Affirmed and Opinion Filed May 20, 2014




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01161-CR

                                ELOY SANCHEZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 5
                                   Dallas County, Texas
                           Trial Court Cause No. F08-24673-L

                             MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                  Opinion by Justice Bridges
       Eloy Sanchez appeals his reckless injury to a child conviction. Appellant pleaded no

contest, and the trial court found him guilty and assessed punishment at ten years’ confinement

and a $2000 fine. In three points of error, appellant argues the evidence is insufficient to prove

he recklessly caused serious bodily injury to a child or used or exhibited a deadly weapon, and he

was denied his right to confrontation when the State introduced an autopsy report containing

testimonial hearsay. We affirm the trial court’s judgment.

       Erica Santiago and appellant met in high school and had a baby, Lanah, in January 2008.

At the time, Santiago and appellant lived with Santiago’s mother in Garland. On March 29,

2008, Lanah was approximately two months old. That day, Santiago was trying to put Lanah to

sleep so she could get ready for work, but Lanah was crying. Appellant was watching television,
and he told Santiago “if [she] could go put her to sleep somewhere else because he was trying to

watch TV.” As Lanah continued crying, appellant turned up the volume on the television, and

Santiago took Lanah to “the front” to put her to sleep. Santiago “had a hard time putting [Lanah]

down because she didn’t really want [Santiago] to put her down.” When appellant drove

Santiago to work, they took Lanah along in her carseat. As Santiago got out of the car, she

reminded appellant to feed Lanah. At that time, Lanah had no bruises.

       At work, Santiago got a text from her mother saying Lanah was crying and Santiago’s

mother was on her way home to help. Santiago called her mother’s house phone, and her mother

answered and said she “had just barely gotten home.” Santiago asked to talk to appellant, and

she heard appellant say “She’s not breathing.” Santiago hung up the phone “so they could call

the ambulance” and had a co-worker drive her home. When Santiago arrived home, police and

an ambulance were already there, and they would not let her enter the house. However, Santiago

was able to talk to appellant, who was “pretty calm for the situation.” Santiago asked appellant,

“What happened? What did you do?” and appellant said Lanah “choked on her milk.”

       Santiago saw Lanah taken out of the house and placed in an ambulance, and Santiago’s

co-worker drove her to the hospital. Other family members and appellant were also at the

hospital. Doctors spoke with Santiago and told her Lanah was not going to survive. Santiago

stayed with appellant and his family because she “didn’t want to go anywhere near [her] room

because that’s where it happened.” Santiago stayed with appellant for “about a month and a

half” after Lanah’s death. Santiago continued to ask appellant what happened, and he said “he

didn’t know, he thought she was asleep, and when he turned around, that she had changed colors,

and she looked like she wasn’t breathing.” Santiago trusted appellant and believed Lanah had

choked on her milk. However, after Lanah died, appellant’s “temperament changed a lot.”




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Appellant “was very aggressive” and “got mad very easy.” If Santiago brought up Lanah,

appellant “would get very angry.”

        When the medical examiner’s findings came out concerning Lanah’s death, the report

indicated Lanah died as a result of homicidal violence, including blunt force injuries. Garland

police detective R.T. Schaum obtained a warrant for appellant’s arrest. After appellant was

arrested, Schaum interviewed appellant.         Appellant gave a written statement in which he

described setting an alarm for Lanah’s five o’clock feeding. When the alarm went off, Lanah

was crying. It was time to feed Lanah, so appellant “got fustread [sic] then [he] shuck [sic] her

for 10 seconds or 5 seconds.” Appellant then got the bottle ready and Lanah “ate the milk.”

Appellant put Lanah to sleep and was watching TV when he heard Lanah cough. He went to

look at her, and she was “turning Pell [sic],” so he called “Frances” who came running and

screaming and that was “when they call [sic] 911.”

        Appellant was indicted on a charge of intentionally or knowingly causing serious injury

to a child by shaking Lanah with his hands and by asphyxiating her with his hands and an

unknown object and by a manner and means unknown to the grand jury. Appellant waived his

right to a jury trial and entered a plea of no contest.

        At trial, medical examiner Dr. Keith Pinckard testified Lanah had “a couple of injuries on

the face,” including a bruise on the left cheek and a “small abrasion, superficial laceration” just

below the lower lip. When the scalp was peeled back, it showed “a focus of hemorrhage or

contusion over the back of the head.” There was also “a focus of hemorrhage or bleeding over

some of the muscles here in the front of the neck.” The bleeding was “over where the windpipe

would be.” Lanah’s left third through eighth ribs had “remote healing rib fractures” indicating

the injuries occurred some time before and were in the process of healing. However, one rib had

a “new fracture through the healing portion of the old fracture.” A separate single rib fracture on

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the right side also was healing. Finally, Lanah had bruising in the soft tissue and muscles of the

upper right arm. Pinckard testified Lanah’s rib fractures were consistent with somebody who

was holding a baby “on the side with a squeezing type action.”

       Lanah’s grandmother, Francis Hernandez, testified Santiago, appellant, Lanah, and

Hernandez’s daughter Christine were living with her on March 29, 2008. Hernandez received a

phone call and a text from Christine that made her concerned for Lanah and prompted her to

return to her house. When she came inside, the house was “very silent, very quiet,” and

Hernandez heard appellant say “the baby wasn’t breathing.” Hernandez ran into the room where

Lanah was lying on the bed. Lanah was “completely purple,” and Hernandez “knew she was

gone.” Appellant showed “no emotion” and was “stand-offish.” Hernandez “started panicking,”

grabbed Lanah, and carried her to the front of the house where she put her on the couch and

attempted to perform CPR. Hernandez called 911, and police arrived “really fast.”

       The trial court found appellant guilty of the lesser included offense of recklessly causing

serious bodily injury to a child, and this appeal followed.

       In his first point of error, appellant argues the evidence is insufficient to prove he

recklessly caused serious injury to Lanah. In his second point of error, appellant argues the

evidence is insufficient to prove he used or exhibited a deadly weapon as alleged in the

indictment. When a defendant waives his right to a jury trial and pleads no contest, the State

need only introduce sufficient evidence to support the plea and establish the defendant’s guilt.

TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005); see Wright v. State, 930 S.W.2d 131, 132

(Tex. App.—Dallas 1996, no pet.). The supporting evidence need not prove the defendant’s

guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas

2006, no pet.); see Ex parte Martin, 747 S.W.2d 789, 791-92 (Tex. Crim. App. 1988) (op. on




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reh’g). The evidence sufficiently supports a plea of no contest if it embraces every element of

the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).

       A person commits the offense of injury to a child if he, among other things,

“intentionally, knowingly, recklessly, or with criminal negligence, by act” causes serious bodily

injury or bodily injury to a child 14 years of age or younger. TEX. PENAL CODE ANN. § 22.04(a)

(West Supp. 2013). “Bodily injury” means “physical pain, illness, or any impairment of physical

condition.”   Id. § 1.07(a)(8).     “Serious bodily injury” means “bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).

       “A person acts recklessly, or is reckless, with respect to circumstances surrounding his

conduct or the result of his conduct when he is aware of but consciously disregards a substantial

and unjustifiable risk that the circumstances exist or the result will occur.” Id. § 6.03(c). “The

risk must be of such a nature and degree that its disregard constitutes a gross deviation from the

standard of care that an ordinary person would exercise under all the circumstances as viewed

from the actor’s standpoint.” Id.

       Here, the evidence showed appellant admitted he shook Lanah for “10 seconds or 5

seconds.” Lanah had “a couple of injuries on the face,” including a bruise on the left cheek and a

“small abrasion, superficial laceration” just below the lower lip. When Lanah’s scalp was peeled

back, it showed “a focus of hemorrhage or contusion over the back of the head.” There was also

“a focus of hemorrhage or bleeding over some of the muscles . . . in the front of the neck.” The

bleeding was in the area of the windpipe.” Lanah’s left third through eighth ribs had “remote

healing rib fractures” indicating the injuries occurred some time before and were in the process

of healing. However, one rib had a “new fracture through the healing portion of the old

fracture.” A separate single rib fracture on the right side also was healing. Finally, Lanah had

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bruising in the soft tissue and muscles of the upper right arm. We conclude this evidence was

sufficient to support appellant’s plea and establish that he recklessly caused serious bodily injury

to Lanah. See TEX. CODE CRIM. PROC. ANN. art. 1.15; Wright, 930 S.W.2d at 132. We overrule

appellant’s first point of error.

        Regarding the sufficiency of the evidence to support the trial court’s finding appellant

used a deadly weapon, a deadly weapon is “anything that in the manner of its use or intended use

is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(17)(B).

While hands are not a deadly weapon per se, a factfinder may find that they were used as a

deadly weapon based on their manner of use or intended use and their capacity to produce death

or serious bodily injury. Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004). The State,

however, need not show that the hands actually caused serious bodily injury or death, only that

the hands in the manner of their use were capable of causing death or serious bodily injury.

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Here, appellant admitted he

shook Lanah, and her autopsy further showed bleeding under the scalp on the back of her head

and over her windpipe. We conclude this evidence is sufficient to show appellant used a deadly

weapon. See TEX. PENAL CODE ANN. § 1.07(17)(B); Wright, 930 S.W.2d at 132.

        To the extent appellant argues “[n]o deadly weapon was described or specified in the trial

court’s verdict because it was not proven,” we disagree. An appellate court may examine the

record to determine whether there is sufficient evidence to support a finding that an object was

used as a deadly weapon in the case. Whatley v. State, 946 S.W.3d 73, 76 (Tex. Crim. App.

1997) (no items specifically named as deadly weapons in judgment, but deadly weapon finding

nevertheless subject to appellate review for sufficiency purposes). As indicated above, the

evidence is sufficient to show appellant used a deadly weapon. We overrule appellant’s second

point of error.

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       In his third point of error, appellant argues he was denied his right to confrontation under

the Sixth Amendment when the State introduced the autopsy report which contained testimonial

hearsay. Appellant argues Pinckard “did not perform the autopsy,” and the admission of the

autopsy report based on Pinckard’s testimony violated “his right to confront the witnesses who

were responsible for the production of the final product.” In support of this argument, appellant

cites Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). In Bullcoming, a DWI case, after the

defendant rear-ended another vehicle and failed field sobriety tests, the police obtained a warrant

authorizing a blood test. Id. at 2710. At trial, the forensic lab report containing the results of the

test was the principal evidence against the defendant. The prosecution did not call the analyst

who signed and certified the report. Instead, they called another analyst who was familiar with

the lab’s testing procedures but had not participated in or observed the testing. Id. at 2712. The

court held that the report contained a testimonial certification, and the defendant had a right to be

confronted with the analyst who made the certification. Id. at 2716–17.

       Here, the record contradicts appellant’s argument that Pinckard “did not perform the

autopsy.” After appellant raised his Bullcoming objection at trial, Pinckard testified he was a

medical examiner with five years of experience at the time of Lanah’s autopsy. At the time of

the autopsy, Pinckard’s office had two Fellows undergoing their final year of training before they

became medical examiners. One of the Fellows, Dr. Nicholas Batalis, “was the person who

probably did most of the physical work during the autopsy, but he was doing it under

[Pinckard’s] direct supervision because he was . . . still in training and [Pinckard] was

responsible for him.” Pinckard testified he was the one “responsible for the report the death

certificate and the whole case.” At the time, Batalis could not sign off on the death certificate.

Pinckard testified he was “there during the entire autopsy.” Pinckard was “standing there

watching [Batalis],” and they talked about what they saw during the autopsy. Batalis signed the

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autopsy report, Pinckard signed the report, and then “everybody else in the office review[ed] it

and sign[ed] it.” Under these circumstances, we conclude Pinckard’s testimony demonstrated he

signed and certified the autopsy report after attending and participating in the autopsy. Appellant

was therefore not denied his right to confrontation when the autopsy report was introduced

pursuant to Pinckard’s testimony. See id. at 2712–17. We overrule appellant’s third point of

error.

         We affirm the trial court’s judgment.




                                                       /David L. Bridges/
Do Not Publish                                         DAVID L. BRIDGES
TEX. R. APP. P. 47                                     JUSTICE

121161F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

ELOY SANCHEZ, Appellant                           On Appeal from the Criminal District Court
                                                  No. 5, Dallas County, Texas
No. 05-12-01161-CR       V.                       Trial Court Cause No. F08-24673-L.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Fillmore and Lewis participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 20, 2014




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




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