                                                                               PD-0966-15
                          PD-0966-15                          COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 7/27/2015 12:00:00 AM
                                                               Accepted 7/28/2015 2:28:38 PM
                                                                               ABEL ACOSTA
            COURT OF CRIMINAL APPEALS                                                  CLERK



                            PD-____-15

                  Jonathan Baker, Appellant,
                               v.
                   State of Texas, Appellee.

            On Discretionary Review from No. 12-14-00185-CR
                        Twelfth Court of Appeals

             On Appeal from the 283rd Judicial District Court
                          Dallas County, Texas
                        Cause Number F13-00422



              Petition for Discretionary Review

Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com                               July 28, 2015
Texas Bar No. 24048680
Attorney for Appellant




                   Oral Argument Requested

                                    1
I. Identity of Parties, Counsel, and Judges

Jonathan Baker, Appellant

Michael Mowla, attorney for Appellant on appeal and on discretionary review

Julie Doucet, Attorney for Appellant at Trial

Stephen Duplantis, Attorney for Appellant at Trial

State of Texas, Appellee

Susan Hawk, Dallas County District Attorney, Attorney for Appellee

Lori Ordiway, Dallas County Assistant District Attorney, Attorney for Appellee

Lisa Smith, Dallas County Assistant District Attorney, Attorney for Appellee

Anna Kubalak, Dallas County Assistant District Attorney, Attorney for Appellee

Reynie Tinajero, Dallas County Assistant District Attorney, Attorney for State of
Texas

Shawnkeedra Houston-Martin, Dallas County Assistant District Attorney, Attorney
for State of Texas

Hon. Rick Magnis, Presiding Judge of the 283rd Judicial District Court




                                         2
II. Table of Contents

I.         Identity of Parties, Counsel, and Judges ..........................................................2 
II.        Table of Contents .............................................................................................3 
III.       Table of Authorities .........................................................................................5 
IV.        Appendix Index ...............................................................................................8 
V.         Statement Regarding Oral Argument ..............................................................9 
VI.        Statement of the Case and Procedural History ..............................................10 
VII.  Grounds for Review.......................................................................................13 
VIII.  Argument .......................................................................................................14 
       1.  Ground for Review One: The court of appeals erred when it
           found that the evidence is legally sufficient to show that
           Appellant intentionally or knowingly caused the death of the
           CW because although prior to being taken to the hospital by
           Appellant the CW was last in the care of Appellant, the State
           failed to prove the manner and means by which the injury
           occurred. A fatal closed-head injury to a child while under the
           care of a defendant is not all that the State should have to prove
           beyond a reasonable doubt to show that the CW’s death was
           caused by the defendant’s conduct if the manner and means by
           which the injury occurred is not proved. .......................................................14 
           i.       Introduction .........................................................................................14 
           ii.      There are many examples of where a young child has
                    been killed or injured while believed to be in the custody
                    of a sole adult caretaker, and the manner and means may
                    not be clear. .........................................................................................16 
           iii.     Why is the State not required to prove beyond a
                    reasonable doubt what happened and how the force was
                    used? ....................................................................................................18 
           iv.      The State cannot meet the requirements of Texas Penal
                    Code § 6.02(a) if the State fails to identify the conduct
                    alleged to have caused the injury or death ..........................................22 
IX.        Conclusion and Prayer ...................................................................................30 
X.         Certificate of Service .....................................................................................31 

                                                               3
XI.    Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................32 




                                              4
III. Table of Authorities

Cases 
Allen v. State, 249 S.W.2d 680 (Tex. App. Austin 2008, no pet.) ...........................21
Baker v. State, 12-14-00185-CR, 2015 Tex. App. LEXIS 6642 (Tex.
      App. Tyler, June 30, 2015) (memorandum opinion) .............................. 10, 12
Bearnth v. State, 361 S.W.3d 135 (Tex. App. Houston [1st Dist.]
     2011, pet. ref.) ................................................................................................16
Castro v. State, 2015 Tex. App. LEXIS 2399, 03-12-00730-CR (Tex.
      App. Austin Mar. 13, 2015, pet. filed) (not designated for
      publication) ....................................................................................................18
Crisp v. State, No. 04-09-00580-CR (Tex. App. San Antonio Mar. 16,
      2011, pet. ref.) (not designated for publication) ............................................18
Duren v. State, 87 S.W.3d 719 (Tex. App. Texarkana 2002, pet.
     struck) ............................................................................................................17
Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) ..............................17
Garcia v. State, 16 S.W.3d 401 (Tex. App. El Paso 2000, pet. ref.) .......................17
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991)........................................19
Goka v. State, 657 S.W.2d 20 (Tex. App. Houston [1st Dist.] 1983,
     pet. ref.) ..........................................................................................................28
Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) ...........................21
Hasel v. State, 12-14-00101-CR, 2015 Tex. App. LEXIS 6091 (Tex.
      App. Tyler June 17, 2015, no pet. hist.) (memorandum opinion)
      (not designated for publication).....................................................................22
Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) ................................17
Herrera v. State, 367 S.W.3d 762 (Tex. App. Houston [14th Dist.]
     2012, no pet.) .................................................................................................16
Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002).......................................29
Jackson v. Virginia, 443 U.S. 307 (1979) ......................................................... 20, 22
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) ....................................28
Johnson v. State, 673 S.W.2d 190 (Tex. Crim. App. 1984) ....................................19
Lee v. State, 214 S.W.2d 619 (Tex. Crim. App. 1948) ..........................................21


                                                             5
Lewis v. State, No. 05-12-00844-CR (Tex. App. Dallas Jan. 6, 2014,
      pet. ref.) (memorandum opinion) (not designated for
      publication) ....................................................................................................18
Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2013) .........................................21
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ......................................21
Martin v. State, 246 S.W.3d 246 (Tex. App. Houston [14th Dist.]
      2007, no pet.) .................................................................................................15
Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015)........................................19
Montgomery v. State, 198 S.W.3d 67 (Tex. App. Fort Worth 2006,
     pet. ref.) ..........................................................................................................23
Munoz v. State, 2009 Tex. App. LEXIS 6475, 08-07-00325-CR (Tex.
     App. El Paso 2009, no pet.) (not designated for publication) .......................16
Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .....................................29
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ......................................16
Roberson v. State, 2015 Tex. App. LEXIS 4735, 05-13-01416-CR
     (Tex. App. Dallas May 8, 2015, no pet.) (memorandum
     opinion, not designated for publication) ........................................................18
Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008) .....................................22
Stobaugh v. State, 421 S.W.3d 787 (Tex. App. Fort Worth 2014, pet.
      ref.) .................................................................................................................24
Urbano v. State, 837 S.W.2d 114 (Tex. Crim. App. 1992) .....................................29
Williams v. State, 294 S.W.3d 674 (Tex. App. Houston [1st Dist.]
      2009, pet. ref.) ................................................................................................17
Williamson v. State, 244 S.W.2d 202 (Tex. Crim. App. 1951) ..............................21
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) .....................................29
Statutes 
Tex. Pen. Code § 19.02 (2011) ................................................................................11
Tex. Pen. Code § 19.03 (2011) ................................................................................11
Tex. Pen. Code § 6.02 (2011) ..................................................................................22
Rules 
Tex. Rule App. Proc. 66.3 (2015) ............................................................................30
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................31
                                                              6
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 9, 13
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................31
Tex. Rule App. Proc. 9.5 (2015) ..............................................................................31




                                                       7
IV. Appendix Index

Baker v. State, 12-14-00185-CR, 2015 Tex. App. LEXIS 6642 (Tex. App. Tyler,
June 30, 2015) (memorandum opinion)




                                     8
V. Statement Regarding Oral Argument

      Should this Court grant this petition, Appellant requests oral argument. See

Tex. Rule App. Proc. 68.4(c) (2015). Appellant believes that the facts and legal

arguments are adequately presented in this petition. However, the issue presented

in this case represents a recurring pattern that characterizes prosecutions in which a

young child is killed or injured while believed to be in the custody of a sole adult

caretaker. Therefore, should this Court determine that its decisional process will be

significantly aided by oral argument, Appellant will be honored to present oral

argument.




                                          9
To The Honorable Judges of the Court of Criminal Appeals:

      Appellant Jonathan Baker respectfully submits this petition for discretionary

review:


VI. Statement of the Case and Procedural History

      This petition requests that this Court review the Memorandum Opinion and

judgment of the Twelfth Court of Appeals in Baker v. State, 12-14-00185-CR,

2015 Tex. App. LEXIS 6642 (Tex. App. Tyler, June 30, 2015) (memorandum

opinion), in which the court of appeals affirmed Appellant’s conviction for Capital

Murder. In this petition, Appellant will argue that the court of appeals erred when

it found that the evidence is legally sufficient to show that Appellant intentionally

or knowingly caused the death of the CW because although prior to being taken to

the hospital by Appellant the CW was last in the care of Appellant, the State failed

to prove the manner and means by which the injury occurred. Appellant will

further argue that a fatal closed-head injury to a child while under the care of a

defendant is not all that the State should have to prove beyond a reasonable doubt

to show that the CW’s death was caused by the defendant’s conduct if the manner

and means by which the injury occurred is not proved.

      This petition arises out of an appeal of a Judgment of Conviction by Jury

entered and sentence imposed by the 283rd Judicial District Court of Dallas



                                         10
County, Texas. (CR, 48-50).1 In an indictment dated July 19, 2013, the State

alleged that Appellant committed Capital Murder under Texas Penal Code §

19.03(a)(8) as follows: on or about December 8, 2011, in Dallas County, Texas,

Appellant intentionally and knowingly [under Tex. Pen. Code § 19.02(b)(1)]

caused the death of Joniah Baker (complaining witness, or “CW”), a person under

ten years of age, by striking the CW with Appellant’s hand, a deadly weapon, and

by striking the CW with and against an unknown object, a deadly weapon, the

exact nature and description of which is unknown and unknowable to the grand

jury. (CR, 8); See Tex. Pen. Code § 19.03(a)(8) (2011); See also Tex. Pen. Code §

19.02(b)(1) (2011). The indictment further alleged that prior to the commission of

this offense, on February 14, 2006, Appellant was finally convicted of the felony

offense of Escape in Criminal District Court Number 4, in cause number F04-

21566. (CR, 8).

       Appellant pleaded “not guilty,” and a trial was had before a jury. (RR3, 13-

14).

       On June 3, 2014, Appellant was convicted of Capital Murder under Texas

Penal Code § 19.03(a)(8). (RR7, 69). On the same day, Appellant was sentenced

to life in the Texas Department of Criminal Justice without the possibility of
1
 The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s
Record, which is seven volumes. The Clerk’s Record is cited as “CR” and followed by the page
number, and the Reporter’s Record is cited as “RR” followed by the volume number and page
number.


                                             11
parole. (RR7, 70; CR, 48-50). Appellant was not fined, and was ordered to pay

costs of court of $264.00. (CR, 48).

      Appellant appealed the judgment of conviction and sentence to the Twelfth

Court of Appeals. On June 30, 2015, the Court of Appeals affirmed the judgment

of conviction and sentence. See Baker v. State, 12-14-00185-CR, 2015 Tex. App.

LEXIS 6642 (Tex. App. Tyler, June 30, 2015) (memorandum opinion). This

petition for discretionary review follows.




                                         12
VII. Grounds for Review

Ground for Review One: The court of appeals erred when it found that the
evidence is legally sufficient to show that Appellant intentionally or knowingly
caused the death of the CW because although prior to being taken to the hospital
by Appellant the CW was last in the care of Appellant, the State failed to prove the
manner and means by which the injury occurred. A fatal closed-head injury to a
child while under the care of a defendant is not all that the State should have to
prove beyond a reasonable doubt to show that the CW’s death was caused by the
defendant’s conduct if the manner and means by which the injury occurred is not
proved.

      Because the ground for review involves a matter of legal sufficiency, the

entire record on appeal must be reviewed. Appellant provides a full summary of

the facts over a span of 20 pages in the Appellant’s Brief (see pages 14-34), and

respectfully directs this Court’s attention to those facts. See Tex. Rule App. Proc.

68.4(f) (2015).




                                        13
VIII. Argument

   1. Ground for Review One: The court of appeals erred when it found that
      the evidence is legally sufficient to show that Appellant intentionally or
      knowingly caused the death of the CW because although prior to being
      taken to the hospital by Appellant the CW was last in the care of
      Appellant, the State failed to prove the manner and means by which the
      injury occurred. A fatal closed-head injury to a child while under the
      care of a defendant is not all that the State should have to prove beyond
      a reasonable doubt to show that the CW’s death was caused by the
      defendant’s conduct if the manner and means by which the injury
      occurred is not proved.

           i. Introduction
      This case presents a recurring pattern that characterizes prosecutions where a

young child has been killed or injured while believed to be in the custody of a sole

adult caretaker. This pattern consists of the following:

      (1) the child suffers injuries that are deemed to unlikely have been self-

inflicted or the result of an accident;

      (2) the approximate time and location where the injuries occurred is alleged

through expert testimony, with a short “window of opportunity” assigned by the

experts;

      (3) it appears that the injuries are the result of some traumatic force, perhaps

repeated, but the exact measure or type of force or instruments used cannot be

identified.   As to this factor, although a medical expert often uses the word

“intentional” to describe the manner in which the force was applied, often “non-



                                          14
accidental” is meant.      See Martin v. State, 246 S.W.3d 246, 260 (Tex. App.

Houston [14th Dist.] 2007, no pet.);

      (4) the defendant does not disclaim being solely responsible for the care of

the child right before the child is discovered to appear “not right,” and offers an

explanation about the injuries that seems insufficient or incomplete on its face, and

which may change over time. As a result, inconsistencies or variances give rise to

doubt about the veracity of the explanation, especially when experts provide

opinions about likely causes for the injuries. Further, while the explanation may

suggest the injuries started at another time or were inflicted by another person, or

the damage progressed in manner different than theorized by the State’s expert, no

alibi defense is possible; and

      (5) there may be evidence of additional injuries not attributed as causing the

result for which the defendant is being placed on trial, but still considered to show

that the defendant had a propensity for improper or abusive conduct toward the

child or other children.

      Many cases involving child-victims are tried on indictments that allege only

that “something happened” and that the child died. The State succeeds in obtaining

a conviction by: (1) offering evidence that the defendant was “there”; and (2)

asking the jury to infer the defendant must have been responsible for the death

because that is the only “plausible explanation” for its occurrence.


                                         15
      The State also often succeeds by presenting evidence of a brutal mechanism

of death inflicted, which furthers the State’s ability to prove beyond a reasonable

doubt without accounting for intent or knowledge on the part of the defendant. See,

e.g., Patrick v. State, 906 S.W.2d 481, 487-488 (Tex. Crim. App. 1995); Munoz v.

State, 2009 Tex. App. LEXIS 6475, 08-07-00325-CR (Tex. App. El Paso 2009, no

pet.) (not designated for publication) (Expert testimony showed that the child was

likely swung with great velocity, causing the child’s head to strike an object with

great force, and the cause of death was a “tremendous” and “vicious and violent”

blow to the head).


         ii. There are many examples of where a young child has been killed
             or injured while believed to be in the custody of a sole adult
             caretaker, and the manner and means may not be clear.
      There are many examples of this recurring pattern of where a young child

has been killed or injured while believed to be in the custody of a sole adult

caretaker, and in which the manner and means of the death or injury was not clear:

Herrera v. State, 367 S.W.3d 762 (Tex. App. Houston [14th Dist.] 2012, no pet.)

(Expert opined that injuries were “consistent with” several possible use-of-force

scenarios); Bearnth v. State, 361 S.W.3d 135, 141 (Tex. App. Houston [1st Dist.]

2011, pet. ref.) (The defendant was the only adult in the house at the time the

experts believed the injury could have taken place, and the jury could have viewed

the defendant's changing explanations as evidence of guilt); Williams v. State, 294

                                        16
S.W.3d 674, 683 (Tex. App. Houston [1st Dist.] 2009, pet. ref.) (Evidence

sufficient because although the defendant was not seen harming the child and was

not the only person with access to the child at the time of the injury, (1) the

defendant admitted to being alone with the child at several periods during the time

when injury occurred, and (2) expert testimony provided that the head injuries that

caused the child’s death could not have been inflicted in any of the ways the

defendant offered as explanation, but instead must have occurred by violent

shaking and physical abuse by an adult); Duren v. State, 87 S.W.3d 719, 726 (Tex.

App. Texarkana 2002, pet. struck) (The jury was free to reconcile any conflicting

testimony regarding the amount of force required to inflict injuries in favor of the

testimony that suggested such enormous force was required that anyone inflicting

it on a child ‘must know’ that death is reasonably certain to result); Garcia v. State,

16 S.W.3d 401, 405 (Tex. App. El Paso 2000, pet. ref.) (The evidence was

sufficient because the defendant was the sole person with access to the child during

the time that the expert opined that the child sustained the fatal injuries);

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) (The defendant

admitted to killing the child, but claimed that his death was an accident. The

defendant later buried the child); Writ of habeas corpus granted and remanded by

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (During writ

hearing, relying on new developments in biomechanics, six expert witnesses


                                          17
testified that the type of injuries that the could have been caused by an accidental

short fall onto concrete); Roberson v. State, 2015 Tex. App. LEXIS 4735, 05-13-

01416-CR (Tex. App. Dallas May 8, 2015, no pet.) (memorandum opinion, not

designated for publication) (The defendant was the “only person” who could have

inflicted the injuries because the defendant was the last person who was with the

child); Castro v. State, 2015 Tex. App. LEXIS 2399, 03-12-00730-CR (Tex. App.

Austin Mar. 13, 2015, pet. filed) (not designated for publication) (Evidence showed

that the defendant was “more physically aggressive” than he had admitted); Lewis

v. State, No. 05-12-00844-CR (Tex. App. Dallas Jan. 6, 2014, pet. ref.)

(memorandum opinion) (not designated for publication); Crisp v. State, No. 04-09-

00580-CR (Tex. App. San Antonio Mar. 16, 2011, pet. ref.) (not designated for

publication) (proof of defendant’s sole access at time child suffered some form of

blunt force trauma to the head found sufficient to meet State’s burden).


         iii. Why is the State not required to prove beyond a reasonable doubt
              what happened and how the force was used?
      Although the State may argue that it is difficult in these cases for it to prove

beyond a reasonable doubt what exactly happened and how the force was used,

considering that defendants accused of these crimes often receive life sentences

(such as Appellant), this Court should questioned why the State is not required to

do so. This issue is especially appropriate where a particular culpable mental state


                                         18
must be proved. If the State is merely required to prove the defendant was present

and failed to offer a plausible statement about what role he played, then it is the

defendant’s silence or poor attempt to explain an occurrence that is used to

determine his guilt.

      This Court has held that the jury is entitled to disregard the defendant’s

alternative explanations for what caused the death cannot “mean that the missing

elements of the charged offense are supplied by this rejection.” Johnson v. State,

673 S.W.2d 190, 196-197 (Tex. Crim. App. 1984), overruled on another ground by

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Yet, in many cases, the

defendant’s alternative explanations for what caused the death are what is used to

convict the defendant.

      Although the State may argue that the defendant’s evasive or unclear

explanations of what occurred should be used to determine guilt, even a complete

and supposedly truthful confession by the defendant must still be separately

corroborated to justify a conviction. Miller v. State, 457 S.W.3d 919 (Tex. Crim.

App. 2015) (Although this Court held that a strict application of the corpus delicti

rule is unnecessary if a defendant confesses to multiple criminal offenses within a

single criminal episode or course of conduct if the crimes confessed to are

sufficiently proximate that the underlying policy reasons for the rule are not




                                        19
violated, this Court also expressed belief that the corpus delicti rule should be

retained because it serves “an important function”).

      Yet, in the types of cases identified in this petition and for which Appellant

was convicted, any admission by a defendant that he was merely present at or

around the time an expert testifies the injury occurred often seals the defendant’s

fate. What the defendant actually did is never proved beyond a reasonable doubt.

Instead, what the defendant actually did is merely inferred in a general manner

from the known result. But, as a matter of due process under the Fifth and

Fourteenth Amendments, and under this Court’s rulings in Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) and Wise v. State, 364 S.W.3d 900, 903

(Tex. Crim. App. 2012), and that of the Supreme Court in Jackson v. Virginia, 443

U.S. 307, 316-319 (1979), the manner and means of assaultive conduct must be

proved with more precision that what is presently allowed.

      The reason for this is clear: in any crime involving intent or knowledge,

there must exist a union between the conduct and the intent or knowledge. Personal

volition must precede the act. And, awareness is the primary distinction between

intentionally or knowingly committing an act versus negligently doing so. Intent

and knowledge require an awareness of the harm likely to result from an act.

Therefore, for a trier of fact to determine whether such awareness was present or

can be proved, the conduct itself must be identified with enough specificity to


                                         20
understand the causation. This is especially so where a person’s state of mind is

inferred from the person’s words, acts, and conduct. In such situations, the nature

of the conduct becomes critical. Otherwise, the analysis becomes mere speculation

or bootstrapping, one inference is compounded upon another inference, and this is

not within the definition of “beyond a reasonable doubt.” As one court of appeals

wrote,

         “A jury may not reasonably infer an ultimate fact from meager
         circumstantial evidence, none more probable than another. Hammerly
         Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). To be
         legitimate or permissible, an inference must be deduced as a logical
         consequence of the facts presented in evidence, and must be a logical
         and rational connection between the facts in evidence and the fact to
         be inferred (internal citations omitted). With regard to the sufficiency
         of evidence in circumstantial evidence cases, one inference cannot be
         based upon another inference to reach a conclusion or sustain a
         conviction...Williamson v. State, 244 S.W.2d 202, 204 (Tex. Crim.
         App. 1951); Lee v. State, 214 S.W.2d 619, 622 (Tex. Crim. App.
         1948). The stacking of one inference upon another is not considered
         evidence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.
         2003)....”

Allen v. State, 249 S.W.2d 680, 703 (Tex. App. Austin 2008, no pet.).

         As a result, it should not be sufficient for the State to merely eliminate the

defendant’s version of the event from consideration. Rather, the State should be

required to prove beyond a reasonable doubt that the defendant must have

consciously recognized that if he engaged in certain conduct, it was reasonably

certain that death would result.



                                           21
      In fact, in Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2013), this

Court recently wrote:

      “Capital murder is a result-of-conduct offense; the crime is defined in
      terms of one's objective to produce, or a substantial certainty of
      producing, a specified result, i.e. the death of the named decedent.”
      Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008). The
      pertinent question, therefore, is whether the jury could have rationally
      determined beyond a reasonable doubt from the totality of the
      circumstantial evidence viewed in a light most favorable to its verdict
      that appellant had intent to cause the death of the child. See Jackson,
      443 U.S. at 318; Brooks, 323 S.W.3d at 895.

      The court of appeals in this case did not find that the jury could have

rationally concluded Appellant had a specific desire to kill his son, but only “that

Appellant was at least aware that his conduct was reasonably certain to cause [the

CW’s] death.” Yet, the court of appeals affirmed the judgment of conviction.


          iv. The State cannot meet the requirements of Texas Penal Code §
              6.02(a) if the State fails to identify the conduct alleged to have
              caused the injury or death
      Without identifying the conduct alleged to have caused the injury or death,

beyond a reasonable doubt, the State cannot meet the requirements of Texas Penal

Code § 6.02(a), which in Capital Murder cases requires the state to prove that the

defendant acted intentionally or knowingly (because otherwise the defendant “does

not commit an offense”). See Tex. Pen. Code § 6.02(a) (2011). Otherwise, the

state of the law in this cases is little more than a trier of fact concluding that if the

defendant “did A, B, and C,” the defendant had to be aware of the certainty of the

                                           22
consequences of what the State thinks the defendant did, and therefore the

defendant must be guilty. See e.g., Hasel v. State, 12-14-00101-CR, 2015 Tex.

App. LEXIS 6091 (Tex. App. Tyler June 17, 2015, no pet. hist.) (memorandum

opinion) (not designated for publication) (The defendant’s statements about the

incident were deemed to be useful in determining that he acted intentionally or

knowingly, even though the precise manner of injury was undetermined). One

court has even approved the use of expert testimony that any actor should be aware

of the likelihood of death where he causes severe head trauma in any manner. See

Montgomery v. State, 198 S.W.3d 67, 83-84 (Tex. App. Fort Worth 2006, pet. ref.).

      Further, Appellant questions why more certainty about the actus reus is

unnecessary before the mens rea may be characterized with the requisite standard

of proof. Texas Penal Code § 19.03 may comprehend that the commission of the

offense is proved whenever one does anything with knowledge that the prohibited

result is reasonably certain to come about. However, § 19.03 cannot be read to

mean that whenever the prohibited result occurs, the defendant had notice that his

conduct would cause the result.

      In addition, common sense dictates that a mental state may be inferred only

if the nature of the conduct is first established. And, not every “unnatural death”

due to the act of a person is murder. Most importantly, “the utterance of false

statements or inconsistent statements is, by itself, not sufficient to support an


                                        23
inference that the commission of a separate crime or wrongful conduct has

occurred” with the requisite culpability. Stobaugh v. State, 421 S.W.3d 787, 866

(Tex. App. Fort Worth 2014, pet. ref.).

      The present state of the interpretation of the law causes the following result:

the only defense to the accusation of “you must have done something that caused

the death” is for a defendant to testify and say “I did nothing to cause the death.”

But, such an assertion will be met with the State’s demand to the defendant to “tell

us everything you did.” A defendant cannot rely on the burden of proof as a

defense because the State has no real burden. Rather, the State’s modus operandi

in these types of cases is “we need not prove what he did or how or why it

happened, but only that the death was not natural, but inflicted, and, at least

without further explanation, the defendant has to have been the perpetrator acting

with the requisite awareness of the danger presented.” In such situations, a person

innocent of murder is convicted, and cannot effectively defend himself because he

must take the stand and waive his Fifth Amendment rights because silence at trial

is not a true option.

      Such results must be abandoned in favor of a real presumption of innocence.

In the type of cases described in this petition, concepts of moral culpability,

blameworthiness, and the right to remain silent have been sacrificed in favor of

expediency through use of a legal fiction that the circumstances surrounding the


                                          24
act is fully proved by the result. And because the penalty for these offenses is

automatic and very harsh (often life in prison without the possibility of parole as in

Appellant’s case) the trial becomes a foregone conclusion based only on the

presence of the defendant at the scene plus the defendant’s subsequent refusal to

serve as the State’s eyewitness. The horrific nature of the injury overrides all other

considerations, and such a result is contrary to the protections offered in other

types of cases and by the Fifth and Fourteenth Amendments.

      In support of its conclusion that the jury could rationally have find Appellant

guilty beyond reasonable doubt, the court of appeals made these comments:

      “The jury was free to disbelieve Dr. Ophoven and believe the State’s
      expert testimony [and particularly that Joniah’s previous serious head
      injury was not the cause of death]...

      [W]hile Joniah was at home alone with Appellant, he sustained a
      severe, intentionally inflicted traumatic head injury that resulted in his
      death. From this evidence, a rational jury could have reasonably
      inferred that Appellant caused Joniah’s death. . . . Any violent assault
      on a young child may be reasonably expected to cause death...

      Joniah’s injuries were severe, extensive, and numerous. He had
      bruises, abrasions, burns, broken bones, and severe traumatic head
      injuries. He was an eleven-month-old child and Appellant a grown
      man. Based on our review of the record, we conclude that a rational
      jury could have found that Appellant was at least aware that his
      conduct was reasonably certain to cause Joniah’s death. We therefore
      hold that the evidence is sufficient to support the jury’s verdict.

      It is clear that the court of appeals did not deal with the question identified in

Louis. Further, it did not address any of the other concerns described above or


                                          25
those that Appellant raised in his Appellant’s Brief. Appellant will not restate all

of the facts and arguments here, but as an example of how the present state of

affairs leads to the unjust result that occurred in this case, the State’s experts and

the officer concluded that most of the marks on the CW were “burns.” This is

despite the fact that while in the ER and later while in the ICU, the CW was

injected with a lot of fluids, causing his weight to increase from 22 pounds to 28

pounds (a whopping increase of 27%). (RR3, 244-245; RR5, 91-93; RR7, SX-17).

      One expert and the officer, whose credibility is highly suspect, even claimed

that the “burn patterns” on the CW’s skin were consistent with a white space heater

found at the home. (RR3, 202; RR4, 107; RR5, 30-31; RR7, SX-3). Although the

marks on the palm of the CW’s right hand are parallel burns, and were most likely

caused by the space heater, when this Court reviews State’s Exhibits 7, 9, 10, 11,

12, 13, 14, and 15, it will find that the marks on the CW’s body could not have

been caused by the space heater that is depicted in State’s Exhibit 2, and as the

State witnesses claim. (RR3, 36, 73; RR7, SX-2). This space heater, which is

depicted here, is has six perfectly lineal elements that run parallel to one another

and perpendicular to the floor:




                                         26
      And, very low amounts of the DNA of Appellant and the CW were found on

the space heater. (RR4, 142-143). Had Appellant used a space heater to cause the

marks on the CW, the space heater would have contained much higher levels of the

CW’s DNA, and the marks on the CW would have been lineal and not circular.

Yet, State witnesses testified that the circular marks on the CW are “burns”

caused by this space heater. (RR3, 198; RR7, SX-9).

      It is not enough to say that the State proved the explanation for the injuries

offered by Appellant and his expert witness should be discarded, or that there was

opinion testimony that the fatal injuries were intentionally inflicted. None of the

State’s experts sought to account for the CW’s sudden change in growth beginning

about four months prior to his death. (RR5, 68, 72-73, 77-80). Dr. Quinton’s

assumption that the CW merely began to fail to thrive, probably for environmental

reasons, was entirely speculative and did not reference the dramatic and sudden

change testified to by Dr. Ophoven. (RR6, 51-52).
                                        27
      Finally, the State failed to prove the death was caused by the manner and

means alleged by the State, which was the striking of the CW by Appellant’s hand

or “another object.” When a specific means in which a statute was violated is

alleged, the evidence must conform to the allegation, otherwise charging

instruments become irrelevant. Here, there was a failure to prove what was alleged.

There was evidence presented that the subdural hematoma was acceleration-

deceleration in nature, and may have “consistent with” a striking of the CW’s head

with or against an object. Because the jury was charged using the language of the

indictment, it was not asked to evaluate the reliability of the State’s evidence, but

rather was required to find only that an injury occurred. This does not mean that

the jury resolved the conflicts in the testimony of the experts in favor of the State.

      Appellant recognizes that this Court has determined that an allegation about

the cause of death in a murder indictment need not be proved because the focus or

gravamen of the offense (a resultant death) is still proved. Johnson v. State, 364

S.W.3d 292, 296-297 (Tex. Crim. App. 2012). But, the jury must still make its

findings of fact according to those asked about in the charge. The theory of liability

presented by the court should be narrowed according to the evidence because

otherwise the verdict will be based on an allegation not proved. See Goka v. State,

657 S.W.2d 20, 22 (Tex. App. Houston [1st Dist.] 1983, pet. ref.) (“Submission of

a theory not supported by evidence is error...”).


                                          28
      Appellant may or may not have known or intended that any conduct on his

part would have caused the death of his son. Without proving beyond a reasonable

doubt what his conduct exactly was, it is impossible to say. Even if one concludes

that Appellant may have minimized some part of his conduct in his descriptions to

Sanford, Dr. Nesiama, or the police, Appellant may have accurately described the

bathtub tussle and the fact that he did not know why his son stopped breathing.

Defendants cannot and should not be convicted merely because they do not “come

clean” or fail to fully and accurately describe what they witnessed or did. Without

an admission of guilt or nonspeculative reasoning about the “how and why” of the

offense, prosecutions in cases such as this turn into strict liability standards based

on the defendant’s invocation of this Fifth Amendment rights. In this case,

Appellant even agreed to answer questions posed by the police, and he never

admitted to violently striking his son. (RR4, 94, 104, 120).

      Conjecture should never be used as a means of convicting a person, and a

thorough assessment of the evidence in this case will find that conjecture and not

reasonable inference is what caused the jury to reach their verdict. See Winfrey v.

State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013) (“A conclusion reached by

speculation... is not sufficiently based on facts or evidence to support a finding

beyond a reasonable doubt.”). After giving “proper deference” (and not total

deference) to the role of the trier of fact, it is this Court’s responsibility to confirm


                                           29
that the evidence reached the requisite “high degree of certainty.” See Urbano v.

State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part on other

grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002). And

although this Court must “uphold the verdict unless a rational factfinder must have

had reasonable doubt as to any essential element,” a review of the evidence in this

case should lead this Court to conclude that the jury in this case was not rational.

Laster, 275 S.W.3d at 518; Brooks, id. at 902 n.1.


IX. Conclusion and Prayer

      For the reasons stated in this petition, the Court of Appeals has: (1) decided

an important question of state and federal law that has not been, but should be,

settled by the Court of Criminal Appeals; and (2) decided an important question of

state or federal law in a way that conflicts with the applicable decisions of the

Court of Criminal Appeals and the Supreme Court of the United States. See Tex.

Rule App. Proc. 66.3 (2015). Appellant respectfully prays that this Court grant

discretionary review, reverse the judgment of conviction and sentence, and enter a

judgment of acquittal.

                                      Respectfully submitted,




                                        30
                                      Michael Mowla
                                      445 E. FM 1382 No. 3-718
                                      Cedar Hill, Texas 75104
                                      Phone: 972-795-2401
                                      Fax: 972-692-6636
                                      michael@mowlalaw.com
                                      Texas Bar No. 24048680
                                      Attorney for Appellant



                                      /s/ Michael Mowla
                                      By: Michael Mowla



X. Certificate of Service

       This certifies that on July 25, 2015, a copy of this document was served on
Lori Ordiway and Lisa Smith of the Dallas County District Attorney’s Office,
Appellate Division, 133 N. Riverfront Boulevard, Dallas, Texas 75207 by email to
lori.ordiway@dallascounty.org,            lisa.smith@dallascounty.org,         and
DCDAAppeals@dallascounty.org;           and     also   on    Anna    Kubalak     at
Anna.Kubalak@dallascounty.org; and on Lisa McMinn, the State Prosecuting
Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant
State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex.
Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015).




                                      /s/ Michael Mowla
                                      By: Michael Mowla




                                        31
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

       This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 4,475 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements because it
has been prepared in a proportionally-spaced typeface using 14-point font. See
Tex. Rule App. Proc. 9.4 (2015).




                                       /s/ Michael Mowla
                                       By: Michael Mowla




                                         32
APPENDIX
No Shepard’s Signal™
As of: July 25, 2015 2:44 AM EDT

                                           Baker v. State
                          Court of Appeals of Texas, Twelfth District, Tyler
                                  June 30, 2015, Opinion Delivered
                                        NO. 12-14-00185-CR

Reporter
2015 Tex. App. LEXIS 6642

JONATHAN BAKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION
OF UNPUBLISHED OPINIONS.

Prior History: [*1] Appeal from the 283rd District Court of Dallas County, Texas. (Tr.Ct.No.
F-1300422-T).

Core Terms

trial court, injuries, hemorrhage, severe, older, head injury, imprisonment, modified, subdural, argues,
trial court’s judgment, capital murder, breathing, traumatic, bathtub, parole, brain, legal sufficiency,
witnesses, symptoms, bruises, arrest, burns

Case Summary

Overview
HOLDINGS: [1]-Evidence was sufficient to support a finding that defendant acted intentionally or
knowingly to cause the child’s death because while the child was at home alone with defendant he
sustained a severe, intentionally inflicted traumatic head injury that resulted in his death, and the
child’s injuries were severe, extensive and numerous; [2]-Modification of the judgment was necessary
because defendant was thirty years old when he committed the offense and his punishment was
imprisonment for life without parole.

Outcome

Judgment affirmed as modified.

LexisNexis® Headnotes

  Evidence > Weight & Sufficiency
  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
  Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Weight of Evidence
                                      2015 Tex. App. LEXIS 6642, *1



  Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses

HN1 The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a criminal
offense that the state is required to prove beyond a reasonable doubt. Legal sufficiency is the
constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain
a criminal conviction. The standard for reviewing a legal sufficiency challenge is whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The
evidence is examined in the light most favorable to the verdict. This requires the reviewing court to
defer to the jury’s credibility and weight determinations, because the jury is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. A court faced with a record of
historical facts that supports conflicting inferences must presume—even if it does not affirmatively
appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution. A successful legal sufficiency challenge will result in rendition of an
acquittal by the reviewing court.

  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
  Evidence > Weight & Sufficiency

HN2 The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. Such a charge would include one that accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the defendant is
tried.

  Criminal Law & Procedure > ... > Murder > Capital Murder > Elements

HN3 To prove a defendant guilty of capital murder under Tex. Penal Code Ann. § 19.03(a)(8), the State
is required to prove that defendant intentionally or knowingly caused the victim’s death, and that the
victim is under ten years of age. Tex. Penal Code Ann. § 19.03(a)(8) (Supp. 2014).

  Evidence > Admissibility > Circumstantial & Direct Evidence

HN4 The appellate court uses the same standard of review for both circumstantial and direct evidence
cases.

  Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses

HN5 The jury was free to disbelieve one expert and believe another expert’s testimony.

  Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > General Intent
  Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Specific Intent
  Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Knowledge

HN6 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) (2011). A person acts knowingly
with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause

                                                Page 2 of 12
                                         2015 Tex. App. LEXIS 6642, *1



the result. Tex. Penal Code Ann. § 6.03(b) (2011). Proof of a culpable mental state almost invariably
depends upon circumstantial evidence. Ordinarily, the culpable mental state must be inferred from the
acts of the accused or the surrounding circumstances, which include not only acts, but words and
conduct. Tex. Penal Code Ann. § 6.03(b).

  Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Murder > General Overview
  Criminal Law & Procedure > ... > Crimes Against Persons > Assault & Battery > General Overview
  Criminal Law & Procedure > Criminal Offenses > Acts & Mental States > Mens Rea

HN7 In considering whether an assault was committed with the requisite mental state for murder, a
court takes into account the extent of the injuries and the relative size and strength of the parties. Any
violent assault on a young child may be reasonably expected to cause death.

  Criminal Law & Procedure > ... > Discovery by Defendant > Expert Testimony > Notice of Intent to Call
  Criminal Law & Procedure > ... > Discovery by Defendant > Expert Testimony > Appellate Review &
  Judicial Discretion

HN8 Notice of the witnesses that the State intends to call at trial must be given upon request by the
defense. A trial court’s decision to allow a witness who was not on the State’s witness list to testify
is reviewed for an abuse of discretion. Among the factors that an appellate court considers in such a
review are (1) whether the state’s actions in calling a previously undisclosed witness constituted bad
faith, and (2) whether the defendant could have reasonably anticipated that the witness would testify.

  Criminal Law & Procedure > ... > Reviewability > Preservation for Review > Requirements

HN9 A claim is preserved for appellate review only if (1) the complaint was made to the trial court
by a timely and specific request, objection, or motion, and (2) the trial court either ruled on the request,
objection, or motion or refused to rule and the complaining party objected to that refusal. Tex. R. App.
P. 33.1(a). If a party fails to properly object to errors at trial, even constitutional errors can be forfeited.
Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to
the denial of that right at trial.

  Criminal Law & Procedure > Preliminary Proceedings > Pretrial Motions & Procedures > Disqualification
  & Recusal
  Governments > Courts > Judges
  Criminal Law & Procedure > Appeals > Standards of Review > General Overview

HN10 Due process requires a neutral and detached hearing body or officer. Absent a clear showing of
bias, a trial court’s actions will be presumed to have been correct.

  Criminal Law & Procedure > Sentencing > Ranges

HN11 Under the Texas Penal Code, a person convicted of a capital felony in a case in which the State
does not seek the death penalty shall be punished by imprisonment for life without parole if the person
was eighteen years of age or older when the offense was committed. Tex. Penal Code Ann. § 12.31(a)
(Supp. 2014).

                                                   Page 3 of 12
                                       2015 Tex. App. LEXIS 6642, *1



  Criminal Law & Procedure > Sentencing > Corrections, Modifications & Reductions > General Overview

HN12 An appellate court has authority to correct a trial court’s judgment to make the record speak the
truth when it has the necessary data and information.

Counsel: For Appellant: Michael Mowla.

For State: Johanna Helene Kubalak.

Judges: Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

Opinion by: JAMES T. WORTHEN

Opinion

MEMORANDUM OPINION

Jonathan Baker appeals his conviction for capital murder, for which he was assessed a sentence of
imprisonment for life. In three issues, Appellant argues that the evidence is legally insufficient to
support his conviction and that the trial court erred by allowing a witness to testify in violation of the
court’s pretrial discovery order. We modify the trial court’s judgment to reflect no possibility of parole
and affirm the judgment as modified.

BACKGROUND

Appellant was charged by indictment with capital murder and pleaded ″not guilty.″ The matter
proceeded to a jury trial.

The evidence at trial showed that on December 7, 2011, eleven-month-old Joniah Baker had been at
home all day with his father, Appellant. That afternoon, Joniah arrived at Children’s Medical Center
with a bluish, grayish tint to his skin, cold, and unresponsive. Medical professionals attempted to save
Joniah’s life, but he was pronounced dead on December 9, 2011. Many injuries, new and old, were
found during examination and autopsy. The medical [*2] examiner ruled the death a homicide, and
Appellant was charged with capital murder.

Ultimately, the jury found Appellant ″guilty″ of capital murder. The State did not seek the death
penalty, and Appellant’s punishment was assessed at imprisonment ″for the rest of [his] lifetime.″ This
appeal followed.

EVIDENTIARY SUFFICIENCY

In his first issue, Appellant argues that the evidence is legally insufficient to support a finding that he
acted intentionally or knowingly to cause Joniah’s death.

Standard of Review and Governing Law
                                                 Page 4 of 12
                                                2015 Tex. App. LEXIS 6642, *2



HN1 The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a criminal
offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due
Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S.
at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.—San Antonio
1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson,
443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993). The evidence is examined in the [*3] light most favorable to the verdict. See Jackson, 443 U.S.
at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to
the jury’s credibility and weight determinations, because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 443
U.S. at 319, 99 S. Ct. at 2789. A ″court faced with a record of historical facts that supports conflicting
inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that resolution.″ Jackson, 443
U.S. at 326, 99 S. Ct. at 2793. A successful legal sufficiency challenge will result in rendition of an
acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18,
72 L. Ed. 2d 652 (1982).

HN2 The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge
would include one that ″accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant is tried.″ Id.

HN3 To prove Appellant guilty of capital murder in this case, the State was required to prove [*4] that
he intentionally or knowingly caused Joniah’s death, and that Joniah was under ten years of age. See
TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp. 2014).

Events Preceding Joniah’s Death

Joniah’s mother, Tamika Sanford, testified that Joniah was born in December 2010. He lived with both
of his parents and Appellant’s mother. Neither parent was working when Joniah was born. Sanford
began working when Joniah was five months old. Sometime after Sanford began working, Appellant’s
mother moved out of the home, and Joniah was left in Appellant’s sole care while Sanford was at work.
Sanford would go to work at either 5:00 a.m. or 7:00 a.m. and return home around 2:00 p.m. or 4:00
p.m. Appellant would then leave to go ″hang out″ until anywhere from 10:00 p.m. to 2:00 a.m. before
returning home.

On the morning of December 7, 2011, Appellant, Joniah, and Sanford rode together to Sanford’s
workplace. When Appellant dropped Sanford off at work around 7:00 a.m., Joniah appeared fine. On
the previous night, he had been eating, drinking, sleeping, and behaving normally. Sanford called
Appellant at around 10:00 a.m. on her lunch break, as was her routine. They had a very brief phone
1
    443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).

                                                           Page 5 of 12
                                       2015 Tex. App. LEXIS 6642, *4



conversation in which Appellant [*5] told Sanford that Joniah was sleeping and did not indicate that
anything was wrong. Sanford did not hear from Appellant again until he called on his way to pick her
up from work. At that time, Appellant told Sanford that they needed to go to the hospital because
Joniah’s breathing was faint.

Dr. Jo-Ann Nesiama was the physician in charge of the emergency room when Joniah was brought in.
She testified that when Joniah arrived, he was not moving or breathing. There were indicators that he
had not been breathing for some time. He was a bluish, grayish color and he was very cold. After
intubation, Dr. Nesiama saw blood coming from the tube that was placed into Joniah’s lungs, which
also indicated he had not been breathing for a while.

When Dr. Nesiama asked Appellant what happened to Joniah, Appellant stated that Joniah woke up
sick that morning. He said that he put him down for a nap, and that he woke up around 11:30 a.m. not
acting like himself. He stated that he woke up again at 3:00 p.m. still not acting like himself, so he
brought him to the hospital. Because Appellant’s story did not seem to explain how Joniah’s injuries
happened, Dr. Nesiama had a social worker contact CPS and Dr. [*6] Matthew Cox, a board certified
child abuse pediatrician.

That same evening, detectives with the Dallas Police Department arrived at the hospital and spoke with
Appellant and Sanford. Appellant and Sanford did not provide any explanation for Joniah’s injuries.
Later that night, Appellant agreed to an interview at the police station. In the interview, Appellant told
the police that he and Joniah had gone back to sleep after dropping Sanford off. He got Joniah up
around 12:00 p.m., fed him, and began to bathe him in his baby bathtub.

According to Appellant, Joniah began to throw a fit during the bath. Appellant was soapy and scratched
Joniah’s back and legs trying to hold onto him. Joniah flung himself back, hit his head on the bathtub,
and then fell sideways and hit his head again. Appellant patted Joniah’s chest and said, ″Stop tripping,
fool.″ He took Joniah out of the bathtub and shook him a little, saying, ″Look. You’re tripping, man.
Chill out for a minute, man. You hear me?″ He put Joniah on the bed in front of the television with
some juice and with pillows around him. When he was getting Joniah dressed to go pick up Sanford,
he noticed that his breathing was short. He bit Joniah’s [*7] heels when putting his pants on because
he was in a hurry.

Some parts of Appellant’s story changed during the interview. Appellant was arrested after the
interview and charged with injury to a child. Joniah subsequently died after being taken off life
support, and Appellant was indicted for capital murder.

State’s Expert Testimony

Dr. Matthew Cox testified that he saw Joniah the day after he was brought to the hospital. Joniah was
unresponsive and being kept alive through life support measures. Dr. Cox noted multiple linear skin
injuries located on various surfaces of Joniah’s body. The appearance of the injuries was consistent
with that of a burn. Dr. Cox also noted bruising on both of Joniah’s feet. The original imaging studies
showed a healed rib fracture, and subsequent imaging studies revealed a new rib fracture as well.

Dr. Cox reviewed the ophthalmology consult, which showed diffuse intraretina, preretina, and
subretina hemorrhage in both sides and retinal detachment in the left eye. He stated that the extensive
                                                Page 6 of 12
                                      2015 Tex. App. LEXIS 6642, *7



and diffuse retinal hemorrhages were the most severe version of retinal hemorrhages and are seen in
the most severe traumatic events.

Head imaging revealed a new hemorrhage [*8] on the back between the brain hemispheres and around
the back surface of Joniah’s brain. There were also fluid collections on both sides of Joniah’s head that
were concerning for older hemorrhage. Dr. Cox said that the older hemorrhage was at least ten days
old based on the appearance, but he could not give an upper limit.
Dr. Cox testified that the symptoms Joniah presented with—altered breathing, altered muscle tone,
being floppy—were symptoms of a severe head injury. He stated that Joniah would have been acting
differently and exhibiting severe symptoms immediately after sustaining such a severe injury. He
stated that the older head injury, which was milder, might have caused symptoms such as not eating
as well, vomiting, and acting dazed, confused, fussy, and sleepy.
Dr. Cox spoke with Sanford and took a detailed history of Joniah’s past, his recent symptoms, and what
brought him to the hospital the night before. Sanford told Dr. Cox that she saw Joniah fall off the bed
about a week and a half to two weeks prior to his hospitalization. She said that he cried, she consoled
him, and he seemed normal afterwards. Sanford said that Joniah had a second fall a few days later
when he was [*9] with Appellant. She did not witness that fall and did not provide any details of it.
Dr. Cox testified that the pattern of Joniah’s head injuries was different from the pattern he sees in
children who fall off a bed. Dr. Cox further testified that Joniah’s injuries were not the type he would
expect to see from a baby bumping his head on a plastic baby bathtub, or even a standard adult bathtub,
even if the baby were having a seizure in the bathtub. He said that Joniah’s brain injuries were the type
that are seen after a severe and violent traumatic event, such as when someone injures a child or the
child is involved in a motor vehicle collision.
Dr. Cox concluded that the history provided did not explain Joniah’s injuries. He further concluded that
the pattern of medical findings indicated at least two episodes of trauma with a new episode on the day
he presented at the hospital. The injuries were consistent with a striking with or against an unknown
object. According to Dr. Cox, the medical findings were consistent with intentionally inflicted injuries
and child physical abuse.
Dr. Stephanie Burton is the medical examiner who performed Joniah’s autopsy. Her examination
revealed numerous [*10] injuries, both internal and external. Joniah’s external injuries included bruises
on his head; abrasions on his neck, chest, and back; and bruises suspicious for bite marks on both heels.
He also had twenty-six burns, the majority of which were paired, linear, and parallel, and measured one
and three-fourths inches apart. Dr. Burton determined that the distance between these paired burns was
consistent with the distance between the coils of a radiator-style space heater that was found in
Appellant’s home.
Internally, Dr. Burton found a subcutaneous area of hemorrhage in Joniah’s chest, a subcutaneous
contusion on his back, another on his left buttock, and a large area of contusion on his right lower back
and buttock. Joniah also had two fractured ribs, one recent, one just beginning to heal, and another
older one that had been healing for a while.
On Joniah’s head, Dr. Burton found an area of hemorrhage under one of the two head bruises, and
another area of hemorrhage in a third location. Thus, there were three impact sites on the head. After

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removing the skull, Dr. Burton found recent subdural and subarachnoid hemorrhages over the top and
bottom of the brain. She stated that a child [*11] with such hemorrhages would have an immediate
change in consciousness, including possible unresponsiveness and probable seizure activity. Dr. Burton
also found an older hemorrhage, which she estimated to be less than fourteen days old but older than
the new ones. An ophthalmologist and pathologist evaluated Joniah’s eyes and found diffuse retinal
hemorrhages, optic nerve sheath hemorrhage, optic nerve head hemorrhage, and a detached retina.

Dr. Burton testified that all of her findings together indicated acceleration-deceleration injury to
Joniah. She concluded that he died of a closed head injury with the burns contributing to his death, and
that the manner of death was homicide. She defined homicide as being caused by an intentional act of
another person. Dr. Burton further opined that there was no type of accidental history that could explain
Joniah’s injuries.

Dr. Reade Quinton is a medical examiner who was present at Joniah’s autopsy. He testified that there
was a newer subdural and an older subdural. Dr. Quinton believed the older subdural to be months old.
He did not believe that the older subdural caused Joniah’s death. He agreed that Joniah died as a result
of a closed head [*12] injury and that the manner of death was homicide.

Defense Expert Testimony

Dr. Janice Ophoven is a pediatric forensic pathologist who testified for the defense. She reviewed the
reports, records, and specimens from Joniah’s case and believed that he presented at the hospital with
cardiac arrest. She opined that he suffered from complications of a chronic subdural hematoma that
likely occurred sometime in July 2011. He then suffered subsequent impacts in the days prior to his
collapse. And on December 7, 2011, Joniah suffered sudden increased intercranial pressure and
subdural bleeding, which led to his cardiac arrest that day. The cardiac arrest resulted in a lack of
oxygen to the brain. According to Dr. Ophoven, this lack of oxygen to the brain was the cause of
Joniah’s death.

Dr. Ophoven testified that there was no evidence that Joniah had a severe violent impact on the date
of his cardiac arrest. She said any number of things could have resulted in his sudden deterioration,
including rough handling or an accident. On cross examination, Dr. Ophoven stated that the chronic
subdural hematoma that occurred in July was caused by blunt force trauma to the head. She was not
given a history [*13] of any traumatic event occurring in July.

Analysis

Appellant contends that the State’s case against him was entirely circumstantial. Therefore, he argues
that we should consider the existence of all alternative reasonable hypotheses and inferences in
conducting our legal sufficiency review. However, the court of criminal appeals abandoned the
alternative reasonable hypothesis construct for reviewing the sufficiency of the evidence in circumstantial
evidence cases in Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). HN4 We now use the
same standard of review for both circumstantial and direct evidence cases. Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).
In support of his insufficiency claim, Appellant argues that the evidence does not support the idea that
Joniah was not injured when he fell off the bed. He cites evidence that the carpet in the room was thin

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and without padding. Appellant cites other evidence that Joniah bumped his head on a coffee table in
September 2011. He claims that the jury failed to recognize Joniah’s previous trips to the emergency
room for spitting up blood and vomiting. Appellant further cites Dr. Ophoven’s testimony that she
believed Joniah died as a result of a chronic subdural hematoma he sustained in July 2011. And he
claims that the State failed to [*14] rebut evidence of a serious traumatic head injury occurring in July
2011. However, the State’s experts agreed that a previous serious head injury occurred, but they did
not believe it was the cause of death. HN5 The jury was free to disbelieve Dr. Ophoven and believe
the State’s expert testimony. See Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 319, 99 S. Ct. at
2789. And, as we have noted above, we are not required to determine whether the evidence excludes
every alternative reasonable hypothesis other than guilt. See Geesa, 820 S.W.2d at 159.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that sometime after
Appellant dropped Sanford off at work, while Joniah was at home alone with Appellant, he sustained
a severe, intentionally inflicted traumatic head injury that resulted in his death. From this evidence, a
rational jury could have reasonably inferred that Appellant caused Joniah’s death.

The State further had to prove that Appellant caused Joniah’s death intentionally or knowingly. HN6
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 2011). A person acts knowingly with
respect to a result of his conduct when he is aware that [*15] his conduct is reasonably certain to cause
the result. Id. § 6.03(b) (West 2011). Proof of a culpable mental state almost invariably depends upon
circumstantial evidence. Lee v. State, 21 S.W.3d 532, 539 (Tex. App.—Tyler 2000, pet. ref’d).
Ordinarily, the culpable mental state must be inferred from the acts of the accused or the surrounding
circumstances, which include not only acts, but words and conduct. Id. HN7 In considering whether
an assault was committed with the requisite mental state for murder, we take into account the extent
of the injuries and the relative size and strength of the parties. Lindsey v. State, 501 S.W.2d 647, 648
(Tex. Crim. App. 1973). Any violent assault on a young child may be reasonably expected to cause
death. Id.

Here, Joniah’s injuries were severe, extensive, and numerous. He had bruises, abrasions, burns, broken
bones, and severe traumatic head injuries. He was an eleven-month-old child and Appellant a grown
man. Based on our review of the record, we conclude that a rational jury could have found that
Appellant was at least aware that his conduct was reasonably certain to cause Joniah’s death. We
therefore hold that the evidence is sufficient to support the jury’s verdict. Accordingly, Appellant’s first
issue is overruled.

DISCOVERY ORDER VIOLATION

In his second and third issues, Appellant [*16] argues that the trial court erred by permitting Dr.
Nesiama to testify in violation of the court’s pretrial discovery order.

Generally, HN8 notice of the witnesses that the state intends to call at trial must be given upon request
by the defense. Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). A trial court’s decision to allow a witness who was not on the state’s witness list to testify is
reviewed for an abuse of discretion. Id. Among the factors that an appellate court considers in such a
review are (1) whether the state’s actions in calling a previously undisclosed witness constituted bad

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faith, and (2) whether the defendant could have reasonably anticipated that the witness would testify.
Id.

In this case, trial began on a Tuesday, and defense counsel told the trial court that the State only gave
her Dr. Nesiama’s name ″like Thursday of last week.″ Defense counsel said that she had received
notice from the State that one of the witnesses previously disclosed would be unavailable for trial. The
prosecutor told her that he would like to substitute Dr. Nesiama, and he provided Dr. Nesiama’s cell
phone number. Additionally, the State had tendered the emergency room records that Dr. Nesiama was
to testify from to the defense ″probably [*17] twelve to eighteen months″ before trial. The trial court
allowed the parties to question Dr. Nesiama outside the presence of the jury.

After that hearing, defense counsel objected to Dr. Nesiama’s testimony on the grounds that allowing
her testimony would violate the trial court’s pretrial orders. Counsel stated that she relied on those
orders in preparing for trial. And she argued that allowing Dr. Nesiama to testify would deprive
Appellant of his Fifth and Sixth Amendment rights to effective assistance of counsel. The trial court
overruled defense counsel’s objection and allowed Dr. Nesiama to testify. However, the trial court
limited Dr. Nesiama’s testimony to Joniah’s treatment and injuries, and that the criteria were met for
her to alert the social worker. The trial court did not allow Dr. Nesiama to give her opinion as to
whether Joniah’s injuries were accidental or the result of abuse.

As part of Appellant’s second issue, he argues that Dr. Nesiama’s testimony should have been excluded
from evidence because the State willfully withheld its intent to use her as a witness. But we have found
no evidence that the State did so or in any way acted in bad faith. The record indicates that when the
treating [*18] emergency room physician the State had planned to call became unavailable, the
prosecutor notified Appellant’s counsel that he wished to substitute Dr. Nesiama to give testimony
regarding the same facts the other doctor would have. And he provided defense counsel Dr. Nesiama’s
phone number and told Dr. Nesiama to expect a phone call.

Furthermore, the record indicates that Appellant could have reasonably anticipated that Dr. Nesiama
would testify. The prosecutor told the trial court that Dr. Nesiama’s name was listed in the emergency
room records. Those records were provided to Appellant twelve to eighteen months prior to trial. Under
these circumstances, we conclude that the trial court did not abuse its discretion by allowing Dr.
Nesiama’s testimony. Accordingly, we overrule the portion of Appellant’s second issue regarding the
trial court’s discretion to allow the testimony.

Additionally in his second issue, Appellant argues for the first time that the trial court violated his Sixth
Amendment right to confrontation of witnesses by permitting Dr. Nesiama to testify. In general, HN9
a claim is preserved for appellate review only if (1) the complaint was made to the trial court by a
timely and specific [*19] request, objection, or motion, and (2) the trial court either ruled on the
request, objection, or motion or refused to rule and the complaining party objected to that refusal. TEX.
R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). If a party fails to properly
object to errors at trial, even constitutional errors can be forfeited. Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012). Specifically, a defendant waives his constitutional right to confront witnesses
if he does not object to the denial of that right at trial. Holland v. State, 802 S.W.2d 696, 700 (Tex.
Crim. App. 1991). Appellant did not object to Dr. Nesiama’s testimony at trial on confrontation
grounds. Thus, he did not preserve his complaint regarding his right to confrontation. See TEX. R. APP.
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P. 33.1(a). Accordingly, we overrule the portion of Appellant’s second issue regarding his right to
confrontation.

In his third issue, Appellant argues for the first time that the trial court violated his First, Fifth, and
Fourteenth Amendment rights to a neutral and impartial judge by permitting Dr. Nesiama to testify.
HN10 Due process requires a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d
639, 645 (Tex. Crim. App. 2006). Absent a clear showing of bias, a trial court’s actions will be
presumed to have been correct. Id.

Here, Appellant bases his argument that the trial judge was not neutral and impartial on the judge’s
allowing Dr. Nesiama to testify [*20] in violation of the discovery order. We have already concluded
that the trial court did not abuse its discretion by allowing Dr. Nesiama’s testimony. We have reviewed
the record and found no clear showing of bias. Therefore, we conclude that the trial court did not
violate Appellant’s right to a neutral and impartial judge. Accordingly, we overrule Appellant’s third
issue.

ERROR   IN   JUDGMENT

Although neither party has raised the issue, our review of the record reveals an error in the trial court’s
judgment. At trial, the trial court sentenced Appellant to imprisonment in the institutional division ″for
the rest of [his] lifetime.″ The judgment, however, reflects the punishment as imprisonment for life not
imprisonment for life without parole.

HN11 Under the penal code, a person convicted of a capital felony in a case in which the state does
not seek the death penalty shall be punished by imprisonment for life without parole if the person was
eighteen years of age or older when the offense was committed. TEX. PENAL CODE ANN. § 12.31(a) (West
Supp. 2014). The record shows that Appellant was thirty years old when he committed the offense.
Therefore, his punishment is imprisonment for life without parole, [*21] and the judgment should be
modified accordingly. See id.; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.
ref’d) (HN12 appellate court has authority to correct trial court’s judgment to make record speak the
truth when it has necessary data and information).

DISPOSITION

Having overruled all of Appellant’s issues, we modify the trial court’s judgment to reflect that
Appellant’s punishment is imprisonment for life without parole, and affirm the judgment as modified.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

JUDGMENT

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                                     2015 Tex. App. LEXIS 6642, *21



THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same
being inspected, it is the opinion of the Court that the trial court’s judgment below should be modified
and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment below be
modified to reflect that Appellant’s punishment is imprisonment for life without parole; and that as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial court
below for observance.

James T. Worthen, Chief Justice.




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