Proenza v. State

• Decision Date: 23 July 2015
• Docket Number: NUMBER 13–13–00172–CR
• Citation: 471 S.W.3d 35
• Parties: Abraham Jacob Proenza, Appellant, v. The State of Texas, Appellee.
• Court: Texas Court of Appeals

471 S.W.3d 35

Abraham Jacob Proenza, Appellant,

v.The State of Texas, Appellee.

NUMBER 13–13–00172–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed July 23, 2015

Discretionary Review Granted January 13, 2016

Kristen Jernigan, Attorney at Law, Georgetown, TX, for Appellant.

Luis V. Saenz, District Attorney, Jennifer M. Avendano, Assistant District Attorney, Brownsville, TX, for Appellee.

OPINION

Opinion by Justice Rodriguez

Appellant Abraham Jacob Proenza challenges his conviction for injury to a child, four-month-old A.J.V.,¹by omission, a first-degree felony. SeeTex. Penal Code Ann.§ 22.04(a)(1), (b)(2), (e)(West, Westlaw through Ch. 46, 2015 R.S.) (providing that “[a] person [who has assumed care, custody, or control of a child] commits [a first-degree felony] if he ... intentionally [or] knowingly ... by omission, causes to a child ... serious bodily injury”). The jury returned a guilty verdict and assessed punishment at forty years in the Texas Department of Criminal Justice—Institutional Division. By four issues, Proenza contends: (1) the evidence is insufficient to show he committed the offense of injury to a child resulting in serious bodily injury; (2) the trial court improperly commented on the weight of the evidence; (3) the trial court erred when it denied his motion to recuse; and (4) the trial court abused its discretion when it admitted certain autopsy photographs into evidence. We reverse and remand.

I. Background

A. Abraham and Sandra Proenza

Proenza and his wife Sandra testified that they have two daughters, who were three and one when A.J.V. was born in Minnesota to Sandra's sister on April 2, 2008. Hoping to adopt the baby, Proenza and Sandra drove from Texas to take him home with them. Proenza testified that he had always wanted a little boy, and he and Sandra named him. A.J.V.'s birth mother came to Texas when A.J.V. was approximately three or four weeks old and accompanied Sandra when they took A.J.V. to Su Clinica. It is undisputed that A.J.V.'s birth mother did not sign papers authorizing anyone else, including Proenza or Sandra, to take A.J.V. for medical care. According to Proenza, she would not respond to phone calls and had changed her phone numbers. Proenza believed that, without her permission, he would not be able to take A.J.V. to his scheduled appointment at Su Clinica in early August.²

Proenza and Sandra testified that they raised A.J.V. together until approximately July 20, 2008, when Proenza's mother's daycare closed—Proenza worked there as the director and Sandra as a teacher and driver. Sandra went to Minnesota to work shortly thereafter. Sandra testified that she left A.J.V. and their three-year-old daughter in Proenza's care, while her mother cared for their one-year-old daughter. They enrolled their daughters in another daycare, but according to both Sandra and Proenza, they could not enroll A.J.V. there because they could not show legal guardianship or adoption and, according to Sandra, they did not have A.J.V.'s birth mother's signature on the daycare forms.

Around this same time, J.S.M., Proenza and Sandra's fifteen-year-old nephew and the baby's half-brother, began staying with Proenza because he had nowhere else to live. Proenza testified that J.S.M. agreed to help with A.J.V. Proenza showed J.S.M. how to care for A.J.V.—how to change the baby's diaper and how to feed him; J.S.M. acknowledged that he understood. According to Proenza, J.S.M. cared for the baby when Proenza was not at home and when Proenza was there but “separate with [his] girls.” Proenza also testified that on the Wednesday before A.J.V. passed away, he enrolled in a business school and asked J.S.M. to care for A. J.V. while he was attending classes.

Proenza testified that on August 11, 2008, he went to school and when he returned he checked with J.S.M. to make sure A.J.V. had been fed and bathed. J.S.M. replied that he had. Later that evening, Proenza put A.J.V. to bed while he cooked dinner for his daughters. According to Proenza, A.J.V. was a normal color when he put him to bed. When he checked on A.J.V. fifteen minutes later, A.J.V. was blue and purple in color and his mouth was open. Proenza immediately began CPR and told J.S.M. to call 911. A sheriffs deputy arrived within twenty minutes and told Proenza to keep doing CPR until EMS arrived. EMS arrived fifteen minutes later, took over CPR, and then transported A.J.V. to the hospital. Proenza testified that when the sheriff let him leave, he went to the hospital and learned from his mother that A.J.V. had passed away. Officers took Proenza to the sheriffs department, where he gave a statement.

Proenza explained to the jury that he never knew that J.S.M. had mishandled A.J.V. Proenza related that on August 11, 2008, A.J.V. did not look like he was dying “at all.” He had been throwing up, but not a whole bottle. Proenza did not take A.J.V. to the hospital or Su Clinica because he thought if he took A.J.V. for medical care they would not see him because he did not have proper documentation from A. J.V.'s mother.

B. Pediatrician Carol Grannum, M.D.

Carol Grannum, M.D., a pediatrician employed at Su Clinica, testified that medical records from Su Clinica show that A.J.V. was seen on April 17, 2008, when he was fifteen days old. The results of his newborn screening blood tests were normal, and he weighed approximately seven pounds. An April 29, 2008 entry reported that on that date A.J.V. weighed eight pounds. According to the medical records, A.J.V. was seen at Su Clinica again on June 3, 2008. He weighed ten pounds, eleven ounces and was taking Similac Advance, six ounces every three hours. At a June 10, 2008 follow-up visit, A.J.V. weighed eleven pounds, was coughing less, and eating well. According to Dr. Grannum, the medical records showed that A.J.V. was current on his immunizationsand was progressing as he should according to growth charts.

Dr. Grannum agreed that if someone, other than a parent, tried to take a child to the clinic, he could not be seen, even for a follow-up appointment. Dr. Grannum also testified, however, that she would not deny treatment to a child who was in acute distress: he would be told to go to the hospital's emergency room, or he would be stabilized at the clinic and the clinic personnel would call an ambulance to transfer him to the hospital.

The trial court questioned Dr. Grannum concerning the documentation required for a follow-up visit once a child is a registered patient of the clinic. Later, during re-cross examination, Dr. Grannum clarified that “the [minor] patient has to be with a legal guardian or with the mom or dad.” And, in response to inquiries by the trial court, Dr. Grannum repeated “it's routine that if it's not mom and dad and if that person who is bringing the child in, if that name is not on the form, that person cannot bring the child in.”

C. Peace Officer Jose Barreda

Jose Barreda, a patrol officer with the Cameron County Sheriffs Office, responded to the 911 call from the Proenza home. When Barreda arrived, he found Proenza performing CPR on A.J.V. Barreda described Proenza as “excited nervous” but agreed that Proenza's demeanor gave him no indication that something wrong had happened. Barreda testified that “the baby was not moving, was not breathing, his eyes were open[,] and his mouth was also open.” In his opinion, A.J.V. “had expired.”

D. Paramedic Marciano Montanez Jr.

Marciano Montanez Jr., a paramedic with South Texas Emergency Care EMS, arrived at Proenza's home twenty minutes after he received a call. He began performing CPR on A.J.V. In his opinion, Proenza was helping the child by providing CPR. After securing the child's airway and starting an IV, EMS transported A.J.V. to the hospital.

E. Investigator and Lead Agent Daniel Valerio

Investigator and Lead Agent Daniel Valerio of the Cameron County Sheriff's Office testified that he arrived at Proenza's home after EMS had taken A.J.V. to the hospital. He collected information from the scene and spoke briefly with Proenza, who told him that he placed A.J.V. on a bed in a room by himself because he was crying and when “he was not crying any more, they went back and checked on him. That's when they found—they found him not breathing.” Valerio went to the hospital where Dr. Hayden informed him that A.J.V. had died and that he was badly malnourished.

In the early morning hours of August 12, 2008, Valerio interviewed Proenza at the Cameron County Sheriff's Office.³According to Valerio, Proenza's demeanor during his interview was that he had not done anything wrong, that he was “much more concerned with what was going to happen to him.” On cross-examination, Valerio explained that he reached this conclusion because Proenza “never gave us a right explanation of why he didn't take [A. J.V.] to the doctor.”

Valerio testified that, after obtaining a search warrant, he “went back and photographed” the home to document the living conditions. He explained that he “didn't find any milk there, as best as I can recall, or bottles. At that point in time, the first night we were there, we didn't see any—any used bottles that he was being fed with.”

Finally, Valerio agreed that he arrested J.S.M., who was fifteen at the time, for injury to A. J.V. Valerio also agreed that he had no information that Proenza was feeding A.J.V. anything other than baby formula.

F. Captain Javier Reyna

Captain Javier Reyna, an investigator at the Cameron County Sheriff's Office, testified that he conducted a second recorded interview with Proenza on the afternoon of August 12, 2014. The trial court admitted the DVDs of that interview as State's Exhibits 36 and 37, and they were played for the jury. During cross-examination, Captain Reyna agreed that Proenza mentioned that he had taken A.J.V. to the grocery store a day or two earlier and had bought a four-pack of Stage 1 baby food. But Captain Reyna did not remember seeing baby formula at the house, and even had he seen...