1 

COURT OF CRIMINAL APPEALS 

PD-____-15 

Jonathan Baker, Appellant, 

v. 

State of Texas, Appellee. 

On Discretionary Review from No. 12-14-00185-CR 

Twelfth Court of Appeals 

 

On Appeal from the 283rd Judicial District Court 

Dallas County, Texas 

Cause Number F13-00422 

Petition for Discretionary Review 

 

Michael Mowla 

445 E. FM 1382 #3-718 

Cedar Hill, Texas 75104 

Phone: 972-795-2401 

Fax: 972-692-6636 

michael@mowlalaw.com 

Texas Bar No. 24048680 

Attorney for Appellant 

Oral Argument Requested 

PD-0966-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/27/2015 12:00:00 AM

Accepted 7/28/2015 2:28:38 PM

ABEL ACOSTA

CLERK
2 

I. Identity of Parties, Counsel, and Judges 

Jonathan Baker, Appellant 

Michael Mowla, attorney for Appellant on appeal and on discretionary review 

Julie Doucet, Attorney for Appellant at Trial 

Stephen Duplantis, Attorney for Appellant at Trial 

State of Texas, Appellee 

Susan Hawk, Dallas County District Attorney, Attorney for Appellee 

Lori Ordiway, Dallas County Assistant District Attorney, Attorney for Appellee 

Lisa Smith, Dallas County Assistant District Attorney, Attorney for Appellee 

Anna Kubalak, Dallas County Assistant District Attorney, Attorney for Appellee 

Reynie Tinajero, Dallas County Assistant District Attorney, Attorney for State of 

Texas 

Shawnkeedra Houston-Martin, Dallas County Assistant District Attorney, Attorney 

for State of Texas 

Hon. Rick Magnis, Presiding Judge of the 283rd Judicial District Court 
3 

II. Table of Contents 

I. Identity of Parties, Counsel, and Judges .......................................................... 2

II. Table of Contents ............................................................................................. 3

III. Table of Authorities ......................................................................................... 5

IV. Appendix Index ............................................................................................... 8

V. Statement Regarding Oral Argument .............................................................. 9

VI. Statement of the Case and Procedural History .............................................. 10

VII. Grounds for Review ....................................................................................... 13

VIII. Argument ....................................................................................................... 14

1. Ground for Review One: The court of appeals erred when it 

found that the evidence is legally sufficient to show that 

Appellant intentionally or knowingly caused the death of the 

CW because although prior to being taken to the hospital by 

Appellant the CW was last in the care of Appellant, the State 

failed to prove the manner and means by which the injury 

occurred. A fatal closed-head injury to a child while under the 

care of a defendant is not all that the State should have to prove 

beyond a reasonable doubt to show that the CW’s death was 

caused by the defendant’s conduct if the manner and means by 

which the injury occurred is not proved. ....................................................... 14

i. Introduction ......................................................................................... 14

ii. There are many examples of where a young child has 

been killed or injured while believed to be in the custody 

of a sole adult caretaker, and the manner and means may 

not be clear. ......................................................................................... 16

iii. Why is the State not required to prove beyond a 

reasonable doubt what happened and how the force was 

used? .................................................................................................... 18

iv. The State cannot meet the requirements of Texas Penal 

Code § 6.02(a) if the State fails to identify the conduct 

alleged to have caused the injury or death .......................................... 22

IX. Conclusion and Prayer ................................................................................... 30

X. Certificate of Service ..................................................................................... 31
4 

XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................ 32
5 

III.Table of Authorities 

Cases

Allen v. State, 249 S.W.2d 680 (Tex. App. Austin 2008, no pet.) ........................... 21 

Baker v. State, 12-14-00185-CR, 2015 Tex. App. LEXIS 6642 (Tex. 

App. Tyler, June 30, 2015) (memorandum opinion) .............................. 10, 12 

Bearnth v. State, 361 S.W.3d 135 (Tex. App. Houston [1st Dist.] 

2011, pet. ref.) ................................................................................................ 16 

Castro v. State, 2015 Tex. App. LEXIS 2399, 03-12-00730-CR (Tex. 

App. Austin Mar. 13, 2015, pet. filed) (not designated for 

publication) .................................................................................................... 18 

Crisp v. State, No. 04-09-00580-CR (Tex. App. San Antonio Mar. 16, 

2011, pet. ref.) (not designated for publication) ............................................ 18 

Duren v. State, 87 S.W.3d 719 (Tex. App. Texarkana 2002, pet. 

struck) ............................................................................................................ 17 

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) .............................. 17 

Garcia v. State, 16 S.W.3d 401 (Tex. App. El Paso 2000, pet. ref.) ....................... 17 

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ........................................ 19 

Goka v. State, 657 S.W.2d 20 (Tex. App. Houston [1st Dist.] 1983, 

pet. ref.) .......................................................................................................... 28 

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) ........................... 21 

Hasel v. State, 12-14-00101-CR, 2015 Tex. App. LEXIS 6091 (Tex. 

App. Tyler June 17, 2015, no pet. hist.) (memorandum opinion) 

(not designated for publication) ..................................................................... 22 

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) ................................ 17 

Herrera v. State, 367 S.W.3d 762 (Tex. App. Houston [14th Dist.] 

2012, no pet.) ................................................................................................. 16 

Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002) ....................................... 29 

Jackson v. Virginia, 443 U.S. 307 (1979) ......................................................... 20, 22 

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) .................................... 28 

Johnson v. State, 673 S.W.2d 190 (Tex. Crim. App. 1984) .................................... 19 

Lee v. State, 214 S.W.2d 619 (Tex. Crim. App. 1948) .......................................... 21 
6 

Lewis v. State, No. 05-12-00844-CR (Tex. App. Dallas Jan. 6, 2014, 

pet. ref.) (memorandum opinion) (not designated for 

publication) .................................................................................................... 18 

Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2013) ......................................... 21 

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ...................................... 21 

Martin v. State, 246 S.W.3d 246 (Tex. App. Houston [14th Dist.] 

2007, no pet.) ................................................................................................. 15 

Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015) ........................................ 19 

Montgomery v. State, 198 S.W.3d 67 (Tex. App. Fort Worth 2006, 

pet. ref.) .......................................................................................................... 23 

Munoz v. State, 2009 Tex. App. LEXIS 6475, 08-07-00325-CR (Tex. 

App. El Paso 2009, no pet.) (not designated for publication) ....................... 16 

Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) ..................................... 29 

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ...................................... 16 

Roberson v. State, 2015 Tex. App. LEXIS 4735, 05-13-01416-CR 

(Tex. App. Dallas May 8, 2015, no pet.) (memorandum 

opinion, not designated for publication) ........................................................ 18 

Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008) ..................................... 22 

Stobaugh v. State, 421 S.W.3d 787 (Tex. App. Fort Worth 2014, pet. 

ref.) ................................................................................................................. 24 

Urbano v. State, 837 S.W.2d 114 (Tex. Crim. App. 1992) ..................................... 29 

Williams v. State, 294 S.W.3d 674 (Tex. App. Houston [1st Dist.] 

2009, pet. ref.) ................................................................................................ 17 

Williamson v. State, 244 S.W.2d 202 (Tex. Crim. App. 1951) .............................. 21 

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) ..................................... 29 

Statutes

Tex. Pen. Code § 19.02 (2011) ................................................................................ 11 

Tex. Pen. Code § 19.03 (2011) ................................................................................ 11 

Tex. Pen. Code § 6.02 (2011) .................................................................................. 22 

Rules

Tex. Rule App. Proc. 66.3 (2015) ............................................................................ 30 

Tex. Rule App. Proc. 68.11 (2015) .......................................................................... 31 
7 

Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 9, 13 

Tex. Rule App. Proc. 9.4 (2015) .............................................................................. 31 

Tex. Rule App. Proc. 9.5 (2015) .............................................................................. 31 
8 

IV. Appendix Index 

Baker v. State, 12-14-00185-CR, 2015 Tex. App. LEXIS 6642 (Tex. App. Tyler, 

June 30, 2015) (memorandum opinion) 
9 

V. Statement Regarding Oral Argument 

Should this Court grant this petition, Appellant requests oral argument. See 

Tex. Rule App. Proc. 68.4(c) (2015). Appellant believes that the facts and legal 

arguments are adequately presented in this petition. However, the issue presented 

in this case represents a recurring pattern that characterizes prosecutions in which a 

young child is killed or injured while believed to be in the custody of a sole adult 

caretaker. Therefore, should this Court determine that its decisional process will be 

significantly aided by oral argument, Appellant will be honored to present oral 

argument. 
10 

To The Honorable Judges of the Court of Criminal Appeals: 

 Appellant Jonathan Baker respectfully submits this petition for discretionary 

review: 

VI. Statement of the Case and Procedural History 

 This petition requests that this Court review the Memorandum Opinion and 

judgment of the Twelfth Court of Appeals in Baker v. State, 12-14-00185-CR, 

2015 Tex. App. LEXIS 6642 (Tex. App. Tyler, June 30, 2015) (memorandum 

opinion), in which the court of appeals affirmed Appellant’s conviction for Capital 

Murder. In this petition, Appellant will argue that the court of appeals erred when 

it found that the evidence is legally sufficient to show that Appellant intentionally 

or knowingly caused the death of the CW because although prior to being taken to 

the hospital by Appellant the CW was last in the care of Appellant, the State failed 

to prove the manner and means by which the injury occurred. Appellant will 

further argue that a fatal closed-head injury to a child while under the care of a 

defendant is not all that the State should have to prove beyond a reasonable doubt 

to show that the CW’s death was caused by the defendant’s conduct if the manner 

and means by which the injury occurred is not proved. 

This petition arises out of an appeal of a Judgment of Conviction by Jury 

entered and sentence imposed by the 283rd Judicial District Court of Dallas 
11 

County, Texas. (CR, 48-50).1 In an indictment dated July 19, 2013, the State 

alleged that Appellant committed Capital Murder under Texas Penal Code § 

19.03(a)(8) as follows: on or about December 8, 2011, in Dallas County, Texas, 

Appellant intentionally and knowingly [under Tex. Pen. Code § 19.02(b)(1)] 

caused the death of Joniah Baker (complaining witness, or “CW”), a person under 

ten years of age, by striking the CW with Appellant’s hand, a deadly weapon, and 

by striking the CW with and against an unknown object, a deadly weapon, the 

exact nature and description of which is unknown and unknowable to the grand 

jury. (CR, 8); See Tex. Pen. Code § 19.03(a)(8) (2011); See also Tex. Pen. Code § 

19.02(b)(1) (2011). The indictment further alleged that prior to the commission of 

this offense, on February 14, 2006, Appellant was finally convicted of the felony 

offense of Escape in Criminal District Court Number 4, in cause number F04-

21566. (CR, 8). 

 Appellant pleaded “not guilty,” and a trial was had before a jury. (RR3, 13-

14). 

 On June 3, 2014, Appellant was convicted of Capital Murder under Texas 

Penal Code § 19.03(a)(8). (RR7, 69). On the same day, Appellant was sentenced 

to life in the Texas Department of Criminal Justice without the possibility of 

 

1 The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s 

Record, which is seven volumes. The Clerk’s Record is cited as “CR” and followed by the page 

number, and the Reporter’s Record is cited as “RR” followed by the volume number and page 

number. 
12 

parole. (RR7, 70; CR, 48-50). Appellant was not fined, and was ordered to pay 

costs of court of $264.00. (CR, 48). 

 Appellant appealed the judgment of conviction and sentence to the Twelfth 

Court of Appeals. On June 30, 2015, the Court of Appeals affirmed the judgment 

of conviction and sentence. See Baker v. State, 12-14-00185-CR, 2015 Tex. App. 

LEXIS 6642 (Tex. App. Tyler, June 30, 2015) (memorandum opinion). This 

petition for discretionary review follows. 
13 

VII. Grounds for Review 

Ground for Review One: The court of appeals erred when it found that the 

evidence is legally sufficient to show that Appellant intentionally or knowingly 

caused the death of the CW because although prior to being taken to the hospital 

by Appellant the CW was last in the care of Appellant, the State failed to prove the 

manner and means by which the injury occurred. A fatal closed-head injury to a 

child while under the care of a defendant is not all that the State should have to 

prove beyond a reasonable doubt to show that the CW’s death was caused by the 

defendant’s conduct if the manner and means by which the injury occurred is not 

proved. 

Because the ground for review involves a matter of legal sufficiency, the 

entire record on appeal must be reviewed. Appellant provides a full summary of 

the facts over a span of 20 pages in the Appellant’s Brief (see pages 14-34), and 

respectfully directs this Court’s attention to those facts. See Tex. Rule App. Proc. 

68.4(f) (2015). 
14 

VIII. Argument 

1. Ground for Review One: The court of appeals erred when it found that 

the evidence is legally sufficient to show that Appellant intentionally or 

knowingly caused the death of the CW because although prior to being 

taken to the hospital by Appellant the CW was last in the care of 

Appellant, the State failed to prove the manner and means by which the 

injury occurred. A fatal closed-head injury to a child while under the 

care of a defendant is not all that the State should have to prove beyond 

a reasonable doubt to show that the CW’s death was caused by the 

defendant’s conduct if the manner and means by which the injury

occurred is not proved. 

i. Introduction 

 This case presents a recurring pattern that characterizes prosecutions where a 

young child has been killed or injured while believed to be in the custody of a sole 

adult caretaker. This pattern consists of the following: 

(1) the child suffers injuries that are deemed to unlikely have been selfinflicted or the result of an accident; 

(2) the approximate time and location where the injuries occurred is alleged 

through expert testimony, with a short “window of opportunity” assigned by the 

experts; 

(3) it appears that the injuries are the result of some traumatic force, perhaps 

repeated, but the exact measure or type of force or instruments used cannot be 

identified. As to this factor, although a medical expert often uses the word 

“intentional” to describe the manner in which the force was applied, often “non-
15 

accidental” is meant. See Martin v. State, 246 S.W.3d 246, 260 (Tex. App. 

Houston [14th Dist.] 2007, no pet.); 

(4) the defendant does not disclaim being solely responsible for the care of 

the child right before the child is discovered to appear “not right,” and offers an 

explanation about the injuries that seems insufficient or incomplete on its face, and 

which may change over time. As a result, inconsistencies or variances give rise to 

doubt about the veracity of the explanation, especially when experts provide 

opinions about likely causes for the injuries. Further, while the explanation may 

suggest the injuries started at another time or were inflicted by another person, or 

the damage progressed in manner different than theorized by the State’s expert, no 

alibi defense is possible; and 

(5) there may be evidence of additional injuries not attributed as causing the 

result for which the defendant is being placed on trial, but still considered to show 

that the defendant had a propensity for improper or abusive conduct toward the 

child or other children. 

Many cases involving child-victims are tried on indictments that allege only 

that “something happened” and that the child died. The State succeeds in obtaining 

a conviction by: (1) offering evidence that the defendant was “there”; and (2) 

asking the jury to infer the defendant must have been responsible for the death 

because that is the only “plausible explanation” for its occurrence. 
16 

The State also often succeeds by presenting evidence of a brutal mechanism 

of death inflicted, which furthers the State’s ability to prove beyond a reasonable 

doubt without accounting for intent or knowledge on the part of the defendant. See, 

e.g., Patrick v. State, 906 S.W.2d 481, 487-488 (Tex. Crim. App. 1995); Munoz v. 

State, 2009 Tex. App. LEXIS 6475, 08-07-00325-CR (Tex. App. El Paso 2009, no 

pet.) (not designated for publication) (Expert testimony showed that the child was 

likely swung with great velocity, causing the child’s head to strike an object with 

great force, and the cause of death was a “tremendous” and “vicious and violent” 

blow to the head). 

ii. There are many examples of where a young child has been killed 

or injured while believed to be in the custody of a sole adult 

caretaker, and the manner and means may not be clear. 

There are many examples of this recurring pattern of where a young child 

has been killed or injured while believed to be in the custody of a sole adult 

caretaker, and in which the manner and means of the death or injury was not clear: 

Herrera v. State, 367 S.W.3d 762 (Tex. App. Houston [14th Dist.] 2012, no pet.) 

(Expert opined that injuries were “consistent with” several possible use-of-force 

scenarios); Bearnth v. State, 361 S.W.3d 135, 141 (Tex. App. Houston [1st Dist.] 

2011, pet. ref.) (The defendant was the only adult in the house at the time the 

experts believed the injury could have taken place, and the jury could have viewed 

the defendant's changing explanations as evidence of guilt); Williams v. State, 294 
17 

S.W.3d 674, 683 (Tex. App. Houston [1st Dist.] 2009, pet. ref.) (Evidence 

sufficient because although the defendant was not seen harming the child and was 

not the only person with access to the child at the time of the injury, (1) the 

defendant admitted to being alone with the child at several periods during the time 

when injury occurred, and (2) expert testimony provided that the head injuries that 

caused the child’s death could not have been inflicted in any of the ways the 

defendant offered as explanation, but instead must have occurred by violent 

shaking and physical abuse by an adult); Duren v. State, 87 S.W.3d 719, 726 (Tex. 

App. Texarkana 2002, pet. struck) (The jury was free to reconcile any conflicting 

testimony regarding the amount of force required to inflict injuries in favor of the 

testimony that suggested such enormous force was required that anyone inflicting 

it on a child ‘must know’ that death is reasonably certain to result); Garcia v. State, 

16 S.W.3d 401, 405 (Tex. App. El Paso 2000, pet. ref.) (The evidence was 

sufficient because the defendant was the sole person with access to the child during 

the time that the expert opined that the child sustained the fatal injuries); 

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) (The defendant 

admitted to killing the child, but claimed that his death was an accident. The 

defendant later buried the child); Writ of habeas corpus granted and remanded by

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (During writ 

hearing, relying on new developments in biomechanics, six expert witnesses 
18 

testified that the type of injuries that the could have been caused by an accidental 

short fall onto concrete); Roberson v. State, 2015 Tex. App. LEXIS 4735, 05-13-

01416-CR (Tex. App. Dallas May 8, 2015, no pet.) (memorandum opinion, not 

designated for publication) (The defendant was the “only person” who could have 

inflicted the injuries because the defendant was the last person who was with the 

child); Castro v. State, 2015 Tex. App. LEXIS 2399, 03-12-00730-CR (Tex. App. 

Austin Mar. 13, 2015, pet. filed) (not designated for publication) (Evidence showed 

that the defendant was “more physically aggressive” than he had admitted); Lewis 

v. State, No. 05-12-00844-CR (Tex. App. Dallas Jan. 6, 2014, pet. ref.) 

(memorandum opinion) (not designated for publication); Crisp v. State, No. 04-09-

00580-CR (Tex. App. San Antonio Mar. 16, 2011, pet. ref.) (not designated for 

publication) (proof of defendant’s sole access at time child suffered some form of 

blunt force trauma to the head found sufficient to meet State’s burden).

iii. Why is the State not required to prove beyond a reasonable doubt 

what happened and how the force was used? 

Although the State may argue that it is difficult in these cases for it to prove 

beyond a reasonable doubt what exactly happened and how the force was used, 

considering that defendants accused of these crimes often receive life sentences 

(such as Appellant), this Court should questioned why the State is not required to 

do so. This issue is especially appropriate where a particular culpable mental state 
19 

must be proved. If the State is merely required to prove the defendant was present 

and failed to offer a plausible statement about what role he played, then it is the 

defendant’s silence or poor attempt to explain an occurrence that is used to 

determine his guilt. 

This Court has held that the jury is entitled to disregard the defendant’s 

alternative explanations for what caused the death cannot “mean that the missing 

elements of the charged offense are supplied by this rejection.” Johnson v. State, 

673 S.W.2d 190, 196-197 (Tex. Crim. App. 1984), overruled on another ground by 

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Yet, in many cases, the 

defendant’s alternative explanations for what caused the death are what is used to 

convict the defendant. 

Although the State may argue that the defendant’s evasive or unclear 

explanations of what occurred should be used to determine guilt, even a complete 

and supposedly truthful confession by the defendant must still be separately 

corroborated to justify a conviction. Miller v. State, 457 S.W.3d 919 (Tex. Crim. 

App. 2015) (Although this Court held that a strict application of the corpus delicti 

rule is unnecessary if a defendant confesses to multiple criminal offenses within a 

single criminal episode or course of conduct if the crimes confessed to are 

sufficiently proximate that the underlying policy reasons for the rule are not 
20 

violated, this Court also expressed belief that the corpus delicti rule should be 

retained because it serves “an important function”).

Yet, in the types of cases identified in this petition and for which Appellant 

was convicted, any admission by a defendant that he was merely present at or 

around the time an expert testifies the injury occurred often seals the defendant’s 

fate. What the defendant actually did is never proved beyond a reasonable doubt. 

Instead, what the defendant actually did is merely inferred in a general manner 

from the known result. But, as a matter of due process under the Fifth and 

Fourteenth Amendments, and under this Court’s rulings in Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010) and Wise v. State, 364 S.W.3d 900, 903 

(Tex. Crim. App. 2012), and that of the Supreme Court in Jackson v. Virginia, 443 

U.S. 307, 316-319 (1979), the manner and means of assaultive conduct must be 

proved with more precision that what is presently allowed. 

The reason for this is clear: in any crime involving intent or knowledge, 

there must exist a union between the conduct and the intent or knowledge. Personal 

volition must precede the act. And, awareness is the primary distinction between 

intentionally or knowingly committing an act versus negligently doing so. Intent 

and knowledge require an awareness of the harm likely to result from an act. 

Therefore, for a trier of fact to determine whether such awareness was present or 

can be proved, the conduct itself must be identified with enough specificity to 
21 

understand the causation. This is especially so where a person’s state of mind is 

inferred from the person’s words, acts, and conduct. In such situations, the nature 

of the conduct becomes critical. Otherwise, the analysis becomes mere speculation 

or bootstrapping, one inference is compounded upon another inference, and this is 

not within the definition of “beyond a reasonable doubt.” As one court of appeals 

wrote, 

“A jury may not reasonably infer an ultimate fact from meager 

circumstantial evidence, none more probable than another. Hammerly 

Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). To be 

legitimate or permissible, an inference must be deduced as a logical 

consequence of the facts presented in evidence, and must be a logical 

and rational connection between the facts in evidence and the fact to 

be inferred (internal citations omitted). With regard to the sufficiency 

of evidence in circumstantial evidence cases, one inference cannot be 

based upon another inference to reach a conclusion or sustain a

conviction...Williamson v. State, 244 S.W.2d 202, 204 (Tex. Crim. 

App. 1951); Lee v. State, 214 S.W.2d 619, 622 (Tex. Crim. App. 

1948). The stacking of one inference upon another is not considered 

evidence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 

2003)....” 

Allen v. State, 249 S.W.2d 680, 703 (Tex. App. Austin 2008, no pet.). 

As a result, it should not be sufficient for the State to merely eliminate the 

defendant’s version of the event from consideration. Rather, the State should be 

required to prove beyond a reasonable doubt that the defendant must have 

consciously recognized that if he engaged in certain conduct, it was reasonably 

certain that death would result. 
22 

In fact, in Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2013), this 

Court recently wrote: 

“Capital murder is a result-of-conduct offense; the crime is defined in 

terms of one's objective to produce, or a substantial certainty of 

producing, a specified result, i.e. the death of the named decedent.” 

Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008). The 

pertinent question, therefore, is whether the jury could have rationally 

determined beyond a reasonable doubt from the totality of the 

circumstantial evidence viewed in a light most favorable to its verdict 

that appellant had intent to cause the death of the child. See Jackson, 

443 U.S. at 318; Brooks, 323 S.W.3d at 895. 

The court of appeals in this case did not find that the jury could have 

rationally concluded Appellant had a specific desire to kill his son, but only “that 

Appellant was at least aware that his conduct was reasonably certain to cause [the 

CW’s] death.” Yet, the court of appeals affirmed the judgment of conviction. 

iv. The State cannot meet the requirements of Texas Penal Code § 

6.02(a) if the State fails to identify the conduct alleged to have 

caused the injury or death 

Without identifying the conduct alleged to have caused the injury or death, 

beyond a reasonable doubt, the State cannot meet the requirements of Texas Penal 

Code § 6.02(a), which in Capital Murder cases requires the state to prove that the 

defendant acted intentionally or knowingly (because otherwise the defendant “does 

not commit an offense”). See Tex. Pen. Code § 6.02(a) (2011). Otherwise, the 

state of the law in this cases is little more than a trier of fact concluding that if the 

defendant “did A, B, and C,” the defendant had to be aware of the certainty of the 
23 

consequences of what the State thinks the defendant did, and therefore the 

defendant must be guilty. See e.g., Hasel v. State, 12-14-00101-CR, 2015 Tex. 

App. LEXIS 6091 (Tex. App. Tyler June 17, 2015, no pet. hist.) (memorandum 

opinion) (not designated for publication) (The defendant’s statements about the 

incident were deemed to be useful in determining that he acted intentionally or 

knowingly, even though the precise manner of injury was undetermined). One 

court has even approved the use of expert testimony that any actor should be aware 

of the likelihood of death where he causes severe head trauma in any manner. See 

Montgomery v. State, 198 S.W.3d 67, 83-84 (Tex. App. Fort Worth 2006, pet. ref.). 

Further, Appellant questions why more certainty about the actus reus is 

unnecessary before the mens rea may be characterized with the requisite standard 

of proof. Texas Penal Code § 19.03 may comprehend that the commission of the 

offense is proved whenever one does anything with knowledge that the prohibited 

result is reasonably certain to come about. However, § 19.03 cannot be read to 

mean that whenever the prohibited result occurs, the defendant had notice that his 

conduct would cause the result. 

In addition, common sense dictates that a mental state may be inferred only 

if the nature of the conduct is first established. And, not every “unnatural death” 

due to the act of a person is murder. Most importantly, “the utterance of false 

statements or inconsistent statements is, by itself, not sufficient to support an 
24 

inference that the commission of a separate crime or wrongful conduct has 

occurred” with the requisite culpability. Stobaugh v. State, 421 S.W.3d 787, 866 

(Tex. App. Fort Worth 2014, pet. ref.). 

The present state of the interpretation of the law causes the following result: 

the only defense to the accusation of “you must have done something that caused 

the death” is for a defendant to testify and say “I did nothing to cause the death.” 

But, such an assertion will be met with the State’s demand to the defendant to “tell 

us everything you did.” A defendant cannot rely on the burden of proof as a 

defense because the State has no real burden. Rather, the State’s modus operandi 

in these types of cases is “we need not prove what he did or how or why it 

happened, but only that the death was not natural, but inflicted, and, at least 

without further explanation, the defendant has to have been the perpetrator acting 

with the requisite awareness of the danger presented.” In such situations, a person 

innocent of murder is convicted, and cannot effectively defend himself because he 

must take the stand and waive his Fifth Amendment rights because silence at trial 

is not a true option. 

Such results must be abandoned in favor of a real presumption of innocence. 

In the type of cases described in this petition, concepts of moral culpability, 

blameworthiness, and the right to remain silent have been sacrificed in favor of 

expediency through use of a legal fiction that the circumstances surrounding the 
25 

act is fully proved by the result. And because the penalty for these offenses is 

automatic and very harsh (often life in prison without the possibility of parole as in 

Appellant’s case) the trial becomes a foregone conclusion based only on the 

presence of the defendant at the scene plus the defendant’s subsequent refusal to 

serve as the State’s eyewitness. The horrific nature of the injury overrides all other 

considerations, and such a result is contrary to the protections offered in other 

types of cases and by the Fifth and Fourteenth Amendments. 

In support of its conclusion that the jury could rationally have find Appellant 

guilty beyond reasonable doubt, the court of appeals made these comments: 

“The jury was free to disbelieve Dr. Ophoven and believe the State’s 

expert testimony [and particularly that Joniah’s previous serious head 

injury was not the cause of death]... 

[W]hile Joniah was at home alone with Appellant, he sustained a

severe, intentionally inflicted traumatic head injury that resulted in his 

death. From this evidence, a rational jury could have reasonably 

inferred that Appellant caused Joniah’s death. . . . Any violent assault 

on a young child may be reasonably expected to cause death... 

 

Joniah’s injuries were severe, extensive, and numerous. He had 

bruises, abrasions, burns, broken bones, and severe traumatic head 

injuries. He was an eleven-month-old child and Appellant a grown 

man. Based on our review of the record, we conclude that a rational 

jury could have found that Appellant was at least aware that his 

conduct was reasonably certain to cause Joniah’s death. We therefore 

hold that the evidence is sufficient to support the jury’s verdict. 

It is clear that the court of appeals did not deal with the question identified in 

Louis. Further, it did not address any of the other concerns described above or 
26 

those that Appellant raised in his Appellant’s Brief. Appellant will not restate all 

of the facts and arguments here, but as an example of how the present state of 

affairs leads to the unjust result that occurred in this case, the State’s experts and 

the officer concluded that most of the marks on the CW were “burns.” This is 

despite the fact that while in the ER and later while in the ICU, the CW was 

injected with a lot of fluids, causing his weight to increase from 22 pounds to 28 

pounds (a whopping increase of 27%). (RR3, 244-245; RR5, 91-93; RR7, SX-17). 

One expert and the officer, whose credibility is highly suspect, even claimed 

that the “burn patterns” on the CW’s skin were consistent with a white space heater 

found at the home. (RR3, 202; RR4, 107; RR5, 30-31; RR7, SX-3). Although the 

marks on the palm of the CW’s right hand are parallel burns, and were most likely 

caused by the space heater, when this Court reviews State’s Exhibits 7, 9, 10, 11, 

12, 13, 14, and 15, it will find that the marks on the CW’s body could not have 

been caused by the space heater that is depicted in State’s Exhibit 2, and as the 

State witnesses claim. (RR3, 36, 73; RR7, SX-2). This space heater, which is 

depicted here, is has six perfectly lineal elements that run parallel to one another 

and perpendicular to the floor: 
27 

And, very low amounts of the DNA of Appellant and the CW were found on 

the space heater. (RR4, 142-143). Had Appellant used a space heater to cause the 

marks on the CW, the space heater would have contained much higher levels of the 

CW’s DNA, and the marks on the CW would have been lineal and not circular. 

Yet, State witnesses testified that the circular marks on the CW are “burns” 

caused by this space heater. (RR3, 198; RR7, SX-9). 

It is not enough to say that the State proved the explanation for the injuries 

offered by Appellant and his expert witness should be discarded, or that there was 

opinion testimony that the fatal injuries were intentionally inflicted. None of the 

State’s experts sought to account for the CW’s sudden change in growth beginning 

about four months prior to his death. (RR5, 68, 72-73, 77-80). Dr. Quinton’s 

assumption that the CW merely began to fail to thrive, probably for environmental 

reasons, was entirely speculative and did not reference the dramatic and sudden 

change testified to by Dr. Ophoven. (RR6, 51-52). 
28 

Finally, the State failed to prove the death was caused by the manner and 

means alleged by the State, which was the striking of the CW by Appellant’s hand 

or “another object.” When a specific means in which a statute was violated is 

alleged, the evidence must conform to the allegation, otherwise charging 

instruments become irrelevant. Here, there was a failure to prove what was alleged. 

There was evidence presented that the subdural hematoma was accelerationdeceleration in nature, and may have “consistent with” a striking of the CW’s head 

with or against an object. Because the jury was charged using the language of the 

indictment, it was not asked to evaluate the reliability of the State’s evidence, but 

rather was required to find only that an injury occurred. This does not mean that 

the jury resolved the conflicts in the testimony of the experts in favor of the State. 

Appellant recognizes that this Court has determined that an allegation about 

the cause of death in a murder indictment need not be proved because the focus or 

gravamen of the offense (a resultant death) is still proved. Johnson v. State, 364 

S.W.3d 292, 296-297 (Tex. Crim. App. 2012). But, the jury must still make its 

findings of fact according to those asked about in the charge. The theory of liability 

presented by the court should be narrowed according to the evidence because 

otherwise the verdict will be based on an allegation not proved. See Goka v. State, 

657 S.W.2d 20, 22 (Tex. App. Houston [1st Dist.] 1983, pet. ref.) (“Submission of 

a theory not supported by evidence is error...”). 
29 

Appellant may or may not have known or intended that any conduct on his 

part would have caused the death of his son. Without proving beyond a reasonable 

doubt what his conduct exactly was, it is impossible to say. Even if one concludes 

that Appellant may have minimized some part of his conduct in his descriptions to 

Sanford, Dr. Nesiama, or the police, Appellant may have accurately described the 

bathtub tussle and the fact that he did not know why his son stopped breathing. 

Defendants cannot and should not be convicted merely because they do not “come 

clean” or fail to fully and accurately describe what they witnessed or did. Without 

an admission of guilt or nonspeculative reasoning about the “how and why” of the 

offense, prosecutions in cases such as this turn into strict liability standards based 

on the defendant’s invocation of this Fifth Amendment rights. In this case, 

Appellant even agreed to answer questions posed by the police, and he never 

admitted to violently striking his son. (RR4, 94, 104, 120). 

Conjecture should never be used as a means of convicting a person, and a 

thorough assessment of the evidence in this case will find that conjecture and not 

reasonable inference is what caused the jury to reach their verdict. See Winfrey v. 

State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013) (“A conclusion reached by 

speculation... is not sufficiently based on facts or evidence to support a finding 

beyond a reasonable doubt.”). After giving “proper deference” (and not total 

deference) to the role of the trier of fact, it is this Court’s responsibility to confirm 
30 

that the evidence reached the requisite “high degree of certainty.” See Urbano v. 

State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part on other 

grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002). And 

although this Court must “uphold the verdict unless a rational factfinder must have 

had reasonable doubt as to any essential element,” a review of the evidence in this 

case should lead this Court to conclude that the jury in this case was not rational. 

Laster, 275 S.W.3d at 518; Brooks, id. at 902 n.1. 

IX. Conclusion and Prayer 

 For the reasons stated in this petition, the Court of Appeals has: (1) decided 

an important question of state and federal law that has not been, but should be, 

settled by the Court of Criminal Appeals; and (2) decided an important question of 

state or federal law in a way that conflicts with the applicable decisions of the 

Court of Criminal Appeals and the Supreme Court of the United States. See Tex. 

Rule App. Proc. 66.3 (2015). Appellant respectfully prays that this Court grant 

discretionary review, reverse the judgment of conviction and sentence, and enter a 

judgment of acquittal. 

Respectfully submitted, 
31 

Michael Mowla 

445 E. FM 1382 No. 3-718 

Cedar Hill, Texas 75104 

Phone: 972-795-2401 

Fax: 972-692-6636 

michael@mowlalaw.com

Texas Bar No. 24048680 

Attorney for Appellant 

/s/ Michael Mowla 

By: Michael Mowla 

X. Certificate of Service 

 This certifies that on July 25, 2015, a copy of this document was served on 

Lori Ordiway and Lisa Smith of the Dallas County District Attorney’s Office, 

Appellate Division, 133 N. Riverfront Boulevard, Dallas, Texas 75207 by email to 

lori.ordiway@dallascounty.org, lisa.smith@dallascounty.org, and

DCDAAppeals@dallascounty.org; and also on Anna Kubalak at 

Anna.Kubalak@dallascounty.org; and on Lisa McMinn, the State Prosecuting 

Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant 

State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex. 

Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015). 

/s/ Michael Mowla 

By: Michael Mowla 
32 

XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 

 This certifies that this document complies with the type-volume limitations 

because this document is computer-generated and does not exceed 4,500 words. 

Using the word-count feature of Microsoft Word, the undersigned certifies that this 

document contains 4,475 words in the document except in the following sections: 

caption, identity of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of issues presented 

(grounds for review section), statement of jurisdiction, statement of procedural 

history, signature, proof of service, certification, certificate of compliance, and 

appendix. This document also complies with the typeface requirements because it 

has been prepared in a proportionally-spaced typeface using 14-point font. See

Tex. Rule App. Proc. 9.4 (2015). 

 /s/ Michael Mowla 

By: Michael Mowla 
APPENDIX 
No Shepard’s SignalTM

As of: July 25, 2015 2:44 AM EDT

Baker v. State

Court of Appeals of Texas, Twelfth District, Tyler

June 30, 2015, Opinion Delivered

NO. 12-14-00185-CR

Reporter

2015 Tex. App. LEXIS 6642

JONATHAN BAKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION

OF UNPUBLISHED OPINIONS.

Prior History: [*1] Appeal from the 283rd District Court of Dallas County, Texas. (Tr.Ct.No.

F-1300422-T).

Core Terms

trial court, injuries, hemorrhage, severe, older, head injury, imprisonment, modified, subdural, argues,

trial court’s judgment, capital murder, breathing, traumatic, bathtub, parole, brain, legal sufficiency,

witnesses, symptoms, bruises, arrest, burns

Case Summary

Overview

HOLDINGS: [1]-Evidence was sufficient to support a finding that defendant acted intentionally or

knowingly to cause the child’s death because while the child was at home alone with defendant he

sustained a severe, intentionally inflicted traumatic head injury that resulted in his death, and the

child’s injuries were severe, extensive and numerous; [2]-Modification of the judgment was necessary

because defendant was thirty years old when he committed the offense and his punishment was

imprisonment for life without parole.

Outcome

Judgment affirmed as modified.

LexisNexis® Headnotes

Evidence > Weight & Sufficiency

Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Weight of Evidence
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses

HN1 The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each element of a criminal

offense that the state is required to prove beyond a reasonable doubt. Legal sufficiency is the

constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain

a criminal conviction. The standard for reviewing a legal sufficiency challenge is whether any rational

trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The

evidence is examined in the light most favorable to the verdict. This requires the reviewing court to

defer to the jury’s credibility and weight determinations, because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony. A court faced with a record of

historical facts that supports conflicting inferences must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution. A successful legal sufficiency challenge will result in rendition of an

acquittal by the reviewing court.

Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence

Evidence > Weight & Sufficiency

HN2 The sufficiency of the evidence is measured against the offense as defined by a hypothetically

correct jury charge. Such a charge would include one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the defendant is

tried.

Criminal Law & Procedure > ... > Murder > Capital Murder > Elements

HN3 To prove a defendant guilty of capital murder under Tex. Penal Code Ann. § 19.03(a)(8), the State

is required to prove that defendant intentionally or knowingly caused the victim’s death, and that the

victim is under ten years of age. Tex. Penal Code Ann. § 19.03(a)(8) (Supp. 2014).

Evidence > Admissibility > Circumstantial & Direct Evidence

HN4 The appellate court uses the same standard of review for both circumstantial and direct evidence

cases.

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses

HN5 The jury was free to disbelieve one expert and believe another expert’s testimony.

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > General Intent

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Specific Intent

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Knowledge

HN6 A person acts intentionally with respect to a result of his conduct when it is his conscious

objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a) (2011). A person acts knowingly

with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause

2015 Tex. App. LEXIS 6642, *1

Page 2 of 12
the result. Tex. Penal Code Ann. § 6.03(b) (2011). Proof of a culpable mental state almost invariably

depends upon circumstantial evidence. Ordinarily, the culpable mental state must be inferred from the

acts of the accused or the surrounding circumstances, which include not only acts, but words and

conduct. Tex. Penal Code Ann. § 6.03(b).

Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Murder > General Overview

Criminal Law & Procedure > ... > Crimes Against Persons > Assault & Battery > General Overview

Criminal Law & Procedure > Criminal Offenses > Acts & Mental States > Mens Rea

HN7 In considering whether an assault was committed with the requisite mental state for murder, a

court takes into account the extent of the injuries and the relative size and strength of the parties. Any

violent assault on a young child may be reasonably expected to cause death.

Criminal Law & Procedure > ... > Discovery by Defendant > Expert Testimony > Notice of Intent to Call

Criminal Law & Procedure > ... > Discovery by Defendant > Expert Testimony > Appellate Review &

Judicial Discretion

HN8 Notice of the witnesses that the State intends to call at trial must be given upon request by the

defense. A trial court’s decision to allow a witness who was not on the State’s witness list to testify

is reviewed for an abuse of discretion. Among the factors that an appellate court considers in such a

review are (1) whether the state’s actions in calling a previously undisclosed witness constituted bad

faith, and (2) whether the defendant could have reasonably anticipated that the witness would testify.

Criminal Law & Procedure > ... > Reviewability > Preservation for Review > Requirements

HN9 A claim is preserved for appellate review only if (1) the complaint was made to the trial court

by a timely and specific request, objection, or motion, and (2) the trial court either ruled on the request,

objection, or motion or refused to rule and the complaining party objected to that refusal. Tex. R. App.

P. 33.1(a). If a party fails to properly object to errors at trial, even constitutional errors can be forfeited.

Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to

the denial of that right at trial.

Criminal Law & Procedure > Preliminary Proceedings > Pretrial Motions & Procedures > Disqualification

& Recusal

Governments > Courts > Judges

Criminal Law & Procedure > Appeals > Standards of Review > General Overview

HN10 Due process requires a neutral and detached hearing body or officer. Absent a clear showing of

bias, a trial court’s actions will be presumed to have been correct.

Criminal Law & Procedure > Sentencing > Ranges

HN11 Under the Texas Penal Code, a person convicted of a capital felony in a case in which the State

does not seek the death penalty shall be punished by imprisonment for life without parole if the person

was eighteen years of age or older when the offense was committed. Tex. Penal Code Ann. § 12.31(a)

(Supp. 2014).

2015 Tex. App. LEXIS 6642, *1

Page 3 of 12
Criminal Law & Procedure > Sentencing > Corrections, Modifications & Reductions > General Overview

HN12 An appellate court has authority to correct a trial court’s judgment to make the record speak the

truth when it has the necessary data and information.

Counsel: For Appellant: Michael Mowla.

For State: Johanna Helene Kubalak.

Judges: Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

Opinion by: JAMES T. WORTHEN

Opinion

MEMORANDUM OPINION

Jonathan Baker appeals his conviction for capital murder, for which he was assessed a sentence of

imprisonment for life. In three issues, Appellant argues that the evidence is legally insufficient to

support his conviction and that the trial court erred by allowing a witness to testify in violation of the

court’s pretrial discovery order. We modify the trial court’s judgment to reflect no possibility of parole

and affirm the judgment as modified.

BACKGROUND

Appellant was charged by indictment with capital murder and pleaded ′′not guilty.′′ The matter

proceeded to a jury trial.

The evidence at trial showed that on December 7, 2011, eleven-month-old Joniah Baker had been at

home all day with his father, Appellant. That afternoon, Joniah arrived at Children’s Medical Center

with a bluish, grayish tint to his skin, cold, and unresponsive. Medical professionals attempted to save

Joniah’s life, but he was pronounced dead on December 9, 2011. Many injuries, new and old, were

found during examination and autopsy. The medical [*2] examiner ruled the death a homicide, and

Appellant was charged with capital murder.

Ultimately, the jury found Appellant ′′guilty′′ of capital murder. The State did not seek the death

penalty, and Appellant’s punishment was assessed at imprisonment ′′for the rest of [his] lifetime.′′ This

appeal followed.

EVIDENTIARY SUFFICIENCY

In his first issue, Appellant argues that the evidence is legally insufficient to support a finding that he

acted intentionally or knowingly to cause Joniah’s death.

Standard of Review and Governing Law

2015 Tex. App. LEXIS 6642, *1

Page 4 of 12
HN1 The Jackson v. Virginia1

legal sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each element of a criminal

offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due

Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S.

at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.—San Antonio

1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson,

443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993). The evidence is examined in the [*3] light most favorable to the verdict. See Jackson, 443 U.S.

at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to

the jury’s credibility and weight determinations, because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 443

U.S. at 319, 99 S. Ct. at 2789. A ′′court faced with a record of historical facts that supports conflicting

inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that resolution.′′ Jackson, 443

U.S. at 326, 99 S. Ct. at 2793. A successful legal sufficiency challenge will result in rendition of an

acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18,

72 L. Ed. 2d 652 (1982).

HN2 The sufficiency of the evidence is measured against the offense as defined by a hypothetically

correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge

would include one that ′′accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant is tried.′′ Id.

HN3 To prove Appellant guilty of capital murder in this case, the State was required to prove [*4] that

he intentionally or knowingly caused Joniah’s death, and that Joniah was under ten years of age. See

TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp. 2014).

Events Preceding Joniah’s Death

Joniah’s mother, Tamika Sanford, testified that Joniah was born in December 2010. He lived with both

of his parents and Appellant’s mother. Neither parent was working when Joniah was born. Sanford

began working when Joniah was five months old. Sometime after Sanford began working, Appellant’s

mother moved out of the home, and Joniah was left in Appellant’s sole care while Sanford was at work.

Sanford would go to work at either 5:00 a.m. or 7:00 a.m. and return home around 2:00 p.m. or 4:00

p.m. Appellant would then leave to go ′′hang out′′ until anywhere from 10:00 p.m. to 2:00 a.m. before

returning home.

On the morning of December 7, 2011, Appellant, Joniah, and Sanford rode together to Sanford’s

workplace. When Appellant dropped Sanford off at work around 7:00 a.m., Joniah appeared fine. On

the previous night, he had been eating, drinking, sleeping, and behaving normally. Sanford called

Appellant at around 10:00 a.m. on her lunch break, as was her routine. They had a very brief phone

1

443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).

2015 Tex. App. LEXIS 6642, *2

Page 5 of 12
conversation in which Appellant [*5] told Sanford that Joniah was sleeping and did not indicate that

anything was wrong. Sanford did not hear from Appellant again until he called on his way to pick her

up from work. At that time, Appellant told Sanford that they needed to go to the hospital because

Joniah’s breathing was faint.

Dr. Jo-Ann Nesiama was the physician in charge of the emergency room when Joniah was brought in.

She testified that when Joniah arrived, he was not moving or breathing. There were indicators that he

had not been breathing for some time. He was a bluish, grayish color and he was very cold. After

intubation, Dr. Nesiama saw blood coming from the tube that was placed into Joniah’s lungs, which

also indicated he had not been breathing for a while.

When Dr. Nesiama asked Appellant what happened to Joniah, Appellant stated that Joniah woke up

sick that morning. He said that he put him down for a nap, and that he woke up around 11:30 a.m. not

acting like himself. He stated that he woke up again at 3:00 p.m. still not acting like himself, so he

brought him to the hospital. Because Appellant’s story did not seem to explain how Joniah’s injuries

happened, Dr. Nesiama had a social worker contact CPS and Dr. [*6] Matthew Cox, a board certified

child abuse pediatrician.

That same evening, detectives with the Dallas Police Department arrived at the hospital and spoke with

Appellant and Sanford. Appellant and Sanford did not provide any explanation for Joniah’s injuries.

Later that night, Appellant agreed to an interview at the police station. In the interview, Appellant told

the police that he and Joniah had gone back to sleep after dropping Sanford off. He got Joniah up

around 12:00 p.m., fed him, and began to bathe him in his baby bathtub.

According to Appellant, Joniah began to throw a fit during the bath. Appellant was soapy and scratched

Joniah’s back and legs trying to hold onto him. Joniah flung himself back, hit his head on the bathtub,

and then fell sideways and hit his head again. Appellant patted Joniah’s chest and said, ′′Stop tripping,

fool.′′ He took Joniah out of the bathtub and shook him a little, saying, ′′Look. You’re tripping, man.

Chill out for a minute, man. You hear me?′′ He put Joniah on the bed in front of the television with

some juice and with pillows around him. When he was getting Joniah dressed to go pick up Sanford,

he noticed that his breathing was short. He bit Joniah’s [*7] heels when putting his pants on because

he was in a hurry.

Some parts of Appellant’s story changed during the interview. Appellant was arrested after the

interview and charged with injury to a child. Joniah subsequently died after being taken off life

support, and Appellant was indicted for capital murder.

State’s Expert Testimony

Dr. Matthew Cox testified that he saw Joniah the day after he was brought to the hospital. Joniah was

unresponsive and being kept alive through life support measures. Dr. Cox noted multiple linear skin

injuries located on various surfaces of Joniah’s body. The appearance of the injuries was consistent

with that of a burn. Dr. Cox also noted bruising on both of Joniah’s feet. The original imaging studies

showed a healed rib fracture, and subsequent imaging studies revealed a new rib fracture as well.

Dr. Cox reviewed the ophthalmology consult, which showed diffuse intraretina, preretina, and

subretina hemorrhage in both sides and retinal detachment in the left eye. He stated that the extensive

2015 Tex. App. LEXIS 6642, *4

Page 6 of 12
and diffuse retinal hemorrhages were the most severe version of retinal hemorrhages and are seen in

the most severe traumatic events.

Head imaging revealed a new hemorrhage [*8] on the back between the brain hemispheres and around

the back surface of Joniah’s brain. There were also fluid collections on both sides of Joniah’s head that

were concerning for older hemorrhage. Dr. Cox said that the older hemorrhage was at least ten days

old based on the appearance, but he could not give an upper limit.

Dr. Cox testified that the symptoms Joniah presented with—altered breathing, altered muscle tone,

being floppy—were symptoms of a severe head injury. He stated that Joniah would have been acting

differently and exhibiting severe symptoms immediately after sustaining such a severe injury. He

stated that the older head injury, which was milder, might have caused symptoms such as not eating

as well, vomiting, and acting dazed, confused, fussy, and sleepy.

Dr. Cox spoke with Sanford and took a detailed history of Joniah’s past, his recent symptoms, and what

brought him to the hospital the night before. Sanford told Dr. Cox that she saw Joniah fall off the bed

about a week and a half to two weeks prior to his hospitalization. She said that he cried, she consoled

him, and he seemed normal afterwards. Sanford said that Joniah had a second fall a few days later

when he was [*9] with Appellant. She did not witness that fall and did not provide any details of it.

Dr. Cox testified that the pattern of Joniah’s head injuries was different from the pattern he sees in

children who fall off a bed. Dr. Cox further testified that Joniah’s injuries were not the type he would

expect to see from a baby bumping his head on a plastic baby bathtub, or even a standard adult bathtub,

even if the baby were having a seizure in the bathtub. He said that Joniah’s brain injuries were the type

that are seen after a severe and violent traumatic event, such as when someone injures a child or the

child is involved in a motor vehicle collision.

Dr. Cox concluded that the history provided did not explain Joniah’s injuries. He further concluded that

the pattern of medical findings indicated at least two episodes of trauma with a new episode on the day

he presented at the hospital. The injuries were consistent with a striking with or against an unknown

object. According to Dr. Cox, the medical findings were consistent with intentionally inflicted injuries

and child physical abuse.

Dr. Stephanie Burton is the medical examiner who performed Joniah’s autopsy. Her examination

revealed numerous [*10] injuries, both internal and external. Joniah’s external injuries included bruises

on his head; abrasions on his neck, chest, and back; and bruises suspicious for bite marks on both heels.

He also had twenty-six burns, the majority of which were paired, linear, and parallel, and measured one

and three-fourths inches apart. Dr. Burton determined that the distance between these paired burns was

consistent with the distance between the coils of a radiator-style space heater that was found in

Appellant’s home.

Internally, Dr. Burton found a subcutaneous area of hemorrhage in Joniah’s chest, a subcutaneous

contusion on his back, another on his left buttock, and a large area of contusion on his right lower back

and buttock. Joniah also had two fractured ribs, one recent, one just beginning to heal, and another

older one that had been healing for a while.

On Joniah’s head, Dr. Burton found an area of hemorrhage under one of the two head bruises, and

another area of hemorrhage in a third location. Thus, there were three impact sites on the head. After

2015 Tex. App. LEXIS 6642, *7

Page 7 of 12
removing the skull, Dr. Burton found recent subdural and subarachnoid hemorrhages over the top and

bottom of the brain. She stated that a child [*11] with such hemorrhages would have an immediate

change in consciousness, including possible unresponsiveness and probable seizure activity. Dr. Burton

also found an older hemorrhage, which she estimated to be less than fourteen days old but older than

the new ones. An ophthalmologist and pathologist evaluated Joniah’s eyes and found diffuse retinal

hemorrhages, optic nerve sheath hemorrhage, optic nerve head hemorrhage, and a detached retina.

Dr. Burton testified that all of her findings together indicated acceleration-deceleration injury to

Joniah. She concluded that he died of a closed head injury with the burns contributing to his death, and

that the manner of death was homicide. She defined homicide as being caused by an intentional act of

another person. Dr. Burton further opined that there was no type of accidental history that could explain

Joniah’s injuries.

Dr. Reade Quinton is a medical examiner who was present at Joniah’s autopsy. He testified that there

was a newer subdural and an older subdural. Dr. Quinton believed the older subdural to be months old.

He did not believe that the older subdural caused Joniah’s death. He agreed that Joniah died as a result

of a closed head [*12] injury and that the manner of death was homicide.

Defense Expert Testimony

Dr. Janice Ophoven is a pediatric forensic pathologist who testified for the defense. She reviewed the

reports, records, and specimens from Joniah’s case and believed that he presented at the hospital with

cardiac arrest. She opined that he suffered from complications of a chronic subdural hematoma that

likely occurred sometime in July 2011. He then suffered subsequent impacts in the days prior to his

collapse. And on December 7, 2011, Joniah suffered sudden increased intercranial pressure and

subdural bleeding, which led to his cardiac arrest that day. The cardiac arrest resulted in a lack of

oxygen to the brain. According to Dr. Ophoven, this lack of oxygen to the brain was the cause of

Joniah’s death.

Dr. Ophoven testified that there was no evidence that Joniah had a severe violent impact on the date

of his cardiac arrest. She said any number of things could have resulted in his sudden deterioration,

including rough handling or an accident. On cross examination, Dr. Ophoven stated that the chronic

subdural hematoma that occurred in July was caused by blunt force trauma to the head. She was not

given a history [*13] of any traumatic event occurring in July.

Analysis

Appellant contends that the State’s case against him was entirely circumstantial. Therefore, he argues

that we should consider the existence of all alternative reasonable hypotheses and inferences in

conducting our legal sufficiency review. However, the court of criminal appeals abandoned the

alternative reasonable hypothesis construct for reviewing the sufficiency of the evidence in circumstantial

evidence cases in Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). HN4 We now use the

same standard of review for both circumstantial and direct evidence cases. Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007).

In support of his insufficiency claim, Appellant argues that the evidence does not support the idea that

Joniah was not injured when he fell off the bed. He cites evidence that the carpet in the room was thin

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and without padding. Appellant cites other evidence that Joniah bumped his head on a coffee table in

September 2011. He claims that the jury failed to recognize Joniah’s previous trips to the emergency

room for spitting up blood and vomiting. Appellant further cites Dr. Ophoven’s testimony that she

believed Joniah died as a result of a chronic subdural hematoma he sustained in July 2011. And he

claims that the State failed to [*14] rebut evidence of a serious traumatic head injury occurring in July

2011. However, the State’s experts agreed that a previous serious head injury occurred, but they did

not believe it was the cause of death. HN5 The jury was free to disbelieve Dr. Ophoven and believe

the State’s expert testimony. See Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. And, as we have noted above, we are not required to determine whether the evidence excludes

every alternative reasonable hypothesis other than guilt. See Geesa, 820 S.W.2d at 159.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that sometime after

Appellant dropped Sanford off at work, while Joniah was at home alone with Appellant, he sustained

a severe, intentionally inflicted traumatic head injury that resulted in his death. From this evidence, a

rational jury could have reasonably inferred that Appellant caused Joniah’s death.

The State further had to prove that Appellant caused Joniah’s death intentionally or knowingly. HN6

A person acts intentionally with respect to a result of his conduct when it is his conscious objective or

desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A person acts knowingly with

respect to a result of his conduct when he is aware that [*15] his conduct is reasonably certain to cause

the result. Id. § 6.03(b) (West 2011). Proof of a culpable mental state almost invariably depends upon

circumstantial evidence. Lee v. State, 21 S.W.3d 532, 539 (Tex. App.—Tyler 2000, pet. ref’d).

Ordinarily, the culpable mental state must be inferred from the acts of the accused or the surrounding

circumstances, which include not only acts, but words and conduct. Id. HN7 In considering whether

an assault was committed with the requisite mental state for murder, we take into account the extent

of the injuries and the relative size and strength of the parties. Lindsey v. State, 501 S.W.2d 647, 648

(Tex. Crim. App. 1973). Any violent assault on a young child may be reasonably expected to cause

death. Id.

Here, Joniah’s injuries were severe, extensive, and numerous. He had bruises, abrasions, burns, broken

bones, and severe traumatic head injuries. He was an eleven-month-old child and Appellant a grown

man. Based on our review of the record, we conclude that a rational jury could have found that

Appellant was at least aware that his conduct was reasonably certain to cause Joniah’s death. We

therefore hold that the evidence is sufficient to support the jury’s verdict. Accordingly, Appellant’s first

issue is overruled.

DISCOVERY ORDER VIOLATION

In his second and third issues, Appellant [*16] argues that the trial court erred by permitting Dr.

Nesiama to testify in violation of the court’s pretrial discovery order.

Generally, HN8 notice of the witnesses that the state intends to call at trial must be given upon request

by the defense. Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d). A trial court’s decision to allow a witness who was not on the state’s witness list to testify is

reviewed for an abuse of discretion. Id. Among the factors that an appellate court considers in such a

review are (1) whether the state’s actions in calling a previously undisclosed witness constituted bad

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faith, and (2) whether the defendant could have reasonably anticipated that the witness would testify.

Id.

In this case, trial began on a Tuesday, and defense counsel told the trial court that the State only gave

her Dr. Nesiama’s name ′′like Thursday of last week.′′ Defense counsel said that she had received

notice from the State that one of the witnesses previously disclosed would be unavailable for trial. The

prosecutor told her that he would like to substitute Dr. Nesiama, and he provided Dr. Nesiama’s cell

phone number. Additionally, the State had tendered the emergency room records that Dr. Nesiama was

to testify from to the defense ′′probably [*17] twelve to eighteen months′′ before trial. The trial court

allowed the parties to question Dr. Nesiama outside the presence of the jury.

After that hearing, defense counsel objected to Dr. Nesiama’s testimony on the grounds that allowing

her testimony would violate the trial court’s pretrial orders. Counsel stated that she relied on those

orders in preparing for trial. And she argued that allowing Dr. Nesiama to testify would deprive

Appellant of his Fifth and Sixth Amendment rights to effective assistance of counsel. The trial court

overruled defense counsel’s objection and allowed Dr. Nesiama to testify. However, the trial court

limited Dr. Nesiama’s testimony to Joniah’s treatment and injuries, and that the criteria were met for

her to alert the social worker. The trial court did not allow Dr. Nesiama to give her opinion as to

whether Joniah’s injuries were accidental or the result of abuse.

As part of Appellant’s second issue, he argues that Dr. Nesiama’s testimony should have been excluded

from evidence because the State willfully withheld its intent to use her as a witness. But we have found

no evidence that the State did so or in any way acted in bad faith. The record indicates that when the

treating [*18] emergency room physician the State had planned to call became unavailable, the

prosecutor notified Appellant’s counsel that he wished to substitute Dr. Nesiama to give testimony

regarding the same facts the other doctor would have. And he provided defense counsel Dr. Nesiama’s

phone number and told Dr. Nesiama to expect a phone call.

Furthermore, the record indicates that Appellant could have reasonably anticipated that Dr. Nesiama

would testify. The prosecutor told the trial court that Dr. Nesiama’s name was listed in the emergency

room records. Those records were provided to Appellant twelve to eighteen months prior to trial. Under

these circumstances, we conclude that the trial court did not abuse its discretion by allowing Dr.

Nesiama’s testimony. Accordingly, we overrule the portion of Appellant’s second issue regarding the

trial court’s discretion to allow the testimony.

Additionally in his second issue, Appellant argues for the first time that the trial court violated his Sixth

Amendment right to confrontation of witnesses by permitting Dr. Nesiama to testify. In general, HN9

a claim is preserved for appellate review only if (1) the complaint was made to the trial court by a

timely and specific [*19] request, objection, or motion, and (2) the trial court either ruled on the

request, objection, or motion or refused to rule and the complaining party objected to that refusal. TEX.

R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). If a party fails to properly

object to errors at trial, even constitutional errors can be forfeited. Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012). Specifically, a defendant waives his constitutional right to confront witnesses

if he does not object to the denial of that right at trial. Holland v. State, 802 S.W.2d 696, 700 (Tex.

Crim. App. 1991). Appellant did not object to Dr. Nesiama’s testimony at trial on confrontation

grounds. Thus, he did not preserve his complaint regarding his right to confrontation. See TEX. R. APP.

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P. 33.1(a). Accordingly, we overrule the portion of Appellant’s second issue regarding his right to

confrontation.

In his third issue, Appellant argues for the first time that the trial court violated his First, Fifth, and

Fourteenth Amendment rights to a neutral and impartial judge by permitting Dr. Nesiama to testify.

HN10 Due process requires a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). Absent a clear showing of bias, a trial court’s actions will be

presumed to have been correct. Id.

Here, Appellant bases his argument that the trial judge was not neutral and impartial on the judge’s

allowing Dr. Nesiama to testify [*20] in violation of the discovery order. We have already concluded

that the trial court did not abuse its discretion by allowing Dr. Nesiama’s testimony. We have reviewed

the record and found no clear showing of bias. Therefore, we conclude that the trial court did not

violate Appellant’s right to a neutral and impartial judge. Accordingly, we overrule Appellant’s third

issue.

ERROR IN JUDGMENT

Although neither party has raised the issue, our review of the record reveals an error in the trial court’s

judgment. At trial, the trial court sentenced Appellant to imprisonment in the institutional division ′′for

the rest of [his] lifetime.′′ The judgment, however, reflects the punishment as imprisonment for life not

imprisonment for life without parole.

HN11 Under the penal code, a person convicted of a capital felony in a case in which the state does

not seek the death penalty shall be punished by imprisonment for life without parole if the person was

eighteen years of age or older when the offense was committed. TEX. PENAL CODE ANN. § 12.31(a) (West

Supp. 2014). The record shows that Appellant was thirty years old when he committed the offense.

Therefore, his punishment is imprisonment for life without parole, [*21] and the judgment should be

modified accordingly. See id.; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.

ref’d) (HN12 appellate court has authority to correct trial court’s judgment to make record speak the

truth when it has necessary data and information).

DISPOSITION

Having overruled all of Appellant’s issues, we modify the trial court’s judgment to reflect that

Appellant’s punishment is imprisonment for life without parole, and affirm the judgment as modified.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

JUDGMENT

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THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same

being inspected, it is the opinion of the Court that the trial court’s judgment below should be modified

and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment below be

modified to reflect that Appellant’s punishment is imprisonment for life without parole; and that as

modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial court

below for observance.

James T. Worthen, Chief Justice.

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