Opinion filed February 14, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00025-CR
                                      __________

                    JEKARIS LEE BRYANT, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR24860


                     MEMORANDUM OPINION
      Jekaris Lee Bryant appeals his conviction for the capital murder of B.A.B.,
his 28-day-old daughter. After a bench trial, the trial court found Appellant guilty
and sentenced him to life imprisonment without the possibility of parole. In this
regard, the State did not seek the death penalty. In a single issue on appeal, Appellant
challenges the sufficiency of the evidence supporting his conviction. We affirm.
                                    Background Facts
       B.A.B. was the 28-day-old daughter of Appellant and Makahla Brewer. On
December 13, 2015, Brewer went to Walmart with her friend, Jordon Brown, to get
premade formula for B.A.B. B.A.B. had finished drinking a bottle of formula and
was sleeping downstairs. Earlier that day, Brown had taken a picture of B.A.B.,
which showed B.A.B. with her eyes open. She was swaddled in a blanket and
wearing a onesie. Before leaving, Brewer told Appellant, who was preparing to take
a shower, to take B.A.B. upstairs and look after her while they were gone. Brewer
testified that B.A.B. appeared to be doing well and that there was no cause for
concern when Appellant took her upstairs. Appellant was alone with the baby for
approximately thirty minutes.
       Brewer testified that, when she and Brown returned, Appellant was finishing
up in the shower. Brewer asked Appellant to bring B.A.B. downstairs when he was
done. When Appellant brought B.A.B. downstairs, she was still swaddled in a
blanket, but she was no longer wearing the onesie. He made no comment about the
baby and placed her in the swing near the couch. Brewer and Brown were sitting at
the kitchen table. A few minutes later, someone commented that B.A.B. looked
pale.1 Brewer then went to go check on B.A.B. and found her unresponsive. When
Brewer pulled down B.A.B.’s blanket, she noticed bruising around her collar bone.
She also realized that the baby was not moving or breathing.
      Brewer immediately picked up B.A.B., grabbed the keys, and ran to the car.
Appellant and Brown ran behind Brewer, and together they rushed to the hospital.
In the car, Brewer told Appellant to start CPR and Brown called 9-1-1. Appellant
used two fingers to press lightly on B.A.B.’s chest—not wanting to hurt the baby—
and started to breathe into her mouth. The trip to the hospital took approximately
three to five minutes. When they arrived, hospital staff were waiting. Dr. Stephen
Nichols and Dr. Scot Morris tried to save B.A.B. But after forty-two minutes of
lifesaving efforts, they were unable to revive the baby.

      1
        The parties are in disagreement as to who made the comment that B.A.B. looked pale.
Nonetheless, the comment compelled Brewer to check on B.A.B.
                                            2
      Dr. Nichols was the emergency room physician in charge of B.A.B.’s care.
He testified that, when B.A.B. arrived, “[s]he was basically dead.” B.A.B. was
“completely unresponsive,” with no reflexes, heartbeat, breathing, or electrical
activity. Dr. Nichols further testified that B.A.B.’s pupils were “fixed and dilated,”
meaning that she was likely dead for some time, possibly over thirty minutes, and
that her body temperature was well below normal at 91.4 degrees. B.A.B. already
had lividity marks on her body. Dr. Nichols also noticed that B.A.B. had dark
bruising, about an inch in diameter, bilaterally across her upper chest. He explained
that such bruising on an infant was suspicious.
      Given the suspicious manner in which B.A.B. died, Dr. Tasha Greenberg, a
Tarrant County medical examiner, conducted an autopsy of B.A.B. Dr. Greenberg
testified that the autopsy revealed multiple bilateral posterior, anterior, and anterior
lateral rib fractures. The autopsy further revealed that B.A.B. suffered the following
injuries: contusions of the upper chest; focal hemorrhage of the posterior neck
muscle; scant subdural hemorrhage of the brain and spinal cord; patchy
subarachnoid hemorrhage of the brain; subdural hemorrhage of optic nerves;
bilateral retinal hemorrhages; and hemorrhage of cervical spinal nerves.
Dr. Greenberg noted that the hemorrhage of B.A.B.’s spine existed at all levels from
the base of her skull to the lower cervical spine. She also noted two contusions under
the right and left side of B.A.B.’s chin.       These injuries, she explained, were
consistent with some sort of rotational force, such as squeezing and shaking. Given
the location of the bruises, Dr. Greenberg testified that they could have resulted from
someone gripping and shaking B.A.B. with his hands under her armpits and his
thumbs on her chest.
      Dr. Dana Elizabeth Austin, an anthropologist who examined B.A.B.’s skeletal
remains, testified that B.A.B.’s rib fractures were of particular concern.          She
determined that B.A.B. had at least twenty-eight rib fractures. She noted that the
                                           3
ribs at the top of the rib cage are the strongest and that B.A.B.’s bones in general had
a strong elastic component given her young age. Dr. Austin explained that, because
most of B.A.B.’s ribs were completely fractured from top to bottom, down the rib
cage in a column, strong and excessive force would have been required to cause the
fractures. She also explained that these injuries were likely caused by someone
holding B.A.B. and squeezing her ribs with the thumbs, while having her back
anchored with the fingers.
      Dr. Morris, a pediatrician with over fifteen years of experience, also treated
B.A.B. in the emergency room. According to Dr. Morris, given the multitude of
injuries that B.A.B. sustained, including the rib fractures and internal hemorrhaging,
B.A.B. “was shook violently for a sustained amount of time.” Dr. Morris testified
that he would expect that “someone squeezed most of the infant’s chest with great
force and shook violently to cause this many fractures in this many positions.” He
characterized the level of force required to inflict such injuries as “severe
acceleration/deceleration,” consistent with “falling three stories over and over
again.” Dr. Morris further opined that “any person would know that the . . . trauma
required to cause these injuries would be life-threatening.” Ultimately, Dr. Morris
concluded that such injuries were the result of non-accidental trauma and “violent
sustained shaking.”
      In addition, Dr. James Claude Upshaw Downs, an experienced forensic
pathologist, testified about the severity of B.A.B.’s injuries. Dr. Downs explained
that the retinal hemorrhages extended all the way to the front of the retina. In
particular, he noted that the bleeding in the left eye was significant because there
were “dark spots throughout the retina,” which originated all the way from the back
of the eye to the front of the retina. Given the extent of these injuries, Dr. Downs
testified that such injuries were caused by “extreme force,” such as “violent
acceleration/deceleration.” He further testified that the hemorrhaging of the nerve
                                           4
roots of the spinal cord in B.A.B.’s neck, which had bleeding at every level, strongly
suggested that someone shook B.A.B. Dr. Downs also testified that B.A.B. had
thirty-two total rib fractures. Like Dr. Morris, Dr. Downs concluded that B.A.B.’s
broken ribs were caused by “squeezing combined with shaking.” Although he could
not quantify the amount of force needed to produce B.A.B.’s injuries, he explained
that “significant force . . . over a protracted period of time” was required to cause
them.
        Appellant did not appear to show much emotion at the hospital while doctors
tried to revive B.A.B. Officer Gary Villapando, a police officer with the Brownwood
Police Department who came to the hospital, described Appellant as the “least
emotional” person in the family. In contrast, he testified that Brewer was “extremely
upset” and “screaming as if she was in pain or some kind of agony.”
        Dr. Pennissi Locker Patrick Taylor, Appellant’s expert witness, testified that
Appellant had a low IQ of 73 and had limited cognitive and problem-solving
abilities.   But Dr. Taylor also admitted that Appellant was not intellectually
deficient, that he recognized the need to be careful with babies, and that he had the
capacity to understand the difference between right and wrong.
        At the hospital, Appellant spoke with Dr. Morris, Dr. Nichols, and
Officer Villapando about what had happened to B.A.B. Appellant explained to
Officer Villapando that he brought B.A.B. downstairs, fed her, and laid her down in
her swing to sleep. Then while he, Brewer, and Brown were watching a movie,
Appellant claimed that he was the first to notice the discoloring on B.A.B.’s chest.
According to Appellant, when he went to check on B.A.B., he noticed that she was
cold and limp. Appellant picked her up and did not hear a heartbeat. Appellant also
spoke to the doctors about when B.A.B. was last fed. Appellant told Dr. Morris that
B.A.B. was well-fed probably two hours before he found her nonresponsive. After
speaking with Dr. Morris, however, Appellant told Dr. Nichols that he had bottle-
                                           5
fed B.A.B. only five minutes before he found her cold, bruised, and limp in her
swing.
      After talking with Appellant, Officer Villapando spoke with Brown.
Officer Villapando testified that Brown’s recollection was different than
Appellant’s. In particular, Officer Villapando testified that Brown told him it was
actually Brewer who first noticed something was wrong with the baby. Additionally,
Brown expressed that Brewer was the one who picked up B.A.B. and that Brewer—
not Appellant—checked for signs of life.
      Later that day, with Appellant’s consent, Detective Harold Q. Thomas
conducted an in-home investigation of Appellant’s apartment to determine what had
happened. During this investigation, Appellant failed to disclose to Detective
Thomas that he was home alone with B.A.B. Appellant also continued to maintain
that he fed B.A.B. and put her in the swing, before he found her cold and
nonresponsive. This time, he claimed that Brown was the first to notice that B.A.B.
looked pale. But he also told Detective Thomas that he was the first to check on
B.A.B. and notice purple bruising on B.A.B.’s chest.
      In a subsequent interview with Detective Thomas conducted four days later,
Appellant stated that he (not Brown) was the one who asked whether B.A.B. looked
pale. Appellant admitted that Brewer, rather than Appellant, was the one who first
checked on B.A.B.        After further questions, Appellant also disclosed to
Detective Thomas for the first time that he was home alone with B.A.B. while
Brewer and Brown went to Walmart. Appellant, however, repeatedly emphasized
that, when he was home alone with B.A.B., he was in the shower the entire time.
Further, Appellant told Detective Thomas that he administered CPR to B.A.B.
during the car ride to the hospital, by lightly pushing on her chest with two fingers
“but not too hard.” Detective Thomas testified that Appellant’s description of how
he performed CPR indicated that he did not use excessive force.           But when
                                           6
Detective Thomas questioned him about B.A.B.’s unusual bruising and injuries,
Appellant then professed that he may have pushed harder than he thought.
        A few weeks later, and two days before Appellant was arrested, he
participated in another interview with Texas Ranger Jason Shea. During this
interview, Appellant repeatedly denied that he fed B.A.B. on the day she died. He
denied telling the doctors that he fed B.A.B. five minutes before finding her
nonresponsive. He also denied that B.A.B. choked and claimed that he did not
remove the onesie B.A.B. was wearing that day.                          Ranger Shea testified that
Appellant’s body language indicated that he was being dishonest and that Appellant
attempted to blame Brown for what happened to B.A.B.
        After Ranger Shea suggested that B.A.B.’s death may have been the result of
an accident, Appellant confessed that he did feed B.A.B. that day and that B.A.B.
died after she choked on the formula. Appellant claimed that he tried to help B.A.B.
by patting her on the back, and even stood up and shook her a little, but nothing
worked. He claimed that B.A.B. then suddenly stopped moving in his arms and
closed her eyes. Appellant also admitted that he took off B.A.B.’s onesie because it
was covered in her vomit. 2
        Both Dr. Nichols and Dr. Morris testified that B.A.B. could not have died
from choking on milk or formula because there were no signs of milk or formula in
B.A.B.’s airways and nasal passages. They also testified that it was not likely that
Appellant fed B.A.B. five minutes before finding her nonresponsive because
B.A.B.’s low body temperature and the signs of lividity on her body suggested that



        2
         Appellant told Ranger Shea that, after B.A.B. vomited on her onesie, he took it off, went
downstairs, and placed it next to the microwave. Brewer testified that she located the onesie near the
microwave and that the onesie smelled like vomit. Brewer took the onesie and put it in Appellant’s father’s
truck, and Appellant’s brother’s girlfriend later took it and washed it. Thus the onesie was never collected
as evidence. Appellant did not mention the onesie or disclose its location to Detective Thomas during his
in-home walk-through of Appellant’s apartment.
                                                     7
she could not have been fed only a few minutes before arriving at the hospital.
Appellant’s medical expert, Dr. Kris Lee Sperry, agreed that B.A.B.’s death was not
the result of choking. Rather, he likewise concluded that B.A.B. died as a result of
“rapid squeezing” of her chest accompanied by “shaking to whatever extent was
necessary to result in the injuries.” In addition, Dr. Nichols emphasized that
B.A.B.’s injuries could not have been caused by any resuscitative efforts utilized by
hospital personnel or performed by Appellant himself.
      Appellant was arrested on January 22, 2016, and charged with capital murder.
The indictment alleged that Appellant knowingly caused the death of B.A.B., who
was younger than ten, by shaking, squeezing, or striking or by manner and means
unknown. While in jail, Appellant had several phone conversations with his family.
In one conversation, he confirmed that he was alone with B.A.B. the entire time
Brewer and Brown went to Walmart. In another conversation, when Appellant’s
brother asked him whether he admitted that he “did that,” Appellant answered,
“Yep.” After a four-day bench trial, the trial court found Appellant guilty of capital
murder.
                                      Analysis
      In his sole issue on appeal, Appellant contends that the evidence was
insufficient to support his capital murder conviction.        Appellant directs his
sufficiency challenge to the mens rea required for the offense of capital murder.
Specifically, Appellant argues that the evidence was insufficient to support the
finding that he knowingly caused the death of B.A.B. In making this assertion,
Appellant places an emphasis on a comment made by the trial court when it
announced its verdict at the end of the guilt/innocence phase. The trial court noted
that there was no allegation that Appellant intentionally murdered the infant and that
there was no evidence that Appellant intentionally murdered the infant. Appellant
asserts that there is “little difference” between the culpable mental states of
                                          8
intentionally and knowingly. Appellant argues that it was irrational for the trial court
to find beyond a reasonable doubt that he knowingly committed the offense because
the trial court found no evidence that he intentionally murdered B.A.B. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      A person commits capital murder if the person intentionally or knowingly
causes the death of an individual under ten years of age. See TEX. PENAL CODE ANN.
§ 19.02(b)(1) (West 2011), § 19.03(a)(8) (West Supp. 2018). Capital murder and
murder are result-of-conduct offenses, which means that the culpable mental state
relates to the result of the conduct, i.e., the causing of the death. Roberts v. State,
                                           9
273 S.W.3d 322, 328–29 (Tex. Crim. App. 2008); Schroeder v. State, 123 S.W.3d
398, 400 (Tex. Crim. App. 2003) (citing Cook v. State, 884 S.W.2d 485, 491 (Tex.
Crim. App. 1994)).
      A person acts intentionally, or with intent, with respect to a result of his
conduct when it is his conscious objective or desire to cause the result. PENAL
§ 6.03(a). A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause the
result. Id. § 6.03(b). The indictment in this case only alleged that Appellant
knowingly caused B.A.B.’s death. Thus, the State was required to prove that
Appellant was aware that his conduct was reasonably certain to cause the baby’s
death. See Chaney v. State, 314 S.W.3d 561 (Tex. App.—Amarillo 2010, pet. ref’d).
      We disagree with Appellant’s contention that the culpable mental states of
“intentionally” and “knowingly” are virtually synonymous. “Knowingly” is a
lesser-included culpable mental state of “intentionally.” See Hicks v. State, 372
S.W.3d 649, 656 (Tex. Crim. App. 2012). Furthermore, these culpable mental states
have different elements. As noted in Roberts, “[c]apital murder is a result-of-
conduct oriented offense; the crime is defined in terms of one’s objective to produce,
or a substantial certainty of producing, a specified result, i.e.[,] the death of the
named decedent.” 273 S.W.3d at 329. A person intentionally commits murder if it
is his objective to produce the death of the named decedent; a person knowingly
commits murder if he has a substantial certainty of producing the death of the named
decedent. See id.
      As applied to Appellant, the State could establish his guilt for capital murder
by proving that he was aware that his conduct was reasonably certain to cause the
baby’s death even though he did not intend to cause the baby’s death. See PENAL
§ 6.03(b). Thus, if the evidence is sufficient, a defendant may be convicted of capital
murder if he acted “knowingly,” even though the evidence is insufficient to show
                                          10
that he acted “intentionally.” See Darnes v. State, 118 S.W.3d 916, 920–21 (Tex.
App.—Amarillo 2003, pet. ref’d) (discussing that evidence tending to illustrate that
defendant did not intentionally cause the death of the eleven-month-old child did not
preclude a finding that he knowingly caused the child’s death). Thus, “merely
disproving that he may have acted ‘intentionally’ does not ipso facto insulate the
actor from being found guilty for capital murder if he nonetheless was charged with
acting, and the State proved he acted with, a knowing state of mind.” Id. at 920.
      “Proof of a culpable mental state almost invariably depends upon
circumstantial evidence.” Montgomery v. State, 198 S.W.3d 67, 87 (Tex. App.—
Fort Worth 2006, pet. ref’d); Morales v. State, 828 S.W.2d 261, 263 (Tex. App.—
Amarillo 1992), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993). A factfinder can
infer knowledge from the extent of the injuries to the victim, the method used to
produce the injuries, and the relative size and strength of the parties. See Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Additionally, the factfinder
can infer a culpable mental state from the acts, words, and conduct of the accused.
Id. In a murder case, evidence of a particularly brutal or ferocious mechanism of
death, inflicted upon a helpless victim, can be controlling upon the issue of intent or
knowledge. Id. The Court of Criminal Appeals has stated that “[a]ny violent assault
on such a young child may be reasonably expected to cause death.” Lindsey v. State,
501 S.W.2d 647, 648 (Tex. Crim. App. 1973).
      The evidence in this case shows that B.A.B. was alive and healthy, displaying
no cause for concern except a diaper rash, before Brewer and Brown went to
Walmart. Appellant was alone with B.A.B. for approximately thirty minutes. After
Brewer and Brown returned, B.A.B. was cold, limp, and not breathing. B.A.B. also
had dark bruising bilaterally across her chest. Doctors pronounced B.A.B. dead after
she did not respond to lifesaving efforts. B.A.B. was only twenty-eight days old


                                          11
when she died; she weighed a little less than ten pounds. In contrast, Appellant was
an 18-year-old male who was 5′9″ and weighed 175 pounds.
      Dr. Greenberg conducted an autopsy of B.A.B.             The autopsy revealed
numerous, serious injuries, including extensive hemorrhaging in B.A.B.’s eyes,
brain, neck, and spine. B.A.B. also had thirty-two total rib fractures. The fractures
were present throughout the top and bottom, as well as the front and back, of the rib
cage. Several doctors testified at trial. Collectively, their testimony established that
strong rotational force, accompanied by shaking and squeezing for an extended
period of time, caused B.A.B.’s injuries. In particular, Dr. Morris testified that
B.A.B.’s injuries were consistent with someone grabbing B.A.B. by the chest and
shaking forcefully. The testimony at trial also established that B.A.B.’s injuries were
not caused by a choking event, given the lack of any milk or formula in her airways,
or any resuscitative efforts, either by medical personnel or Appellant himself.
Instead, the extent and severity of the injuries caused the doctors to conclude that
B.A.B.’s death resulted from non-accidental trauma.
      At the hospital, Appellant did not appear very emotional. More importantly,
he was not completely forthcoming and truthful to medical personnel or law
enforcement. He provided inconsistent statements to Dr. Nichols and Dr. Morris
about when B.A.B. was last fed. Further, during the investigation of B.A.B.’s death,
Appellant attempted to conceal his involvement. In particular, he failed to disclose
key facts to law enforcement, including the fact that he was alone with B.A.B. for
approximately thirty minutes; that he was not in the shower the entire time he was
alone with the baby; and that, after B.A.B. allegedly choked, he took off B.A.B.’s
onesie, on which she had vomited.
      In addition, Appellant made conflicting statements about the events leading
up to finding B.A.B. unresponsive in her swing, including whether he fed B.A.B.,
whether she choked, and who first noticed B.A.B. was pale and went to go check on
                                          12
her. Appellant even attempted to shift the blame to Brown. Although he eventually
claimed that B.A.B. died because she choked to death, he did so several weeks after
the incident and only after Ranger Shea suggested that B.A.B.’s death may have
been an accident. However, the treating physicians and medical experts at trial all
concluded that B.A.B. did not die from choking. Instead, they testified that B.A.B.
died due to violent shaking and squeezing.
        Considering the severity of B.A.B.’s injuries, the disparity of size and strength
between Appellant and B.A.B., the universal knowledge of the fragility of newborn
infants, and Appellant’s subsequent behavior, a rational trier of fact could have
found beyond a reasonable doubt that Appellant knowingly caused the death of
B.A.B. Accordingly, the evidence was sufficient to support Appellant’s conviction
for capital murder. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


February 14, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Willson, J., and Wright, S.C.J.3

Willson, J., not participating.



        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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