A. the day before the onset of his symptoms (3

RR 56), Yolanda Salas, J.A.’s other great aunt also had access to J.A. that day ( RR

58), and J.A.’s mother, Roxanne Alvarado, also had access to J.A.. (3 RR 132).

The proof required under Plunkett and Johnson is only further complicated by the

fact that J.A. had a chronic or pre-existing subdural hematoma at the time he fell

off of his bed that no evidence attributes to Mr. Urias. (3 RR 119) The record

shows that even benign circumstances could have triggered a re-bleed. (3 RR 45-

46) (CR 210) (SX 1) (SX 3) Moreover, there was no evidence from any source of

anyone seeing Mr. Urias or someone else hitting J. A., striking J.A. against

something, or shaking J.A.. These facts demonstrate that only mere probability or

strong suspicion exists for Mr. Urias’ culpability and severely undermine a finding

that Mr. Urias’ was even present at the time the injuries occurred.


                                  CONCLUSION

      This Court has provided Texas’ Courts of Appeals the standards to assess

sufficiency of evidence in cases involving serious injury or death to children: in

Plunkett this Court held cumulative incriminating evidence may support a

conviction, and as per Johnson mere presence with only strong suspicion or mere

probability of culpability is insufficient. Both holdings remain precedential law

that the El Paso’s Court of Appeals declines to follow when it holds that evidence

is sufficient for injury to a child conviction where it shows, without more, an adult

                                         16
defendant has had sole access to a child at the time the child sustained her injuries.

Urias v. State, 2014 WL 1259397 at 3. Therefore, Mr. Urias is entitled to the relief

of reversal of his conviction of injury to a child since the evidence did not prove

corpus delicit of the crime alleged and thus is legally insufficient.




                                          17
                                     PRAYER

      Wherefore, appellant prays that this petition for discretionary review be

granted, that this court review the opinion of the Eighth Court of Appeals, and

requests all relief to which he may show himself justly entitled.


Respectfully Submitted,

JAIME GÁNDARA
El Paso County Chief Public Defender


/s/ William Robinson Cox
William Robinson Cox                                   Benjamin Joseph Gutiérrez
First Assistant                                        Solo Practitioner
State Bar No. 00792933                                 State Bar No. 24094693
500 E. San Antonio, Room 501                           Post Office Box 41
El Paso, Texas 79901                                   El Paso, Texas 79940
Tel. No. 915.546.8185                                  Tel. No. 915.239.0793
Fax 915.546.8186                                       Fax No. 866.399.5268
wcox@epcounty.com                                      bjgutierrez@miners.utep.edu



                          CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. P. 9.5(d), copies of the foregoing petition were
served on opposing counsel, and the State Prosecuting Attorney, P.O. Box 12405,
Capital Station, Austin, Texas 78711, by placing copies in the United States mail,
postage prepaid, on July 15th, 2015.

                                                      /s/ William Robinson Cox
                                                          William Robinson Cox



                                         18
                     CERTIFICATE OF COMPLIANCE

      Undersigned counsel herein states that the computer generated word count is
3,611 and as such this document is in compliance with the Texas Rules of
Appellate Procedure.



                                                   /s/ William Robinson Cox
                                                       William Robinson Cox



                                                     Benjamin Joseph Gutiérrez




                                       19
                           APPENDIX




JAVIER URIAS v. THE STATE OF TEXAS
                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                  §
     JAVIER URIAS,                                                     No. 08-12-00090-CR
                                                   §
                   Appellant,                                            Appeal from the
                                                   §
                                                                        243rd District Court
                                                   §
     STATE OF TEXAS,                                                 of El Paso County, Texas
                                                   §
                  Appellee.                                            (TC# 20090D03338)

                                           OPINION

      Javier Urias appeals his conviction of injury to a child causing serious bodily injury. In
two issues, Appellant challenges the legal sufficiency of the evidence and the admission of a
medical doctor's expert testimony over his Daubert' and Confrontation Clause objections. We
affirm.
                                         BACKGROUND

       Prior to the incident in question in 2009, Appellant had been dating Roxanne Alvarado
("Roxanne"), mother of a four-year-old boy, a two-week-old boy, and fifteen-month-old
Dominic Jacob Alvarado ("Jacob"), for about eight months. None of Roxanne's sons were
Appellant's biological children. Appellant and Roxanne resided together in a studio
apartment that was part of a three-apartment building. Roxanne's two aunts resided in the
other units.
     _________________________
     'Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
     (1993).


                                                 -1-
Roxanne's youngest son was born premature, so Roxanne went to the hospital twice a day
following his birth to feed him and learn appropriate care methods. Appellant usually
accompanied Roxanne to the hospital during these visits. During this time, Roxanne,
Appellant, and Roxanne's two aunts were the only people who took care of Roxanne's sons.
Roxanne testified that she trusted Appellant with her children, and Roxanne' s aunt
Guadalupe S alas testified that Appellant usually treated Roxanne's children appropriately.
On Mach 25, 2009, Roxanne left Appellant in charge of Jacob while she went to the hospital.
Salas had watched Jacob the prior day. Salas testified that Jacob had been in good health that
day, and neither she nor her sister Yolanda had hit Jacob or caused him any injury. Roxanne
also denied hitting Jacob and denied any knowledge of any prior head injuries. Appellant did
not testify in his own defense. His account as relayed through a 911 call recording and his
statements to police indicates that Appellant claimed he had placed Jacob on a bed while
changing his diaper. While Appellant left the room to get supplies, he heard Jacob screaming,
and when he returned, the baby was on the floor. When Appellant picked him up, Jacob was
clenching his jaw and breathing irregularly. At some point, Jacob lost consciousness, and
Appellant "tried to slap him around a little bit to wake him up." Appellant called 911.

      When paramedics arrived, Jacob was breathing but unconscious and unresponsive.
Appellant told them that Jacob had fallen off the bed and that he had cried before becoming
unconscious. One paramedic testified that Jacob had no apparent physical injuries beyond a
bruise on his forehead and a small cut on his chin, both of which were "old." Paramedics
subsequently took Jacob by ambulance to R.E. Thomason General Hospital, now known as
University Medical Center ("UMC"), in El Paso.

      Jacob arrived at the hospital semi-conscious and nearly in a coma. A team of medical




                                             -2-
personnel led by Dr. Alan Tyroch treated Jacob at UMC. The hospital admitted Jacob as a
Level I trauma patient. An X-ray bone scan showed that Jacob had no visible bone fractures.
A CT scan of Jacob's head indicated the presence of blood from two separate subdural
hematomas, one chronic - i.e., between three weeks and four months old - and one acute,
taking place within 72 hours of the scan. Dr. Fadi Hanbali, a neurosurgeon on Jacob's
treatment team, testified that subdural hematomas occur when blood vessels in the skull
rupture as a result of trauma and blood begins to accumulate between the brain and the dura,
a hard membrane encasing the brain inside the cranium. In Jacob's case, the subdural
hematoma had caused a 9-millimeter midline shift of the brain, meaning that accumulating
blood had forced Jacob's brain to one side of the skull. Dr. Hanbali characterized the 9-mm
midline shift as a serious medical emergency that could result in death. He testified that he
performed surgery to stem the bleeding and evacuate blood from inside the dura, thereby
relieving pressure on the brain.

      Following surgery, Dr. Tyroch asked Dr. Neil Adams, an ophthalmologist, to perform
an eye exam on Jacob. Dr. Adams, who did not testify at trial, noted the presence of retinal
bleeding in Jacob's medical file. Both Dr. Hanbali and Dr. Tyroch testified that retinal
hemorrhaging was not consistent with a fall from the bed and suggested instead that Jacob
had been shaken fairly vigorously. Dr. Tyroch further testified that although it was possible
that the previous subdural hematoma made Jacob more susceptible to getting the acute
hematoma from a short fall from the bed, the presence of retinal bleeding and absence of
recent visible trauma suggested that the injury stemmed from a caretaker's intentional
shaking of the child and not an accidental fall.

The jury returned a guilty verdict against Appellant. He was sentenced to forty-five years' in

prison.



                                              -3-
                                                         I.

        In Issue One, Appellant contends that the evidence is legally insufficient to support a
jury finding that he caused Jacob's serious injuries. We disagree.2

                                             Standard of Review

      In assessing the legal sufficiency of a verdict, we review all the evidence in the record,
both "properly and improperly admitted[,]" in "the light most favorable to the prosecution" to
determine whether "any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.
2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979)[Emphasis omitted]. "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." Id., citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Our role
on legal sufficiency review is not to usurp the jury and replace its verdict with our own;
instead, we serve as a procedural safeguard, ensuring that whatever verdict the jury rendered
comports with due process. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000);
Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). "In conducting this review, we
must defer to the jury's role as the sole judge of the credibility and weight that testimony is to
be afforded." Castaneda v. State, 08-10-00050-CR, 2011 WL 4490960, at *4 (Tex.App.--E1
Paso Sept. 28, 2011, pet, ref'd)(not designated for publication).

                                                     Analysis

Appellant complains that the State, at best, merely presented the jury with conflicting,
equally plausible guilt and innocence scenarios that cannot establish proof of guilt beyond a
__________________________
2 As a threshold matter, the State objects to Appellant's briefing of Issue One, arguing that it is deficient under
TEx.R.APP.P. 38.1 and thus presents nothing for our review. We overrule the State's objection and find that Issue One
of Appellant's brief complies with the Rules of Appellate Procedure.


                                                       -4-
reasonable doubt as a matter of law. See Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.
1985)(where evidence gives near-equal weight to theories of guilt and innocence, reasonable
doubt precluding a guilty verdict exists and a defendant is entitled to acquittal). However, the
"introduction of conflicting evidence does not render evidence insufficient." Castaneda, 2011
WL 4490960, at N. The Court of Criminal Appeals has instructed the courts of appeals to
presume that "[w]hen the record supports conflicting inferences . . . the factfinder resolved
the conflicts in favor of the prosecution[.]" Clayton, 235 S.W.3d at 778. The ultimate
question we answer in Issue One is whether any rational trier of fact could find that the State
has proved every element of an offense beyond a reasonable doubt. Clayton, 235 S.W.3d at
778. Here, we find the State met its burden.
Appellant complains specifically that the State failed to provide evidence that Jacob's injuries
were non-accidental, or that the injuries occurred while Appellant had sole care, custody, and
control of Jacob, which would give rise to a permissible inference that he caused the injury.
See Castaneda, 2011 WL 4490960, at *5 (evidence is sufficient for injury to a child
conviction where it shows "an adult defendant has had sole access to a child at the time the
child sustained her injuries . . . ."); Garcia v. State, 16 S.W.3d 401, 405 (Tex.App.--El Paso
2000, pet. ref d)(listing cases holding same).
The medical testimony is dispositive on these issues. The medical experts testified that
although the CT scan could only establish that the blood began pooling between the brain and
the dura at some point within seventy-two hours of the scan, the bleeding likely began shortly
before Jacob exhibited symptoms, given that (1) a child's brain is larger in relation to the
skull than an adult's brain, which hastens the onset of a subdural hematoma's neurological
symptoms in children; (2) the presence of old blood from the second, undetected subdural
hematoma would




                                                 -5-
have reduced the space inside the cranium even further before the second bleed began; and
(3) Jacob arrived at the hospital semi-conscious in spite of his brain having shifted nine
millimeters off-center, whereas a subdural hematoma that serious in a child that age likely
would have rendered him totally comatose as he approached the seventy-two-hour window
limit. Dr. Tyroch further testified that while the first healed-over subdural hematoma could
have made Jacob more susceptible to a bleed from accidentally falling off the bed, the lack of
any discernable trauma on Jacob's body combined with the presence of retinal bleeding
indicated to him that Jacob's injuries stemmed from being shaken vigorously.
           Based on this testimony, a rational juror could infer that Jacob sustained a
subdural hematoma at the time he was in Appellant's sole care, custody, and control. A
rational juror could also infer based on the presence of retinal hemorrhaging that the injury
was caused by vigorous shaking and not by accident, some prior injury, or a congenital
defect. Taking those two factors together, a rational juror could find guilt beyond a
reasonable doubt on the charge levied in the indictment. The evidence is legally sufficient.
     Issue One is overruled.
                                              II.

     In Issue Two, Appellant maintains that the trial court erred by admitting, over his
objections on Daubert and Confrontation Clause grounds, portions of Dr. Tyroch's testimony.
Specifically, Appellant complains that Dr. Tyroch's testimony about Jacob's retinal
hemorrhaging stemmed from the medical report of Dr. Adams, the ophthalmologist with
whom Dr. Tyroch consulted during treatment who did not testify at trial. Because Appellant
could not cross-examine Dr. Adams regarding his medical findings, Appellant contends his
confrontation rights were violated under Bullicoming v. New Mexico, - U.S. -, 131 S.Ct.
2705, 180 L.Ed.2d




                                             -6-
610 (2011). The State raises a bevy of briefing and preservation of error issues before
arguing alternatively that Dr. Adams' medical report was not "testimonial" under the Sixth
Amendment. We address each issue in turn.

                             Inadequate Briefing on Daubert Issue

        In its response, the State contends that Appellant failed to adequately brief the Daubert
issue. We agree. Although the Court is mindful of its duty to liberally construct briefs in
assessing compliance with the Rules of Appellate Procedure, see TEx.R.APP.P. 38.9; White
v. State, 50 S.W.3d 31, 45 (Tex.App.--Waco 2001, pet. ref d), Appellant has failed to comply
with TEx.R.APP.P. 38.1(i). His argument section sets out the standard of review for Daubert
challenges before Appellant states that "[b]ased on the totality of the evidence it is appellant's
position that State [sic] failed to establish the etiology of the injury and therefore to prove its
causal link to the defendant." Even under the most liberal construction of his brief, Appellant
failed to challenge Dr. Tyroch's credential or methodology, nor did he apply the law to any
facts beyond this conclusory assertion. As such, we find that nothing has been presented for
appellate review on this issue.

The Daubert sub-point of Issue Two is overruled on inadequate briefing grounds.

                                      Preservation of Error

       The State further argues that Appellant failed to preserve error on the admission of Dr.
Adams' retinal bleeding diagnosis because he failed to timely object to testimony and because
his argument on appeal fails to comport with the objection made at trial. We agree that
Appellant failed to preserve error.

       "To be timely, a request, objection, or motion must be made at the earliest opportunity."
Casey v. State, 349 S.W.3d 825, 834 (Tex.App.--El Paso 2011, pet. ref d). "An objection
must


                                               -7-
be made each time inadmissible evidence is offered unless the complaining party obtains a
running objection or obtains a ruling on his complaint in a hearing outside the presence of the
jury." Garza v. State, No. 08-11-00035-CR, 2012 WL 1883118, at *2 (Tex.App.--El Paso
May 23, 2012, pet. rerd)(not designated for publication). Further, an objection does not
preserve error unless the trial court rules on the objection or the complaining party objects to
the trial court's refusal to rule. TEx.R.APP.P. 33.1(a)(2).

            Here, Appellant failed to preserve error for two reasons. First, Appellant failed to
obtain a ruling on the confrontation objection. Instead, the record shows that Appellant
lodged an objection arguably on confrontation grounds, among other grounds, before the
court allowed him to take Dr. Tyroch on voir dire at a Daubert hearing. Following that
hearing, Appellant objected to Dr. Tyroch's testimony on the basis that it was cumulative.
The trial court overruled the objection and noted that it found Dr. Tyroch to be qualified to
testify as an expert. Appellant then requested miming objections on the issues of relevance,
cumulative presentation of evidence, improper bolstering, "asked and answered," and on Dr.
Tyroch's qualifications. The trial court granted running objections only on the issues of
relevance and cumulative presentation. The record does not indicate that the trial court ever
ruled on the confrontation grounds Appellant advanced in his pre-Daubert hearing objection.
As such, no error is preserved.

Second, Appellant waived his objection on the basis of timeliness. Appellant's counsel failed
to object to the discussion of retinal bleeding during Dr. Hanbali's testimony prior to Dr.
Tyroch relaying the same information to the jury. Appellant's counsel claims he refrained
from objection during Dr. Hanbali's testimony because Dr. Adams was designated as a
possible witness on the State's witness list for trial, and it was his understanding that Dr.
Adams would


                                              -8-
testify. When counsel realized that Dr. Adams would not testify, he maintains he objected,
informed the trial court of the situation, and requested a limiting instruction from the court.
However, this is not enough to preserve error on confrontation grounds. Counsel should have
objected at the first mention of the retinal bleeding if he wished to preserve the issue for
appeal. Casey, 349 S.W.3d at 843.

           Finally, even if error was properly preserved, the Sixth Amendment prohibits the
introduction only of testimonial statements from unavailable declarants not previously
subjected to cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354,
1369, 158 L.Ed.2d 177 (2004). Dr. Adams statements were not "testimonial" for Crawford
purposes, given that they were made for the primary purpose of rendering medical treatment
and obtaining a differential diagnosis between accidental injury and intentional trauma. See
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S.Ct. 2527, 2533 n.2, 174
L.Ed.2d 314 (2009); Berkley v. State, 298 S.W.3d 712, 715 (Tex.App.--San Antonio 2009,
pet. ref'd)(admission of unavailable sexual assault nurse examiner's report through a
surrogate did not violate Crawford because report compiled for non-testimonial medical
treatment purposes); Perez v. State, No. 1411-01102-CR, 2013 WL 655714, at *7..*8
(Tex.App.--Houston [14th Dist.] Feb. 21, 2013, no pet.)(mem. op., not designated for
publication)(absent direct evidence of physician's purpose in questioning patient, trial court
does not abuse its discretion in ruling physician's report is non-testimonial and made for
medical purposes).

     Issue Two is overruled. We affirm Appellant's conviction.

     March 26, 2014

                                          YVONNE T. RODRIGUEZ, Justice

     Before McClure, C.J., Rivera, and Rodriguez, JJ.

     (Do Not Publish)
                                             -9-
