Barcenes v. State, 04-94-00311-CR

CourtCourt of Appeals of Texas
Writing for the CourtSTONE
Citation940 S.W.2d 739
PartiesRobert G. BARCENES, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 04-94-00311-CR,04-94-00311-CR
Decision Date12 February 1997

Page 739

940 S.W.2d 739
Robert G. BARCENES, Appellant,
The STATE of Texas, Appellee.
No. 04-94-00311-CR.
Court of Appeals of Texas,
San Antonio.
Feb. 12, 1997.
Discretionary Review Refused May 14, 1997.

Page 740

Anthony B. Cantrell, San Antonio, for Appellant.

Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, for Appellee.



STONE, Justice.

Appellant, Robert G. Barcenas, was indicted for the murder of Troy Symm, the nineteen

Page 741

month old son of appellant's girlfriend. A jury found appellant guilty and sentenced him to 50 years in prison. On appeal appellant complains of charge error, insufficiency of the evidence, exclusion of evidence, and improper jury argument. Finding sufficient evidence to support the verdict and no harmful error, we affirm the trial court's judgment.

Factual Background

Because appellant challenges the sufficiency of the evidence to support his conviction, a review of the facts is necessary.

A. The Scene of the Injury

Joanne Martinez testified that at approximately 1:00 a.m. on June 28, 1992, she was at her trailer home when she heard appellant, a neighbor, banging on her door asking for her husband. Appellant was carrying young Troy Symm, whom Mrs. Martinez described as stiff, with closed eyes and blood coming out of the corner of his mouth. Joanne's husband, Joe Martinez, also testified that when appellant brought the baby into the trailer the child was "stiff as a board" and exhibited no movement; his eyes had rolled back and his hands were cupped. Appellant told the couple that the baby had followed him out of the trailer when he was taking out the garbage and had fallen off a step onto the concrete patio and injured himself.

While Mr. Martinez called EMS, Mrs. Martinez unsuccessfully attempted to revive the child with CPR. Appellant then asked Mrs. Martinez to watch Troy while appellant went outside to smoke. EMS personnel arrived shortly thereafter. Appellant asked to use the restroom, and according to Mrs. Martinez, he never came out to offer any assistance. Nor did appellant approach Troy's mother, Modene Symm, when she arrived at the scene. 1

After the child was removed by EMS, the Martinezes found appellant in their unlit utility room. When Mr. Martinez told appellant that he needed to go outside to speak with a deputy, appellant replied "Don't tell them I'm here." Appellant left when Martinez told him to leave.

Sheriff's Deputy Monty Fox testified that he was dispatched to the scene for an injured child call. When he arrived at the Martinez home he saw a young child, later identified as Troy Symm, clothed only in a diaper, lying on the floor. Troy had a bloody lip and a red spot on his head, his eyes were rolled up, and he appeared to be suffering from a seizure. Modene Symm told Fox that her son was being cared for by a babysitter. Fox then spoke with appellant, who identified himself as the sitter. Appellant showed the deputy the single concrete step at the trailer's entrance where the injury had occurred. Appellant stated that when he took out the trash, Troy apparently followed him, fell backwards off a step, and hit his head on a concrete slab. When Troy began to cry appellant carried him into the trailer and placed him on the floor. Appellant said that Troy tried to walk, but fell on his face, causing a bloody lip. Troy became completely limp when appellant picked him up. Appellant said he then ran to the Martinez's trailer because he did not have a telephone.

Thomas Winn, the chief of the Windcrest Voluntary Fire Department, was the first emergency medical technician on the scene. He found Troy laying in the middle of the floor with his arms rotating laterally, a condition called "decerebrate posturing." Troy's eyes were dilated and nonreactive, suggesting a severe head injury. Troy "seized" each time he was touched, and he occasionally moaned and lapsed back into unconsciousness. Winn said he had never encountered such a severe head injury before.

B. Lay Witnesses at the Hospital

Modene Symm's co-worker, Nora Lopez, testified that she had seen Troy about twelve hours before his injury and that he was fine and active. She knew that appellant babysat Troy while Symm worked evenings at a restaurant. Restaurant records established that Symm was at work from 5:20 p.m. on June 27 until 1:20 a.m. on June 28, 1992. Sometime after Symm left work, she telephoned

Page 742

Lopez and asked her to drive appellant to the hospital because the doctors needed to speak with him. On their way to the hospital, appellant indicated to Lopez that the baby was doing poorly. Appellant again described how Troy slipped and fell while appellant was taking out the garbage. Appellant also told Lopez that earlier in the day while he was babysitting, a television fell on Troy when Troy pulled on the cord. Appellant said that he had not contacted Symm or taken Troy to the hospital because the baby was laughing and he did not think the injury was serious.

Cynthia Cruz, Troy's previous babysitter, testified that she went to the hospital on the night of Troy's injury. Appellant told Cruz that Troy had been injured when he fell off the trailer step when appellant was taking out the garbage. Cruz testified, however, that appellant asked her to help him establish an alibi by saying that she, not appellant, was with Troy at the time of the fall. Cruz stated that appellant showed no remorse or sorrow, and she felt that he was squinting his eyes to produce tears.

C. The Medical Testimony

Troy was brought to Brooke Army Medical Center (BAMC) for treatment. Pamela Ruggiero, an Army officer and clinical social worker with BAMC, testified that appellant told her that Troy had been injured while appellant was taking out the garbage. Appellant never mentioned that Troy was prone to falls or had balance problems. Ruggiero questioned appellant's demeanor, noting he did not look sincere or genuine, and that he told his story in a very practiced manner. Four days after his arrival at BAMC Troy Symm was declared brain dead. He was removed from a ventilator and died shortly thereafter.

Dr. Stephen Klein, a board certified neurosurgeon with extensive experience in pediatric head injuries, treated Troy at BAMC. Dr. Klein arrived at the hospital within 30 minutes of Troy's admission to the emergency room and found Troy comatose and very close to being dead. Dr. Klein's examination revealed an old bruise on Troy's forehead, and several indications of a massive, recent head injury. The child had decerebrate posturing or bilateral rotating of the fists, suggesting a brain stem injury. Retinal hemorrhaging and subdural hematomas, both caused by head injury, were also present. Dr. Klein noted that Troy was suffering from massive swelling of the brain, a potentially fatal injury. The child also had multiple bruises on his scalp in various stages of healing. Dr. Klein further noted that there was no evidence that a heavy object such as a television set had fallen on Troy. Dr. Klein also testified that Troy's injuries could not have been caused by an accident like the fall down a step described by appellant. He concluded that Troy had been hit with a blunt object or thrown against a blunt surface.

Dr. Robert Bux, the Bexar County Deputy Chief Medical Examiner who performed the autopsy on Troy, also concluded that Troy's massive brain stem injury was caused by being struck by a blunt object or thrown against a blunt surface. Dr. Bux stated that the presence of bruises, subdural hematomas, and bilateral retinal hemorrhaging, precluded the possibility of a fall as the cause of Troy's injuries.

Dr. Nancy Kellogg, an assistant professor of Pediatrics with the University of Texas Health Science Center specializing in child abuse and neglect cases, testified for the State. Dr. Kellog excluded a fall off a step as a possible cause of Troy's death, and agreed with Doctors Klein and Bux that because of the type of injuries inflicted on Troy, he would have been immediately symptomatic, i.e., seizing or immediately losing consciousness. She also agreed that falls produce fatal injuries only from much greater heights measuring several stories high.

D. The Defense Witnesses

Appellant testified in his own behalf and denied killing Troy. He stated that he and Modene Symm began living together shortly after they met in February, 1991. He claimed that he loved Troy like his own son, and that he spent more time with Troy than Symm did. He described Troy as clumsy and prone to falling and banging his head. Appellant estimated that Troy fell as many

Page 743

as three or four times a day. He also testified that a week before his death, Troy fell out of a truck and hit his head. Troy received no medical treatment for the fall, but he had previously received medical attention for ear infections. Symm and appellant were never advised that Troy might have any balance problems.

Appellant stated that Troy was feverish and sluggish on the day of the injury, and that he had a few minor falls that day. Appellant also stated that on the morning of June 27, he briefly left the trailer and returned to find Troy on the floor with a 30 to 40 pound television set on his stomach, and his head against a wall. Appellant lifted the television set off Troy's stomach and checked his ribs, which caused Troy to laugh.

Appellant was home alone with Troy sometime between 11:00 p.m. and midnight when Troy fell asleep on the sofa. Appellant left the trailer to take out the garbage. After exiting the trailer, he heard Troy falling. He turned and found Troy on the ground, crying. Appellant thought Troy had fallen off the concrete step. He brought Troy inside the trailer and set him on the floor. Troy tried to walk but fell and cut his lip. Troy then seemed to turn blue, and appellant unsuccessfully tried to administer CPR. Although Troy appeared to revive, his eyes rolled back....

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