NO.__________________________

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I N THE COURT OF CRIMINAL APPEALS OF TEXAS

═══════════════════════════════════════════════ J AVIER URIAS, Appellant

v. THE STATE OF TEXAS, Appellee

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F rom the Eighth Court of Appeals No. 08-12-00090-CR Affirming Conviction in Cause Number 20090D03338

═══════════════════════════════════════════════ A PPELLANT’S PETITION FOR DISCRETIONARY REVIEW

═══════════════════════════════════════════════ J AIME GÁNDARA El Paso County Chief Public Defender

William Robinson Cox First Assistant State Bar No. 00792933 500 E. San Antonio, Room 501 El Paso, Texas 79901 Tel. No. 915.546.8185 Fax 915.546.8186 wcox@epcounty.com Benjamin Joseph Gutiérrez Solo Practitioner State Bar No. 24094693 Post Office Box 41 El Paso, Texas 79940 Tel. No. 915.239.0793 Fax No. 866.399.5268 bjgutierrez@miners.utep.edu
ORAL ARGUMENT REQUESTED PD-0883-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 7/15/2015 3:06:42 PM Accepted 7/17/2015 2:03:35 PM

ABEL ACOSTA CLERKi ORAL ARGUMENT REQUESTED The Appellant submits that oral argument would aid this Court in its decisions with the issue presented of sufficiency o f evidence for serious injury to a child when evidence amounts to mere presence and st rong suspicion or mere probability to prove corpus delicit . This Court’s holdings in Plunkett v. State , 580 S.W.2d 815 (Tex. Crim. App. 1978) and Johnson v. State , 673 S.W.2d 190 (Tex. Crim. App. 1984) remain good law and provide precedence in the se matters. The El Paso Courts of Appeals’ holding below declines t o follow this Court.ii IDENTITIES OF PARTIES AND COUNSEL Pursuant to Texas Rules of Appellate Procedure, Rul e 38.1(a), Appellant offers the following names of all parties, trial an d appellate counsel: Appellant: Javier Urias Counsel: Jamie Gándara El Paso County Public Defender William Robinson Cox First Assistant State Bar No. 00792933 500 East San Antonio, Room 501 El Paso, Texas 79901 Benjamin Joseph Gutiérrez Solo Practitioner State Bar No. 24094693 Post Office Box 41 El Paso, Texas 79940 Appellee: State of Texas Counsel: Jaime Esparza El Paso County District Attorney 500 East San Antonio, Suite 201 El Paso, Texas 79901 Trial Court Defendant: Javier Urias Counsel: Joseph D. Vasquez 300 East Main, Suite 700 El Paso, Texas 79901 (Counsel in Eighth Court of Appeals) State’s Trial Court Prosecutor: El Paso County Di strict Attorney Counsel: Alyssa Perez and Humberto Acosta Assistant District Attorneys State’s Court of Appeals Counsel: Joe Monsivais Appellant Division Chief of El Paso County District Attorney Office Trial Court: 243rd Judicial District Court Honorable Bill Hicks Presidingiii TABLE OF CONTENTS ORAL ARGUMENT REQUESTED ...........................

............................................... i IDENTITY OF PARTIES AND COUNSEL ...................

........................................ ii TABLE OF CONTENTS .................................

................................................... ..... iii INDEX OF AUTHORITIES ..............................

................................................... ... iii STATEMENT OF THE CASE .............................

................................................... . i v GROUNDS FOR REVIEW ................................

................................................... .... v ISSUES PRESENTED ..................................

................................................... ......... vi STATEMENT OF THE FACTS ............................

................................................... 1 ARGUMENT ..........................................

................................................... ................ 3 Issue No. 1 : It is an error to affirm conviction of injury to a child as legally sufficient when evidence amounts to mere pr esence and strong suspicion or mere probability to prove corpus delicit ? Yes.

................ 3 CONCLUSION ........................................

................................................... ............. 16 PRAYER ............................................

................................................... ................... 18 CERTIFICATE OF SERVICE ............................

................................................... . 18 CERTIFICATE OF COMPLIANCE .........................

.............................................. 19 COURT OF APPEAL’S OPINION .........................

................................... Appendix INDEX OF AUTHORITIES Cases Bryant v. State , 909 S.W.2d 579 (Tex. App.— Tyler 1995) ..........

........... 8, 9, 10, 14 Butts v. State , 835 S.W.2d 147 (Tex. App. – Corpus Christi 1992)

.......... 6, 7, 10, 13 Crawford v. State , 2014 WL 5878112 (Tex. App.– Ft. Worth 2014). ...

.... 10, 11, 14 Elledge v. State , 890 S.W.2d 843 (Tex. App.– Austin 1994). .......

..... 7, 8, 10, 13, 14 Garcia v. State , 16 S.W.3d 401 (Tex. App. — El Paso 2000) ........

........ 9, 10, 12, 14 Hooper v. State , 214 S.W.3d 9 (Tex. Crim. App. 2007) .............

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

................................... 3 Johnson v. State , 673 S.W.2d 190 (Tex. Crim. App. 1984) ......... 3, 4, 5, 6, 7, 11, 13, 14, 15, 16 Plunkett v. State , 580 S.W.2d 815 (Tex. Crim. App. 1978) ..... 3, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16 Urias v. State, 2014 WL 1259397 (Tex. App.-- El Paso, Mar. 26, 2014 )............. v, 11, 12, 16iv

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

═══════════════════════════════════════════════ JAVIER URIAS, Appellant

v. THE STATE OF TEXAS, Appellee

═══════════════════════════════════════════════ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

═══════════════════════════════════════════════ TO THE HONORABLE COURT OF CRIMINAL APPEALS: COME NOW, Javier Urias, appellant herein, and respe ctfully moves this Court to grant discretionary review, pursuant to Te xas Rules of Appellate Procedure 66 et. seq. , and would show the Court as follows: STATEMENT OF THE CASE On July 21 2009, Javier Urias was indicted for one count of allegedly intentionally and knowingly causing serious bodily injury to a child younger than fifteen years of age, J. A. 1 , on or about March 25, 2009. Mr. Urias’ indictment stated three paragraphs by which he could have caus ed serious injury to J.A.: (1) striking J.A. about the head with an unknown object , (2) striking J.A.’s head

1 As per the spirit of TRAPP 9.8, children will be r eferred to by initials only.v

against an unknown object, or (3) shaking J. A.’s b ody. (CR 2-3) 2 . At trial, a jury convicted Mr. Urias without specifying which paragr aph of the indictment their decision was held. RR 6 at 6-8. The same jury asses sed punishment to be confinement for 45 years and a $10,000 fine. (6 RR 112-116) (2 CR 656)

STATEMENT OF PROCEDURAL HISTORY In January 2012, Javier Urias was convicted by a Ju ry for first degree felony of serious injury to a child in the 243rd Judicial District Court, the Honorable Bill Hicks Presiding. Mr. Urias timely filed notice of a ppeal. (2 CR 680) The Eighth Court of Appeals affirmed his conviction in an unpu blished opinion on March 26,
2014. Urias v. State, 2014 WL 1259397 (Tex. App.-- El Paso, Mar. 26, 2014 ). A petition for discretionary review was not previou sly filed. A mandate issued from the Eighth Court of Appeals on Septembe r 12, 2014. Mr. Urias filed a

pro se writ under § 11.07 of the Texas Code of Criminal P rocedure requesting the opportunity to file an out of time petition for dis cretionary review. This court granted that request on May 20, 2015. The mandate i ssued from that holding on June 15, 2015. This petition follows.

GROUNDS FOR REVIEW

2 Citations to the clerk’s record will be denominate d as CR and the page number, to the reporter’s record as RR, volume and page number. S tate’s exhibits will be described as SX and number, defense exhibits as DX and number.vi

This Court should grant discretionary review, becau se the Eighth Court of Appeals decision below conflicts with applicable de cisions by this Court’s on an important question of law. Tex. R. App. Proc. 66.3( c)

ISSUES PRESENTED
1. It is an error to affirm conviction of injury to a child as legally sufficient when evidence amounts to mere presence and strong suspic ion or mere probability to prove corpus delicit ?

................................................. ................................................... ..................... Yes1 STATEMENT OF FACTS On March 25, 2009, Appellant, Javier Urias, called 911 to report an emergency concerning his fifteen month old stepson J.A.. (CR 210) (SX 1) (SX 3) A team lead by Dr. Alan Tyroch treated J.A. at R.E. Thomason General Hospital in El Paso, Texas. J. A. was diagnosed with acute subd ural hematoma, a head injury. (3 RR 105) Fortunately, J.A. had neither neck injur ies nor any internal injuries. (3
RR 154-155) J.A. received prompt medical attention tha t lead to a prognosis of J.A. being able to live a normal life. (3 RR 116-11 7) However, there was evidence that J. A. also had another older brain injury. (3 RR 114) Accordingly, Dr. Tyroch and his team have “a very low threshold to look for child abuse in any child that comes in, especially a child that comes in with a h ead injury.” (4 RR 139) On Dr. Tyroch’s direction, an ophthalmology expert days la ter assessed J.A.’s eyes for retinal hemorrhages or bleeding in the retinal fiel ds. Id . In a one page medical report Dr. Adams noted the presence of retinal blee ding to which Dr. Tyroch cited as evidencing abuse. Another physician, Dr. Fadi Hanbali, assessed J.A.’ s prior injury to be three weeks to four months old. (4 RR 105, 120) Dr. Hanba li believed the latest trauma occurred within 72 hours prior to J.A.’s admission to the hospital and conceded it was possible the symptoms manifested then even thou gh Mr. Urias “did not lay a hand on [J.A.].” (4 RR 123-125) Other witnesses tes tified Mr. Urias was never2

violent with the children, never hit them, and neve r spanked them. (4 RR 172) No one saw anyone hit J.A., strike J.A., or hit J.A.’s head against something. (4 RR 58, 135) On the day of J.A. sustained an acute subdural hema toma Mr. Urias reported on the 911 call that J. A. fell off the bed. All of Mr. Urias’ subsequent statements consistently recounted his initial statements. (CR 210) (SX 1) (SX 3) (3 RR 45-46) Mr. Urias explained that J.A. had woken up from a n ap and was sat up on a bed whereupon Mr. Urias left the room to get diaper wip es. When Mr. Urias returned, J.A. was on the floor screaming and crying, then J. A.’s mouth locked whereupon breathing became shallower and J.A unresponsive. Mr . Urias called an ambulance and attempted to “blow into his mouth” but could no t because the baby’s jaw was clenched and his mouth was closed. (CR 210) (SX 1) (SX 3) (3 RR 45-46) Mr. Urias met emergency personal with J.A. unconscious in Urias’ arms. (3 RR 23) The trier of fact found Mr. Urias guilty of serious injury to a child as per the indictment containing three alternative means of ca usation 3 and assessed a punishment of 45 years imprisonment and a $10,000,0 00 fine. Mr. Urias timely appealed where the Eighth Court of Appeals denied M r. Urias any relief. Accordingly, Mr. Urias now presents this petition f or discretionary review to the Texas Court of Criminal Appeals.

3 Paragraph a, striking J.A. about the head; paragra ph b, striking J.A.’s head against an unknown object; and paragraph c, shaking J.A.’s body. (CR 2 -3)3 ARGUMENT
I. Mr. Urias’ Mere Presence when J.A. was admitted to the Hospital and Evidence Amounting Only to Strong Suspicion or Mere Probability of Mr. Urias’ Culpability is Legally Insufficient to P rove Corpus Delicit . The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be to determine whether th e record evidence could reasonably support a finding of guilt beyond a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979 ). A mere modicum of evidence cannot rationally support a conviction beyond a reasonable doubt. Id . at 320.
Each fact need not point directly and independentl y to the guilt of the accused, however, as the cumulative effect of all t he incriminating facts may be sufficient to support the conviction. Plunkett v. State , 580 S.W.2d 815 (Tex. Crim. App. 1978). Complicity in an offense is not show by mere presence alone when the proof shown amounts to only strong or mere probabil ity and there is not showing that the act was committed intentionally and knowin gly. Johnson v. State , 673 S.W.2d 190, 197 (Tex. Crim. App. 1984). There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. Id . at 196. The fact that the trier of fact is entitl ed to disregard the defendant’s version of events does no t mean that the missing elements of the offense are supplied by rejection. Id . Juries are not permitted to come to conclusions based on mere speculation or fa ctually unsupported inferences4

or presumptions. Hooper v. State , 214 S. W. 3d 9, 15-16 (Tex. Crim. App. 2007); also see Johnson at 196. In Hooper this Court further explained:
[A]n inference is a conclusion reached by consideri ng other facts and deducing a logical consequence from them. Speculat ion is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be comple tely unreasonable, but it is not sufficiently based on facts or evidence t o support a finding beyond a reasonable doubt. Id. at 16. The record shows Mr. Urias was in sole possession o f J.A. for about thirtyfive minutes prior to J.A. being admitted to a hosp ital. (3 RR 159-60) J.A. did not sustain permanent injuries and will live a normal l ife. (3 RR 116-17) The State charged Mr. Urias by indictment with serious bodily injury to J.A. by three alternative means. (CR 2-3) Mr. Urias’ guilt was fo und without denoting the specific means of his culpability. Id . Mr. Urias received a prison sentence of fortyfive years. (6 RR 112) El Paso’s Court of Appeals h eld evidence was sufficient to support a finding of guilt beyond a reasonable doub t based on the two inferences that Mr. Urias was present at time of injury and ch aracteristics of the injury were dispositive that an accident did not occur. See Urias v. State, 2014 WL 1259397 (Tex. App.-- El Paso, Mar. 26, 2014).5

A review of associated case law provides a greater appreciation for the Courts of Appeals divergence and circumvention of t his Court precedential holding: A. This Court has Held in Cases Involving Serious Inj uries to Children Cumulative Incriminating Evidence Supports Convicti on, but Mere Presence with Only Strong Suspicion or Mere Probabi lity of Culpability is Insufficient. In Plunkett v. State the cumulative effect of incriminating evidence supported conviction of murder when defendant’s act ions were injurious despite his supposed benevolent intent. Plunkett v. State , 580 S.W.2d at 821. Larry Plunkett described finding A.D.P. lying on the floo r in her bedroom when he attempted to resuscitate her and may have used too much force. Id . at 820. Upon A.D.P.’s death, the autopsy showed injuries such as some forty bruises all over her body, skull fractures, and tears to organs: heart, liver, spleen, pancreas, and intestinal tissues. Id . at 818-19. Mr. Plunkett argued the evidence was o nly sufficient to demonstrate he attempted to help A.D. P. but was insufficient to show A.D.P.’s death was intentionally or knowingly cause d. Id . at 823. Texas’ Court of Criminal Appeals of Texas affirmed conviction. Id . at 825. This Court reasoned that the law of accident focuses on actions, not ca usation. Id . at 823. Each fact need not point directly and independently to guilt, the cumulative effect of all the incriminating facts was sufficient to support Mr. P lunkett’s conviction. Id . at 821.6

In Johnson v. State this Court reversed conviction holding corpus delicti is insufficiently meet when defendant’s version of chi ld’s death and serious injuries were negated facilitating conviction by default wit hout showing defendant committed any criminal act. Johnson v. State , 673 S.W.2d at 196. Karl Johnson explained how he found B.F. under his vehicle when the car accidently fell off the jack. Id. at 192. Several states’ witnesses, including exper ts, described their investigation showed the injuries in conjunction wi th the scene were not consistent with Mr. Johnson’s story. Id. at 192-93. A forensic pathologist stated with reasonable medical certainty the trauma was caused by a blow with a very blunt object. Id. at 192. The extent of Mr. Johnson’s relationship w ith B.F. was unclear, but there was no showing of any prior child abuse o r hostility. Id. at 194. Texas’ Court of Criminal Appeals reversed conviction. Id. at 197. This Court reasoned mere presence alone is not sufficient proof, even w hen coupled with strong or mere probability of culpability. Id . The trier of fact was entitled to disregard Mr. Johnson’s explanation but that did not mean that th e missing elements of the crime were supplied by showing that Mr. Johnson was compl icit in the crime alleged. Id. at 196-97

B. Texas’ Courts of Appeals have Held Mere Presence is Sufficient in Many Circumstances.7

In Butts v. State the court found Plunkett permitted finding corpus delicit when characteristics of the injuries established cu lpability and declined following Johnson holding inapplicability

. Butts v. State, 835 S.W.2d 147, 151 (Tex. App. – Corpus Christi 1992). Baby sitter Patty Butts had no explanation for J.A.’s knot on his head, skull fracture, and the resulting permane nt injuries of paralysis, blindness, and severe learning disabilities. Id. at 148. Ms. Butts and the state contested when the injuries could have occurred. Id . State expert concluded that the severity of J.A.’s injuries and the characteristics were caused by either being picked up, slammed, or thrown, and were equivalent to falling on concrete from a two-story window. Id. at 149-50. Corpus Christi Court of Appeals affirme d conviction. Id. at 152. The court reasoned that, unlike Johnson, the jury’s conclusion was supported by state’s witnesses’ testimony regarding character istics of injuries sustained while in the exclusive possession of Ms. Butts supported the jury’s prerogative of holding that Ms. Butts intentionally caused the inj uries. Id. at 151. The court citing

to Plunkett

found a rational juror may find from the circumsta nces that an offense was committed by Ms. Butts. Id

.
In Elledge v. State the court held expert testimony noting implausibil ity of injuries occurring other than when defendant was in sole custody of child established he was the perpetrator. Elledge v. State , 890 S.W.2d 843, 846 (Tex. App.– Austin 1994). Richard Elledge, father of R.G. E., described to R.G.E.’s8

mother that their five week old baby had fallen bet ween the pillow of the bed and the railing managing to wrap his arm around one of the bars. Id . at 845. Shortly after the parents decided it was necessary to bring R.G.E. to the hospital: R.G.E. died two days later. Id . The autopsy and other medical testimony showed R. G.E. suffered massive trauma to his brain and right side skull fracturing caused by a considerable blow to the head. Id . A physician further testified that injuries were very acute that it was not plausible for the injuri es to have occurred more than hour prior to hospital admittance. Id. at 848. The record undisputedly placed Mr. Elledge as the only person alone with the baby when the fatal injury was sustained. Id . at 847. Among the three points of error Mr. Elled ge appealed, sufficiency of evidence was not one of them. Austin’s Court of App eals affirmed conviction. Id. at 849. The court while addressing the weight of ne wly discovered evidence reasoned that the circumstances permitted culpabili ty when undisputed medical testimony placed Mr. Elledge as the only person alo ne with R.G.E. when the fatal injury was inflicted. Id. at 847.

Like Plunkett , in Bryant v. State the defendant claims he intentionally acted with benevolence but did not intend the injurious r esults to a child under his care. Bryant v. State , 909 S.W.2d 579, 583 (Tex. App.— Tyler 1995). Robe rt E. Bryant had sole possession of C.L. for about four hours be fore her admittance to the hospital where his account of events was little mor e than unexplained seizure. Id.9

at 581. C.L. suffered from fractured legs, bruises, and brain injuries sustained from severe skull fractures and hemorrhaging. Id. at 580. One physician noted Mr. Bryant smelled of alcohol the night in question and another physician ruled out infections or any natural phenomenon as potential c auses. Id. at 581. Both physicians agreed the brain injuries occurred withi n thirty minutes prior to admittance and various other fractures occurred wit hin days or a couple weeks thereof. Id at 580-81

. Mr. Bryant claimed C.L.’s injuries occurred prior t o his sole possession, but C.L.’s mother denied that C.L. was sick on the day in question. Id

. at 582-83. As information became available as to C. L.’s injuries, Mr. Bryant’s version of events varied as he described at points in time C.L. had fallen of the couch and hit the back of her head on the floor, he also remembered hitting C.L. on the back of the head and pushing C.L.’s stomach to dislodge a penny C.L. was choking on, and Mr. Bryant even admitted to shaking C.L. at some point. Id . at 582. During trial, Mr. Bryant said he held back on his disclosure of events since he was afraid it would be thought he intentionally hur t C.L.. Id . Tyler’s Court of Appeals affirmed conviction. Id. at 583. The court reasoned the evidence showed C.L. was in relatively healthy condition when Mr. B ryant took possession of C.L. and the acute nature of injuries demonstrated the t rauma occurred thirty minutes prior to admittance. Id. Therefore, it was undisputedly that injuries were s ustained10

when C.L. was in the sole possession of Mr. Bryant and the state did not need to disprove other reasonable hypotheses, such as Mr. B ryant’s account(s). Id.

Like Plunkett , the defendant in Garcia v. State admitted to acts that would directly result in injuries as the child was found to sustain when the adult defendant had sole access to child and evidence was upheld as sufficient. Garcia v. State , 16 S.W.3d 401, 406 (Tex. App.- El Paso 2000). Miguel A . Garcia admitted while taking care of his three month old daughter C.G. he shook her, punched her in the stomach, and karate chopped her nose the day C.G. w as pronounced dead. Id. at 405. Mr. Garcia provided a plethora of illustration s of his intentional infliction of injuries to C.G. over the course of two months, exp laining he would “lose it” when she cried and caused most of C.G.’s injuries by sha king her “real hard” but rarely hit C.G. with his fist. Id . The indictment alleged death by shaking and Mr. G arcia challenged the sufficiency of evidence to support h is conviction, El Paso’s Court of Appeals affirmed. Id. at 404. El Paso’s Court of Appeals began its analy sis with “Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its injuries are sust ained, the evidence is sufficient to support a conviction for injury to a child, or murd er if the child dies” citing Bryant , Elledge , and Butts

. Id . at 405. The court went on to reason that in regar ds to Mr. Garcia’s case a rational trier of fact could conclu de the cause of death, and Mr.11

Garcia’s culpability therein, since he admitted to being alone with C.G. when she sustained injuries and his related intentional acti ons. Id. at 406.

Like Plunkett , the defendant in Crawford v. State admitted to acts that would directly result in injuries as the child was found to sustain and evidence was upheld as sufficient. Crawford v. State , 2014 WL 5878112 (Tex. App.– Ft. Worth 2014). Austin Crawford was saying ten month old K.M. was b lue as K.M.’s mother woke up the day her daughter was pronounced dead. Id . at 2. The jury heard from several witnesses that Mr. Crawford admitted to shaking K.M . and were played a recording taped while Mr. Crawford was in custody a ttesting to that effect. Id. at 2- 3. A Detective further stated Mr. Crawford also adm itted to throwing K.M. on the couch where Mr. Crawford later found K.M. not breat hing. Id. at 3. K.M.’s treating physician characterized the injuries as non-acciden tal as they were consistent with someone violently shaking K.M. or striking her. Id. at 2. K.M.’s medical examiner found evidence of blunt head trauma concluding K.M. was struck or caused strike something. Id. at 3. Mr. Crawford contested the sufficiency of th e evidence since he was not in exclusive possession of K.M. at the t ime her injuries were sustained. Id . Fort Worth’s Court of Appeals affirmed conviction

. Id. at 5. The court reasoned that necessary inferences are reasonable when based upon the cumulative force of the evidence and sole possession was simply a facto r for incrimination, not a perquisite of culpability. Id. at 3-4.12

C. El Paso Court of Appeals holding in Urias . Like Johnson , here the evidence presented at trial amounts to o nly strong suspicion or mere probability that Javier Urias is culpable of serious injury to a child. Urias v. State , 2014 WL 1259397 (Tex. App.— El Paso 2014). Mr. Ur ias, while dating J.A.’s mother, was taking care of J.A. and called emergency services to report J.A. sustained injuries when J.A. fell of f a bed. Id . at 1. J.A. had minor old bruises, but visibly, little more. Id . A computerized tomography scan revealed building cranial pressure from two separate hematom as. Id . One hematoma was sustained no more than seven-two hours prior, and t he other one anywhere from three weeks to four months old. Id . J.A. immediately underwent surgery. Id . The only other caretakers of J.A. testified Mr. Urias t reated J.A. appropriately. Id

. There were no notable averse actions of Mr. Urias e videnced otherwise, with exception of Mr. Urias explaining he “tried to slap [J.A.] around a little bit to wake him up” when J.A. lost consciousness. Id . One of J.A.’s treating physicians testified that J.A.’s injuries could have been sust ained at the time from falling off a bed due to the past hematoma. Id . at 2. The physician went on to say while referring to findings of another physician, who did not testify, that J.A.’s retinal bleeding suggested the injuries were intentionally caused and not accidentally. Id

. El Paso’s Court of Appeals affirmed conviction. Id . at 5. The court reasoned a jury could infer that J.A.’s injuries were sustained whe n in the sole possession of Mr.13

Urias 4 (citing Garcia ) and could also infer that that injury was intenti onally caused and not a result of accident 5 or natural effect. Id . at 3.

Stare Decisis of Johnson is Applicable to Urias. The court of Butts focusing on dicta in Johnson found the evidentiary burden to be met by an expert witness’ belief that J.A.’s injuries occurred as an intentional act perpetrated by an adult during the time J.A. wa s in Ms. Butts’ exclusive care.
Butts , 835 S.W.2d at 150. The court went on to state tha t it was the jury’s prerogative to determine the cause of J.A.’s injury to be Ms. Butts. Id. at 151. In order to reach this conclusion the court of Butts cites Plunkett. Id. However, as detailed above this Court explained in Plunkett evidence supports affirming conviction when its cumulative effects sufficiently incriminate the defendant. This Court in Johnson specifically stated that its holding was contingen t upon Wright : it is not within the prerogative of jurors to find guilt simply by negative disjunction. Johnson v. State, 673 S.W.2d at 197; see Wright v. State , 603 S.W.2d 838 (Tex. Crim. App. 1980). Moreover, in Johnson this Court held complicity is not demonstrated by mere presence and proof amounti ng to strong or mere

4 To establish Mr. Urias was present the court found injuries occurred shortly before J.A. exhibited symptoms for three reasons: (1) children’s larger brains has tens the onset of neurological symptoms, (2) prior injury reduced the space inside the cranium even further before the second bleed began, and (3) a shift in a child’ s brain from those injuries would cause total comatose towards the seventy-two-hour widow limit. 5 The court noted that the lack of any discernable t rauma on J.A.’s body combined with the presence of retinal bleeding indicated J.A.’s injur ies stemmed from being shaken vigorously.14

probability when there is no showing that the relat ed act was committed intentionally and knowingly. Id

. Unlike Butts , the court of Elledge does not even mention Johnson. This is likely do the fact that Mr. Elledge did not appeal on the issue of sufficiency of evidence. In Elledge the assessment of the weight of the evidence was i n regards to the effects new evidence would have upon a new tria l. Elledge v. State , 890 S.W.2d at 847. There was not discussion of Plunkett or Johnson and the standards therein. Whereas, Bryant , Garcia , and Crawford all satisfy the evidentiary standard
in Plunkett , in that the cumulative effect of incriminating ev idence points to an intentional action(s) on the part of the defendant that directly caused serious injuries or death to a child. Therefore, it is in meeting the standard in Plunkett that there was more than mere presence and evidence amou nting to only strong suspicion or mere probability of culpability. Crawford was correct in that exclusive possession held in Garcia is simply factor for incriminating evidence, not a perquisite of culpability. Crawford , 2014 WL 5878112, 3.
Accordingly, El Paso’s Court of Appeals below erre d when it cited Garcia is determinative on this matter that evidence is suffi cient for injury to a child conviction where it shows an adult defendant has ha d sole access to a child at the time the child sustained her injuries. This Court h eld in Johnson and Plunkett the15

State must demonstrate more against Mr. Urias than has been shown, mere presence and resulting strong suspicion or mere pro bability of culpability is not sufficient to uphold Mr. Urias’ conviction. To establish Mr. Urias was present at the time of injuries, and the false inference of Mr. Urias’ complicity, the court below denoted dispositive reasons as follows:
(1) children’s larger brains hastens the onset of n eurological symptoms, (2) prior injury reduced the space inside the crani um even further before the second bleed began, (3) a shift in a child’s brain from those injuries would cause total comatose towards the seventy-two-hour widow limit, and (4) the lack of any discernable trauma on J.A.’s bo dy combined with the presence of retinal bleeding indicated J.A.’s injur ies stemmed from being shaken vigorously. Urias v. State , 2014 WL 1259397 at 3. None of the reasons supplie d by the court supply proof beyond strong suspicion or mere probab ility that Mr. Urias may have or may not have been complicit in any related act r esulting in the crime alleged. Furthermore, it is presumptive for the court to fin d causation for the jury when the Jury was presented three alternative means and did not specific which method alleged they found culpability upon. During the time medical testimony said J.A. could have sustained his injuries, the record definitely shows J.A. had mult iple care takers: Guadalupe16

Salas, J.A.’s great aunt, watched J.A. the day befo re the onset of his symptoms (3 RR 56), Yolanda Salas, J.A.’s other great aunt also had access to J.A. that day ( RR 58), and J.A.’s mother, Roxanne Alvarado, also had access to J.A.. (3 RR 132). The proof required under Plunkett and Johnson is only further complicated by the fact that J.A. had a chronic or pre-existing subdur al hematoma at the time he fell off of his bed that no evidence attributes to Mr. U rias. (3 RR 119) The record shows that even benign circumstances could have tri ggered a re-bleed. (3 RR 45- 46) (CR 210) (SX 1) (SX 3) Moreover, there was no e vidence from any source of anyone seeing Mr. Urias or someone else hitting J. A., striking J.A. against something, or shaking J.A.. These facts demonstrate that only mere probability or strong suspicion exists for Mr. Urias’ culpability and severely undermine a finding that Mr. Urias’ was even present at the time the in juries occurred.

CONCLUSION This Court has provided Texas’ Courts of Appeals t he standards to assess sufficiency of evidence in cases involving serious injury or death to children: in Plunkett this Court held cumulative incriminating evidence m ay support a conviction, and as per Johnson mere presence with only strong suspicion or mere probability of culpability is insufficient. Both ho ldings remain precedential law that the El Paso’s Court of Appeals declines to fol low when it holds that evidence is sufficient for injury to a child conviction wher e it shows, without more, an adult17

defendant has had sole access to a child at the tim e the child sustained her injuries.
Urias v. State , 2014 WL 1259397 at 3. Therefore, Mr. Urias is ent itled to the relief of reversal of his conviction of injury to a child since the evidence did not prove corpus delicit of the crime alleged and thus is legally insufficie nt.18 PRAYER Wherefore, appellant prays that this petition for d iscretionary review be granted, that this court review the opinion of the Eighth Court of Appeals, and requests all relief to which he may show himself ju stly entitled.
Respectfully Submitted, JAIME GÁNDARA El Paso County Chief Public Defender

/s/ William Robinson Cox William Robinson Cox First Assistant State Bar No. 00792933 500 E. San Antonio, Room 501 El Paso, Texas 79901 Tel. No. 915.546.8185 Fax 915.546.8186 wcox@epcounty.com Benjamin Joseph Gutiérrez Solo Practitioner State Bar No. 24094693 Post Office Box 41 El Paso, Texas 79940 Tel. No. 915.239.0793 Fax No. 866.399.5268 bjgutierrez@miners.utep.edu

CERTIFICATE OF SERVICE Pursuant to Tex. R. App. P. 9.5(d), copies of the f oregoing petition were served on opposing counsel, and the State Prosecuti ng Attorney, P.O. Box 12405, Capital Station, Austin, Texas 78711, by placing co pies in the United States mail, postage prepaid, on July 15 th , 2015. /s/ William Robinson Cox William Robinson Cox19 CERTIFICATE OF COMPLIANCE
Undersigned counsel herein states that the computer generated word count is 3,611 and as such this document is in compliance wi th the Texas Rules of Appellate Procedure.

/s/ William Robinson Cox William Robinson Cox

Benjamin Joseph GutiérrezJAVIER URIAS v. THE STATE OF TEXAS 

## APPENDIX- 1 - COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § JAVIER URIAS, No. 08-12-00090-CR § Appellant, Appeal from the § 243rd District Court § STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20090D03338)

O P I N I O N Javier Urias appeals his conviction of injury to a child causing serious bodily injury. In two issues, Appellant challenges the legal sufficie ncy of the evidence and the admission of a medical doctor's expert testimony over his Daubert' and Confrontation Clause objections. We affirm. BACKGROUND Prior to the incident in question in 2009, Appellan t had been dating Roxanne Alvarado ("Roxanne"), mother of a four-year-old boy, a two-w eek-old boy, and fifteen-month-old Dominic Jacob Alvarado ("Jacob"), for about eight m onths. None of Roxanne's sons were Appellant's biological children. Appellant and Roxa nne resided together in a studio apartment that was part of a three-apartment buildi ng. Roxanne's two aunts resided in the other units.

_________________________ 'Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).- 2 - Roxanne's youngest son was born premature, so Roxan ne went to the hospital twice a day following his birth to feed him and learn appropria te care methods. Appellant usually accompanied Roxanne to the hospital during these vi sits. During this time, Roxanne, Appellant, and Roxanne's two aunts were the only pe ople who took care of Roxanne's sons. Roxanne testified that she trusted Appellant with h er children, and Roxanne' s aunt Guadalupe S alas testified that Appellant usually t reated Roxanne's children appropriately. On Mach 25, 2009, Roxanne left Appellant in charge of Jacob while she went to the hospital. Salas had watched Jacob the prior day. Salas testif ied that Jacob had been in good health that day, and neither she nor her sister Yolanda had hit Jacob or caused him any injury. Roxanne also denied hitting Jacob and denied any knowledge of any prior head injuries. Appellant did not testify in his own defense. His account as rela yed through a 911 call recording and his statements to police indicates that Appellant claim ed he had placed Jacob on a bed while changing his diaper. While Appellant left the room to get supplies, he heard Jacob screaming, and when he returned, the baby was on the floor. Wh en Appellant picked him up, Jacob was clenching his jaw and breathing irregularly. At som e point, Jacob lost consciousness, and Appellant "tried to slap him around a little bit to wake him up." Appellant called 911. When paramedics arrived, Jacob was breathing but un conscious and unresponsive. Appellant told them that Jacob had fallen off the b ed and that he had cried before becoming unconscious. One paramedic testified that Jacob had no apparent physical injuries beyond a bruise on his forehead and a small cut on his chin, both of which were "old." Paramedics subsequently took Jacob by ambulance to R.E. Thomas on General Hospital, now known as University Medical Center ("UMC"), in El Paso. Jacob arrived at the hospital semi-conscious and ne arly in a coma. A team of medical- 3 - personnel led by Dr. Alan Tyroch treated Jacob at U MC. The hospital admitted Jacob as a Level I trauma patient. An X-ray bone scan showed t hat Jacob had no visible bone fractures. A CT scan of Jacob's head indicated the presence of blood from two separate subdural hematomas, one chronic - i.e., between three weeks and four months old - and one acute, taking place within 72 hours of the scan. Dr. Fadi Hanbali, a neurosurgeon on Jacob's treatment team, testified that subdural hematomas o ccur when blood vessels in the skull rupture as a result of trauma and blood begins to a ccumulate between the brain and the dura, a hard membrane encasing the brain inside the crani um. In Jacob's case, the subdural hematoma had caused a 9-millimeter midline shift of the brain, meaning that accumulating blood had forced Jacob's brain to one side of the s kull. Dr. Hanbali characterized the 9-mm midline shift as a serious medical emergency that c ould result in death. He testified that he performed surgery to stem the bleeding and evacuate blood from inside the dura, thereby relieving pressure on the brain. Following surgery, Dr. Tyroch asked Dr. Neil Adams, an ophthalmologist, to perform an eye exam on Jacob. Dr. Adams, who did not testif y at trial, noted the presence of retinal bleeding in Jacob's medical file. Both Dr. Hanbali and Dr. Tyroch testified that retinal hemorrhaging was not consistent with a fall from th e bed and suggested instead that Jacob had been shaken fairly vigorously. Dr. Tyroch furth er testified that although it was possible that the previous subdural hematoma made Jacob more susceptible to getting the acute hematoma from a short fall from the bed, the presen ce of retinal bleeding and absence of recent visible trauma suggested that the injury ste mmed from a caretaker's intentional shaking of the child and not an accidental fall. The jury returned a guilty verdict against Appellan t. He was sentenced to forty-five years' in prison.- 4 - I. In Issue One, Appellant contends that the evidence is legally insufficient to support a jury finding that he caused Jacob's serious injurie s. We disagree.2 Standard of Review In assessing the legal sufficiency of a verdict, we review all the evidence in the record, both "properly and improperly admitted[,]" in "the light most favorable to the prosecution" to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Clayton v. State , 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2 d 560 (1979)[Emphasis omitted]. "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstant ial evidence alone can be sufficient to establish guilt." Id., citing Hooper v. State , 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Our role on legal sufficiency review is not to usurp the jur y and replace its verdict with our own; instead, we serve as a procedural safeguard, ensuri ng that whatever verdict the jury rendered comports with due process. King v. State , 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Johnson v. State , 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). "In con ducting this review, we must defer to the jury's role as the sole judge of the credibility and weight that testimony is to be afforded." Castaneda v. State , 08-10-00050-CR, 2011 WL 4490960, at *4 (Tex.App.- -E1 Paso Sept. 28, 2011, pet, ref'd)(not designated for publication). Analysis Appellant complains that the State, at best, merely presented the jury with conflicting, equally plausible guilt and innocence scenarios tha t cannot establish proof of guilt beyond a

__________________________ 2 As a threshold matter, the State objects to Appel lant's briefing of Issue One, arguing that it is de ficient under TEx.R.APP.P. 38.1 and thus presents nothing for our review. We overrule the State's objection and find that Issue One of Appellant's brief complies with the Rules of App ellate Procedure.- 5 - reasonable doubt as a matter of law. See Clark v. P rocunier, 755 F.2d 394, 396 (5th Cir. 1985)(where evidence gives near-equal weight to the ories of guilt and innocence, reasonable doubt precluding a guilty verdict exists and a defe ndant is entitled to acquittal). However, the "introduction of conflicting evidence does not rend er evidence insufficient." Castaneda, 2011 WL 4490960, at N. The Court of Criminal Appeals has instructed the courts of appeals to presume that "[w]hen the record supports conflictin g inferences . . . the factfinder resolved the conflicts in favor of the prosecution[.]" Clayt on, 235 S.W.3d at 778. The ultimate question we answer in Issue One is whether any rati onal trier of fact could find that the State has proved every element of an offense beyond a rea sonable doubt. Clayton, 235 S.W.3d at 778. Here, we find the State met its burden. Appellant complains specifically that the State fai led to provide evidence that Jacob's injuries were non-accidental, or that the injuries occurred while Appellant had sole care, custody, and control of Jacob, which would give rise to a permis sible inference that he caused the injury. See Castaneda, 2011 WL 4490960, at *5 (evidence is sufficient for injury to a child conviction where it shows "an adult defendant has h ad sole access to a child at the time the child sustained her injuries . . . ."); Garcia v. S tate, 16 S.W.3d 401, 405 (Tex.App.--El Paso 2000, pet. ref d)(listing cases holding same). The medical testimony is dispositive on these issue s. The medical experts testified that although the CT scan could only establish that the blood began pooling between the brain and the dura at some point within seventy-two hours of the scan, the bleeding likely began shortly before Jacob exhibited symptoms, given that (1) a c hild's brain is larger in relation to the skull than an adult's brain, which hastens the onse t of a subdural hematoma's neurological symptoms in children; (2) the presence of old blood from the second, undetected subdural hematoma would- 6 - have reduced the space inside the cranium even furt her before the second bleed began; and (3) Jacob arrived at the hospital semi-conscious in spite of his brain having shifted nine millimeters off-center, whereas a subdural hematoma that serious in a child that age likely would have rendered him totally comatose as he appr oached the seventy-two-hour window limit. Dr. Tyroch further testified that while the first healed-over subdural hematoma could have made Jacob more susceptible to a bleed from ac cidentally falling off the bed, the lack of any discernable trauma on Jacob's body combined wit h the presence of retinal bleeding indicated to him that Jacob's injuries stemmed from being shaken vigorously. Based on this testimony, a rational juror could inf er that Jacob sustained a subdural hematoma at the time he was in Appellant's sole care, custody, and control. A rational juror could also infer based on the presen ce of retinal hemorrhaging that the injury was caused by vigorous shaking and not by accident, some prior injury, or a congenital defect. Taking those two factors together, a ration al juror could find guilt beyond a reasonable doubt on the charge levied in the indict ment. The evidence is legally sufficient. Issue One is overruled. II. In Issue Two, Appellant maintains that the trial co urt erred by admitting, over his objections on Daubert and Confrontation Clause grou nds, portions of Dr. Tyroch's testimony. Specifically, Appellant complains that Dr. Tyroch's testimony about Jacob's retinal hemorrhaging stemmed from the medical report of Dr. Adams, the ophthalmologist with whom Dr. Tyroch consulted during treatment who did not testify at trial. Because Appellant could not cross-examine Dr. Adams regarding his med ical findings, Appellant contends his confrontation rights were violated under Bullicomin g v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d- 7 - 610 (2011). The State raises a bevy of briefing and preservation of error issues before arguing alternatively that Dr. Adams' medical repor t was not "testimonial" under the Sixth Amendment. We address each issue in turn. Inadequate Briefing on Daubert Issue In its response, the State contends that Appellant failed to adequately brief the Daubert issue. We agree. Although the Court is mindful of i ts duty to liberally construct briefs in assessing compliance with the Rules of Appellate Pr ocedure, see TEx.R.APP.P. 38.9; White v. State , 50 S.W.3d 31, 45 (Tex.App.--Waco 2001, pet. ref d ), Appellant has failed to comply with TEx.R.APP.P. 38.1(i). His argument section set s out the standard of review for Daubert challenges before Appellant states that "[b]ased on the totality of the evidence it is appellant's position that State [sic] failed to establish the e tiology of the injury and therefore to prove its causal link to the defendant." Even under the most liberal construction of his brief, Appellant failed to challenge Dr. Tyroch's credential or meth odology, nor did he apply the law to any facts beyond this conclusory assertion. As such, we find that nothing has been presented for appellate review on this issue.
The Daubert

sub-point of Issue Two is overruled on inadequate briefing grounds.

Preservation of Error The State further argues that Appellant failed to p reserve error on the admission of Dr. Adams' retinal bleeding diagnosis because he failed to timely object to testimony and because his argument on appeal fails to comport with the ob jection made at trial. We agree that Appellant failed to preserve error. "To be timely, a request, objection, or motion must be made at the earliest opportunity." Casey v. State , 349 S.W.3d 825, 834 (Tex.App.--El Paso 2011, pet. ref d). "An objection must- 8 - be made each time inadmissible evidence is offered unless the complaining party obtains a running objection or obtains a ruling on his compla int in a hearing outside the presence of the jury." Garza v. State , No. 08-11-00035-CR, 2012 WL 1883118, at *2 (Tex.A pp.--El Paso May 23, 2012, pet. rerd)(not designated for publica tion). Further, an objection does not preserve error unless the trial court rules on the objection or the complaining party objects to the trial court's refusal to rule. TEx.R.APP.P. 33. 1(a)(2).

Here, Appellant failed to preserve error for two re asons. First, Appellant failed to obtain a ruling on the confrontation objection. Ins tead, the record shows that Appellant lodged an objection arguably on confrontation groun ds, among other grounds, before the court allowed him to take Dr. Tyroch on voir dire a t a Daubert hearing. Following that hearing, Appellant objected to Dr. Tyroch's testimo ny on the basis that it was cumulative. The trial court overruled the objection and noted t hat it found Dr. Tyroch to be qualified to testify as an expert. Appellant then requested mimi ng objections on the issues of relevance, cumulative presentation of evidence, improper bolst ering, "asked and answered," and on Dr. Tyroch's qualifications. The trial court granted ru nning objections only on the issues of relevance and cumulative presentation. The record d oes not indicate that the trial court ever ruled on the confrontation grounds Appellant advanc ed in his pre- Daubert hearing objection. As such, no error is preserved. Second, Appellant waived his objection on the basis of timeliness. Appellant's counsel failed to object to the discussion of retinal bleeding dur ing Dr. Hanbali's testimony prior to Dr. Tyroch relaying the same information to the jury. A ppellant's counsel claims he refrained from objection during Dr. Hanbali's testimony becau se Dr. Adams was designated as a possible witness on the State's witness list for tr ial, and it was his understanding that Dr. Adams would- 9 - testify. When counsel realized that Dr. Adams would not testify, he maintains he objected, informed the trial court of the situation, and requ ested a limiting instruction from the court. However, this is not enough to preserve error on co nfrontation grounds. Counsel should have objected at the first mention of the retinal bleedi ng if he wished to preserve the issue for appeal. Casey , 349 S.W.3d at 843.

Finally, even if error was properly preserved, the Sixth Amendment prohibits the introduction only of testimonial statements from unavailable declarants not previou sly subjected to cross-examination. Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). Dr. Adams statements were not "testimonial" for Crawford purposes, given that they were made for the primary purpose of rendering medical treatment and obtaining a differential diagnosis between acci dental injury and intentional trauma. See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 312 n.2, 129 S.Ct. 2527, 2533 n.2, 174 L.Ed.2d 314 (2009); Berkley v. State , 298 S.W.3d 712, 715 (Tex.App.--San Antonio 2009, pet. ref'd)(admission of unavailable sexual assault nurse examiner's report through a surrogate did not violate Crawford because report compiled for non-testimonial medica l treatment purposes); Perez v. State , No. 1411-01102-CR, 2013 WL 655714, at *7..*8 (Tex.App.--Houston [14th Dist.] Feb. 21, 2013, no p et.)(mem. op., not designated for publication)(absent direct evidence of physician's purpose in questioning patient, trial court does not abuse its discretion in ruling physician's report is non-testimonial and made for medical purposes). Issue Two is overruled. We affirm Appellant's convi ction. March 26, 2014 YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rivera, and Rodriguez, JJ. (Do Not Publish)