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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00048-CR

____________________

GERALD GLENN NUGENT JR., Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 253rd District Court 

Liberty County, Texas

Trial Cause No. CR28370 

________________________________________________________ _____________

MEMORANDUM OPINION 

The trial court found Gerald Glenn Nugent Jr. guilty of murder, and 

sentenced him to sixty years in prison. Nugent maintains that his jury waiver was 

invalid, and that the evidence is insufficient to support the conviction.

THE EVIDENCE 

Brook was the daughter of Gerald Nugent and Martina Sellers. On October 

20, 2005, Sellers arrived at Cleveland Regional Medical Center with seven-weekold Brook. A registration clerk saw Sellers holding Brook in the lobby. Sellers was 
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upset. The clerk noticed bruising on Brook’s forehead and neck. Brook stiffened in 

the clerk’s arms, and was not focusing or visibly breathing. The clerk called the 

nurse. The nurse came immediately and took Brook to a room.

Lisa Paxton, a nurse at Cleveland Regional, testified that she first had 

contact with Brook in the emergency room. Brook was very pale, her arms were 

rigid and down by her sides, her legs were stiff, her eyes were deviated to the left 

and not focusing, and her body was jerking. She was seizing and her breathing was 

labored. Paxton described Brook’s injuries as life-threatening.

Paxton observed bruising under Brook’s chin and on her forehead. When 

Paxton removed Brook’s clothes, Brook had obvious bruising to her chest and 

abdomen. Paxton testified Sellers denied knowing the bruises were there. Sellers 

said that she had been at work and that she did not know what had happened, and 

that maybe her other child had picked the baby up out of the swing or dropped a

toy on her. When Sellers went to work, she left Brook with Brook’s father.

Dr. Paul Allencherril, a physician in internal medicine, testified that he was 

working in the emergency room at Cleveland Regional. Allencherril described 

Brook as being limp and in respiratory distress. The medical staff intubated Brook

and stabilized her. She was administered multiple doses of medicine to control 

seizures. Her hemoglobin was extremely low, which indicated she had sustained 
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blood loss. Allencherril indicated that Brook tested positive for marijuana and 

tricyclic antidepressant.

A CAT scan showed that Brook had sustained blunt-force injury to the head, 

multiple skull fractures, and multiple areas of bleeding inside the brain.

Allencherril noted there were bruises on Brook that would have indicated grabbing 

with excessive force. The skull injuries were consistent with “strong hands, against 

a wall, on the floor.” Allencherril described the force necessary to cause the skull 

injuries as “[c]onsiderable force,” and he agreed that the force necessary to cause 

those injuries would be a force that the actor would know would result in serious 

injuries to the child. Allencherril testified the injuries were life-threatening. He 

described her condition as being the result of “inflicted” injuries and “nonaccidental trauma.” The hospital did not do further tests or x-rays to determine 

whether Brook had any healing injuries, because of the necessity to stabilize and 

transfer her for further treatment.

Brook was transferred to Texas Children’s Hospital in Houston for a higher 

level of care. Dr. Jeanine Graf, a pediatric intensive care physician at Texas 

Children’s, testified that Brook’s condition upon arrival was life-threatening.

Brook’s care team was concerned that Brook would die. The staff at the hospital 

considered taking Brook off life-support.
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Brook’s head injuries were caused by “a severe degree of blunt force . . .

[similar] to a motor vehicle accident where a child or an adult is thrown head first 

into a windshield” which “may have been combined with a shaking injury.” Graf 

testified that Brook’s head injuries could not “have been going on for hours or 

days[,]” that Brook would have immediately been symptomatic, and that the 

severity of her injuries would have been “readily apparent to any lay observer or 

any medical personnel” because Brook would not have been breathing normally 

and would have changed color.

In addition to a parietal skull fracture, bleeding within the skull, and retinal 

hemorrhages, Brook also had evidence of old healing fractures of the ninth and 

tenth ribs, her left big toe, and left distal femur. Graf explained that Brook’s 

injuries were non-accidental and that the rib fractures were consistent with a 

squeezing injury. Graf stated that there were new and old injuries. Brook was 

abused on at least two occasions. Brook also had external bruising that did not 

“necessarily correlate” with her fractures. Graf and Allencherril testified that 

Brook’s injuries were not consistent with the account of a child being held in a 

person’s arms and the striking of the child’s head on a door frame without even a 

cry from the child. Neither were the injuries consistent with those allegedly arising 

from the activity of the children jumping on a bed while Brook was lying on the 
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bed, from Brook’s being tossed across a bed and rolling down on the floor, or with 

a person’s holding Brook and dropping her.

Brook was discharged from Texas Children’s in November 2005 and went 

into foster care. She was able to breathe on her own but required a feeding tube.

She required medication to control her seizures. Graf believed Brook’s condition 

would not improve. Graf did not know how long Brook would live.

Two foster mothers who cared for Brook at different times testified 

regarding the specialized care provided to Brook in their homes. Brook required 

twenty-four-hour-a-day care, and never improved. Brook could not talk, walk, 

reach for anything, roll completely over, or sit up independently.

Brook had a feeding button implanted in her stomach and had surgery at 

Texas Children’s for her severe reflux. The foster mother caring for Brook at the 

time thought Brook was improving after the surgery, but Brook died November 23, 

2007. The foster mother found Brook unresponsive in her crib and called the 

authorities.

Dr. Kathryn Haden-Pinneri, a forensic pathologist, testified that she 

reviewed Brook’s medical records and performed the autopsy on Brook. HadenPinneri stated that at the time of the autopsy Brook showed no sign of recent 

injuries. The toxicology screening presented normal results and a check of Brook’s 
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electrolytes showed she was not dehydrated. Haden-Pinneri explained that in the 

weeks prior to Brook’s death Brook had experienced complications such as not 

tolerating the feeding tubes, and she had developed a urinary tract infection. Since 

her release from the hospital in 2005, Brook was in a persistent vegetative state and 

could have died from complications at any time. Haden-Pinneri testified that in her 

opinion Brook’s death was due to complications of remote, non-accidental, blunt 

head trauma that she suffered on October 20, 2005. Brook had undergone a 

“jejunostomy tube replacement, which is a feeding tube that goes from the outside 

of the body into the intestines” approximately two weeks prior to her death. The 

pathologist saw no evidence that the surgery contributed to the cause of death.

Stacey Greke, a child abuse investigator for CPS, went to Cleveland 

Regional early on the morning of October 21st. She spoke with hospital personnel, 

took photographs of Brook, and interviewed Brook’s parents. Greke testified that 

when she first began questioning Nugent, he initially appeared “flippant,” but then 

became more serious as the interview progressed. Greke asked Nugent what had 

happened to Brook. Nugent at first said, “I don’t know. You tell me.” He 

subsequently told Greke that around 10 p.m. on October 19th he was reaching up 

into a closet to grab a diaper and had bumped Brook’s head against the door frame.

He said that her head was partly protected by how he was holding her in his arm, 
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that it was not a strong use of force, and that she did not cry. She did not appear 

hurt until the evening of the 20th while Sellers was at work. Brook became listless 

and turned pale.

Nugent did not tell Greke that Brook was symptomatic prior to the time 

Sellers left for work. Nugent told Greke he had no knowledge of the source of the 

bruising on Brook’s neck and stomach, but told her the bruising might have been 

caused by the way he burped her. He denied drug or alcohol abuse.

Sellers told Greke that she did not know what happened to Brook. She had 

been at work when Nugent called her, and she only knew what Nugent told her.

Sellers told Greke she had never seen any bruises on Brook.

Gary Martin, a detective with the Liberty Police Department, went to 

Cleveland Regional Medical Center on the morning of October 21, 2005. He saw 

Brook. Paxton and Allencherril explained Brook’s condition. Martin was informed 

that Brook was in critical condition and that they were trying to stabilize her for 

transport to Texas Children’s Hospital in Houston. Martin spoke with Sellers and 

her mother. Nugent also spoke to Martin alone.

Martin asked Nugent if he knew the source of Brook’s bruises. Nugent told 

him that the bruise on Brook’s forehead occurred on October 18th when Nugent

accidentally bumped Brook’s head into the door frame as he was getting a diaper.
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He said that Brook did not cry and seemed to be fine. He called Sellers to let her 

know what happened and let her know that there did not appear to be any injury.

Nugent told Martin he had not noticed any of the other bruises.

Nugent said that on October 20th he and his two sons had gone to the 

laundromat for approximately five hours to do laundry. Sellers was home with 

Brook. Nugent and his sons came home from doing the laundry around 3:30 p.m., 

and Sellers left around 3:45 p.m. for work.

Nugent was Brook’s caregiver while Sellers was at work. The only other 

people at the home while Sellers was at work were Nugent’s three-year-old and 

five-year-old sons. After Sellers left, Brook slept for some time. Nugent woke her 

up to feed her. Brook would not take her formula, and seemed groggy, tired, and 

fussy. Nugent held Brook and watched television while he tried to feed her. Nugent 

told Martin that around 7 p.m. he noticed Brook turning pale, and her lips turning a 

pinkish color. He said he called Sellers and asked if she could come home because 

Brook was sick. Nugent told Martin that Sellers told Nugent to give Brook a bath 

and that she would be home shortly. Sellers took Brook to the hospital when she 

got home from work.

Later on October 21st, Martin and Police Chief Bill Griffin went to Texas

Children’s Hospital. At Texas Children’s Hospital, Nugent again voluntarily talked 
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to Martin and Griffin. Nugent offered more details. The audio recording of the 

interview was played at trial.

During the recorded interview at Texas Children’s Hospital, Nugent

indicated that while he was caring for Brook around October 13th, he left Brook on 

a bed with his son and stepson. He heard her screaming. The boys had been 

jumping on the bed. Nugent stated that after that Brook did not act normal and was 

grunting and was tired all the time. Nugent explained that on October 19th around 

10 p.m. he accidentally hit Brook’s head on the closet door frame. According to 

Nugent’s recorded statement, Brook’s symptoms on the morning of October 20th

were the same as for the preceding week. Brook began showing new symptoms at 

about 6 p.m. on October 20. At 7:45 p.m. Nugent called Sellers at work. Brook had 

difficulty breathing, was spitting her food out, and moving slower. Her lips 

changed color.

John Bickel was the clinical social worker in the emergency department at 

Texas Children’s Hospital when Brook arrived. Bickel interviewed Nugent and 

Sellers. Neither parent admitted causing Brook’s injuries or gave an explanation of 

what caused her injuries. Nugent told Bickel that he became concerned after he 

changed and fed her around noon, because he had left Brook on the bed, and her 

siblings were on the bed. He heard Brook crying and he returned to the bedroom.
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She started to shut her eyes, and when he tried to feed her she kept spitting up.

Nugent said that after Sellers left for work, Brook began grunting, her lips were 

turning pink, and she was moving her arms like she was swimming. She fell 

asleep. Around 6 p.m. Nugent had difficulty waking her, and he called Sellers at 

work and told her to come home. Nugent told Bickel that he and Sellers thought 

that Brook was dehydrated like before when she was diagnosed with “reflux.”

Nugent told Bickel that Sellers arrived home around 8:45 p.m. Nugent told her to 

take Brook to the hospital while he stayed home with Brook’s siblings.

Sellers reported that she noted a difference in Brook’s crying during her 10 

a.m. feeding prior to Sellers’ leaving for work at 3:15 p.m. She reported that at 

7:30 p.m. Nugent called her and she came home at 10 p.m. She then took Brook to 

the hospital. At a meeting on October 24th when medical staff explained the 

amount of force necessary to cause Brook’s injuries, Brook’s parents expressed a 

concern that a baby-sitter a few weeks prior might have caused the injuries.

Martin spoke with Sellers at Cleveland Regional, and again at Texas 

Children’s Hospital on October 21, but she declined to give Martin any further 

interviews. Sellers could not explain Brook’s injuries but told Martin that Nugent

had told her that one of the boys possibly hit Brook in the head with a toy. She also 

told Martin that Nugent had told her he had accidentally hit Brook’s head on a door 
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frame. Even though Sellers was the one who said she always bathed Brook, Sellers

told Martin that she had never noticed any bruises on the child. Neither Sellers nor 

Nugent ever attempted to call 9-1-1 regarding Brook’s condition.

According to Martin, after Sellers heard about the seriousness of Brook’s 

injuries, Seller’s demeanor at the hospital was non-responsive and sometimes 

appeared “uncaring.” Martin observed Nugent to have a similar demeanor that day.

Jonathan Sellers, Sellers’ son from her prior marriage, testified to what he 

remembered had happened at the apartment the day Brook was taken to the 

hospital. He said he would have been about five years old. He remembers that his 

mother went to work that night. Jonathan recalled seeing Nugent rock Brook and 

change her diaper that night, but he did not remember Nugent ever trying to feed 

her, though Sellers had left a bottle on the counter before she left. Jonathan was in

his room playing and he heard Brook crying in the living room. He walked into the 

hallway and saw Nugent sitting on the floor holding Brook in front of him.

Jonathan said Nugent was holding her around the chest area and was being 

“mean.” Jonathan yelled at Nugent “over and over” to stop because Jonathan did 

not want Nugent to hold Brook like that. Jonathan testified Nugent was hurting 

Brook and that Nugent did not say anything to Jonathan or stop what he was doing 

after Jonathan told him to stop. This incident was the only occasion Jonathan had 
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seen Nugent be mean to Brook. Jonathan indicated he had never seen his mother or 

brother or anyone else be mean to Brook. When his mother got home from work 

that evening, she looked “sad” and took Brook to the hospital while the two boys 

and Nugent stayed at the apartment. Jonathan stated that since that night he has 

talked with his mother about it “a couple of times” and also talked to his 

grandparents.

Jacob Nugent, Sellers’ and Nugent’s son, also testified. He was nine years 

old at the time of trial. He stated his dad was never mean to him or his brother 

Jonathan. He remembered his mother being mean to Brook two times: one time 

when she was shouting at Brook and one time when he saw her throw Brook 

against the wall. He testified that when he was eight he told a lady talking to him at 

Bridgehaven that his dad told him his mother had slammed Brook into the wall.

Angelia Cabrera testified she worked alongside Sellers at a Mexican 

restaurant in Liberty on the evening of October 20, 2005. Sellers came to work that 

evening and at some point said that her baby was sick. Cabrera later took a phone 

call from Nugent who was calling to talk with Sellers. Cabrera did not overhear the 

conversation or know whether Sellers had talked to Nugent earlier, because Sellers

also answered the phone at the restaurant. Cabrera asked Sellers if she needed to go 

home, but she said no. Sellers and Cabrera left work between 9:30 p.m. and 10 
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p.m. The call from Nugent that Cabrera answered was thirty minutes to an hour 

before she and Sellers left the restaurant.

Various statements by Nugent were admitted into evidence. In the 

statements, Nugent gave differing time frames for when Brook was symptomatic, 

when Nugent called Sellers at work, and when Sellers came home from work.

Martin stated that whenever Nugent voluntarily came in after October 21st to give 

more details concerning what had happened, he would make a point of saying 

things to make Sellers look bad.

In one statement, Nugent explained that the week prior, he laid Brook on 

the bed in the apartment, left the room, and heard her scream. The boys had been 

jumping on the bed. He indicated he did not notice the other bruising, but he said 

that the bruise on her head was from hitting it on the closet door frame. In another 

statement, Nugent explained that Sellers kept coming up with excuses for how 

Brook was injured: perhaps Sellers had a seizure and dropped Brook but did not 

remember it; maybe Brook had brittle bone disease; or perhaps Brook had some 

problems stemming from her birth. Nugent indicated Sellers abused prescription 

pills, and he believed Sellers lost her temper and shook Brook.

In a different statement, Nugent told law enforcement that he had not been 

honest in his prior statements because he was protecting Sellers. He wanted her to 
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get mental help and not go to prison, and he was scared she would take the children

from him. Nugent said what actually happened was that when he came home from 

the laundromat, he walked up the stairs to their apartment, found the door locked,

and heard Brook crying. When he quietly opened the door, he saw Sellers just as 

she was lifting her hand off Brook’s chest. Sellers was sweating. It looked like 

Sellers had just hit Brook, and then he heard Brook whimper. He also stated that 

when he and Sellers were alone in the apartment one evening after coming home 

from Texas Children’s, Sellers admitted to him that she did not mean to do it, but 

Brook would not stop crying, and she threw Brook against the wall. Nugent’s 

grand jury testimony from December 2005 and his CPS deposition taken May 11, 

2006, were also admitted into evidence.

Nugent testified at trial. He did not recall seeing any bruises on Brook on 

October 19, 2005. He had no explanation for the testimony that Brook had healing 

fractures prior to October 19, 2005, and he denied causing any injuries to Brook on 

or prior to October 19, 2005, that would have caused a break or fracture of the ribs, 

foot, or femur. He admitted taking Vicodin for “recreational” purposes and 

drinking alcohol in October 2005.

Nugent explained that on the morning of October 20, 2005, he left around 10 

a.m. to go to the laundromat. Nothing out of the ordinary happened that morning.
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Brook was “a little fussy, hungry.” Nugent came back to the apartment around 4 

p.m. He saw Sellers tapping on Brook’s chest. He admitted that he had exaggerated 

in prior statements when he said she had hit Brook. Sellers told him that Jonathan 

had aggravated her all day, and Brook was “real fussy” and had slept most of the 

day. Nugent agreed that when he was confronted in November and December of 

2005 about Brook’s injuries, he exaggerated in at least one of his statements and 

tried to make it look like Sellers was being secretive by saying she had locked the 

door.

After Sellers left for work, Nugent checked on Brook and she was sleeping.

At some point he tried to feed Brook. She would not eat. Brook was making a 

swimming motion and she was not interacting like she normally would, so Nugent 

called Sellers at work. He thought Brook might be reacting to her medicine and 

asked Sellers if she had given Brook her medicine. He called Sellers later that 

evening and said she needed to come home. He thought Brook needed to go to the 

doctor. He did not call 911 because he did not think it was that serious: Brook was 

acting like she had in the prior weeks when she was suffering from reflux.

Nugent agreed that he called Sellers at 8:18 p.m. at work and described 

Brook’s symptoms as not just fussy: she had labored breathing, pale coloration, 

and lips changing color. Sellers told him to give Brook a bath and see if that would 
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help. Nugent did not bathe her. Phone records show an incoming call at 8:31 p.m.,

and Nugent agreed that it could have been Sellers calling back to check on Brook.

Nugent explained that Sellers came home later and was in the apartment for about 

ten minutes before leaving with Brook around 10 p.m. for the hospital. Nugent

stayed at the apartment with the boys.

Nugent admitted to smoking three joints of marijuana on October 19, 2005, 

but denied using Vicodin on October 19, 2005, or October 20, 2005. He stated that 

while he was waiting for the laundry to finish on October 20, 2005, he got a six 

pack of beer from the store and drank four of the beers before going home.

At trial, Nugent denied causing any of Brook’s injuries. He could not give an 

explanation for her injuries but said that Sellers did it. Nugent admitted to lying in 

all eleven of his statements to different individuals in the case. Nugent stated that 

he and Sellers both lied separately throughout the investigation. He testified he lied 

to law enforcement officers when he told them that Sellers told him she threw 

Brook against the wall. He never confronted Sellers about why Brook had 

antidepressant medication in her system on October 20, 2005. He knew Sellers

took a prescribed antidepressant. He admitted that the only explanation Sellers

gave him for what could have happened to Brook was that she did not know.
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WAIVER OF RIGHT TO A JURY TRIAL

In his first issue, Nugent argues that although there is a written waiver of 

jury trial in the record, “nowhere in the record does it show that [he] executed the 

waiver in person in open court.” The clerk’s record demonstrates Nugent executed 

a written waiver of jury trial, and a supplemental reporter’s record demonstrates

Nugent presented the written waiver in open court. The trial court approved the 

written waiver of a jury trial after Nugent testified that he read and understood the 

written waiver and the charges against him, and that he was waiving his 

constitutional right to a jury trial. Issue one is overruled.

SUFFICIENCY OF THE EVIDENCE

In his second issue, Nugent contends the evidence is insufficient to support 

his conviction. The Jackson v. Virginia legal-sufficiency standard applies. Brooks 

v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). As a reviewing court, we 

must defer to the trier of fact on the resolution of conflicting testimony, the weight 

to be given the evidence, and the reasonable inferences drawn from the testimony.

Jackson, 443 U.S. at 318-19. A person commits murder if he commits or attempts 

to commit a felony, other than manslaughter, and in the course of and in 

furtherance of the commission or attempt, he commits or attempts to commit an act 
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clearly dangerous to human life that causes the death of an individual. Tex. Penal

Code Ann. § 19.02(b)(3) (West 2011). Nugent argues that the evidence showed he 

was not the only adult to have access to his daughter in the twelve hours prior to 

Brook’s admission to the hospital. He also asserts that surgery on Brook was an 

intervening cause that resulted in her death.

Medical professionals in this case testified that none of the explanations 

posed by Nugent and Sellers were consistent with Brook’s injuries. The medical 

professionals stated that Brook suffered a blunt-force injury to her head. They 

testified that Brook would have been symptomatic immediately or “very soon” 

after suffering the blunt force trauma to her head. Nugent reported Brook’s 

symptoms to Sellers while Brook was in his care. At one point, he admitted to 

causing the bruise on Brook’s head but claimed it was an accident. Jonathan 

testified he saw Nugent hurting Brook that night after Sellers left for work. Nugent 

admitted he lied in all the statements he gave in the case, and many of his 

statements were admitted into evidence. He admitted he lied when he told law 

enforcement that Sellers had confessed to throwing Brook against the wall.

Although Haden-Pinneri explained that Brook had undergone surgery weeks 

before her death, Haden-Pinneri stated that the surgery was not a contributing 

factor in Brook’s death. No other evidence suggested that the surgery was an 
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intervening cause that contributed to her death. A fact finder could rationally find 

beyond a reasonable doubt that appellant murdered Brook. The evidence is 

sufficient to support the conviction. Issue two is overruled.

The trial court’s judgment is affirmed.

AFFIRMED.

 ________________________________

 DAVID GAULTNEY

 Justice

Submitted on June 18, 2013

Opinion Delivered September 4, 2013

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.