## In the Court of Appeals Second Appellate District of Texas at Fort Worth

________________________ ___ No. 02

- 19

- 003 83

- CR

____________ ________ _______

On Appeal from the 431st District Court Denton County, Texas Trial Court No. F16

- 1287

- 431

Be fore Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Bassel 

### D ANIEL 

### G RECO 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introductio n Forty

- year

- old A n janette Harris (Anjie) wa s found dead in an unincorporated
area of Denton County known as Hilltown

. 1 Appellant Daniel Greco conf essed to strangling Anjie to death and dumping her body in Hilltown

. Anjie was

a pproximately eighteen week s ’ pregnant with A p pellant ’ s unb orn child at the time of
her death

. 2 The unborn child, who was a boy, also died

. The amended indictment charged App ellant with capital murder as follows: [Appe llant] . . . on or about t h e 6th day of March [] 201 6 and anteri or to the presentm ent of this Indictment, in the county and state a foresaid, did then and there intentionally or knowingly cause the death of an indi vidual, namely, [Anj ie] , b y strangling [Anji e] with [his] hand or [a] p iece of rubber or a belt or an obj ec t unk nown or by cutting or stabbing [Anjie] with a knife, and did t hen and there intentionally or knowingly cause the death of another individual, na mely, [the] unborn child o f [Anjie] , by caus ing the death of [Anjie ], w hile said unborn child was in ges tation of said [Anjie] , and both mur ders were committed during the
sam e criminal transaction [

. ] A jury convicted Appellant of the offense of capital mu rder as charged in the
amended indict ment but decli ned to im pos e the death penal ty. See Tex . Pen al Code

1 W itnesses described H i llto wn as a homeless commun ity; a dum ping zone with
r aw sewage ; an d an area made u p of “ dirt roads, a bunch of trailer house s, a bunch of woods [,]

. . . [and] a lak e . ”

2 A forensic scientist tes tifi ed t hat based on the DNA analysis conducted on the placental material , “at least 99.99998 percent of the male population is excluded from the possi bility of bein g the biological father o f the child ” a nd that “the observed geneti c results are 20 million tim es m ore likely under the scenario that [Appellant] is the true biological father of the ch ild

. . . than if the father is an untested, unrelated random man from the C aucasian population. ”3 Ann. § 19.0 3 (a)(7)

. As a result, Appellant was sentenced to life imprisonment wi thout parole. Appellant raises two is sues o n appe al arg uing that (1) t h e trial co u r t erred by
not di smissing the cas e w ith preju dice due to the spoliati on of evidence by state actors

or , alternatively , by not “ a t the least issu ing a spoliation instruction to the jury ” and (2 ) the evidence of causation and mens rea is ins uffi cient to wa r rant a conviction f or capital m urd er
. Appellant ’ s spoli ation argument s pre sent a battle of the experts, requiring deference to the trial court ’ s credibi lity determination, and a show ing of bad faith, which is not present . Reg a rd i ng Appellant ’ s sufficiency challenges, the record contains expert testimony supporting the caus a tion e lement and Appellant ’ s confession that references his knowledge of Anjie ’ s preg nancy, which has been held sufficient to supp ort the “ knowing ly ” elemen t o f a capital

- mu rder conviction. Thus,

w e af firm. 3
II. Alleged S poliation of Evidence

Prior to tr ial , Appellant filed a motion to dismiss due to destruction of
evidence. Appellant argued that the St ate had destroyed biological material from

3 Be cause A p pellant does not challenge on appeal his rol e in Anji e ’ s murder , we omit a factual backgro und setting forth the gruesome a cts that p r ecip i tated her death

. We will set forth the facts related to the challe nges tha t A ppel la nt rais e s on appe al with in the di s cussion of each of his issu es .4 A nji e ’ s neck and biological e vidence from the unborn child 4 and that testing of these
items could have exon erated him. Over the span of four days, t he trial court held a pretrial hearing on the motion to d ismiss due to destruction of evi den ce . Additionally, Appellant filed a brief i n su pport of hi s motion , the St ate filed a response, and Appellant filed a reply. T he tr ial court ultimately den ied the motion

. In his fi rst issue , A ppellant argues that the tria l court erred by denying his

m otion to dismiss the case or, alternativ ely, by not giving a spoliation i nstruction

. The

cru x of A ppellant ’ s arg ument is tha t because the State discard ed or destroyed the placen ta and various types of biological evidence from the unborn child , 5 his case
should therefor e have bee n di smissed

. Because t his presented a battle of the
experts

— with e xperts from both sides opin ing on whether suc h evidence was even
availa ble

— we must defer to the trial cou rt ’ s c redibility determinations. And because , as explained below, A ppel lant has not shown bad fa ith on the part of the S t ate in failing to retain nonexist ent or additional biolo gical material s fr om th e unbo rn child
and th e p lacenta , we cannot say that the trial court erred b y denying A ppellant ’ s motion to dismiss.

4 Appellant co mpla ined that the medical examiner had failed to (1) perform a thoro ugh fetopsy that wou ld ha ve included obtaining skin for genetic testing, (2 ) retain the pla c enta , and (3) collect fe tal blood , but Ap pellant ’ s motion focused on the failure to collect feta l bl ood

.

5 Because Appellant does not complain on appeal about the a lleged de struc tion of evidentiary material from Anjie ’s neck, w e limit our analy sis t o the alleged spoli a tio n of fetal bio logical e vidence

.5 A. Stan dard of Review When reviewing a trial c ourt ’ s decision on a motion to dismiss, we apply a bifurcated standard, giving almost tot al deference to the trial cou rt ’ s findings of fact that are supported by the record, as wel l as any mixed questions of law and f act that rely upon the credibility of w itnesses. See State v. Krizan

- Wilson , 354 S.W.3d 808, 815 (Tex. Crim. App. 2011); Tope v . State , 429 S.W.3d 75, 79 (T ex. App.

— Houston [1st Dist.] 2014, no pet.)

. For pure questi o ns of law or mixed questions that do not depend on credibility determination s, our review is de novo. See Krizan

- Wilson , 354
S.W.3d at 815.
B. Law on Spoliation Spo liation concerns the loss or destruction of evidence. Guzman v. State , 539 S.W.3d 394, 401 (Tex. App.

— Houston [1st Dist.] 201 7, pet . ref ’ d)

. In addressing the
failur e to preserve evidence in a criminal trial, there is a distinction betw een “material

ex cu lpatory evidence” and “pot ent ially useful evidence.” Arizona v. Youngbl ood , 488
U.S. 51, 5 7

– 58 , 109 S. Ct. 333, 337 (1988) ; E x part e Napper , 322 S.W.3d 202, 229 (Tex. Crim. App. 2010). That difference informs our analysis when deciding whether the
State ’ s failure to disclose or p res erve eviden ce violates a defendant ’ s guaran tee of due
process of law. See Illinois v. Fisher , 54 0 U.S. 544, 547

– 48 , 124 S. Ct. 1200, 1201

– 02 (2004)

. If the State withholds material exculpatory ev idence, a feder al due process
violation occu rs regardless of whether the State acted in ba d faith. Id. at 54 7, 1246 S

. Ct. at 1202

. Thus, a Bra dy 6 cl aim requires proof that the sought

- after evidenc e was both material and favo rable to the defendant such th at there is a reas onable probability that ha d t he evidence been disclosed, the outcome of the trial would hav e been different. Pena v. State , 3 53 S.W .3d 797, 809 (Tex. Crim. App. 2011). By contrast , to prove a federal due process violation based on a s tat e ’ s destruction of merely “potentially usefu l e vidence,” a defendant must show that the
St ate acted in bad fa ith in destroying the evidence. Fi sher , 540 U.S. at 547

– 48, 124 S.
Ct. at 1202 ; Youngblo od , 488 U.S. at 57

– 58, 109 S. Ct. at 337

. Youngblood desc ribed potentially useful evidence as “eviden tia ry material of which no more can be said th an that it could ha ve been subjected to tests, the res ults o f which might have exonerated
the defendant .” 4 88 U.S. at 57, 109 S. Ct. at 337

. “Although courts occasi onally blur
the di stinction between Youngblo od and Brady , Youngblood is properly applied t o cases in
which th e government no longer possesses th e disp uted evidence, whereas Brady is properly applied to cases in which exculpatory evidence remains in the gov ernment ’ s possessi on.” Moody v. State , 551 S.W .3d 167, 170 (Tex. App.

— Fort Worth 2017, no pet.) (mem. op.) (footnote om itted) (citing Little v. State , 991 S.W.2 d 864, 866 (Tex. Crim. App. 1999)).
H ere, Appellant contends that the S t ate , acting through the Tarrant Co unty Medical Exami ner’s Office , discarded or de stro yed the p lacenta and biol ogical

6 Brady v. Maryland , 373 U.S. 83, 83 S . Ct . 1194 (1963) (d ea ling with the d ue process violation that occurs whenever the S t ate supp resses or fails to disclose material exculpatory ev idence)

.7 evi de nce from the unborn child

. Appellant ’ s brief states that “ t he biol ogical evidence is material, thu s a showing of bad faith by the S t ate is not needed. ” A lthough App ellant phras es his complai nt as a Bra dy complaint, it is more p roperly c onsidered as a complaint under Young blood f or the d estr uctio n of “potentially useful evidence ”
because it is uncontro verted that the State d oes not possess the desire d evidence. See
i d. ; Rodriguez v. State , 49 1 S .W.3d 18, 31 (Tex. App.

— Houston [1st Dist.] 2016, pet.
ref ’ d) (treating a Brady claim about a lost surv eillance video as a Youngblood claim) ; see also Youngbloo d , 488 U.S. at 58, 109 S. Ct. at 337

– 38 (holding that the police ’ s failure to
preserve potent ial ly useful evidence was not a denial of due process of law absent the
defendant ’ s showi ng of bad faith o n the part of the police)

. Such a claim requires a
showi ng of bad faith. Fisher , 540 U.S. at 5 47

– 48, 124 S. Ct. at 1202

. C
. What the Record Shows
A t t he pretrial hearing, Ashleigh Berg , a forensic investigator working in the
Dento n County She riff’s Office , testified that she had been told by Troy Tayl or, a dea th investiga tor for the Denton County branch of the Tarr ant County ME ’ s Office , that there should be two blood cards ( one f rom Anjie and on e fro m the unborn child )
because an autop sy had been performed on Anjie and on the unborn chil d and
because it was st andard proce dure to obtain a b lood car d from each

. Berg went to t he
ME ’ s Office to collect the two blood cards

. When Ber g arrived, the re was only one
blood card ; it was from Anjie

. Berg reported that fact to Taylor

. T aylor said that he
would look into it and wo uld report back to her

. Taylor consulted with the ME ’ s8 Office and reported back to Berg that no blood card had been c ollected from th e unborn child during the autopsy , but Taylor did not have an expl anation for why

n o ne was collected.
Farah Plopp er, a forensic DNA analyst at th e University of North Texas
Center for H uman Identific atio n , had read notes stating that there w ere two different
blood cards that would come from the ME ’ s Office

. P l opper later received an ema il stating that was not correc t and that there was onl y a blood card for Anjie

. When
asked wh ether she receiv e s feta l blood for testing , she responded, “ Not very often. ”
Dr. Marc Krouse , the Deputy Chief Medical Examiner who assis ted
Dr

. Allison Mautone 7 with th e auto ps y of Anjie and the unborn child , said t hat the
autopsy was done ac cording to stand a rd operating procedures

. Dr. Krouse agreed
that the physician ’ s guidelines tha t he and Dr . Mautone were required to fo llow state
that in homicide c ases, all tissues, bod il y fluids (includ ing vitreous, b lood, urine, and gastric c ontents), and any other f luid shall be retained perpetually. Dr. Krouse clarified that they kee p “ all tiss ues that [ they have ] looke d a t , ” which include s anything
tha t bears grossly visibl e pathology ; for anything that does not contain gross
pat hology, they just take representative samples.
Dr. K rouse testified that as part of th is autops y, they sav ed “ representative bits
of or gans ” that they had examined in Anjie and th e unborn child. Dr. Krouse

7 The r ecord sho ws that Dr. Maut one participated in a one

- year fellowship of subs pecialty training i n fo rens ic pathology wit h the Tarrant C o unty M E ’ s Office and performed the autopsy on Anjie and t he unborn child.9 e xplained that Dr. Mautone, as part of her fellow shi p , was required to keep specimens
of certain tissues from e very autopsy that she w orked on an d then prepare microscopic sl ides. Dr. Krouse said that Dr. Mautone made the d ecisions abo ut what to keep from the autopsy bu t t hat he had add ed his input

. Here, he told Dr. Mautone
to make sure that she kept some fetal t issue so t hat he could go bac k and l ook for any microscopic evidence of fe tal disease, if necessary. Dr. Krouse testified that portions
of the pla centa were cut and placed in a paraffin block. 8 When the defense asked for
tiss ue to use f or DNA testing , Dr. Krouse to ld them to use the paraffin block

.

8 A person from the histology depar tment at the T arrant Coun ty ME ’s O ffice
ex plained t h e process of preserving ti ssue : I n order to g et f rom a p iece of tissue actually to a slide, there is a process. It i s kind of like p ickli ng. You have to be able to get all the water out of the tissue to pres erve it. You start off with formalin , formald ehyde preserves the tissue. T hen it goes thro ugh a serie s of alcohols, which rem oves the water, and xylenes, which re moves the alcoho l, an d then ultimately in paraffin wax. Paraffin wax is used to put th e pie ce of tis sue in a mo ld, and then the wax is po ured around the piece of tissue. After the wa x is harden ed, you are able to pull it off in a cassette. And then it i s put on a machi ne ca lled a mic rotome. And the microtome cuts a very thin section of t hat p iece of t issue, [thi nner] even than a piece of paper. It is placed on a water bath, where a ll t he wrin kles come out of the par affin and the tissue. And it is pick ed up on a glass slid e. It is put on heat to remove the paraffin. Then it is processe d thr ough a se ries of sta ins. And then th e stains actually stain the tissue. Some of it is back grou nd, som e of it is different par ts of the tissue. And that ’ s what th e pathologists u se to make their interpretation. A cover slip is placed on top of the glass slide. That helps preserve that tis sue indef initely. And so we have pieces of tissue from the beginn ing of

. . . when the [M E ’ s] Office actually star ted.10 Dr . Krouse testified that there wa s no blood card from the un born child
because the re was no fetal blood

. 9 Dr. Krou se said that the unborn chil d ’ s body had

macer ated 10 and had started to de com pose. Dr. Krouse ex plained that one of the things that happens d u ring decomposition is “ wat er all goes away. That ’ s one of the first things that happens. So liquid blood i s gone . A ll that ’ s left is just s tained bl ood vessels with the hemog lob in pigment from the red blood cells im be dded within
them. ” Dr . K rouse stated that if the un born child had blood, they would ha ve kept it. And because none was kept, th at led him to concl ud e that t here was no fetal bloo d even though th ere was no note specifically stating that there was no fetal blood

. Dr. Evan Matshes , the defense ’ s expert whose pri mary area of practice is pediatric foren sic pathology , testified that he rev iewed the autopsy r e port, s li des of
fetal tis sue , and paraffin blocks of fetal tissue. Defense counsel tol d Dr. Matshes
about Dr. Kro use ’ s explanation

— t hat because the “ [unborn child ] was macerated , there would have not been blood because all of t h e liquid would have been gone from
the [unborn child] ”

— and asked whether he agreed with Dr. Krouse ’ s position.
Dr. Ma tshes responde d, “ I cannot agree or disagree with the actual facts, not having

9 D uring Dr. Krouse ’ s testimony at the pretrial hearing, he was asked abou t two blo od cards an d explained that there w er e two blood cards from Anjie

— one from the auto psy and the other “ with a sexual assa ult kit by trace evidenc e . ” This migh t ex p lain w hy there was initially a reference to two blood cards that w ould come fr om the ME ’ s O ffice.

10 A descri ption of m aceration is set forth on page s 2 3

– 25

.11 been at the autopsy. But I disagree in p rinciple with h is statements
. ” Dr. Matshe s based his disagreement on his presumption that the unborn child ha d blood:
This [unborn child] , by description, has early maceration. The fetus is of an estimated age of 18 weeks. [Unbor n child ren] contain b lood, all of them. This [unborn ch ild ] would have had blood. A large pocket of blood would have been in the hear t. The heart is just a pum p that contains four chambers that would have contained blood. And i t is my experience that when people s ay, in an infant o r [an unborn child] , that the y were unable to obtain blood, that commonly they lacked the right equipment to do the job because they are tiny babies, tiny blood vessels. They may have lacked the skill or the tra ining to do a delicate job

. But, i n my expe rience, it is unusual to n ot be able to get even a small volume of blood, as blood does exist in [ an unbo rn child ]

. Dr. M atshes opined that there absolutely would have been blood in an unborn child
at this sta ge. Dr. Matshes t estif ied that the fetal blood c oul d have been used for tests

to study the unborn child ’ s genes and to look for disorders that would not o r could
not have been visible to the naked eye. Dr. Matshes said that it is use ful to have fetal
blood when it is avai lable.
Dr. Ma tshes was questioned on whether a feto psy was perf ormed in this case.
Dr. Matshes testified t hat “ [t] echnically a fetopsy was performed, and an autopsy was performed on the baby. But a typical thoro ugh fetal autopsy was not performed

. ”
Dr. Matshes explained why he believed that a thorough fetal autopsy had not been perform ed:
In additio n to simply removing the organs and dissecting them and reporting them in a report and studying some of th em under the micro scope, there ’ s many other tes ts we need to do. While the placenta was studied here, it was not s tudied i n detail as represented by the very few photographs and the very limited amount of tissue that was available12 to be studied u nder the microscope. In ma ny cases the

-- an explana tio n for the fetal demise, as well as how long the [unborn child] has b ee n dead, can be obtained from the placenta. Tissues, fluids [,] and the like can be collected for additional specialized testing as one tries to unde rstand how the [un born child had ] met [ his o r h er] end. There are entire textbooks written on the subject a nd, in fact, in the broader context where this falls into the biggest relevance is when parents lose a baby of a stillbirth and they are trying to u nderstand not only why that [baby] died, but wh at their risk of recurrence is. So a lot of time, money [, ] and science has gone into understanding th e fetal autopsy and its relevance.
Dr . Matshes would have expected a skin sample to have bee n taken if there h ad been

a t horough fetal a uto psy done “ [ b] y the books. ” Had a skin sample been o btained, a
skin punc h bi opsy could have be en taken and su bmitt ed to a lab where skin fibroblast testing could have been per formed to check fo r ch rom osomal abnormaliti es or genetic diseases. With regard to the placenta, Dr. Matshes testified that “ effort was put into
evaluati n g the pla cen ta ” bu t that “ [ t ] he histology tha t was obtained was limited to
three sl ides, ” which was below what he woul d have expect ed in a standardized placent al exa m. Dr. Matshes said that “ much information can be g leaned fr om a thorough standardized wor kup ” of the pl acenta but that in this case, “ the placenta was not thoroughly examined as it certainly could h ave been

. ” Dr. Matshes ’ s

u nde rstanding was that the placenta was thrown away, and so he co uld not learn from
it. Dr. Matsh es said that based on t he ti ssues tha t were available to him, he was not
able to answer all of the defense ’ s questions

.13 On cross

- exami natio n , Dr. Matshes agreed that he was not at the autopsy and
that th e people who were there ha d more informati on to form an opinion on what
had been seen. Dr . Matshes said that he did not have access to the Tarrant County
ME ’ s standard operating proc edu res but said that Dr. Krouse and Dr. Mautone had
done “ [i]n g eneral,

. . . thorough work. ” Whe n ask ed whether he had any scientific certainty th at there would have been fetal blood in this case, Dr. Ma tshe s responded,

“ [W]i th a reasonable degree of med ical certainty I would have expected blood to be
presen t. ” In a follow

- up ques ti on, Dr. Matsh es was asked, “ [ B ] ut you don ’ t know for
sure that feta l blood was there? ” He responded, “ You are correct, sir

. ” D r. Matshes agreed that po r tio ns of the placenta were retained, but he said that “ [m] ore placenta tissue does not appear t o ha v e been retained to allow for a more thorough
examination. ” Yet Dr. M atshes did not have any evidence o r opinion that Dr. Krouse
had wi ll fully d est roy ed any of the evide n ce that Dr. Matshes had s aid that h e needed.
D
. Analysis
1. Mo tion to Dismiss Appellant focuses mos t of his argument in his brief on the State ’ s failure t o preserve fetal bloo d. T he testimony reg ard ing the failure to preserv e any blood from
the unborn c hild posed a battle of the experts: Dr. Krouse maintained that the
unborn child ’ s body had started to macerat e , l eaving no fe tal b lood to collect or to

m ai n tain , whi le Dr. Matsh es opined that there shoul d h ave been fe tal blood to c ollect.
It is not f or u s to decide wh ich expert was correct. The trial court was the sole judge14 of the credibility of the experts, and therefore w e must give total defe rence to t he trial

court ’ s credi bility determinations. Se e K rizan

- Wilson , 354 S.W.3d at 815; Tope , 429
S.W. 3d at 79. Appellant also has not demon strated bad fai th on the part of the State. Appel lant ’ s own expert could not say f or sure that fetal blood existed in t his case, only
that he would h ave expected fet al blood to be present. Appellant thus did not produc e any evidence that fetal blood existed or that the State had failed to preserve it

or had destroyed it. The State has no duty to disc lose evidence tha t do es not exi st.
See M atthews v. State , No. 01

- 15

- 01 100

- CR, 2017 WL 491285, at *5 (Tex. App.

— Houston [ 1st Dist.] Feb. 7, 2017, pet. ref’d) (mem. op., not designated for publication) ; Evans v. State , No. 01

- 13

- 00593

- CR, 2015 WL 1501808, at *6 (Tex. App.

— H oust on [1st Dist.] Mar. 31, 2015, pet. r ef ’ d) (mem. op ., not designated for publication) . Accordingly, t he re can be no evidence of bad faith because t he
evidence that Appellant desired to obtain was not found during the autopsy. Appella nt ’ s brief also ma kes a passing reference to t he medical examiner s ’
fail ure to r etain the entire placenta and to preserve skin from the unborn child.
Dr. Krouse stated that the autopsy was done according to standard operating procedures and that they had kept anything that b or e grossly visible pathol ogy . In this case, the medical examiners kept fetal tissue so that slides could be made , a nd portions of the placenta were placed in a paraffin block; slides of the fetal tis sue and
the pla cental paraffin block were made a vailable to th e d efense. Yet Dr. Matshes15 op ined that the medical examiners should have done more evaluation and should hav e saved the placenta and more biological evidence from the unborn child while he
simul tan eously conc lud ed that Dr. Mauton e and Dr. Krouse had done “ th orough

w ork. ” Moreover, Dr. Matshes specifically stated t hat he did not have any evidence

or opinion that Dr. Krouse had wi l l fully d estroyed any of the evide n ce that
Dr. Matshes s aid that he needed , and th e defense did not put on any other witn ess to

t est ify about bad fa ith on the part of the S t ate
. Based on the record, we conclude that Appel lant did not show bad f aith on the part of the State in failing to retain the entire placent a and additi ona l bi ological evide nce from the unborn child

. 11
Havin g held that Appellant failed to show that the re was f e tal blood that could
have been retained and that Appellant failed to show bad faith on the part of the State in failing to retain the whole placent a and skin samples fr om the unborn child, we

11 The Ho ust o n First Court of A p peals has explained why it is imp roper for courts t o require the police to p reserve all material that might be of conceivable
ev identiar y sig nificance in a particular prosecutio n , and it can be said that the same logic should appl y t o n o t requir e the State, via the ME ’s office, to r etain all biological mat er ia l that mig ht be of co nceivable evidentiary significance in a particular p rosecuti o n : A policy requiring the [police] department to p reserve every video ever taken w ould be at odd s w i th the p urpose of the bad faith requirement,
w hich is to limit the Sta te ’ s obligatio n to preser ve evidence “to
re asonable grounds” and only in thos e cases “wher e the interests of justice most clearly requir e it .”
M c Vay v. S t ate , No. 01

- 19

- 00 480

- CR, 2020 WL 7391556, at *5 (Tex. App

. — Houston [1 st Dist

. ] Dec. 17, 2020, pet. r ef ’ d) (m em. op., not d esi gn ated fo r publication) (citations omitted)

.16 ho ld that the trial court did not err by denying Appellant ’ s m o t ion to dismiss due to
destruction of evidenc e.
2. Jury Instruction In the alternative, Appellant co mplains of the trial court ’ s declining to give an adverse i nstr uct ion to the jury regarding spo liation

. There must be a showing of bad
fa i t h on the part of the State to warrant a spol iati on instruction. See Moody , 551
S.W .3d at 172 (citing Snell v. State , 324 S.W.3d 682, 684 (T ex. Ap p
. — Fort Worth 2010,
no pe t.) , and White v. State , 125 S.W.3d 41, 44 (Tex . App.

— Houston [14th Dist.]
2003 ) , p et. re f

’ d

, 149 S.W.3d 159 (Tex. Crim. A p p. 2004 ) )

. Ap pellant ’ s argument fails
because , as de mon strated in the preceding analysis, there was no show ing of bad faith.
In th e absence of a sh owi ng of bad fa ith, we hold tha t the trial court did not commit

er r or in refusing the spoliation instruction. See Ma tthe ws , 2017 WL 491285, at *5 (holding that trial court did not commit error in refusing appellant ’ s s poli ation
instructio n regar ding the l ack of a video because appellan t did not produce evidence
that the video existed, that the S t ate had destroyed it, or tha t the State had acted in
bad faith )

. 3. Dispos ition of Spoliation Challenges Having held that t he trial court did n ot err by denying Ap pellan t ’ s motion to
dismiss or b y de clin ing to give a spoliation i nstruc tion , w e overr ule Appellant ’ s first
issue

.17 I II
. Sufficiency of the Evid ence In his se cond issue, Appellant argues that the evidence is in s uffic ient to w a rrant

a co nvictio n f or capi tal m urd e r. Specifically, Appell an t challenges the s uffici ency of
the evidence to show (1) that he cau se d the unborn child ’ s death and (2) that he intentionally or knowingly ca used the unborn child ’ s de ath. T he e v idence
de mon strate s that Ap p ellant kn ew that Anjie was pregnant , that he i nte n tional ly caused her death, that the unborn child d ied as a result of A njie ’ s death , and that Appellan t thus at least knowingly caused the unborn child ’ s death.
A. Standa r d of Review
In ou r e vident iary

- sufficienc y review, we view all the e vi dence in the li g ht mos t favorable to the verdict to determine whet her any rational factfinder could have found the crime’s essential elements beyond a reasonable doub t. Jackson v. Virg i nia , 443 U.S.
307 , 3 19, 99 S. Ct. 2781, 2789 (1979) ; Queeman v. Stat e , 520 S.W.3d 6 16 , 622 ( Tex. Crim. App. 2017). This standard gi ves full play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the evi de nce, and to draw r easonable
infe ren ces from basic facts to ultimate facts. See Jackso n , 443 U.S. at 31 9 , 99 S

. Ct. at 2789; Queeman , 520 S.W.3d at 62 2.
T he f actfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. ar t. 38.04; Queeman , 5 20 S.W.3d at 6 22

. W e may not re

- evaluate the evidence’s weight and c r edibility an d s u bstitu te our judgment for the factfinder’s. Q ueem an , 520 S.W.3d at 622. Instead, we determine whether the necessary inferences18 are reasonable based on the evidence’s c u mulative force wh en viewed in the light
most favorable to the verdic t
. Murray v. S ta t e , 457 S.W.3d 446, 448 (Tex. Crim. App.
2015 ); see Vil la v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency rev ie w must not engage in a ‘divide a nd con quer’ strategy but
must consider the cumulative f o rce of all t h e e videnc e.”). We must presume that the
factfind er r esol ved any conflicting inferences in favor of the verdict, and we must
defer to that resolution. M ur ray , 457 S.W.3d a t 448

– 49.
The stan d ar d of r eview is the same for direct and circumstantial evidence ca s e s; ci rcumstanti al evidence is as probative as dir ect evidence in establishing guilt. Jenkins
v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016)

. We must scrutinize
circumstantial evidence of intent a s we do other ele m en ts of an offense. Laster v. State , 275 S.W.3d 512, 519

– 20 (Te x. C r im . A pp. 2009). But when a record supports

c onfl icti ng inferences, we “m ust presume

— even if it does not affirmatively appear in
the record

— that the trier of fact resolv e d any such confl i ct in fa vor of the prosecution , and must defer t o that resolutio n.” Ma tso n v. State , 819 S.W.2d 839, 846 (Tex. Cr im. App. 1991).
B. Law on Capital Murder
A person commits capital murder if he com mits murder

— intentiona lly or knowingly cau s es the death of a n indivi dual

— and murders more than one person during the same cr imi n a l tra nsaction. S ee Tex. Penal Code Ann. § § 1 9.02 (b)( 1),
19. 03(a)(7)(A). A “ person ” i ncludes an indiv idual

. See id. § 1.07( 38 ). An “ individual ”19 is defined as a human b eing who is aliv e , includ ing an unborn child at every stage of gestation from fer til i z at ion until bir th

. See id. § 1.07(26).
C. Wh at t he R ecord S h ows Appellant ’ s sufficiency argument on the causation e lement stems from his
expert ’ s testimony that the unborn child co ul d h ave di ed up to two to three da ys prior
to A njie ; thus, under App ell a nt ’ s d efensive theory, the unborn child ’ s cause of dea th

w a s independent of the strangulation that cause d Anjie ’ s death

. Appellant points to
evidence t hat Anjie could h ave had a misca rriage prior to her death : her pr e gnancy was high risk due to her a ge, she had failed to seek early medic al c are, she had
consumed al co hol and had smo k ed cigarettes, and there was some evidence that the
unb orn child was in distress as sho wn by the h yperco iled umbilical cord. Appellant ’ s s uff i ciency argument regarding the mens rea element is grou n ded

o n his conf ession that he “ simpl y snapped ” due to the drugs he had ingested ; thus , his

str angling of A njie was a spon ta neous ev ent
. He fu rther points to his confession to
show that he nev er me ntioned wanting to hurt the unborn chil d or that he wanted to
hurt A njie in order to ter mi nate her pregna ncy. We will su mmarize the evidence that App ellant r eli es on f or both of his

su fficiency challenges and set forth the cont r overti ng evidence that suppo rts the jury ’ s verdict bef ore we pr oceed to our ana lysis of A p pellant ’ s sufficiency challenges

.20 1. Evidence of Hi gh

- R isk P reg nancy and Delay in Seeking M ed ica l Care Defense expert Dr. Matshes testified that a forty

- year

- old pregna nt woman , such as A nji e, is considered to ha ve a higher r isk pregnancy than a twenty

- five

- year

old pregnant woman. He further t esti fied th at a woman who de lays in seekin g

m edi cal ca re fo r her pregnancy can contribute to a high

- risk pregna n cy, as can alcoho l use and smoking

. D r. Mat shes said that it is common f or women to have a miscarriage and not immediately be aware o f it

. With rega rd to Anjie ’ s del ay in see king medical care, the reco rd demonstrates
that s h e went t o Life Talk Resource Center on February 25, 2016

— t en d ays be fore
she was foun d dead

— t o confirm her pregnancy. The intake p aperwork refe renced epi lept ic seizures and n oted t hat Anjie was not taking anti

- s eizure medicine. Anjie
also noted on the intake paper work that she was a smoker , that she drank alcohol , and
th at this was an unplanned pregnancy.
A n urse performe d a urine preg nancy test , which was p osi tive, and a limited
sonogram
. 12 B ased on the in for mation that Anjie provided , the nur se estimated that the gestation was 18 weeks, 5 days. Based on the sonogram, t h e nurse estim ated that
the gestati on was 17 week s, 3 days. The nurs e opined that Anjie could have a viab le
pregnan cy because the unbor n child was in side the uterus. The nurse did not see anything that concerned her and recommended that Anjie follow up i n 30 days. The

12 The nurse te stified that a limited sonogram c annot determin e g ender or whether there are a ny birth defects.21 doc to r at Life Talk signed off on the nurse ’s recommendation. During the appointment, Anj ie rece ived a sono gram photo , which was still in her purse ten days
later when it was found near her dead bo dy

. 2. Evid ence of A lcohol Consumption a n d Smoki ng The man who accompanied A nj i e to h er son og ram testified tha t she had lit a cig aret te on the way out of the clinic. Cigarettes and a lighter were found in Anjie’s
purse after her death

. The pur se also had a handwritten li st that an investigator i nterp r eted t o be a
gro cery list; th at l ist includ ed beer

. On the e vening of March 5, 2016, w hi ch was the day before Anjie was foun d
dead , Anjie had two beers with the family that she lived with

. Anjie then w ent to a
nei gh b o r ’ s ho use and had a pineapple ma rgarita

. Around 9:30 that evening, Anjie went to Appellant ’ s house

. A ppellant told one of the de tectives that he and Anjie had smoked marijuana and ha d consumed alcoholi c drinks af ter she had arrived at his
house

. The toxic ology report from the a utopsy r evealed that Anjie had .248 grams p er deciliter of alcohol in the femoral b lood , and her uri ne and vi treous fluid each
contained .263 gr ams per deciliter of al cohol

. The toxicology rep ort also showed that Anjie was negative for drugs.22 3. Evidenc e of Feta l Distr es s and Autopsy Findings
Dr

. Mautone began t he autops y on Anjie and her unborn ma le child on March 7, 2 01 6 , at 12 :45 p .m. Anjie’s bod y sh owed evidence of asphy xia (inab ility to get enough oxy gen) , sharp

- force injuries, and blun t

- force injuries. An jie ’ s neck had
hori zontal linear co ntusions, wh i ch were “ con sistent w it h like a mar k imprint o r a ligature. ” Anjie ’ s n eck also had f ourteen s harp

- f orce injuries

— som e of which were
stab wounds , and others were superficial cuttings. Dr. Mauto n e listed liga ture strangulation 13 as the caus e of Anjie ’ s de at h, but she al so listed multiple sharp

- force injuries on t he n eck as a contributory c ause o f death because s he could not say exact ly
when the latter wer e inflicted or how much of a role they may h ave playe d in Anjie’s
death.
Dr. Mautone test ifi ed that the ges tational age of the unborn child was approxi mate ly 18 weeks and that th ere we re no structural or congenital abnormalities.
Dr. Maut one f ound th at the umbilical cord was hypercoiled

— having more twists in i t
than normal ly s ee n . Dr. Mautone t estified that a hypercoiled umbi lical cord is a soft
fi nding 14 of fetal distres s and that the fetal distress could have com e from Anjie’s
death. Although Dr. Maut one expected that the unborn child wo uld have had al cohol
i n hi s system because Anjie’s blood

- alcohol level w as . 2 4 8 , Dr. Mautone did not find

13 Dr. Mauton e exp lained that strangulation impedes blo o d flo w t o the brain,
caus ing the unav ailability of oxy gen and the loss of consciou sness.

14 Dr. Mautone explained that a soft finding “d oesn’t pr ove anything.”23 any evidence that the unborn child had fetal

- alcohol syndrome or had died of fetal

alcoh ol syndrome.
Dr. Mautone conclud ed t hat the un bor n child died be cause Anji e died.
D r. Maut o ne exp lained,
It is fai r in that mom being dead guarantees that [the unborn child ] will b e dead. You can have an in traute rine fetal demise fo r other reasons when mom is still a live and wel l. I d on’t have t hat situation so, yes, I found nothing el se to a c count for the [unborn c hild ’ s ] death. But the [unborn child ’s ] death was a certain outco me with the maternal death.
Dr. Ma utone f ur ther explained that once Anjie died , the unborn ch ild died becaus e he

was o nl y 18 weeks’ gestation , was depen dent o n his mother for all h is needs, and was

no t viable outside the womb. Dr. Mau tone did not find a reason for the unborn
ch ild ’ s dem ise sepa rate from Anjie’s death.
Dr. Mau tone testified that fetal mace ra tion plays a role in deter m inin g how
l ong a n unborn ch i ld has been dead. Dr. Mautone exp lained that fetal mace ration is the way that a n u nborn child will decompose : So a lot of the way we would deco mpose is due to bacteria that’ s present in our systems. [We] are
. . . fu ll o f it in our gastrointesti nal trac t and everywhere else. [An unborn child ] is sort of livi ng in a sterile space. The y don’t really ac quire tha t bacteria until after birth. So t hey decompos e w ithout the aid of bacteria. So there is nothing sort of he lpin g break them down other t han just natu ral cellular processes. So I think to make that dis tinction between putrefacti on, or the bacter ia

driven decomposition, and maceration, w hi ch is withou t t he bacteria, is why it is called that.
Dr. M auto ne furth er explained that there are grades of f etal maceration to approximate the time of death:24 And the way generall y [an unborn chil d] decomp oses or that you grade maceration i s based on t he external skin s urface. So the more red the skin looks and th e mo re sloughing you have, the more macera tion yo u have. That will eventually trans ition in to a browner color and it
e ventually looks l ike a lea thery, mummified appearance.
It tak es an unborn ch ild approximately two weeks to become mummif ied.
Dr. Mau tone gave the unborn child a f etal maceration grade of II ( on a scale w here V
is the hi ghest level of maceration ) , which she said fit with t h e time of Anjie ’ s death

. Dr. Mautone testified that she could not g ive an ex act time of death for an adult or an
unborn child. She said that an a utopsy provides an e stimate d time of death s pecified

as a broad range because only an ey ewitness can gi ve an exa ct tim e o f death.
Dr. Krouse testified that A njie ’ s bo dy “ was f ound the day prior [ to the
autopsy ], and obviously [ had ] been dead for 18 to 24 hours probably at th at point

. ” 15
Dr. Krouse testified t hat t here was not hin g wrong with th e unborn child

. Dr. Krouse
said t hat a hypercoiled cord just m eans that it is twisted and that the cord twists and
untwists whi le the baby moves around in utero. Dr. Kro use could not s ay for sure
whether the hypercoi led cord was a si gn of fetal distress from the mother’s death.
Dr. Krouse said t hat the unborn child ’ s blood

- alcohol level would have been
about the same as his mother’s b ecause alcohol cr osses int o the pla centa , but
Dr

. Kro use did not t hink tha t fetal

- alcohol s yndro me could be determined by examining the unb orn child because he was only 18 wee ks’ gestation. When asked

15 The prosecu tor expanded the t ime f rame that Dr. Krouse had g iven b y ask ing, “ So anywhere from 27 t o 36 hours, would that s ound abo ut right, based o n what yo u saw? ” Dr. Krouse responded, “ Th at wo u ld fit, yea h. ”25 whether he had any reason to believ e that Anjie’s al cohol int ake had caused the
unborn child ’ s d eath, Dr. K ro use said that he could not answer affir matively; he could
onl y sa y t hat alcohol incre ase s the risk of intrauterine d ea th in fetuses but that no one
has a m echanism to predict whether it causes death

. Based on Dr. Krouse ’ s training

an d experien ce and the findings from the autopsy, he did n ot have any reason to bel ieve that anythin g other than Anji e’s death had caused the unborn child ’ s death

. Dr. Krouse said that D r. Mautone had ch aracteriz ed the fetal maceration here
as II out of V, but h e was not famil iar with that scale. He character i z ed fe tal

m aceration as being mild, moderate, or advanced. He explained wh at it ta kes to go
from mild to mode rate: Right aroun d two to three to four days, enough of the c onnective tis su es under the sk in are breaking down . The plates of bone in the sk ull s tart to over lap. I believe there are nine ossification centers in the [unborn chi ld ’ s ] skull. And they are joined together b y tough c onnective tissue. And, after a few days, tha t c onnective tissue breaks down, and now the bones of the skull s tar t t o ove rlap. So no w we are at a stage of modera te fetal maceration.
Dr. Kro u se explained that he did no t see any of th os e indicat ions in the unbor n child and agreed that the lac k of those signs would indicate that the unborn child had bee n de cea sed for fewer th a n three days. When asked if the time frame for the unbor n ch ild ’ s death fell within the same 27

- to 3 4

- hour 16 time frame as Anjie ’ s death , Dr. Kr ouse agree d t hat was consisten t with the unborn child ’ s dying due to his

16 In thi s ques tion, t he pros ecutor used “ 34 ” hours ins tead of 36 hours as he had in a prior ques tion

.26 m o the r’s death. Dr. Krouse testified that the estimated time of the unborn child ’ s d eath could have been anywhe re from hours up to “a cou ple d ays max, two days” prior to th e autopsy.
Dr. Matshes mostly agreed with the autopsy find i ngs . D r. Matshes testif ied
that a pregnant w oman whose blood

- alcohol level was approximately .24 would have exposed her unborn child to risk and that the alc ohol use could have negatively impacted the unborn child ’ s brain over time. W hen asked if an unborn chi ld will always be ki lled by a mother who drinks alcohol , Dr. Matshes responded, “Absolutel y

not
. ” Dr. Mats hes testified tha t he had no evidence that alcohol had caus ed the
unborn ch ild ’ s d eath.
Dr. Matshes , however, disagreed wit h Dr . K rouse’s estimate of the maceration, stating that the unborn child ’ s body was “[n]owhere near” fully decomposed. B ut
D r. Matshes ag reed with Dr. Krouse’s opini on o n the timing of the unborn child ’ s dea th, opining that the unborn child had died “anywh ere ri ght at the time o f the death
of the mother” due to what had happened to h er o r “up to two days [prior to the autopsy] , similar to Dr. Kro use[’s estimat e]

. ” Dr. Matshes could not, bas ed on what he had seen, scientifically di ffer entiate between whether the unborn child h ad died right at the m oment of Anjie’s death or prior there to. Dr. Matshes testified that it is

s cientifically pos sible tha t the unborn child had died prio r t o Anjie’s death and that
there is no scie ntif ic or medical evidence t o refute th at. But Dr. Matshes agreed that
strang ulatio n of the mother is high risk wi th regard to the unborn child

.27 4. Evide nce that App ellant Knew of Anjie ’ s P reg nan cy With rega rd to Appellant ’ s knowledg e of Anjie ’ s pregnancy, t ext messages b etween Appellant ’ s cell phone and Anjie ’ s cell phone re flect ed that he knew of her
pregnancy by J anuary 17, 201 6. Durin g App el l a nt ’ s con fession on March 7, 2016 , T exas Ranger Clair Barnes asked Appellant if h e knew t hat Anjie was pr egnant, and
he re sponded affirmati vely. The prosecut or confirme d again during the redirect
examination of Ranger Barnes that Appe llant had kn own that Anjie was pr egnant o n

t he nig ht that he murdered her: Q. When y ou a re talkin g to [Appellant ] about Anjie [ ’ s] being pre gnant, did he ever s ay, [ “ W] ell, I knew she was at one time, but I wa sn ’ t sure when she came o ver t o my ho use that n ight [ ” ] ?
A. No, he did not. Q. In f ac t, was the context of that conversation abou t he r being pregnant, a nd when you asked him did you know tha t she was pregnant a nd he said ye s, was he just previously desc ribing that something had
co me over h is brain, and I jus t wanted to strangle her?
A. Y es. Q. Then you asked him if he knew that she was pregnant?
A. Yes, sir. Q. So did you have any dou bt in your mind that he was talki ng about what was going on lat e evening hours, early morni ng hours of March 5 th in to M arch 6th?
A. Not at all.

. . . .28 Q. And as you [we re ] ta lkin g to him about the cha rge of capital murder

. . . [,] did he ev er at that point in time sa y [, ] [ “ H ] old on a second [

. ] I didn ’ t know sh e was pregnant when I strangled her [ ” ? ]
A. No, he did not. Q. At th at po int in t ime did he say [, ] [ “ H ] old on a se cond [

. ] I didn ’ t really mean to k ill [Anjie ; ] that was just an acc ident [ ” ? ]
A. No , he didn ’ t. Q. At th at point in time did he say [, ] [ “ H ] old on a se cond [

. ] [Y] ou ar e t el lin g me she ’ s pregnant, but I didn ’ t me an to kill that baby, or know t hat by me stra ngling [Anjie] that I killed that baby [ ” ? ]
A. No, he di d not. Q. He is just nodd ing al ong with you in agreement to what you are say ing; is that co rrect?
A. That is co rre c t.
D
. Analys is
1. C aus ation As explained be low, the re i s no evi denc e that the unborn child ’ s death occurred independently of Anjie ’ s de ath , the defense misco n strued the medical examiner ’s testimony about the timin g of the un born child ’ s death , and th er e was testimony from

tw o e xperts that the unborn child had died due to A njie ’s death. Appellant argues that it is possible that the unborn child had d ied prior t o and independent of Anjie ’ s dea th and points to her hig h

- ri sk pregnancy due t o her a g e, her
fa ilure to seek adequate hea lth care, her co nsu mption of alcohol ( inc ludi ng evidence
of her blood

- alcohol level at the time of her deat h), and he r smoking ci gar ett es .29 Appellan t ’ s ar guments were controverted by the test i mony an d t he evi dence. All
three ex perts tes tif ied that th ere was no evidence that the u nbor n child had fetal

alcohol sy ndrome. Moreover, although there wa s testimony that Anjie ’ s a ge had put
her pregn ancy at a higher risk tha n a pregnant wo man who was twent y
- f ive y e ars old,

no ev idence wa s present ed that her age , her fail ure to seek health care earlier in her pregnancy, or her cigarette smoking had caused her to miscarry prior to he r death. Appellant also points to th e testimony that the dea th of the un born chi ld

“ c o uld have oc curred up to two days p r ior, ” i mplying that this time frame re lat e s t o two days pr ior to Anjie ’ s death. But Dr. Krouse did not testify to that, and the
prosec utor clarified during Dr. Matshes ’ s cross

- ex amination that t he testimony abou t

t he ti m ing of the unborn child ’ s death be g an from the time that the unborn child wa s vi ewed in the autopsy that took place on March 7 : Q. Let’s discuss a little bit about fetal maceration, because I think there was some perhaps miscommu nicat ion goi ng on be tween what was be ing to ld to you about w h at [Dr.] Krouse [had testified to ] versus wha t you were agreeing to. So I want to make sure [that] we’re on the s ame page. When we ta lk about fetal maceration, we are talking about working back from the ti me th at the [ u nborn child ] is o bserve d ; is tha t c orrect? A. I don’t really understand yo ur q uestion. Q. So when we are talking about fetal maceration in approximating a time of de ath, I know we are not ever going to give a specific, but wh en we are tal k ing abo ut ap proximating time of deat h, is it f a ir to say we are working back from when th e [ u nborn child] is observed outside of the womb , either by th e medical examiner or somebo dy else? A. Yes, sir.30 Q. We are not talking about working b ack from the time the [unb orn child] died, because that mak e s zero sense, correct?
A. Correct. Q. A nd s o Dr. Krouse testified that the [unborn child] had been dead for hours up
un til two days, based on what he saw in the fetal maceration. That would b e based on wh en h e sa w the [unborn ch ild] d uring t he autops y

, correct?
A. Correct. Q. Were you show n ph otographs of the autopsy?
A. Yes. Q. And did those photographs include photos of the [unborn child] ?
A. Yes. Q. A nd were you able to make vis ual observati ons on fetal maceration based on thos e photog r ap hs?
A. Yes. Q. And so now knowing that Dr. Krouse said that [] the approximate time of death based on his view of fetal maceration when he saw the [unborn child]
was hours prior up to two day s, do you agr ee w ith that ?
A. Yes

. [Emp has e s ad ded.]
Th e range of “ hours prior up to two days ” before the auto psy, which was opined as the timing of the unborn child ’ s death , cor responds with the timing of An jie ’ s death : she was last se e n alive by her fr ien ds an d neighbors on th e evening of Marc h 5 ( approxim ately two day s p rior to the aut opsy ) , and her body was found the morning
of March 6 ( approximately one day prior to the auto psy). Anjie died somet ime after
9:35 p.m. on March 5 , which was whe n s he te x ted Appell ant th at she was headed t o31 hi s house , and sometime prior to 3:10 a. m. o n March 6 when Appellant dumped her body after strangling her to death

. Th is is roughly 33 to 39 hours prior to the autopsy
that start ed at 12:45 p. m. on March 7. This corre l ates with the “ hou r s prior u p to two days ” tim e fram e that Dr. Kro use had testified to and that Dr. Matshes had agreed
with.
Additi onally , Dr. Matshes ’ s t estimony contradicted itself. He testifie d that the
unborn ch ild was “ [n]owher e near ” f ully decomposed

— thus i mplying t h at the unborn
child ’ s time of death was ver y cl ose to the t ime of the autopsy

— while simultaneously opining that the unborn child had die d prior to Anjie ’ s death. The jury was free to
decide what w eight, if any, to g ive t o t his testimony. See Qu eeman , 5 2 0 S.W.3d at 6 22

. Moreover, t he jury had te stim ony from two experts

— Dr. Mautone and
Dr

. Krouse

— who concluded that the unborn child had d ied due to Anjie ’ s death.
An d Dr. Matshes also agreed that was a pos sibility. The State was no t requir ed to di s prove all reasonable altern ative hyp otheses that m ight be inco nsiste nt with Appellant ’ s guilt for the evidence to be sufficient to support hi s conviction. 17

17 Although App ellant c ontend s that “ [a] con viction cannot stand whe n th e [ S ] tate does n ot di sprove all reasonable hypothes [ e ] s exc ept the d efendant ’ s guilt , ” t he law is the exact op posit e: “ [T] he State does not have to dis prove all reasonable alternative hypot heses which may b e in consistent with a n accuse d ’ s guilt fo r th e evidence to be legally suff icient to supp or t a convic tion. ” See Jones v . S t ate , No. 01

- 14

- 00385

- CR , 2015 WL 45 9 1 7 4 5 , at *6 (Tex. App.

— Houston [1st Dist. ] J uly 30 , 201 5, no pet. ) ( mem. op., n ot designated for publ ication) ; see als o Wilso n v. State , 7 S.W .3d 13 6, 141 (Tex. Crim. App. 1999) ( “ We ha ve rejected the reasonable hyp othesis construct as a measure of legal s uffic iency. ” ).32 Accordingly, we hold that the ev idence is sufficient to support the c ausation elem ent of Appellant ’ s capi tal

- murder conviction

. 2. Men s Rea Appellan t co ntends that “ this was a spontan eous event and not one [that] was planned in advance or g iven much thought at all ” and that “ there is no showing that he directed any ac t tow ard [ Anjie ’ s ] unborn child

. ” Appellant fur ther a rgues that his
pr ior knowledge of Anjie ’ s pregnancy “ alone is [ not ] enough to prove [that] he intentionally or knowingly caused the death of the [unborn child] by killing the
mother. ” Case law, however , ref u tes Ap pe llant ’ s argument.
I n Estr ada v. S t ate , the Tex as Court of Criminal Appeals dealt with a similar
argument and disposed of it as follows : Consistent with the applicab le statute [(Texas Penal Code Section 6.04 de finin g “ knowingly ” )] , the jury charge provide d that a “person acts knowi ngly, or with kno wled ge, with re spect to a result of his conduct when he is aware that his conduct is reasona bly certain to ca use the resul t.” Viewed in

. . . the light most favorable to t he verdict, the evidence is suffi cient t o support a finding t h at ap pellant knew that [th e wo man] wa s pregnant. A jury could reasonably infer from this evidence that appellant was aware that strangling a pr egnant woman and stabbing her [ back, neck, an d hea d a total of ] th irteen times with a knif e was reasonably cert a in to cause the unborn chi ld ’ s death. 313 S.W.3d 274, 279 , 305 (Tex. Crim. App. 2010) (footnote omitted).
He re, t he jury charge contained the s ame definition of knowingly. The record
demonstr ates that Appella nt kn ew t hat Anjie was pregn ant. Thus, the ju ry co uld reasonably infer that Appell ant was aware that strangling A njie or stabbing A njie ’ s33 neck w hile she was approximately 1 8 weeks ’ pregnant was reasonably certain to c ause the unborn child ’ s death. See id

. Acco rd ingly, we hold that the e v idence is s uffic ient to support the mens rea ele ment of Appellant ’ s capital

- murder conviction.
3. Disp ositi on of Sufficiency Challeng es
V

iew ed in the light most favorable t o the verd ict, and deferring to the jury ’s
deter minatio ns of the weight to b e give n the eviden ce an d t h e credibility of the
witness es, the evidence supports the jury ’s verdict of guilt

. See id. ( holding evidence
sufficie nt to sustain capital

- murder conviction becau se ap pellant kn ew tha t compla inant was pregna nt , and even though he did not stab her unborn c hild , “ [ a ] jury could reason ably infer” that appellant was aware that strangling a pregnant

wo man and s tabbing her back, nec k, and head a total of thirteen times w as re asonably
certain to ki ll the u nborn chi ld) ; E g

ui

a v. State , 288 S.W.3d 1, 8

– 10 (Tex. App.

— Hous ton [1 st D ist.] 2008, no pet.) (holding evidence sufficient to prove that appellant
know ingly cau sed the death of comp lainant ’ s unborn child because a ration al ju ry could find th at app ellant k new that complai na nt was pregnant and that stabbi ng her
thro at w ould cause her un born child to fail to be born alive)

. We overrule Appellant ’ s

se cond i ssue.34 I V. Concl usion Having o verruled Appellant ’ s tw o issues, we aff irm t he trial court ’ s judgm ent. /s/ Dabney Bassel Dabney Ba ss el Just ic e
D o N ot Publish Tex. R. App. P. 47.2(b)
Del ivered : Au gust 12, 20 21