GREGORY DEWAYNE MOORE v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Lang

A jury found Gregory Dewayne Moore guilty of injury to a child and assessed punishment, enhanced by two prior felony convictions, at forty years' imprisonment.   In his sole issue on appeal, appellant contends the evidence is insufficient to support the conviction.   We affirm the trial court's judgment.

Background

Latisha Gilmore testified that she lived in the Trinity Trail Apartments in Pleasant Grove.   At about 4:00 p.m. on April 10, 2009, the complainant, Aliyah Jackson, knocked on Gilmore's door and asked to use Gilmore's telephone to call her “Aunt Mary.” Gilmore testified she did not know Aliyah or her family.   Gilmore asked where Aliyah's mother was, and Aliyah responded that her mother knew she was “out using people's phone.”   Gilmore allowed Aliyah to use her phone and Aliyah tried to call her aunt.   Aliyah remained at Gilmore's house until about 9:00 p.m. on April 10, and tried several times to reach her aunt.   Aliyah tried several times to show Gilmore bruises Aliyah had on her body, but Gilmore “wasn't really trying to pay attention to it.”   Gilmore testified Aliyah did not have any marks or visible swelling on her face at that time.   Aliyah begged Gilmore not to take her home.   However, at about 9:00 p.m., Gilmore started walking Aliyah back to her apartment.   Aliyah directed Gilmore to several different apartments that were not Aliyah's home.   A neighbor recognized Aliyah and took her from Gilmore.

At about 9:30 that evening, Gilmore decided to check on Aliyah.   Gilmore, accompanied by her boyfriend and her son, walked back to Aliyah's apartment.   At that time, Gilmore was talking on the telephone to Aliyah's aunt.   Gilmore testified she was on the ground floor, about fifteen feet below Aliyah's second-floor apartment.   Gilmore looked up at the apartment and, through the window, saw a man, whom she identified in open court as appellant, swinging a belt and whipping hard.   The man then dropped the belt and began punching with his fists.   Gilmore said appellant punched hard, between two and seven times.   Gilmore could not see Aliyah, whom she believed was on a bed, but she could hear her screaming.   Aliyah's aunt told Gilmore to hang up the phone and to call the police.   Gilmore returned to her apartment, called the police, and remained in her apartment until the police arrived.

Mary McDowell testified she is Aliyah's aunt.   Aliyah's father, who is McDowell's brother, brought Aliyah to live with McDowell when Aliyah was five.   Aliyah lived with McDowell from that time until January 2009, just before Aliyah turned seven.   In January 2009, Aliyah began to live full time with her mother Sherica Brown, and would visit McDowell on the weekends.   Appellant, who was Brown's boyfriend, also lived with Brown.   McDowell testified she had never seen Brown use drugs and did not know Brown's history.   McDowell did not know appellant.

McDowell testified that the number of telephone calls she received from Aliyah on April 10, 2009 was not more than usual.   Aliyah generally called multiple times wanting to know when McDowell would pick her up for weekend visits.   McDowell did not know Gilmore, but Gilmore called her on April 10 to find out who Aliyah had been calling on the telephone.   While they were talking on the telephone, Gilmore started screaming.   In response to what Gilmore said, McDowell told her to call the police, and said she and her husband would be there as soon as possible.   When McDowell and her husband arrived, they found several police officers there.   Aliyah seemed dazed and confused and had several bruises and blood on her.   McDowell testified that Aliyah also had welts on her.   McDowell rode in the ambulance with Aliyah to the hospital.   Since that date, Aliyah has lived with McDowell and her family.

Dallas police officer Yolanda Cotton testified she responded to a call from Gilmore regarding “a person who had aggressively spanked a child.”   Cotton went to Gilmore's apartment, and Gilmore directed Cotton to appellant's apartment.   Cotton awaited the arrival of her “cover element.”   After Dallas police officers Duba, Candelaria, and Byous arrived, they all went to appellant's apartment and knocked on the door.   When appellant answered the door, the officers told him why they were there and that they needed to see the child.   Appellant went to another room and got Brown, who then brought Aliyah to the door.   Cotton testified that Aliyah stood by her mother, a little behind the door.   The officers entered the apartment and noticed it was filthy, with trash everywhere.   One officer had appellant sitting in the living room.   Appellant appeared a little surprised to see the police, but he was calm, not agitated.   The officers also found an infant in a bedroom.

Cotton testified Brown appeared sleepy and intoxicated.   Aliyah looked scared and as if she had been crying.   Aliyah was wearing a school uniform of a shirt and long shorts.   She had bruising on her face, which was red and puff, and also welts and belt marks.   Cotton testified the photographs admitted into evidence depicted the injuries seen on Aliyah.   Both appellant and Brown were arrested that night.¹

Aliyah's medical records from Children's Medical Center were admitted into evidence.   They describe Aliyah's injuries as “red raised whelps” to her back, arms, and scalp, her face being extremely swollen and red, and a swollen lower lip, as well as other injuries in various stages of bruising.   Additionally, in the records, Aliyah identified appellant as the one who had inflicted her injuries.

Standard of Review and Applicable Law

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We must defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.

A person commits the offense of injury to a child if the person intentionally or knowingly causes bodily injury to a child fourteen years of age or younger.   See Tex. Penal Code Ann. § 22.04(a)(3), (c)(1) (West 2010).   As charged in this case, an offense under section (a)(3) is a third-degree felony.   Id. § 22.04(f).  The fact finder may infer knowledge and intent from any facts that tend to prove the existence of these mental states, including the defendant's acts, words, or conduct, or from the nature of the wounds inflicted.  Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002).

Analysis

Appellant contends the evidence is insufficient to show he was the one who injured Aliyah or that he intended to cause bodily injury to her.   The State responds that the evidence is sufficient.

The indictment alleged that appellant committed the offense by intentionally and knowingly causing bodily injury to Aliyah, a child younger than fourteen, by striking her with his hand and a belt.   The jury was charged that it was to find appellant guilty of the offense if it found, beyond a reasonable doubt, that appellant knowingly or intentionally caused injury to Aliyah, a child under fourteen, by striking her with his hand or a belt.

Gilmore testified that she saw appellant swinging a belt in a “whooping” motion and punching hard.   Although Gilmore did not see Aliyah, she heard Aliyah screaming.   Gilmore, McDowell, and Cotton testified that Aliyah had injuries to her face and back, and the medical records showed Aliyah had red, raised welts on her back, arms, and scalp, as well as extreme swelling on her face.   Additionally, the medical records indicated Aliyah identified appellant as the one who caused her injuries.²

Conclusion

After reviewing all of the evidence, we conclude a rational trier of fact could have found beyond a reasonable doubt both that appellant was the individual who was beating Aliyah with a belt and his fists and that he intended to cause bodily injury.   Thus, the evidence is sufficient to support the conviction.   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. Brown was arrested for possession of a controlled substance..  FN1. Brown was arrested for possession of a controlled substance.

FN2. Appellant asserts that Brown indicated she was the one who inflicted the injuries.   However, this was brought out during a hearing outside of the jury's presence.   This was not presented to the jury and, therefore, is not part of the evidence in the case..  FN2. Appellant asserts that Brown indicated she was the one who inflicted the injuries.   However, this was brought out during a hearing outside of the jury's presence.   This was not presented to the jury and, therefore, is not part of the evidence in the case.

DOUGLAS S. LANG JUSTICE