             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00018-CR
     ___________________________

RACHAEL MICHELLE MAINERS, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 271st District Court
           Wise County, Texas
        Trial Court No. CR19247


   Before Gabriel, Kerr, and Birdwell, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       In three points, Appellant Rachael Michelle Mainers appeals from her

conviction for criminal negligence causing serious bodily injury to her 29-day-old son

C.M. She argues that the trial court erred by denying her motion for directed verdict

of not guilty (point one) and that the evidence was insufficient to establish that her

conduct caused serious bodily injury (point two) or that she used or exhibited a deadly

weapon—her hand—when committing the offense (point three). Because we hold

that her first point is moot and that the evidence supported the jury’s findings, we

affirm.

                                 BACKGROUND FACTS

       On November 16, 2015, Mainers and C.M.’s father took him to urgent care

after Mainers noticed that his leg was “making a popping noise” and that he was not

“using his leg appropriately.” After urgent care turned them away, they took C.M. to

his pediatrician who, after reviewing an x-ray of C.M.’s leg, contacted Child Protective

Services (CPS). A CPS representative and a sheriff’s-department investigator met with

the parents at the doctor’s office.

       Mainers reported that the injury had happened at 3:00 a.m. that morning when

C.M. accidentally rolled off a bed. Mainers told the CPS worker that she was on one

side of the bed, and C.M.’s father was sleeping on the other side. Mainers put C.M. on

her side of the bed to feed him and change his diaper. The diapers were toward the

foot of the bed but on the opposite side from C.M. Mainers knelt on the bed and

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reached across to get a diaper, causing C.M. to fall off the bed—which the CPS

worker later determined was about two feet high—and land face down on the ground.

He began crying but stopped when Mainers picked him up and finished feeding him.

She changed his diaper and put him back in bed, where he slept until 9:30 a.m. At a

later CPS permanency conference, Mainers told a CPS conservatorship caseworker

that she had caused C.M.’s injury by grabbing his leg when he fell off the bed.

      After being transferred to Cook Children’s Medical Center, C.M. was diagnosed

with a spiral fracture in his femur, and his legs were placed in a Pavlik harness while

the fracture healed. When he was initially admitted, a referral was made to the

hospital’s CARE (Child Advocacy and Resource Evaluation) team. The CARE team

gets referrals when necessary “to rule out any type of medical conditions that may

have cause[d] a child to have injuries and to rule for or against abuse of a child.”

Christi Thornhill, a Cook Children’s nurse practitioner and CARE team member,

examined C.M. at that time and again two weeks later.

      CPS eventually closed the case as “unable to determine.” 1 Meanwhile, Mainers

was indicted for the offense of knowingly causing serious bodily injury to C.M. The


      1
       In a Brady disclosure, the State informed Mainers that a CPS caseworker and a
CPS attorney had both expressed concern that C.M.’s father had caused the injury.
The State further disclosed that C.M.’s father had a daughter who in 2009 had been
admitted to the hospital for an arm fracture she had suffered while under her father’s
care and that the medical history stated that the injury had been caused by falling off
her bunk bed. But at trial Mainers did not produce any evidence relating to these
disclosures in the guilt–innocence stage.


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indictment further alleged that during the commission of the offense, Mainers used a

deadly weapon, to wit: her hand.

      At trial, Thornhill testified that a 29-day-old child cannot yet roll and that a

spiral fracture could not be caused by C.M.’s falling off the bed, that it was unlikely to

see that type of injury from Mainers’s simply grabbing his leg because spiral fractures

do not occur without some sort of twisting motion, and that in her opinion the injury

was caused by abuse.

      The jury convicted Mainers of criminal negligence causing serious bodily injury

to a child. It further found that she used or exhibited a deadly weapon and assessed

punishment at four years’ confinement and a $10,000 fine.

                                STANDARD OF REVIEW

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).




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                                     DISCUSSION

I.    Any error in the trial court’s denying the directed verdict is moot.

      At the close of the State’s case, Mainers moved for a direct verdict of not

guilty on the ground that the State failed to prove that she knowingly caused bodily

injury to C.M. The trial court denied the motion. In her first point, Mainers contends

that the trial court erred in denying her motion because the State failed to produce

sufficient evidence to prove beyond a reasonable doubt that she knowingly caused

C.M.’s injury.

      The jury did not convict Mainers of knowingly causing C.M.’s injury. Instead,

the jury convicted her of the lesser-included offense of criminal negligence causing

injury to a child with serious bodily injury. Accordingly, this point is moot, and we do

not address it. See Tex. R. App. P. 47.1; Berman v. State, No. 02-12-00119-CR,

2014 WL 2145592, at *2 (Tex. App.—Fort Worth May 22, 2014, pet. ref’d) (mem. op.,

not   designated    for   publication);   Terrell   v.   State,   No.   06-01-00011-CR,

2001 WL 1663990, at *1 (Tex. App.—Texarkana Dec. 28, 2001, no pet.) (not

designated for publication).

II.   The evidence sufficed to establish that Mainers’s conduct caused serious
      bodily injury.

      Mainers argues in her second point that the evidence was insufficient to prove

beyond a reasonable doubt that her conduct caused serious bodily injury to C.M.

because (1) there was no evidence that the injury created a substantial risk of death



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and (2) the evidence was insufficient to prove that the injury caused serious

permanent disfigurement or protracted loss or impairment of CM’s leg function.

      A person commits an offense if, with criminal negligence, she causes serious

bodily injury to a child. Tex. Penal Code Ann. § 22.04(a), (g). “Serious bodily injury” is

defined as “bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” Id. § 1.07(a)(46). “[W]hether serious bodily injury

occurred depends on the disfigurement or impairment of the injury as it was at the

time of the offense, not as it is after medical treatment has lessened its impact.”

Quezada v. State, 553 S.W.3d 537, 548 (Tex. App.—El Paso 2018, no pet.) (citing Blea v.

State, 483 S.W.3d 29, 35 (Tex. Crim. App. 2016)).

      Asked what happens to a child with a broken leg if the bone does not heal

properly, nurse practitioner Thornhill responded that “[l]ong-term he could have

nonunion, where it just doesn’t grow back over a period of months and it will require

surgery. If they grow back and it’s not straight, one leg can be shorter than the other,

causing problems with mobility long-term.” She stated that at her follow-up

examination of C.M. two weeks after her initial examination, he had not experienced

any delay in his milestones. But in her opinion, the injury required medical treatment

to prevent future disability, and if C.M. had not been placed in the Pavlik harness, his

bone would not have healed as well as it did.



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       Viewing the evidence in the light most favorable to the verdict, we hold that a

rational factfinder could have found that at the time of the offense and before any

medical treatment, C.M.’s injury created a substantial risk of serious permanent

disfigurement or protracted loss or impairment of his leg’s function. See Queeman,

520 S.W.3d at 622; Quezada, 553 S.W.3d at 548. We overrule Mainers’s second point.

III.   The evidence sufficed to support the jury’s finding that Mainers used or
       exhibited a deadly weapon.

       In her third and final point, Mainers argues that the evidence is insufficient to

support the jury’s finding that she used or exhibited a deadly weapon. She contends

that there was no evidence of C.M.’s suffering multiple injuries or protracted loss or

use of his leg, that he did not lose consciousness or suffer from nausea or vomiting,

that he did not have pain in several parts of his body, and that the injury did not cause

serious permanent disfigurement.

       A hand may be a deadly weapon based on its manner of use or intended use

and its capacity to produce death or serious bodily injury. Hopper v. State, 483 S.W.3d

235, 239 (Tex. App.—Fort Worth 2016, pet. ref’d). A person need not have intended

to cause serious bodily injury or death or to have actually caused serious bodily injury

or death for her hand to constitute a deadly weapon. Id. As long as the totality of the

evidence shows that the defendant’s hand was capable of causing serious bodily injury

or death in the manner that she used it, the jury is authorized to find that her hand

qualified as a deadly weapon. Id. A factfinder may consider such evidence as the


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manner in which the defendant used her hand and testimony that her hand had the

potential to cause death or serious bodily injury.

       The jury heard evidence that Mainers admitted to having been the one to grab

C.M.’s leg and cause the injury. The jury further heard evidence about how Mainers

used her hand and whether her hand was capable of causing serious bodily injury.

Thornhill explained that a spiral fracture “is caused by a twisting motion of a bone,” a

motion that, in a nonambulatory child such as C.M., has to come from an outside

force. She stated that C.M. could not sustain that sort of injury in accidentally falling

from a bed because some sort of twisting motion is needed to cause that type of

fracture. She acknowledged the possibility that if a child is falling off the bed and

somebody grabs his leg, that action could cause a twisting motion leading to a spiral

fracture, but she clarified that it would have to have been from a violent force pulling

him back. She further stated that it was unlikely that that type of injury would result

from an infant’s falling and being grabbed by the leg because at that young age—

29 days old—“the bones aren’t hardened yet. They’re very soft and cartilaginous. It’s

very difficult to get a broken bone in a neonate.” She reiterated that a spiral fracture

requires twisting or “torque-type forces on a bone.”

       The jury heard evidence from which a rational factfinder could find beyond a

reasonable doubt that, using her hand, Mainers twisted C.M.’s leg in a manner capable

of causing a spiral fracture in his femur that, if left untreated, created a substantial risk



                                             8
of serious permanent disfigurement or protracted loss or impairment of his leg’s

function. We overrule her third point.

                                    CONCLUSION

      Having overruled Mainers’s three points, we affirm the trial court’s judgment.




                                                    /s/ Elizabeth Kerr
                                                    Elizabeth Kerr
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 15, 2019




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