NO. 07-10-00293-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL D 

NOVEMBER 22, 2011 

ELIZABETH RUTH WILL, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

FROM THE CRIMINAL DISTRICT COURT 2 OF TARRANT COUNTY; 

NO. 1199012R; HONORABLE WAYNE F. SALVANT, JUDGE 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

MEMORANDUM OPINION 

 Appellant Elizabeth Ruth Will appeals from her jury conviction of the offense of 

injury to a disabled individual by omission1 and the resulting sentence of nineteen years 

of imprisonment. Through one issue, appellant challenges the sufficiency of the 

evidence supporting her conviction. We will affirm. 

 1

 Tex. Penal Code Ann. § 22.04 (West 2011). This is a first degree felony 

punishable by imprisonment for life or for any term of not more than 99 years or less 

than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (West 

2011).
2 

Background 

 Evidence showed that in July 2009, appellant’s nineteen-year-old son Terry 

collapsed on the floor of his family’s apartment. Terry weighed between four and five 

hundred pounds. On July 31, appellant called 9-1-1, reporting that Terry had been on 

the floor for thirty days. She later told paramedics he had been on the floor for two 

weeks. Terry was found in layers of maggot-infested feces and his body was in poor 

condition. He was hospitalized for two weeks, then transferred to a rehabilitation center. 

 In an interview with police, appellant told officers she was responsible for Terry’s 

care because she was his mother and was in the process of becoming his guardian to 

handle his Social Security benefits. She stated Terry was not capable of caring for 

himself and had not been able to do so for the last six months. Terry did not work. 

Appellant also agreed Terry had not left the family’s apartment for the last six months. 

 Appellant’s trial testimony was generally consistent with the statements she 

made to police. She also stated that after Terry fell, she brought him food, drink, and 

medications and cleaned him. She told the jury Terry had been on the floor for ten days 

but she assumed he was crawling to bed at night. She also testified she was too 

“overrun and overtired” to obtain medical assistance and Terry did not want her to call 

for help. She denied her initial 9-1-1 report that Terry had been on the floor for thirty 

days and suggested the 9-1-1 tape had been altered. 

 Given the choices of finding appellant not guilty, guilty of the indicted offense or 

guilty of a lesser offense of recklessly causing serious bodily injury to her son by 
3 

omission, the jury found appellant guilty of the indicted charge, and sentenced her to 

nineteen years of imprisonment. This appeal followed. 

Analysis 

Standard of Review 

Appellant couches part of her argument on appeal as a contention evidence was 

factually insufficient. Under Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), 

appellate courts review the sufficiency of the evidence to support a conviction only 

under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979). Too, appellant’s argument is founded on the contention the trial 

court erred by denying her motion for directed verdict. That contention is a challenge to 

the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 

(Tex.Crim.App. 2003). For both those reasons, we will review appellant’s sufficiency 

claim under the standard set forth in Jackson, 443 U.S. at 319. In assessing the 

sufficiency of the evidence to support a criminal conviction under the standard set out in 

Jackson, we consider all the evidence in a light most favorable to the verdict and 

determine whether a rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Id. When conducting such a review, we must 

recognize the jury's role as the judge of the credibility of witnesses and the weight to be 

given their testimony. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). 

In our review, we consider both direct and circumstantial evidence and all 

reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 

S.W.3d 9, 13 (Tex.Crim.App. 2007). Circumstantial evidence alone is sufficient to 
4 

establish the guilt of the accused, and the standard of review as to the sufficiency of the 

evidence is the same for both direct and circumstantial evidence cases. Id. Each fact 

need not point directly and independently to the guilt of the accused, so long as the 

cumulative force of all the evidence, when coupled with reasonable inferences to be 

drawn from that evidence, is sufficient to support the conviction. Id.

Appellant challenges the State’s evidence of two elements of the offense, 

arguing the evidence was insufficient to establish beyond a reasonable doubt that she 

had assumed cared, custody or control2

 of Terry; and that it was insufficient to show 

Terry was a disabled individual.3

 She points out he was an adult in July 2009 and she 

was not his legal guardian. She also characterizes Terry as “self-sufficient,” capable of 

clothing, feeding and protecting himself, and making his own decisions concerning his 

care. We disagree with appellant’s contentions, and find the evidence sufficient. 

Application 

 Under Penal Code § 22.04, a person assumes care, custody or control of 

another when by act, words, or course of conduct, the person acts so as to cause a 

reasonable person to conclude that she has accepted responsibility for protection, food, 

shelter, and medical care for the other person. Tex. Penal Code Ann. § 22.04(d) (West 

 2

 See Tex. Penal Code Ann. § 22.04(a) (West 2011) (stating, in pertinent part, a 

“person commits an offense if he . . . intentionally, knowingly, or recklessly by omission, 

causes to a . . . disabled individual: (1) serious bodily injury; (2) serious mental 

deficiency, impairment, or injury; or (3) bodily injury).” 

3

 See Tex. Penal Code Ann. § 22.04(b) (West 2011) (stating, in pertinent part, 

that an omission causing serious bodily injury to a disabled individual is conduct 

constituting an offense under § 22.04 if: (1) the actor has a legal or statutory duty to act; 

or (2) the actor has assumed care, custody, or control of a disabled individual). 
5 

2011). The statute defines “disabled individual” as “a person older than 14 years of age 

who by reason of age or physical or mental disease, defect or injury is substantially 

unable to protect himself from harm or to provide food, shelter, or medical care for 

himself.” Tex. Penal Code Ann. § 22.04(c)(3) (West 2011). 

 The jury heard evidence from which it rationally could have concluded, beyond a 

reasonable doubt, that Terry was a disabled individual. There was evidence Terry 

suffered from a mental defect. A psychologist testified she evaluated Terry and 

concluded he was mentally retarded with an IQ of fifty-seven. He had significant 

deficits, present before the age of 18, making it unlikely he would be able to attain 

employment and take care of his basic needs such as food, clothing, shelter and health 

care. A guardian was appointed for Terry after he was released from the hospital. His 

aunt agreed Terry did not appear to have the mentality of a normal nineteen-year-old 

and did not appear to be able to care for himself. A case worker for Adult Protective 

Services testified Terry “absolutely could not take care of himself” and she contacted 

Tarrant County Mental Health and Mental Retardation Services. 

Evidence of appellant’s own statements supports the jury’s finding. She told a 

police officer she was responsible for Terry and he had not been capable of taking care 

of himself in the six months prior to July 2009. She also agreed she had been taking 

care of Terry his entire life. 

 Moreover, although Terry did not testify at trial and no witness attempted to 

explain why he did not or could not get up, the jury manifestly could have viewed Terry 

as disabled by reason of physical disease, defect or injury from his apparent inability to 
6 

get up from the floor where he lay for many days. Appellant seems to suggest that 

Terry made a conscious decision to remain on the floor. She argues, “Simply because 

someone is obese does not make them disabled. Testimony showed that prior to the 

fall Terry walked and moved around by himself without any assistance.” That Terry was 

able to move about before he collapsed does not show he remained able to do so 

afterward. 

When paramedics responded to appellant’s call at the end of July 2009, they 

noted the stench coming from the apartment was “about the same as a dead body a 

couple of days old.” Terry, weighing over 400 pounds, was lying in “layers of feces” that 

were infested with maggots and flies, surrounded by garbage and general filth. Blood 

was pooled in his body from the pull of gravity. Terry had skin tears and bruising with 

blood and other fluids seeping through his skin. Taken to the hospital, he was 

diagnosed with cellulitis and sepsis. He had a blood clot in one leg. A treating doctor 

testified Terry had what appeared to be rodent bite marks on his toes and emergency 

room staff reported to her they found mice and rat feces between Terry’s toes. Terry 

was anemic and otherwise nutritionally deficient. 

 The responding paramedic testified Terry was unable to provide his social 

security number or his phone number, or to say when he had last been seen by a 

doctor, or if he remembered going to school. Terry did not understand where the 

paramedics were taking him even though it was explained to him. The treating doctor 

testified Terry behaved like a second or third grader and deferred to appellant every 

time doctors asked him a question. Consent for hospital procedures was obtained from 

appellant. 
7 

 Appellant testified that before he fell Terry made the decision to postpone seeing 

a doctor about issues with his leg. She said he continued to refuse medical care even 

after he fell. She argues also on appeal his enthusiasm for video games and his 

reading of video game magazines demonstrate his capacity for rational decisionmaking. 

 Appellant contrasts the evidence of Terry’s condition with that of the victim in 

Benton v. State, 237 S.W.3d 400 (Tex.App.—Waco 2007, pet. ref’d), and concludes the 

evidence is insufficient to show Terry is disabled. In Benton, the victim lived in a group 

home for disabled individuals because he suffered permanent brain injury from a vehicle 

accident. Id. at 402. The injury caused severe thought process delays rendering the 

victim unable to live alone, defend himself physically or provide food, care, and shelter 

for himself. Id. Testimony indicated the victim’s IQ was 60. Id. The court concluded the 

evidence was sufficient to show the victim was disabled as defined by section 

22.04(c)(3). Id.; citing Tex. Penal Code Ann. § 22.04(c)(3) (West 2011). We do not 

disagree with appellant that the disability shown in Benton was of a different quality than 

that shown here. We do disagree, however, that the evidence presented showed only 

that Terry was a self-sufficient person who was not disabled. 

Further, we note that much of the testimony suggesting Terry’s self-sufficiency 

came from appellant. The jury was not required to accept her characterization of his 

capabilities. Applying the applicable standard of review, we find the evidence sufficient 

to show Terry was disabled under the statutory definition. Jackson, 444 U.S. at 319; 

Hooper, 214 S.W.3d at 13. 
8 

 We also find the evidence permitted the jury to find beyond reasonable doubt that 

appellant had assumed care, custody or control of Terry. Her acts, words and course of 

conduct would cause a reasonable person to conclude that she had assumed 

responsibility for his protection, food, shelter, and medical care. Tex. Penal Code Ann. 

§ 22.04(b)(2), (d) (West 2011). 

 Terry continued to live with appellant after he became an adult. Appellant’s 

husband and Terry’s brother also lived in the apartment. Appellant told officers she was 

Terry’s guardian and she was trying to obtain legal documentation to that effect. She 

also stated she was responsible for him and Terry had not been capable of taking care 

of himself in the six months prior to July 2009. She also agreed she had been taking 

care of Terry his entire life. 

 At trial, appellant said she had removed Terry from public school after he 

completed fifth grade and homeschooled him until he was thirteen. She testified he had 

not left the family’s apartment in the six months leading up to his fall. She told the jury 

Terry was not able to work or obtain medical care. She also stated that after Terry fell 

on the floor, she “was medicating him. I was helping him. I was nursing him. And I was 

making sure that his needs were taken care of.” She also stated she was cleaning 

Terry and cleaning his skin wounds and infections. She “brought him food . . . and drink 

. . . and his medications.” 

 The paramedic testified appellant assisted Terry with “all the answers.” The 

paramedic agreed it appeared appellant had taken charge of Terry’s medical treatment. 
9 

As noted, a treating physician testified appellant gave consent for Terry’s medical 

treatment and Terry deferred to appellant when asked questions. 

 We conclude from the evidence presented the jury reasonably could have 

concluded appellant assumed responsibility for protection, food, shelter, and medical 

care for Terry. Viewing the evidence in the light most favorable to the jury’s verdict, we 

find it sufficient and overrule appellant’s sole issue. Jackson, 443 U.S. at 319; Hooper,

214 S.W.3d at 13. 

 Although she did not raise the issue in her appellate brief, at oral argument 

appellant asserted that the evidence was insufficient she caused Terry serious bodily 

injury by omission. We will address the issue briefly. 

In her testimony, the physician who treated Terry while he was hospitalized 

described more than one condition that might constitute serious bodily injury. Hospital 

tests revealed Terry had a blot clot in his leg, leading physicians to give him a blood 

thinner. But his body would not tolerate the thinner so a vascular surgeon installed a 

filter in the vein to keep the clot from becoming dislodged and traveling to a vital organ. 

The treating physician testified about the seriousness of blood clots and their potential 

to cause death. She told the jury that morbid obesity predisposes patients to the 

formation of clots, and that sedentariness also is a factor. She said, “But in . . . Terry’s 

situation[s], the fact that he was left there for two weeks, supposedly, and also . . . in 

combination[s] with the morbid obesity, . . . that does put him at risk for the blood clot.” 

The Penal Code defines causation in terms of a “but for” causal connection. Tex. 

Penal Code Ann. § 6.04(a) (West 2010) (person is criminally responsible “if the result 
10 

would not have occurred but for his conduct”); Robbins v. State, 717 S.W.3d 348, 351 

(Tex.Crim.App. 1986); Grotti v. State, 209 S.W.3d 747, 758 (Tex.App.—Fort Worth 

2006), aff’d 273 S.W.3d 273 (Tex.Crim.App. 2008). The indictment and charge 

described appellant’s omission as a failure “to obtain or provide reasonable medical 

care or assistance.” The State’s burden therefore was to show beyond a reasonable 

doubt that Terry would not have suffered serious bodily injury but for appellant’s failure 

to give or get help for her son. 

We need not decide whether the physician’s testimony that Terry’s remaining on 

the floor, together with his obesity, “put him at risk” of developing a clot meets the 

causation requirement for appellant’s conviction,4

 because we find sufficient evidence 

that another of his conditions constituted serious bodily injury and would not have 

occurred but for appellant’s omission. 

"Serious bodily injury" is "bodily injury that creates a substantial risk of death or 

that causes death, serious permanent disfigurement, or protracted loss or impairment of 

the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(46) (West 

2011). Here, the evidence supports a conclusion Terry sustained a protracted 

impairment of the function of his skin. 

As noted, at the hospital, Terry was diagnosed with cellulitis, which the physician 

defined as an infection of “your skin and soft tissue.” Based on the indications of 

 4

 See Tex. Penal Code Ann. § 6.04(a) (West 2010) (concerning concurrent 

causes). 
11 

infection, and the presence of other factors, physicians added a diagnosis of sepsis.5 

Referring to the condition of Terry’s skin, she said “he was in the poorest condition I 

have ever seen.” She testified the cellulitis affected 70 to 80% of his body. She also 

said his “skin breakdown was severe from top to bottom.” Asked to define “skin 

breakdown,” she said it involves a “skin tear,” and added, “Excoriations . . . actually you 

can see the skin sloughing off. And sometimes you can see . . . the tissue underneath 

exposed.” She said Terry’s skin was mottled, also indicating “inflammatory conditions.” 

Photographs were introduced at trial showing the condition of Terry’s skin. The 

paramedic also testified Terry’s skin was in poor condition with “lots of skin tears.” He 

observed lividity and blood seeping out of several wounds. 

The physician attributed Terry’s infection to the entry of bacteria into his body. 

Referring to Terry’s skin, she further noted that “once you lose integrity of your . . . 

natural barrier . . . you are prone to any kind of bacteria going through there and 

causing infection.”6 Referring to the effect of the delay in medical attention, she said “if 

the infection[s] was recognized early, he wouldn’t have gone into sepsis.” The 

physician also described the treatment provided for the infection, and identified 

photographs showing areas of Terry’s body that were healing. 

Terry had been hospitalized with cellulitis before, in 2006. Appellant was made 

familiar with the condition from his hospitalization on that occasion. From the evidence, 

 5 The physician described sepsis as referring to a “disregulation in the body,” 

placing the patient in a “sicker state,” potentially leading to systemic response or organ 

damage. 

6

 The paramedic’s testimony is pertinent here also. He said, “Urine and fecal 

matter is full of bacteria and he was laying [sic] in it with open wounds.” 
12 

the jury rationally could have determined that but for her failure to obtain or provide 

reasonable medical care or assistance for Terry on this occasion, he would not have 

suffered the serious deterioration and impairment of his skin’s function. The evidence 

she caused him serious bodily injury is sufficient. 

 Having overruled appellant’s challenges to the sufficiency of the evidence 

supporting her conviction, we affirm the trial court’s judgment. 

 James T. Campbell 

 Justice 

Do not publish.