Encina v. State, No. 44019

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MORRISON
• Citation: 471 S.W.2d 384
• Docket Number: No. 44019
• Decision Date: 14 July 1971
• Parties: Pedro ENCINA, Appellant, v. The STATE of Texas, Appellee.

Page 384

471 S.W.2d 384 Pedro ENCINA, Appellant,
v.
The STATE of Texas, Appellee. No. 44019. Court of Criminal Appeals of Texas. July 14, 1971.
Rehearing Denied Oct. 26, 1971.

Wm. G. Burnett, Burnett & Burnett, Sinton (Court appointed on appeal only), for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder; the punishment, fifteen (15) years.

Appellant, in his first three grounds of error, challenges the sufficiency of the evidence.

The entire case against the appellant is made out in the testimony of two physicians and the confession of the appellant. His confession reads as follows:

'My name is Pedro Nanez Encina I'am 20 years old . . . Last Sunday night October 12th, 1969 at about 10:00 P.M. I was at home my father's house in Mathis, San patricio County, Texas. When my Comman law's wife's baby Divid _ _ said he wanted to go to the rest room, and all that we have is an out house toilet and it is a little ways behind the house, so I took David to the toilet and he squated down and relieved himself when David got thru I sat down on the stool and I hollard at my brother Lupe to brig me some matches so that I could light a cigarret while I was waiting for lupe to bring me some toiler paper and some matches I got thru and David went Outside and I told him to go inside the toilet and at the same time I pushed him and he fell down backward on the steps of the toilet and when he got up I pushed him again I pushed Divid down 3 or 4 times. Then I seen that dacid did not get up or move so I checked on him and it seem that he was passed out so I got scared and called my comman law wife Enedelia _ _ and I told her that the baby out and that I did not know what was wrong with him and Enedelia came and took David from my arms and went inside of the housse with him I then asked my father for the keys to his pick up and took my wife Enedelia my sister Juana and David to the Hospital in Sinton, San Patricio County, Texas I do not know why I knocked David down 3 or 4 times because I was not drunk.

/s/ Pedro Encina'

Dr. Joe Pinkston, a physician and surgeon, testified that he first saw the deceased child in the emergency room of Sinton Hospital at 10:30 P.M., October 12, 1969. At that time the child was strangling on his saliva. The doctor established an airway, then discovered that the child was unconscious and had a 'chyes-stokes type of respiration which you see in a terminal injury,' and that his pupils were dilated and fixed. The back of the child's head was 'quite soft and mushy' and the doctor determined that he had sustained a 'pretty good injury' to the back of the head. There was also 'one continuous bruise' from both elbows and around the back on the upper part of the torso. The child died at 2:54 A.M. on October 13th. The doctor stated that emergency room records showed that the child was two years old.

Dr. Robert J. Nelms, Jr., a pathologist, testified that he performed an autopsy on the body of the deceased on October 13th. The child, who was approximately two years old, was found to have multiple bruises on the scalp, face, shoulders and

Page 386

chest. The pathologist testified that death resulted from bleeding between the brain and the skull and the accompanying brain swelling. All of the injuries to the deceased occurred within twenty-four to forty-eight hours prior to the autopsy. Dr. Nelms testified that the injuries were caused by contact with a blunt object, that this blunt object could have been a wall or a step, and that the child might have been injured by falling 'into the object or vice versa.'

Appellant does not contend that the evidence is insufficient to show that he killed the deceased. Cf. Steel v. State, Tex.Cr.App., 459 S.W.2d 649. His main contention is that the State failed to show malice or even the intention to kill.

This Court has considered similar contentions on several occasions. In Smith v. State, 160 Tex.Cr.R. 227, 268 S.W.2d 144, the accused was convicted of assault with intent to murder with malice on a baby about 9 or 11 months old. In that case, the baby had numerous bruises and cuts, as well as several fractures, and was having a great deal of difficulty in breathing. One witness heard a beating going on in the home of the child; she came to investigate and the child's mother placed the bloody baby in her arms. She also saw blood on the sink and on the wall. The accused's confession recited that he had hit her with his fist and burned her with cigarettes on several occasions. It also stated that he had, on the day he took the baby to the hospital, hit the baby with his fist while she was in the sink. In affirming the conviction, this Court said:

'An assault with intent to murder upon a helpless child between 9 and 11 months old could consist of the slightest violence applied to its tender body and not necessarily be confined to a vigorous assault as would be necessary against a person of mature age.'

In Hobson v. State, Tex.Cr.App., 438 S.W.2d 571, the accused was shown to have repeatedly struck a baby, who was ten weeks old, with his hand while the mother was begging him to stop. The baby went limp and failed to respond to mouth to mouth respiration. Hobson refused to take the baby to a hospital until some twelve hours later. A doctor who examined the baby testified that the child had an accumulation of fluid and blood in the brain, an enlarged soft spot, and marked bruising on both sides of the face. He testified that the injuries could have been caused by someone hitting the child or by multiple falls.

This Court held:

'In view of the tender age of the child; the extent of the injuries inflicted; the continued assault in spite of the mother's begging him to stop it; the long delay in seeking medical aid for the baby, in spite of the mother's pleas; and the attempt to have the mother give a false explanation of the injuries, we find the evidence sufficient to sustain the jury's finding that appellant committed the assault with malice and with intent to kill.'

It another assault with intent to murder case, Hignett v. State, 170 Tex.Cr.R. 342, 341 S.W.2d 166, the accused's confession showed that he hit the three-nonths-old victim a number of times. Medical testimony established that there were multiple bruises, that a leg bone was fractured, that there was marked swelling of both legs and that there were several other fractures. A...