Affirmed and Opinion filed June 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00009-CR

ADALBERTO MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 71837

O P I N I O N

In two issues, appellant Adalberto Martinez challenges the sufficiency of the 

evidence in support of his conviction for serious bodily injury to a child and the 

trial court’s admission at trial of videos showing the child experiencing a seizure

and undergoing a medical procedure. After the jury found appellant guilty, it 

assessed punishment at 50 years’ confinement. We affirm.
2

Background

Appellant lived with his girlfriend, Stefanie, their two children, and 

Stefanie’s parents and other family members. Appellant was recovering from 

surgery and not working but had the primary responsibility of taking care of his 

three-month-old son, D.C. 

One evening after appellant had been alone with D.C. for a large portion of 

the day, Stefanie gave D.C. a bottle. He would not take much milk, which was 

unusual, and fell asleep in Stefanie’s lap. D.C. woke up screaming, and then his 

body became limp. Stefanie ran to get her mother, Maria. When Maria got to D.C., 

he had vomited, was not breathing, and was turning blue. Maria performed CPR, 

and Stefanie called 911.

A police officer arrived and observed that D.C. still was not breathing. The 

officer patted D.C. on the back, and D.C. spit up and began taking shallow breaths. 

After the paramedics arrived, D.C. was transported, unconscious, to the hospital.1

D.C. subsequently was transferred to a children’s hospital, where he remained in 

the neonatal intensive care unit (NICU) for approximately two weeks. 

After D.C. had been in the NICU for nine or ten days, his doctor informed 

Stefanie and her mother that D.C. “could remain a vegetable the rest of his life, 

or . . . be severely mentally retarded.” He might never walk “or be a normal little 

boy.” Stefanie stepped out of D.C.’s hospital room to deliver the news to appellant. 

Maria thereafter stepped out and heard appellant telling Stefanie he was “sorry” 

and it was “his fault D.C. was in the hospital.” Maria confronted appellant, yelling 

“[y]ou did this. You need to leave. You need to get out of here.” Appellant left and 

never returned to the hospital. Maria reported appellant’s statement to the Texas 

 

1 At the hospital, appellant refused to consent to the medical staff’s photographing 

“medical, surgical, and/or diagnostic procedures” performed on D.C.
3

Department of Family and Protective Services (the Department), which had 

already opened an investigation to determine the nature of D.C.’s injuries.

D.C. ultimately was transferred to a rehabilitative hospital and stayed there 

for two to three months. As a result of D.C.’s injuries, he cannot see, talk, sit up, or 

walk. He developed violent seizures and must be fed through a tube in his stomach. 

He also had to wear a helmet to help reshape a large dent in the back of his head.

During the course of the Department’s investigation, appellant offered 

several different explanations for how D.C. was purportedly injured. First, 

appellant told a Department caseworker he had no idea what happened, although 

he insisted D.C. could have been injured in the hospital. In a second interview with 

another caseworker, appellant again denied knowing what happened to D.C. 

However, in a third interview with another caseworker, appellant claimed he was 

carrying D.C. and bumped his head on the doorway to the bathroom, but he did not 

tell the doctor about this incident because he was “never alone with the doctor.” He 

also said that his two-year-old daughter may have hit D.C. with a Gatorade bottle. 

He said he “didn’t mean for anything to happen to” D.C. and admitted that when 

D.C. became unresponsive, appellant was afraid he would go to jail.

A police officer subsequently conducted a videotaped interview of appellant, 

which was played at trial for the jury. Appellant said he hit D.C.’s head on the 

doorframe, but D.C. did not cry. The officer asked appellant how D.C. had 

sustained two older injuries. Appellant then offered for the first time the following 

possible explanations for D.C.’s injuries that appellant claimed were accidents: 

(1) appellant hit D.C.’s head on the sink while giving him a bath; (2) appellant 

might have played too rough with D.C.; (3) appellant put D.C. down on the bed 

quickly to attend to his daughter when she fell down and “maybe [D.C.] hit his 

head”; (4) appellant’s daughter “head butts the baby”; (5) appellant sometimes 
4

shook the baby but not hard; and (6) one time appellant hit the front of D.C.’s head 

on the headboard of his and Stefanie’s bed. Appellant did not want to tell the 

doctor about these incidents because he was “scared” and did not want to tell 

Stefanie because “she might flip out.”

The State’s expert at trial, Dr. Marcella Donaruma, testified that D.C. had 

suffered chronic abusive head trauma. Regular shaking over time could have 

caused some but not all of D.C.’s injuries.2 One of his injuries was a contact injury 

resulting from an impact to his head with an object that had a greater surface area 

than his head and caused swelling of the head and bruising of the brain. The 

trauma affected four areas of D.C.’s brain, which indicated the abuse occurred 

more than once. Older injuries were at least a week old by the time D.C. was 

admitted to the hospital. Donaruma testified the injuries could not have been 

caused by a routine accident, such as by D.C.’s sister head-butting him or hitting 

him with a Gatorade bottle or by someone hitting D.C.’s head on a headboard or 

bumping it into a door jamb or sink. The injuries were caused by a “massive, 

severe, violent force applied to [D.C.’s] body.” Donaruma had questioned 

appellant and Stefanie the day D.C. was admitted into the children’s hospital. She 

 

2 Donaruma testified,

[A] baby has . . . a very weak, floppy neck. They can’t lift their head up 

until they are at least four months old; and [D.C.] wasn’t.

So they have this little, wimpy neck and then this really big, heavy head. 

So they have no head control at all; and if you’ve handled a baby, you can see 

that. You have to support them.

And so when they do suffer this whiplash, their head will go back; and the 

back of their head will impact behind their shoulder blades and their chin will 

come forward and slam into their breast bone. And while that is happening, the 

brain, this soft little brain is slamming back and forth into the skull and inside 

itself.

And the problem is, it works; and so people do it more than once because 

the kids get concussed and they’re quiet and they stop [crying].
5

described appellant as “quite aggressive, reluctant to answer questions directly, and 

border[ing] on hostile.”

D.C.’s treating doctor, a pediatric neurologist, also testified that D.C. 

suffered three brain injuries that left him in a permanent state of disability known 

as “quadriplegic cerebral palsy.” The first type of injury resulted from repeated 

acceleration and deceleration “causing a shearing of force on the brain” as well as 

an impact to the head. The second was hypoxic ischemia, meaning the brain did 

not get oxygen during the time D.C. was not breathing. The third resulted from 

bleeding in his skull that caused pressure on his brain. These injuries were 

consistent with “non-accidental trauma” caused by shaking and an impact to the 

head. The doctor concluded that there were older and newer injuries consistent 

with the findings in D.C.’s medical records that he had suffered “abusive head 

trauma.”

Discussion

Appellant challenges (1) the sufficiency of the evidence in support of the 

jury’s finding that he intentionally or knowingly caused serious bodily injury to 

D.C., and (2) the trial court’s admission of videos showing the nature of D.C.’s 

injuries. 

I. Sufficiency of the Evidence

In his first issue, appellant claims the State failed to establish beyond a 

reasonable doubt that he intentionally or knowingly caused serious bodily injury to 

D.C. When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict and determine, based on that evidence and 

any reasonable inferences therefrom, whether a rational jury could have found the 

elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d 
6

743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 

(1979)). In making this review, we consider all evidence in the record, whether it 

was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.

App. 2013). We also consider both direct and circumstantial evidence, as well as 

any reasonable inferences that may be drawn from the evidence.3See Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Although we consider everything presented at trial, we do not reevaluate the 

weight and credibility of the evidence or substitute our judgment for that of the 

factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Because the jury is the sole judge of the credibility of witnesses and of the weight 

given to their testimony, any conflicts or inconsistencies in the evidence are 

resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000).

Appellant challenges the sufficiency of the evidence to prove that he 

intentionally or knowingly caused serious bodily injury to D.C. as alleged in the 

indictment. See Tex. Penal Code § 22.04. A person acts intentionally when “it is 

his conscious objective or desire to engage in the conduct or cause the result.” 

Id. § 6.03(a). A person acts knowingly when “he is aware that his conduct is 

reasonably certain to cause the result.” Id. § 6.03(b). Serious bodily injury is 

defined as “bodily injury that creates a substantial risk of death or that causes 

death, serious permanent disfigurement, or protracted loss or impairment of the 

 

3 Appellant challenges the legal and factual sufficiency of the evidence supporting his 

conviction. The Court of Criminal Appeals has determined that the Jackson v. Virginia legalsufficiency standard is the only standard that a reviewing court should apply in determining 

whether the evidence is sufficient to support each element of a criminal offense that the State is 

required to prove beyond a reasonable doubt. See Griego v. State, 337 S.W.3d 902, 903 (Tex.

Crim. App. 2011) (per curiam). Therefore, in analyzing appellant’s challenge to the sufficiency 

of the evidence, we will apply only the Jackson v. Virginia standard.
7

function of any bodily member or organ.” Id. at § 1.07(a)(46).

Injury to a child is a result-oriented crime. Kelley v. State, 187 S.W.3d 761, 

763 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). That means the culpable 

mental state relates to causing the result rather than merely engaging in the 

conduct. Id. Mental culpability usually must be inferred from the circumstances. 

Id. It may be inferred from the extent of injury and the relative size and strength of 

the parties. Id. The extent of a victim’s injuries thus can be a reflection of the 

strength of a defendant’s attack. Id.

Appellant contends the State failed to introduce evidence that would show 

he engaged in the conduct necessary to cause D.C.’s injuries. He asserts that he 

offered explanations of how D.C. accidentally could have been injured, but there 

was no evidence that he intentionally or knowingly injured D.C. To the contrary, 

Donaruma testified that D.C.’s injuries could not have been caused by a routine 

accident. She specifically refuted appellant’s purported explanations regarding the 

cause of D.C.’s injuries as being head-butted and hit with a Gatorade bottle by his 

sister or appellant’s hitting D.C.’s head on a headboard or sink or bumping it into a 

doorframe. Donaruma testified that the necessary force to cause D.C.’s injuries

“would be the kind of handling that any reasonable adult would see and 

immediately feel like they have to intervene, knowing it could be harmful to a 

child. It exceeds any force you would need to move the child from bathing, 

dressing, changing a diaper.” D.C.’s injuries were consistent with repeated violent 

shaking and a forceful impact to the head. Both experts testified that D.C.’s 

injuries were caused by abusive, non-accidental head trauma. The severity of 

D.C.’s injuries supports an inference that they were caused intentionally and 

knowingly. See Herrera v. State, 367 S.W.3d 762, 771 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.). 
8

Appellant also argues that the State failed to prove that D.C.’s injuries were 

not inflicted by someone else. Appellant was D.C.’s primary caretaker and was 

alone with him most of the day during the month leading up to D.C.’s hospital 

stay. Appellant was the only adult with D.C. for most of the day and evening prior 

to Stefanie’s feeding him and his becoming unresponsive. Appellant further 

admitted that none of the women in the house caused D.C.’s injuries. Stefanie also 

testified that her father was never alone with D.C. This evidence supports an 

inference that appellant—and not someone else—injured D.C. See id. 

The injuries precipitating D.C.’s becoming unresponsive occurred within 

hours of when D.C. was transferred to the children’s hospital. This evidence also 

points to appellant as the likely perpetrator because he had been alone with D.C. at 

the approximate time he sustained extremely severe injuries. See id. (citing Martin 

v. State, 246 S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.] 2007, no pet.), for 

the proposition that, among other things, a defendant’s being alone with a baby 

during the time in which the baby suffered blunt force trauma was legally 

sufficient evidence of guilt).

Appellant argues, however, that he was too weak from surgery to injure D.C. 

On cross-examination, appellant testified that he was not strong enough to injure 

D.C. on the night he went to the hospital because appellant recently had had 

surgery. However, on cross-examination, the State’s attorney elicited testimony 

from appellant agreeing that he was able to demonstrate to the officer two weeks 

later how he purportedly injured D.C. The jury, as the sole judge of credibility, was 

entitled to disbelieve appellant’s testimony that he was too weak to injure D.C. See 

Martin, 246 S.W.3d at 262. Moreover, as set forth above, appellant, a grown man, 

had been alone with D.C. during the approximate time he sustained grave injuries. 

The jury could infer that appellant was strong enough to cause D.C.’s injuries. See
9

Kelley, 187 S.W.3d at 764 (concluding jury, in finding appellant recklessly injured 

child, could consider “the extent of the baby’s injuries, the relative size of a threemonth-old baby compared to appellant, and the expert testimony that a severe 

trauma was the cause of the baby’s injuries”).

Appellant also made the following admissions that support the jury’s 

verdict: it was his fault that D.C. was in the hospital, he sometimes shook D.C. but 

not hard, he knew shaking an infant could be harmful, he was scared to tell 

Stefanie and the doctors about his role in D.C.’s injuries, and he was afraid he 

would go to jail. Further, appellant’s explanations of how D.C. might have been 

injured evolved over the course of the investigation, which also supports an 

inference of culpable intent. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. 

App.—Houston [1st Dist.] 2003, pet. ref’d) (“[T]he jury could have viewed 

appellant’s changing versions of the incident as evidence of guilt.”). Moreover, 

appellant failed to tell anyone about these alleged accidents until long after D.C.’s 

admission into the hospital. Appellant resisted providing information to medical 

staff—he refused to consent to their taking photographs of procedures performed 

on D.C. and did not tell them about the purported incidents that he later asserted 

caused D.C.’s injuries. He was aggressive, reluctant to answer questions, and 

hostile. See Martin, 246 S.W.3d at 262 (concluding the following evidence, among 

other things, supported jury finding that appellant caused fatal injuries to child: 

appellant’s failure to call 911 and delay in taking victim to emergency room, her 

reaction when someone else tried to call 911, witness testimony regarding her 

demeanor and behavior, and her inconsistent statements given to social worker and 

police).

Viewing all of the evidence in the record in the light most favorable to the 

verdict, we conclude that the evidence was legally sufficient to permit a jury to 
10

find beyond a reasonable doubt that appellant intentionally or knowingly caused 

serious bodily injury to D.C. We overrule appellant’s first issue.

II. Admission of Videos

In his second issue, appellant argues that the trial court abused its discretion 

in admitting videos of D.C. experiencing seizures and undergoing a medical 

procedure.4 Under Rule of Evidence 403, relevant evidence may be excluded “if its 

probative value is substantially outweighed by a danger of . . . unfair prejudice, 

confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” Tex. R. Evid. 403. “Probative value” refers to the inherent 

probative force of an item of evidence—specifically, how strongly it serves to 

make more or less probable the existence of a fact of consequence to the 

litigation—coupled with the proponent’s need for that item of evidence.

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Unfair 

prejudice” refers to a tendency to suggest decision on an improper basis, 

commonly, though not necessarily, an emotional one. Id. Evidence might be 

unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for 

one side without regard to the logical probative force of the evidence. Id.

Accordingly, in determining whether the trial court abused its discretion in 

admitting the videos, we must balance the inherent probative force of the proffered 

item of evidence along with the proponent’s need for that evidence against any 

 

4 Appellant refers on appeal only to State’s exhibit 1, which appellant contends shows 

D.C. having seizures and undergoing a medical procedure. However, that exhibit is a video of 

D.C. having seizures, and State’s exhibit 25 shows D.C.’s doctor administering Botox injections 

to D.C. to reduce spasticity in his muscles that are tight. Because appellant’s attorney objected at 

trial to both videos on the basis that their probative value is substantially outweighed by the 

danger of unfair prejudice, we shall construe appellant’s brief liberally as a challenge to the 

admissibility of both videos.
11

tendency of the evidence to suggest decision on an improper basis.

5

See id.

We presume that the probative value of evidence substantially outweighs the 

danger of unfair prejudice from admission of that evidence. Cargill v. State, No. 

AP-76,819, 2014 WL 6477109, at *6 (Tex. Crim. App. Nov. 19, 2014). It is 

therefore the defendant’s burden to demonstrate that the danger of unfair prejudice 

substantially outweighs the probative value. Kappel v. State, 402 S.W.3d 490, 494 

(Tex. App.—Houston [14th Dist.] 2013, no pet.). In reviewing the trial court’s 

balancing determination under Rule 403, we are to “reverse the trial court’s 

judgment rarely and only after a clear abuse of discretion.” Id.

Appellant has not indicated how the evidence presented in the videos would 

be substantially outweighed by the danger of unfair prejudice. Appellant merely 

contends that D.C.’s condition could have been demonstrated through testimony 

from his treating physicians without use of the videos.

6

Probative Value and State’s Need for Evidence. The trial court in this 

case reasonably could have concluded that the inherent probative force of the 

videos was considerable, since those videos showed the nature and gravity of 

D.C.’s injuries. See Gigliobianco, 210 S.W.3d at 642. Evidence of D.C.’s seizures 

and the medical treatment that he must endure tends to emphasize the seriousness 

of his injuries. Moreover, because the State was required to show D.C. suffered 

 

5

The Court of Criminal Appeals has identified several factors to be considered in 

conducting the Rule 403 balancing test. Gigliobianco, 210 S.W.3d at 641. Because appellant 

challenges the admission of the evidence only on the basis that it was unfairly prejudicial, we 

need only address the 403 factors relevant to that issue. See, e.g., Cargill v. State, No. AP76,819, 2014 WL 6477109, at *7 (Tex. Crim. App. Nov. 19, 2014) (balancing only factors 

relevant to whether probative value of evidence was substantially outweighed by unfair prejudice 

when appellant’s Rule 403 challenge was limited to that basis); see also Kappel v. State, 402 

S.W.3d 490, 494-95 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (focusing on probative 

value versus unfair prejudice when appellant challenged evidence only on that basis).

6 Appellant also reiterates his evidentiary sufficiency challenge in issue two. We need not 

revisit the merits of that issue discussed above. 
12

serious bodily injury, the trial court reasonably could have concluded that the 

State’s need for the evidence was considerable. See id.

Unfair Prejudice. The trial court also reasonably could have concluded that 

the videos did not have a tendency to suggest decision on an improper basis 

because they relate directly to the charged offense—that appellant caused serious 

bodily injury to D.C. See id. We note that a video need not be excluded simply 

because it reflects the gruesomeness or reality of the crime. Ripkowski v. State, 61 

S.W.3d 378, 392 (Tex. Crim. App. 2001). Although testimony regarding D.C.’s 

condition could have been—and was—admitted through D.C.’s physicians, the 

videos conveyed what testimony could not: a visual representation of the 

seriousness of D.C.’s injuries. They were thus unique pieces of evidence, and the 

fact that testimony could have presented evidence of D.C.’s condition is not a 

sufficient reason to exclude the videos.

7

See id. (holding videotape of recovery of 

victim’s body was not cumulative of photographs because “videotape offer[ed] a 

panoramic view of the scene that still photographs often do not offer”).

We conclude the probative value of the videos was not substantially 

outweighed by unfair prejudice. This evidence was probative in assessing the 

serious nature of D.C.’s injuries. See Cargill, 2014 WL 6477109, at *7. The State 

needed the evidence to demonstrate D.C. suffered serious bodily injury. See id. 

The trial court did not abuse its discretion by admitting the videos. We overrule 

appellant’s second issue.

 

7 Appellant does not argue the videos needlessly presented cumulative evidence. See Tex. 

R. Evid. 403. We note that the videos were very short, under two minutes each.
13

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, Busby, and Brown.

Publish — TEX. R. APP. P. 47.2(b).