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 Wi ll appeals from her jury conv iction of the offense of injury to a disabled individual by omission 1 and the resulting sentence of nineteen years of imprisonment. Through on e issue, appellant challe nges 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, appel lant’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, a ppellant 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 r ehabilitation center. In an interview with police, appellant told officers she was responsible for Terry’s care because she was his mo ther and was in the process of becoming his guardian to handle his Social Security benefits. She st ated 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 fam ily’s apartment for t he last six months. Appellant’s trial testimony was genera lly consistent with the statements she made to police. She also stated that afte r Terry fell, she brought him food, drink, and medications and cleaned him. She told the ju ry Terry had been on the floor for ten days but she assumed he was crawli ng to bed at night. She also testified she was too “overrun and overtired” to obtain medical a ssistance and Terry did not want her to call for help. She denied her init ial 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 caus ing serious bodily injury to her son by3 omission, the jury found appella nt guilty of the indicted c harge, and sentenced her to nineteen years of imprisonmen t. 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, appe llant’s argument is founded on the contention the trial court erred by denying her motion for directed ve rdict. 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 reas ons, 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 crim inal conviction under the standard set out in Jackson , we consider all the ev idence in a light most fa vorable to the verdict and determine whether a rational trier of fact coul d have found the essent ial 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 t he credibility of witnesse s and the weight to be given their testimony. Dewberry v. State , 4 S.W.3d 735, 740 (T ex.Crim.App. 1999).
In our review, we consider both dire ct 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). Circumst antial evidence alone is sufficient to4 establish the guilt of the accu sed, 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 su fficient to support the conviction. Id.
Appellant challenges the St ate’s evidence of two el ements of the offense, arguing the evidence was insufficient to es tablish beyond a reasonabl e doubt that she had assumed cared, custody or control 2 of Terry; and that it was insufficient to show Terry was a disabled individual. 3 She points out he was an a dult in July 2009 and she was not his legal guardian. S he also characterizes Terry as “self-sufficient,” capable of clothing, feeding and protecting himself, and making hi s own decisions concerning his care. We disagree with appellant’s cont entions, and find the evidence sufficient.
Application Under Penal Code § 22.04, a person as sumes 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 acc epted responsibility for protection, food, shelter, and medical care for the other person. Te x. Penal Code Ann. § 22.04(d) (West

2 See Tex. Penal Code Ann. § 22.04(a) (West 2011) (stati ng, in pertinent part, a “person commits an offense if he . . . intenti onally, knowingly, or recklessly by omission, causes to a . . . disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or inju ry; or (3) bodily injury).”

3 See Tex. Penal Code Ann. § 22.04(b) (West 2011) (s tating, 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 “d isabled individual” as “a pers on older than 14 years of age who by reason of age or physical or mental di sease, defect or injury is substantially unable to protect himself from harm or to pr ovide food, shelter, or medical care for himself.” Tex. Penal Code An n. § 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 psychol ogist 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, clothi ng, 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 himsel f. A case worker for Adult Protective Services testified Terry “absolutely could no t take care of himself” and she contacted Tarrant County Mental Health an d Mental Retardation Services. Evidence of appellant’s own statements suppor ts 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 Ju ly 2009. She also agreed she had been taking care of Terry his entire life. Moreover, although Terry did not testif y 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, de fect or injury from his apparent inability to6 get up from the floor where he lay for many days. Appel lant 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 ca ll at the end of July 2009, they noted the stench coming from the apartment was “about t he 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 seep ing through his skin. Take n to the hospital, he was diagnosed with cellu litis and sepsis. He had a blood cl ot 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 t hey found mice and rat feces between Terry’s toes. Terry was anemic and otherwise nutri tionally 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 sch ool. 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 th ird grader and deferred to appellant every time doctors asked him a question. Consen t for hospital procedures was obtained from appellant.7 Appellant testified that before he fell Terry made t he 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 demonstra te 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 suffer ed permanent brain injury from a vehicle accident. Id. at 402. The injury caused severe thought process dela ys rendering the victim unable to live alone, defe nd himself physically or prov ide 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 vict im 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 test imony suggesting Terry’s self-sufficiency came from appellant. The jury was not requir ed to accept her characterization of his capabilities. Applying the appl icable 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 t he jury to find beyond reasonable doubt that appellant had assumed care, custody or contro l of Terry. Her acts, words and course of conduct would cause a reas onable person to conclude that she had assumed responsibility for his protection, food, shelte r, 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 apar tment. Appellant told officers she was Terry’s guardian and she was trying to obtain le gal 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 Ju ly 2009. She also agreed she had been taking care of Terry his entire life. At trial, appellant said she had remo ved 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 wa s 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 appe llant assisted Terry with “all the answers.” The paramedic agreed it appear ed appellant had taken charge of Terry’s medical treatment.9 As noted, a treating physician testified appellant gave c onsent for Terry’s medical treatment and Terry deferred to appellant when asked questions. We conclude from the evidence pr esented the jury reasonably could have concluded appellant assumed re sponsibility for protection, food, shelter, and medical care for Terry. Viewing the evidence in the li ght 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 insu fficient she caused Terry serious bodily injury by omission. We will address the issue briefly. In her testimony, the physician who treat ed 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 th e thinner so a vascular surgeon installed a filter in the vein to keep t he clot from becoming dislodged and traveling to a vital organ. The treating physician testif ied 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) (W est 2010) (person is criminally responsible “if the result10 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 (T ex.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 provi de reasonable medical care or assistance.” The State’s burden therefore wa s 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 developin g 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 substant ial risk of death or that causes death, serious pe rmanent disfigurement, or protra cted 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 f unction of his skin. As noted, at the hospital, Terry was dia gnosed 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 A nn. § 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 wa s in the poorest condition I have ever seen.” She testifi ed 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 indicati ng “inflammatory conditions.” Photographs were introduced at trial showin g 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 seepin g 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 in to sepsis.” The physician also described the treatment pr ovided for the infection, and identified photographs showing areas of Terry ’s body that were healing.
Terry had been hospitalized with cellulitis be fore, in 2006. Appellant was made familiar with the condition from his hospitalizat ion 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,” potent ially 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 Te rry 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 chall enges to the sufficiency of the evidence supporting her conviction, we affi rm the trial c ourt’s judgment.

James T. Campbell Justice

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