                                NO. 07-08-00442-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                 OCTOBER 25, 2010


                          JIMMY L. ALEMAN, APPELLANT

                                          v.

                         THE STATE OF TEXAS, APPELLEE


           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-417,499; HONORABLE JIM BOB DARNELL, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION

      Appellant Jimmy L. Aleman appeals from his jury conviction for the offense of

intentional or knowing injury to a child1 and the resulting sentence of 99 years of

imprisonment in the Institutional Division of the Texas Department of Criminal Justice.

Through three issues, appellant contends the evidence was legally and factually



      1
        See Tex. Penal Code Ann. ' 22.04 (Vernon Supp. 2010). This is a first degree
felony punishable by imprisonment for life or for any term of not more than 99 years or
less than 5 years and a fine not to exceed $10,000. See Tex. Penal Code Ann. ''
12.32 (Vernon Supp. 2010); 22.04(e) (Vernon 2010).
insufficient to support his conviction and the trial court erred by denying appellant=s

requested charge on voluntariness. We will affirm.


                                         Background


         The injured child was appellant’s twenty-eight-month-old son. The child’s head

injury occurred during an afternoon in August 2007 at the home in Lubbock where

appellant lived with his wife, their son and their three-year-old daughter. Appellant’s

wife was at work at the time, and appellant was home with the children.


         Testimony showed that appellant called his wife at work, telling her their son was

jumping on the couch, fell off and hit his head on a table. She told appellant to call 911,

and she hurried home.        The recording of appellant’s 911 call was admitted into

evidence. The jury heard appellant tell the 911 operator that his son “jumped off the

sofa.”


         A paramedic who was among those responding to the 911 call testified that

appellant told her the child had fallen off the couch and hit his head on the floor. The

child was unconscious, and although the paramedic did not feel swelling or soft places

on the child=s head, he exhibited symptoms of head injury. The paramedic observed

“decerebrate posturing,” in which the child’s “head went straight back. His arms went

stiffened out, and his legs stiffened out. That=s indicative of a head injury.@2 From the

apparent severity of his injury, the paramedic doubted it resulted only from a fall from

the low couch onto the carpeted floor.


         2
         The paramedic also noted that when the child opened his eyes, Athey would
veer straight to the left, which is another sign of a head injury, a brain injury.@
                                              2
       After paramedics stabilized the child they transported him to Covenant Children’s

Hospital. The emergency room physician also found the child nonresponsive. A CT

scan revealed a large subdural hematoma on the right side of the child’s head. Surgery

followed to remove the hematoma and lessen pressure inside the child’s skull. Photos

taken in the hospital show a large C-shaped surgical wound on the right side of the

child’s head. He spent two months in the hospital, and at the time of trial remained in

what his mother described as a “semi-coma.” He was not then ambulatory, did not

speak, did not react to his surroundings and was fed by tube.


       In the days after the injury, in response to questions about its cause, appellant

began to modify his version of the events. The next day after the injury, appellant told

his wife that, while playing, he had thrown his son Aat the sofa@ from the entryway of the

living room.    The same day, after Miranda warnings, appellant signed a written

statement to police stating he liked to play with his son, and “all of our family says I play

too rough with him.” Appellant told how on that day he played with his son by spinning

around while holding the boy by his wrists until they were dizzy, and later by throwing

him up in the air and catching him. On the last throw, appellant threw the boy up "as

hard as I could and I threw him over my head and out of my reach." Appellant said he

failed to catch the child and his head hit the floor.


       The second day after the injury, appellant gave a second written statement to

police, in which he said his description of his playful activities in his previous statement

was accurate, but that the child really was not hurt when appellant failed to catch him

after throwing him up in the air. The statement said the child actually was hurt when

                                               3
appellant "threw him across the room in a superman type throw." In this second written

statement, appellant said he threw his son Ain an underhand throw like a fast pitch

softball with both hands[,]@ intending Ato throw him onto the couch but he missed and he

landed on his head, the back . . . .@


       Both of appellant’s police interviews also were audio-recorded, and the jury

heard both recordings. During the second interview, appellant reiterated he threw the

child, intending him to reach the couch, and insisted he intended no harm to him.

Appellant cried during the interview, asserting he would never intentionally hurt his son.


       Appellant did not testify at trial. He presented testimony from his former in-laws.3

Both testified they never observed abusive behavior by appellant toward his children,

and did not think appellant intentionally hurt his son.


       In argument, appellant conceded before the jury that his conduct with his son

was either reckless or criminally negligent, but steadfastly denied any intentional or

knowing conduct with respect to the injury.


       The court’s charge gave the jury the choices of finding appellant not guilty, or

finding him guilty of causing his son’s injuries intentionally or knowingly; guilty of

causing the injuries recklessly; or guilty of causing the injuries by criminal negligence.

The jury found him guilty of the most serious of the offenses, finding he caused the

injuries intentionally or knowingly.


       3
        By the time of trial, appellant and his wife had divorced. She testified she
divorced appellant after deciding the injury to their son was not “an accident.”


                                              4
                                          Analysis


Issues One and Two - Sufficiency of the Evidence


       In appellant=s first issue, he challenges the legal sufficiency of the evidence to

support his conviction. He does not contest the sufficiency of the evidence he caused

his son’s injury nor the sufficiency of the evidence it constituted serious bodily injury.4

Appellant’s contention focuses instead on the evidence he acted with the mental state

required to support a conviction under § 22.04(a) of the Penal Code. Like at trial, he

argues the evidence shows at most that he acted recklessly. We disagree, and will

overrule the issue.


       In reviewing issues of evidentiary sufficiency, an appellate court views the

evidence in the light most favorable to the verdict to determine whether, based on that

evidence and reasonable inferences therefrom, a rational jury could have found each

element of the offense beyond a reasonable doubt. Brooks v. State, No. PD-0210-09,

2010 Tex. Crim. App. LEXIS 1240 (Tex.Crim.App. Oct. 6, 2010); Swearingen v. State,

101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197

(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979)). The standard “gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw


       4
        “‘Serious bodily injury’ means bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Tex. Penal Code Ann. §
1.07(a)(46) (Vernon Supp. 2010).


                                             5
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. If,

given all of the evidence, a rational jury would necessarily entertain a reasonable doubt

of the defendant=s guilt, due process requires that we reverse and order a judgment of

acquittal. Swearingen, 101 S.W.3d at 95 (citing Narvaiz v. State, 840 S.W.2d 415, 423

(Tex.Crim.App. 1992)), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L.Ed.2d 791

(1993). Circumstantial evidence is as probative as direct evidence in establishing guilt,

and circumstantial evidence alone can be sufficient to do so. Hooper v. State, 214

S.W.3d 9 (Tex.Crim.App. 2007) (citing Guevara v. State, 152 S.W.3d 45, 49

(Tex.Crim.App. 2004)). A conclusion of guilt can rest on the combined and cumulative

force of all incriminating circumstances. Conner, 67 S.W.3d at 197.


       Injury to a child is a “result of conduct” offense; the culpable mental state relates

not to the nature of or the circumstances surrounding the defendant’s charged conduct,

but to the result of the conduct. Patterson v. State, 46 S.W.3d 294, 301 (Tex.App.--Fort

Worth 2001, pet. refused) (citing Haggins v. State, 785 S.W.2d 827, 828

(Tex.Crim.App.1990)); see Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.

2007) (noting injury to child is “result-oriented offense requiring a mental state that

relates not to the specific conduct but to the result of that conduct”). We may affirm the

jury’s general verdict of guilt if we find the evidence sufficient to sustain a finding beyond

a reasonable doubt that appellant acted either intentionally or knowingly with regard to

his son’s injuries. See Patterson, 46 S.W.3d at 300 (where jury authorized to convict on

more than one theory, general verdict of guilt may be sustained if evidence supports

conviction under at least one theory).


                                              6
         Under the Penal Code, a person acts intentionally, or with intent, with respect to

a result of his conduct when it is his conscious objective or desire to cause the result.

Tex. Penal Code Ann. ' 6.03(a) (Vernon 2003).           A person acts knowingly, or with

knowledge, with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result. Tex. Penal Code Ann. ' 6.03(b) (Vernon 2003).

Thus, proof that a defendant knowingly caused injury to a child requires evidence that

he was aware with reasonable certainty that the injury would result from his conduct.

Patterson, 46 S.W.3d at 302.


         A person acts recklessly, or is reckless, with respect to the result of his conduct

when he is aware of but consciously disregards a substantial and unjustifiable risk that

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) (Vernon 2003).


         A defendant’s culpable state of mind is almost invariably proven by circumstantial

evidence. Morales v. State, 828 S.W.2d 261, 263 (Tex.App.--Amarillo 1992), aff’d, 853

S.W.2d 583 (Tex.Crim.App. 1993); accord, Montgomery v. State, 198 S.W.3d 67, 87

(Tex.App.--Fort Worth 2006 pet. refused). Intent can be inferred from the acts, words

and conduct of the accused, and from the extent of the victim’s injuries and the relative

size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.

1995).




                                              7
      The State argues the jury could infer appellant’s guilty conscience caused him to

lie to his wife, emergency responders and police about how his son’s injury was

incurred. The paramedic and others quickly recognized it was unlikely to have been

incurred in a fall from the couch, and appellant’s second statement to police

acknowledges he lied in his first interview because he “thought it sounded better and

that it would make more sense that I didn’t catch him versus what really happened.”

The State is correct that a jury may infer from a person’s lying that “he had something to

hide.” Couchman v. State, 3 S.W.3d 155, 164 (Tex.App.--Fort Worth 1999, pet.

refused). While we do not find the inference especially strong as evidence here that

appellant caused the injuries intentionally or knowingly, rather than recklessly or

negligently, we agree the jury rationally could have assigned some strength to it.


      We find further support for the jury’s verdict in the medical testimony. Although

the precise nature of the child’s brain injury is not well described in the record, the

medical testimony is to the effect that the subdural hematoma was the result of blunt

force trauma. The formerly active child was unconscious when paramedics arrived at

the home, and remained in a semi-conscious condition at the time of trial, no longer

responsive to his surroundings. Although the emergency room physician acknowledged

the possibility the child’s injury was incurred by contact with the floor as described by

appellant in his statements, if he were Atossed hard enough,@ the physician also testified

he had not seen a subdural hematoma resulting from “a play accident.” He elsewhere




                                            8
noted that the injury “would have taken considerable force” and that it carried a

significant risk for death.5


       The jury was free to believe that the child’s head injury occurred in the manner

appellant last described to police, that is, that appellant tossed the child underhanded

toward the sofa but the child landed on his head short of the sofa. The emergency

room physician gave opinion testimony concerning the likelihood of the child’s head

injury occurring in that manner. The physician testified:


       Q.     Person standing right in front of that picture playfully tosses a child
       towards the direction of the sofa, thinking he’s going to make the sofa, if . .
       . the child doesn’t make it, and lands on the floor, that’s going to cause a
       subdural hematoma?
       A.      That I would . . . not find credible.


       Q.      Why not?


       A.     If what you described was that was a toss would have been an arc,
       and if you throw the child straight up in the air and have him come down
       on his head, that might have imparted that much injury. But a gentle curve
       that would have put him sliding across the floor, less likely.
       Q.      Assuming the child landed on his head?


       A.      He’d have to land straight on the head and have a good arc.


       Q.     In other words, almost be in front of that sofa with his legs up; is
       that correct?
       A.      That would be . . . possible.




       5
           The record indicates appellant at the time was twenty-two years old, about six
feet tall, and weighed about 200 pounds.
                                                9
      There was evidence that the sofa was some eight feet from the spot from which

appellant said he tossed his son, and that the child weighed about twenty-six pounds.

From the testimony, the jury thus could have concluded that appellant tossed his son in

“a good arc” over that distance such that he landed “straight on the head.” We believe a

jury reasonably could infer that such an action by appellant was accompanied by an

awareness that it was reasonably certain to cause serious head injury.6 The evidence

supports a rational conclusion appellant acted “knowingly.”7


      Appellant’s second issue asserts the evidence supporting the jury’s finding he

intentionally or knowingly caused his son’s injury is factually insufficient. In Brooks v.

State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240 (Tex.Crim.App. Oct. 6,

2010), the Court of Criminal Appeals abandoned factual sufficiency analysis under

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and held that the only standard

to be applied when determining the sufficiency of evidence to support an element of a

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

      6
         Appellant’s former wife also agreed that appellant, as a parent and as she saw
him around the children, Awould know that throwing a child across the room like a fast
pitch softball would injure that child.@
      7
         Appellant=s son was born prematurely, and spent four months in the hospital at
birth. He underwent four surgeries. He was partially deaf and wore hearing aids.
Development of the child’s speech was delayed and he was learning to sign. The State
argues the jury could have inferred appellant caused his son’s injury intentionally or
knowingly from testimony appellant was “quick tempered,” was immature, was
frustrated by his son’s partial deafness and difficulty in communication, favored the
daughter over the son, left most child-rearing duties to his wife, and was required to
have the children home with him that day because the family awoke late and his wife
hurriedly took their only vehicle to work. Appellant was not employed at the time and the
water to their home was turned off because they could not pay the bill. We do not find it
necessary to evaluate the inferences the jury rationally could have drawn from such
evidence.

                                           10
established by Jackson v. Virginia.8 The previously-applied factual sufficiency standard

considers whether the evidence supporting guilt, though legally sufficient, is so weak

that the jury=s verdict seems clearly wrong and manifestly unjust, or evidence contrary to

the verdict is such that the jury=s verdict is against the great weight and preponderance

of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v.

State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate

question is whether, considering all the evidence in a neutral light, the jury was

rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283.

Even had we applied such a standard to review of the evidence, we could not sustain

appellant’s contention. From our review of the entire record, the finding of appellant’s

knowingly injurious conduct was neither clearly wrong and manifestly unjust nor against

the great weight and preponderance of the evidence.


      We overrule appellant’s issues one and two.


Issue Three - Jury Charge


      In his third issue, appellant contends the trial court erred when it denied his

request to include in the jury charge a voluntariness instruction pursuant to § 6.01(a) of

the Penal Code, which provides, Aa person commits an offense only if he voluntarily

engages in conduct, including an act, an omission, or possession.@ See Tex. Penal

Code Ann. ' 6.01(a) (Vernon 2003).


      A[A]n accused is entitled to an affirmative instruction on any defensive issue

raised by the evidence, whether that evidence is weak or strong, unimpeached or
      8
          443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
                                            11
contradicted, and regardless of what the trial court may . . . think about the credibility of

the defense.@ Valenzuela v. State, 943 S.W.2d 130, 131 (Tex.App.--Amarillo 1997, no

pet.) (citing Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996)). We review

alleged charge error by answering two questions: (1) whether error actually existed in

the charge; and (2) whether sufficient harm resulted from the error to result in reversal.

Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App. 2005); Hutch v. State, 922 S.W.2d

166, 170-71 (Tex.Crim.App.1996).


       We agree with the State that the evidence does not raise an issue of the

voluntariness of appellant’s conduct, as the concept of voluntariness has been applied

in caselaw.    The evidence appellant sees as raising the issue is contained in his

statements to police, where he told, among other versions, that his son’s injury occurred

when he tossed his son up into the air but failed to catch him, allowing his head to hit

the floor. Appellant argues the jury could have seen his failure to catch the child as an

involuntary act, likening his failure to catch him to the “physical reflex” referred to in

caselaw. See Rogers v. State, 105 S.W.3d 630, 638 (Tex.Crim.App. 2003) (noting

Avoluntariness@ refers to one’s own physical body movements; and AIf those physical

movements are the nonvolitional result of someone else’s act, are set in motion by

some independent non-human force, are caused by a physical reflex or convulsion, or

are the product of unconsciousness, hypnosis or other nonvolitional impetus, that

movement is not voluntary”).       We see nothing involuntary in the action appellant

described in his statement, that of tossing his son in the air. That he intended to catch

him but did not is simply another way of saying he did not intend the result of his

conduct. “Conduct [is not] rendered involuntary merely because an accused does not
                                             12
intend the result of his conduct.” Id., (quoting Adanandus v. State, 866 S.W.2d 210, 230

(Tex.Crim.App. 1993)). Appellant was not entitled to an instruction on voluntariness.

His third issue is overruled.


        Having overruled each of appellant=s three issues, we affirm the judgment of the

trial court.




                                                      James T. Campbell
                                                           Justice




Do not publish.




                                           13
