Opinion filed February 27, 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 12

- 00 052

- CR

__________ IAN DANIEL MATHISON , Appellants
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 29 th District Court Palo Pinto County, Texas Trial Court Cause No. 14636

M E M O R A N D U M O P I N I O N The jury convicted Ian Daniel Mathison of the offense of intentionally or knowingly causing serious bodily injury to a child, G.H. (Count One), and of the offense of intentionally or knowingly causing bodily injury to a child, C.H. (Count Two). The jury assesse d punishment at confinement for twen ty

- two and one

- half

years for C ount O ne and ten years for C ount T wo, and it assessed a fine of $10,000
in each count. The trial court sentenced him accordingly and ordered the sentences2 to run concurrently

. In his sole point of error on appeal , Appellant ch allenges the sufficiency of the evidence to support his conviction on Count One . We affirm. Background Gene Dunlap and her two sons, C.H. and G.H., lived with Appellant in
Mineral Wells. C.H. was four years old, and G.H. was three years old

. Dunlap left the boys at home with Appellant while she worked nights

. When she returned home from work one morning, G.H. was lying on her bed, had a busted lip, and could not move his arm. Dunlap took G.H. to Weatherford Regional Medical
Center while App ellant stayed with C.H

. The attending physician in the emergency room , Gerald Phillip Douglas,
described G.H. as “bruised and battered all over” and said that he had not “seen anybody hurt this bad in a long time.” His “initial impression was that somebody
had used this child’s face and head as a pun ch ing bag.” Due to the nature of the injuries, a nurse reported abuse to the Mi neral Wells Police Department. G.H. had a fractured humerus, s o Dr. Douglas ordered a splint to stabilize the arm and
transferred G.H. to Cook Ch ildren’s Medical Center in Fort Worth

. When the attending physician, Daniel David Guzman, saw the significance
of G.H.’s injuries, he call ed a “trauma alert.” During su ch an alert, an anesthesiologist, a trauma surgeon, a radiologist, and laboratory services personnel respond immediately. G.H. had a broken jaw, a spiral fracture in his left upper arm, three broken fingers
, and bruises from head to toe. G.H. ’s eyes were sw ollen
shut
, and he had lacerations and bruising on his face and on the side of his head.
Dr. Guzman was concerned about the bruises in G.H. ’s lower pelvi c area and
abdomen because blunt force trauma there could have injured his spleen, liver,

pancreas, or bowel and could cause him to “bleed out.” After running tests, however, Dr. Guzman determined that there were no internal injuries in the abdominal cavity. The CT scan showed a nasal bone fracture, but G.H. did not3 have intracranial bleeding or other head injuries. Doctors also determined that , due to a lack of swelling, the broken jaw was an old injury. Dunlap told the doctors what Appellant had told her. According to Appel

lant, G.H. got out of bed to use the restroo m, and when he saw a spider, he “freaked out.” Appellant claimed that G.H. tripped over his blanket and landed
with his arm “ pinned up behind him. ” Dunlap initially blamed the various injuries on a fall that occurred while wrestling with C.H

. Once they were at Cook
Ch ildren’s, however, Dunlap told the doctors that C.H. caused the bruises to one of G.H.’s eyes when C.H. stomped on G.H. ’s face
, and she also told doctors that G.H. hurt his chin and his lip when he fell on the sidewalk a few days before

. Detective Darby Thomas spoke with the treating physician in Weatherford,
who told him that Dunlap’s story appeared to be inconsistent with G.H

. ’s injuries
because it was not plausible that the injuries were caused by a four

- year

- old.
Detective Thomas went to Cook Ch ildren’s to continue his investigation. The treating physician there, D r. Guzman, believed that it was “non

- accidental trauma,”
so he consulted with Dr

. Jayme Coffman, who is a ch ild abuse pediatrician and the
medical director of the ch ild abuse program at Cook Children’s

. Dr. Coffman
believed that G.H. ’s injuries were the result of abuse because “ [ t ] he information the mom gave was not consistent at all with the injuries” she observed.
Dr. Coffman described “horrible, horrible bruising and swelling to [G.H.’s] face” and a “horribly torn” frenulum, whi ch is a piece of skin that connects the lip to the

gums. Dr. Coffman said that
, when she lifted G.H. ’s lip, it looked like “hamburger
meat” because there were “a lot of abrasions o r lacerations inside his lip.”
Dr. Coffman explained that su ch injuries were the result of a blunt impact to the
mouth and that the injuries were fresh because ther e was no evidence of healing. Cook Children’s personnel reported G.H.’s injuries to Child Pr otective
Services. When A ppellant heard that CPS was coming to his house to investigate,4 he called and asked his friend Darryl Flint, who had been over playing video games the previous ni gh t, to come over and help clean the house. When he saw C.H., Flint noticed that he had two black eyes

. Appellant said that C.H. ran into a
doorknob

. When Elizabeth Clement, the CPS investigator arrived and saw C.H. ’s injuries, she obtained approval from her supervisor to take C.H. from the home and
take him to Coo k Ch ildren’s. Clement testified that she had been an investigator
with CPS for four years and that she had never done that before. CPS officials
decided to beg i n removal proceedings. G.H. was hospitalized for three days, and both boys were placed with t emporary foster parents and eventually were placed
with Dunlap’s brother and his wife. Officers asked Appellant to come to the po lice station for questioning

. Appellant’s version of events contradicted the stories that police had already heard. As a result of that interview, Appellant was placed under arrest and searched prior to being booked into jail

. The officer who searched Appellant noticed blood on Appel lant’s sock and seized the sock for testing. Officers executed a sear ch

warrant and took several items from the home, including a swab from a stain on
G.H.’s mattress, a board that officers found in the trash, and a swab from blood that they found on the hallway floor. Lab results confirmed that the DNA profiles

on ea ch of these items, including Appellant’s sock, mat ch ed G.H. ’s DNA profile

. Once G.H. was dis ch arged from the hospital, both boys were interviewed by Joy Hallum, a ch ild forensic interviewer. Hallum endeavors to conduct neutral,

non

- biased
, and non

- leading interview s of ch ildren who may have suffered abuse. One of the ways that Hallum determines whether the ch ild is telling a story from
his own recollection or someone else’s recollection is whether the ch ild can describe sensory details su ch as what the child saw or heard
, who was present, or
how the child felt. C.H. told Hallum that Appellant spanked him with a board and

a belt and that Ap p ellant ch oked him with his hands and with a belt. C.H.5 demonstrated how Appellant ch oked him

. C.H. also said that he was “stomped
on.” C.H. said that G.H. hurt his arm while playing outside and that he had heard
G.H. cry when Appellant pun ch ed G.H. in the face. G.H. was more timid , but Hallum said this was common for younger ch ildren. G.H. originally told Hallum that he hurt his arm while playing outside, but he eventually admitted that it happen ed when Appellant spanked him. Dunlap was arrested and ch arged with inj uring a ch ild by omission for leaving the children with Appellant and knowing they were in danger of being injured, to whi ch she ple ade d guilty. Appellant was arrested and ch arged with two
counts of causing serious bodily injury to a ch ild. At Appellant’s trial, the doctors could not testify that C.H. ’s injuries constituted serious bodily injury, and the jury was asked to determine whether Appellant committed the lesser included offense of causing bodily injury to C.H

. Issue Appellant ch allenges the sufficiency of the evidence on two grounds. First,
he contends that the evidence is insufficient to show that “Appellant was the person who broke the arm of G.H.” Next , Appellant argues that the evidence is
insufficient to show that G.H. suf fered serious bodily injury from the spiral
fracture in his arm. Although Appellant states that the evidence is insufficient to
show that “ any of the injuries alleged as to either ch ild amounted to serious bodily injury,” we note that Appellant was convic ted of causing only bodily injury to C.H. and that Appellant does not ch allenge the sufficiency of the evidence to supp ort that conviction.
W hen review ing the sufficiency of the evidence, we consider the evidence in
the li gh t most favorable to the verdict and determine whether any rational trier of
fact could have found the essential element s of the offense beyond a reasonable
doubt. Jackson v. Virginia , 443 U.S. 307, 31 9 (1979) ; Brooks v. State , 323 S.W.3d6 893, 9 1 2 (Tex. Crim. App. 2010). The jur y is the sole judge of the credibility of the witnesses and is free to accept or reject any or all of a witness’s testimony.
Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). We defer to the factfinder to resolve conflicting evidence, to weigh the evidence, and to draw
reasonable inferences. See Jackson , 443 U.S. at 31 9

. Identity Appellant first contends that “none of the witnesses could testify that Appellant caused the injury to G.H.’s arm” and that “no witness could testify as to
how G.H. received the injury

. ” A person commits the offense of injury to a ch ild, as it is relevant to this appeal , if he intentionally or knowingly causes serious bodily injury to a child

. See
T EX

. P ENAL C ODE A NN

. § 22.04(a)( 1) (West Supp. 2013 ). The State must prove beyond a reasonable doubt that the accused is the person who committed the
ch arged offense. Johnson v. State , 673 S.W.2d 190, 196 (Tex. Crim. App. 1984). Identity may be p roven “by either direct or circumstantial evidence , coupled with
all rea sonable inferences from that evidence

. ” Gardner v. State , 306 S.W.3 d 274 , 285 (Tex. Crim. App. 2009 ). Dunlap testified that G.H.’s injuries were not there when she left for work
the ni gh t before

. Dunlap admitted that she knew Appellant was be ing “excessively

rou gh ” with the boys and that they were in danger of being injured by Appellant.
Flint had witnessed Appellant shove and slap the boys as punishment and was at Appellant’s house the ni gh t before G.H. was taken to the emergency room

. Flint
testified that when he saw C.H. the following day with two black eyes, marks, and
bruises , he remembered wonder ing why Appellant was “doing this to these kids.”
Flint also told the jury that he had observed Appellant inflict “inappropriate” punishment on G.H. and C.H. by spanking them with a little 2x4 miniature
baseball bat and that he thought Appellant had caus ed the boys’ injuries.7 In addition to showing that Appellant was the only adult in the home when
G.H.’s arm was broken and that Appellant had inappropriately punished the boys in the past , the record reveals that the witnesses believed that Appellant’s explanation of what happened was unlikely. Appellant said that G.H. slipped on a
blanket and fell. Dr. Guzman diagnosed the injury as “non

- acci dental trauma.” Likewise, Dr. Coffman testified that the injury was not consistent with an accident.
She told the jury that G.H. “was covered in marks and bruises” and that “every part of his body had some sort of abrasion or bruise on it.” Dr. Coffman said
, “ T hat doesn’t happen from ch ildren playing rou gh . It doesn’t happen from ch ildren
fi gh ting that are that young. It doesn’t happen from falls. It doesn’t h appen from any of those things to have those numerous types of injuries.” After seeing G.H.’ s injuries, Detective Thomas said that his suspicion level was very high that a crime had been committed because the injuries did not “match up” with Appellant’s story. After Dunlap learned that a spiral fracture is caused by twisting and

app lying torque to the arm, Appellant’s explanation did not make sense to Dunlap,
and she believed that Appellant “did it.” The jury can consider whether an explanation is plausible when determining whether the defendant caused the child’s injuries. Tezino v. State , 765 S.W.2d 482,
485 (Tex. App.

— Houston [1st Dist.] 1988
, pet. ref’d) ( considering the implausibility that a four

- month

- old baby sat upri gh t and fell into the dashboard , as urged by the defendant
, when determining who caused the injuries). Considering

t he evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have determined that Appellant caused the spiral fracture to
G.H.’s arm. See Brooks , 323 S.W.3d at 9 1 2. Serious Bodily Injury Appellant also complains that the evidence is insufficient to prove the element of serious bodily injury because G.H.’s broken arm “was the only injury8 that the evidence showed might have possibly have been a serious bodily injury and the testimony of the physicians was inconsistent on that issue.” Appellant argues that Dr. Guzman “would not say that G.H.’s injuries represented a substantial risk of death” whereas “Dr. Coffman testified that the only injury that
she believe [ d ] qualified as serious bodily i njury [was] G.H.’s fractured arm.” The fact that the doctors’ testimony may have conflicted does not render the evidence
insufficient. I t is not our role to resolve conflicts in the evidence, and we defer to the factfinder by considering the evidence in the light most favorable to the verdict.
See Jackson , 443 U.S. at 319. The indictment alleged that Appellant caused serious bodily injury to G.H. in one of six ways, including “by twisting the arm of the said G.H. so as to cause a
fracture.” To show serious bodily injury in this case, the State had to prove beyond a reasonable doubt that G.H. suffered a protracted loss of the function of his arm or a protracted impairment of the function of his arm. See T EX

. P ENAL C ODE A NN

. § 1.07(a)(46) ( We st Supp. 2013)

. Neither protracted loss nor protracted impairment has been defined by the legislature, so we must apply its common meaning. One dictionary defines “ protract ” as to delay, defer, extend, or continue

or to prolong in time or space. M ERRIAM

- W EBSTER ’ S C OLLEGIATE D ICTIONARY 1000 ( 11th ed. 2004 ).
There is no brigh t

- line rule for determining whether an injury constitutes a protracted loss, but there must be evidence that the victim lost use of the limb or that the victim’s function was im paired
, as well as evidence of how long the use was lost or impaired. See Black v. State , 637 S.W.2d 923, 926 (Tex. Crim. App. [Panel Op.] 1982). In Black , there was evidence that the victim was shot in the leg
, that he spent three days in the hospital recovering from surgery
, and that “the leg took two to three months to heal,” but the court held that the evidence was insufficient to prove serious bodily injury because there was no evidence that the9 victim “had any loss of use of the limb.” Id. The c o urt noted that the State failed
to offer hospital records or call any of the treating medical personnel and reasoned that “there is no evidence to indicate [the victim] was unable to walk after leaving the hospital or that he had suffered permanent damage to his thi gh

. ” Id. A nd
, in
Villarreal v. State
, a lthough there was evidence that the victim was not able to raise his arms or lift anything for ten days due to two fractured rib s , the court concluded that ten days did not constitute a protracted loss or impairment . 716 S.W.2d 651, 652 (Tex. App.

— Corpus Christi 1986, no pet.). Here, however, there is evidence that G.H. ’s arm was immobilized for more
than two months. Dr. Douglas testified that G.H. suffered “a spiral fracture of the
midshaft of the h umerus. ” A humerus fracture is immobilized to prevent

movement ; if not immobilized, the bone takes longer to heal and may not heal straight . Dr

. Coffman agreed and explained that not immobilizing the limb “could cause shortening in the arm or other problems.” To keep G.H.’s arm immobilized,
it was splinted and placed in a sling . G.H.’s orthopedic doctor restricted G.H.’s
activities and the use of his arm for “ei gh t to nine weeks.”
When the evidence is v iewed in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that G.H.’s injury resulted in a protracted loss or impairment because the record shows that G.H. ’s
arm was immobilized for more than two months as a result of the injuries caused by Appellant. See Williams v. State , 575 S.W.2d 30, 33 (Tex. Crim. App. [Panel Op.] 1979) (holding “that the injury which caused [the victim] to lose lifting power
in his arm for three months ” constitute d a protra cted impairment of the function of a bodily member, so that “ the wound would be classified as serious bodily injury”).10 Conclusion Having concluded that a rational trier of fact could have found beyond a
reasonable doubt that Appellant caused G.H.’s spiral fracture and that the injury
constitute d serious bodily injury , Appellant’s sole point of error on appeal is
overruled. This Court’s Ruling
We affirm the judgment of the trial court

.

JOHN M. BAILEY
JUSTICE

February 27, 2014 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wri gh t, C.J., Willson, J., and Bailey, J.