Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00574-CR

Miguel GUTIERREZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2019CR9922

Honorable Ron Rangel, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Irene Rios, Justice

Beth Watkins, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: May 31, 2023

AFFIRMED

A jury convicted Miguel Gutierrez of felony murder in connection with the death of an

eleven-month-old baby, X.C.

1 In one issue, Gutierrez argues the evidence is legally insufficient 

because the State failed to prove beyond a reasonable doubt that he caused X.C.’s death. We affirm. 

BACKGROUND

Gutierrez was charged by indictment with felony murder. The indictment alleged that:

[O]n or about the 3rd day of November 2017, MIGUEL GUTIERREZ, hereinafter 

referred to as defendant, did then and there commit or attempt to commit the felony 

1

The minor children mentioned in this opinion will be referred to by their initials only. See TEX. R. APP. P. 9.10(a)(3).
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offense of injury to a child, and while in the course of or in furtherance of, the 

defendant did then and there commit or attempt to commit an act clearly dangerous 

to human life, to wit: striking, pressing, squeezing, [X.C.] a child, with the hand of 

the defendant, thereby causing the death of an individual, namely: [X.C.].

Gutierrez pleaded not guilty, and the case proceeded to trial before a jury.

The State’s Evidence

At trial, the State’s evidence showed that on November 3, 2017, at around 3:30 a.m., a 911 

dispatcher received a call about an eleven-month-old baby, X.C., who was not breathing and did 

not have a pulse. Paramedics were immediately dispatched to X.C.’s location, a residence in San 

Antonio, Texas. Upon arrival, the paramedics found X.C. on a bedroom floor, looking lifeless and 

very pale. X.C. was not breathing and had no pulse. The paramedics performed cardiopulmonary 

resuscitation (CPR) on X.C. while transporting him to the emergency room at San Antonio 

Children’s Hospital. 

At the hospital, a team of emergency room doctors and nurses treated X.C. for about a half 

hour, but they were unable to reverse his condition. X.C. was officially pronounced dead by an 

emergency room doctor. While treating X.C., the emergency room team noticed that X.C. had 

bruises and abrasions on his head, torso, and limbs, including bruises in protected areas like his 

testicles and ears. X.C. also had numerous bruises on his abdomen. 

The Bexar County Medical Examiner’s office performed an autopsy and prepared an 

autopsy report, which revealed that X.C. had numerous external and internal injuries.2 The external 

injuries included bruises on X.C.’s abdomen, some of which were “acute” or recent injuries. The 

internal injuries included three “[a]cute blunt force injuries” to the abdomen, specifically, (1) a 

laceration or tear of the mesentery of the bowel; (2) a contusion or bruising of the pancreas; and 

2

In addition to the injuries detailed below, X.C. had acute and healing blunt force injuries of the head, inner lips, trunk, 

and extremities, and healing rib fractures.
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(3) a contusion or bruising and an abrasion of the genital region with an extensive hemorrhage 

around the left testicle. The autopsy report noted that X.C. had “a large area of lacerated mesentery 

with exposed vessels and avulsed mesenteric fatty tissue” and that although his pancreas was not 

lacerated, it had a “hemorrhagic portion” “extend[ing] the full thickness of the organ.” The autopsy 

report concluded that X.C. had died from blunt force injuries to the abdomen and that the manner 

of death was homicide.

The police determined that Gutierrez was the adult in charge of X.C. at the time of his 

death. X.C.’s mother, Selena Moya, had gone to work at around 10:00 the previous night, leaving

X.C. and her three other children in Gutierrez’s care.

The police interviewed Gutierrez twice. Initially, Gutierrez told police that X.C. fell off the 

bed that night and he theorized that X.C. was injured by the fall. Later, Gutierrez told police that 

he would “play with” X.C. and “like squeeze his stomach and stuff,” but he claimed he “never beat

on” X.C. Gutierrez admitted he “squeezed” X.C.’s stomach on the night that X.C. died. Using a 

teddy bear, Gutierrez demonstrated how he “squeezed” X.C.’s stomach. During this 

demonstration, Gutierrez used both hands, forcefully pressing his body weight into the teddy bear 

multiple times. Gutierrez told the police that after he “was pushing down on [X.C.’s] stomach,”

X.C. was “good”—he was looking up at Gutierrez and drinking his bottle. However, “about fifteen, 

twenty, to twenty-five” minutes later, Gutierrez noticed that something was wrong with X.C.—he

did not want his bottle anymore and was not moving. Gutierrez told the police that when he realized 

that X.C. was not breathing, he performed CPR on him. Thereafter, Gutierrez directed his mother

call 911 and he went to Moya’s workplace to tell Moya what had happened to X.C.

Joe Palacios, Gutierrez’s friend, testified that he drove Gutierrez to Moya’s workplace. 

Gutierrez told Palacios he was going to be blamed for what happened to X.C. and he was scared. 

After telling Moya about X.C., Gutierrez did not want to return to his house. Palacios told Gutierrez 
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his absence did not “look right” and he encouraged Gutierrez to return to his house. Eventually, 

Gutierrez agreed to return to his house.

X.C.’s oldest sibling, A.C., was six years old when X.C. died. A.C. testified that before she 

and her siblings fell asleep that night, she saw Gutierrez slap X.C. At the time, her family was 

living with Gutierrez. A.C. could not remember exactly how long her family lived with Gutierrez, 

but she thought it was for months. A.C. did not like living with Gutierrez because her mother and 

Gutierrez mistreated her and her siblings. Gutierrez not only hit A.C., he also punched and slapped 

X.C. and “push[ed] him very hard on the ground” “a lot of times.”

Dr. Tracy McCallin, the supervising doctor who treated X.C. in the emergency room, 

testified that when X.C. arrived in the emergency room he was not breathing on his own, he did 

not have a heartbeat, and his pupils were fixed and dilated. She noted that when a patient comes 

into the emergency room in a cardiopulmonary arrest state like X.C., the emergency room team 

tries to figure out if there are any possible reversible causes for that arrest state. Dr. McCallin was 

concerned that she might not be able to save X.C. Nevertheless, she and the emergency room team

wanted to do everything they could to try to reverse X.C.’s condition before calling a time of death. 

The emergency room team performed CPR and administered various other treatments to X.C., but 

these efforts were unsuccessful. X.C. remained in cardiac arrest and never breathed on his own.

Dr. McCallin testified that the injuries she observed on X.C. were consistent with blunt 

force trauma and inconsistent with falling from a bed. Based on the nature of some of X.C.’s 

injuries, which were on protected parts of the body like the scrotum and the ears, the emergency 

room team suspected child abuse and they called for a forensic team. 

Christopher Fink, one of the paramedics, testified that he secured an airway for X.C. by 

intubating him while en route to the hospital. Fink confirmed that the endotracheal tube was 
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properly placed in X.C.’s trachea by auscultating breath sounds,3 observing condensation in the 

tube, and obtaining carbon dioxide measurements. 

On the topic of intubation, Dr. McCallin testified that she noticed the endotracheal tube 

placed by Fink was in X.C.’s esophagus, rather than his trachea. Another emergency room doctor 

re-intubated X.C. Dr. McCallin explained that endotracheal tubes are prone to dislodging in babies 

because they have very short airways. Typically, this dislodging happens when the baby is being 

wheeled from the ambulance into the emergency room or being moved from the gurney to the 

hospital bed. Dr. McCallin further testified the “uncuffed” type of endotracheal tube used to 

intubate X.C. in the ambulance was appropriate, even though a different type of endotracheal tube, 

a “cuffed” tube, was used in the emergency room. Dr. McCallin emphasized that X.C.’s condition 

when he was picked up by the paramedics and his condition when he arrived in the emergency 

room were exactly the same. Dr. McCallin opined that changes in X.C.’s intubation in the 

ambulance would not have changed the outcome for X.C.

In her testimony, Dr. Kimberly Molina, the chief medical examiner, provided important 

context for evaluating the autopsy findings. According to Dr. Molina, the mesentery is “a bunch 

of soft tissue” that is “kind of the scaffolding” that “holds the intestines into [the] body.” The 

pancreas is an organ located behind the mesentery. During an autopsy, a medical examiner may 

remove tissue samples from the injuries and examine them under a microscope. This can be helpful 

in deciphering the age of the injury. Dr. Molina explained that the body responds to injuries by 

sending specific types of cells to the injured area in a particular order—the “cleanup” cells appear 

first and the repair cells appear later. When a medical examiner looks at tissue samples under a 

microscope and does not find cleanup or repair cells, it signals that the healing response has not 

3

At the time, paramedics were providing X.C. medically assisted breathing with a bag valve mask.
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started and that the injury is acute or recent. The timing of this healing response varies depending 

on the location of the injury. Additionally, upon death, the body ceases to heal.

In this case, the autopsy report revealed that X.C.’s external injuries included eighteen 

bruises on his abdomen and his internal injuries included a lacerated mesentery and bruising of the 

pancreas. Microscopic examination of samples taken from X.C.’s injured mesentery revealed 

“really no evidence of significant healing.” Microscopic examination of samples taken from X.C.’s 

injured pancreas revealed “no evidence of healing.” Microscopic examination of samples taken 

from X.C.’s injured left testicle revealed “no evidence of healing.” Based on this evidence, Dr. 

Molina concluded that each of these internal injuries were recent.

Dr. Molina pointed out that the autopsy revealed a significant amount of blood in X.C.’s 

abdomen—approximately a quarter of his total blood volume. The bleeding from X.C.’s lacerated 

mesentery had “leaked” into X.C.’s abdomen. The blood found in X.C.’s abdomen at autopsy was 

“dark maroon and liquid,” further indicating the lacerated mesentery was a recent injury. Dr. 

Molina opined that the bleeding from X.C.’s lacerated mesentery likely caused X.C.’s death. In 

other words, X.C. bled to death. Dr. Molina noted that X.C.’s symptoms in both the ambulance 

and the emergency room—not breathing, no pulse, and a poor capillary refill time—were 

consistent with X.C.’s mesentery injury. Dr. Molina further concluded that the bruised pancreas

did not likely cause X.C.’s death; however, it was part of the blunt force trauma to X.C.’s abdomen. 

Dr. Molina testified that X.C.’s lacerated mesentery and his bruised pancreas were caused 

by some sort of trauma or external force. Dr. Molina explained that X.C.’s mesentery and his

pancreas were in effect “trapped” between the external force and the backbone, thereby resulting 

in injuries to these organs. She further noted that X.C. had three bruises on his lower back that 

“might correspond to this situation.” Dr. Molina opined that the external force could have come 

from any location on X.C.’s abdomen, but the direction of the force must have pointed toward the 
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mesentery and the pancreas. After viewing the videotape of Gutierrez demonstrating how he 

forcefully pressed down on X.C.’s abdomen, Dr. Molina testified that the force with which 

Gutierrez pressed on X.C.’s stomach would be endangering to human life and that the actions 

Gutierrez demonstrated were consistent with the injuries in the autopsy findings.

The Defense’s Evidence

The defense presented testimony from two witnesses. The first defense witness, Holly 

Willson, was a forensic interviewer for ChildSafe. Willson had interviewed X.C.’s five-year-old 

brother, I.M., shortly after X.C.’s death. During the interview, I.M. told Willson that his mother,

Moya, punished him by “hurt[ing]” his “wee-wee.”

The second defense witness, Monica Castillo, was Gutierrez’s second cousin and she lived 

behind Gutierrez’s house. Castillo testified that Moya was Gutierrez’s friend, and she would stay 

at his house with her children. Castillo saw Moya abuse her children by hitting them “in the back 

of the head” and “on their backs real hard” and by leaving them in her truck when it was hot. 

Castillo did not report the abuse, but claimed she was on the verge of reporting it when X.C. died.

Castillo further testified that she went over to Gutierrez’s house when X.C. stopped breathing and 

she was there during the 911 call. The 911 dispatcher told her how to perform CPR on X.C. and 

she did so until the paramedics arrived and took over. 

The Jury Charge, Closing Arguments, and the Verdict

The jury charge included an instruction on concurrent causation.4 See TEX. PENAL CODE

§ 6.04(a).5 Specifically, the jury was instructed:

4

We express no opinion about whether a concurrent causation instruction was proper in this case.

5

Section 6.04(a) of the Texas Penal Code states: “A person is criminally responsible if the result would not have 

occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause 

was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” TEX. PENAL CODE 

§ 6.04(a).
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[Y]ou cannot find the defendant [] Gutierrez guilty unless you believe beyond a 

reasonable doubt that the death of [X.C.] would not have occurred but for the 

conduct of [] Gutierrez, operating alone or concurrently with another cause. So that 

if you believe that the conduct of Emergency Medical Technician Christopher Fink 

and/or the conduct of Selena Moya was a concurrent cause sufficient to cause the 

death of [X.C]., and the conduct of [] Gutierrez was clearly insufficient, or if you 

have a reasonable doubt thereof, you will acquit [] Gutierrez and say by your verdict 

not guilty.

In closing arguments, the State argued that the evidence showed that Gutierrez pressed and 

squeezed on X.C.’s stomach—just as he demonstrated for the police—and that this blunt force 

trauma tore X.C.’s mesentery and caused X.C. to bleed to death. The State reminded the jury that 

but for Gutierrez’s actions, the paramedics never would have been called to Gutierrez’s house in 

the first place and they never would have been there trying to save X.C.’s life. The State reminded 

the jury that the medical examiner, Dr. Molina, did not conclude that an intubation tube caused 

X.C.’s death; to the contrary, she concluded that blunt force trauma to the abdomen caused X.C.’s 

death. The State further argued that the evidence showed that X.C. had died before the paramedics 

even arrived at Gutierrez’s house. Finally, the State argued that even if Moya had inflicted some 

of X.C.’s other injuries, Moya was at work when X.C. suffered from the blunt force trauma that 

caused him to bleed to death. 

The defense argued that X.C.’s injuries were not caused by Gutierrez, but by X.C.’s 

mother, Moya. The defense highlighted the autopsy report findings that X.C. had old and new 

injuries and argued that Moya, not Gutierrez, was “present at all times.” The defense emphasized 

that X.C.’s genitals were injured and that his older sibling, I.M., said his mother “hurts” his “wee 

wee.” The defense further urged the jury to consider the evidence indicating that the paramedics 

improperly intubated X.C., thereby depriving him of oxygen while he was being transported to the 

hospital. 
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The jury found Gutierrez guilty of felony murder. The trial court held a sentencing hearing 

and assessed punishment at life in prison. Gutierrez appealed.

APPLICABLE LAW

When reviewing the sufficiency of the evidence to support a conviction, we consider the 

evidence in the light most favorable to the verdict. Edward v. State, 635 S.W.3d 649, 655 (Tex. 

Crim. App. 2021). We must uphold the verdict if any rational trier of fact could have found all the 

essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319 (1979); Edward, 635 S.W.3d at 655. “We measure the sufficiency of the evidence against 

the hypothetically-correct jury charge, defined by the statutory elements as modified by the 

charging instrument.” Edward, 635 S.W.3d at 656.

In conducting a legal sufficiency review, we determine whether the necessary inferences 

are reasonable based upon the combined and cumulative force of all the evidence when viewed in 

the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 

2015). “This standard tasks the [jury] with resolving conflicts in the testimony, weighing the 

evidence, and drawing reasonable inferences from basic facts.” Id. “[W]hile jurors may not base 

their decision on speculation or unsupported inferences, they may draw reasonable inferences from 

the evidence.” Edward, 635 S.W.3d at 655. We presume that the jury resolved any inconsistencies 

in the evidence in favor of the verdict and we defer to the jury’s resolution of these matters. 

Murray, 457 S.W.3d at 448-449. “When the record supports conflicting inferences, we presume 

that the [jury] resolved the conflicts in favor of the verdict, and we defer to that determination.” 

Id. “The evidence is sufficient to support a conviction, and thus the jury’s verdict is not irrational, 

if the inferences necessary to establish guilt are reasonable based upon the cumulative force of all 

the evidence when considered in the light most favorable to the verdict.” Edward, 635 S.W.3d at 

655-56.
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“Felony murder is an unintentional murder committed in the course of committing a 

felony.” Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). In this case, the underlying 

felony offense was injury to a child. See TEX. PENAL CODE § 22.04. The Texas Penal Code provides 

that a person commits the offense of felony murder if he “commits or attempts to commit a felony, 

other than manslaughter, and in the course of and in furtherance of the commission or attempt . . . 

he commits or attempts to commit an act clearly dangerous to human life that causes the death of 

an individual.” TEX. PENAL CODE § 19.02(b)(3). The essential elements of felony murder are (1) 

the underlying felony; (2) an act clearly dangerous to human life; (3) the death of an individual;

(4) causation, that is, the dangerous act causes the death; and (5) a connection between the 

underlying felony and the dangerous act. Contreras v. State, 312 S.W.3d 566, 583–84 (Tex. Crim. 

App. 2010); see TEX. PENAL CODE § 19.02(b)(3). “The offense of ‘injury to a child’ can qualify as 

an underlying felony in a felony murder prosecution.” Contreras, 312 S.W.3d at 584.

ANALYSIS

On appeal, Gutierrez argues that the evidence is insufficient as to the causation element of 

the offense, arguing that the jury’s finding that he caused X.C.’s death rested on speculation and 

unsupported inferences. According to Gutierrez, the State proved that he was the “custodial adult” 

at the time of X.C.’s death, but it did not prove that he caused X.C.’s death. Gutierrez further 

argues that in reaching a guilty verdict the jury speculated that he, rather than X.C.’s mother, Moya, 

caused X.C.’s death.

The Texas Penal Code provides: “A person is criminally responsible if the result would not 

have occurred but for his conduct, operating either alone or concurrently with another cause, unless 

the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly 

insufficient.” TEX. PENAL CODE § 6.04(a). “The scope of causation under the Texas Penal Code is 

broad, allowing courts to find causation where ‘the result would not have occurred but for [the 
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actor’s] conduct, operating either alone or concurrently with another cause.’” Cyr v. State, No. PD0257-21, 2022 WL 17825857, at *5 (Tex. Crim. App. Dec. 21, 2022) (quoting TEX. PENAL CODE

§ 6.04(a)). “[A]n actor need not be the sole cause of the harm.” Id. “Causation is established where 

the conduct of the defendant is the ‘but for’ cause ‘operating alone or concurrently with another 

cause.’” Id. (quoting TEX. PENAL CODE § 6.04(a)).

In her testimony, Dr. Molina provided detailed testimony about the extent of X.C.’s internal 

injuries, focusing on his lacerated mesentery and bruised pancreas. Dr. Molina testified that the 

laceration of X.C.’s mesentery and the bruising of his pancreas were caused by some sort of 

external force to X.C.’s central abdomen. X.C.’s mesentery and his pancreas were “trapped” 

between the external force and X.C.’s backbone, resulting in injuries to the mesentery and 

pancreas. While the external force could have come from any location on X.C.’s abdomen, it was 

directed toward X.C.’s mesentery and the pancreas.

During a videotaped police interview, Gutierrez told the police that he had pressed and 

squeezed X.C.’s stomach and he demonstrated how he did it: Gutierrez used both hands to 

forcefully press his body weight into a teddy bear multiple times. After watching the videotape, 

Dr. Molina testified that Gutierrez’s actions were consistent with the findings in the autopsy report, 

that is, that X.C. died as the result of blunt force injuries to the abdomen. From this evidence, the 

jury could have reasonably inferred that Gutierrez’s actions caused X.C.’s lacerated mesentery.

As to timing, Dr. Molina testified that the injuries to X.C.’s mesentery, pancreas, and 

testicles were recent injuries because microscopic examinations of the tissue samples showed no 

sign of significant healing as to any of these injuries. Additionally, Gutierrez told the police that 

he noticed that something was wrong with X.C. fifteen to twenty-five minutes after he pressed

down and squeezed on X.C.’s stomach. Dr. Molina agreed that this fifteen to twenty-five minute 

interval between Gutierrez’s actions and X.C.’s reaction was consistent with the internal injuries
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described in the autopsy report. Finally, the evidence showed that Moya was at work and had no 

access to X.C. in the hours immediately preceding his death. Based on the evidence presented, the 

jury could have reasonably inferred that Gutierrez inflicted the blunt force injuries that caused 

X.C.’s death. See Edward, 635 S.W.3d at 655 (recognizing that while jurors are not permitted to 

base their decision on “mere speculation,” they are permitted to draw reasonable inferences from 

the evidence).

Next, Gutierrez argues that the jury was required to speculate on a number of fact issues to 

reach its guilty verdict, namely: (1) whether the blunt force trauma to X.C.’s mesentery was caused 

by an assault or by amateurs providing him CPR; (2) whether X.C. arrived at the hospital alert and 

responsive or non-responsive; and (3) whether an improper intubation deprived X.C. of oxygen 

while he was being transported to the emergency room.

6 However, the jury could have resolved 

these fact issues without engaging in any speculation. First, Dr. Molina testified that it was possible 

that some of the bruises on X.C.’s lower chest and upper abdomen may have been caused by 

someone performing CPR, albeit incorrectly; however, she also testified that the bruises on X.C.’s 

central and lower abdomen were inconsistent with performing CPR and were consistent with blunt 

force trauma. Second, the paramedics who treated X.C. in the ambulance, and Dr. McCallin, who 

treated X.C. in the emergency room, testified that X.C. was nonresponsive the entire time they 

treated him. Third, one of the paramedics, Fink, testified that he intubated X.C. while en route to 

the emergency room and he confirmed that the endotracheal tube was properly placed. 

Additionally, Dr. McCallin testified that endotracheal tubes are prone to dislodging in babies, that 

this dislodging typically happens when babies are transferred from the ambulance to the 

6

Gutierrez also argues that he was guilty of reckless bodily injury to a child instead of felony murder. However,

because the jury found Gutierrez guilty of the greater charged offense, it was not required to consider the four possible 

lesser included offenses contained in the jury charge. 
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emergency room, and that the type of endotracheal tube the paramedic used on X.C. was within 

the standard of care. While these fact issues may have been important to the defensive theories 

presented at trial, they are not relevant to a legal sufficiency review of the causation element of the 

offense. Here, our task is to determine if the evidence is legally sufficient to establish that Gutierrez 

caused X.C.’s death.

To the extent Gutierrez is arguing that he should have been exonerated based on a 

concurrent cause, we reject his argument. “[A] defendant may be exonerated under section 6.04 

‘only if the concurrent cause was clearly sufficient, operating alone, to produce the result and the 

accused’s conduct alone was clearly insufficient to do so.’” Hernandez v. State, 938 S.W.2d 503, 

513 (Tex. App.—Waco 1997, pet. ref’d) (quoting McFarland v. State, 928 S.W.2d 482, 516 (Tex. 

Crim. App. 1996)). “Causation is established where the conduct of the defendant is the ‘but for’ 

cause ‘operating alone or concurrently with another cause.’” Cyr, 2022 WL 17825857, at *5

(quoting TEX. PENAL CODE § 6.04(a)). Accordingly, there was no need to show that Gutierrez was 

the sole cause of harm to X.C. to satisfy the causation element of the offense. See id.

Here, the evidence and the reasonable inferences therefrom established that: (1) X.C. died 

from an internal injury—a lacerated mesentery, which caused him to bleed to death; (2) X.C.’s 

lacerated mesentery was caused by blunt force trauma to his abdomen; (3) Gutierrez inflicted the 

blunt force trauma by pressing or squeezing X.C.’s stomach. Considered together in a light most

favorable to the verdict, the evidence is legally sufficient for a rational jury to conclude beyond a 

reasonable doubt that Gutierrez caused X.C.’s death. We overrule Gutierrez’s issue.

CONCLUSION

The trial court’s judgment is affirmed.

Liza A. Rodriguez, Justice

DO NOT PUBLISH