Opinion filed February 27, 2014




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-12-00052-CR
                                      __________

                  IAN DANIEL MATHISON, Appellants
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 14636

                     MEMORANDUM OPINION
      The jury convicted Ian Daniel Mathison of the offense of intentionally or
knowingly causing serious bodily injury to a child, G.H. (Count One), and of the
offense of intentionally or knowingly causing bodily injury to a child, C.H. (Count
Two). The jury assessed punishment at confinement for twenty-two and one-half
years for Count One and ten years for Count Two, and it assessed a fine of $10,000
in each count. The trial court sentenced him accordingly and ordered the sentences
to run concurrently. In his sole point of error on appeal, Appellant challenges the
sufficiency of the evidence to support his conviction on Count One. We affirm.
                                   Background
      Gene Dunlap and her two sons, C.H. and G.H., lived with Appellant in
Mineral Wells. C.H. was four years old, and G.H. was three years old. Dunlap left
the boys at home with Appellant while she worked nights. When she returned
home from work one morning, G.H. was lying on her bed, had a busted lip, and
could not move his arm. Dunlap took G.H. to Weatherford Regional Medical
Center while Appellant stayed with C.H.
      The attending physician in the emergency room, Gerald Phillip Douglas,
described G.H. as “bruised and battered all over” and said that he had not “seen
anybody hurt this bad in a long time.” His “initial impression was that somebody
had used this child’s face and head as a punching bag.” Due to the nature of the
injuries, a nurse reported abuse to the Mineral Wells Police Department. G.H. had
a fractured humerus, so Dr. Douglas ordered a splint to stabilize the arm and
transferred G.H. to Cook Children’s Medical Center in Fort Worth.
      When the attending physician, Daniel David Guzman, saw the significance
of G.H.’s injuries, he called a “trauma alert.”        During such an alert, an
anesthesiologist, a trauma surgeon, a radiologist, and laboratory services personnel
respond immediately. G.H. had a broken jaw, a spiral fracture in his left upper
arm, three broken fingers, and bruises from head to toe. G.H.’s eyes were swollen
shut, and he had lacerations and bruising on his face and on the side of his head.
Dr. Guzman was concerned about the bruises in G.H.’s lower pelvic area and
abdomen because blunt force trauma there could have injured his spleen, liver,
pancreas, or bowel and could cause him to “bleed out.” After running tests,
however, Dr. Guzman determined that there were no internal injuries in the
abdominal cavity. The CT scan showed a nasal bone fracture, but G.H. did not

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have intracranial bleeding or other head injuries. Doctors also determined that, due
to a lack of swelling, the broken jaw was an old injury.
      Dunlap told the doctors what Appellant had told her. According to Appel-
lant, G.H. got out of bed to use the restroom, and when he saw a spider, he
“freaked out.” Appellant claimed that G.H. tripped over his blanket and landed
with his arm “pinned up behind him.” Dunlap initially blamed the various injuries
on a fall that occurred while wrestling with C.H.          Once they were at Cook
Children’s, however, Dunlap told the doctors that C.H. caused the bruises to one of
G.H.’s eyes when C.H. stomped on G.H.’s face, and she also told doctors that G.H.
hurt his chin and his lip when he fell on the sidewalk a few days before.
      Detective Darby Thomas spoke with the treating physician in Weatherford,
who told him that Dunlap’s story appeared to be inconsistent with G.H.’s injuries
because it was not plausible that the injuries were caused by a four-year-old.
Detective Thomas went to Cook Children’s to continue his investigation. The
treating physician there, Dr. Guzman, believed that it was “non-accidental trauma,”
so he consulted with Dr. Jayme Coffman, who is a child abuse pediatrician and the
medical director of the child abuse program at Cook Children’s. Dr. Coffman
believed that G.H.’s injuries were the result of abuse because “[t]he information
the mom gave was not consistent at all with the injuries” she observed.
Dr. Coffman described “horrible, horrible bruising and swelling to [G.H.’s] face”
and a “horribly torn” frenulum, which is a piece of skin that connects the lip to the
gums. Dr. Coffman said that, when she lifted G.H.’s lip, it looked like “hamburger
meat” because there were “a lot of abrasions or lacerations inside his lip.”
Dr. Coffman explained that such injuries were the result of a blunt impact to the
mouth and that the injuries were fresh because there was no evidence of healing.
      Cook Children’s personnel reported G.H.’s injuries to Child Protective
Services. When Appellant heard that CPS was coming to his house to investigate,

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he called and asked his friend Darryl Flint, who had been over playing video
games the previous night, to come over and help clean the house. When he saw
C.H., Flint noticed that he had two black eyes. Appellant said that C.H. ran into a
doorknob. When Elizabeth Clement, the CPS investigator arrived and saw C.H.’s
injuries, she obtained approval from her supervisor to take C.H. from the home and
take him to Cook Children’s. Clement testified that she had been an investigator
with CPS for four years and that she had never done that before. CPS officials
decided to begin removal proceedings. G.H. was hospitalized for three days, and
both boys were placed with temporary foster parents and eventually were placed
with Dunlap’s brother and his wife.
      Officers asked Appellant to come to the police station for questioning.
Appellant’s version of events contradicted the stories that police had already heard.
As a result of that interview, Appellant was placed under arrest and searched prior
to being booked into jail. The officer who searched Appellant noticed blood on
Appellant’s sock and seized the sock for testing. Officers executed a search
warrant and took several items from the home, including a swab from a stain on
G.H.’s mattress, a board that officers found in the trash, and a swab from blood
that they found on the hallway floor. Lab results confirmed that the DNA profiles
on each of these items, including Appellant’s sock, matched G.H.’s DNA profile.
      Once G.H. was discharged from the hospital, both boys were interviewed by
Joy Hallum, a child forensic interviewer. Hallum endeavors to conduct neutral,
non-biased, and non-leading interviews of children who may have suffered abuse.
One of the ways that Hallum determines whether the child is telling a story from
his own recollection or someone else’s recollection is whether the child can
describe sensory details such as what the child saw or heard, who was present, or
how the child felt. C.H. told Hallum that Appellant spanked him with a board and
a belt and that Appellant choked him with his hands and with a belt.            C.H.

                                         4
demonstrated how Appellant choked him. C.H. also said that he was “stomped
on.” C.H. said that G.H. hurt his arm while playing outside and that he had heard
G.H. cry when Appellant punched G.H. in the face. G.H. was more timid, but
Hallum said this was common for younger children. G.H. originally told Hallum
that he hurt his arm while playing outside, but he eventually admitted that it
happened when Appellant spanked him.
      Dunlap was arrested and charged with injuring a child by omission for
leaving the children with Appellant and knowing they were in danger of being
injured, to which she pleaded guilty. Appellant was arrested and charged with two
counts of causing serious bodily injury to a child. At Appellant’s trial, the doctors
could not testify that C.H.’s injuries constituted serious bodily injury, and the jury
was asked to determine whether Appellant committed the lesser included offense
of causing bodily injury to C.H.
                                        Issue
      Appellant challenges the sufficiency of the evidence on two grounds. First,
he contends that the evidence is insufficient to show that “Appellant was the
person who broke the arm of G.H.” Next, Appellant argues that the evidence is
insufficient to show that G.H. suffered serious bodily injury from the spiral
fracture in his arm. Although Appellant states that the evidence is insufficient to
show that “any of the injuries alleged as to either child amounted to serious bodily
injury,” we note that Appellant was convicted of causing only bodily injury to C.H.
and that Appellant does not challenge the sufficiency of the evidence to support
that conviction.
      When reviewing the sufficiency of the evidence, we consider the evidence in
the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d

                                          5
893, 912 (Tex. Crim. App. 2010). The jury is the sole judge of the credibility of
the witnesses and is free to accept or reject any or all of a witness’s testimony.
Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). We defer to the
factfinder to resolve conflicting evidence, to weigh the evidence, and to draw
reasonable inferences. See Jackson, 443 U.S. at 319.
                                      Identity
      Appellant first contends that “none of the witnesses could testify that
Appellant caused the injury to G.H.’s arm” and that “no witness could testify as to
how G.H. received the injury.”
      A person commits the offense of injury to a child, as it is relevant to this
appeal, if he intentionally or knowingly causes serious bodily injury to a child. See
TEX. PENAL CODE ANN. § 22.04(a)(1) (West Supp. 2013). The State must prove
beyond a reasonable doubt that the accused is the person who committed the
charged offense. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984).
Identity may be proven “by either direct or circumstantial evidence, coupled with
all reasonable inferences from that evidence.” Gardner v. State, 306 S.W.3d 274,
285 (Tex. Crim. App. 2009).
      Dunlap testified that G.H.’s injuries were not there when she left for work
the night before. Dunlap admitted that she knew Appellant was being “excessively
rough” with the boys and that they were in danger of being injured by Appellant.
Flint had witnessed Appellant shove and slap the boys as punishment and was at
Appellant’s house the night before G.H. was taken to the emergency room. Flint
testified that when he saw C.H. the following day with two black eyes, marks, and
bruises, he remembered wondering why Appellant was “doing this to these kids.”
Flint also told the jury that he had observed Appellant inflict “inappropriate”
punishment on G.H. and C.H. by spanking them with a little 2x4 miniature
baseball bat and that he thought Appellant had caused the boys’ injuries.

                                         6
         In addition to showing that Appellant was the only adult in the home when
G.H.’s arm was broken and that Appellant had inappropriately punished the boys
in the past, the record reveals that the witnesses believed that Appellant’s
explanation of what happened was unlikely. Appellant said that G.H. slipped on a
blanket and fell. Dr. Guzman diagnosed the injury as “non-accidental trauma.”
Likewise, Dr. Coffman testified that the injury was not consistent with an accident.
She told the jury that G.H. “was covered in marks and bruises” and that “every part
of his body had some sort of abrasion or bruise on it.” Dr. Coffman said, “That
doesn’t happen from children playing rough. It doesn’t happen from children
fighting that are that young. It doesn’t happen from falls. It doesn’t happen from
any of those things to have those numerous types of injuries.” After seeing G.H.’s
injuries, Detective Thomas said that his suspicion level was very high that a crime
had been committed because the injuries did not “match up” with Appellant’s
story.    After Dunlap learned that a spiral fracture is caused by twisting and
applying torque to the arm, Appellant’s explanation did not make sense to Dunlap,
and she believed that Appellant “did it.”
         The jury can consider whether an explanation is plausible when determining
whether the defendant caused the child’s injuries. Tezino v. State, 765 S.W.2d 482,
485 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (considering the
implausibility that a four-month-old baby sat upright and fell into the dashboard, as
urged by the defendant, when determining who caused the injuries). Considering
the evidence in the light most favorable to the verdict, we conclude that a
reasonable jury could have determined that Appellant caused the spiral fracture to
G.H.’s arm. See Brooks, 323 S.W.3d at 912.
                                Serious Bodily Injury
         Appellant also complains that the evidence is insufficient to prove the
element of serious bodily injury because G.H.’s broken arm “was the only injury

                                            7
that the evidence showed might have possibly have been a serious bodily injury
and the testimony of the physicians was inconsistent on that issue.” Appellant
argues that Dr. Guzman “would not say that G.H.’s injuries represented a
substantial risk of death” whereas “Dr. Coffman testified that the only injury that
she believe[d] qualified as serious bodily injury [was] G.H.’s fractured arm.” The
fact that the doctors’ testimony may have conflicted does not render the evidence
insufficient. It is not our role to resolve conflicts in the evidence, and we defer to
the factfinder by considering the evidence in the light most favorable to the verdict.
See Jackson, 443 U.S. at 319.
      The indictment alleged that Appellant caused serious bodily injury to G.H.
in one of six ways, including “by twisting the arm of the said G.H. so as to cause a
fracture.” To show serious bodily injury in this case, the State had to prove beyond
a reasonable doubt that G.H. suffered a protracted loss of the function of his arm or
a protracted impairment of the function of his arm. See TEX. PENAL CODE ANN.
§ 1.07(a)(46) (West Supp. 2013).          Neither protracted loss nor protracted
impairment has been defined by the legislature, so we must apply its common
meaning. One dictionary defines “protract” as to delay, defer, extend, or continue
or to prolong in time or space. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
1000 (11th ed. 2004).
      There is no bright-line rule for determining whether an injury constitutes a
protracted loss, but there must be evidence that the victim lost use of the limb or
that the victim’s function was impaired, as well as evidence of how long the use
was lost or impaired. See Black v. State, 637 S.W.2d 923, 926 (Tex. Crim. App.
[Panel Op.] 1982). In Black, there was evidence that the victim was shot in the leg,
that he spent three days in the hospital recovering from surgery, and that “the leg
took two to three months to heal,” but the court held that the evidence was
insufficient to prove serious bodily injury because there was no evidence that the

                                          8
victim “had any loss of use of the limb.” Id. The court noted that the State failed
to offer hospital records or call any of the treating medical personnel and reasoned
that “there is no evidence to indicate [the victim] was unable to walk after leaving
the hospital or that he had suffered permanent damage to his thigh.” Id. And, in
Villarreal v. State, although there was evidence that the victim was not able to
raise his arms or lift anything for ten days due to two fractured ribs, the court
concluded that ten days did not constitute a protracted loss or impairment. 716
S.W.2d 651, 652 (Tex. App.—Corpus Christi 1986, no pet.).
      Here, however, there is evidence that G.H.’s arm was immobilized for more
than two months. Dr. Douglas testified that G.H. suffered “a spiral fracture of the
midshaft of the humerus.”        A humerus fracture is immobilized to prevent
movement; if not immobilized, the bone takes longer to heal and may not heal
straight. Dr. Coffman agreed and explained that not immobilizing the limb “could
cause shortening in the arm or other problems.” To keep G.H.’s arm immobilized,
it was splinted and placed in a sling. G.H.’s orthopedic doctor restricted G.H.’s
activities and the use of his arm for “eight to nine weeks.”
      When the evidence is viewed in the light most favorable to the verdict, a
rational trier of fact could have found beyond a reasonable doubt that G.H.’s injury
resulted in a protracted loss or impairment because the record shows that G.H.’s
arm was immobilized for more than two months as a result of the injuries caused
by Appellant. See Williams v. State, 575 S.W.2d 30, 33 (Tex. Crim. App. [Panel
Op.] 1979) (holding “that the injury which caused [the victim] to lose lifting power
in his arm for three months” constituted a protracted impairment of the function of
a bodily member, so that “the wound would be classified as serious bodily injury”).




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                                       Conclusion
      Having concluded that a rational trier of fact could have found beyond a
reasonable doubt that Appellant caused G.H.’s spiral fracture and that the injury
constituted serious bodily injury, Appellant’s sole point of error on appeal is
overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 27, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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