Affirmed and Opinion filed March 24, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00769-CR

                          SHAWN MAYREIS, Appellant
                                         V.
                         THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1340556


                                OPINION
      This is an appeal from a conviction for capital murder of a child under the
age of ten. Appellant challenges the sufficiency of the evidence supporting the
conviction, the trial court’s denial of appellant’s motion for mistrial, and the trial
court’s evidentiary rulings on autopsy photographs. We affirm.
                    I.     FACTUAL AND PROCEDURAL BACKGROUND

      The complainant A.M., born in January 2012, was the infant daughter of
appellant Shawn Mayreis. After her birth, A.M. left the hospital healthy, without
any abnormal medical problems. A.M. remained healthy and developed normally.
A.M.’s mother returned to work near the end of February 2012; appellant cared for
A.M. during the day. On March 8, at around 4:00 p.m., A.M.’s mother received a
phone call from appellant, who reported that A.M. was not breathing. The mother
instructed appellant to call 911. When the mother arrived home, appellant was on
the phone with the 911 operator and performing adult cardiopulmonary
resuscitation (CPR) on the child,1 who, according to the mother, looked blue. The
paramedics arrived around 4:50 p.m. and were able to achieve a pulse, although
A.M. was initially unresponsive.

      Medical personnel transported A.M. to Texas Children’s Hospital in the
Medical Center where she presented with small bruises on her face, abdomen, legs,
and the middle of her back. In addition, the child had several large skull fractures,
multiple fractures to her anterior and posterior ribs, and retinal hemorrhaging.
A.M. was unable to breathe without medical support and was unresponsive to her
physical exam. Her brain was dying and swollen. Three days later she was
pronounced dead.

      Appellant informed emergency responders and medical personnel that A.M.
was fine in the morning, but began having difficulty breathing in the early
afternoon. Medical personnel found appellant’s explanation of A.M.’s injuries
impossible and one of A.M.’s treating physicians found evidence that A.M. had
been in dire need of medical treatment for hours before appellant called emergency
services.

      Police arrested appellant and a grand jury indicted him for intentionally or
knowingly causing death to a child under ten years of age. Appellant pleaded “not

1
  Appellant was performing full-chest compressions on A.M. instead of performing the
compressions with two fingers.

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guilty.” At trial by jury, the child’s mother testified along with several medical
experts. The medical experts all testified that the extent and severity of A.M.’s
injuries showed that they were intentionally inflicted. The jury found appellant
guilty as charged and he was automatically sentenced to life in prison without the
possibility of parole.

                               II.   ISSUES AND ANALYSIS

      A. Sufficiency of the Evidence

      In his first and second issues, appellant challenges the legal sufficiency of
the evidence to support his conviction. Specifically, he challenges the sufficiency
of the evidence that he caused A.M.’s death as well as the sufficiency of the
evidence that he did so intentionally and knowingly.

      In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the
sole judge of the credibility of the witnesses and of the strength of the evidence.”
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
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the crime beyond a reasonable doubt, we must affirm.          McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).

      A person commits capital murder if the person intentionally or knowingly
causes the death of an individual under ten years of age. Tex. Penal Code Ann. §§
19.02(b)(1), 19.03(a)(8) (West, Westlaw through 2013 3d C.S.); Martin v. State,
246 S.W.3d 246, 261 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Direct
evidence of the elements of the offense, including the identity of the perpetrator
and culpable mental state, is not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex.
Crim. App. 2007); Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). The
jury is permitted to make reasonable inferences from the evidence presented at
trial, and circumstantial evidence is as probative as direct evidence in establishing
the guilt of the actor. Hooper, 214 S.W.3d at 14–15.

      Viewed in the light most favorable to the verdict, the evidence at trial
showed:

       A.M. had no abnormal medical problems prior to March 8.
       A.M.’s mother bathed A.M. in the evening on March 7 and did not notice
        any unusual bruises.
       A.M. was healthy when her mother left for work on the morning of
        March 8.
       A.M. was in the sole care of appellant on March 8 from the time the
        child’s mother left for work until emergency responders were called to
        the scene. Although appellant left the apartment for a short time in the
        morning, appellant was the only person taking care of A.M. that day.
       Around 4:00 p.m. appellant called the child’s mother and informed her
        A.M. was not breathing. At the mother’s direction, appellant called 911.
       The paramedics and emergency responders who answered appellant’s
        911 call noticed a striking difference between the mother’s response to
        A.M.’s condition and appellant’s response. While the mother was
        hysterical, appellant appeared calm and unemotional.

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 The paramedics noticed bruising around A.M.’s diaper line, above one
  eye, and on her stomach while they were transporting the infant to the
  hospital.
 A.M.’s autopsy revealed bruises, rib fractures, skull fractures, and
  extensive hemorrhaging. A.M. had bruises on her face, above her
  eyebrows, on her abdomen, on her legs, and in the middle of her back.
 A.M. had several large skull fractures, including a crack that went all the
  way across her skull. These injuries created hemorrhaging that caused
  A.M.’s brain to swell. The swelling caused A.M. to lose oxygen and
  blood to the brain, resulting in irreversible brain damage and death.
 A.M.’s injuries were caused by significant blunt force trauma. A.M.
  suffered at least two violent blows, one above her right eye and one
  behind her right ear. A.M.’s parietal bone bent to accommodate the
  blows until it broke. Her parietal bone failed in multiple directions.
 A.M.’s head injuries were the result of significant force. The amount of
  force necessary to cause A.M.’s injuries is consistent with dropping a
  baby down a flight of stairs or from a greater height than the average
  height of a human being. None of A.M.’s head injuries could have been
  caused by trying to get her to wake up or respond.
 A.M. suffered extensive retinal hemorrhaging. Her retinas had detached
  to the back of her left eye in three areas and there were multiple
  hemorrhages in her right retina.
 The bridge under A.M.’s tongue was torn off. A treating physician
  testified that the tear likely resulted from the forceful introduction of an
  object, such as a bottle, into A.M.’s mouth.
 A.M. had twenty-two rib fractures, including fractures to her anterior and
  posterior ribs. The injuries to A.M.’s anterior ribs could have been
  caused by improper CPR, but the injuries to her posterior ribs were not
  typical of improper CPR. A.M.’s posterior rib fractures were consistent
  with holding an infant forcefully around the ribs and shaking her or
  hitting her head against something.
 A.M. suffered shearing injuries, which were consistent with suffering a
  violent trauma that caused her arms to flail.
 The forensic anthropologist testified that, by virtue of the number of
  injuries, it was unlikely A.M.’s injuries were caused by accidental
  trauma.

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       A treating physician opined that A.M.’s injuries occurred at least an hour
        before medical treatment was sought. A.M. was pulseless and blue when
        paramedics arrived.       It would have taken hours for A.M. to
        “decompensate” to that state. Also, A.M.’s blood-coagulation status
        suggested her injuries occurred hours earlier.
       The treating physician testified that A.M.’s condition was “unmistakably
        due to trauma.” According to the physician, “the child’s body has been
        battered and broken, but no history of trauma of any sort [was]
        provided.” The physician testified that extreme violence was necessary
        to cause A.M.’s injuries and they were not all caused by one event.
        According to the physician, a person of reasonable intelligence familiar
        with children would know he was causing serious injuries to the baby
        that would cause the baby’s death. The physician testified that the
        injuries were intentional.

            1.     Evidence Appellant Caused A.M.’s Death

      Appellant argues that there is no evidence that he caused A.M.’s death. He
points to evidence that he was away from the apartment briefly in the morning and
argues that someone could have entered the apartment and harmed A.M. in his
absence. He also argues that the evidence is insufficient to show that he caused
A.M.’s death because nothing in his history, relationship with A.M., or response to
her death suggested he caused her death.

      While the evidence showed that appellant left the apartment for
approximately six minutes on the day of A.M.’s death, in the version of events he
told emergency responders, medical personnel, and his wife, A.M. was healthy
until much later into the day. All of the medical experts testified that A.M.’s
injuries were serious and would have been immediately apparent. Based on this
evidence, a reasonable jury could have concluded that if an individual had entered
the apartment during the short time appellant left A.M. alone and caused these
injuries to A.M., appellant would have noticed A.M.’s injuries and would not have
told his wife, emergency responders, and medical personnel that A.M. was fine

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until the afternoon. Furthermore, police responders searched the apartment and did
not see any evidence of a break-in. Viewed in the light most favorable to the
verdict, the evidence showed that an individual inflicted A.M.’s injuries while
A.M. was in appellant’s care. The child’s mother testified that appellant stated he
was the only one who cared for A.M. the day of the injuries. The evidence is
sufficient to prove that appellant injured A.M. and that those injuries caused her
death. See Herrera v. State, 367 S.W.3d 762, 770 (Tex. App.—Houston [14th
Dist.] 2012, no pet.); Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (holding that evidence was sufficient to support
conviction when adult had sole access to a child at the time the child’s injuries
were sustained).

             2.    Evidence Appellant Acted Intentionally or Knowingly

      Appellant argues that even if he caused the injuries that killed A.M., the
evidence is insufficient for a rational jury to have concluded he did so intentionally
or knowingly. A person acts intentionally 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) (West, Westlaw through 2013 3d C.S.); Herrera, 367 S.W.3d at
771. A person acts knowingly with respect to a result of his conduct when he is
aware his conduct is reasonably likely to cause the result. Tex. Penal Code Ann. §
6.03(b) (West, Westlaw through 2013 3d C.S.); Herrera, 367 S.W.3d at 770.
Proof of a culpable mental state may be inferred from any facts tending to prove its
existence, including the acts, words, and conduct of the accused. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002).

      The testifying medical experts all concluded that A.M.’s injuries were
intentionally inflicted. Appellant told emergency responders and medical personnel
that A.M. had trouble breathing, he attempted to get her to respond by hitting her

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head, and then performed CPR. But, A.M.’s severe injuries required more force
than appellant’s explanation allowed and many of her injuries were in locations
that were not explained by the history appellant provided. The medical examiner,
forensic anthropologist, and treating physician all found appellant’s explanation of
A.M.’s injuries impossible and testified that the injuries did not result from
accidently administering improper CPR or attempting to get A.M. to respond. See
Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (holding jury could infer intent from medical testimony that child’s injuries
were extensive, did not match appellant’s explanation, and must have been
sustained during an episode of abuse).

      The medical examiner testified that an accident was unlikely because of the
amount of force necessary to cause A.M.’s injuries. See Herrera, 367 S.W.3d at
770 (holding the severity of the injuries sustained by the infant constituted
evidence of the appellant’s intent). According to the medical examiner, the way
A.M.’s skull fractured in multiple directions showed the fractures resulted from at
least two blunt-trauma impacts from a significant force. The medical examiner
testified that the amount of force necessary to cause A.M.’s skull fractures was
inconsistent with the amount of force one would apply administering improper
CPR or attempting to get a baby to respond. The amount of force necessary to
cause A.M.’s skull fractures was more consistent with the impact of hitting a baby
violently or dropping a baby down a flight of stairs. The forensic anthropologist
testified that the sheer number of injuries A.M. sustained suggested the injuries
were intentionally inflicted. In addition to bruising, shearing injuries, and a torn
tongue, A.M. had twenty-two broken ribs. The medical experts testified that some
of A.M.’s anterior ribs may have broken during improperly-administered CPR, but
her posterior ribs would not have broken that way.


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      The medical examiner testified that after the injuries occurred it would have
been immediately apparent that A.M. needed medical care. Yet, according to a
treating physician, A.M. was injured for hours before appellant sought help. Based
on this testimony, the jury could have concluded that appellant’s delay in seeking
medical care constituted evidence that he knowingly or intentionally caused
A.M.’s death. A rational jury could have concluded from the number and nature of
the injuries A.M. suffered that the child’s injuries were not the result of an accident
and appellant’s implausible explanation for the injuries is circumstantial evidence
that he inflicted the injuries with the intent or knowledge that they would cause
A.M.’s death. See Bearnth, 361 S.W.3d at 140 (holding that appellant’s inaccurate
explanation of injuries was circumstantial evidence of guilt). Based on testimony
from the medical examiner, anthropologist, and treating physician that A.M.’s
injuries resulted from violent and intentional action, the jury could have concluded
that A.M. could not have suffered those injuries unless appellant inflicted them
knowingly or intentionally.

      The evidence is sufficient for the jury to have come to the rational
conclusion that appellant intentionally or knowingly caused A.M.’s death. See
Herrera, 367 S.W.3d at 770. Appellant’s first and second issues are overruled.
See id.

      B. Testimony Regarding Appellant’s Post-Arrest Silence

      In appellant’s third issue, he asserts that the trial court abused its discretion
in overruling his motion for mistrial after the State elicited a comment about
appellant’s post-arrest silence.

      We review a trial court’s denial of a motion for mistrial under the abuse-of-
discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). Under this standard, we view the evidence in the light most favorable to the
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trial court’s ruling and uphold the ruling if it falls within the zone of reasonable
disagreement. Id. A mistrial is a remedy intended for extreme circumstances,
when prejudice is incurable and less drastic alternatives have been explored. See
id. In determining whether a prejudicial event was so harmful as to warrant a
mistrial, we consider the prejudicial effect, any curative measures taken, and the
certainty of conviction absent the prejudicial event. See Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004).           Generally, a prompt instruction to
disregard by the trial court will cure the error associated with improper and
prejudicial evidence, unless it appears the evidence was so clearly calculated to
inflame the minds of the jury or is of such a damning character as to suggest it
would be impossible to remove the harmful impression from the jurors’s minds.
See Logan v. State, 698 S.W.2d 680, 683–84 (Tex. Crim. App. 1985).

      The prosecutor asked an investigator if appellant made a statement after he
was arrested and the officer testified that appellant did not. The question and
answer were brief and the trial was immediately halted after the question was
answered. See Ludwig v. State, 428 S.W.3d 344, 350–51 (Tex. App.—Amarillo
2014, no pet.) (holding that instruction to disregard cured prejudice when trial
court immediately halted trial and issued thorough instruction to disregard). There
was no other mention by the State or any of the State’s witnesses of appellant’s
post-arrest silence.   Moreover, the evidence showed that appellant did give
statements to the police, emergency responders, and medical personnel at multiple
times throughout their response and investigation.        The trial court adopted a
curative measure and instructed the jury to disregard the testimony. Finally, the
investigator’s answer likely had little, if any, effect on the jury given the weight of
the evidence of appellant’s guilt. Appellant made several statements indicating
that A.M. was in his sole care when her injuries occurred. Evidence of the nature


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and severity of A.M.’s injuries showed that the injuries were intentionally inflicted.
The sole remark on appellant’s silence was not so severe as to render the timely
curative instruction ineffective. See Archie, 221 S.W.3d at 700. We conclude that
the trial court did not abuse its discretion in denying appellant’s motion for
mistrial. See id. Appellant’s third issue is overruled.

      C. Autopsy Photographs

      In his fourth issue, appellant argues that the trial court abused its discretion
in admitting, over appellant’s objection, approximately twenty photographs from
the autopsy on A.M.’s body. Appellant argues that the probative value of these
photographs was substantially outweighed by the danger of unfair prejudice. In
particular, appellant argues that because drawings and figures from the autopsy
report had been admitted into evidence, the photographs were unnecessary to
display A.M.’s injuries.

      We review a trial court’s ruling on the admissibility of evidence under an
abuse-of-discretion standard. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.
App. 2010).     Texas Rule of Evidence 403, entitled “Exclusion of Relevant
Evidence on Special Grounds,” states:

      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue
      delay, or needless presentation of cumulative evidence.
Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial.
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g).
A proper Rule 403 analysis by either the trial court or a reviewing court includes,
but is not limited to, the following factors: (1) the probative value of the evidence;
(2) the potential to impress the jury in some irrational, yet indelible, way; (3) the

                                          11
time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In the
context of the admission of photographs, we also consider the number of
photographs, their size, whether they are in color or are black and white, whether
they are gruesome, whether any bodies are clothed or naked, and, when applicable,
whether the body has been altered by autopsy. Id.

      During the medical examiner’s testimony, the State introduced Exhibits 21
through 31 and 33 through 39. These exhibits are color photos from the autopsy
depicting A.M.’s body as it appeared before the autopsy was conducted, the
bruises, including several photographs of the bruises on the scalp, and photographs
of several angles of the fractured skull.      The medical examiner used these
photographs to show the jury the extent and severity of A.M.’s injuries. Harris v.
State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983) (holding autopsy photographs
were admissible where pictorial evidence helped jury understand verbal
testimony).

      The medical examiner explained that a significant amount of force was
necessary to cause the skull fractures. She testified that the force was greater than
would be associated with the explanation appellant provided. Particularly in light
of appellant’s arguments that A.M.’s injuries occurred as a result of his utilization
of improper CPR technique, the photographs had significant probative value to
prove to the jury that A.M.’s injuries did not result from improper CPR or
attempting to get A.M. to respond. The images depicting the photographs of the
dead infant’s body are gruesome, and the medical examiner used the images
throughout her lengthy testimony.       These facts weigh against admitting the
photographs, but the trial court does not abuse its discretion by admitting
photographs of the victim into evidence merely because they are gruesome.

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Sonnier v. State, 913 S.W.2d 511, 518–19 (Tex. Crim. App. 1995). Appellant
argued that he accidentally injured A.M. by improperly administering CPR, and
the State was required to prove, beyond a reasonable doubt, that A.M.’s injuries
were caused intentionally or knowingly. See Richards v. State, 54 S.W.3d 348,
350 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The State’s evidence that
the injuries were not caused by improper CPR or attempting to get A.M. to respond
was that A.M.’s injuries were inconsistent with these proffered explanations. The
State had to provide the jury with evidence of the injuries A.M.’s suffered. See
Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007) (holding that
gruesome photographs were probative to show the full extent of the injuries
appellant inflicted on the victim).      The autopsy photographs were probative
evidence of A.M.’s injuries. Appellant argues that the State could have presented
sketches of A.M.’s injuries to make these points to the jury.

      The trial court did not abuse its discretion in allowing the State to show the
specifics of the injuries to the jury to prove that A.M.’s injuries did not result from
improper CPR. While drawings could show the places of injuries, they could not
show the jury the severity of the injuries or the extent of the injuries. See Herrera,
367 S.W.3d at 777 (holding that probative value of gruesome autopsy photographs
was not substantially outweighed by prejudice where photos showed baby likely
did not die from shaking). Having examined each contested photograph in the
context of the entire record and the applicable standard of review, we hold that the
trial court did not abuse its discretion by concluding that the probative value of the
photographs was not substantially outweighed by the potential for unfair prejudice
and admitting them into evidence. See id. We overrule appellant’s fourth issue.




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                                    III.         CONCLUSION

      The evidence is sufficient to support appellant’s conviction for capital
murder of a child under the age of ten. The trial court did not abuse its discretion
in denying appellant’s motion for mistrial after the State elicited improper
testimony relating to appellant’s post-arrest silence, nor did the trial court abuse its
discretion in admitting autopsy photographs into evidence.

      The judgment of the trial court is affirmed.




                                           /s/     Kem Thompson Frost
                                                   Chief Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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