Moore v. State

• Decision Date: 24 January 1986
• Docket Number: No. 05-85-00234-CR,05-85-00234-CR
• Citation: 708 S.W.2d 484
• Parties: Volney Ray MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 484

708 S.W.2d 484

Volney Ray MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 05-85-00234-CR.

Court of Appeals of Texas Dallas.

Jan. 24, 1986.

Rehearing Denied March 24, 1986.

Elizabeth L. Phifer, Rod L. Poirot, Dallas, for appellant.

Before VANCE, GUILLOT and HOWELL, JJ.

VANCE, Justice.

Volney Ray Moore appeals from his conviction for intentionally and knowingly causing serious bodily injury to a child. The court, after a bench trial, assessed punishment at ten years' confinement. Appellant presents four grounds of error. In ground of error one and two, appellant contends that the trial court erred in failing to acquit appellant because: (1) the evidence at trial was insufficient to prove that appellant intentionally and knowingly committed serious bodily injury to a child; and (2) the evidence was insufficient to prove that appellant's actions directly caused serious bodily injury to the child. In ground of error three, appellant contends the trial court erred in rescinding its order granting his motion for new trial. In ground of error four, appellant contends he is entitled to acquittal because the trial court granted his motion for new trial premised solely upon insufficiency of evidence. We disagree with each of appellant's contentions and, for the reasons stated below, we affirm the judgment of the trial court.

On September 13, 1983, appellant and his wife brought their adopted five-year old son, David, to Dr. Mueller's office for medical treatment. Appellant and his wife admitted having "spanked" David with tree branches, belts, wooden spoons, and a wooden towel rod. They initially spanked David on the buttocks and, as cuts and lesions developed, they continued spanking downward until most of the entire lower extremities were covered with lesions. Dr. Mueller recommended immediate hospitalization because the child was in critical condition due to the severity of the wounds. At Children's Medical Center, David was examined by Dr. Paul Prescott. Dr. Prescott found that the child had been hit with intense force and that a pattern of injury had been inflicted over a period of time on a repeated basis. Dr. Prescott also found that the wounds had become contaminated as a result of appellant's improper care and treatment of the injuries.

On October 10, 1983, appellant was indicted for the offense of injury to a child. After the bench trial, appellant filed a motion for new trial premised solely upon insufficiency of the evidence. When the court considered the motion at a hearing, the State was not present, and the trial court granted appellant's motion. When the State discovered the court's granting of appellant's motion for a new trial, it filed a response asserting that it had never received a copy of the motion, that the procedures appellant's counsel followed violated article 40.06 of the Texas Code of Criminal Procedure, ¹ and that the granting of the motion without notice to the State was fundamentally unfair. The appellant also filed for a writ of habeas corpus asserting that the court's granting of a new trial based on insufficiency of evidence mandated a judgment of acquittal as a matter of law. The trial court, after a hearing with both parties present, denied the writ of habeas corpus and rescinded its order granting a new trial. From this adverse ruling and from the adverse judgment which was reinstated by the trial court, appellant brought this appeal.

In ground of error one, appellant challenges the sufficiency of the evidence to prove that he intentionally and knowingly committed serious bodily injury to a child. Appellant cites Beggs v. State, 597 S.W.2d 375, 376 (Tex.Crim.App.1980) for the rule that a defendant's mistaken belief concerning the results of his actions negates the intent required for the commission of injury to a child. Consequently, appellant argues that his mistaken belief that he was not inflicting serious injuries when disciplining his child and his mistaken belief that his home remedy for the skin lacerations was the correct treatment negate the culpable mental state required for conviction.

                We disagree.  In Beggs, a defendant's testimony concerning his mistaken belief was not an absolute bar against prosecution.  Testimony concerning an accused's mistaken belief merely raises a fact issue that entitles him to a jury charge on the issue.  Id. at 378.   However, the present case was tried without a jury.  The court, as trier of fact as well as of the law, may draw any reasonable inference from the evidence, and any fact issue, not expressly found, is deemed resolved in support of the final judgment.  Merritt v. State, 643 S.W.2d 448, 450 (Tex.App.--Corpus Christi 1982, no pet.)
                

Consequently, in the case at bar, the question of whether the defendant was acting under a mistaken belief was resolved against him. Therefore, the only consideration under this ground of error is whether the evidence was sufficient to support the court's implied finding of appellant's intent to commit the crime.

The standard of review in a challenge to the sufficiency of evidence is as follows:

[The appellate court must] view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.

Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex.Crim.App.--1984). The intent element required for the offense of an injury to a child was defined in the Beggs ² case:

Because injury to a child focuses on the result of the suspect's conduct, the allegation ... that the appellant did 'intentionally and knowingly engage in conduct that caused serious bodily injury' was an allegation that (1) it was her conscious objective or desire to cause serious bodily injury and (2) that she was aware that her conduct was reasonably certain to cause serious bodily injury.

597 S.W.2d at 377. However, a witness's testimony concerning intent is not conclusive because the trier of fact may infer the defendant's intent from his acts, words, and conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982). The trier of fact is not compelled to believe the testimony of a witness in a criminal case, even if the testimony is not controverted. Abdnor v. State, 687 S.W.2d 14, 16 (Tex.App.--Dallas 1984, no pet.).

In the case at bar, all of the expert witnesses, including the appellant's, testified that the appellant intended to whip his child. Dr. Mueller, the first examining physician, testified that appellant admitted that he repeatedly struck his child with tree branches, belts, wooden spoons, and a wooden towel rod. Appellant's child, David, testified that appellant had given him many whippings with a wooden stick and he was whipped until he bled. David further testified that appellant would set a timer and would whip him again if he failed to clean up all the blood before the timer rang. Dr. Prescott, a pediatrician who has treated approximately 8,000 victims of child abuse, gave his opinion that there was an element of sadism in the beatings. He also gave this explanation of the intentional nature of appellant's conduct:

Q. Well, Doctor, to what extent would you say that the wounds initially inflicted were intentionally inflicted?

A. I believe they were inflicted as a form of discipline ... moving down the legs as one area became more injured. Once you have seen that kind of damage that your beating has produced and then you still beat, and continue to do it, then you are getting some type of deliberateness to that, yes. And I believe that that was intentionally carried on.

After reviewing Dr. Prescott's testimony and the entire trial record, we conclude that it is reasonable to infer from the repetition of the beatings, the force used to inflict the injuries, the instruments used to inflict the injuries, and the period of time over which the child was injured, that appellant intended to cause the result of serious In ground of error two, appellant challenges the sufficiency of the evidence to prove that the whippings actually caused serious bodily injury to the child. It is appellant's position that the initial striking inflicted only superficial wounds which later became infected due to the child's picking at the wounds and appellant's improper medical treatment. We disagree. The standard of review requires us to review all the evidence most favorable to the verdict to determine if a rational trier of fact could find, beyond a reasonable doubt, the essential elements of the crime. Sutherlin, 682 S.W.2d at 548-549. In the present case, the medical testimony is sufficient evidence to sustain the conviction against appellant. Dr. Mueller, the first examining physician, testified that even without the infection, permanent disfigurement would have resulted from the wounds. He further testified that David's scratching of the wounds had little effect on the extent and seriousness of the wounds. Dr. Paul Prescott, the physician primarily responsible for David's medical care, testified that David's wounds were the result of "direct traumatic injury", and the contamination of David's wounds "contributed little or nothing to the extent of the injury." Dr. Prescott's opinion was that David had suffered serious permanent disfigurement and the protracted loss and impairment of his skin as a result of the injuries. Thus, viewing the evidence most favorable to the verdict, we conclude that the trier of fact could find that the appellant's actions did cause the bodily injuries alleged in the indictment. We overrule this ground of error.

bodily injury. Therefore, using the standard of review set out above, we conclude that the trier of fact could have found beyond a reasonable doubt, that appellant had the requisite intent to commit the crime. We overrule appellant's first ground of error.

In his third ground of error, appellant contends that the trial court erred in rescinding its previous order...