 AFFI lI: Opinion    issued   Octoher 31.   2012.




                                               In The
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                                       No. 05-1 1-0l29-CR


                         RIGOBERTO CUERRERO, JR., Appellant

                                                    V.

                               Till. STATE OF TEXAS, Appellee


                       On Appeal    fromthe 15th Judicial District Court
                                     Gravson County, Texas
                                 Trial Court Cause No. 059446


                                            OPINION
                          Before Justices Moseley, Fillmore, and Myers
                                  Opinion By Justice Fillmore

       A jury convicted Rigoberto Guerrero, Jr. of injury to a child and assessed punishment of fifty

years’ imprisonment and a $10,000 fine. In one issue, Guerrero asserts the evidence is insufficient

to support the conviction. We affirm the trial courts judgment.

                                            Background

       In August2009, Guerrero, his girlfriend, Lydia Spurgeon, and the couple’s two children, two-

year-old J.G. and five-month-old M.G., were living with Lydia’s parents, James and Cheryl

Spurgeon. During the week, Cheryl was the primary caregiver for J.G., while Guerrero was the

primary carcgiver for M.G. Guerrero did not like either Cheryl or James and kept M.G. in the

bedroom for most of the day.
         )n Monda, :\ugust 4, 2000. rVLG. was seen by Dr. Jill Breeze fir a welLbaby examination

and rcceI ed several vaccinations. Breeze described MG. as “happy and healthy”      during   the   visit.


She noted no bruising or other injuries to MG. According to Lydia, after receiving the vaccinations,

MG. was “fussy”

       On Tuesday, August 25th, James got off work from his full time job with the City of

Sherman at approximately 4:00 p.m. and immediately went to his evening job. Lydia’s grandmother

picked up Cheryl at approximately :30 p.m. Lydia dressed J.G. and MG. in new pajamas for her

grandmother’s visit and did not notice anything wrong with M.G. when she changed him. According

to Lydia, M .( . was moving his left arm on Tuesday evening.

       Lydia was expecting her sister and brotherin-1aw, Lisa and Jeremy Bullock, for dinner on

Tuesday. Lydia testified that Guerrero went to a friend’s house because he did not want to see Lisa

and Jeremy. Because Lydia was having difficulty preparing dinner while watching the two children,

she requested (iuerrcro come home and assist her in getting M.G. to bed. Guerrero came home at

approximately 9:45 p.m. and put M.G. to bed. Guerrero then returned to his friend’s house. After

James finished work at approximately 10:00 p.m., he picked Cheryl up and the two arrived home at

approximately 10:20 p.m. James immediately went to bed. Guerrero returned at approximately

10:30 p.m. and ate dinner in the dining room. Lisa and Jeremy arrived at approximately 11:00 p.m.,

and J.G. was put to bed with James shortly after their arrival. Soon after Lisa and Jeremy arrived,

Guerrero went into the bedroom that he and Lydia shared with M.G.

       Some time later, Lisa, Lydia, .Jeremy, and Cheryl heard a “real major,” piercing      cry from


M.G. According to Lydia, it was a different cry from the fussiness that M.G. had exhibited since

getting his vaccinations. Lydia went to check on M.G. and saw Guerrero holding him. Guerrero said

he was calming M.G. down and had everything under control. Lydia returned to the living room.
lisa and Jeremy tell at approximately 12: 15 am. without seeing MG. ( hervl then went into the

bedroom with James and JG., and Lydia went into the bedroom with (juerrero and MG.

           On Vvednesday, MCI. woke up around 6:3() a.m.. and Lydia prepared a bottle for him.

(iuerrero indicated he would feed M.G. and Lydia could go back to sleep. Lydia found this unusual

because (iucrreru generally did not volunteer to care for M.G. that early in the morning. After being

fed, M.G. went back to sleep, James woke up at approximately 6:45 a.m., but went back to sleep

on the living room couch. Lydia and Guerrero left at 9:45 a.m. for a meeting at J.G.’s new

preschool. Cheryl and J.G. got out of bed at approximately 10:15 a.m. M.G. woke up at about the

same time, and James got him from his crib. MG. was crying constantly. Although James changed

M.G.’s diaper and attempted to feed MG., he continued to cry. James thought MG. was having a

reaction to the vaccinations. He called Lydia and asked her to buy some Children’s Tylenol and

indicated he 1houht M.G. needed to see a doctor.            Cheryl then changed M.G. ‘s clothes in

preparation fbr the visit to the doctors office. M.G. cried constantly while Cheryl changed his

clothes.

           When Guerrero and Lydia put M.G. into the car for the trip to Breeze’s office, they noticed

he was not using his left hand. Breeze ordered an x-ray of M.G.’s arm. The x-ray showed M.G. had

a broken humerus in his left arm and two broken ribs. In Breeze’s opinion, the broken humerus

occurred within twelve hours of M.G. arriving at her office. According to Breeze, it takes a

significant force to break the humerus. The break, along with the rib fractures, caused her to suspect

abuse as the cause of the injuries. Breeze instructed Guerrero and Lydia to take M.G. to Children’s

Medial Center.

       Dr. Suzanne Dakil testified that, in August 2009, she was a pediatrician working in the

Referral and Evaluation of At Risk Children program at Children’s and evaluated M.G. at the



                                                   1
hospital. According to Dakil, the break of MG.’s humerus had occurred within a “day or two”

because there was no healing shown on the xray. The xray also showed healing fractures of the

right lateral second through sixth ribs and of the left lateral second through fourth and sixth and

seventh ribs. These healing fractures were probably ten to fourteen days old, On September 9, 2009,

additional xrays were taken of M.G. These xrays showed two additional healing fractures of the

left eighth and ninth ribs. According to Dakil, these fractures were likely very new when M.G. was

admitted into the hospital on August 26th and could not be seen until they had begun to heal. The

two new fractures could have occurred at the same time as the broken arm. Dakil testified there were

twelve total rib fractures that occurred at two different times.

        Dakil testified a baby handles pain better than an adult. However, an infant will not tolerate

the movement of a fracture. Dakil assumes the baby feels acute pain at the time the fracture occurs.

However, if the baby is placed in a position where he is not moving, the baby will be fine until the

fracture is moved again. If an adult is holding the baby or changing a diaper or clothes, the pain will

be exquisite and the “child will let you know.” However, if the adult lays the baby down, the baby

will be fine,

        Dakil testified a broken humerus is a very rare injury and, in children under nine months of

age, is almost always caused by abuse. Either a direct perpendicular blow to the arm or a direct

bending of the ann is necessary to cause a transverse fracture of this long bone. Generally, the rib

fractures are caused by compression, such as squeezing the ribs or pushing the ribs against a hard

surface. The ribs are not easy to break and a “good force” is necessary to cause the fractures. Dakil

would not expect to see a broken humerus or broken ribs from a baby being dropped onto the floor.

In Dakil’s opinion, M.G.’s injuries were not accidental. Further, a two-year-old child could not have

inflicted the injuries. Lydia, James, Cheryl, Lisa, and Jeremy all denied hurting MG.




                                                 -4-
                                                naiysis
                                                1

        In one issue, Guerrero asserts the evidence is insufficient to establish when M.G. was hurt

or that Guerrero caused the injuries. Guerrero specifically relies on evidence M.G. had been “fussy”

for several days and that many people had access to M.G. on a regular basis, including Cheryl and

James. Guerrero points out that Cheryl and James were caring for the child on. Wednesday morning

when the injury was discovered and “it is iust as plausible that their access caused this injury,”

        We review the sufficiency of the evidence under the standard set out in Jackson v. Vitginia,

443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex, Crim. App. 2011), cert. denied,

132 S. Ct. 1763 (2012). We examine all the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard

recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 3 19; see (i/so Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge

the credibility of the witnesses, and can choose to believe all, some, or none of the testimony

presented by the parties. chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We

defer to the jury’s determinations of credibility, and may not substitute ourjudgment for that of the

fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v.

State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis,

appellate court “may not re-weigh the evidence and substitute our judgment for that of the jury”).

“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).
        Ihci e     no direct evidence of when and how M.(i. was injured. I lowever, M.(i.      was not


injured when Breeze examined him on Monday, August 24th. When Lydia changed M .G. ‘s clothes

on I ucsd i c cnin. shc did not notice anthing \‘ ron     ith M 0 1 uithcr accoiding to Lydi   i   lvi   Ci


was using his lefi arm on Tuesday evening before he was put to bed. Lydia, Lisa, Jeremy, and Cheryl

all testified they heard M.G. give a sharp cry between 11:00 p.m. and 1 2:00 ani. on Tuesday evening

when Guerrero was alone with M.G. On Wednesday morning, M.G. began crying inconsolably

when he woke up. Although James and Cheryl were caring for M.G. on Wednesday morning,

neither was alone with him for a significant period of time. Further, both James and Cheryl denied

they hurt M.(, on Wednesday morning. When Breeze saw M.G. on Wednesday afternoon, she

determined he had a broken left arm. in Breeze’s opinion, the break occurred within twelve hours

of her examination of M.G. Dakil testified the break of M.G,’s arm occurred within a day or two

oCher examination otM.G, Further, M.G.’s ribs had been broken on two occasions. According to

Dakil. a significant amount of force was necessary to cause both the broken humerus and the broken

ribs.

        The jury heard all the testimony. it was the role of the jury “to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319; see also Ac/ames, 353 S.W.3d at 860. Reviewing all the evidence

in the light most favorable to the jury’s verdict, we conclude a rational jury could have found beyond

a reasonable doubt that M.G. was injured on Tuesday night and that (Juerrero caused the injuries.

See Jackson, 443 U.S. at 319; Ac/ames, 353 S.W.3d at $60. We resolve Guerrero’s sole issue against

him.
                         ROBERT M. FILLMORE
                         JUSTICE
Do Not Publish
rEx. R. An. P.47

11 1298F.UO5




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                                Qnurt uf Apirahi
                       iift1i Jiitrirt uf Ecxa ut Ja11a

                                      JUDGMENT
RIGOBERTO (IUERRERO, JR.. Appellant                Appeal from the 1 5th Judicial District Court
                                                   of (irayson County, Texas. (Tr.Ct.No.
No, 05 I I Ml 29CR           V.                    059446).
                                                   Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                       Justices Moseley and Myers participating.


       l3ased on the Court’s opinion of this date, the judgment of the trial court is AFFIRMIi.



Judgment entered October 31, 2012.




                                                   ROBERT M. FILLMORE
                                                   JUSTICE
