West v. State

• Decision Date: 25 July 2018
• Docket Number: No. 10-15-00326-CR,10-15-00326-CR
• Parties: DUSTIN WEST, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

DUSTIN WEST, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-15-00326-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

July 25, 2018

From the 18th District Court Johnson County, Texas

Trial Court No. F49060

MEMORANDUM OPINION

A jury convicted Appellant Dustin West of capital murder in the death of his girlfriend's two-year-old child. Because the State did not seek the death penalty, the trial court imposed a mandatory life sentence. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2017).¹ West appeals in five issues. We will affirm.

Background

Cherice Richey and her two-year-old son, Z.R., moved in with West around the first of August 2013. Less than two weeks later Z.R. was dead. On August 12, 2013, Cherice left Z.R. in West's sole care beginning at approximately 11:00 a.m. At approximately 3:30 p.m., West brought Z.R. to the emergency room at the Cleburne hospital because Z.R. was not breathing. Z.R. was pronounced dead at approximately 4:00 p.m. The medical examiner, after an autopsy, attributed the immediate cause of Z.R.'s death to blunt force injuries to the head and brain, and she attributed the manner of his death to homicide.

Sufficiency of the Evidence

In his first issue, West asserts that the evidence was insufficient to sustain his conviction for capital murder. Specifically, West argues that the jury could not have rationally or reasonably inferred that because West spanked Z.R., he therefore also struck Z.R. in the back of the head (or struck the back of Z.R.'s head against another object). West further argues that there was no evidence from which the jury could infer that West caused Z.R.'s death knowingly.

The Court of Criminal Appeals has expressed our constitutional standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

The Court of Criminal Appeals has also explained that our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). If the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. Further, direct and circumstantial evidence are treated equally: "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder "is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Gerron v. State, 524 S.W.3d 308, 317 (Tex. App.—Waco 2016, pet. ref'd).

We measure the sufficiency of the evidence by the elements of the offense as defined in a hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011). Such a charge would be one that accurately sets out the law,is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.; Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). The law as authorized by the indictment means the statutory elements of the charged offense as modified by the charging instrument. See Gollihar, 46 S.W.3d at 254.

The indictment charges West with knowingly causing the death of Z.R., who was younger than ten years of age, by striking him with or against an unknown object. An individual commits capital murder if he intentionally or knowingly murders an individual under ten years of age. TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp. 2017).² "A person acts knowingly, or with knowledge . . . of his conduct when he is aware that his conduct is reasonably certain to cause the result." TEX. PENAL CODE ANN. § 6.03(b) (West 2011). Knowledge is a fact question for the jury and is almost always proven through the circumstances surrounding the crime. See Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); see also Lee v. State, 442 S.W.3d 569, 580 (Tex. App.—San Antonio 2014, no pet.). A culpable mental state may be inferred from: (1) the acts, words, and conduct of the accused; (2) the extent of the injuries to the victim; (3) the method used to produce the injuries; and (4) the relative size and strength of the parties. Rhymes v. State, 536 S.W.3d 85, 95 (Tex. App.—Texarkana 2017, pet. ref'd). Injury to a child cases areparticularly dependent upon circumstantial evidence because "there is rarely direct evidence of exactly how the child's injuries occurred." Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). A defendant's changing narrative of how a child's injuries occurred provides circumstantial evidence of guilt. Bearnth v. State, 361 S.W.3d 135, 140-41 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); see also Kemmerer v. State, 113 S.W.3d 513, 515 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (jury could have viewed as evidence of guilt that child's injury required more force than defendant's explanation of short fall and defendant's changing explanations). Additionally, a defendant's sole access to a child at the time the child's injuries were sustained provides circumstantial evidence that the defendant was the cause of those injuries. Bearnth, 361 S.W.3d at 140. "Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies." Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref'd).

It is undisputed that Z.R. was under ten years of age and that he was left in West's sole care shortly before he died. It is also undisputed that there was a discrepancy in size between West, an adult male, and Z.R., a two-year-old child. The evidence at trial reflected that Z.R. had extensive injuries all over his body, that those injuries were inconsistent with West's version of events, and that West gave conflicting versions of how Z.R.'s injuries occurred. As West did not testify, his version of the events surrounding Z.R.'s death comes from his statements to others.

Events Preceding Z.R.'s Death.³ The evidence, viewed in the light most favorable to the verdict, establishes: Cherice and West met in December 2012, they began dating in early 2013, and they moved in together in August 2013, with Cherise bringing along her two-year-old son, Z.R. In a series of texts in the days prior to Z.R.'s death, West accused Cherice of babying Z.R. and believed that Z.R. hated him. West also texted that Z.R. needed his "butt whooped" and that Z.R.'s constant whining would have to stop. Additionally, West and Z.R. never spent any significant time alone together before Cherice and Z.R. moved in with West. West watched Z.R. and West's son B.W. once while Cherice was taking a test, and the week prior to Z.R.'s death, West was alone with Z.R. for approximately one hour. Z.R. suffered no injuries on either occasion.

Z.R. had no medical problems other than asthma and a minor hip dysplasia that did not hinder his walking. The evening before Z.R.'s death, Cherice observed no bruises or other injuries on Z.R. when she gave him a bath other than some healing ant bites. On the day of Z.R.'s death, Cherice agreed to take her brother's daughter and step-daughter to a doctor's appointment. While Cherice originally planned to take Z.R. with her, West volunteered to keep Z.R. and put him down for a nap after they ate lunch. Approximately twenty minutes prior to her departure, Cherice took a picture of West and Z.R. urinating off the back porch and again observed no bruises or other marks on Z.R.

Cherice left West's residence at approximately 11:00 a.m., and West called her at approximately 1:30 p.m. to tell her that he spanked Z.R. because Z.R. threw his sippy cupat him. Cherice was angry with West because she had told him on a previous occasion when he spanked Z.R. that she did not discipline Z.R. in that manner. West told Cherice that Z.R. was taking a nap, and she asked West to send her a picture of Z.R. The picture West sent to her showed Z.R. lying on a bed on his stomach with his head turned away from the camera. Z.R. was fully clothed, and his face was not visible in the picture. Approximately seven minutes later, West texted Cherice to tell her that Z.R. had fallen and that he had hit his head. The text stated: "Z just fell out of the truck. I went around to open his door cuz we took trash to the dumpster and he opened and tried to jump out. I didn't get across in time. I feel terrible. He hit his head pretty hard. I think he's okay though."...