                                                                                PD-1598-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 1/21/2015 1:01:02 PM
                                                               Accepted 1/28/2015 9:08:44 AM
                            NO. PD-1598-14                                       ABEL ACOSTA
                                                                                         CLERK
                                   IN THE
               COURT OF CRIMINAL APPEALS
                                OF TEXAS
                              AUSTIN, TEXAS


                       AUSTIN CRAWFORD,
                                APPELLANT
                               V.
                      THE STATE OF TEXAS,
                                 APPELLEE


            APPELLANT'S PETITION FOR DISCRETIONARY
           REVIEW FROM THE SECOND COURT OF APPEALS

                             02-13-00391-CR
                   FOR THE SECOND COURT OF APPEALS
                            AT FORT WORTH

                   On appeal from Cause Number 1265884D
      in the Criminal District Court Number Four of Tarrant County, Texas
                   Honorable Mike Thomas, Judge Presiding


                       DAVID A. PEARSON, P.L.L.C.
                       ATTORNEY FOR APPELLANT
                     222 W. EXCHANGE AVE., STE. 103
                        FORT WORTH, TEXAS 76164
                               (817) 625-8081
                            (817) 625-8038 FAX
                         STATE BAR No. 15690465
                            david@lawbydap.com



January 28, 2015
                       THE PARTIES INVOLVED

MR. AUSTIN CRAWFORD                     APPELLANT
     01876191
     Allred Unit
     2101 FM 369 North
     Iowa Park, TX 76367

HON. DAVID A. PEARSON, IV               ATTORNEY FOR APPELLANT
     222 W. Exchange Ave., 103          (APPEAL)
     Fort Worth, TX 76164

HON. FRED CUMMINGS                      ATTORNEY FOR APPELLANT
     303 Main Street, Suite 304         (TRIAL)
     Fort Worth, TX 76102

HON. ERIC CUMMINGS                      ATTORNEY FOR APPELLANT
     303 Main Street, Suite 304         (TRIAL)
     Fort Worth, TX 76102

HON. SHAREN WILSON                      DISTRICT ATTORNEY
     401 W. Belknap St.                 TARRANT COUNTY, TX
     Fort Worth, TX 76196

HON. DEBRA ANN WINDSOR                  ASST. DISTRICT ATTORNEY
     401 W. Belknap St.                 TARRANT COUNTY, TX
     Fort Worth, TX 76196               (APPEAL)

HON. KIMBERLY D’AVIGNON                 ASST. DISTRICT ATTORNEY
     401 W. Belknap St.                 TARRANT COUNTY, TX
     Fort Worth, TX 76196               (TRIAL)

HON. MELINDA WESTMORELAND               ASST. DISTRICT ATTORNEY
     401 W. Belknap St.                 TARRANT COUNTY, TX
     Fort Worth, TX 76196               (TRIAL)


                                  -i-
HONORABLE MIKE THOMAS             JUDGE PRESIDING
    401 W. Belknap St.            CRIMINAL DISTRICT COURT
    Fort Worth, TX 76196          NUMBER FOUR
                                  TARRANT COUNTY, TX




                           -ii-
                                              SUBJECT INDEX

The Parties Involved ...................................................................................................i

Subject Index ........................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement Regarding Oral Argument ........................................................................ 2

Statement of the Case ................................................................................................ 2

Statement of Procedural History ................................................................................ 2

Grounds for Review
         Ground for Review One:
         Insufficient evidence ....................................................................................... 3

Points, Arguments, and Authorities........................................................................... 3

Prayer for Relief ......................................................................................................... 8

Certificate of Service ................................................................................................. 8

Certificate of Compliance .......................................................................................... 9

Court of Appeals’ Opinion .......................................................................... Appendix




                                                           -iii-
                                  INDEX OF AUTHORITIES

Cases                                                                                           Page
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ....................................... 4

Clark v. Procunier, 755 F.2d 394 (5th Cir. 1985) .................................................... 6

Garcia v. State, 16 S.W.3d 401 (Tex. App.—El Paso 2000) pet. ref’d) ...............3,5

Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App. 1978) ...................................... 5

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ............. 4

Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App. 1999) ......................................... 5

King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995) .......................................... 4

Rodriguez v. State, 408 S.W.3d 628 (Tex. App.—Austin 2013) ............................. 5



Constitutions, Rules, Statutes

TEX. PENAL CODE § 19.03(b)(3) (Vernon 2010) ................................................. 4

TEX. R. APP. PROC. 66.3(a) ................................................................................... 3




                                                     -iv-
                               NO. PD-1598-14
                                        IN THE

                 COURT OF CRIMINAL APPEALS

                                    OF TEXAS
                                  AUSTIN, TEXAS


                        AUSTIN CRAWFORD,
                                    APPELLANT

                                          V.

                    THE STATE OF TEXAS,
                                     APPELLEE



                      APPELLANT'S PETITION FOR
                       DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      NOW COMES, Appellant in this cause, by and through his attorney of

record, DAVID A. PEARSON, IV, and, pursuant to the provisions of

Tex.R.App.Pro. 66 et. seq. moves this Court to grant discretionary review, and

would show the Court as follows:




1| Austin Crawford v. State of Texas; PD-1598-14
            STATEMENT REGARDING ORAL ARGUMENT

      In the event this petition is granted, the Appellant does not believe oral

argument would be necessary to the Court’s consideration of the issue in this case.


                         STATEMENT OF THE CASE

      The Appellant was charged by a three-count indictment with capital murder,

felony murder, and injury to a child. (C. R. 7-8) The jury found the Appellant

guilty of felony murder and based upon their sentencing verdict the trial court

assessed the punishment at Life in the Texas Department of Criminal Justice –

Institutional Division. (4 R. R. 70) (5 R. R. 69-71) (C. R. 155, 172-74) The trial

court certified that the Appellant had the right to appeal. (C. R. 177) Appellant

timely filed notice of appeal on 14 August 2013. (C. R. 178)




               STATEMENT OF PROCEDURAL HISTORY

      In an unpublished opinion dated 13 November 2014, the Court of Appeals

affirmed the judgment of the trial court. Austin Crawford v. State, No. 02-13-

00391 (Tex. App.—Fort Worth, November 13, 2014). Neither party filed a

motion for rehearing. Pursuant to one extension granted by this Court, the



2| Austin Crawford v. State of Texas; PD-1598-14
Appellant’s Petition for Discretionary Review is timely if filed on or before 14

January 2015.




                             GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE:

      Whether the Court of Appeals wrongly decided that the evidence was
      legally sufficient to support the finding that Appellant committed an
      act clearly dangerous to human life. (entire record)


             POINTS, ARGUMENTS, AND AUTHORITIES

      This Honorable Court should grant discretionary review, because the Court

of Appeals’ decision in this case conflicts with another court of appeals’ decision

on the same issue. Garcia v. State, 16 S.W.3d 401 (Tex. App.—El Paso 2000, pet.

ref’d). TEX. R. APP. PROC. 66.3(a)



I. Legal Insufficiency.

      The jury acquitted Mr. Crawford of capital murder, and instead convicted

him of Count 2—felony murder. (C. R. 155, 172-176)

      The Court of Appeals determined that viewing the evidence in the light

most favorable to the verdict, a rational trier of fact could have found the essential

3| Austin Crawford v. State of Texas; PD-1598-14
elements of the offense of felony murder beyond a reasonable doubt. (Opinion, p.

10)

      The standard on appeal for measuring the sufficiency of the evidence is

whether, viewing the evidence in the light most favorable to the prosecution, 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, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).          The

Jackson v. Virginia standard is the only standard that a reviewing court should

apply in determining whether the evidence is sufficient to support each element of

a criminal offense that the state is required to prove beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

      In a prosecution for felony murder, the State must prove and the jury must

find that the defendant “commits or attempts to commit a felony, other than

manslaughter, and in the course of and in furtherance of the commission or

attempt, or in immediate flight from the commission or attempt, he commits or

attempts to commit an act clearly dangerous to human life that causes the death of

an individual.” TEX. PENAL CODE § 19.03(b)(3) (Vernon 2010).

      Under the felony murder rule the underlying felony supplies the culpable

mental state—the felony murder rule “dispenses with the necessity of proving


4| Austin Crawford v. State of Texas; PD-1598-14
mens rea accompanying the homicide itself.” Johnson v. State, 4 S.W.3d 254, 255

(Tex. Crim. App. 1999).

      The only felony expressly excluded from felony offenses that may serve as

the underlying felony is manslaughter. Rodriguez v. State, 408 S.W.3d 628 (Tex.

App.—Austin 2013). “Despite the plain language, we have interpreted section

19.02(b)(3) as exempting from the felony murder not only manslaughter, but also

lesser included offenses of manslaughter.” Johnson v. State, 4 S.W.3d at 255. In

Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App. 1978), the Court of Criminal

Appeals held that the felony murder doctrine did not apply where the underlying

felony was an assault that was inherent in the felony. The Garrett Court stated,

“There must be a showing of felonious criminal conduct other than the assault

causing the homicide.” Id. at 546. Garrett was limited to its facts by the Court of

Criminal Appeals in Johnson, above.

      In Garcia v. State, 16 S.W.3d 401 (Tex. App.—El Paso 2000, pet. ref’d), the

evidence was sufficient to support the capital murder conviction involving the

death of a child. While the child’s mother was at work and the appellant was

alone with the child, the child was rushed to the hospital, not breathing and with

no pulse. The Court of Appeals noted that Texas case law is replete with holdings

that “when an adult has had sole access to a child at the time its injuries are


5| Austin Crawford v. State of Texas; PD-1598-14
sustained, the evidence is sufficient to support a conviction for injury to a child, or

murder if the child dies.” Id. at 405.

      ”[I]f the evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of guilt and a theory

of innocence of the crime charged, then a reasonable jury must necessarily

entertain a reasonable doubt. " Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.

1985).



II. Application to the Record.

      The evidence was insufficient in this case because the evidence failed to

show that Mr. Crawford was the adult with sole access to the child. Ms. Cushman

went to work on December 29, 2011. (3 R. R. 86) Ms. Cushman took photos of

her daughter on December 29 and there was no bruising on her face. (3 R. R. 88-

89) She put the child down to sleep, and then Ms. Cushman smoked marijuana

before going to work. (3 R. R. 90) Ms. Cushman smoked marijuana with Mr.

Crawford. (3 R. R. 91) Ms. Cushman drove around with her uncle to smoke pot.

When Ms. Cushman got home, she looked at her child and noticed that she was

breathing.   From that point on Ms. Cushman was also with the child.               Mr.

Crawford was not an adult with sole access to the child. Ms. Cushman was at the


6| Austin Crawford v. State of Texas; PD-1598-14
home when emergency response personnel were dispatched to the home. (3 R. R.

28)

      Mr. Crawford told Ms. Cushman when he got up that he had given the child

a bottle. Ms. Kushman went to bed. She, Mr. Crawford, and Kaylee slept in the

same room. (3 R. R. 96) In the morning, Ms. Cushman awoke to Mr. Crawford

saying that Kaylee was blue. Ms. Cushman started trying to help her. Ms.

Cushman had some training as a medical assistant. (3 R. R. 97) Ms. Cushman

smoked marijuana before going to work. (3 R. R. 90) She smoked marijuana with

Mr. Crawford. (3 R. R. 91) It was common for Ms. Cushman to consume alcohol

during her shift. That night, she drank 4-5 beers. Her shift ended at 2 a.m., and

her uncle picked her up between 2:30 – 2:45 a.m. (3 R. R. 93) Ms. Cushman

drove around with her uncle to smoke pot. When Ms. Cushman got home, she

looked at her child and noticed that she was breathing.

      The evidence does not single out Mr. Crawford as the adult with sole access

to the child at the time her injuries were sustained. When Ms. Cushman returned

home, admittedly with alcohol and marijuana in her system, she indicated that the

child was breathing fine.

      For all of the above reasons, and because the Court of Appeals has decided

case that conflicts with another court of appeals’ decision on the same issue, this


7| Austin Crawford v. State of Texas; PD-1598-14
Honorable Court should grant discretionary review.



                               PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that the Court of Criminal Appeals grant this Petition for Discretionary Review,

that the case be set for submission to the Court of Criminal Appeals; that after

submission, the case be remanded to the Court of Appeals for proper review; or, in

the alternative be reversed, and the cause be remanded for a new trial.

                                               Respectfully submitted,

                                               DAVID A. PEARSON, P.L.L.C.



                                               By: ______________________
                                               David A. Pearson, IV
                                               Attorney for Appellant
                                               222 W. Exchange Ave., Ste. 103
                                               Fort Worth, Texas 76164
                                               (817) 625-8081
                                               FAX (817) 625-8038
                                               State of Texas Bar Card
                                               Number 15690465
                                               david@lawbydap.com


                             CERTIFICATE OF SERVICE

       I hereby certify, by affixing my signature above, that upon submission for
filing a true and correct copy of the foregoing PETITION FOR DISCRETIONARY
8| Austin Crawford v. State of Texas; PD-1598-14
REVIEW was e-served to Hon. Charles M. Mallin, Assistant District Attorney,
Appellate Section, Tarrant County District Attorney’s Office at
CCAAppellateAlerts@TarrantCounty.com and was e-served to Hon. Lisa C.
McMinn, State Prosecuting Attorney at information@spa.texas.gov, and a file-
stamped copy will be served by U.S. mail to the Appellant, Austin Crawford,
TDCJ# 01876191, Allred Unit, 2101 FM 369 North, Iowa Park, TX 76367.


                      CERTIFICATE OF COMPLIANCE

       I hereby certify that this document complies with the typeface requirements
(14-point for text and 12-point for footnotes) and word-count requirements of Tex.
R. App. P. 9.4(i)(2)(B), containing 2,066 words, including/excluding the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, and certificate of compliance. Signed on this the 21st day of
January 2015.

                                                    ________________________
                                                    David A. Pearson, IV




9| Austin Crawford v. State of Texas; PD-1598-14
                                APPENDIX




Austin Crawford v. State of Texas; PD-1598-14
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00391-CR


AUSTIN CRAWFORD                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                             STATE


                                     ----------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                    TRIAL COURT NO. 1265884D

                                     ----------

                         MEMORANDUM OPINION1

                                     ----------

      A jury found Appellant Austin Crawford guilty of murder and thereafter

assessed his punishment at life in the penitentiary.       In one point of error,

Appellant asserts the evidence is insufficient to support his conviction.        We

reform the judgment to correct clerical errors, and, as reformed, we affirm.




      1
       See Tex. R. App. P. 47.4.
                                 The Indictment

      The indictment contains three counts.       The State was not, however,

seeking three convictions. Rather, the State was seeking one conviction within a

spectrum of possible offenses. The jury charge confirms the State was seeking

but one conviction notwithstanding the three counts.

      In the first count of the indictment, the State alleged that on or about

December 30, 2011, in Tarrant County, Appellant intentionally or knowingly

caused the death of K.M. by shaking her with his hands and/or by striking her

with or against a hard surface, and K.M. was then an individual under ten years

of age. The State alleged the offense of capital murder. See Tex. Penal Code

Ann. § 19.02(b)(1) (West 2011) (identifying elements of murder); id. § 19.03(a)(8)

(West Supp. 2014) (identifying victim under age of ten as a factor elevating

murder into a capital murder offense). The offense was a capital felony. See id.

§ 19.03(b). The State waived the death penalty. If convicted the punishment

was, therefore, life without parole. Id. § 12.31(a)(2) (West Supp. 2014).2

      In count two, the State alleged that on or about December 30, 2011, in

Tarrant County, Appellant intentionally or knowingly committed or attempted to

commit an act clearly dangerous to human life, namely, shaking K.M. with his

hands and/or striking K.M. with or against a hard surface, which caused the


      2
       Section 12.31 was amended effective July 22, 2013. Act of July 11, 2013,
83rd Leg., 2nd C.S., ch. 2, §§ 1, 3, 2013 Tex. Sess. Law Serv. 4802 (West). The
amendments do not affect this case.


                                         2
death of K.M., and Appellant was then in the course or immediate flight from the

commission or attempted commission of the offense of injury to a child, a felony.

The State alleged the offense of murder.          See Tex. Penal Code Ann.

§ 19.02(b)(3).3 The offense is a first degree felony. Id. § 19.02(c). First degree

felonies are punishable by imprisonment for life or for any term of not more than

ninety-nine years or less than five years and a fine not to exceed $10,000. Id.

§ 12.32 (West 2011).

      Regarding count two, an offense under section 19.02(b)(3) of the Texas

Penal Code is referred to as a “felony murder.” Fuentes v. State, 991 S.W.2d

267, 272 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). Felony murder is

an unintentional murder committed while committing a felony.        Threadgill v.

State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).         To be entitled to an

instruction on felony murder, there must be some evidence permitting a jury

rationally to find the defendant had intended to commit the underlying felony but

not to cause the death of the victim. Id.

      In the third count, the State alleged that on or about December 30, 2011, in

Tarrant County, Appellant knowingly caused serious bodily injury to K.M., a child

younger than fifteen years of age by shaking K.M. with his hands or by striking

K.M. with or against a hard surface. The State alleged the offense of injury to a

      3
       Felony murder does not require a culpable mental state. Tex. Penal Code
Ann. § 19.02(b)(3); Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007).
Both the indictment and the jury charge, however, required the intentional or
knowing commission of an act clearly dangerous to human life.


                                            3
child. See Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2014). As alleged,

the offense is a first degree felony. Id. § 22.04(e).

      The State also alleged two deadly weapon notices, one for Appellant’s

hands and one for a hard surface. For the jury charge and parole purposes, any

deadly weapon finding was irrelevant based upon the charged offenses. Tex.

Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2014);4 id. art. 42.12,

§ 3g(a)(1)(A), (I) (West Supp. 2014).5 Because the jury found Appellant guilty of

one of the charged offenses, the deadly weapon paragraphs were moot. The

judgment reflects any deadly weapon finding was not applicable.

                          The Evidence and the Verdict

      Corporal Barry Watson, one of the police officers who responded to the

EMS medical call, determined the emergency medical staff was working on a

baby, K.M. He testified that Appellant said multiple times that it was his fault.

Corporal Watson related that Appellant told him that Appellant was K.M.’s

caretaker the evening before. Another officer at the scene, Timothy Dillon, said

he overheard Appellant tell K.M.’s mother that he was sorry and that he thought it

was odd K.M. had not awakened him during the night with her cries.


      4
       Section 37.07 was amended effective September 1, 2013. Act of May 25,
2013, 83rd Leg., R.S., ch. 1325, §§ 1, 8, 2013 Tex. Sess. Law Serv. 3516
(West). The amendments do not affect this case.
      5
      Section 42.12 was amended effective September 1, 2013. Act of May 9,
2013, 83rd Leg., R.S., ch.126, §§ 1, 4, 2013 Tex. Sess. Law Serv. 522 (West).
The amendments do not affect this case.


                                          4
      K.M.’s mother, K.C., said K.M. was ten months old in December 2011.

K.M. was K.C.’s daughter from a previous relationship.       K.C. started dating

Appellant in July 2011 and eventually they moved in together.       K.C. was a

stripper, and while she worked either Appellant or K.M.’s grandmother, J.C.,

watched K.M. Her shift generally started at 7:00 p.m. K.C. said she took photos

of K.M. on December 29, 2011, and K.M. had no bruising on her face at that

time. K.C. said she went to work on December 29, 2011. Her shift ended at 2:00

a.m., and her uncle picked her up between 2:30 and 2:45 a.m., after which she

and he drove around and smoked pot, and when she got home, she said K.M.

was still breathing and Appellant was in bed. She said Appellant got up and,

within a few minutes, went to the bathroom where he got sick and threw up. K.C.

did not know when she went to bed, but she thought it was after 4:00 a.m.

Appellant, K.C., and K.M. all slept in the same room. K.C. said she awoke later

that morning hearing Appellant saying K.M. was blue. K.C. went next door to call

911 because she could not find her phone and then returned to administer CPR.

K.C. said she later overheard Appellant tell one of the detectives that Appellant

had shaken K.M.      K.C. was with K.M. when K.M. passed away at Cook

Children’s Medical Center.

      The doctor who treated K.M. in the pediatric ICU at Cook Children’s

Hospital on December 30, 2011, said K.M. had a cardiopulmonary arrest, which

meant she was not breathing and her heart was not pumping. She also had a

subdural hemorrhage, that is, bleeding between the skull and the brain. K.M.


                                       5
additionally had retinal hemorrhages and retinoschisis. Retinal hemorrhages are

bleedings in the back of the eyes. Retinoschisis is a more severe case of retinal

hemorrhages that the doctor described as a type of retinal detachment. The

medical team was not able to save K.M. The doctor said K.M.’s injuries were

consistent with someone shaking her violently or striking her, and he

characterized the injuries as non-accidental trauma.

      James Jackson, an officer who responded to the 911 call and followed

K.M., K.C., and Appellant to Cook Children’s Hospital, testified he heard

Appellant telling people it was his fault without specifying why it was his fault.

Officer Jackson said he also overheard Appellant tell Detective Byron Stewart

that he had shaken the child, thrown her onto the couch, and later found her not

breathing.

      Detective Stewart testified he was in the family room at the hospital when

Appellant told him he shook the child and she passed out. When K.C. heard this,

she became upset and left the room. Detective Stewart testified Appellant said

he did not mean to do it.      Appellant was arrested for injury to a child and

transported to the city jail. Detective Stewart, after advising Appellant of his

rights, later interviewed Appellant, and the videotape of the interview was

admitted and played to the jury. Appellant stated he hurt a little girl and admitted

shaking her because she would not stop crying.

      The chief medical examiner who reviewed the completed autopsy said

K.M. had bruising around both ears and on her right forehead, upper forehead,


                                         6
and right jaw. The chief medical examiner said all the bruised areas indicated

separate and distinct blows to the child’s head. He said K.M. had four to five

impact points on her face. The chief medical examiner indicated that with such

injuries young children experience traumatic brain swelling and likely experience

a cardiovascular phenomenon that causes blood pressure to drop, and then the

rest of the body shuts down. The chief medical examiner summarized that there

was evidence of blunt head trauma with blunt head contact. He said K.M. was

struck or was caused to strike against something, but there was no way to know

what object was used. He said the object did not have to be a hard surface and

could even be a relatively soft object, such as furniture or a mattress.        He

concluded that the cause of death was blunt trauma to the head or brain due to

an assault, and the manner of death was homicide.

      After the close of the evidence, the State argued for a capital murder

conviction.   Appellant argued K.M.’s death was tragic, but he committed no

offense. The jury found Appellant guilty of felony murder.

                             Sufficiency Challenge

      In a single point of error, Appellant argues the evidence was insufficient to

support the finding that he committed an act clearly dangerous to human life.

Appellant maintains the evidence does not single him out as the perpetrator

because K.C. also had access to K.M. Citing Garcia v. State, Appellant appears

to argue sole possession was a prerequisite to a conviction. 16 S.W.3d 401, 405

(Tex. App.—El Paso 2000, pet. ref’d).


                                        7
      The court in Garcia wrote that when an adult had sole access to a child at

the time the child sustained injuries, the evidence is sufficient to support a

conviction for injury to a child or, if the child dies, murder. Id. Garcia does not,

however, make sole possession a prerequisite to a conviction. In Garcia, the

evidence showed the defendant was alone with the child at the time the child was

injured. Id. at 406. The evidence also included the defendant’s admission he

shook and struck the child. Id. Sole possession of the child at the time the child

sustained her injuries was but one of the incriminating factors in Garcia.

      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

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

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). 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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.

App. 2011). 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); Winfrey, 393

S.W.3d at 768. 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.


                                         8
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; Temple, 390 S.W.3d at 360.

      The State argues, and we agree, that Appellant is essentially arguing an

“outstanding reasonable hypothesis of innocence” construct. We also agree with

the State that the Texas Court of Criminal Appeals has disavowed this construct

when performing a sufficiency review. Geesa v. State 820 S.W.2d 154, 160–61

(Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28

S.W.3d 570, 573 (Tex. Crim. App. 2000) (rejecting “beyond a reasonable doubt”

instruction required by Geesa). It is not the State’s burden to exclude every

conceivable alternative to a defendant’s guilt, and simply because a defendant

can argue a different version of the events does not render the evidence

insufficient. Temple, 390 S.W.3d at 363.

      Although K.C. was present during the early morning hours, there was no

evidence suggesting K.C. did anything to harm K.M.        Conversely, there was

evidence showing that, at a minimum, Appellant shook K.M., which Appellant

admitted, and other evidence showing blunt force trauma.              Appellant’s

videotaped interview with the detective was admitted and played for the jury.


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During his interview, Appellant acknowledged he hurt K.M. Appellant said K.M.

woke up screaming “bloody murder” and would not stop. Appellant said because

she would not stop crying, he shook her a little and put her on the couch.

Appellant acknowledged it happened around 11:00 p.m. while K.C. was gone.

Appellant demonstrated for the detective and, effectively, for the jury how he

shook K.M. Appellant said he set her on the couch, and she went back to sleep.

He said K.M. woke up again around 3:00 a.m. K.C. did not come home until

about 4:00 a.m. Appellant said he did not mean to do it, and he knew what he

did was wrong.     Throughout the interview, Appellant was visibly despondent.

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

rational trier of fact could have found the essential elements of the offense of

felony murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The

jury’s finding that he was the perpetrator was not a determination so outrageous

that no rational juror could agree. See Temple, 390 S.W.3d at 363. We overrule

Appellant’s point of error.

                                 Clerical Error

      While reviewing the record, we noted clerical errors. The judgment, under

the section titled, “Offense for which Defendant Convicted,” reflects: “Murder

(Lesser included offense of Count One.)”     Under the portion for “Statute for

Offense,” the judgment provides: “19.02(b)(1) PC.” If the jury had convicted

Appellant of intentionally or knowingly causing the death of K.M. by shaking her

with his hands and/or by striking her with or against a hard surface but further


                                      10
found K.M. was not a child under ten, these two portions of the judgment would

be correct. See Tex. Penal Code Ann. § 19.02(b)(1). That, however, was not

what the jury convicted Appellant of.      The jury convicted Appellant of felony

murder under count two as authorized under section 19.02(b)(3) of the Texas

Penal Code, that is, while committing a felony (in this instance the felony of injury

to a child), Appellant committed an act clearly dangerous to human life that

caused the death of K.M. Id. § 19.02(b)(3).

      Appellate courts have the power to correct and reform a trial court

judgment to make the record speak the truth when it has the necessary data and

information to do so or to make any appropriate order as the law and the nature

of the case may require. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d). When a judgment improperly reflects the findings of the

jury, the proper remedy is the reformation of the judgment. Id. Appellate courts

have the power to reform incorrect judgments. Id. They have the power to

reform whatever the trial court could have corrected by a judgment nunc pro tunc

where the evidence necessary to correct the judgment appears in the record. Id.

The authority of an appellate court to correct a judgment is not dependent on the

request of any party, and, similarly, the power is not dependent on whether a

party has objected in the trial court. Id. at 529–30. An appellate court may act

sua sponte and may have the duty to do so. Id. at 530.

      Because the jury convicted Appellant under count two, we delete the

portion of the judgment that provides, “Murder (Lesser Included Offense Of


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Count One),” and reform the judgment to provide in its place, “Murder (Count

Two).”   Similarly, because the jury convicted Appellant pursuant to section

19.02(b)(3) of the Texas Penal Code, we delete the portion of the judgment that

provides, “19.02(b)(1) PC,” and reform the judgment to provide, in its place,

“19.02(b)(3) PC.”

                                 Conclusion

      Having overruled Appellant’s sole point of error and having reformed the

judgment to correct clerical errors, we affirm the trial court’s judgment as

modified.


                                                /s/ Anne Gardner
                                                ANNE GARDNER
                                                JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: November 13, 2014




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