                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00297-CR


ARACELI GUZMAN                                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1324583D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Araceli Guzman was indicted for felony murder for the death of

Lily,2 a seven-month-old baby entrusted to Guzman’s care.          A jury acquitted



      1
       See Tex. R. App. P. 47.4.
      2
        To protect the anonymity of the children in this case, we will use aliases to
refer to some of the individuals named herein. See Tex. R. App. P. 9.10(a)(3);
Guzman of murder but found her guilty of the lesser offense of recklessly causing

serious bodily injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1) (West

Supp. 2014).     The jury assessed Guzman’s punishment at twelve years’

confinement, and the trial court sentenced her accordingly.        In two points,

Guzman argues that the evidence is insufficient to support her conviction. We

will affirm.

                           II. FACTUAL BACKGROUND

       In April 2013, Lily was a seven-month-old baby living with her mother,

Michelle, and two older sisters, eight-year-old Jennifer and two-year-old Kaitlyn.

As Michelle worked during the day, she hired Guzman to watch Lily and Kaitlyn

during the days she worked.3 The arrangement called for Guzman to watch the

girls at her Haltom City apartment, while she also took care of her own two

children, ages two and three.

       On April 22, 2013, Michelle dropped Lily and Kaitlyn off at Guzman’s

apartment around 6:30 or 6:45 a.m. Lily seemed fine when she was dropped off.

In the early afternoon, however, Guzman called Michelle and told her that Lily

was having difficulty breathing and that Michelle needed to come pick Lily up.

Guzman then called Casey Neill, a friend who lived in the apartment above her,



McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
       3
      Jennifer, Lily’s eight-year-old sister, was typically not watched by Guzman
as Jennifer attended school.


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to come down to the apartment to see what was wrong with Lily. Neill came over

and noticed that Lily was “barely breathing, her eyes were rolled back in her

head, and she looked like she was having a seizure.” Neill then called Alicia

Puente, another friend who lived in the apartment complex, to come over. When

Puente arrived, she noticed that Lily was having difficulty breathing, her tongue

was stuck to the roof of her mouth, and her legs were stiff with her toes pointed

out. After Puente arrived in the apartment, Guzman called 911.

        Lieutenant Terry Waters, a fireman with the Haltom City Fire Department,

was dispatched to Guzman’s apartment. Guzman told Lieutenant Waters that

she had placed Lily on the floor to go and get a bottle, and when she came back,

Lily was in distress.   When Lily was taken inside the ambulance, Lieutenant

Waters noticed a raised area approximately the size of “a quarter to a half-dollar”

on her left forehead. Upon seeing this raised area, Lieutenant Waters went back

inside the apartment and further questioned Guzman about the cause of Lily’s

injury. Guzman suggested to Lieutenant Waters that perhaps Lily had hit her

head on a nearby dresser when Guzman had left the room to retrieve the bottle.

        Shawn Nicholson, a paramedic dispatched to Guzman’s apartment,

examined Lily and found that she was having very significant changes in heart

rate.    He also noticed that she was experiencing decorticate posturing—a

tightening of the limbs that is indicative of a traumatic brain injury. Nicholson also

observed a golf-ball size hematoma on the left side of Lily’s forehead. Nicholson

testified that a bruise, like the one Lily had, would typically develop within


                                          3
minutes of the injury. Nicholson spoke to Michelle on the telephone while he was

examining Lily, and Michelle indicated that Lily had been “perfectly fine” when

she was dropped off at Guzman’s apartment. Guzman likewise told Nicholson

that Lily had been fine when Michelle dropped her off.

      Lily was taken by ambulance to Cook Children’s Hospital, where she was

treated by Dr. Richard Roberts, a pediatric neurosurgeon. A CT scan taken at

the hospital revealed that Lily had a subdural hematoma and a mid-line shift—a

shifting of the brain to accommodate swelling inside the brain.         Due to the

severity of Lily’s injuries, she was quickly taken to the operating room for surgery.

During surgery, Dr. Roberts removed part of Lily’s skull and made small cuts in

the dura to try to evacuate some of the blood that was causing pressure to build

in Lily’s brain. Dr. Roberts testified that he could not control the active bleeding

in Lily’s brain. The bleeding was so severe that he had to call another doctor into

the operating room to help him try and stop the bleeding—something Dr. Roberts

had never before had to do during surgery.4         Dr. Roberts ultimately had to

remove a portion of Lily’s right frontal lobe due to the “tremendous amount of

swelling” inside her brain.

      Corporal Tony Miller of the Haltom City Police Department interviewed

Guzman at her apartment on the day that Lily was taken to the hospital. Guzman


      4
       Dr. Roberts testified that Lily was on massive transfusion protocol and had
to be given over two liters of blood—approximately three times the volume of
blood in her entire body.


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told Corporal Miller that Michelle had dropped Lily off around 6:30 or 6:45 a.m.

and that Lily had seemed normal.              Guzman explained that as the day

progressed, she fed Lily a bottle and then put her to sleep in a car seat in

Guzman’s bedroom. Guzman told Corporal Miller that the door to the bedroom

had been closed, that the other children in the apartment did not go into the

closed bedroom, and that no one had been in the apartment since Lily arrived

other than Guzman and the children.           According to Guzman, Lily woke up

“hollering” around 12:00 or 1:00 p.m.5 Guzman explained that she then took Lily

out of the car seat, placed her on the floor, and went in the other room to make

her a bottle. Guzman said that when she came back into the room, Lily was

lethargic and having difficulty breathing. About halfway through the interview,

Guzman indicated that she had accidently bumped Lily’s head on a dresser while

she was bending over to pick up an exercise bar while holding Lily.

      Corporal Miller conducted a second interview of Guzman two days later. 6

Guzman again mentioned to Corporal Miller that she had accidently bumped

Lily’s head into a dresser but “figured . . . it was not that bad” and “didn’t think it

was a big deal.” Guzman also indicated to Corporal Miller that she had slightly

shaken Lily when trying to wake her up. Later in the interview, Guzman admitted

      5
       Guzman told Corporal Miller that Lily “doesn’t cry, she hollers.”
      6
        The first interview was cut short when word reached Corporal Miller that
Lily’s father had threatened to blow up Guzman’s apartment complex. Lily’s
father was subsequently arrested and charged with making a terroristic threat.
During this second interview, Guzman was in police custody.


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that the shaking was more vigorous than she had previously indicated. Guzman

also claimed that Lily hit her head on Guzman’s knee while Guzman was rocking

her.

       At trial, Dr. Roberts opined that Lily’s injury could not have been caused by

Guzman accidently bumping Lily’s head on a dresser. Subdural hematomas,

according to Dr. Roberts, are typically formed when there is a great amount of

acceleration within the brain followed by a sudden deceleration. He testified that

subdural hematomas can be caused by car accidents and falls from second-story

windows. He opined that Lily’s crawling or rolling into some object would simply

not generate enough force to cause her injury.

       Dr. Roberts further opined that Lily’s injury happened “relatively quickly

prior to arrival at [the] hospital.” In his opinion, the injury could not have occurred

six to eight hours prior to surgery; he testified that Lily would have died if her

brain had bled for six to eight hours. Dr. Roberts also testified that he could not

imagine that Lily would have eaten after sustaining her injury, noting that her

symptoms would have arisen very quickly.           Dr. Roberts concluded that the

bruising on Lily’s forehead was likely caused from coming into contact with a firm

surface.

       Almost two weeks after arriving at the hospital, Lily was admitted to

hospice. She ultimately died a little less than a month after being admitted to the

hospital.




                                          6
      Dr. Tasha Greenburg, a deputy medical examiner for the Tarrant County

Medical Examiner’s Office, performed an autopsy on Lily.             Dr. Greenburg

concluded that the cause of death was abusive head injury and that the manner

of death was homicide. Dr. Greenburg opined that a time period of more than

three hours between Lily’s injury and arrival at the hospital was not consistent

with Lily’s injuries. The autopsy revealed that Lily had a buckle fracture of the left

proximal tibia—near the lower portion of her leg as it met her knee.              Dr.

Greenburg testified that this fracture was probably caused by a pulling or twisting

motion. The autopsy also revealed a small healing fracture on one of Lily’s ribs,

as well as a small hemorrhage on the back of Lily’s neck in the muscles close to

the cervical spine. Dr. Greenburg opined that the neck injury was consistent with

a rotational movement. The autopsy further revealed that Lily experienced retinal

hemorrhages. Dr. Roberts testified that retinal hemorrhages and buckle fractures

of the tibia are co-injuries that sometimes accompany acceleration-deceleration

events.

                         III. SUFFICIENCY OF THE EVIDENCE

      In two points, Guzman argues that the evidence is insufficient to support

her conviction.

                              A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential


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elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

    B. The Evidence is Sufficient to Support a Finding of Recklessness

      In her first point, Guzman argues that the evidence is insufficient to support

her conviction for recklessly causing serious bodily injury to a child because the

evidence does not show that she consciously disregarded a risk.


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       To support a conviction for recklessly causing serious bodily injury to a

child, the State must prove that a defendant, by act or omission, caused a child’s

serious bodily injury with the requisite criminal intent. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Under the penal code,

       A person acts recklessly, or is reckless, with respect to
       circumstances surrounding his conduct or the result of his conduct
       when he is aware of but consciously disregards a substantial and
       unjustifiable risk that the circumstances exist or the result will occur.
       The risk must be of such a nature and degree that its disregard
       constitutes a gross deviation from the standard of care that an
       ordinary person would exercise under all the circumstances as
       viewed from the actor’s standpoint.

Tex. Penal Code Ann. § 6.03(c) (West 2011).              In determining whether a

defendant recklessly caused serious bodily injury to a child, a jury is entitled to

consider the extent of the child’s injuries, the relative size of the child compared

to the defendant, and expert testimony that a severe trauma was the cause of the

child’s injuries. Kelley v. State, 187 S.W.3d 761, 764 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d).

       Here, there is ample evidence that Guzman caused Lily’s injury and that

the injury was of such severity that Guzman had to have been aware of the

substantial risk of her conduct but consciously chose to disregard it.             Both

Michelle and Guzman stated that Lily was acting normally when dropped off at

Guzman’s apartment, and Guzman told Corporal Miller that no one apart from

herself had access to Lily once she was dropped off. Both Dr. Roberts and Dr.

Greenburg opined that Lily’s injury occurred shortly before admittance to the



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hospital and that her injuries were not consistent with a timeframe that had the

injury occurring prior to her arrival at Guzman’s apartment.

      Dr.   Roberts   opined   that   Lily’s   injuries   were   the   result   of   an

acceleration-deceleration event and that the amount of force necessary to cause

such an event would be tremendous—such as a car accident or a fall from a

second-story window. According to Dr. Roberts, Guzman’s explanations for the

cause of Lily’s injury—that Lily bumped her head when left alone or that Guzman

accidently bumped Lily’s head on a dresser—were simply not plausible.                Dr.

Greenburg concluded that the cause of Lily’s death was abusive head injury, and

Dr. Greenburg noted that Lily experienced retinal hemorrhages and a fractured

tibia—co-injuries that sometimes accompany acceleration-deceleration events.

      Viewing this evidence in the light most favorable to the verdict, a rational

juror could have found beyond a reasonable doubt that Guzman recklessly

caused serious bodily injury to Lily. See Kelley, 187 S.W.3d at 764 (“From the

expert testimony and the facts surrounding the event including the relative size

and strength of the parties and the fact that appellant was alone with the baby, a

rational juror could have found appellant was aware of, but consciously

disregarded, the risk to the baby.”). Moreover, the jury could have believed that

Guzman’s constantly evolving story as to how Lily was injured was evidence of

her consciousness of guilt. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim.

App. 2000) (noting that making false statements to cover up a crime is evidence

indicating a consciousness of guilt and is admissible to prove the commission of


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the offense); Couchman v. State, 3 S.W.3d 155, 164–65 (Tex. App.—Fort Worth

1999, pet. ref’d) (holding that defendant’s changing story was evidence of

consciousness of guilt). We overrule Guzman’s first point.

                C. There is No Material Variance on Causality

      In her second point, Guzman argues that the evidence is insufficient to

support her conviction because of an alleged material variance on causality.

Guzman contends that there is a variance in the manner and means that was

alleged in the indictment and the proof demonstrated at trial.       According to

Guzman, the State was only able to prove one of two scenarios: 1) that her

conduct was coupled with some other concurrent cause,7 or 2) that she failed to

seek medical care for Lily.

      The State counters that specific proof of the manner and means was

unnecessary as the manner and means of an assaultive offense is not an

essential element. We agree with the State. Several courts have held that the

manner and means of the bodily injury alleged is not an essential element of an

assaultive offense and therefore is not included in the hypothetically correct jury

charge. Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.—El Paso 2009, no


      7
       Guzman suggests that Lily’s volatile father may have caused her injury at
some point prior to Lily’s arrival at Guzman’s apartment. Guzman points to
testimony from Lily’s eight-year-old sister, Jennifer, that Lily’s foot was shaking
during her sleep the night before and morning of the injury. Dr. Roberts testified
that an outward symptom of an already existing brain injury could be a rhythmic
movement of a limb. Dr. Roberts was unequivocal, however, that Lily’s injury did
not occur prior to her arrival at Guzman’s apartment.


                                        11
pet.); Rodriguez v. State, 274 S.W.3d 760, 767 (Tex. App.—San Antonio 2008,

no pet.); Phelps v. State, 999 S.W.2d 512, 516 (Tex. App.—Eastland 1999, pet.

ref’d); see also Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007)

(holding that injury to a child is a “result of conduct” offense). 8     A variance

between the manner and means alleged and the actual manner and means used

does not preclude a conviction. Thomas, 303 S.W.3d at 333. Even though the

State may include the manner and means in the indictment, it will be disregarded

in a hypothetically correct jury charge. See Johnson v. State, 364 S.W.3d 292,

298 (Tex. Crim. App. 2012) (holding variance immaterial in aggravated assault

case when indictment alleged that the defendant hit the victim and twisted her

arm “with his hand” and evidence showed that the defendant threw the victim

against a wall); Thomas, 303 S.W.3d at 333 (holding that variance in the manner

and means alleged—striking the victim with the defendant’s hand—and the

actual manner and means used—pushing the victim—was immaterial); Botello v.

State, No. 08-04-00127-CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso

Aug. 25, 2005, pet. ref’d) (not designated for publication) (holding that variance in

the manner and means alleged—striking the victim’s head against a door

frame—and the actual manner and means used—pushing the victim—was

immaterial); Phelps, 999 S.W.2d at 518 (holding that the fact that the State did

      8
       We note that this court made the same holding in an unpublished opinion.
See Fritzching v. State, No. 02-10-00431-CR, 2012 WL 1222033, at *4 (Tex.
App.—Fort Worth Apr. 12, 2012, pet. ref’d) (mem. op., not designated for
publication).


                                         12
not present evidence of the manner and means alleged—striking the victim in the

head with the defendant’s hand—was immaterial where the hypothetically correct

jury charge would not have included the descriptive phrase “with his hand”).

      Moreover, we cannot agree with Guzman’s contention that the State

proved only that Guzman’s conduct was coupled with some other concurrent

cause or that Guzman failed to seek medical care for Lily. As set forth above,

the evidence demonstrated that Lily’s injuries were caused by contact with a firm

surface, and that such contact occurred at a time when only Guzman had access

to Lily. That evidence is consistent with the manner and means alleged in the

indictment that Guzman caused Lily’s death by “striking her with or against a

hard or soft surface.” We overrule Guzman’s second point.

                                IV. CONCLUSION

      Having overruled Guzman’s two points, we affirm the trial court’s judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2015




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