AFFIRM; Opinion Filed June 27, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                       No. 05-12-00632-CR

                       CARLNELUS DELANEY SIMMONS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 204th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F10-62484-Q

                                           OPINION
                             Before Justices Francis, Lang, and Evans
                                    Opinion by Justice Evans
       A jury convicted Carnelus Delaney Simmons of injury to a child and sentenced him to

ninety-nine years’ imprisonment. He complains in two issues that the evidence against him is

legally insufficient to support his conviction and the trial court erred in denying his request for a

jury instruction on the issue of involuntary conduct. We affirm the trial court’s judgment.

                                  FACTUAL BACKGROUND

       Appellant was responsible for looking after the sixteen-month-old complainant and his

nearly three-year-old brother while the boys’ mother was at the hospital seeking treatment for a

urinary tract infection. At 11:49 p.m., appellant called 911 saying that the complainant had been

burned while he was cooking in the kitchen. While appellant relayed instructions from the 911

operator, the child’s mother and friends tried to care for the complainant. Paramedics rushed the
toddler to the hospital. He had third degree burns on about thirty percent of his body. Thirty-six

days after his admission to the hospital, the child died of complications from the burns.

       The complainant had burns on his legs up to his waist, but the burns were more

significant on his lower legs below the knee. He had some burns on the back of both thighs,

around his groin, on his right buttock, the bottom of both his feet, and his right hand. He had a

small burn around part of his waist. He had no burns on his head, face, or shoulders, but the area

of his left cheek and ear was bruised. It appeared that the burns were already a few hours old by

the time the complainant arrived at the hospital.

       A recording of appellant’s 911 call was admitted into evidence.            In the recording,

appellant states that he was heating up some water on the stove and when he turned around, “the

water’s so hot it hit him and all his skin is coming off.” He later states that he had been boiling

water on the stove and did not realize that his “baby son” was behind him. He claims that when

he turned around he did not see the complainant and “all the water spilled on him.”

       Three doctors who treated the complainant while he was hospitalized, two of whom are

board certified in child abuse pediatric medicine, testified for the State. All three stated that the

nature of the burns indicated that the complainant had been immersed in a hot liquid and that the

burns were not accidental. In the doctors’ opinion, it appeared the toddler had been immersed in

the liquid wearing a diaper, which leaked a little causing the burn to his buttock, and had folded

his body into a fetal position to protect himself. The doctor who performed the autopsy also

concurred in this assessment.

       A pediatrician who testified for the defense claimed that, based on the case documents he

reviewed, the burns appeared to be of an accidental nature caused by water splattering on the

child. The doctors who had cared for the toddler disagreed.




                                                –2–
       The complainant’s mother testified that appellant often cooked for the family. She said

that when she got to the house after appellant called 911, everything in the kitchen was laid out

like he was getting ready to prepare a meal. A police officer who photographed the scene

identified a box of Hamburger Helper sitting out in one of the photographs and a package of pork

chops sitting on top of the kitchen refrigerator.    Photographs of the kitchen admitted into

evidence showed a towel on the floor near the stove and a large pot on the stove with a small

amount of water in it.

                                          ANALYSIS

I. Legal Sufficiency of the Evidence

        In his first issue, appellant claims the evidence against him is legally insufficient to

prove he intentionally or knowingly caused the complainant’s injuries. He argues that the expert

testimony offered by the defense combined with the evidence of his making a meal and his

attempts to help the child show that no rational jury could have found his actions to have been

intentional. We disagree.

       In a legal sufficiency review, we apply well-established standards. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010). We view the evidence in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.

Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jury, as sole judge of

the witnesses’ credibility and the weight to be given their testimony, is free to accept or reject

any or all of the evidence presented by either side. Jones v. State, 333 S.W.3d 615, 620 (Tex.

App.—Dallas 2009, pet. ref’d). Here, viewed in the light most favorable to the verdict, the

evidence shows appellant was the sole caretaker of the sixteen-month-old complainant when the

child sustained burns that were determined by multiple medical witnesses to be intentional

                                               –3–
immersion burns that ultimately caused the child’s death. The evidence is legally sufficient. We

resolve appellant’s first issue against him.

II. Error in Denying Appellant’s Request for an Instruction on Involuntary Conduct

       Appellant next complains that the trial court erred when it denied his request for a jury

instruction on the issue of involuntary conduct. He argues that he was entitled to such an

instruction because his defense at trial was that he had injured the complainant accidentally when

the toddler “came up from behind and startled him . . . somehow caus[ing] Appellant to

accidentally spill and splash the scalding water” on him. A defendant is entitled, upon timely

request, to an instruction on any defensive issue raised by the evidence if (1) the defendant

timely requests an instruction on that specific theory and (2) the evidence raises the defensive

issue. Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003).

       When a person claims the involuntary-act defense he concedes that his own body made

the motion but denies responsibility for it. Voluntariness, within the meaning of section 6.01(a)

of the Texas Penal Code, refers only to one’s own physical body movements. Trujillo v. State,

227 S.W.3d 164, 169 (Tex. App. (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). If those

movements are the nonvolitional result of someone else’s act, are set in motion by some

independent non-human force, are caused by a physical reflex or convulsion, or are the product

of unconsciousness, hypnosis or other nonvolitional impetus, then the movements are not

voluntary. Therefore, an instruction on voluntariness is necessary only if the defendant admits

committing the act charged and seeks to absolve himself from criminal responsibility for

engaging in the conduct. Id.

       Appellant argues, with no citation to the record, that the evidence in this case “raises the

issue of whether Appellant’s physical movement resulting in the water contacting [the

complainant] was voluntary or involuntarily caused by the startle reflex.” He offers no further

                                               –4–
argument to explain his position that evidence at trial showed the child’s burns were caused by

his physical reflex, rather than a voluntary act. Because appellant failed to adequately brief this

issue, it is waived for appeal. See TEX. R. APP. P. 38.1(h).

       Furthermore, there is nothing in appellant’s comments to the 911 operator that

demonstrates the complainant was burned due to appellant’s physical reflex, rather than his

reactionary choice. His comments to the 911 operator do not explain how the water spilled onto

the toddler—they merely relate that he was boiling water, he did not see the child behind him,

and somehow the child was burned to the point that his skin started peeling off. Appellant’s

statements fail to detail how an intervening event rendered his actions involuntary. See Sparks v.

State, 68 S.W.3d 6, 13 (Tex. App.—Dallas 2001, pet. ref’d), abrogated on other grounds,

Guzman v. State, 85 S.W.3d 242 (Tex. Crim. App. 2002). A claim of accident is not the

equivalent of the absence of any voluntary act under penal code section 6.01(a). Rogers, 105

S.W.3d at 638. Nor is conduct rendered involuntary merely because the accused did not intend

the result of his conduct. See id. Appellant’s incomplete description of the offense did not merit

a jury instruction on the issue of voluntariness. We resolve his second issue against him.

       We affirm the trial court’s judgment.




                                                      DAVID EVANS
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47
120632F.U05




                                                –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CARLNELUS DELANEY SIMMONS,                            On Appeal from the 204th Judicial District
Appellant                                             Court, Dallas County, Texas
                                                      Trial Court Cause No. F10-62484-Q.
No. 05-12-00632-CR         V.                         Opinion delivered by Justice Evans.
                                                      Justices Francis and Lang participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of June, 2013.




                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE




                                                –6–
