                                                                                       ACCEPTED
                                                                                   12-15-00003-CR
                                                                      TWELFTH COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                                                            10/30/2015 11:41:02 PM
                                                                                         Pam Estes
                                                                                            CLERK

                    Cause No. 12-15-00003-CR

                                                                   FILED IN
                                                           12th COURT OF APPEALS
                                                                 TYLER, TEXAS
                  In the Court of Appeals for the
                                                           10/30/2015 11:41:02 PM
               Twelfth Judicial District at Tyler, Texas          PAM ESTES
                                                                    Clerk



                         Dequisha Jackson,
                             Appellant

                                  v.

                           State of Texas,
                              Appellee



         On Appeal from Cause No. 2013-0731 in the 159th
          Judicial District Court of Angelina County, Texas



                            State’s Brief



                                       April Ayers-Perez
                                       Assistant District Attorney
                                       Angelina County D.A.’s Office
                                       P.O. Box 908
                                       Lufkin, Texas 75902
                                       (936) 632-5090 phone
                                       (936) 637-2818 fax
                                       State Bar No. 24090975
                                       aperez@angelinacounty.net

Oral Argument Not Requested
                       Identity of Parties and Counsel

Dequisha Jackson, Appellant
TDCJ Number: 01972267
Crain Unit
1401 State School Road
Gatesville, Texas 76599

John Tatum II.
Attorney for Appellant (trial)
P.O. Box 582
Lufkin, Texas 75902
SBN: 00789674

Katrina Carswell
District Attorney
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 104822700

April Ayers-Perez
Assistant District Attorney
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975




                                      ii
                                          Table of Contents

Identity of Parties and Counsel ................................................................... ii

Table of Contents .......................................................................................iii

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

Statement Regarding Oral Argument .......................................................... v

Issue Presented .......................................................................................... v

Statement of Facts ...................................................................................... 1

Summary of the Argument ........................................................................ 10

Argument .................................................................................................. 11

        Reply Issue #1: The evidence is legally sufficient to sustain
        the jury’s guilty verdict for manslaughter . ........................................ 11

                 Applicable law......................................................................... 11

                 Standard of review .................................................................. 12

                 The Actions and Inactions of the Appellant Rise to the
                 Level of Reckless Conduct .................................................... 13

                 The Evidence Against the Appellant was More
                 Compelling than the Evidence Against Isaiah Tolliver ............ 18

Prayer ....................................................................................................... 19

Certificate of Compliance .......................................................................... 20


                                                       iii
Certificate of Service ................................................................................. 20



                                      Index of Authorities

Cases                                                                                              Page

Brooks v. State, 323 S.W.3d 839 (Tex.Crim.App. 2010) ........................... 12

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) .......................... 12

Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007)............................... 12

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................ 12, 13

Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App. 1991) ......................... 13

Paulson v. State, 570 S.W.3d 570 (Tex.Crim.App. 2000).......................... 13

Temple v. State, 390 F.3d 341 (Tex.Crim.App. 2013) ......................... 12, 13


Rules

Tex. R. App. P. 9.4(i)(1) ............................................................................ 20

Tex. R. App. P. 39.1 ................................................................................... v

Statutes

Tex. Pen. Code Ann. § 19.04(a) (West 2011) ........................................... 11

Tex. Pen. Code Ann. § 6.03(c) (West 2011) ............................................. 11


                                                    iv
                   Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in

the briefs and record and the decisional process would not be significantly

aided by oral argument.

                              Issue Presented

      Reply Issue #1: The evidence is legally sufficient to sustain the

jury’s guilty verdict for Manslaughter.




                                          v
                            Statement of Facts

      On August 13, 2013 Imauri Jackson was born to Dequisha Jackson

and Isaiah Tolliver at Methodist Hospital in Baytown, Texas.1        Jackson

received discharge instructions from Methodist Hospital stating that she

was supposed to follow up with a physician three days after discharge for

Imauri.2    An appointment for Imauri was made for August 19, 2013.3

Jackson never showed up for the appointment with Imauri, nor did anybody

ever take Imauri to a physician again until his death on October 11, 2013.4

On August 28, 2013 Jackson, Tolliver, and baby Imauri moved to Lufkin,

Texas, in Angelina County, to live with Linda Bankhead, Jackson’s Aunt at

1506 Williams Street.5

      On October 11, 2013 Desmond Garcia, a paramedic with the city of

Lufkin, Texas, responded to a call of an infant not breathing at 1506

Williams Street.6 Garcia’s unit was the first on the scene,7 and it took about

six to seven minutes for Garcia’s unit to arrive on scene after receiving the




1
  VI R.R. at 110.
2
  Id. at 111.
3
  Id. at 112.
4
  Id.
5
  Id. at 109.
6
  V R.R. at 38-41.
7
  Id. at 41.
                                      1
911 call.8 Upon entering the house Garcia went to the right into a bedroom

where an infant, Imauri Jackson, was lying on the floor on its back, while

the Appellant, Dequisha Jackson, was sitting on the bed, and her co-

defendant, Isaiah Tolliver, was pacing.9 Garcia noted that Jackson and

Tolliver were not behaving as typically parents behave during these

situations based on his experience.10 Garcia said, in his experience,

parents are more irate and distraught than anything he saw from Jackson

and Tolliver, whereas, in this instance, Jackson and Tolliver were not acting

as if this was an emergency.11 The first thing Garcia did was to pick Imauri

up, who was already in cardiac arrest and stiff, and began resuscitation

efforts including attempting to get intravenous access, establish the airway,

and push medications through.12 One of Garcia’s first thoughts was that

Imauri was a preemie, or premature, because of its size.13 After checking

Imauri’s pulse, and finding none, and noting Imauri was blue and cold to

the touch, Garcia’s partner, Dillon Millender, scooped Imauri up and ran to

the ambulance with him.14 Garcia and his unit were only at the residence



8
  Id. at 50.
9
  Id. at 43.
10
   Id. at 43-44.
11
   Id. at 44, 52.
12
   Id. at 46.
13
   Id. at 47.
14
   Id. at 47-48.
                                      2
for two to three minutes.15 After arriving at the hospital, Woodland Heights,

Garcia transferred care to the nurses and stayed at the hospital for 35-40

minutes to check on the status of baby Imauri.16         It took a total of

approximately ten to twelve minutes to arrive in the hospital’s emergency

room.17

       After Garcia and his unit left with Imauri, Jarrod Hennigan, a patrol

officer with the Lufkin Police Department, was one of the first officers to

arrive on scene at 1506 Williams Street.18 One of the first people Officer

Hennigan spoke to was Linda Bankhead, who was nonchalant and stated

that she did not know much, except that Jackson woke her up to tell her the

baby was not breathing, and Bankhead called 911.19 After learning of the

Imauri’s death, Hennigan, along with Debra Walsh, a crime scene

technician, walked around the house taking photographs.20 In the bedroom

where Jackson, Tolliver, and Imauri were staying the baby carrier, which

had a lot of blankets and pillows, looked as though it was being used as a

bed for Imauri.21 In the room Imauri was staying in there were no baby



15
   Id. at 50.
16
   Id. at 48-49.
17
   Id. at 50.
18
   Id. at 57-58.
19
   Id. at 63.
20
   Id. at 64-65.
21
   Id. at 76-77.
                                      3
supplies, diapers, supplies of diapers, and only one used diaper in the trash

can.22 In the closet in the bedroom Officer Hennigan found one new diaper

as well as some diaper wipes.23 There were five cans of formula on top of

the refrigerator, as well as some cereal, and no other formula found in the

house.24 Also in the kitchen Officer Hennigan located some sippy cups,

commonly used by older children.25 Officer Hennigan noted that another

Officer, Offficer Brooks, looked through the city trash can that was outside

the house for dirty diapers, and because Officer Brooks did not take any

photographs it was assumed no dirty diapers were found in the trash can.26

       Linda Bankhead, the aunt of Jackson, and the renter of the two-

bedroom house at 1506 Williams Street, stated that, in addition to Jackson,

Tolliver, and Imauri, Bankhead’s children –Robert, age 26, Zyron, Chyrieka,

age 20, and Zyron, age 16, all lived at the house as well.27 During the

month Jackson, Tolliver, and Imauri were living with Bankhead, Bankhead

had only held Imauri once and had never changed his diaper, given him a

bath, or fed him.28



22
   Id. at 77-79.
23
   Id. at 80-81.
24
   Id. at 81-84.
25
   Id. at 95-98.
26
   Id. at 101-03.
27
   Id. at 120-21.
28
   Id. at 124-25.
                                      4
      Bankhead stated that Jackson would fix bottles for Imauri, with cereal

in them, though, when pressed, Bankhead could not remember if she had

ever actually seen Jackson do this.29 Due to the appearance of Imauri,

Bankhead told Jackson she needed to take Imauri to a doctor.30 Bankhead

further noted that the weight of Imauri alarmed her, even going so far as to

ask Jackson if the two month old baby Imauri was a preemie.31 Jackson

had an appointment for the baby for October 14, 2013.32 Bankhead bought

formula for Imauri once, but never bought diapers or bottles.33 Bankhead

had encouraged Jackson, and shown her, how to sign up for WIC.34

Bankhead told Nick Malone with the Lufkin Police Department that upon

touching Imauri before calling 911 Imauri was stiff and cold.35

      Only two physicians offices in Lufkin saw children with medicare, Dr.

Andrew Fercowitz and Angelina Pediatrics.36 The Custodian of Records for

Dr. Fercowitz, Donna Bailey, did not have any record of Imauri Jackson.37

Sharon Shaw, the Custodian of Records for the Health District of Angelina



29
   Id. at 128-29.
30
   Id. at 132.
31
   Id. at 157, 161.
32
   Id. at 134.
33
   Id. at 140-41.
34
   Id. at 144-46.
35
   VI R.R. at 107.
36
   V R.R. at 191-92, 216-17.
37
   Id. at 193.
                                      5
County, testified that it was on October 4, 2013 that Jackson requested her

WIC be transferred from Liberty County, and that Imauri was never in the

system up until October 4, 2013.38 However, after Imauri’s death, it was

discovered that Jackson had Medicaid and thus Imauri was covered as

well.39

       Dr. Melissa Handley, a pediatrician, was the on call pediatrician for

the hospital when Imauri was brought in as a cardiorespiratory

emergency.40 It took five minutes for Dr. Handley to arrive at the hospital

after being paged.41    When Dr. Handley arrived the Emergency Room

Physician, Dr. Monroe, had begun resuscitation on Imauri.42 Imauri also

had two intravenous lines put in his leg, been given three runs of

epinephrine, and given fluid boluses to support Imauri and had received no

response.43 Imauri was in asystole and had no cardiac electrical activity

since his arrival.44 Imauri arrived at the hospital with no heartbeat and his




38
   Id. at 197-98.
39
   VI R.R. at 42-43.
40
   V R.R. at 219.
41
   Id. at 220.
42
   Id.
43
   Id.
44
   Id. at 220-21.
                                      6
temperature was 94.7, well below the average for a baby Imauri’s age of

99.5.45 Dr. Handley noted Imauri did not look healthy:

      The most dramatic thing is that he was just emaciated. He looked –
      he was -- he did not look like a healthy two-month-old. He had – his
      skeletal, you could easily see his ribs. He didn’t have a lot of the
      subcutaneous fat that a normal two-month-old baby would have, the
      chubby cheeks, the thick neck, the pudgy arms. He didn’t have any
      of that. He was emaciated.46

Dr. Handley continued resuscitation efforts for 25 minutes with no response

from Imauri, before pronouncing Imauri dead at 10:40 a.m.47 Imauri was

very stuff and his pupils were fixed and dilated by the time he arrived at the

hospital, and he was already in rigor mortis.48 Imauri weighed five pounds

six ounces when he died on October 11, 2013, whereas his weight should

have been around nine and a half pounds49 Imauri weighed six pounds six

ounces two months earlier when he was born.50 Dr. Handley further noted

that Imauri’s fontanel was sunken, which is consistent with dehydration,

and is something that occurs late in time from dehydration, occurring only

after the body is more than 10% dehydrated.51




45
   Id. at 221-22.
46
   Id. at 222.
47
   Id. at 222-23.
48
   Id. at 223, 229.
49
   Id. at 227, 267.
50
   VI R.R. at 68.
51
   V R.R. at 250-51.
                                      7
       After Dr. Handley was informed of the timeline of events, based on

Jackson’s information to emergency responders, she was concerned

because the fact that Imauri was in rigor mortis, which does not occur until

three to eight hours after death, did not fit the timeline Jackson was

providing.52        The timeline given to Dr. Handley was that Jackson and

Tolliver were handling Imauri for about fifteen minutes until he stopped

breathing, it took five minutes for the ambulance to get to the house, it took

ten minutes for the ambulance to get to the hospital, and when Dr. Handley

saw Imauri right after he arrived he was already in rigor mortis.53        Dr.

Handley said the timeline was not correct because Imauri died sooner than

what Jackson was claiming.54 Further, when rigor mortis set in, Imauri was

lying flat, not in the car seat like the story that had been told to the EMT.55

Imauri also had blanching, which is where everything stays in place after

the time of death.56 Essentially, whatever part of the body pressed up

against a surface will not refill with blood when moved because there is no




52
   Id. at 232.
53
   Id.
54
   Id. at 233.
55
   Id. at 233-34.
56
   VI R.R. at 38.
                                        8
more blood pressure.57      Blanching does not occur until eight to twelve

hours after death, and was just starting to occur to Imauri.58

       Dr. Handley noted that all emergency room instructions are virtually

the same, that babies are going to eat one to three ounces every two to

four hours.59       Dr. Handley noted that Jackson would have received

discharge papers stating that when she left the hospital with Imauri.60 Dr.

Handley also noted that the fact that Jackson received paperwork telling

her to take Imauri to a Dr. within three days after discharge also would

have been normal.61

       On October 12, 2013 Dr. Candace Schoppe of the Dallas County

Medical Examiner’s Office performed an autopsy on Imauri Jackson.62 Her

initial notes on Imauri’s condition were:

       “There were no – he had no external injuries. The major findings
       were just his extreme emaciation. The muscles on [his] temporals,
       they’re wasted. The fat pads in [his] cheeks were almost depleted.
       You could see his ribs through his skin. There was almost no fat in
       the skin – underlying the ribs.
       The skin had what we call decreased turgor. So when somebody
       gets really dehydrated with you, an example, if you kind of pinch their
       skin, it sticks. It doesn’t just flatted back out. And his skin did that.



57
   Id. at 39.
58
   Id. at 36-37.
59
   V R.R. at 235-36.
60
   Id. at 236.
61
   Id. at 246.
62
   VI R.R. at 63, 66-67.
                                       9
       He also had a green discoloration of his abdomen. He didn’t have
       much residual rigor mortis. So he wasn’t very stiff anymore. His
       eyes had clouded over, and he had fixed lividity on his back.”63


Dr. Schoppe also noted that many of the organs of Imauri, including his

liver, stomach, and skull, were showing signs of malnutrition and

dehydration.64 Further, Imauri had a heightened level of cortisol, which is a

sign of stress in an infant caused by dehydration and malnutrition.65

Despite a myriad of tests Dr. Schoppe found no diseases or conditions that

Imauri had that would explain any sort of malnutrition or dehydration.66

       While in the Angelina County Jail, Jackson told Misti Davis, a fellow

inmate, that when Imauri would cry Jackson would just give him a pacifier

instead of feeding him.67 Jackson also told Davis that Tolliver would never

change Imauri’s diaper or feed Imauri.68

                        Summary of the Argument

       Dequisha Jackson had little regard for her son, Imauri Jackson. She

purposefully withheld food, telling a future inmate that when two month old

Imauri would cry for food she would put a pacifier in his mouth to make him



63
   Id. at 68-69.
64
   Id. at 80-82.
65
   Id. at 83-84.
66
   Id. at 84-86.
67
   Id. at 133.
68
   Id. at 135.
                                     10
stop. Jackson ignored discharge instructions from the hospital after giving

birth, refused to take Imauri to the Dr., and let him waste away before dying

from malnutrition and dehydration.

         Jackson, not Isaiah Tolliver, was the person primarily responsible for

Imauri’s care, and the person ultimately more culpable for Imauri’s demise.

                                      Argument

         Reply Issue #1: The evidence is legally sufficient to sustain the

jury’s guilty verdict for Manslaughter.

                                    Applicable law

         A person commits the offense of manslaughter if [s]he recklessly

causes the death of an individual.69

      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.70



69
     Tex. Pen. Code Ann. §19.04 (a) (West 2011).
70
     Tex. Pen. Code Ann. §6.03(c) (West 2011).
                                           11
                               Standard of review

     The State must prove every element of the crime charged beyond

a reasonable doubt.71        In reviewing the legal sufficiency of the

evidence in support of a conviction, the court considers the evidence

in the light most favorable to the verdict to determine whether –

based on evidence and reasonable inferences – the jury was

rationally justified in finding guilt beyond a reasonable doubt.72 The

jury is the sole judge of credibility and weight to be attached to the

testimony of witnesses.73 Although the court allows juries to draw

multiple inferences from facts, as long as those facts are supported

by evidence presented at the trial, the jury is not allowed to draw

conclusions based upon speculation, because in doing so the jury

would not be supporting a finding of beyond a reasonable doubt.74

The definition of “beyond a reasonable doubt”, and “reasonable




71
   Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
72
   Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443
U.S. at 318-19 & Brooks v. State, 323 S.W.3d 839, 912 (Tex. Crim. App. 2010)); Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
73
   Id.
74
   Id.
                                         12
doubt” itself are left to the jury, and the trial court is discouraged from

defining it for the jury.75

      A criminal case may, however, be based solely upon

circumstantial evidence, and that circumstantial evidence can be

sufficient by itself to support a verdict of guilt beyond a reasonable

doubt.76   In circumstantial cases not every fact and circumstance

needs to point “directly and independently to the defendant’s guilt.”77


      The Actions and Inactions of the Appellant Rise to the Level of

                                Reckless Conduct

      The actions, and inactions, of Jackson are beyond the level of just

criminally negligent, and rose to the level of reckless, thus making Jackson

guilty of manslaughter, not just endangering a child. The State alleged, in

its indictment, that Jackson committed the reckless conduct one of three

separate ways: providing inadequate nutrition, providing inadequate fluids,

or providing inadequate medical care. As long as there is evidence to

support any one of the acts as reckless as alleged in the indictment the

verdict is sufficient.78


75
   Paulson v. State, 570 S.W.3d 570, 573 (Tex. Crim. App. 2000)
76
   Temple, 390 S.W.3d at 359.
77
   Id.
78
   Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
                                          13
     Dequisha Jackson did not behave like a mother who had just lost her

child, and this was the first sign of consciousness of guilt for those who saw

Jackson’s reactions or lack of reactions. Desmond Garcia, the EMT who

first arrived on scene, noted that Jackson was not behaving typically:

“Typically – mothers, in particular, tend to be more irate, screaming, you

know. You know, just really irate, screaming and hollering, walking around

with their baby. Usually the mother has the baby in their hands. Most of

them, they’re holding the baby. You basically have to pry the baby out of

the mom’s arms pretty much.”79 Officer Malone also saw the lack of

empathy: “Both parents had significantly less grief than what you would

expect and didn’t seem near as sad and upset as parents in other cases of

child deaths that I’ve been involved with.”80 Only one clean diaper was

found in the house Imauri was living in with Jackson and Tolliver, only two

bottles were found that were sufficient for Imauri to use, and only about a

weeks worth of formula was found, in all different brands.81

     Despite Imauri’s very visible emaciation82, Jackson never once took

Imauri to a Doctor, to a hospital, or any type of facility.83 In fact, despite



79
   V R.R. at 51.
80
   VI R.R. at 104.
81
   V R.R. at 77-79, 81-84, & 95-98.
82
   See State’s Exhibits 39-43.
83
   VI R.R. at 111.
                                        14
hospital discharge instructions telling Jackson to take Imauri to a physician

within three days, Jackson made an appointment and never showed up.84

Meanwhile, Imauri lost over a pound from his birth weight until his untimely

death at two months old, and this still did not concern Jackson enough to

take Imauri to a doctor.85 Further, after Imauri’s death, Jackson admitted

that she would just put a pacifier in Imauri’s mouth instead of feeding him.86

Jackson’s concern was not Imauri, her concern was her boyfriend, Isaiah

Tolliver.87

     Linda Bankhead, Jackson’s Aunt and the person Jackson, Tolliver, and

Imauri were living with, did her best to try to defend Jackson. However,

when asked if she actually saw Jackson feed Imauri Bankhead repeatedly

struggled to answer that question, just saying she knew Imauri was fed.88

Bankhead initially told Officer Malone that Imauri was cold to the touch and

stiff when she initially touched him89, however at trial Bankhead changed

her mind and decided that Imauri was actually warm when she touched

him.90 Bankhead had more inconsistencies in her statement, which largely



84
   Id. at 112.
85
   V R.R. at 227.
86
   VI R.R. at 133.
87
   Id. at 138.
88
   V R.R. at 127-29.
89
   VI R.R. at 107.
90
   V R.R. at 147.
                                      15
was positive toward Jackson, when Bankhead claimed Imauri was on the

bed91 however Garcia saw Imauri on the floor92, and levidity prove Imauri

was on a flat surface, not the bed93. Despite Bankhead’s best efforts to

defendant Jackson, even she was concerned, as best as she could be, with

Imauri, trying to convince Jackson to get on WIC, to make an appointment

with a physician, and even making a comment on the day of Imauri’s death

that “I told them they need to get the baby checked out… I told them

something was wrong with the baby. The baby needed to be checked

out”.94

     One of the biggest signs of evidence the jury heard was the picture of

Imauri at the time of his death, emaciated, and the reactions from all the

first responders to the condition of Imauri. It started with Desmond Garcia,

the EMT from Lufkin and one of the first responders, who said Imauri “was

blue in color, and he was cold to touch, and he was visibly malnourished.

You could see his ribs, cheekbones. His jaw – his cheeks were sunken in.

He looked like an older person, like a geriatric, you know, kind of.”95 Next

Dr. Handley saw Imauri and she, too, was surprised and shocked by the



91
   V R.R. at 148.
92
   Id. at 221.
93
   VI R.R. at 36.
94
   V R.R. at 45.
95
   Id. at 46.
                                       16
appearance of this two month old: “The most dramatic thing is that he was

just emaciated. He looked – he was – he did not look like a healthy two-

month-old. He had – his skeletal, you could easily see his ribs. He didn’t

have a lot of the subcutaneous fat that a normal two-month-old baby would

have, the chubby cheeks, the thick neck, the pudgy arms. He didn’t’ have

any of that. He was emaciated.”96 The next day, October 12, 2013, when

Dr. Schoppe performed the autopsy on baby Imarui, she too was shocked

by his appearance: “There were no – he had no external injuries. The

major findings were just his extreme emaciation.”97 Finally Officer Malone

of the Lufkin Police Department also observed Imauri: “I had never seen

anything like it. You know, it was obviously a young infant, and you could

see the majority of his bone and skeletal structure. I don’t know how else

to describe it, just a child who was very under weight.” A picture of Imauri

at the time of his death shows just how dramatic, and obvious, his condition

was.98

     When all of the evidence is added up, particularly Jackson’s lack of

remorse or grief, Bankhead’s inconsistencies coupled with her claim that

Jackson fed Imauri, Jackson’s not appearing at a doctor’s appointment for


96
   Id. at 222.
97
   VI R.R. at 68.
98
   C.R., See State’s Exhibit 39-43.
                                       17
Imauri and never taking Imauri to a doctor in his two months alive,

Jackson’s own admission to Misti Davis that she did not feed Imauri and

instead just gave him a pacifier when he was hungry, combined with the

sheer horror of the image of an emaciated Imauri, the overwhelming

evidence points to reckless behavior on the behalf of Jackson, and in a

light most favorable to the jury’s verdict of guilt for manslaughter, the

evidence is sufficient to support that.

      The Evidence Against the Appellant was More Compelling than the

                       Evidence Against Isaiah Tolliver

      By her own admission, it was Dequisha Jackson who was home with

Imauri during the day, not Isaiah Tolliver for the most part. The evidence

points toward more culpable actions and inactions out of Jackson than

Tolliver, thus the jury’s guilty verdict of manslaughter for Jackson and

endangerment of a child for Tolliver is correct and the totality of the

evidence was not substantially similar between Jackson and Tolliver.

         When Dequisha Jackson left Methodist Hospital in Baytown, Texas

she received discharge instructions on how to care for Imauri, and to bring

Imauri to a physician within three days.99 Jackson not only did not follow

the instructions she was aware she had, she did not ever take Imauri to a


99
     VI R.R. at 112.
                                          18
physician, despite claiming to others that she had.100 It was Jackson, not

Tolliver, who was home all day with Imauri, and in charge of feeding Imauri

while home. Tolliver was out during the day looking for a job, and once

Tolliver began working for Pilgrim’s Pride, he was gone all night while

Jackson was in charge of Imauri’s care.101 Furthermore, Jackson was the

one who told Misti Davis she would just put a pacifier in Imauri’s mouth,

rather than feed him.102 Jackson also apologized to Tolliver for putting him

in this position.103

       Jackson was always at the center of all of the malnutrition and

dehydration problems baby Imauri had. Between Jackson’s own

admissions, coupled with Jackson’s time with Imauri being so much greater

than Tolliver’s time with Imauri, the totality of the evidence was not similar

between Jackson and Tolliver, and thus a guilty verdict on endangering a

child, and not manslaughter, for Tolliver should have no impact on the

guilty verdict of manslaughter for Jackson.

                                    Prayer

       The State of Texas prays that this Court of Appeals affirm the

judgment of the trial court.

100
    VII R.R. at 52.
101
    Id. at 69.
102
    VI R.R. at 133.
103
    VII R.R. at 100.
                                       19
                                             Respectfully Submitted,

                                              /s/ April Ayers-Perez
                                             Assistant District Attorney
                                             Angelina County D.A.’s Office
                                             P.O. Box 908
                                             Lufkin, Texas 75902
                                             (936) 632-5090 phone
                                             (936) 637-2818 fax
                                             State Bar No. 24090975
                                             ATTORNEY FOR THE
                                             STATE OF TEXAS

                          Certificate of Compliance

      I certify that this document contains 4,033 words, counting all parts

of the document except those excluded by Tex. R. App. P. 9.4(i)(1). The

body text is in 14 point font, and the footnote text is in 12 point font.


                                             /s/ April Ayers-Perez


                            Certificate of Service

      I certify that on October 30, 2015, a true and correct copy of the

above document has been forwarded to John Reeves, 1007 Grant Ave.,

Lufkin, TX 75901, by electronic service through efile.txcourts.gov.


                                             /s/ April Ayers-Perez



                                        20
