Opinion issued February 14, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00316-CR
                           ———————————
                  ANTOINE ALLEN GORMAN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 300th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 83250-CR


                         MEMORANDUM OPINION

      A jury convicted appellant Antoine Allen Gorman for the first-degree felony

offense of injury to a child. See TEX. PENAL CODE § 22.04. Gorman pleaded true to

two enhancement allegations, and the jury assessed punishment at life in prison.

See id. §§ 12.32, 12.42(d) (establishing enhanced punishment range of 25 to 99
years or life in prison). In his sole appellate issue, Gorman argues that the trial

court erred by admitting evidence that sperm cells were found in the infant

complainant’s mouth, despite his objections that the evidence was irrelevant and

that any probative value was substantially outweighed by the danger of unfair

prejudice. We conclude that the trial court did not err by admitting this evidence,

and we affirm.

                                  Background

      About a month after Tashiay Nelson gave birth to M.N., she invited

appellant Antoine Allen Gorman to live with her in Freeport. Nelson knew Gorman

only from social media, and he had told her that his name was Luther Jefferson. A

few weeks later, Nelson left him to care for three of her children—J.Z.N., who was

four years old, J.N., who was three years old, and M.N., who was seven weeks

old—while she went to work. When Nelson left, sometime before 8:00 a.m.,

Gorman and the three-year-old were asleep, and J.Z.N. and M.N. were awake in

the bedroom shared by the children. Around 11:00 a.m. J.Z.N. went to her aunt’s

apartment in the same apartment complex. The aunt, Tyshanique Nelson, had

agreed to put J.Z.N. on the bus to preschool around noon.

      J.Z.N. told her aunt that “Luther” had put the baby’s head in the toilet, and

when questioned, she went to the bathroom and pantomimed what she meant: a

person holding a baby and dunking its head into the toilet water. Tyshanique and


                                        2
J.Z.N. returned to Nelson’s apartment to confront Gorman. He denied the

accusation and yelled at J.Z.N., who began crying and retracted her statement.

Gorman was holding M.N. on his shoulder, but Tyshanique did not see his face,

hear him make any noise, or touch him.

      Meanwhile,     Gorman,    identifying   himself   as   “Twan,”     had   been

communicating with another woman, Crystal Griggs, whom he met that day on the

same website where he met Nelson. Gorman and Griggs communicated throughout

the day. In the mid-afternoon, Gorman went to a neighbor’s apartment and asked

for a ride to Houston, but the neighbor declined. The neighbor later testified that

the front of Gorman’s shirt was wet. Gorman asked Griggs to come visit him, and,

in the late afternoon or early evening, he convinced her to drive him to Houston.

      That evening, a neighbor noticed that J.Z.N., J.N., and Tyshanique’s minor

children were all together on a stairwell without any adult supervision. The

neighbor informed Tyshanique, who met Nelson at her apartment when she arrived

home around 7:00 p.m. Nelson found M.N. in his bouncy seat in the apartment,

and when she realized he was not breathing, neighbors attempted CPR and called

for emergency services. M.N. was taken by ambulance to the emergency room

where his body temperature was measured at 78° F, and he was pronounced dead.

      The next day, Gorman sent Griggs text messages asking her to lie to the

police about what happened the day before. First, he asked her to say that she had


                                         3
been with him all day. Second, he asked her to say that she heard Nelson in the

background while speaking to him on the phone. He also asked her to leave the

state with him. Griggs declined all of his requests, and she turned over images of

the text messages to police.

      Nelson gave the police a photograph of Gorman, and he was later arrested

on a warrant for child abandonment. Gorman was questioned by the Freeport

Police Department. At first, he denied having harmed M.N. in any way, and he

asserted that the baby was alive when he left the apartment to meet Griggs. Later,

he confessed to twice dunking M.N.’s head into the toilet because he was frustrated

with the baby’s crying. Gorman said that after dunking the baby in the toilet, he

took a nap. He admitted that he knew M.N. was already dead when he asked a

neighbor and later Griggs for a ride to Houston. Gorman contended that he

panicked and fled after M.N. died.

      Investigators documented water and a soaked and warped roll of toilet paper

on the floor of the master bathroom, along with wet shoe prints on the floor in the

master bedroom of Nelson’s apartment. At trial, two City of Freeport law

enforcement officers testified that they had been told that a baby had been drowned

or dunked in a toilet by his mother’s boyfriend.

      An autopsy was performed on M.N. by the Galveston County Medical

Examiner, under contract with Brazoria County. Although the autopsy report did


                                         4
not identify a cause or manner of death, both the medical examiner who performed

the autopsy, Dr. Nobby Mambo, and his supervisor, Dr. Erin Barnhart, testified

that, based on the findings, M.N. died from unnatural causes, by suffocation or

drowning, hours before he was found. Dr. Mambo testified that injuries to M.N.’s

torso could not have been self-inflicted or attributed to CPR. Because the injuries

had not begun to heal, he concluded that they were inflicted minutes before M.N.’s

death. Dr. Barnhart testified that no natural disease process was consistent with the

totality of observations made during the autopsy. Dr. Mambo observed injuries

seen “in cases of suffocation, either accidental or homicidal,” including changes in

the brain and small areas of bleeding on both lungs. He also observed fluid in the

lungs, bubbly froth in the trachea, and bloody liquid coming from the mouth

consistent with drowning. Dr. Mambo opined that something was done to obstruct

M.N.’s airways and that semen was capable of obstructing infant’s airways. Dr.

Barnhart testified that the frothy liquid found in M.N.’s trachea and lungs was

consistent with him being dunked in a toilet. Finally, because M.N.’s temperature

was so low when he arrived at the hospital, both Dr. Mambo and Dr. Barnhart,

believed that he had been dead for hours when he was found.

      DNA tests were performed on swabs taken from M.N. during the autopsy.

After Gorman’s DNA was found on the swab taken from the inside of M.N.’s

mouth, Dr. Mambo suggested testing that swab for the presence of semen. Sperm


                                         5
cells were found in that sample, but there was an insufficient amount of the sperm

cell fraction to perform another DNA analysis.

      Gorman was charged with injury to a child. The indictment alleged that

Gorman had intentionally or knowingly caused M.N. serious bodily injury by:

(1) dunking him in a toilet containing water; (2) submerging his face in a toilet

containing water; (3) grabbing him by the foot and dunking him in a toilet

containing water; (4) submerging his head in a toilet containing water; (5) shaking

him; (6) dunking him in water; (7) failing to seek or provide timely medical care to

him after dunking him in a toilet containing water while Gorman had assumed

care, custody, or control of him; or (8) unknown means.

      Before trial, the court held a hearing on Gorman’s motion to exclude

evidence that semen or sperm cells were found in M.N.’s mouth. The State

presented live testimony from Angelina Temple, a forensic scientist with the

Department of Public Safety. She interpreted the DNA results from the oral swab

sample from M.N. She testified that the DNA profile of the oral swab was a

mixture of three individuals, including M.N. and Gorman. She testified that a

second analysis “was able to confirm sperm cells” on the swab from M.N.’s




                                         6
mouth. Temple explained that further DNA testing of the sperm cells was

inconclusive as to whether Gorman was a contributor.1

      Gorman objected that the evidence was irrelevant and that any probative

value was outweighed by the danger of unfair prejudice caused by the introduction

of evidence that semen was found in M.N.’s mouth, especially in light of the

inconclusive result of the second analysis. The State responded that the evidence

was relevant because the cause of death was unknown, but consistent with a sexual

act that could cause semen to be in the baby’s mouth. The State also argued that

the evidence was relevant to motive, positing that Gorman put the baby’s head in

the toilet to wash away evidence of a sexual assault. Finally, the State argued that it

intended to introduce other evidence that Gorman was the only adult man with

M.N. the day he died.




1
      Temple performed a differential extraction and separated a sperm cell from the
      rest of the sample to attempt to “identify the possible source of the semen.” She
      said there was “very little DNA profile information obtained from the sperm cell
      fraction,” but she did obtain a DNA profile. She testified that the “sperm cell
      fraction was interpreted as a mixture of two individuals.” M.N. was “an assumed
      contributor,” and “it was inconclusive whether Antoine Gorman was a contributor
      to the profile.” She explained that both “contributors in the sperm cell fraction
      were very close to the analytical threshold” below which there was no certainty
      that the peaks obtained were DNA peaks as opposed to “noise from the machine or
      some other kind of artifact.” On cross-examination, she agreed that in the second
      analysis—the sperm fraction—she could not identify the contributor because the
      sample was too small. She could “say semen was detected” in the sample, but she
      had no personal knowledge of how it came to be present.

                                          7
         The trial court ruled that the evidence of both analyses was relevant and

more probative than prejudicial. As to the analysis of the sperm fraction of the

sample, however, the court also noted that it would “allow the entirety of cross-

examination with regard to the results being inconclusive . . . and then the jury can

decide what weight, if any, to give to that second analysis.”

         Temple testified at trial, and evidence that sperm cells were found in M.N.’s

mouth also was introduced through the testimony of Dr. Mambo and Dr. Barnhart.

The jury found Gorman guilty of injury to a child, and after a punishment hearing,

it assessed punishment at life in prison. Gorman appealed.

                                       Analysis

         On appeal, Gorman argues that the trial court erred by admitting evidence

that sperm cells were found in M.N.’s mouth. He contends that the evidence was

irrelevant because there was no conclusive analysis connecting him to the sperm

cells found in M.N.’s mouth. He also asserts that any probative value of the

evidence was outweighed by the unfairly prejudicial nature of the evidence, which

focused the jury on a sexual assault rather than the charged offense of injury to a

child.

         A trial court’s decision to admit or exclude evidence is reviewed under an

abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim.

App. 2016); Gibbs v. State, 555 S.W.3d 718, 731 (Tex. App.—Houston [1st Dist.]


                                           8
2018, no pet.). A trial court abuses its discretion by acting arbitrarily,

unreasonably, without reference to any guiding rules or principles, Montgomery v.

State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990), or by making a decision that

is “so clearly wrong as to lie outside the zone within which reasonable people

might disagree.” Henley, 493 S.W.3d at 83 (quoting Taylor v. State, 268 S.W.3d

571, 579 (Tex. Crim. App. 2008)). The trial court, as gatekeeper, resolves any

preliminary question related to the admissibility of evidence. See TEX. R. EVID.

104(a) (“The court must decide any preliminary question about whether . . .

evidence is admissible.”). We will uphold a trial court’s evidentiary ruling if it is

correct on any theory of law applicable to that ruling. De La Paz v. State, 279

S.W.3d 336, 344 (Tex. Crim. App. 2009).

      I.     The evidence was relevant.

      “Relevant evidence is generally admissible, irrelevant evidence is not.”

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing TEX. R.

EVID. 402). “Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” TEX. R. EVID. 401. “Evidence does not

need to prove or disprove a particular fact by itself to be relevant; it is sufficient if

the evidence provides a small nudge toward proving or disproving a fact of

consequence.” Gonzalez, 544 S.W.3d at 370. “A ‘fact of consequence’ includes


                                           9
either an elemental fact or an evidentiary fact from which an elemental fact can be

inferred.” Henley, 493 S.W.3d at 84. Although relevant evidence need not

independently prove an element of the charged offense, it must not be “wholly

unconnected to an elemental fact.” Id.

      The State was required to prove that Gorman intentionally or knowingly

caused M.N. serious bodily injury. Only four-year-old J.Z.N. witnessed the alleged

dunking of M.N. in the toilet, and she did not testify at trial. Thus, the State’s case

rested on circumstantial evidence.2

      Gorman rested on his presumption of innocence, and in closing, his attorney

argued that M.N.’s death was unexplained. He asserted that even the medical

examiners had been unable to determine a cause of death, and he questioned why

the sole alleged eyewitness, J.Z.N., did not testify. He characterized his recorded

statement to police as Gorman “nodding his head with leading questions posed to

him by a very skillful interrogator.”

      The evidence that semen was found inside M.N.’s mouth was connected to a

fact of consequence, that Gorman intentionally or knowingly committed an act that
2
      The circumstantial evidence included J.Z.N.’s statements to her aunt, the physical
      evidence of water found on the floor of the master bathroom and bedroom, the fact
      that Gorman was the only adult male alone with M.N., the medical examiners’
      statements that M.N. died from suffocation or drowning, Gorman’s recorded
      statement to police, evidence of his flight from the scene, and text messages to
      Griggs asking her to create a false alibi for him. In addition, the State introduced
      evidence, which is not challenged on appeal, that Gorman’s DNA was found
      inside M.N.’s mouth.

                                           10
injured M.N., in two ways. Gorman was the only adult man alone with the children

the day that M.N. died, and his DNA was found in M.N.’s mouth. Dr. Mambo

testified that M.N. died due to an obstruction to his airway and that semen would

be capable of obstructing the airway of a seven-week-old infant. Dr. Mambo also

testified that sperm cells could be present in the baby’s mouth only if an adult man

committed a sexual act. The evidence that sperm cells were found in M.N.’s mouth

provided at least “a small nudge toward proving or disproving” that Gorman acted

intentionally or knowingly to injure M.N. See Gonzalez, 544 S.W.3d at 370.

      Second, the evidence provided a motive for Gorman to dunk M.N.’s head

into water: to wash away evidence of a sexual act. On appeal, Gorman asserts that

this evidence was not necessary because motive is not an element of the charged

offense. But in the trial court, his defense was to argue that the totality of the

circumstantial evidence did not prove that he committed the charged offense. In

making this argument, defense counsel discounted the recorded statement to

police, describing it as something other than a confession. In light of Gorman’s

defensive theory, evidence of sperm cells found in M.N.’s mouth was not “wholly

disconnected,” Henley, 493 S.W.3d at 84, from an elemental fact because it made

the fact that he dunked the baby in the toilet more probable “than it would be

without the evidence.” TEX. R. EVID. 401.




                                        11
      Gorman argues that evidence that semen was found in M.N.’s mouth was

irrelevant because the laboratory results were inconclusive. This argument

concerns the weight to be given to the evidence, not its admissibility. See Foster v.

State, 779 S.W.2d 845, 861 (Tex. Crim. App. 1989) (“A lack of positive

identification of an object, such as a weapon, connected with the alleged crime

affects the weight of the object as evidence, rather than its admissibility.”).

      We conclude that the trial court did not abuse its discretion by finding that

the challenged evidence was relevant. See Henley, 493 S.W.3d at 82–83;

Montgomery, 810 S.W.2d at 380.

      II.    The probative value of the evidence was not substantially
             outweighed by the danger of unfair prejudice.

      Gorman also argues that the court erred by admitting the challenged

evidence because any probative value that it had was outweighed by the

inflammatory and unfairly prejudicial nature of the evidence. On appeal, he argues

that the challenged evidence shifted the focus of the trial “from a crime of anger to

trying to wipe away evidence of a sexual assault.”

      Evidence that is relevant may nevertheless be excluded “if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence.” TEX. R. EVID. 403; see Gigliobianco

v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d

                                          12
at 388. When conducting a Rule 403 analysis, a court must balance the probative

force of and the proponent’s need for the evidence3 against (1) any tendency of the

evidence to suggest decision on an improper basis;4 (2) any tendency of the

evidence to confuse or distract the jury from the main issues;5 (3) any tendency of

the evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence;6 and (4) the likelihood that

presentation of the evidence will amount to undue delay. Gigliobianco,

210 S.W.3d at 641–42. We presume that relevant evidence is more probative than

unfairly prejudicial. Montgomery, 810 S.W.2d at 388; Smith v. State, 355 S.W.3d

138, 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Exclusion of evidence

under Rule 403 is required “only when there is a ‘clear disparity between the

degree of prejudice of the offered evidence and its probative value.’” Hammer v.




3
      Probative value refers to how strongly the evidence “serves to make more or less
      probable the existence of a fact of consequence to the litigation—coupled with the
      proponent’s need for that item of evidence.” Gigliobianco v. State, 210 S.W.3d
      637, 640 (Tex. Crim. App. 2006).
4
      Unfair prejudice refers to a tendency to suggest a decision on an improper or
      emotional basis, such as by arousing “the jury’s hostility or sympathy for one side
      without regard to the logical probative force of the evidence.” Id. at 641.
5
      Confusion of the issues refers to distracting the jury from the charged offense. See
      id.
6
      Misleading the jury refers to a “tendency of an item of evidence to be given undue
      weight by the jury on other than emotional grounds.” Id.
                                           13
State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67

S.W.3d 192, 202 (Tex. Crim. App. 2001)).

      Probative value. The evidence that sperm cells were found in the baby’s

mouth was probative as circumstantial evidence tending to make it more likely that

Gorman committed an act that injured M.N. However, there was overwhelming

other evidence that Gorman had intentionally dunked M.N. in toilet water.

Although the evidence was probative, the need for the evidence was low. This

factor neither weighs in favor of exclusion or admission of the evidence.

      Danger of unfair prejudice. “[S]exually related bad acts and misconduct

involving children are inherently inflammatory.” Pawlak v. State, 420 S.W.3d 807,

809 (Tex. Crim. App. 2013). This factor weighs in favor of exclusion.

      Misleading the jury. Gorman argues on appeal that the challenged evidence

changed the focus of the jury from the nature of the charged offense of injury to a

child to his alleged attempts to wash away evidence of assault. At trial, the court

allowed wide latitude to defense counsel to cross-examine Temple about the

inconclusive nature of the analysis of the sperm sample.7 Because the jury was

informed about the limitations of the second analysis, the trial court could have




7
      In addition, defense counsel thoroughly cross-examined Dr. Mambo about his
      findings, including the fact that there was no evidence that there was semen in the
      frothy liquid found in M.N.’s body and that the cause of death was undetermined.
                                          14
reasonably concluded that the jury was equipped to evaluate the evidence. See

Gigliobianco, 210 S.W.3d at 642. This factor does not weigh in favor of exclusion.

      Undue delay. Temple’s testimony took about an hour out of a week-long

trial, but her testimony about the semen sample took less than 20 minutes. The

challenged evidence did not unduly delay or extend the trial. This factor does not

weigh in favor of exclusion.

                                      ***

      Having considered the various factors relevant to a Rule 403 admissibility

determination, we conclude that there was not a clear disparity between the degree

of prejudice of the challenged evidence and its probative value. See Hammer, 296

S.W.3d at 568; Conner, 67 S.W.3d at 202. The trial court could have reasonably

concluded that the probative value of the evidence was not substantially

outweighed by the countervailing factors specified in the rule. See Gigliobianco,

210 S.W.3d at 642–43. Accordingly, we conclude that the court did not abuse its

discretion by admitting the challenged evidence. See id.; Henley, 493 S.W.3d at

82– 83; Montgomery, 810 S.W.2d at 379–80.

      In addition, had we reached an opposite conclusion, we would nevertheless

affirm the trial court’s judgment because Gorman has not demonstrated that he was

harmed by the admission of the challenged evidence. The erroneous admission of

evidence is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of


                                        15
Appellate Procedure. Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston

[1st Dist.] 2008, no pet.). Under Rule 44.2, any non-constitutional error, defect,

irregularity, or variance that does not affect substantial rights is disregarded. TEX.

R. APP. P. 44.2(b); Jabari, 273 S.W.3d at 754. A substantial right is affected when

the error had a substantial and injurious effect or influence in determining the

jury’s verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

When conducting a Rule 44.2(b) harm analysis based upon the erroneous

admission of evidence, an appellate court should consider everything in the record,

including

      any testimony or physical evidence admitted for the jury’s
      consideration, the nature of the evidence supporting the verdict, the
      character of the alleged error and how it might be considered in
      connection with other evidence in the case, the jury instructions, the
      State’s theory and any defensive theories, closing arguments, voir
      dire, and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).

      There was overwhelming evidence that Gorman intentionally or knowingly

caused M.N. serious bodily injury. The circumstantial evidence included J.Z.N.’s

statements to her aunt, the physical evidence of water found on the floor of the

master bathroom and bedroom, the fact that Gorman was the only adult male alone

with M.N., the medical examiners’ statements that M.N. died from suffocation or

drowning, evidence that Gorman’s DNA was found inside M.N.’s mouth,

Gorman’s recorded statement to police, evidence of his flight from the scene, text
                                         16
messages to Griggs asking her to create a false alibi for him, and the death of a

seven-week-old infant. In the punishment phase of trial, Gorman pleaded true to

two prior offenses involving possession and distribution of drugs near a

playground. Other evidence offered at punishment included additional uncharged

offenses committed while in jail awaiting trial. Although the State mentioned the

presence of semen in M.N.’s mouth during its closing arguments, considering the

other evidence admitted at trial, there is no indication that the challenged evidence

substantially influenced the jury’s verdict. See TEX. R. APP. P. 44.2(b).

                                     Conclusion

         We overrule Gorman’s sole issue, and we affirm the judgment of the trial

court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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