Tommy Baldwin v. The State of Texas--Appeal from 240th District Court of Fort Bend County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-06-00862-CR

Case Date: 02/07/2008

Plaintiff: Raymond Becerra

Defendant: The State of Texas--Appeal from 174th District Court of Harris County

Preview:Tommy Baldwin v. The State of Texas--Appeal from
240th District Court of Fort Bend County
Opinion issued February 7, 2008
Opinion issued February 7, 2008
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-00861-CR & 01-06-00862-CR
TOMMY BALDWIN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 37,244A & 37245A
MEMORANDUM OPINION
A jury found Tommy Baldwin guilty of two charges of the first degree felony offense of injury to a child arising out of
the treatment of his two nephews. Following their conviction, the jury assessed punishment for Tommy at ten and
twenty years confinement for each charge, respectively. See Tex. Penal Code Ann. 22.04 (Vernon Supp. 2007). On
appeal, Tommy challenges the legal and factual sufficiency of the evidence supporting his convictions and the trial
court s admission of testimony and a videotape concerning the victims forensic interviews. Finding no error, we
affirm.
Background
R.D. and his younger brother, T.D., were born while their mother, Surrelia, was still a teenager. At first, they lived
with their maternal grandmother. After a few years, their grandmother died, and the boys then went to live with their
mother. She had a drug problem, however, and was unable to provide adequate care. When CPS intervened and
investigated the boys care, Surrelia agreed to let the boys live with her mother s sister, Barbara Baldwin, and Barbara s
husband, Tommy.
Surrelia periodically had supervised visits with R.D. and T.D. at the CPS office. During one visit, Surrelia noticed
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marks on R.D. s face. R.D. told her that he got the marks from sleeping on the garage floor where he had been sent to
sleep as punishment for doing something wrong. When Surrelia reported this incident to CPS, the boys were removed
from the Baldwin home and placed in foster care. But, after a few months, CPS returned the boys to the Baldwins.
Soon after, Surrelia was convicted of theft and possession of a controlled substance and went to prison. During that
time, she did not see her children.
According to R.D., who was fourteen years old at time of trial, he and his brother slept in the very back of the
Baldwin house. They would eat meals separately from the family, by the front door in the hallway. Most of the time,
the Baldwins fed him sauerkraut, or rice and beans. Both boys qualified for free breakfast and lunch at school. At some
point, Barbara began bringing the boys to school after breakfast time and taking the boys out of school at lunchtime
and bringing them back after lunch. Barbara gave him either a sandwich or, if he got in trouble at school, sauerkraut as
a punishment food. R.D. recalled having a lot of problems at school.
R.D. testified that, while living with the Baldwins, he did not get enough to eat and was usually hungry. He was so
hungry that he would take other people s food at school. After this happened, Barbara took the boys out of public
school and homeschooled them. If R.D. did not complete his homework, he would not be allowed to eat. When asked
if he ever ate things that people did not normally eat, R.D. testified that he had eaten dog food and cat food found in
the garage, and feces. T.D. also testified that he and his brother had eaten garbage and dog food because they were not
given enough to eat. R.D. recalled that when Tommy returned from work, he would see R.D. in the locked garage on
his way into the house but did nothing to help him, other than to give him ice cream occasionally.
T.D. testified that if he did not complete his school work, Barbara would punish him by having him kneel and lift his
arms over his head until he was allowed to get up. T.D. also recalled not getting enough to eat.
T.D. and R.D. did not get along. The Baldwins dealt with this by keeping the boys separated at night. One would sleep
in the locked bedroom and the other would be locked in the garage to sleep there. They would switch back and forth.
The Baldwins would give the boy in the garage a bucket instead of allowing him to use the bathroom inside.
When T.D. began attending public elementary school, he was evaluated as emotionally disturbed and placed in special
education. An elementary school administrator recalled that both boys had behavioral problems. When they got in
trouble, it usually was for stealing food. The administrator also testified that when she discussed the boys hunger with
Barbara, Barbara continued to insist on bringing the boys home for lunch, even though free school lunch was available
to them. She also began to bring the boys later to school, so that they would miss breakfast, which was also free.
One of R.D. s elementary school teachers testified at trial. She stated that she did not think that R.D. had any behavior
problems. She recalled that when Barbara came to the classroom, she would check R.D. s desk and got upset with him
if he had already eaten part of his lunch. After that, she began to take R.D. home for lunch. The teacher noticed that
R.D. still seemed hungry when he came back to school, and she would occasionally share her lunch with him. T.D.
likewise testified that the nurse and some of the teachers would share their food with R.D. and him. R.D. s teacher also
remembered a few occasions when R.D. had stolen food from others in the classroom. She further recalled that he was
becoming noticeably thinner before Barbara withdrew him from school.
The elementary school nurse recalled that the boys appeared to be hungry and always wanted to eat. They would come
to her office, and she would talk with them and give them snacks. The nurse met with Barbara when she took the boys
out of school, and gave her a chart of the basic food groups. Barbara took the chart without comment. The nurse also
testified that she would see the Baldwins at church. Sometime after Barbara removed the boys from school, the nurse
saw the boys at church and noticed that R.D. appeared very thin, as if he were receiving chemotherapy or had cancer.
In late summer 2002, CPS received a referral concerning R.D. and T.D. The referral stated that the boys were not
receiving proper nutrition and were being kept in the Baldwins garage. When a CPS caseworker made contact with the
boys, the caseworker brought them to the CPS office and gave them something to eat. After R.D. ate, his stomach
began to hurt, and the caseworker brought him to Texas Children s Hospital emergency room.
Dr. Kathleen Motil, a board-certified pediatrician and board-certified pediatric gastroenterologist nutrition specialist at
Texas Children s, was called into the emergency room to consult on R.D. s case. Motil testified that R.D. was the most
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severely malnourished child she had seen in a long time. According to Motil, R.D. was suffering from severe protein
calorie malnutrition, specifically of a combined kwashiorkor and marasmus type. She added that numerous other
diagnoses, reflecting from the metabolic abnormalities of his body and resulting from the severe malnutrition, could
also apply. These additional conditions suffered by R.D. included anemia, hepatitis, hypokalemia, and
hypohosphatemia. Motil explained that these metabolic abnormalities were life-threatening conditions. For example,
Motil explained, potassium is extremely important in heart function, so that abnormally low levels of potassium, such
as those occurring in R.D., place malnourished children at risk of death.
As a result of the malnutrition, R.D. also was so constipated from the malnutrition that he had an extremely
protuberant and hard abdomen. Motil diagnosed R.D. as having fecal impaction, which required treatment with an
invasive procedure. Motil explained that R.D. s condition was consistent with his severe malnourishment.
Also as a result of severe malnourishment, R.D. lacked muscle and fat mass and had a damaged kidney. To treat his
malnourishment, R.D. was given as much normal food as he wanted as well as vitamin and mineral supplements. Motil
noted that R.D. had a voracious appetite and that he hoarded food that he could not finish.
R.D. was discharged from the hospital after nine days, but was readmitted a little over a week later with an enlarged
liver. Motil determined that R.D. s liver had swollen because he was eating so much at his foster care placement that
his starved body could not keep up. R.D. s chest x-ray also showed an abnormal heart, which, Motil explained, related
to R.D. s poor nutritional status, lack of good muscle tone, and the beginning of correction of malnutrition by feeding.
Motil testified that, while refeeding directly caused these abnormalities, starvation was their ultimate cause. Motil
explained that she was able to rule out other possible causes because, by treating R.D. with a normal diet supplemented
with vitamins and minerals, he was able to recover from the metabolic abnormalities, regain the weight he had lost,
and catch up to a height and weight consistent with what would have been expected based on medical records of his
growth from birth until he lived with the Baldwins.
Based on her diagnosis and observations, Motil ultimately concluded that, as a result of starvation, R.D. suffered
serious bodily injury that created a substantial risk of death. Motil also opined that the permanent effects of starvation
cause R.D. to suffer an increased risk of death in the future from hypertension, heart attack, or stroke.
Motil concluded that T.D., too, suffered from chronic malnourishment. During the time he lived at the Baldwins house,
T.D. lost thirty-one percent of his body mass. The pediatrician observed that T.D. s larger size may have prevented
him from suffering as severely from the condition as his brother. Nevertheless, the pediatrician concluded, the large
amount of body mass lost by T.D. placed him in serious risk and his condition ultimately could have lead to his death.
Once T.D. left the Baldwins home and was placed in foster care, he grew over an inch in just a few weeks. A social
worker who had observed T.D. testified that T.D. also showed signs of hoarding food and became very upset and
agitated when he did not have free access to food.
Discussion
I. Legal and Factual Sufficiency Challenge
Tommy first contends that the evidence is legally and factually insufficient to support his convictions on each of the
two counts. Specifically, he asserts that the evidence is legally and factually insufficient to support, beyond a
reasonable doubt, a finding that he intentionally or knowingly caused serious bodily injury to the victims by failing to
provide adequate food or nourishment or adequate medical care.
Standard of review
In evaluating the legal sufficiency of the evidence, we view it in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.
App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701,
703 (Tex. Crim. App. 1995).
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We do not weigh any evidence or evaluate the credibility of any witnesses, as this was the function of the fact finder.
See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim.
App. 1992). Instead, we must determine whether both the explicit and implicit findings of the trier of fact are rational
by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at
422. In making this determination, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v.
State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
In conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547,
557 (Tex. Crim. App. 1999). Our factual sufficiency review must include a discussion of the most important and
relevant evidence that supports the appellant s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim.
App. 2003). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and
manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). We may not conclude that the evidence is factually insufficient simply because
we disagree with the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). The fact finder alone
determines the credibility of the witnesses and may choose to believe all, some, or none of their testimony. Cain v.
State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).
Felony injury to a child
The jury charge instructed the jury to convict Tommy if it determined from the evidence beyond a reasonable doubt
that he intentionally or knowingly by act or omission caused serious bodily injury or serious mental deficiency or
impairment to T.D. Tommy asserts no challenge to the legal or factual sufficiency of the evidence to show that he
caused serious mental deficiency or impairment to T.D. Having failed to challenge that he caused serious mental
deficiency or impairment to T.D., we hold the evidence is legally and factually sufficient to uphold the conviction for
felony injury to a child. We further determine that the evidence is legally and factually sufficient to show that Tommy
caused serious bodily injury to R.D. and T.D.
Injury to a child is a result-oriented offense requiring a mental state that relates not to the charged conduct but to the
result of the conduct. See Alvarado v. State, 704 S.W.2d 36, 38 (Tex. Crim. App. 1985); see also Stuhler v. State, 218
S.W.3d 706, 718 (Tex. Crim. App. 2007). It is not enough for the State to prove that the defendant engaged in the
alleged conduct with the requisite criminal intent; the State must also prove that the defendant caused the result with
the requisite criminal intent. Lee v. State, 21 S.W.3d 532, 540 (Tex. App. Tyler 2000, pet. ref d) (citing Cook v. State,
884 S.W.2d 485, 490 (Tex. Crim. App. 1994)).
The fact finder may infer intent from the accused s acts and words as well as the surrounding circumstances. See
Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984). A jury may reasonably infer that the defendant
intentionally, not accidentally, inflicted the injury when the defendant fails to render aid known to be needed. Tezino
v. State, 765 S.W.2d 482, 485 (Tex. App. Houston [1st Dist.] 1988, pet. ref d). A reasonable inference also arises in the
presence of proof that the defendant tried to conceal the conditions that led to the victim s injuries. Id. at 485.
The jury heard evidence that both R.D. and T.D. lost weight and stopped growing during the three years they lived
with the Baldwins, and had an opportunity to view photographs of the boys. The jury also heard testimony from
Barbara that the boys suffered from persistent diarrhea for a three-year period. Barbara testified that she sent the boys
to school wearing disposable diapers when they had diarrhea. Even while attributing the diarrhea to the fact that they
ate dog food, she acknowledged the diarrhea was a problem. Yet, she admitted that T.D. had diarrhea for a year before
she took him for a doctor visit, and her testimony was at odds with the doctor s recommendation, reflected in the
medical records, that T.D. receive a high-fat, high-calorie diet. She also conceded that she took T.D. to the doctor only
once during the three years the boys lived with her, and that she did not take R.D. to see a doctor for treatment at all.
Barbara also testified that the boys had good appetites, yet she prevented the boys from participating in the free
breakfast and lunch programs at public school and eventually removed them from public school altogether as they
became noticeably thinner and constantly sought food. She also punished the boys for eating at school when they were
hungry and admitted to using punishment food, such as sauerkraut, to discipline the children, even though she denied
depriving them of adequate food.
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The jury could also reasonably infer that Tommy observed the boys conditions and their constant hunger. Tommy
testified that he also gave the boys punishment food whenever they did something wrong. He also stated that he was
aware that the boys had persistent diarrhea and that they were losing weight, yet he conceded that he did not take them
to the doctor. The jury also heard that Tommy would see the boys in the locked garage when he returned home from
work and did nothing to help them. One of the boys testified that Tommy would bring them out for fast food
approximately once a week and occasionally gave them ice cream. Tommy also admitted that he could not explain
how the boys lost weight and failed to grow taller. This testimony supports a reasonable inference that Tommy
observed the boys appearance and was aware that they were not getting enough food, yet did nothing to change the
situation. The attempts to conceal treatment of the boys, coupled with the testimony of the hospital pediatrician
concerning the severity of their malnourishment, permitted the jury to reasonably infer that R.D. and T.D. suffered
serious bodily injury because Tommy intentionally and knowingly failed to provide them with adequate nutrition and
medical care. See, e.g., Hill v. State, 881 S.W.2d 897, 900 01 (Tex. App. Fort Worth 1994) (holding that evidence
supported conviction for injury to child by food deprivation where evidence suggested that deprivation occurred over
course of several years, victim s growth chart had flat-lined, parents ate normal food separately from children and
punished victim for attempting to take food from kitchen when hungry, and victim was restrained to prevent him from
obtaining food without permission and essentially died of starvation), aff d, 913 S.W.2d 581 (Tex. Crim. App. 1996).
The jury need not have credited the Baldwins testimony attributing the boys malnutrition to emotional and behavioral
problems. See Dewberry, 4 S.W.3d at 740. We disagree with Tommy that the three-year period of nutritional
deprivation evidenced at trial is not legally and factually sufficient to support his convictions. His failure to obtain
medical attention or provide adequate food or nourishment in light of the boys obviously malnourished condition and
persistent diarrhea supports a reasonable inference that he consciously desired or was aware that his conduct was
reasonably certain to cause the boys serious bodily injury, and such findings are not against the great weight and
preponderance of the evidence.
II. Evidentiary challenge
Tommy next contends that the trial court erred in allowing Bonnie Martin, a forensic interviewer with Fort Bend
County Children s Advocacy Center, testify about the outcry statements made to her by R.D. and T.D. and allowing
into evidence videotapes of those statements. We review a trial court s decision to admit or exclude evidence for an
abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A reviewing court should not reverse
unless the record shows a clear abuse of discretion. Zuliani, 97 S.W.3d at 595; Roberts v. State, 29 S.W.3d 596, 600
(Tex. App. Houston [1st Dist.] 2000, pet. ref d). An abuse of discretion exists only when the trial judge s decision was
so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani, 97 S.W.3d at 595;
Roberts, 29 S.W.3d at 600.
Our review of the record reveals that Martin did not testify as an outcry witness. Although the State initially designated
Martin as an outcry witness, she testified before the jury only to authenticate the videotapes of the interviews she
conducted with R.D. and T.D. Defense counsel specifically informed the trial court that the defense had no problem
with allowing the State to bring Martin as a witness for that purpose. Accordingly, we find no merit to Tommy s
challenge to the admission of Martin s testimony.
Conclusion
We conclude that the evidence is legally and factually sufficient to support the jury s findings of guilt on both counts
of felony injury to a child against Tommy Baldwin, and that the trial court did not abuse its discretion in admitting
Martin s testimony. Finding no error, we affirm the judgments of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
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