### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 838 -CR

Ca r m e n M e

ji a , A ppe lla nt
v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT NO. 9044 057 , HO NORAB LE MI CHAEL LY NCH , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury convicted a

ppell an t C ar m en Mejia of (1) f elony murder, ( 2) injury

to a
c hil d w ithse ri ou s b od ily inj ury , a nd (3 ) i nju ry to a c hil d b y omi ssi on

and se nte nc e d h e r t o three life sentenc es. See Tex. P enal Code A nn. §§ 19.02(b)( 3) (West 2003), 22.04(a )(1) , (b)( 1) (We st Su pp . 2 00 7) . In thre e po int s, a pp e lla nt a rgue s th a t th e e vid e nc e is l e g a lly and fa c tua lly insufficient to support her conviction for injury

to a child by

omission and that she was denie d due
course of law under the Texas Consti tution because the State lost ex culpatory evidenc e. We af

firm the judg ment.
BACK GR OUND

On J uly 28, 2003, around 1:30 p.m., appellant broug ht a seve rely burned 10- monthold baby to t h e S t
. David’s Hospital Emer g ency Room. Medical per sonnel immediately took the2

baby , A.C., and beg an tre atment. L ater that day , he was transfe rre d to the pediatric intensive ca re unit of Children’s Hospital wher e he die d that night of complications. Br ooke Shertzer, a

social worker working at St. David’s E.R., spoke w ith appellant shortly afte r she br oug ht A.C. into the hospital. Appellant told he r that A.C. pulled a pot of boiling water off of the stove onto himself. Shertzer was doubtful of appellant’ s story , and af

ter c onsulting with medical per sonnel who said A. C
. ’s i njuries wer e not consistent with appellant’ s expl anation of a pot fa lling, Shertzer c alled Child Protective Service s.

Numerous medical personnel testified as to A.C.’s burns. Dr . Keith Ker r wa s called to the St. David’s E.R. f

rom Children’s Hospital to he lp sta biliz e A.C. He testified that based on the burn distribution, A.C. must have bee n held under scalding water , and that the bur ns could not have resulted f rom a pot fa lling bec aus e t h ere wer e no splash burns. When pre sented with var ious
scena rios such as whe ther it would be possible for a 2-or 3-y ear -old child to have a ccide ntly cause d the inj ur y by tr y ingto g ive A. C. a

bath, Ke rr te sti fi e d th a t su c h s c e na ri os we re no t c on sis te nt w ith A.C.’s injuries. He c lassified the burn a s a deliber ate immersion burn, wher e someone was holding A.C. with his stomach down in the s calding water
. Ker r t estified that even with such a seve re bur n, A.C. could have been r esuscitated if b ro u gh t t o t he hospital sooner. H e testified that A.C.’s pH levels we re low, indicating prolong ed shock a nd a dela y in seeking car e for

A.C.; for the pH le vel to ge t to the level observe d, there must have bee n hours of poor oxy g en and poor b lood pressure
. He op ine d th a t if

A. C. h a d b e e n b ro ug ht i n quic kly , doc tor s wou ld have be e n ab le to r e su sc itate him
and he wo uld have liv e d d e sp ite sc arr ingand c e rt a in phy sic a l disa

bil ity
. Ke rr te sti fi e d th a t du e to
a pr olo ng e d d e lay

in b ri ng ing A. C. t o th e ho sp ita l, w he n h e wa s f ina lly br ou g ht i n, he wa s in3

irreve rsible shock. In Ker r’s opini on, the hours of l ost fluid, the s tress and shock of the i njury , and
no t re c e ivi ng imm e diate me dic a l tr e a tme nt a ll le d to the ba by ’s de a th. Dr . Jam e s Jac ks on lik e wi se testified that the injury

was older than appellant sug g ested, ex plaining that if A.C. had bee n broug ht to t he E.R. within an hour, a s appellant c laimed, A.C. would have had more circ ulating blood volume. J ac k s o n al s o testified that the cha nces of resusc itating a

patient af

ter a n hour
are diminis hed.

Detec tive Roge lio Sanchez of the Austin P olice De partment testified that he spoke with appellant shortly

befor e A.C. died. Appe llant told him that A.C. had bee n with her a wee k and that sh e wa s h is c are take r duri ngthe da y wh ile his fa

the r w or ke d. Ap pe lla

nt p ro vid e d Sa

nc he z wi th
v ar i o u s s t o ri es as t o t h e c au s e o f t h e s ca l d i n g. Fi rs tap p el l an tt o l d S an ch ez t h at s h e w as h ea t i n g a bottl e fo r A. C
. i n a pot on the stove a nd that he poure d the pot on himself. She said she then splashed cold water on him and c alled her husband. After he g ot home, she we nt to J uana L ucas’ s home t o borr o w s o me mo n e y f o r g a s b e f o r e g o in g to St
. D a v id ’ s . Sh e s a id s h e d id n o t c a ll 9 11 beca use there was nobody to watch her children. Afte r Sanche z indi cate d to her that he r story was inconsistent with A.C.’s injuries, appellant then told him that the sca lding took plac e in the bathr oom while she wa s in the bedroom nursingher c hild. W hen she finished nursing, s he looked for A.C. a nd fo un d him in the bathr oo m. She sa id that he r ho t w a te r v a lve in t he batht ub le a ke d, that th e tub mus t have f illed up, and that A.C. g ot into the tub him self. H o we v er , A. C.’s father told police that the valve did not leak and that A.C. was not deve lopmentally able to g et into the tub himself. Appellant admitted that she lied to he r husband when she told him that she was boiling eggs i n a p ot
and that A .C. pu lle d th e po t on to h ims e lf
. She a lso a dmi tte d te lli nghe r f ri e nd Juan a that A .C. fe ll into the tub and scalde d himself.4 Appellant then told a new version of the incident. She said A.C.’s father wa s abusive
and that he ra

pe d he r. Af

te r s he re fu se d to have se x with him a g a in, he be c a me ang ry

and hurt A. C. She said she did not seek me dical tre atment bec ause A.C.’s fathe r told her to put some cre am on the burn and no t to c a ll an a mbu lanc e . Ho we ve r, de te c tiv e s lea rn e d th a t A .C. ’s fathe r w a s at w or k a ll day , and af

ter they told a ppellant that A.C.’s fathe r could not have ha rmed the ba

by , appellant g ave another version, explaining that he r daug hter J ennife r, who was 2 or 3 y ear s old at the time, place d A.C. in the bathtub while appe llant was nursing her ba by in another room. She said she wa s scar ed to tell the truth beca

use she f ear ed her children w ould be taken a way . Phy lip Pelti er, a retire d police office r curr ently doing consulting and investig ations in suspicious burn injury

case s, testified that he studied the photos of A.C. He opined that A.C. was held by an adult under

his armpits and delibera

tely submerg ed. He said scena rios such as a

pot of water fall i n g, cr aw l i n g into tub him self, or be ing pla ced in the tub by another y oung child wer e implausible beca

use they wer e inconsistent with A.C.’s i n juries. The c hief medic al examiner for Travis County

also testified that the de ath was a homicide and that a

ppellant’s explanation of the child pulling a pot of

hot water on himself was inconsistent with the autopsy finding s. Testimony

reve aled that on the mor ning of J uly 28th, around 10 a
. m . , s h o rtly afte r the s calding occur

red, appellant called her husband. She then went to Elisa Romero, t he owner of appellant’ s duplex , to borrow some mone y . Romero, upon l ea rn ing of A.C.’s condition, g ave
a p p e l l a n t f i v e d o l l ar s f

o r g a s an d t o l d h e r t o c a l l an a m b u l an c e . D o m i n g o D i a z , w h o l i ve d w ith Romero, testified that Romero told appe llant to go t o t h e h o s p i tal. J uana L ucas, w ho lived in the
same c omplex as appe llant, testified that appellant came to her house a round 11 a.m. a sking f

or help.5

J uana asked appellant why she had not done any thing f or A.C. and told her

to take him to the doctor. Appellant said she did not know what to do be cause A.C. did not have Medica id. J uana told he r that the ho sp ita l do e s n ot c ha

rg e and of

fe re d to ca ll an a mbu lanc e , but ap pe lla nt i ns ist e d o n ta

kin g A. C. to a private doctor. Juana went with appe llant to the Family P ra ct i ce C linic on L amar and g ave appellant money

for g as and milk. When they arr ived at the c linic, the y wer e instructed to take the ba by to the ho sp ita l. Wo rk e rs fo r t he c lin ic on ly

br ie fl y saw A .C. wr a

pp e d in a bla nk e t. T he y

tol d appellant to take t h e ch i l d i m m ed i ately to the E.R. or else he could die. The y offe red to c all an ambulance but appellant insisted she would g o herse lf. She told the clinic staff that she knew w here Br acke nridg e Hospital was located. Appe llant then went bac k home, picked up he r husband a nd other c hildren, and w ent to St. David’s E.R.

Child P rotec tive Service s case worke r Carol Morin wa s assig ned to appellant’s case
. She sp ok e wi th a

pp e lla nt at th e ho sp ita l. A

pp e lla nt tol d he r that sh e re g ula rl y too k h e r c hil dr e n to East Austin Clini c and ha d taken them be fore to Bra ckenr idge Hospital. She said she wa s nursing her young est child and that Ana , another child, wanted to take a bath. Shortly afte r, appe llant went into th e b a th r o o m a

n d p u ll e d A
. C. o u t o f

th e w a te r . Sh e to ld

M o r in th a t A n a g o t i n to th e b a thtub with A.C. but that she was able to jump out. Appellant said A.C. looked a little red but wa s fine; he
was laug hing and playing, so she g ave him a bottle a nd he slept. Morin also spoke with appe llant’s f o u r o th e r c h il dr e nan d

r e c o mm e n d e d

th e y b e r e mo v e d f

r o m a p p e ll an t’ s c u s to dy . T e r e s a Ro dr igu e z, another case worke r, vi sited appellant in jail to update her on her children. Appe llant told R odrig uez that she hoped she would g et probation, that she was a g ood person, e x cept that on the da y A.C. was injured, “the devil g ets in.”6 Detec tive Sanchez ca lled Ker ry Scanlon of the Austin P olice De partment homicide division afte r A.C. was broug ht to the hospital. S canlon a nd Detec tive Robert Merr ill went to the duplex where a

ppellant lived to look for the pot and c o nduct a “ burn kit test” on the water in the residenc e, par

ticularly in the bathtub. Scanlon testified that shortly afte r A.C.’s death, appellant’s three oldest children we re inter viewed at t h e C hildren’s Advoc acy Center. The interviews we re conducte d in Spanish and videotaped, t hen translated i nto Eng lish summaries. Scanlon lear ned that the videotape s were missing when the defense requested them in prepa ration for trial. He w as aw are of what the children sa id in the videos due to the translation, but he did not view the videos himself. Ac c or din g to t

he su mma

ry , the int e rv ie we r tur

ne d the vid e ota

pe s ov e r t o a

fo rm e r c hil d a

bu se un it de te c tiv e wh o wa s no long e r wit h th e de pa

rtme nt a nd c ou ld n ot b e c on ta c te d. Sc anlo n d e c ide d to have the children r e-inter viewed in Ma

rch 2005 shor

tly afte r lea

rni n g that the videotape s
wer e missing. At trial, appel l an t ’s ch i l dre nt es t i fi ed
. I nt h ei r i n t er v i ew s an d d u ri n g t ri al , t h e c h i l dren
ne ve r imp lic a te d a

pp e lla nt. Th e y g a ve va

ri ou s sto ri e s a s to h owA. C. g ot b ur ne d; i n th e int e rv ie ws , Ana sa id A.C. burned himself, at trial, she implicated her brother and then he r father; Jos e said Ana was in the bathroom with A.C.; J ennife r t estified that J ose turned on the hot water , but remembe red telling the pr osecutor that Ana put A .C. in water
. The intervie wer s, both for the orig inal interviews and those c onducted a fter Sca nlon learne d the videotape s were missing, t estified that all the c hildren g ave c onflicting stories as to what ha ppened. Ap p el l an t testified on her own beha lf. She testified that on the morning of J uly 28, 2003, she wa s at home with A.C. and her four children and was in the bedroom nursingher7

y oung est when Jennifer told her that Ana wa s in the bathroom with A.C. She testified that she
wa lke d in to t

he bathr oo m aro un d 9 :30 a .m. or 10 :30 a .m. and sa w A. C. in the tub ; sh e pu lle d h im out and splashed c old water on him. After c alling he r husband a nd ly ing to him about how the ba by had bee n burned, she went to her landl o rd an d b o rrowe d g as money . She then drove to J uana’ s house and a sked for

money to take A.C. t o t h e hospital. Appellant a sked Juana what to do, and J uana t o l d appellant she knew of a doctor. Appe llant claimed that she did not g o straig ht to the hospital beca

use she did not t hink they would car e for

a baby without Medicaid. Instead, she w ent to the Family

Clini c ar ound noon but was turned a way and told to go to the hospital. Appe llant te sti fi e d th a t sh e the n w e nt b a c k to he r h ou se to l oo k f or A. C.’ s M edi cai d card . A ft e r f ind inghis social sec urity

car d, her husba

nd drove he r to the hospital. She admitted ly ing a bout how A.C. g ot burned be cause she wa s scar ed her children w ould be taken a way . She testified that the true story was that he r daug hter ha d burned the baby
. SUF F ICIENCY OF THE E VIDENCE We reviewthe leg al suffic iency of t he evidence by viewing the evidenc e in the lig ht most favora

ble to the ver dict to determine w hether any rational tr i er o f fa ct could have found the essential ele ments of the cr ime bey ond a re asonable doubt. Kin g v . S tate , 2 9 S. W.3d 556, 562 (Tex. Crim. App. 2000). Although our analy sis considers all the evidenc e pre sented at trial, we may not re-w eig h the evidenc e and substitute our judg ment for that of the fa ct-finde r. Id. at 562. I n a fa c tua l su ff

ic ie nc y re vie w, we vie w a ll o f t he e vid e nc e in a

ne utr a l li g ht a

nd wi ll
se t th e ve rd ic t a sid e on ly

if the e vid e nc e is so we a k tha t the ve rd ic t is c le arl y wr on g and manif e stl y unjust or the conflicting evidenc e is ag ainst the g reat weig ht and pre ponder an ce of the evidenc e.Appellant does not disput e that she had a lega l duty to provide A.C. with medica l car e as 1 he wa s under he r ca

re. 8 W ats on v . S tat e , 2 04 S.W. 3d

40 4, 41 4- 15 (T e x. Cr im. Ap p. 20 06 ); J oh ns on v . S

tat e , 23 S.W .3d 1, 10-11 (Te x . Crim. App. 2000). Our e valuation may not intrude upon the fa ct-finde r’s role as the sole judge of the weig ht a

nd cre dibilit y acc orded a

ny witness’s testimony
. Cai n v . S tat e , 958 S.W .2d 40 4, 40 7 ( Te x. Cr im. Ap p. 19 97 ). What w e ig ht t o b e g ive n c on tradi cto ry te sti mon ia l e vid e nc e is within the sole province of the fa ct-finde r bec ause it turns on an e valuation of c redibil ity and demea nor. Id. at 407-09. We must defer appropr iately

to the fac t-finder

to avoid substitut ing our judgme nt for its judgme nt. See J ohnson, 23 S.W .3d at 12. Under the Texas Penal Code, a pe rson commits an offe nse i f, b y her a cts, she i n t en t i o n all y , knowing ly , rec klessly , or with criminal neg lige nce c auses bodily injury to a child. Tex. P e n a l Co d e A n n . § 2 2
. 0 4 ( a ) ( 3 )
. A p e r s o n a ls o c o mm it s an o f f e n s e if , b y h e r o mi s s io n , she intentionally , knowing ly , rec klessly , or with criminal neglig ence cause s bodily injury to a child and either has a lega l or st atutory duty to act or has assumed car e, custody , or control of t he child. Id. § 22.04(b). I njury

to a child is a “r esult of conduc t” offe nse. Johnston v. State, 150 S.W .3d 630, 1 634 (Tex. App. —Austin 2004, no pet.). This means that the c ulpable mental state relates not to the
natur e or c ir c umstan ces surr ound ingthe c ha rg e d c on du c t, b ut t o th e re su lt o f t hat c on du c t. Pa tte rso n v . S

tat e , 4 6 S. W.3 d 2 94 , 3 01 (T e x. Ap p. —F or t Wor th 20 01 , no pe t.)
. Th e a c c us e d mu st have a cted with the r equisite culpable mental state to ef fec t the result. See id. Th e thi rd c ount o f t

he ind ic tme nt c ha

rg e d a pp e lla nt w ithkn ow ing ly

c a us ingbo dil y injury to A.C., by

omission, by

failing to take him to a medica l facilit y in a timely

manner when appellant kne w he ha d been se riously bu rned. A person knowing ly cause s a re sult of her c onductKn ow le dg e c an b e inf e rr e d b y the fa c t- fi nd e r f

ro m th e de fe nd ant’ s a c ts, wo rd s, or c on du c t. 2 Ha rt v . S tat e , 89 S.W .3d 61, 64 (Tex. Crim. App. 2002). A p e rs on

intent io nally

c a us e s a re su lt o f h e r c on du c t w he n it is h e r c on sc iou s d e sir e to 3 c a use t he re su lt. Te x. Pe na l Co de Ann. § 6 .0 3( a ) ( Wes t 20 03 ). I n c on tr a st, a pe rs on kn ow ing ly cause s a re sult of her c onduct when she is awar e that her conduct is re asonably

cer tain to cause the result. Id. § 6.03(b). 9 when she is awar e that her conduct is re asonably

cer tain to cause the re sult. Tex . Penal Code Ann. § 6.03(b) (West 2 0 0 3 ). Thus, the State had to prove more than tha t appellant fa iled to provide 2
me dic a l care fo r A. C.’ s bur ns ; the State ha d to pro ve that app e lla nt ac te d “ kn ow ing ly ” by

fa ili ngto
a c t w i t h a n aw ar en es s t h at a la ck o f pr o p er m ed i ca l ca re wa s re as o n ab l y ce rt ai n t o i n j u re A. C
. In other wor ds, t h e fi rst issue is causation—that A.C. suffe red a serious bodily

injury as a r esult of appell an t ’s p ro l o n gedfa i l u re t o s ee k m ed i ca l at t en t i o n . T h e s ec o n d i s s u e i s m en s re a— t h at ap p el l ant knew that a

lack of or dela y in seeking proper

medical c are was re asonably cer tain to injure A.C. Ap pe lla nt a rgue s o n a

pp eal th at th e e vid e nc e wa s b oth le g a lly and fa c tua lly insuf fi c ie nt t o e sta

bli shhe r guil t of

the of fe ns e of inj ur y to a c hil d b y omi ssi on . App e lla

nt f ir st
c la ims the e vid e nc e is ins uf fi c ie nt b e c a

us e (1 ) i t w a s n ot h e r c on sc iou s o bje c tiv e or de sir e to c a

us e serious bodily

injury throug h the small delay i n g etting A .C. medical ca re, a nd (2) she soug ht medical c are for A.C. within two and a half hours of the sca lding incide nt. Howeve r, the State wa s not require d to prove that appellant had a conscious objective or desire to c ause se rious bodily injury throug h delay

ing me dical tre atment. Appellant wa s indicted and c onvicted of injury to a child by omission wit h a “know ing,” not an “intentional,” me ns rea . Fur ther, the evidenc e re veals that the 3 in c i d e n t o c c u r

r e d s h o rt l y b e f

o r e 1 0 a . m . , b u t a

p p e l l an t d i d n o t ar

r i v e a t S t
. D a v i d ’ s E
. R. u nti lAppellant testified that the inc ident occur red at “10:30 [a.m.] , 9 : 30 [a.m] ” and that she 4 arr ived at the E.R. at 1:30 p.m. She also testified that she c alled her husband rig ht after A. C. was burned a nd ag ree d that rec ords indicate she called him at 10:09 a.m. 10 around 1:30 p.m. Thus, at lea st three hour s passed be tween the incident and a ppellant’s obtaining
me dic a l he lp f

or A. C. 4 Appellant also c halleng es both t h e evidenc e to prove causation (that A.C. suffer ed bodily injury b ec au se appe llant failed to provide him timely medical c are ) and me ns rea (that appellant wa s awa

re that her omission would cause se rious bodily injury). As no te d a

bo ve , th e State ha d to pro ve mor e tha n that A.C. su ff

e re d a ser iou s b od ily injury beca use appe llant failed to provide him medica l car e. In addition, the State had to prove that
a pp e lla nt w a s awa

re that he r o mis sio n in

ob ta ini ngme dic a l c are wo uld be re a so na

bly c e rt a in t o c a

us e injury
. Du se k

v . S tate , 978 S.W .2d 129, 134 (Tex. A pp —Austin 1998, pet ref ’d). The evidenc e at trial was suff

icient to support the finding that appellant’ s delay in providi n g A. C. medical ca re
cause d his death. Dr. Jackson testified that the injuries wer e older than an hour and that the chanc es of re suscitating a patient afte r an hour are diminis hed. Simi larly , Dr. Ke rr testified that the delay in s e e kin g c are fo r A .C. c a us e d ir re ve rs ibl e ha

rm and c on tr ibute d to his de a th. He te sti fi e d th a t A .C. was in i rr ev er s i ble shock due to the delay and noted that if A .C. had bee n broug ht to the hospital rig ht away , he would have had per manent dama g e but would have survived. Over all, Ker r believe d tha t th e s u s ta in e d la c k o f r e s u s c it a ti o n d u e to th e d e la

y in tr e a tm e n t le d to A
. C. ’ s org an fa ilure and his death. Dr. Ke rr a lso tes t i fi ed that an adult who saw A.C. soon af ter he had bee n burned
wo uld kn ow(1 ) t

hat he ha d b e e n ser iou sly burn e d, (2 ) that he n e e de d to be take n to a me dic a l f a c ili ty in a tim e ly mann e r, and

(3 ) that if he we re no t take n to a fa c ili ty to r e c e ive tim e ly

me dic a l c a re , it11

would be re asonably cer

tain that he would suffe r serious bodily injury . Simi larly , when a ppellant went to s ee J uana, Juana e x presse d conce rn about why appellant ha d not done something y et and
su g g e ste d a

pp e lla nt c a ll a n ambu lanc e , ass ur ing he r that eve n with ou t a Med ic a id ca rd , A .C. wo uld be tr e a te d at th e ho sp ita l. T he F a mil y Clin ic sta ff

wo rk e rs te sti fi e d that the y tol d a pp e lla nt t hat A .C. could die if not treated soon; they even of fer ed to call an ambulance f or appe llant, but she declined. Ap pe lla nt k ne w a bo ut A .C. ’s inj ur ie s b ut f a ile d to se e k me dical ca

re wh e n s he kn e w h e ne e de d it beca use A.C. lacke d insurance . Appellant knew what 911 was for and how to dial it and ha d a phone avai la b le
. Sh e a ls o kn e w w h e r e B r a c k e n r id g e H o s p it a l w a s lo c a te d
. A p p e ll an t g a v e in c o n s istent statements to police a b o u t wh y she fa iled to ge t A.C. imm ediate me dical tre atment—no one wa s there to watch he r other children, A.C. did not have Medic aid, A.C.’s father told her not to ca ll an ambulance , and she wanted to g o to a private doctor. The jury had suff icient basis for c oncluding that a pp e lla nt’ s a c tio ns ill us tr a te that she kn e w the se ri ou sn e ss o f A .C. ’s inj ur ie s and that im me diate medical attention was nec essar y . I n h er b rief, a

ppellant claims that her

delay was not leng thy

enoug h to uphold the conviction. She cites to ca ses in w hich courts upheld convictions for injury to a child by omission based on a leng thy

delay in obtaining medic al treatment, and to one ca se in which the c ourt reve rsed a convic tion. See P atterson, 46 S.W .3d at 294 (a ppellant could hea

r child’s scr ea m s and did not
c a ll 911 fo r mor e tha

n 6 ho ur s) ; Tho rto n v . S

tat e , 994 S.W .2d 845 (Tex. App.—For t Worth 1999, pet. re f’d) (blood flow cut of f for sever al day s befor e appe llant sought medic al treatment). Howe ver, the se c a se s are dis tin g uis ha ble . App e lla

nt t oo k o ve r t

hr e e ho ur s to g e t to St. Da vid ’s E. R. d e sp ite repe atedly

being told that the baby neede d im m ed iate attention and that she should call an12

a mb u la n c e . U n li k e in Johnson or Dusek, appellant’ s delay cause d further

injury to the child as Dr. Ke rr testified the prolong ed dela y sent A.C. i n t o irreve rsible shock. Se e J oh ns on v . S

tat e , 121 S.W .3d 133 (Tex. App.—For t Worth 2003, pet. ref’d) (dela y due to def

endant dr iving instea d of c a lli ng91 1 n ot u

nr e a so na ble a s sh e ha d ju st m ov e d f ro m c ity whe re it was fa ste r t o d ri ve to ho sp ita l in ste a d o f w a iti ngfo r a mbu lanc e , a

nd do c tor te sti fied that

blo od los s th a t c a

us e d d e a th
wo uld no t ha ve be e n r e a dil y

a pp are nt) ; Dusek, 978 S.W .2d at 133 (def endant’ s conviction reve rsed beca use no evide nce that defe ndant’s failure to se ek medica l car e ca used broke n leg or ag g ravated the seriousne ss of injury

). While the lack of me dical car e did not cause the burn, sig nificant e vidence showed that the bur

n resulted f

rom a for cible immersion and that the de lay in ge tting prope r medica l
car e ag g ravated A.C.’s injury and ultimately

led to his death. F urthermor e, the e vidence shows that appellant wa s awa

re of A.C.’s serious m edica l condition, his need for immediate medic al ca re, a nd that without immediate m edica l assistance , A.C. could die. See J ohnston v. State, 150 S.W .3d 630, 634 (Tex. App.—Austin 2004, no pet.) (defe ndant’s intent in delay ing me dical ca

re to hide a

buse, rathe r than c ause ha

rm, also showed ne ed to take vic tim to hos pital). Vi e wi ngthe e vid e nc e in the lig ht mos t fa vo ra ble to the ve rd ic t, the e vid e nc e is l e g a lly
su ff ic ie nt t o s up po rt

the jur y ’s ve rd ic t. M or e ov e r, wh e n v ie we d in a ne utr a l li g ht, th e e vid e nc e is also fac tually

suffi ci en t . Resolution of any inconsistencies in testimony is left to the fac t-finder
. Cai n , 958 S.W .2d at 408. Simi larly , contra dictions betwee n witnesses’ state ments are resolved by the fa ct-finde r’s de terminat io n o f c r e d ibilit y . Id. Acc ording ly , the evidenc e supporting the judg ment is not so weak as to be manifestly unjust and clearly wrong . There fore , we hold that the evidence is leg ally and fa ctually

sufficie nt to support the judgment a nd we ove rrule points one a nd two.13 LOST E VI DE NC E In h e r t h i r d p o i n t , a

p p e l l an t c l a i m s s h e w a s d e n i e d d u e c o u r s e o f l aw u n d e r

art i c l e I,
se c tio n 1 9 o f t

he Te xas C on sti tut ion

wh e n th e State los t th e vi deo ta pe s o f t he int e rv ie ws wi th
a pp e lla nt’ s c hil dr e n ma de the da y a ft e r A .C. die d. Ap pe lla nt ar g ue s tha t alth ou g h she is una ble to pr ov e the State a c te d in

ba d f a ith , th e los s o f t

he e vid e nce is no ne the le ss s o c ri tic a l to the de fe ns e as to make the trial fundame ntally unfair. The State has a duty to preser ve fa vorable , materia l evidence , which is evidenc e that (1) ha s an exculpatory

value that is appa

rent be fore the evidenc e is destroy ed, and ( 2) is of such a
natur e that th e de fe nd ant w ou ld b e un a ble to obt a in co mpa

ra ble e vid e nc e by any oth e r r e a so na bly available means. Calif

ornia v. Trombetta, 46 7 U .S. 47 9, 48 8- 89 (1 98 4) ; J ac k so n v . S tat e , 50 S.W .2d 57 9, 58 8- 89 (T e x. App .— Fort Wor th 2 00 1, pe t. r e f’ d) . T he re fo re , a de fe nd ant m

us t de mon str a te the lost evidence is both favora ble and mate rial to her c ase. Jack son, 50 S.W .2d at 589. A showing t h at t h e lost evidenc e mig ht have be en fa vorable does not satisfy

the mater iality

standard. I

d. In addition, the acc used must show t h at t h e S t at e ac ted in bad fa ith when it failed to pre serve the evidenc e in orde r to show a violation of due proce s s or due c ourse of law. Id. (citing Arizona v. Y

oungblood , 4 88 U. S. 5 1, 58 (1 98 8) ); Bu rk e v . S tat e , 930 S.W .2d 230, 236 (Tex. App.—Houston [14t h Dist.] 1996, pet. re f’d)
.

Ap pe lla nt n ote s th a t th e vid e ota

pe s w e re po te nti a lly

e x cul pat ory

e vid e nc e , b ut a showing that lost evidence might have be en favor able is not sufficie nt. See J ackson , 50 S.W .2d at 58 8- 89 . App e lla

nt m us t make an af

fi rm a tiv e sh ow ing that the e vid e nc e wa s favo ra ble and ma te ri a l. Ga mb oa v . S

tat e , 774 S.W .2d 111, 112 (Tex. App.—For t Worth 1989, pet. ref’d)
.See State v. Fe rguson , 2 S.W. 3d 91 2, 91 7 ( Te nn . 1 99 9) (f ind ingtha t pr ov ingba d f

a ithis 5 extremely difficult). 14 Fur thermore , compar able e vidence was available. Written s u m m ar ies of the vid e ota pe s we re ma de and pr ov ide d to a pp e lla nt. Th e int e rv ie we rs and

the c hil dr e n w e re a va ila

ble for que stioning and the children w ere re- interviewe d. Appellant cla ims the videotapes could have
e xcu lpate d h e r b e c a

us e no ne of

the c hil dr e n im

pli c a te d he r i n A .C. ’s sc a ldi ng . H ow e ve r, thi s sa me information was a

vailable in the written summaries of the first interview s and wa s elicited at trial throug h the testimony

of t he children and the inter viewer s. Se e He be rt v . S

tat e , 836 S.W .2d 252, 254 (Tex. App.—Houston [1s t Dist.] 1992, pet. ref’d) ( compar able e vidence available in the form of written transcr ipt a nd child’s previous testimony , and child and interv i ew er were available for que stioning).

Additionally , appellant has not demonstrated that the State ac ted in bad fa ith. I ndeed, appellant a cknowledg es that she c annot prove bad fa ith on the part of the State. Howeve r, appe llant argues that it is often impractica l for a de fenda nt to prove bad faith, and the ref ore, that some states are moving a

way from the Y

oungblood

standard a

nd finding that their own state c onstitut ions provide strong er due proce ss protections than the United States Consti tution. Other than citing case s that employ

a bala ncing test rather

than the Y

oungblood standard, a

pp el l an t h as offe red no explanation of how the protec tion offer ed by the Texas Constit ution differs f rom the protec tion g ua ra nte e d b y the Un ite d St a te s Co ns tit uti on . A mon g the se case s, mo st r e la x the ba d- fa ith
r e qu i r e m e n t

—t h e h ar d e s te l e m e n tt o e s t a b l ish —if the def

endant c an prove that the loss of the 5See, e .g., Ex parte Gingo , 6 0 5 S o . 2 d 1 2 3 7 , 1 2 4 1 (A l a. 1 9 9 2 ) ( ad o p t i n g Y oungblood wi th 6 a “ Ste ve ns ” e xce pti on : no sh ow ingof ba d fa ith re qu ir e d if the los s o r d e str uc tio n o f t

he e vid e nc e is so c ri tic a l to the de fe ns e a s to make a c ri min a l tr ia l f

un dame nta lly

un fa ir ); Thorne v. De

partment of Pu b. Sa fe ty , 7 74 P.2 d 13 26 , 13 30 -3 1 ( Al a sk a 19 89 ) ( ba lanc ingte st) ; W ill iam s v . S

tat e , 50 P.3d 11 16 , 112 6 (N e v. 20 02 ) (d e fe nd ant m us t pr ov e ba d f

a ithor un du e pr e

jud ic e ); Sta te v . Ch e ese bo ro , 5 5 2 S
. E
. 2 d

3 0 0 , 3 0 7 (S
. C
. 2 0 0 1 ) ( ad o p t i n g Y oungblood wi th a

n e xce pti on if de fe nd ant c ann ot o bta in other e vidence of compa

rable value)
. 15 evidenc e is so critica l to the defe nse as to make the trial fundamentally unfair. Re gardl e ss,

6
co mp ar a b le e v id e n c e w a s a v a il a b le , an d a

p p e ll an t h a s n o t s h o w n th a t th e lo s t e vidence was exculpatory . We overrule appellant’ s third point.
CO NC LU SION We a ff ir m th e jud g me nt o f t

he tr ia l c ourt
.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: May

29, 2008 Do Not Publish