NO. 07-00-0374-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D MAY 29, 2001

______________________________ LETICIA MARICELA HERNANDEZ, APPELLA NT V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 287 TH DISTRIC T COURT O F BAILEY CO UNTY; NO. 1944; HON ORABLE GORDO N H. GREEN , JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS , JJ.
In this appeal, ap pellant Letici a MaricelaHernandez challenges her convi ction of capital murder after a j ury tri al and the result ing punishment of confinement for life in the Institutional Divis ion of the Department of Criminal Ju stice. For the reasons ex plicated below, we affirm the judgment o f the trial cour t.2

In six issues, appellant alleges (1) the trial c ou rt erred i n failing to e nter wri tten findin gs of fact and conclusi ons of law as required b y artic le 38.22 of the Code of Crimina l Procedure, (2) the trial court erred in denying her motion to suppress her confession, (3) the evidence i s legall y insufficient to support the j ury’s findi ng that she i ntentionally or knowingly

caused the dea th of thevic tim, (4) the evidence is factually insufficient to sup port the jury’s finding that s he intentionall y or know ingly caused the death of the vic tim, (5) the evidence is legal ly insuffici ent to establis h that the burn i njuries infli cted by her caused the death of the victim, and (6) the evidence is factually insufficient to esta blish that the burn injuries i nflicted by he r caused the deat h of the victi m.
The nature of appellant’s c hallenges r equires a d etailed reci tation of the evidenc e. On the evening of May 1, 1999, appellant’s t hree-year -old son, Jesus Angel Haro (Jesus),
was immersed in scalding w ater in a bathtuband received second and third degree burns
over 45%-50% of his bod y. Instead of taking Jesus to a local hospital in Muleshoe, appellant

and h er comm o n law h usba nd, R obe rto Co ntre ras, drove Jesu s to Ju arez, Mexico, where he fir

st received medical treat ment at least 12 hour s later . Jesus was eventuallytransferred to a hospital in El Paso and then ai rlifted to the bu rn unit at Univers ity Medi cal Center i n Lubbock, w here he died on M ay 9, 1999.
In her first issue, appellant claims the trial court was re quired t o enter wr itten findin gs of fact and conclusi ons of law con cerning theadmissibil ity of her writte n statement made on May 2- 3, 1999, to Detect ive Joe Z immerly of the El Paso Police Department. Appellant

had filed a motion to suppres s all oral and writ ten statements made by her to any3

law enforcement officer. After a pretrial hearing, t he trial cour t denied the motion without further elaboration. Appellant then fil ed a motion requ esting the t rial court to enter writte n findings of

fact and conclusions of law, which the court denied. She posits that the entry of those findings i s mandatory an d the appeal shoul d be abated to the tr ial court.
Section 6 of artic le 38.22 o f the Code of Crimin al Procedure provides in relev ant part:
In all cases w here a questi on is raise d as to t he v olun tar ines s of a statement of an accused, the court must make an independent f inding in the absence of the jury as to whether the statement was made und er voluntary conditions. If the s tate ment

has been fo und to have been voluntarily made and held admissible as a matter of law and fact by the court in a hear ing in the absence of the jury, the court must enter an order stating its conclusion as to whether or

not the statement

was voluntarily

made, along w ith the specific finding of facts upon which the con clusion was based, which order shall be filed among the paper

s of the cause . . .

. Tex. Code Crim. Proc. Ann. art . 38.22 § 6 (Ver non 1979) . It has been held that the requirements

of this artic le are mandatory and the court must file its finding s regardl ess of whether the defendant objects. Green v. State, 906 S.W.2d 937, 939 (Tex.C rim.A pp. 1995); Bonham v. St

ate , 644 S.W .2d 5, 8 (Tex.Crim.App. 1983). If findings are not made, the proper proce dure is to abate the case for the t rial court to perform its duty. Green, 906 S.W.2d at 939. However, it has also been he ld that f indings of fact and conclusionsare not req uired when the statement is not the result of cu stodial inter rogation. Chavez v. State, 6 S.W.3d 56, 64 (Tex.App.- -San Antonio 1999, pet. ref’d); Garz a v. State , 915 S.W.2d 204, 2114

(Tex.App.-- Corpus Christi 1996, pet. ref’d); White v. State, 874 S.W.2d 229, 236 (Tex.App. --Houston [14 th Dist.] 1994, pet. dism’d); Inman v. St ate, 68 3 S.W.2 d 40, 42 (Tex.App.-- Eastland 1984, no pet.). If an investi gation is not at an accusato rial or c ustodial stag e, a person’s fifth amen dment rights a re not yet an issue. Melton v. Stat e , 790 S.W.2d 322, 326 (Tex.Cri m.App. 1990). Therefore , the appeal must onl y be abated if w e determine that appellant was in custody at the time of her s tatement.
Atthe hearing on the motion to suppress, appel lant’s counsel argued that appellant
was only 1 9 year s old wi th an eigh th gr ade education. When she was pi cked up by Mexican police, escorted acr oss one of the inter national brid ges at the bor der and met by members of the El Paso Police D epartment, she believ ed that she was under arre st, i.e., that she was

in custody

at the time she g ave her sta tement. It was als o alleged that

she
was induced to make a statement b y promises that she would r eceive ass istance in s eeing her childr

en.
Aperson is i n custody

only if, under the circumstances, a reaso nable person would belie ve that his freedom of mov ement was re strained to thedegree assoc iated wit h a n arrest. Stansbury v. C alifornia, 511 U.S. 318, 322- 23, 11 4 S.Ct. 1526, 128 L .Ed.2d 293 ( 1994 ). There are four g eneral situat ions whi ch may consti tute custody : (1) w hen the suspect is physi cally depr ived of his fre edom of action in a s ignificant way; (2) when a law enforcement

officer tells t he suspect that hecannot leav e; (3) w hen law enforc em en t officers create a sit uation that would lead a reasonabl e person to beli eve that his freedom of movement has been s ignificantl y restr icted; and (4) when t h ere is probabl e cause to5

arrest and law

enforcement officers do no t tell the sus pect that he is free to leave. Dowthitt
v. St ate, 931 S. W.2d 244, 255 (Tex.Crim.App. 1996 ). The fourth sit uation does not automatically esta blish cust ody, which ex ists only if the manifestation of probabl e cause, combined with other circumstances, would lead a reasonable pe rson to believe that he is under restrai nt to the degr ee associated w ith an arres t. Id. Detective Joe Zimmerly of the El Paso Police Depar tment testified that

he first met appellant

around 11:00 p.m. on May 2, 1999, after she had cleared immig ration at one of the international bridgesin El Paso. He and his par tner met with her

in a side office at

the bridge and talked to her for 20 or 30 minutes. He testified t hat she was notunder arrest and was not being detained. He did give her the Miranda warnings “as procedure.” He indicated thatshe signed and initialed a card containi ng the Mir anda warnin gs, whi ch she received atthat time and the card wasadmitted into ev idence. Zimmer ly stated he had no problems conversing w ith appellant i n English.
Based on the information that appellant gave to Zimmerly which led him to belie ve thatthe incident ha d taken place in the E l Paso area, he drove her to an area w here “she stated that she had been at a small tow n outside of El Pas o.” Zimmerl y testified that he
was trying to determine w here the inci dent occurred. While they were dr iving around, he received a call that a n address had been found for appellant, so he dro ve back to his office. At that time, head mi nistered the Miranda warnings to her again because there
were “inconsis tencies in her statement ,” and he wanted to makesure she under stood her ri ghts. She initialed th e same card ag ain with a new date and t ime since by then it was6

after midnight. H e t hen inte rviewed appellant, which resulted in a statement f rom her. Zimmerly averred t hat during the taking of her statement, shewas not handc uffed and he offered her a drink

and some chips. He stated she w as not under arr

est. Zimmerly

typed the statement sig ned by appell ant and two ot her persons w itnessed it.
On cross-ex

amination, Zimmerly

said that the or iginal i nformation about appell ant had been provided to the El Paso Police Depa rtment through Child Protectiv e Se rvices (CPS) which had been called by the Mexi can office that wa s the equiv alent of CPS. Since appellant

was apparentlyclaiming that the incident occurred in El Paso, h e needed to talk to her to find out w here it happened. Prior to meet ing wi th appellant, he a ttempted to run checks on her and her boyfriend and o n the address she had prov ided, but no record was found. He admi tted th at he was we aring a gun at the t ime he met with appellant and that the Mexican police and federal securi ty guar ds at the bridg e were al so probably wearing guns. At his first meeting with appel lant, she told him that she and her boyfriend had l ived in Albuquer

que, had come to E l Paso, and Jes us had been accide ntally bur ned. Zimmerly testified he told appe llant his office investigated any type of in j ury to a child, whether i t was acc idental or intentional, so that documentati on could be made as to whether itin fact wasaccidental or intentional. He told her she was bei ng inves tigated for the injuries to her child. He said that appellant was cooperative and “freely giving us this information.” At the first meet ing, she tol d him that “the c hild had pooped in his pants, and th at she had run the bath to ba the him, [and] that she had left him in the back room. ” When she returned, she heard him screaming. She said she di d not know t he water had7

been so hot

and she reached in and pulled him out. Appellant also said this happ ened in
a small tow n near El Paso. Zimmerly asked her if they

drove her

along the r

oads whether she could point out

something famili ar, and she sai d yes. At that point, Zimmerly was investig ating whether the injuryoccurred i n his juri sdiction. D uring the dr ive, he was cal led and told t hat the stree t name appellant had g iven him for E l Paso was actually the street where she lived in Albuquerque. Since appellant had not been totally hon est, Zimmerly drove her back to his office to talk to her some more. He di d not offer to drive her back to Mexico or

to take her any

where other

than the policedepartment.
Once they were back at the police department and appellant had r

ecei ved th e Miranda warning s for a second time, Zi mmerly told her he knew the address w here she said the i ncid ent h ad ha ppe ned in El P aso wa s he r old address in Albuquer

que. At that time, appe lla nt told him “t his is w hat happened,” w hich is how he found out the inci dent occurred in Muleshoe. Zimmerly never soug ht an arrest w arrant because the offense did notoccur in hi s jurisdi ction. He s tated appellant w as free to leav e and that he told her so. Althou gh he did not offer to drive her to Mexico, he testified that “[w]e w ould have g iven her
a ride.” H e described appel lant as “very cooper ative , very calm, very talkative.” No hand cuffswer

e plac ed on ap pella nt unti l about 7:00 a. m. after the authorities in Muleshoe informed him that an ar rest war rant had been iss ued. During the time t hey were in the car, Zimmerly testified that appellant on ce comment ed, “I wo nder how my Jesus is doi ng,” but di d not seem over ly concer ned because she was very talkative about movies, about being a policeman, and oth er things.8

He did not

believe s he asked about her son during the time he was intervi ewing he r at the police station. Al though Zimmerl y did no t think he s pecifically stated a purposefor the statement, he asked her i f she would li ke to give a writ ten statement concer ning the burning of

her son and she said yes. He told her he was g oing to share that infor mation with CPS. Zimmerl y denied he ever told appell ant that if she tol d the truth the way he wanted her to tell it, h e would hel p her see her c hild. Appellant

testified she met Zimmerly at the immigrat ion faciliti es. She said she w as told by the Mex ican police tha t they w ere dep orting her and she did not g o with them volun taril y. The Mexic an police never told her s he was under arrest, but she presumed she was because it was not her choice to leave M exico. Shedid not feel she had the right to walk aw

ay from the peopleat the internat i onal bridgeor from Zimmerl y because they
never told her she could. However, she a dmitted that Zimmerly told her she w as not under arrest when she first met him. She did not

tell him she wanted to le ave because s he was scared and thought he w as going to help her. She was under t he impression that if she helped him, he woul d assist her to get her c hildren back and she would only have to take
some parenting c lasses. Zi mmerly’s demeanor changed after they got to his office and he started making accusations against her. He told her it would look better if she voluntarily gave her statement and help s how that she was innoce nt. Appellant

averre d she had not

slept in sev

eral daysand had not eaten si nce the Mexican police boug ht her a hamburg er. She said she signed t he Miranda card twice but at the same time. She put d ifferent hou rs on the card because Zimmerly told her to do it9

since he forgot to read it to her at the imm igra tion off ice. Appella nt believed she signed the card a fter Zi mmerly type d her s tatemen t, alt hough she tes tified it was aro und 1:30 p.m. which is prior

to the 1:36 p.m. commencement date on the w ritten statement . She said she talked to Zimmerly

a lot in the car because she w as nervous and was trying to be friendly
so they would not be str angers to each other. Zimmerly told her he woul d help her see he r children if she gave a statement and would let her be w ith Jesus at the hos pital. Appel lant said she repeatedly

asked if she could call her sister-in-law to ask how her children were doing and he told her she could after she gave her statement. H owever , he never tol d her she could not use the phone until around 5 :00 a.m., whi ch was sev eral hours after

she had given her

statement. Appellant

said she made up what was in her written statement because Zimmerly told her he did not b elieve w hatshe told him the first time. She said tha t Zimmerly would tell her something and ask her if it sounded all right and she would s ay yes because she thought it woul d help her see he r children . However, she admitted that after Zimmerl y had typed and printed the st atement but before she s igned it, hetold her it could be used against her at tria l. Zimmerl y sugg ested she hand w rite a statement to the effect that she
was sorr y for wha t she had done becaus e it woul d look good.
The fact that appellant

may have been inv

oluntarily deported from Mexico does not affect whether or

not appellant w

as in custody

at the time she made any statements to members of the El Paso Poli ce Department. The evidence sh ows that, pr ior to talking to appellant, the police did not have pro bable cause to arrest her . It is als o undisputed that10

appellant

was not handc uffed and was told by Zimmerly

that she wa s no t under arrest. The givi ng of the Miranda w arnings w

ould seem to reflect cautio usness on the par t of the officer rather

than an intent to arrest. The fact t hat appellant w as nervous or

scared and thought she coul d help herself by talking to the police does notestablish that she was in cust ody. F urt hermore, the fact tha t the police di d not voluntar ily offer to dr ive her somewhere does not

indicate she was in c ustody, par ticularly since there was no testimony thatshe ever a sked to leav e, to b e driven t o a different locati on, or to call someone to
come get her. The purpose of the interview s was to fin d out where the incident occurred, since the major inconsistencies noted by police in app ellant’s storyrevolved around that issue. Even if Zi mmerly did not believe that the burns w ere the resul t of

an accident pri or to appellant gi ving thewritte n statement at his office, Zimmerly

testified that he told her at his office that she wa s free to leav e and she did not cont radict that s tatement. In lig ht of these fa cts, we do not believe that appellant w as in custody

at the time she made her statement. Therefore, there i s no reason to ab ate th is appeal back to thetrial cour t. Appellant’s fir

st issue is

overrul ed.
In her second issue, appellant contend s the trial court erre d in denying her motion to suppress. The writte n statement sig ned by appell ant and initial ed by her on ea ch page indicates she was warned of her right to counsel, her r ight to remai n silent, her right to an attorney and her rig ht to terminate t he intervi ew. The statement also indica tes she was not high or drunk, s he was not und er arrest, she was not handcuffed, a nd she ha d been allowed to smoke, dri nk a Coke and eat potato chips. For the reasons al ready ex plicated, we do not bel ieve appell ant was in custody at the time of her stat ement.11

The trial court did ha ve before it conflicting stories as to whether promises were made to appellant by

Zimmerly

in exchang e for giv ing her statement to the poli ce. However, the trial court is the sole judge of the credibil ity of the w itnesses at a hearing on
a motion to suppres s, and the tri al court’s resolution of i nconsistenci es between the testimony

of two wi tnesses wi ll not be dis tur bed abse nt an abuse of discr etion. Long v. State, 823 S.W.2d 259, 277 (Tex.Cri m.App. 1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L.Ed.2d 910 (1992). Beca use there was testi mony by Z immerly tha t he did not make any promis es to appellant, we see no error on the part of the tr ial court in any finding thatthe statement was voluntar ily g iven. Appel lant’s second issue is overruled.

In her thi rd and fourth issues, ap pellant contendsthe evidenc e is legal ly and factually insu fficie nt to support theverdict that she intenti onally or knowing ly caused the death of Jes us by his immersion in ho t water. Because appellan t argues thes e issues together and both require an extensive review of the evidence, we wi ll also di scuss them jointly.
In co nsid erin g app ella nt’s legal suffici ency c hall enge , we are requi red to view the evidence in a light

most favorable to the prosecuti on and then determine if any rati onal trier of fact could have foun d the essential element s of the off ense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.E d.2d 560 (1979). In consideri ng factual sufficiency c hallenges, w e must view

all the ev idence wi thout the prism of “in the light most favorable to the prosecuti on ” and we may only set aside the verdict if it is so12

contraryto the over

whelming weight

o f the eviden ce as to be cl early w rong and unjus t. Clewisv. State, 922 S.W.2d 126, 129 (Tex.Cr im.App. 1996). I n performing our re view, we must remember that the t rier of fact is the sole judg e of the weight and credibil ity of the test imon y, and we may n ot substitute ou r judgment for thatof the jury. See Santellan v. State , 939 S. W.2d 1 55, 164 (Tex.C rim.App. 1997). We must also bear in mind that a decision is not manifestly unjust because a factfinder h as resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W .2d 404, 410 (Tex.Crim.App . 1997).

To find appellant

guilty of capital murder , the jury had to find that she intentio nally and knowing ly caused the death of Jesus by i mmersing him in hot water, causing severe burns to a child unde r the age of si x. The jury was ins tructed that a pers on acts intentionally with respect to a result of his conduct “w hen it is hi s conscious objective or desire to cause the r

esult.” The j ury was further inst ructed that a pe rson acts knowingly with respect to theresult of his conduct “w hen he is aware that his conduct is reasonably certain to cause the r

esult.” To sustain a conviction for capital mu rder, the evidence must show that the accused intenti onally or knowing ly engag ed in the conduct that caused death and intended or knew that death would result f rom the co nduct. Martinez v. State, 763 S.W.2d 4 13, 419 (Tex.Crim.App. 1988). It is the culpable mental state required for a convicti on which appell ant cont ends is not supp orted by the evidence, i.e. , there is no evidence or

insufficient ev idence that appell ant intended the death of Jesus.13

The subst anc e of Zimmerly’ s testimony during the guilt/inno cence phase was the
same as at the heari ng on the motion to suppress. However, Zimmerly also added he had examined appellant’s hands af ter she told him she reached in and found the water in the bathtub hot, and he did not obs erveany r ednessor bur ning to them. He further stated that appellant did not seem concerned for Jesus.
The writte n statement giv en by appellant was admitted into evidence at trial. In that statement, appellant sai d that she and the man she considers her husband, Robe rto Contreras, lived in Muleshoe w ith her tw o children, J esus, whowas three, and Natalie De La Luz Acev edo. Around 11:00 p.m. o n May 1, 1999 , they were at home, and Jes us had
an accident in h is pants, even though he had been potty trai ned for over a year. Appellant stated she gets real frustr ated with Jes us and only yells at him when she is cleaning him and his pants. After

being told by Robertowhat Jesus had done, she said she “ got mad” and asked J esus himself w hat he had done. Jes us began to cr y and did not an swer
. Appellant

then picked up a belt and told Jesus if he did not tell her what he had done, she would spank him. He never told her so twice she swung the belt, and eac h time Jesus turned away

and was hi t on the middle of the top part of his r ight leg

. Then, while Jesus was taki ng off his clothes , appellant wentto the bathroom and turned on the hotwater and a “little of the cold water.” She picked Jesus up und er his
arms and carried him to the bathtub. The w ater was filled about halfway and she sat him in there. She felt t hat the water was hot and tur ned to get a cup to rinse Jes us off and heard him splashing and screaming. She touched the w ater and saw that i t was rea lly hot14

and pulled him out with a white towel. She saw that his skin was coming off his legs. She carried him to the liv ing room and he started roll ing around and “his whole sk in was coming off.” Roberto asked her what h ad happened. She told him and the n said th ey should go to Juarez or the police would arrest them. Roberto called his boss to borrow a truck and she packed. She put s ome bandages and a “ pom ada” on Jesus’s burns and gave him children’s Tylenol. The y drove thro ugh Cl ovis, Roswel l, Car lsba d, an d El P aso t o Jua rez, where they went to Roberto’s sister’s house and calle d a doctor, w ho could not see t hem until 11:00 a.m. Jesus was put in a clinic around 12:00 or 12: 30 p.m. Appellant t hen told Roberto to g o back home. The police later came to the clinic. Appellant sta ted that she lied to them and Detective Zimmerly because she was scared and afraid of getting in t o trouble. At the bottom of her statement, appel lant handwr ote the follow ing: “I am sorry for what I did to Angel. But I know that I learned my lesson, and I will never do anything like that again.”
Ni na Guillen testified that she worked at a T own and Country Convenience Stor e on May 1, 1999. She stated that w hile she was worki ng a man came in between 8:00 and 9:00 p.m. and said heneeded some burn oi ntment. On cross- examination, she said the
man was Hi spanic and that heasked for the ointment in Spanish. H e told her the t ype of burn was a hot w

ater burn and that

the ointment was for his li ttle boy . The man did not appear agitated, upset or ner vous.
Rosa Davis, another employee of the Town and Country Convenience Store, wa s also workin g on May

1, 1999. She test ified that a man came i n the store lookin g on the15

medicine aisl e for

something for a little boy who had gotten burned on the leg. She also stated that the man w

as not nerv ous or agitated.
Scott Graves s upervised the child abuse unit of the El Paso Police Department. He received a phone call on May 2, 1999, f rom the Mexican equ i valent of CPS about a seriouslyburned child in Juarez who was not a Mex ican citiz en. Graves then opened an investigatio n in his of

fice. He inst ructed his men to find an address w here appellant reported the incident occurred. He later witnessed appellan t’s signature on the statement she gave to Zimmerly. He also spoke w ith a CPS caseworker who w as going to initiate an investig ation. That casewor ker came to the station on the e venin g of Ma y 2. Add itio nall y, he discussed with several people the need to retu rn the child to the United States.
Richard Tirres was employ ed b y CPS in El Paso and w as instructed to start an investig ation regarding the incident. He contacted th e Mexican equival entof CPS, who told him the mother and child were at a clinic in Juarez . He was also told the child was very sick and could not be treated properly at that clinic. Since the m other stated she was a U.S. citizen , the Mexi can authoriti es were mak ing arrang ements to deport her. Tirres then spoke to a doctor at

t he clinic after

which he determined that r eturning the child to the United States was

a priorit y. Additi onally, he spoke to appella nt and explai ned to her that she would be depo rted to the Un ited States and t hat he was at tempting to have her son returned as well. She told him thatshe had lived in Colorad o, moved to Al buquerque, and from there to El Paso thr ee weeks ag o. The child was returned M ay 3 and ini tially sent to Thomason Hospital i n El Paso for a few hours and then airlifted to th e burn center in16

Lubbo ck. T irres als o visite d with appel lant at the poli ce station after she had given a stat eme nt to Zimm erly.
Dr. Alan Tyr och was the di rector of trauma a nd surgic al critical at Thomason Hospital in El Paso. He was thetreating p hysician for Jesus. Hestated Jesus s ustained second and third degree burns to 45% of his body. The child had cellulitis, which is a soft tissue infection around t he burns. He s tated that the most i mportan t thing in the initial management

of a bu rn pati ent is to rehydrate the patient. In ma jor burns, the body’s immune system is increased to a higher level and sometimes t he major organs start working at a lower r

ate and can shut dow n. Thatsituation can occur in s omeone with 45% second and third degree burns. Dr. Tyroch was conce rned that Jesus ’s urinary output was notadequ ate, which could have meant he was going into renal failure. Tyroch said it appeared Jesus h ad re ceived fluid resuscitation and top ical treatment for his burns in Mexico. He saw J esus for only two hoursbefore he was transferred to Lu bbock.
Dr. Hector

Castro was a plastic

surgeon in Ciudad Juarez, C hihuahua, Mex ico, who
was asked to prov ide a second opi nion to the doctor at the clini c where J esus was taken in Mexico. He believed that Jesus had burns over 52%-55% of h is bo dy. He also noti ced bruises on Jesus’s legs where it looked lik e he had been hit or beaten with a belt. Dr. Castro said that Jes us was very dehydrated. He told the doc tor at the cl inic to use a certain solution to r

eplace the fluids. Dr. Castro also said the chil d should be gi ven antibio tics t o prevent i nfection. He felt i t would be mor e appropriate for

the child to be treated at a burn center. He also r eported to the authoriti es that he thoug ht the child had17

been mistreated. He thought the child had a bad prognosis because he was not treated immediately.
On cross-ex

amination, Dr. Castro stated that the discharg e of

urine wa s very

limited compared to what i t should hav e been. He also tes tified he be lieve d the child shou ld ha ve received glucose s olution to prev entshock immediately after he was burned and that the child should have gone i nto a burn unit to be scraped immediately to remove theburned skin so a skin graft could be done as soon as possible. Dr. Castro averred that Jesus’s mother told him thather boyfrie nd had caused the pr oblems. He als o averred that when he saw the child for the fir st time, his impression was that i f the child got proper treat ment immediately, he would heal. Rodney Stevens w

as a Muleshoe p olice officer. O n May 3, 1999 , he was asked to investig ate the injury

to Jesus. Initially , he went to the house in Mul eshoe and stayed at the location to secure the residence. He also took part in sear

ching the hous e with other offic ers. T hey found seve ral pieces of skin on the floor. Additionall y, they tested the temperature of the water from the kitchen f aucet which was 144 degrees. They also found
a pair of underwear

at the sliding glass door on the back porch. He said the house is located two and one-half block s from a hospital. Sergeant

Joe Orozco, of the Muleshoe Poli ce Department, was notifie d on May 3, 19 99, that there wasa situation of a s mall child be ing burned i n a tub. He and ano ther officer obtained a search warrant and located and searched t he truck that Roberto had borrowed. They found suspected skin in the truck. They then went to the residence where18

they located Contr

eras and place him under arre st. On cross-ex amination, Oroz co stated he made no visual inspection of Contreras’s hands.
Contreras testified that, on the ev ening of May 1, he had three beer

s, but appellant did not have any , as they watched telev ision. Roberto got up to go outsi de to smoke w hen he discover

ed that Jesus had gone to the b athroom in his pants. He sai d Jesus had been potty trained but r

ecently had some problems. They woul d reprimand Jes us when he had
an accident. Roberto testified he spanked Jesus tha t dayfor his accident, and told appellant

what had happened . When he was out at the car , he heard Jesuscrying , so he entered the house and found appell ant in the bathro om with Jes us in her arms. Some of Jesus’s sk in came off. Roberto w ent to the store to look for ointment between eight

and nine o’clock. They wer e afraid to get treatment in Mu leshoe because appel lant’s mother had wanted to take Jesus away from them on other occasions

. Roberto said it was appellant’s deci sion to go t o Jua rez. He did n ot re alize Jesus was hurt badly

because he was talking a nd eati ng. They borrow ed a pick up and a rrived in J uarez around 6:00 a. m. and went to his sister

’s home. He felt he could have overrule d appella nt’s dec ision to go to Mexico, but did not do s o.
On cross-ex

amination, Rober

to admitted he pled guil ty to voluntary manslaughter. Roberto spent

a half day in Mexico an d then drove back to Muleshoe. Roberto said that when he hit Jesuswith a belt, he hit him on the legs and caused some mark s. He was the
one who took J esus’s dir ty underwear outside. H e also said hewas not mad but bothered by Jesus’s behav ior. It w

as not the first time that Roberto had hit Jesus with a belt, and in19

fact he had hit him beforefor having an acciden t in his pants . However, he said tha t appellant

was the one who put the c hild in the bat htub. Roberto read two l etters he w rote in which he stated thatwhat happened to Jesus wa s an accident. He also admitted he had notactually

seen appellant pu t the child i n the water since he wentoutside. He said that appellant

put ointment on the burns and got the child somethi ng to eat and drink. Ro berto averred th at he was th e one who w ould hit the chi ld with the belt, not appel lant.
David Young, empl oyed by t he Texas Depar tment of Public Safety crime laboratory in Lubbock, was requested to process the house whe re appellant l ived. While doing so, he collected s everal pi eces of skin. H e compared two of the pieces of ski n to a blood sample from Jesus and conc luded that the sk in came from Jesus. On cross- examination, Young stated that he did not take any samples of anyth ing from the bathr oom. He neither
saw anything he could collect from the bathtub nor found a ny skin or blood on the floor in front of the tub.
Maria Fredlund, w ho works for CPS, testified that she visited Jesus in the hospital in the burn unit. She identified pi ctures taken on May 4, 1999, of Jesus and the bur ns on his body which were admitted into evidence. She said he did not appear to be in a lot o f pain and conve rsed wi th her primar ily in English.
Dr. Micha el O’N eill p ract iced eme rgenc y pediatric medicine at th e Univer sity Me dical Center in Lubbock. H e was part of the evaluati on team when Jesus first arrived at the hospital. H is observations wer e that the chil d was highly anxious and in pain. However, Jesus’s airway and breathing were intact, as well as his circulatory system. He also had20

significant

third degree burns which were several days old. Dr. O’Neill believed t he burns
c overed 45% to 50% of the chi ld’s body. He felt the temper ature of the water

had to b e 135 to 140 degrees

to cau se t hose types of burns. Because the child seemed to be in overall good health w ith no other complicating facto rs at that point, he felt the child mig ht have had a good prog nos i s “although third degr ee burns do hav e some mortality associated wit h them no matt er what theage.” Dea th can occur fro m dehydration or secondary infection. Signs of dehydration incl ude decreased ur ine output and increased blood pressure. If dehydration becomes sever e, the blood pressur

e can fall and death could occur fr

om organ failur

e.
Dr. O’Neill saw no signs of secondaryinfection w hen he examined Jesus, a lthough he stated that almost every burn s urface eventual ly becomes contaminated wi th bacteria. He said that Jes us needed to be in abur n cen ter . If J esus had recei ved immediate medical attention, he wou ld have avoided stressors by receiving fluids and pain medication. A delay in treatment would create a substantial ris k to the person. Dr. O’Neill testified that this w

as one of the wor

st cases he had seen in the emergency room. He also said it is not unusual to see burn pati ents in the emerg ency room w ith some type o f oi ntmentput on them. Although he did not note any indications of inf ectio n, he state d there were other things the burn team may hav e done to make those as sessments. Dr. O’Neill examined the photographs of Jesus and noted a burn behind th e left ear, which was not an immersion burn. There was also a burn on his upper back whi ch was not an immersion burn. He said that if a person is forced into water, he wi ll have bur ns on both feet, both legs, and the buttocks, and may also g et some splash bur ns. Dr. O’ Neill stated21

the water temperature in a house should be kept belo w 120 degrees and that burns would occur fairly

quickly at 144 degrees

. Chief of the Muleshoe Pol ice Department, Don Carter , receiv ed information around 2:00 a.m. on May 3, 1999, that a child had been burned at a house in Muleshoe. His office verified the address a nd then searche d for th e vehicle t hat Con treras ha d been driving. Later, they

got a w arr ant to sea rch the h ouse and f or t he ar res t of Roberto . They also made arrangementsto have the cr ime scene proces sed. Chief Car ter said it would take around 45 minutes to an hour to trav el to Lubbock by

car. He also said they found a belt in the house close to the descri ption that was giv en to them. He di d not know i f Roberto had bathed in the tub s ince he retur ned to Muleshoe o r had disposed of any was h rags or towels.
Dr. Sammy De eb wa s one of three attendi ng physi cians for burn p atients at Univers ity

Medical Center in Lubbock, and he was the adm itting physi ci an for Jesus on May 4. He said J esus had “pret ty exten sive second and third deg ree burns from thewaist down.” Those injuries were consistent with immer

sion burns. Jesus wasalso behind on his IV fluid. Dr

. Deeb believes that it is critical that fluid replacemen t take place immediately because if there is not adequa te resuscitation for good blood flow to the skin, the injury

gets worse. Jesus appeared to be dry mouthed and his sk in was not as taut as itshould be. He also expected to see some mental status change, but was s urprised that Jesus wastalking. There were mostly thi rd degree bur ns over 45% to 50% of his body

.22

As soon as they

got Jesus s tabilize d and resusci tated , he had a gastrointestinal bleed. His blood pressure al so decreased, he threw up, and went into cardiac arrest thr

ee times before he died. GI bleeding is caused w hen the blood flow to the bowel has suffered due to lack of fluid, so when the bl ood flow is reestabl ished, the blood ves sels ruptur e. Jesus also appeared to be septic in his last days and w as having breathing problems. All of these things indicated that Jesus’s body wa s not able to r espond to the injuries received from the burns.
Dr. Deeb averred that he did not bel ieve the r esuscitation received in the first few days of treatment was

timely. If the body

does not re ceive resu scita tion within the f irst t wo or three hours, it will suffer “tre mendous consequenc es.” He stated the mortali ty rate would increase tr

emendously if thechild had gone 12 hours before rece iving treatment. He did not know

of a single doc

tor who w

ould not immediately

send a patient lik

e Jesus to
a burn center. Dr. Deeb stated that Jesus’sburns indicated a “class ic submersio n picture,” and the burns on his back could be splash b urns. He also said that it would be very hard to get either

a splash or submersion burn behind the ear. Most household water heaters should be set at 120 or 125 degr ees.
Dr. Mark Krous e, the Deputy Chief Medical Examiner in Fort Worth, performed the autopsy o n Jes us. He found thermal burns on the bac k, buttocks, a nd upper and low er extremiti es consistent with h ot fluid immersi on with bur n injuries consistent w ith partial immersion and splashing of hot liquid on the left arm, the upper ba ck, the front of the tors o, the abdomen and che st, and the face. T here were also contusions on the legs. The child23

died in a s tate of cardio vasc ular collap se wi th dil ation o f sma ll blood v essels throug hout all major orga ns, fluid in his lungs, cer ebral edema, and pulmonary infection. There w

as fatty metamorphosis of

the liver ; evidence o f kidney failur e; mononuclear i nfiltration of the heart, adrenal glands, and brain due to loss of water, pr oteins, electr

olytes and s alt; and bone marrow fail ure. In hisopinion, death w as due to complications of thermal burns due to immersion and s aid if the water temperature was 140 degrees, it would take no mo re than five to ten seconds of immersi on to receive almost full thi ckness burns. However, Dr. Krouseopined that far moreoften than not, a c hild of that age wit h thatdegree and ex

tent of burns shoul d surviv e. The most criti cal treatment i s replacement of lost c ircul atin g bloo d volu me b y mass ive IV treatment, and the next treatment is to fight infection. He said Jesus suffered from multiple org an failure. Mod ern medical tr eatment within a reasonable peri od of time should have made the burns sur vivabl e. It wasa bad burn in terms of the amountof surface area inv olved by significant

partial thi ckness burni ng and it had gone for a significant period of time w ithout treatment. Appellant

called two witnesses as partof her defense. The first was Lisa DeHoyos,
a fo rmer critical care nurse who was currently working as a legal nurse consu ltant. Sh e reviewed some of the medical recor ds for Jesus from M exico, the records from El Paso, and the records from the Unive rsity M edical Center in Lubbock to as certa in if the c hild received appropriate medical trea tme nt f or his injur ies. She n oted reco rds f rom M ay 4 which indic ated that the c hild ’s ski n was swo llen and t ight, wh ich does n ot allow for adequa te circ ulati on and ma y cau se tis sue dea th. On May 5, Jes us wa s hav ing s ome24

bleeding from his intest ine, but she found nothi ng in the records i ndicating t hat the cause of the bleeding was ev er

determined. A c hest x-r ay wasordered that morning to rule out injuriesfrom trauma, but it was later cancelled. No x-ray was performed until the child quit breathing on May 8, just hours befor e his death. An x-ray would have permitted an assessment

of the patient’s flui d sta tus and the presence of pneumoni a or abnormal conditions. DeHoyos said there w ere indicati ons of fluid over load in the tr eatment. At 10:00 a.m. on May 7, tube feedings w ere increase d and IV fluids were changed to one with more potassium.
On May 6 at 1 :30 a.m., the reco rds reveal that someone approved using the c urrent la b results asthat day’smorning labwork. Howeve r, in DeHoy os’s exper ience, la b samples should be checked frequen tly to make sure the fluid and electrolyte balances are within normal limit

s. The last lab r

esults had been ordered ar ound midnight. Those results showed low potas sium level s. She did not fin d it acceptabl e to use noncurr entlab results to monitor a low

potassium level. On May 8, a blood-g as analysi s showed a decreasing level of potassium to a dang erously l ow lev el. How ever, more potassium had been ordered on Ma y 7 for the IV fluid than was ordered on May 8. A few hours before Jesus died, a massive dose of potassium w as ordered. A 7: 30 a.m. order on M ay 7 req uired that blood gasses be don e, but apparently were not

done an d wer

e reor dered a t 2:00 p .m. A later blood gas at 7:50 p.m. showed a decreasing oxygen level, but no orders were g iven for oxyg en at that time.25

DeHoyosf urther a verred thenurse’s notes indicate that on May 7 at 6:00 p.m., Jesus’s speech was

slur red and he was confused, which was about the same time the oxyg en level was dropping. After the May 7 re po rt, the nex t test for ox

ygen levels was done on May 8 at

9:45 p.m., whic h was well over 24 hours after the previousone and not until after Jesus had quit breath ing. There was also an indication as earl y as May 6 that the child was hav ing breathi ng problems, but no chest x -rays or blood gas analyses were ordered that day. The r ecords for May

6 indicated a somewhat low blood pressure and an elevated heart rate. On May 7, t he surge ry servi ce was cal led for a ver y low blood pressure. On May 8, the reports show that J esus did not have enough oxy gen, had a low blood pressure and a high heart rate. The physici an did not address those concerns. If the blood pressure i s not kept hig h enough to keep blood flowing to the major body organs, they begin to fail from lack of oxy gen supply . The test levels for May 8 at6:30 a.m. did not indicate that Jesus w

as stable, even though the phy sician w rote that he was. By 7: 00 p.m.
on May 8, J esus went into cardiac arrest, the cause of which was most likely aspiration o f tube feedings into his lungs

. On May 8 at 1 1:30 p.m., a ped iatric spec ialist ind icated Jesus h ad acute cardia c arrest likely

secondary to sepsis, l ow potassi um, bleeding di sorder, poss ible aspira tion, and central ner

vous system dy

sfunction. DeHoyostestified that, fr om the records, the low potassium began around May 6, the bleeding disorder around May 6 or 7, breathing probl ems on May 6 and central nervous system pro b lems on May 7. There wer

e no medications ordered to tr eat the low blood pressur e, oxyg en was not

provided until he went into cardiac

arrest, and p otassium adminis tered to Jesus was being decr eased. Cultur

es26

of his burn wounds indi cated that staph and strep bacteria were noted on May 6, but Jesus
was given no antibiotics until six hours before his death . On May 8, a series of phone calls
were made to physi cians by n urses reg arding the l ow bloo d p ressure. Ot her than intermittent

fluids and some al bumin, w hich h e had already been receiv ing, nothing was prescribed for that conditi on. In spite o f consecutive low readi ngs and numerousphone calls, the phy

sicians di d not respond.
On May 6, the nurse called twice requesting permission to decrease the f luid because she believ ed he was gett ing too much, a nd the doctor deni ed the request

. DeHoyossaid that too much flu id can back up causing an inabil ity to br eat he co rrect ly. The records do no t show Jes us ’s head w as elevated to prevent t he tube feedings from backin g up and causing aspiration into the lun gs. On May 7, the nurse noted five hours worth of feeding in the stom ach. In most situations, the feedings would stop if ther e was two hou rs wo rth o f fe edin g in th e sto mach beca use i t is no t bei ng dige sted prop erly. Jesus’ s feedings were not stopped. If Jesus could not turn and hav e it come out of hi s mouth, he could aspi rate the fluid and he was on hi s back wi th his hands ti ed.
Dr. Lloyd White, the Nueces County Medical Examiner, reviewed Jesus’s medi cal records, the autopsy report and microscopic slides o btained at that auto psy, and statements from law enforcement officers and app ellant. He averred t hat nowhere i n the records was ther

e any determi nation that th e i njuries w ould be fatal and ther e was anticipation that Jesus w ould surv ive and be discharg ed. His death w as caused by

fluids leaking i nto his lung s resulting in an injury to the lungsand, due to lack of oxyg en during27

cardiac arrest, the organs were damaged. The bur ns themselves were not fatal

. However,
a complication in Jesus’s treatment trig gered a change in his progno sis, whi ch led to death. Loss of fluids can cause multiple org an failure and rep lacement of fluids shou ld start as
soon as pos sible . Neverthel ess, t he me dical reco rds indicate that from the outset the burns were re solving . The shock and multiple org an failure occur red followi ng the cardi ac arrest res ulting from the aspiration.
An accused’s c ulpable state of mind is almost i nvariably proven by

circum stan tial evidence. Morales v. State, 828 S.W.2d 261, 263 (Tex.App.--Amar illo 1992), aff ’d , 853 S.W.2d 583 (Tex.Cr im.App. 1993). M ental state may be inferred from w ords, acts and conduct, Dues v. State , 634 S.W.2d 304, 305 (Tex.Cri m.App. 1982), or t he s urrounding circumstances. Ledesma v. State, 677 S.W .2d 529, 531 (Tex.Crim.App . 1984). The jury is the sole judge of the weigh t of the evidence and the credibi lity of w itnesses, and i t may beli eve or

disbelieve all or par

t of any testi mony. Williams v. State , 692 S.W.2d 671, 676 (Tex.Cri m.App. 1984). More over, inten t to kill may be inferred from th e use of a deadly weapon. Godsey v. State , 719 S.W.2d 578, 580 (Tex.Cri m.App. 1986); Childs v. State , 21 S.W.3d 631, 635 (Tex.App.--H ouston [14 th Dist.] 2000, pet. ref’d ). A deadly weapon is defined to be “anything that in the manner of its use or intended use is capable of causing death or serious bodilyinjury .” Tex. Pen. Co de Ann. § 1.07(a) (17)(B) ( Vernon 1994). H ot water has been used as a deadly weapon. See Gilbert v . State , 769 S.W.2d 535, 536-37 (Tex.Cri m.App. 1989). Flight is also a circumstance from which an inference as to cu lpable28

mental state may be d rawn. See John son v. S tate, 915 S.W .2d 653, 659 (Tex.App.
-- Houston [14 th Dist.] 1996, pet ref’d).
The evidence in the lig ht most favorabl e to the prosecution s hows that appe llant was angry at Jesus for hav ing an acci dent in his under wear, beat him with a belt, knew the water was hot, t he burns we re consistent with the child being lifted into the b athtub, the water in the house was 1 44 degrees, which is higher than recommended sett ings, allegedly reached in the tub after hea ring Jesu s scream to di scover th e water was v ery hot

but there
was no sign of redness o r burns to her hands, delay ed extracti on of Jesus from the scalding w

ater by r eaching for a towel before pulling hi m out, delayed medical treatment for atlea st 1 2 hou rs, eve n tho ugh she knew hisski n wa s co ming off, fled the country with Jesus because she was afraid of what the auth orities w

ould do, lied to the authoriti es about where the incident oc curred, seemed calm and unconcerned about Jesus, and w rote a statem ent saying she was s orry for w hat she did to J esus and had lear ned her lesson, indicating that the event was not accidental. Even if appellant did extract J esus from the scalding water pr ior

to h is demise, applied some oin tment to his burns, and eventu ally sought medical treatment f or the injuries, those facts could have been seen as an attempt to cover up h er pr ior actions

. Although ther e is conflicti ng evidence as to whet her the incident was acci dental or, even if not accide nt al, whether appellant inten ded death to
res ult from her conduct, those conflicts are to be resol ved by t he jury. We believe that, from a t otality of thecircumstanc es surroundi ng the inci dent and appellant’ s conduct, a rational trier of fact cou ld have found the r equired mental state beyond a reasonable doubt. Furthermore, we may only find the evidence fact ually insufficient if the f inding is manifestly29

unjust, and we cannot say that the verdict based on all the evidence be fore the jury is so against the overw helming weight of the evidence as to satisfy that standard. App ellant’s third and fourth i ssues are overruled.
In her fifth and six

th issues, appel lant arguesthat the e viden ce is leg ally and factually insufficient to susta in the verdict that the burn injuries alle gedly inflicted by her
cause d the dea th of her son. Appel lant contends ther e is ample ev idence that the prognosis for the child w as good w hen he was pr esent ed for treatment at eac h medical facility and that death resulted from the gross neglect and i mproper treatment by medical personnel after Jesus was removed from he r care. Appellant posits that her

conduct was insufficient

to cause Jesus ’s death, but the “fai lure to monitor the child’s blood pressure and fluid levels, the failure to moni tor electroly te levelsand potassium le vels, the failure to properlyposition the child in his hospital bed an d monitor his tube fee ding, and the failure to properly

address the i nfectious conditi on of the child” all led to hi s demise.
W here a wound causes a disease which produces death, the death is attributable t o the wound i f there is no ev idence of gross neglect or

improper tr

eatment. Turner v

. State , 505 S.W.2d 558, 560 (Tex.C rim.App. 1974). There is ev idence from whi ch the jury could have found that compl ications from the burns themsel ves and/or the delay in medical treatment

for the child resulted in his d eath. There was testimony from multiple doctors thatthe most important treatment is flui d hydration as soon as poss ible after the i njury and failure to receive such treatment can worsen t he prognosis or increas e the mortality rate. The testimony was also consistent th at a person with the type of burns s uffered by Jesus30

should be treated in a burn unit. Addition ally, there was test imon y f rom Dr. Ty roch in El Paso that he observed signs of poss ible infection a nd renal failur e prior to J esus’s transfer to University Medical Center. Even appellant’s own witness, Dr. White, did not testify t hat the treatment Jesusreceived was impr oper or negl igent, only that he died from complicationsresulting from that treatment, which w ould not have been necessary without the existenceof the burns. The only pers on to question the treatment re ceived at Univers ity

Medical C enter wasa nurse w ho the jury could have found was not qualified to make such a judg ment.
Itis also appellant’s position that de lay in treatment was attributabl e to Mexi can and Texas authorities who delayed the child’s transport to the United States . There i s no evi denc e that either Tex as or Mex ican authorit ies unnecessar ily dela yed the retur n of Jesus to the United S tates. If appellant had not fled the country with her child by passing medical treatment in Muleshoe and several other cities, there would have been no need for any adminis trative a ction to retur n her child to this countr y for treatment

. The jury w

as instructed that “. . . you cannot find t he de fendant, LETICIA MARICELA

HERNANDEZ, guilty

unless yo u believe be yond a reason able doubt that the death of Jesus Angel Haro wou ld not have occured [sic] butfor the c onduct of the defendant; so that if yo u be lieve the conduct of a third party was a concurrent cause sufficient to cau se the death of Jesu s Angel Haro and the conduct of the defendant was clearlyinsufficient, or if you have a reason able doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guil ty. ’” The evi dence view ed in the lig ht most favorabl e to31

the prosecution could lead a rational trier of fact to find that the death of Jesus was caused by appellant and that f inding is not so against the overw helming weight of the ev idence as to requir e revers al. Appellant’ s fifth and sixt h issues are overrule d.
In summary, w

e overrul e all of appellant ’s issues and, according ly, affirm the judgment of the tr ial court.

John T. Bo yd Chief Justice Do not publish

. Quinn, J., dissents.