Opinion filed October 21, 2010




                                           In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00035-CR
                                         __________

                     LOWESTA T. HALLIBURTON, Appellant

                                              V.

                                 STATE OF TEXAS, Appellee



                     On Appeal from the Criminal District Court No. 4

                                     Tarrant County, Texas

                                 Trial Court Cause No. 1074680D


                           MEMORANDUM OPINION
       The jury convicted Lowesta T. Halliburton of injury to an elderly individual by omission
– serious bodily injury and assessed her punishment at confinement for life. We affirm.
                                      I. Background Facts
       Investigator Ed Wright, with the North Richland Hills Police Department, was
investigating an unrelated matter when he met with Richard Hoye in January 2007. Hoye was
lying in bed and was covered with a dirty sheet. Hoye’s bedroom had a foul stench, and Wright
could smell urine. Hoye appeared bedridden and in need of additional care. After their meeting,
Investigator Wright contacted Adult Protective Services.
       Adult Protective Services Specialist Chandra Wagner was asked to investigate. She went
to Hoye’s house in January. She did not notice any odors but thought that Hoye was disturbingly
thin. Hoye said his caregiver, Halliburton, was taking good care of him.           Hoye said that
Halliburton took him to the doctor, did his grocery shopping, and was responsible for him. Hoye
told Wagner that he did not have all of his medications but that he took the ones that he did have.
       Wagner was concerned because of Hoye’s appearance and was fearful that Hoye was not
telling the truth because he did not want to get anyone into trouble. Wagner returned to Hoye’s
house with her supervisor in February. Halliburton was present. Halliburton said that she was
Hoye’s care provider, that she did not have a job because she had stopped working to take care
of Hoye, and that they had lived together for twenty years. Wagner and her supervisor then
spoke with Hoye. He told them that everything was fine.
       Wagner was still concerned and she made a referral to CCAD, Community Care for the
Aging and Disabled, so that a more thorough investigation could be performed and Hoye could
receive any necessary services. Unfortunately, that referral ―fell through the cracks.‖ Wagner
visited Hoye again in March and April. He continued to insist that everything was fine.
       On May 21, 2007, at approximately 8:00 a.m., North Richland Hills paramedics were
dispatched to Hoye’s house.      Hoye was found dead in his bedroom.           He was extremely
emaciated, was covered by a soiled blanket, and was wearing soiled underpants. Small insects
and spiders were crawling around his mouth, eyes, ears, and nose. Hoye appeared to have a
dried feces stain beneath him and a blood stain next to him. There were feces around his
buttocks.
       Halliburton identified herself as Hoye’s spouse. She said that she had spoken with Hoye
at 6:00 a.m. When she next checked on him, he had passed away. Halliburton later told a police
officer that her daughter checked on Hoye at 6:00 a.m. and that she returned home at 7:25 a.m.
and found that he had died.
       Dr. Marc Krouse, Deputy Chief Medical Examiner for Tarrant County, performed an
autopsy on Hoye. Hoye’s body weight, clothed, was only sixty-nine pounds. Dr. Krouse
determined that Hoye suffered from severe malnutrition and dehydration and that his starvation
was caused by a deprivation of all calories. Dr. Krouse determined that Hoye was unable to take

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care of himself and that he was deprived of food and water by others and ruled the manner of
death as a homicide.
                                             II. Issues
       Halliburton challenges her conviction with two issues. Halliburton contends that the
evidence is legally and factually insufficient to support her conviction and that her sentence is
disproportionate to the crime.
                                         III. Discussion
       A. Is the Evidence Sufficient?
       The State alleged that Halliburton intentionally or knowingly caused serious bodily injury
to Hoye by failing to feed him or give him sufficient water, by failing to obtain medical care, and
by failing to make arrangements with a facility where he could obtain appropriate care. Injury to
an elderly individual is a result-of-conduct offense. Kelly v. State, 748 S.W.2d 236, 239 (Tex.
Crim. App. 1988). Thus, the State had to not only prove that Halliburton failed to act as alleged
but that she intentionally or knowingly caused the injury. Id. Halliburton argues that the State
failed to carry its burden of proof because Hoye had several medical problems such as a heart
attack, COPD, and low weight, for which she cannot be blamed; because Adult Protective
Services did not intervene on his behalf after multiple visits to his home; and because Hoye
himself did not ask anyone for assistance.
               1. Standard of Review.
       Halliburton challenges the legal and factual sufficiency of the evidence. The Texas Court
of Criminal Appeals, however, recently held that legal sufficiency is the only standard that a
reviewing court should apply. Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex.
Crim. App. Oct. 6, 2010). To determine if the evidence is legally sufficient, we must 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 crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979).
               2. Failing to Feed.
       Halliburton claimed that Hoye ate three times a day and that she fed him oatmeal, soup,
and cupcakes. This was contradicted by the medical evidence. Dr. Krouse testified that Hoye
weighed only sixty-nine pounds. He was emaciated and had virtually no remaining muscle mass
in any extremity because his body had started cannibalizing itself. Hoye’s body had even started

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cannibalizing his internal organs. His liver was only half its expected weight. Dr. Krouse could
find no reason for the wasting except starvation and concluded that Hoye’s diet had been
severely restricted for weeks or months. The State introduced several pictures of Hoye’s body.
These pictures are reminiscent of a World War II concentration camp.
       Not only was Halliburton’s testimony at odds with the medical evidence, it was also
refuted by an eyewitness. Brandon Westmoreland stayed at Hoye’s home twice in 2006, and he
lived there for three to four months in 2007. He testified that there was no cooking done in the
house. There were some frozen or take-out pizza, but no other food in the house. Everyone
went to fast-food restaurants. Westmoreland testified that Hoye was not fed three times a day.
He saw food taken to Hoye a total of four times. Westmoreland was in jail at the time of trial for
theft of property and failure to identify. Westmoreland’s criminal issues provide reason to doubt
his veracity, but the jury was entitled to believe his testimony. See Adelman v. State, 828 S.W.2d
418, 421 (Tex. Crim. App. 1992) (the jury is the sole judge of the credibility of the witnesses and
the weight to be given their testimony).
       The medical evidence was unrefuted that Hoye starved to death because he was not
properly fed. Hoye would have been bedridden for weeks or months and was, therefore, totally
dependent upon Halliburton. Because he starved while in her care and because there was no
evidence that she tried to regularly feed him, the evidence is sufficient to support the jury’s
determination that she intentionally or knowingly injured him.
               3. Failing to Provide Water.
       Dr. Krouse testified that Hoye was dehydrated. There was no water in Hoye’s room.
And there was no evidence that Halliburton or anyone else made any arrangements to provide
Hoye with water. Because of his condition, Hoye was completely dependent upon Halliburton
for water.   The evidence is sufficient to support the jury’s determination that Halliburton
intentionally or knowingly injured Hoye by not providing him with water.
               4. Failing to Provide Medical Care.
       Dr. Geoffrey Barst, a family physician in North Richland Hills, was Hoye’s physician.
Dr. Barst first saw Hoye in 1998. At that time, Hoye was sixty-nine years old, was 6’1‖ tall, and
weighed 130 pounds. When Dr. Barst saw him in 2003, he weighed only 108 pounds. Dr. Barst
was concerned about his weight loss, and he recommended Ensure. Hoye told him that he was
not being looked after very well because Halliburton had an outside job.

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       Hoye had other health problems besides low body weight. He smoked a pack a day, and
he developed COPD. He had a heart attack in 2002, and he was admitted to Harris Methodist
Hospital where he had a cardiac catheterization and a stent. Hoye was, therefore, in need of
regular medical attention.
       It was clear that Hoye did not like doctors. His first visit to Dr. Barst in 1998 was his
first physical in forty years.   When he had his heart attack, he waited several days after
experiencing chest discomfort before going to the hospital. Halliburton told the police that Hoye
refused to go to the hospital and that he did not want to go to the doctor. Hoye’s last visit to
Dr. Barst was in 2004. This was apparently his last visit to any doctor. Halliburton told the
police that Hoye had not seen a doctor in the last two or three years. Investigator Michael Floyd
with the Tarrant County Medical Examiner’s Office testified that Dr. Barst told him that Hoye
stopped coming because his insurance lapsed. Dr. Barst disputed that. Even if we assume that
Dr. Barst was incorrect, Hoye still had Medicaid or Medicare, and he could have gone to John
Peter Smith Hospital without charge. Even if Hoye did not like doctors, he was in need of
regular medical attention. There is no evidence that Halliburton did anything to meet that need.
       It was also clear that Hoye was not receiving all of his prescribed medication. In 2004,
Hoye told Dr. Barst that he had run out of his inhaler and had borrowed someone else’s.
Dr. Barst prescribed an inhaler and oxygen therapy. When Wagner and her supervisor saw Hoye
in February, Halliburton did not say anything about Hoye not having all of his prescribed
medications. When the paramedics found Hoye’s body, there were oxygen cylinders in his room
but no cannula, and there were no regulators on any cylinder. Thus, Hoye was not receiving any
oxygen therapy. Police found two inhalers and a small bottle of nitroglycerine in Hoye’s room.
Each of these had expired years previously.
       The lack of care and attention Hoye received from Halliburton was also well chronicled
by eyewitnesses. In 2007, Halliburton was living at her boyfriend’s house. She would stop by in
the morning when she dropped her youngest son off for school and sometimes came by on the
weekends.    In her absence, Hoye was attended by Halliburton’s oldest two children who
apparently only went in Hoye’s room when he rang a bell. Halliburton claimed that she brought
Hoye out of his room for a couple of hours a day in a wheelchair. However, the police saw no
wheelchair in the house. To them, it appeared as though Hoye had not been out of his bed in
some time. His body was soiled and was caked with dead skin and feces. He had redness and

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irritation on every pressure point and had apparently been laying in the same spot for a long time.
Westmoreland testified that the door to Hoye’s room was never open and that he never saw a
wheelchair in the house. Whether because Halliburton did not know or did not timely report is
unclear, but Hoye had been dead more than twelve to fourteen hours when he was discovered by
paramedics.
         The jury had sufficient evidence from which to conclude that Halliburton intentionally or
knowingly failed to obtain medical care for Hoye or to make arrangements with a facility where
he could obtain appropriate care. Because the jury had sufficient evidence with which to
conclude that Halliburton failed to feed Hoye, failed to provide him with water, and failed to
provide him with medical care or a facility that could meet his needs, the evidence is legally
sufficient to support Halliburton’s conviction, and Issue One is overruled.
         B. Was Halliburton’s Punishment Disproportionate to Her Crime?
         Halliburton acknowledges that punishment assessed within a statutory limit is generally
not excessive, cruel, or unusual punishment and that her punishment was within the statutory
limit. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). She argues,
however, that her sentence violates the Eighth Amendment because it is grossly disproportionate
to the offense.1 Texas courts have found that a prohibition against grossly disproportionate
sentences survives under the federal constitution apart from any consideration of whether the
punishment assessed is within the statute’s range. Delacruz v. State, 167 S.W.3d 904, 906 (Tex.
App.—Texarkana 2005, no pet.).
         Texas courts have followed the Fifth Circuit’s analysis for addressing Eighth Amendment
proportionality complaints. McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). This requires
that we first conduct a threshold comparison of the gravity of the offense underlying the current
conviction as well as the offenses underlying any prior convictions against the severity of the
sentence. Id. at 316. The test is whether the sentence is grossly disproportionate to the gravity
of the offenses upon which the sentences are based. Winchester v. State, 246 S.W.3d 386, 390
(Tex. App.—Amarillo 2008, pet. ref’d). We consider the gravity of the offense in light of the
harm caused or threatened to the victim or society and the culpability of the offender. Solem v.
Helm, 463 U.S. 277, 291-92 (1983).


         1
          The Eighth Amendment provides: ―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.‖ U.S. CONST. amend. VIII.

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       Halliburton was previously convicted of burglary of a habitation, securing the execution
of a document by deception, attempting to pass a forged writing, and forgery-possession. She
also had pending charges for burglary of a habitation, credit card abuse, and theft. Halliburton
correctly notes that these were only property crimes, but they evidence a pattern of criminal
activity – a pattern that continued after Hoye’s death.
       Police found two life insurance policies on Hoye at Halliburton’s boyfriend’s house. The
policies were for $10,000, and they named Hoye’s ex-wife as beneficiary. Halliburton described
them as burial policies. She said Hoye’s ex-wife was deceased. In fact, Hoye’s ex-wife was
very much alive. Halliburton’s intent was for the life insurance proceeds to go to the funeral
home and then for any remainder to be sent to her. The trial court could reasonably conclude
that Halliburton intended to convert Hoye’s life insurance policies. The State also introduced a
document that purported to deed Hoye’s house to Halliburton. This document was in the
possession of a longtime friend of Halliburton’s, and it was witnessed by Halliburton and her
oldest son.     Not only were the circumstances surrounding the document questionable, but
Halliburton’s friend testified that he last saw Hoye in late April and that Hoye walked to the
front door, opened it, and then walked back to his room and put his oxygen back on. The
medical evidence indicates that Hoye was not being moved and that he was incapable of walking
to the front door. He did not have the equipment to use his oxygen. The trial court could,
therefore, reasonably conclude that Halliburton was also attempting to convert Hoye’s house.
       Hoye was allowed to starve to death in his own home because Halliburton was unwilling
to provide him with basic staples such as food and water, to take him to the doctor, or to make
arrangements with a facility that could provide for his needs. After he became bedridden, he was
so abandoned by Halliburton that he developed bed sores on every pressure point, and he was
allowed to lie in his own feces covered by a soiled blanket. After his death, Halliburton was
apparently attempting to take advantage of his passing. Halliburton’s sentence is not grossly
disproportionate considering the gravity of her offense and her prior criminal history. Issue Two
is overruled.




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                                         IV. Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


October 21, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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