Derrick Jermaine Black v. State

Opinion issued June 7, 2012.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-00261-CR

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Derrick JERMAINE Black , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1285553

MEMORANDUM OPINION

A jury found appellant, Derrick

Black, guilty of the felony offense of injury to a child and assessed his

punishment at seven years’ confinement. See Tex.

Penal Code Ann. § 22.04(a) (West 2011). On appeal, Black contends that the evidence

is legally insufficient to support his conviction. We hold that sufficient evidence supports

Black’s conviction and therefore affirm.

Background

Dominique Franklin and Derrick Black began dating in

2009. In 2010, Black moved into

Franklin’s apartment with Franklin and her two sons, J.L.F. and J.F. At the time, J.L.F. was eleven months old and

J.F. was five years old.

Franklin worked during the day. She sent J.L.F. and J.F. to daycare or to her

mother’s house while she was working. In

May 2010, Franklin began leaving her sons with Black on days when Black did not

work.

One day in early June, Franklin left the boys with Black at

her apartment. When Franklin returned,

she noticed that J.L.F. had bruises and multiple bite marks covering his

body. She asked Black if he had bitten

J.L.F., and Black admitted that he had.

Black said he was sorry and that he did not “understand” J.L.F. and

could not “relate” to him.

Franklin did not report the incident to the police that day,

but continued living in her apartment with Black for several days. She did not leave immediately after the

incident or report it to the police because Black had threatened her.

On June 10, 2010, Franklin gathered J.L.F. and J.F. and left

her apartment. She called the police and

reported Black’s assault on J.L.F.

Deputy Dansby responded to the call. He met with Franklin and her two sons, J.L.F.

and J.F. in a parking lot. When Deputy Dansby arrived, he observed apparent bite marks on J.L.F.’s

body. Deputy Dansby

concluded that the bite marks were between three and four days old, because

some were scabbing over. He alerted

Child Protective Services (“CPS”), and Franklin released J.L.F. and J.F. into

CPS’s care.

A CPS caseworker took J.L.F. to Texas

Children’s Hospital, where Dr. Ricardo Quinonez

treated him for human bite marks. J.F.

accompanied his brother to the hospital.

He told Dr. Quinonez that his mother’s

boyfriend had bitten J.L.F. Dr. Quinonez opined that the size and shape of the marks

suggested that an adult had bitten J.L.F., not a child.

At trial, the State presented

testimony from J.F., then six years old.

He testified that Black bit J.L.F. while Black was babysitting

them. J.F. recalled that J.L.F. had

cried after Black bit him.

The State also presented evidence of a prior domestic

disturbance in which Black had threatened Franklin. According to Franklin, the couple had a

heated argument the day before Black bit J.L.F.

During the altercation, Black threatened to hit Franklin with a

table. In response, J.F. attempted to

dial 9-1-1. Black chased J.F. to the

phone, and J.F. fled the apartment and reported the incident to the apartment

manager, who called the police. Franklin

testified that she suspected that Black bit J.L.F. in retaliation for this

incident.

Black presented no evidence in his defense during the

guilt-innocence phase of trial.

Discussion

Standard of Review

We review all evidentiary sufficiency

challenges under the same standard. See Brooks v. State , 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (“[T]he 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.”) ( referring to Jackson v. Virginia , 443 U.S. 307 , 99 S. Ct. 2781 (1979)). Under this standard, evidence is insufficient

to support a conviction if, considering all the record evidence in the light

most favorable to the verdict, no rational fact finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt .

See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; In re Winship ,

397 U.S. 358, 361 , 90 S. Ct. 1068, 1071 (1970); Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

Viewed in the light most favorable to

the verdict, the evidence is insufficient when either: (1) the record contains

no evidence, or merely a “modicum” of evidence, probative of an element of the

offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson , 443 U.S. at 314 , 318 n.11, 320, 99 S. Ct. 2786 ,

2789 n.11; Laster ,

275 S.W.3d at 518 ; Williams , 235

S.W.3d at 750 . This standard

applies equally to both direct and circumstantial evidence. King v. State , 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

We do not weigh any evidence or

evaluate the credibility of any witnesses, as this was the function of the

fact finder. Williams , 235 S.W.3d at 750 . Instead, we determine whether both the

explicit and implicit findings of the fact finder are rational by viewing all

the evidence admitted at trial in the light most favorable to the verdict and

resolving any inconsistencies in the evidence in favor of the verdict. Adelman v. State , 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

Injury to a Child

Black contends that the evidence is insufficient to prove

that he intentionally or knowingly injured J.L.F. Injury to a child is a “result of conduct”

crime and he claims that insufficient evidence supports a finding that he

intended to cause the result of his conduct — bodily injury to J.L.F.

A person commits an offense of injury to a child if he

intentionally, knowingly, recklessly, or with criminal negligence, causes

bodily injury to a child under fifteen years of age. Tex. Penal Code Ann. § 22.04(a). Injury to a child is a “result of conduct”

offense. Morales v. State , 853 S.W.2d 583, 584

(Tex. Crim. App. 1993) (en banc); Alvarado

v. State , 704 S.W.2d 36, 39 (Tex. Crim. App. 1985). This means that the culpable mental state

relates to causing the injury rather than engaging in the conduct. See Cook

v. State , 884 S.W.2d 485, 490 (Tex. Crim. App. 1994).

A person acts intentionally when “it is

his conscious objective or desire to engage in the conduct or 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 his conduct is reasonably certain

to cause a result.” Id. § 6.03(b). Mental culpability may be inferred from a

defendant’s conduct and the surrounding facts and circumstances. Moore v. State , 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).

Citing Graves v. State ,

Black contends that the bite marks alone are insufficient evidence of abuse. 779 S.W.2d 469 (Tex. App.—El Paso 1989, no pet.) ( reversing conviction for injury to child based solely on

evidence of bruising). We disagree. Black, an adult male, admitted to Franklin

that he had bitten J.L.F., an eleven-month-old child, while J.L.F. was in his

care. Dr. Quinonez

observed between seven and eight bite marks on J.L.F.’s body in various stages

of healing. According to Deputy Dansby , J.L.F.’s injuries covered a large portion of his

body —he had bites “just about anywhere you could think that someone could have

a bite mark.” Finally, J.F. recounted

that his brother had cried after being bitten.

This evidence denotes more than bruising of an undetermined origin, and

supports a finding that Black intentionally or knowingly injured J.L.F. See

Patrick v. State , 906 S.W.2d 481, 487

(Tex. Crim. App. 1995) (en banc) (intent may be inferred from extent of injuries

and relative size and strength of parties); see

also Peterson v. State , 137 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.]

2004, pet. ref’d ) (circumstance of intent included

medical testimony about victim’s injuries and likely reaction); Morales v. State , 828 S.W.2d 261 , 263–64

(Tex. App.—Amarillo 1992) (circumstance of intent included evidence of child’s

injuries), aff’d ,

853 S.W.2d 583 (Tex. Crim. App. 1993).

Accordingly, we hold that legally sufficient evidence supports the

jury’s finding that Black intended to injure to J.L.R. by biting him. See Assiter v.

State , 58 S.W.3d 743, 750 (Tex. App.—Amarillo 2000, no pet.) ( legally sufficient evidence that father intended to injure

children with paddle).

Alternatively, Black claims that the evidence is insufficient

because it could have been Franklin who bit J.L.F. to “get [Black] in

trouble.” But Black points to no

evidence in the record suggesting that Franklin caused J.L.F.’s injuries, and the jury chose to accept Franklin and J.F.’s

testimony to the contrary. He also does

not dispute that, on occasion, J.L.F. was left in his sole care. See

Johnson v. State , No. 01-06-00402-CR,

2007 WL 2447002 , at *4 (Tex. App.—Houston [1st Dist.] Aug.

30, 2007, no pet.) ( mem.op ., not designated for publication) (observing, “Texas law is

replete with holdings that when an adult defendant has had sole access to a

child at the time [his] injuries are sustained, the evidence is sufficient to

support a conviction for injury to a child.”).

As the fact-finder, the jury was in a position to evaluate the

credibility of the trial witnesses. See Peterson ,

137 S.W.3d at 745 .

The jury was free to believe or disbelieve all or any part of any of the

witnesses’ testimony. See Jones v. State , 944 S.W.2d 642, 647

(Tex. Crim. App. 1996); McKinny v. State , 76 S.W.3d 463 , 468–69 (Tex.

App. — Houston

[1st Dist.] 2002, no pet.). As an

appellate court, we are not free to reject evidence as insufficient merely “because

a defendant offers an explanation of the facts that is different from the

explanation offered by the State.” Peterson , 137 S.W.3d at 745 (citing Russell v. State , 665 S.W.2d 771, 776

(Tex. Crim. App. 1983) (en banc)).

Conclusion

We conclude that sufficient evidence supports Black’s

conviction for injury to a child. We

therefore affirm the judgment of the trial court.

Jane

Bland

Justice

Panel

consists of Justices Bland, Massengale, and Brown.

Do

not publish. Tex. R.

App. P. 47.2( b).