i i i i i i



### MEM ORA ND UM OP INION No
. 04 -0 8- 00 01 4- CR J ose ROMERO , Appellant
v . T h e STA TE of

Te xas, Appellee Fr om the 399th J udicial District Court, Be x ar County , Texas

Trial Court No. 2007-CR-9123B Honora ble J uanita A. Va squez-Gar dner, Judge Presiding Opinion by : Kar en Ang elini, J ustice Sitt ing: Kar en Ang elini, J ustice

Rebec ca Simmons, J ustice Steven C. Hilbig, Just ice Deliver ed and F iled: Fe bruar y 25, 2009 AFF I RMED Jose Rom e ro a

pp e a ls h is c on vic tio n of inj ur y to a ch ild . Rome ro c on te nd s th e e vid e nc e is leg ally and fa ctually

insufficient to support the jury ’s finding that he either : ( 1 ) i n tentionally or knowing ly

injured the c hild; or (2) intentionally or knowing ly

cause d injury

to the child by

omission b y e it h e r : ( A ) n o t p r e v e n ti n g th e c h il d f r o m be in g a

b u s e d ; or ( B ) f

a il in g to o b ta in

me d ic a l c a r e . We
a ff ir m th e tr ia l c ourt ’s jud g me nt.04

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- 2- B ACKG ROUND J ose Antonio Romero I I I(“B aby Tony ”) w as seve n wee ks old when he died of massive hea d and interna l injuries. The a ppellant, Romero, wa s Ba by Tony ’s father, a

nd Gina He rnande z was B a by To ny ’s mot

he r. Gi na so me tim e s r e sid e d w ithB a by To ny and his sis te r, Jale ne , at th e ho me of Gi na ’s a un t, M a ry Ga mez . Gam ez ’s mo the r, Ga me z’s so n Jose ph , a

nd Ga me z’s sis te r A nit a (Gina’ s mother) a lso resided with Gamez. Gina also sometimes resided w ith Rom ero, Jalene, a nd B a by To ny a t th e ho me of Ro me ro ’s fathe r, Jose Rom e ro , Sr . ( “ Rom e ro , Sr .” ). Rom e ro ’s ha lf brother, Jose Antonio Romer o, J r. (“Joey ”), resided in a conver ted g arde n shed behind Romero, Sr.’ s home. The nig ht before Ba by Tony died, Romero, Gina, Jalene and B aby Tony had slept at Ga

mez’s house. Gamez and Gina primar ily took car e of B aby

Tony when they s t ay ed at Game z’s house. Gamez testified that she chang ed Ba by Tony ’s diaper s but ne ver saw any bruises. Gamez testified that she neve r saw Romer o chang e B aby Tony ’s diaper
. Gamez testified that B aby Tony was fine wh e n Ro me ro , G ina , Jal e ne , a nd B a by To ny le ft the fo llo wi ngda

y a ro un d 5 :30 or

6:0 0 p .m. Gamez’s son, Jos eph, wa s fourtee n y ear s old at the time of the tria l which occ urre d approximately

two y ear s afte r Baby Tony died. At trial, J oseph t estified that on the day that Ba by Tony died, Game z, Gina, and Romero we re a ll taking c are of B aby Tony , and he wa s fi n e. Two
m o n t h s a f

t e r B a b y T o n y d i e d , h o w e v e r , J o s e p h t e s t i f i e d b e f o r e a g r a n d j u r y . Int h a tt e s t i m o n y, J oseph stated that Rom ero ta pped B aby

Tony ’s che ek whe n Ba

by Tony was c rying. Joseph further stated t hat i t surprised him when Rom ero tapped Baby Tony , and he told the g rand jury that it makes him mad when p eople hit babies. Joseph demonstrated the tapping for the jur y , stating it wa s not a punch or

slap.04

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- 3- Romero, S r. t estified that Romero a nd Gina had a

rocky relationship. Gina would sometimes leave with the babies a

nd would sometimes leave B aby Tony alone with Romer o for a few day s. On the day Ba by Tony died, Romero, Sr. drove Romero, G ina, J alene , and B aby Tony from Gamez’s ho u s e to h is h o me . Ro me r o , Sr
. w a s d o zi n g w h e n h e h e a r d s o me b o dy s a y , “ h e ’ s n o t br eathing .” Romero, Sr. testified that Romero ha d remove d Ba by Tony ’s clothes to g ive him CP R. Romero, Sr. tol d Ro me ro a nd

Gi na to m ov e B a

by To ny to t he liv ingro om s of

a be c a us e the be dr oo m w a s h ot. Romero, Sr. then called 911. Romero, Sr. stated that he ne ver sa w any bruises on B aby

Tony , but he also testified that he did not chang e B aby Tony ’s diaper s and neve r saw him without a shirt. Bill y Wa s h b u r

n , a Sa n A n to n io p a r a me d ic , w a s d is p a tc h e d f o r a f u ll a r r e s t o n an infa nt at 8:05 p.m. W hen he a

rrived, the fire f

ighte rs broug ht B aby Tony to the ambulance
. Ba by Tony was clinically dead, meaning he had no pulse, no respiration, no pressure . Ba by Tony had pete chiae , a
c on dit ion wh e re blo od

c ome s to the surf

a c e be c a us e the un de rl y ing or g a ns have be e n d a ma g e d s o that blood is leaking into the surrounding tissue. Washburn testified that CPRwould not have
cause d Ba

by Tony ’s bruising or pete chiae
. Detec tive L eslie Way

ne Spiess was called t o the hospital where the nurses e x plained B aby Tony ’s injuries t o h i m . Du ri n g De t ec t i v e S p i es s ’s t es t i m o n y , p i ct u re s d ep i ct i n g Ba b y T o n y ’s i n j u ries
we re int ro du c e d in to e vid e nc e . D e te c tiv e Spi e ss t e sti fi e d t hat wh e n h e qu e sti on e d th e fa mil y members pr esent, the f

amily was “ taking a we -don’t-knowkind of attitude.” Offic er Raul Z uniga and another office r drove Romero and J oey to the police station to take the ir state me nts . O ff

ic e r Z un ig a

wa s una wa re of the re a so n Rome ro a nd Joey we re be ingtake n in for que stioning; howeve r, neither asked O ffice r Z uniga

about B aby

Tony
.04

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- 4- D r . S a n t o s C a n tu , J r . w a s t h e e m e r g e n c y r o o m d o c t o r w h o t r i e d

t o r e s u s c i t a t e B a

b y T o n y, who was dead on arr ival. Dr. Cantu testified that it wa s obvious that B aby Tony was abused. B aby T o n y h a d b r u i s e s a l l o v e r

h i s a b d o m e n a n d

c h e s ta n d

a r e t i n a l h e m o r

r h a g e t h a ti s a l m o s ta l w a ys
cause d by shaking the baby
. Ba

by Tony also had a distended abdomen, w hich was a sign of internal trauma
. D r . Ca

n tu te s ti f ie d th a t B a

b y T o n y ’ s b r

u is e s c o u ld n o t h a v e b e e n c a u s e d b y CP R. Baby To ny a lso ha d sus taine d mu lti ple ri b f ra c tur e s f ro m di ff e re nt p e ri od s o f t ime s, wh ic h D r. Cantu testified would re quire a

lot of forc e bec ause a

baby ’s bones a

re more pliable. Detec tive Gilbert Gonzalez took Romero’s statement at t h e police station. Rom ero’ s state me nt w a s p la

y e d f or the jur y . T he jur

y wa s a ble to obse rv e Rom e ro ’s bo dy lang ua g e and

his lack of ey e conta ct during the interview in w hich Romero repe atedly profe ssed that he did not know what happe ned. Romero state d that he and G ina fe d Ba by Tony and laid him on the bed be cause he fell as l eep. Romero stated that they chec ked on him beca

use they had not hea

rd him for a

while. When they

chec ked on him, Ba

by Tony did no t respond, and his e y es we re r olled back. Romer o denied t h at he did not want to ca ll 911. Approx imately one hour into his interview, Romer o mentioned that he ha d l eft B aby Tony for a short period of time with a little boy from the neig hborhood who be longe d to the East Terrac e Gang
. Romero di d not know the little boy ’s name. Romero stated that he left B aby Tony with the littl e boy so he could g et some movies he ha d loaned to his friend Rog er. G ina was in the showe r whe n he let the little boy in and when he returne d. Dr. Kimber ly

Molina, a medica l examiner, testified reg arding Ba by Tony ’s autopsy . Ba

by Tony su f f e r e d b o th a s u

b d u r a l a n d s u

b a r a c h n o id h e mo r

r h a g e o f th e b r a in c a

u s e d b y b lu

nt force trauma to his head that occur red sometime within 12 to 24 hours before his death. Ba by Tony had multipl e bruises on his che st, upper and lower abdomen, and both side s, which also likely occur red04

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- 5- sometime within 12 to 24 hours befor e his de ath. B aby Tony ’s spleen w as torn, and his liver w as torn in half. About two-thirds of B aby Tony ’s blood was in his abdomen, indicating an injury that
oc c ur re d b e tw e e n mi nu te s to on e and on e -h a lf ho ur s b e fo re his de a th. Dr . M oli na te sti fi e d th a t a baby with these ty

pe of injuries w ould not feed w ell and woul d b e cr y i ng . Ba by Tony also had mul tip le ri b f

ra c tur e s, so me of wh ic h he lik e ly su ff e re d ap pr oximate ly thr e e to six we e ks be fo re his de a th a nd so me of wh ic h h e lik e ly

su ff e re d w ith in t

we nty -f our h ours of

his de a th. Dr . M oli na

sa id some but not all of Ba

by Tony ’s bruising could possib l y have be en ca

used by CPR , but not the int e rn a l in jur ie s. Jac k Na bo rs , a n e me rg e nc y me dic a l te c hn ic ian, wa s the fi rs t to a rr ive a t Ro me ro , Sr .’ s h ou se in response to the 911 c al l. He took B aby Tony from Romero a

nd twice a sked what cause d Ba by Tony to stop breathing . No one r esponded to his questions. Nabor s asked for a towel to put Ba by To ny on the fl oo r. On c e Na

bo rs pla c e d B a

by To ny on the fl oo r, he a g a in a sk e d w hat ha pp e ne d in a stern ma

nner be cause no one wa s responding
. Romero, who wa s kneeling next t o Nabor s, said, “I di dn ’t d o an y

t h i n g. ” R o m er o t h en s t ar t edcry i n g. Joey te sti fi e d that he kn oc ke d on the fr on t do or of Rom e ro , Sr .’ s ho us e a ro un d 7 :30 p. m. t o te ll Ro me ro to c ome to the ba c k s o h e c ou ld t e ll h im a bo ut a job po ssi bil ity . Ro me ro sa id h e wo uld come in fifte en minutes, but he did not. J oey then hea rd the sire ns and saw B aby Tony being taken to the ambulance
. Mary Romero testified that some time a fter Ba by Tony died she was at a re staurant a nd saw Gamez eating with her son J oseph and Gina’s baby niece . The ba by was c rying, a

nd J oseph swung at her . Mary

Romero hea

rd Gamez tell J oseph t o leave the baby alone, to which he responde d, “She don’t f—ing let me eat.”04

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- 6- J ose De L eon, Romero’ s cousin, testified that he talked to Romero outside his home e arlier in the eveningbefor e the ambulance s arr ived. Acc ording to D eL eon, Romero was on his way back from Rog er’ s where Romero went to g et his Play Station. DeL eon went outside ag ain when he hear d the sirens a

nd asked Romer o what happe ned. Romero told DeL eon that the baby could not breathe. De L eo n t es t i fi edt h at R o m er o wa s i n s h o ckan d cry i n g. Rog e r R ob le s li ve d b e hin d Ro me ro , Sr .’ s h ome . Ro ble s te sti fi e d th a t Ro me ro c a me to h is house ar ound 7:30 p.m. to get some g ames a nd movies t h at R o mero ha d loaned Robles. Robles initially stated that he did “ not rea lly ” reme mber which day this oc curr ed. I n response to whether this happened the day

Ba by Tony died, Robles responde d, “I

– I think.” Robles admitted that he be lon g e d to a g a ng . Rob le s state d that a me mbe r o f t

he Ea st T e rr a c e Ga

ngwo uld no t be liv ingin their neig hborhood. Robles’s g randmother also testified that Romero came to he r home to pick up his Pl ay Station around 7:30 p.m. and that she later hear d an ambulanc e ar ound 8:00 p.m. Dr . Ro d L e e , a

n ort ho pe dic surg e on , tes tif

ie d tha t Ba

by To ny ha d thr e e se ts o f r ib f ra c tur e s. One se t of fra cture s occur

red f our t o six wee ks befor e his death. The second s et of frac tures occ urre d about two wee ks befor e his death. The thi rd set of fr actur es occ urre d on or about the da y Ba by Tony died. Dr. L ee a lso testified that Ba by Tony ’s bruises we re one or two day s old. Dr. L ee f u rt her testi fi ed t h at Ba

by Tony ’s bra in and interna l injuries could have oc curr ed any wher e fr om a fe w minutes to a few hour s befor e his de ath, but c ould not have been olde r then twe lve to twenty -four hours; howeve r, Dr. L ee be lieved B aby Tony probably died within twenty

m i n u t es fr o m the
a b d o m i n a l i n

j u r y. D r . L e e s t a t e d B a

b y T o n y c o u l d n o t h a v e f

e d n o r m a l l y a f t e r t h e a b d o m i n a l i n

j u r y. Dr. L ee opine d that Ba

by Tony was proba

bly chronic ally

abused the majority

of his life.04

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- 7- Detec tive Manuel Nune z was assig ned to investig ate B aby Tony ’s death. Detec tive Nunez
re vie we d th e int e rv ie ws of bo th R ome ro a nd

Gi na a nd we nt t o s pe a k w ith Gi na who wa s in ja il. Af te r r e vie wi ngthe int e rv ie ws , D e te c tiv e Nu ne z wa s sa

tis fi e d th a t Ro me ro ne ve r le ft the ho us e to speak to a Roge r on the nig ht Ba

by Tony died. S TA N D A R D O F R EVIEW I n revie wing the leg al suffic iency of the e vidence t o s u pport a c riminal conviction, we consider all of the evidenc e in the light most fa vorable to the verdic t and deter mine whether , based on that evidenc e and rea sonable infere nces there from, a rational juror could have found the e ssential elements of the crime be y ond a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 318-19 (1979); Ro lle rso n v . S

tat e , 227 S.W .3d 718, 724 (Tex. Crim. App. 2007). In conducting a fa ctual suff iciency revie w, this court views a ll of the evidenc e in a ne utral lig ht and sets aside the verdic t only if: (1) the
e vid e nc e is s o w e a k th a t th e ve rd ic t is c le a rl y wr on g a nd

manif e stl y un jus t; o r (2) th e verd ic t is aga i n s t t h e great weig ht and pre pondera nce of the evidenc e. J

oh ns on v . S

tat e , 23 S.W .3d 1, 11 (Tex. C ri m . Ap p . 2 0 00). I n revie wing the fa ctual suff iciency of the e vidence , we “ must be cog nizant of the fac t that a jury has alre ady

passed on the fac ts a

nd must g ive due defe renc e to the deter minations of the jury .” Lan c on v . S tat e , 253 S.W .3d 699, 704-05 (Te x . Crim. App. 2008). “Circumstantial evide nce is a s probative a s direct e vidence in establishing t h e gu i lt of an actor .” Gu e v ar a v . S

tat e , 152 S.W .3d 45, 49 (Tex. Cr i m . App. 2004). “Circumstantial evidence alone is suffic ient to establish guilt.” Id
. “ F ur the rm or e , the sta

nd a rd of re vie w on a

pp e a l is the same for both dire ct and c ircumstantial evidenc e ca ses.” Id
. Fi n al l y , “ w h e n t h e t r i al co u rt ’s ch ar ge
a uth or ize s th e jur

y to c on vic t on mor e tha

n on e the or

y , a s it did in thi s c a se , the ve rd ic t of g uil ty wi ll be upheld if the evidenc e is sufficie nt on any one of the theories.” Id
.04

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- 8- I n h is discussion of the standard of revie w, Romero asse rts that “[i] n a cir cumstantial evidenc e ca se, the State is not require d to prove that the c ircumstance s prese nted exclude eve ry hy pothesis that the criminal ac t may have be en committed by another , it must exclude only ever y
rea sonably

hy pothes i s ra i s ed by

the evidenc e that would tend to exculpate the a ccuse d.” Romero
c ite s Bran dle

yv . S tat e , 691 S.W .2d 699 (Tex. Crim. App. 1985), in suppor t of this assertion. The Texas Court of Criminal Appeals, howeve r, re jected this alter n at i v e h y

pothesis test in 1991. See Ge esa v . S

tat e , 820 S.W .2d 154, 156 (Tex. Crim. App. 1 9 91), overruled on othe r grounds by Pa uls on v . S

tat e , 2 8 S. W.3 d 5 70 (T e x. Cr im. Ap p. 20 00 ); J e nn ing s v . S tat e , 1 0 7 S. W. 3 d 8 5 , 8 9 ( T e x. Ap p. —Sa n A nt on io 2 00 3, no pe t.) ; se e als o B au tis ta v . S tat e , N o . 1 3

- 0 1

- 3 2 7
- CR , 2 0 0 3 WL 2 2 0 1 9 4 1 9 , at * 4 (T ex . Ap p . — C o rp u s C h ri s t i Au g. 2 7 , 2 0 0 3 , n o p et
. ) ( ci t i n g Brandley as applying alternative hy

pothesis test) (not desig nated for publication). “While a lternative hy potheses may

be
a fac tor in c onducting a fac tual sufficie ncy revie w, [t he Texas Court of Criminal Appeals has] never held that the old outstanding rea sonable hy pothesis test must b e s at isfied for the evidenc e to be fac tually sufficie nt.” Go od

ma n v . S tat e , 66 S.W .3d 283, 298 n.16 (Tex. Crim. App. 2001) (Keller , P.J ., concur

ring ). “[I ]t is a jury , not a re viewing court, that a cce pts or reje cts rea sonably equal competing theories of

causation.” Goodman, 66 S.W .3d at 287.

D I S CUS S I ON Romero c h al l enges the leg al and f actua l sufficienc y

of the e vidence , asser

ting ther e is no
ev i d en ce o r i n s u ff

i ci en tev i d en ce t h a t h e wa s th e p er s o n wh o i n j u re d Ba b y T o n y . Al t h o u gh Romero offe rs var ious other possibilit ies, as previously noted, the State wa s not require d to exclude
ever y rea sonable hy

pothesis. Se e Ge esa , 820 S.W .2d at 156. The jury was fr ee to a cce pt or reje ct
rea sonably equal competing theories of who injured B aby Tony
. See G oodman , 66 S.W .3d at 287.04

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- 9- I n this case, e vidence was pre sented fr om which the jury could have deter

mined that Romero injur e d B a

b y T o n y . B a s e d o n th e me d ic a l te s ti mo n y r e g a r d in g th e ti mi n g o f th e in ju r ie s, the jury could have found that the only t wo p eople possibly responsible for

Ba by Tony ’s injuries wer e Romero and Gina. F urthermor e, the jury could have believed Romer o injured B aby Tony based on his st a te me n t to N a

b o r s th a t h e “ d id

n ’ t d o a n y

th in g w r o n g . ” T h e ju

r y a ls o w a s a

b le to observe Romero’s deme anor during his inter view and could take into c onsideration his r esponses, his body lang uag e, and his la ck of ey e contac t. The jury also could have taken into consider ation Romero’s eff orts to exonerate himself by sug g esting , over one hour i nto his interview, that he left B aby Tony in the car e of a

littl e boy from the East Terrac e Gang while he we nt to Roger ’s house to g et movies he had loa

ned him. Although Romer o introduced te stimony from Rog er Ro b l es , Robles’s g randmother , and DeL eon in an ef fort to support this theory , the jury could disbelieve the ir testimony based on: (1) conflict s i n t h e testi mony of those witnesses; (2) J oey ’s testimony that Romero was home at 7:30 on the nig ht Ba by Tony died; (3) Robles’s testimony that an Ea st Terra ce Gang member w ould not live in their neighborhood; and (4) Detective Nunez’s testimony that based on his investigation, he was satisfied that Romero had not lef t the house that eve ning. F inally , the jury
c ou ld t a ke int o c on sid e ratio n Jose ph ’s te sti mony re g a rd ingRom e ro “ ta

pp ing ” B a

by To ny on his
c he e k w he n h e c ri e d f

oll ow e d b y

Jose ph ’s state me nt that it make s h im m a d w he n p e op le hit ba bie s. I t was within the jury ’s province to assess J oseph’s c redibility in light of the te stimony

that he had subsequently

taken a swing at a ba

by in a re staurant. See Lancon , 253 S.W .3d at 704-05. Having revie wed the r ecor d as a w hole, we conclude that some evidenc e wa s prese nted from which the jury

could find that Romero injured B aby Tony , and such a

finding is not ag ainst the g reat weig ht and pre pondera

nce of the evidenc e. Finally , the evidenc e supporting a finding that Romero04

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- 10- inj ur e d B a

by To ny is n ot s o w e a k th a t th e jur y ’s ve rd ic t i s cle arl y

wr on g a nd

manif e stl y un jus t. Be cause the evidenc e w as s u fficient for the jury to convict Romero under the theory

that Romero intentionally

or knowing ly

injured B aby

Tony , we need not addre ss the s ufficie ncy of the e vidence to support the State’s other the ories. See G uevara, 152 S.W .3d at 49. C ONCL US I ON The trial c ourt’s judg ment is affirme d.

Kar en Ang elini, J ustice DO NO T PU B L I SH