MEMORANDUM OPINION

No. 04-11-00875-CR

Eric CERVERA,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2010CR11019

Honorable Sid L. Harle, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: October 10, 2012

AFFIRMED

After a jury trial, appellant Eric Cervera was found guilty of the capital murder of 

Jerrmiah Estabrook, a child under the age of six. The trial court assessed punishment at life 

without parole. On appeal, Cervera argues: (1) the evidence is legally insufficient, and (2) the 

trial court erred in denying his motion for new trial based on jury misconduct. We affirm the 

trial court’s judgment.
04-11-00875-CR

- 2 -

BACKGROUND

San Antonio Police Officer Julio Orta testified that on July 30, 2010, at approximately 

4:00 p.m., he was dispatched to the residence of Ilandia Estabrook for a nonresponsive child. 

Jerrmiah was already in the ambulance when he arrived, so he spoke with Cervera, whom he 

identified as the “stepdad” and the only adult taking care of Jerrmiah. Cervera and his eight and 

ten-year old boys, E.J. and Fabian, moved in with Ilandia approximately two months BEFORE

the day in question. Officer Orta described Cervera as distressed, worried, and nervous. Officer 

Orta also testified Cervera told him he put Jerrmiah down for a nap and when Cervera went to 

wake him up, he noticed Jerrmiah was nonresponsive, not breathing. Cervera called EMS. 

Officer Orta testified Ilandia was crying and hysterical. Officer Orta testified there were two 

other children at the apartment, but he did not speak to them.

The State next called San Antonio Fire Department paramedic Cruz Solis. Solis 

responded to the apartment complex for a “full arrest.” When he made his initial evaluation, 

Jerrmiah had no pulse and was not breathing. Solis also noted Jerrmiah was “cool to the touch” 

and exhibited “no sign of life.” Solis further described Jerrmiah’s eyes as fixed and explained 

the dilated pupils indicated his brain was no longer controlling the iris part of the eye. During 

treatment, Solis did not uncover any signs Jerrmiah choked or had anything lodged in his mouth. 

Although the paramedics attempted several times to revive Jerrmiah, they never saw any type of 

response from the child. Solis also testified he noticed unusual bruising on Jerrmiah’s forehead.

Investigator Crystal Martinez with the Bexar County Crime Lab identified a number of 

photographs taken at the scene. She also documented a small child’s damp black t-shirt, a 

trashcan with a dirty diaper, and a pair of toddler jean shorts that were also soiled and damp – all 
04-11-00875-CR

- 3 -

found in the bathroom attached to the bedroom where Jerrmiah was sleeping. Investigator 

Martinez also identified a towel, with blood stains, which had been found in the bedroom closet. 

The jury next heard from Investigator Frank Randolph with Child Protective Services. 

Because there were other children in the apartment, Investigator Randolph was charged with 

interviewing everyone within the household to determine whether a safety plan was necessary 

for the other children. Investigator Randolph described Cervera as calm and remembered him 

crying a little bit. 

According to Cervera’s version of events as related to Investigator Randolph, Jerrmiah 

woke up at about 8:00 a.m. that morning. He had his diaper changed and Cervera gave him toys 

to play with in his bed. About an hour later, Ilandia left to purchase groceries. At 10:00 a.m., 

Ilandia came home, seated Jerrmiah at the table, and gave him some cereal. By 10:30 a.m., 

Ilandia left for work, Jerrmiah was finished with his breakfast, and E.J. was waking up. Cervera 

told Investigator Rudolph he took Jerrmiah to the bedroom where they listened to music and 

Cervera worked on the computer until approximately 1:30 p.m. Cervera claimed that at 2:30 

p.m., “the alarm went off on my phone for [Jerrmiah’s] nap.” Cervera put Jerrmiah in his bed, 

gave him a cup with some Koolaid and laid him down. Cervera claimed that when he went back 

at 3:30 p.m., he called out several times to Jerrmiah, but he did not respond. Cervera further 

claimed that when he picked up Jerrmiah, Jerrmiah was “limp and cold” and would not wake up.

With regard to Jerrmiah’s injuries, the State called Dr. Randy Frost, the Bexar County 

medical examiner. Dr. Frost identified at least six injuries about Jerrmiah’s face and head, 

including several contusions or bruises over his left eye. Dr. Frost stated these injuries were 

consistent with a fist hitting his forehead, on the right side of his head, and on his right cheek. 

Dr. Frost testified to bruises up and down Jerrmiah’s leg and on his left foot, at the base of the 
04-11-00875-CR

- 4 -

toes. Additionally, there was bruising on Jerrmiah’s penis, indicating a direct blow to his 

penis/pubic area. On Jerrmiah’s back, Dr. Frost noted two areas of bruising, one a bit older than 

the other. Upon his internal examination, Dr. Frost noted Jerrmiah suffered severe abdominal 

bleeding, amounting to a loss of a third of his total blood volume. With regard to Jerrmiah’s 

liver, Dr. Frost noted two areas of concern: (1) a large tear in the liver with no evidence of 

healing, and (2) two additional areas that appeared to have been injured earlier and were partially 

healed. Dr. Frost also noted bruising over the duodenum and a complete tear of Jerrmiah’s 

pancreas. Dr. Frost testified Jerrmiah had several rib fractures, unusual in a small child, that 

were indicative of “a tremendous degree of force.” Dr. Frost stated these injuries were consistent 

with a major blow, like a motor vehicle accident or direct blow, but not likely to be caused by 

children “horse playing.” Finally, Dr. Frost explained that determining an exact time of the 

injuries causing Jerrmiah’s death was difficult, especially considering both new and old injuries. 

He did conclude, however, that in his opinion, the newer injuries probably occurred within a 

matter of hours of Jerrmiah’s death. Frost further testified that in his opinion the injuries came 

from multiple blows and were consistent with several blows by an adult hand and/or foot. 

Ilandia tearfully testified about the events leading up to July 30, 2010. She told the jury 

she was in love with Cervera and, because he had recently lost his job, they agreed that he, E.J., 

and Fabian would move into her apartment. In exchange, because Ilandia was working two jobs, 

Cervera agreed to watch Jerrmiah to save on childcare expenses. 

Ilandia testified she received a text from Cervera, about a week before the incident in 

question, in which Cervera explained that he and the boys were wrestling and Jerrmiah “had 

gotten a bruise.” He told her not to worry, but explained that Jerrmiah was feeling a little sick 

and resting. When Ilandia arrived home, she saw a bruise on Jerrmiah’s back and a bruise on his 
04-11-00875-CR

- 5 -

face. Ilandia stated she was angry with Cervera, but he was adamant it was an accident. Ilandia 

testified that, the next day, Jerrmiah was lethargic, throwing up, and crying. Although she 

wanted to take Jerrmiah to the doctor, Cervera insisted E.J. had experienced a similar sickness 

and that Jerrmiah would be fine. He also warned her, that because of the bruise, if she went to 

the hospital that CPS would get involved. Cervera kept apologizing and Ilandia did not take 

Jerrmiah to the doctor. Ilandia testified that by Sunday Jerrmiah was feeling better and able to 

keep crackers and some liquids down; he grew gradually better throughout the week. Dr. Frost 

indicated the bruises and lethargic behavior were consistent with Jerrmiah’s partially healed liver 

injuries. Specifically, Dr. Frost explained there would have been bleeding into the abdomen and 

Jerrmiah would have felt weak and dizzy, with a fast pulse.

With regard to July 30th, Ilandia testified Jerrmiah woke with a wet diaper. She changed 

the diaper, pulled the wet sheets off his bed, and threw the sheets in the closet. After dressing 

Jerrmiah, Ilandia went to the grocery store, and before she left for work, Jerrmiah was sitting at 

the table eating cereal. Ilandia was adamant that Jerrmiah did not have any bruises, especially 

not on his forehead or penis. During the day, Ilandia testified she ignored several text messages, 

but finally called Cervera only to be told that Jerrmiah was not breathing. Cervera told her the 

same version of events; however, Ilandia remembers Cervera telling her he performed CPR on 

Jerrmiah. The next day Cervera told Ilandia “they were going to arrest him” and “he was going 

away for a long time.”

LEGAL SUFFICIENCY

In his first issue on appeal, Cervera argues the evidence is legally insufficient to support a 

conviction, specifically because: (1) no motive was shown; (2) no weapon was found; (3) none 

of Cervera’s blood or DNA was found on Jerrmiah or in locations that would suggest he cleaned 
04-11-00875-CR

- 6 -

up; (4) Cervera called 911; (5) no one heard Jerrmiah screaming, suggesting someone else 

murdered Jerrmiah at another unknown location; and (6) the State’s failure to call Cervera’s 

eight year-old and ten year-old sons implies these witnesses would have been hostile to the 

State’s theory of the case.

Standard of Review

In reviewing the legal sufficiency of the evidence in a criminal case, an appellate court 

uses the standard established in the Supreme Court’s opinion in Jackson v. Virginia. Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 

(1979)); Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d). In 

reviewing a legal sufficiency claim, “the relevant question is whether, after viewing the evidence 

in the light most favorable to the verdict, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Mayberry, 351 S.W.3d at 509 (citing 

Jackson, 443 U.S. at 319). We must therefore defer to the jury’s weighing of the evidence, 

resolution of conflicts in the testimony, and assessment of credibility. Brooks, 323 S.W.3d at 

899; see also Jackson, 443 U.S. at 319 (taking into account the trier of fact’s duty “to resolve 

conflicts in the testimony to weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts.”). 

This standard requires an appellate court resolve any inconsistencies in the testimony in 

favor of the verdict. Gonzales v. State, 330 S.W.3d 691, 694 (Tex. App.—San Antonio 2010, no 

pet.) (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). Thus, in analyzing the 

legal sufficiency of the evidence, this court must determine whether the necessary inferences are 

reasonable based on the combined force of the evidence, direct and circumstantial, when viewed 

in the light most favorable to the verdict. Mayberry, 351 S.W.3d at 509 (citing Clayton v. State, 
04-11-00875-CR

- 7 -

235 S.W.3d 772, 779 (Tex. Crim. App. 2007)); see also Guevara v. State, 152 S.W.3d 45, 49 

(Tex. Crim. App. 2004) (holding standard of review is same for both direct and circumstantial 

cases).

Moreover, an appellate court must remain mindful not to reweigh the evidence or 

substitute its judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 

2000). The jury is the sole judge of the credibility of the witnesses and the weight to be given 

their testimony, and the jury may accept or reject all or any part of a witness’s testimony. 

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury maintains the power to 

draw reasonable inferences from basic facts to ultimate facts; and their sole province to reconcile 

any evidentiary conflicts. Welch v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, 

no pet.); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

The State may prove its case by direct or circumstantial evidence so long as it meets its 

burden of proving each of the required elements of the charged offense beyond a reasonable 

doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex. App.—San Antonio 1998, no pet.) (citing 

Jackson, 443 U.S. at 319). This is applicable to proving the accused was the perpetrator of the 

criminal offense. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Smith v. State, 

56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 

Analysis

Cervera argues the State failed to prove he killed Jerrmiah Estabrook. More specifically, 

Cervera argues the State failed to establish, beyond a reasonable doubt, that, if Jerrmiah was hurt 

by someone, that Cervera and not one of the other children in the house, hurt him. Cervera 

asserts the State failed to present any direct evidence that he committed the murder or a witness 

claiming to have seen Jerrmiah injured or heard him cry. He also points out no murder weapon 
04-11-00875-CR

- 8 -

was found, and not even the medical examiner could identify the exact weapon or type of 

weapon used to cause Jerrmiah’s deadly injuries. Cervera concludes the circumstantial evidence 

is legally insufficient. We disagree.

By his own admission, Cervera was the only adult home at the time of the incident. The 

coroner testified: (1) it would take a great deal of force to cause the abdominal injuries, and (2) 

Cervera’s version of the events simply did not make any medical sense. See Duren v. State, 87 

S.W.3d 719, 726-27 (Tex. App.—Texarkana 2002, no pet.) (finding evidence sufficient 

including medical expert’s testimony that child’s injuries were not consistent with defendant’s 

explanation). We hold this evidence, along with that detailed in the background section of this 

opinion, though circumstantial, was sufficient to allow the jury to find Cervera was the 

perpetrator of the offense. Accordingly, we overrule Cervera’s challenge to the sufficiency of 

the evidence.

MOTION FOR NEW TRIAL ON JURY MISCONDUCT

Cervera next argues the trial court erred in denying Cervera’s motion for new trial, which 

was based on manifest “jury misconduct” during the guilt-innocence deliberations. More 

specifically, Cervera argues the jury notes asking if the jury assessed murder, whether Cervera 

was eligible for parole and who would decide how long his sentence would be show that the jury 

considered improper evidence during guilt-innocence deliberations. See Staggs v. State, 503 

S.W.2d 587, 588 (Tex. Crim. App. 1974) (holding it is improper to inform jury regarding range 

of punishment during guilt/innocence phase of trial). 

Standard of Review

The grant or denial of a motion for new trial is within the discretion of the trial court. 

Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). A new trial must be granted when 
04-11-00875-CR

- 9 -

the jury has engaged in misconduct such that the defendant did not receive a fair and impartial 

trial. TEX. R. APP. P. 21.3(g). We reverse a trial court’s decision to deny a motion for new trial 

only if the decision was so clearly wrong as to lie outside the zone within which reasonable 

persons might disagree. Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010); Smith 

v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).

Analysis

A juror is not allowed to impeach her own verdict. Glover v. State, 110 S.W.3d 549, 551 

(Tex. App.—Waco 2003, pet. ref’d). Texas Rule of Evidence 606(b) limits the evidence that 

may be presented to demonstrate jury misconduct. Ford v. State, 129 S.W.3d 541, 550 (Tex. 

App.—Dallas 2003, pet. ref’d); Hines v. State, 3 S.W.3d 618, 622 (Tex. App.―Texarkana 1999, 

pet. ref’d). Texas Rule of Evidence 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify 

as to any matter or statement occurring during the jury’s deliberations, or to the 

effect of anything on any juror’s mind or emotions or mental processes, as 

influencing any juror’s assent to or dissent from the verdict or indictment. Nor 

may a juror’s affidavit or any statement concerning any matter about which the 

juror would be precluded from testifying be admitted in evidence for any of these 

purposes. However, a jury may testify: (1) whether any outside influence was 

improperly brought to bear upon any juror; or (2) to rebut a claim that the juror 

was not qualified to serve.

TEX. R. EVID. 606(b). Texas Rule of Evidence 606(b) “defines what evidence is admissible in 

establishing jury misconduct, while [Texas Rule of Appellate Procedure] 21.3 limits that 

permissible evidence to that which is relevant to the indictment or verdict.” Hines, 3 S.W.3d at 

622.

The only exception to Rule 606(b) permits jurors in criminal cases to testify regarding 

outside influences or to rebut a claim of disqualification. Ford, 129 S.W.3d at 550; In re S.P., 9 

S.W.3d 304, 308 (Tex. App.―San Antonio 1999, no pet.). An outside influence “is something 
04-11-00875-CR

- 10 -

outside of both the jury room and the juror.” White v. State, 225 S.W.3d 571, 574 (Tex. Crim.

App. 2007); In re S.P., 9 S.W.3d at 309 (“An outside influence must emanate from outside the 

jury and its deliberations, such as a non-juror introducing information to the jury.”). A juror’s 

injection of his own personal experiences, knowledge, or expertise is not considered an outside 

influence because those representations emanate from inside the jury. Hines, 3 S.W.3d at 623. 

A motion for new trial based on jury misconduct must be supported by a juror’s affidavit 

alleging that an outside influence affected the jury’s decision. Id.; see TEX. R. EVID. 606(b).

In support of his motion for new trial, Cervera presented an affidavit from a single juror. 

The relevant portion of the juror’s affidavit states:

During deliberations some of the jurors were considering whether to find 

the Defendant guilty of the lesser included offense of murder. There was concern 

among the jurors as to whether the Defendant would be paroled or receive an 

early release if convicted of murder instead of capital murder. Therefore, the 

presiding juror sent two notes to the court; one to determine who would set the 

Defendant’s sentence if he was found guilty of murder and the other to determine 

if parole was possible for a murder conviction and what the minimum sentence 

would be. [referenced the two notes attached]

After the Court was unable to answer the notes and referred us to the 

Court’s charge the jurors considering a murder conviction voted to convict the 

Defendant of capital murder because they were concerned that otherwise the 

defendant might be paroled or released from prison early. It was taken into 

consideration the length of sentence yet not solely, along with other reasons.

Cervera’s attorney proffered, and his bill of review supported, that this juror’s in-court 

testimony would have been very similar to her affidavit testimony.

Neither the affidavit, nor any in-court testimony, established the requisite outside 

influence to support a claim of juror misconduct, and therefore Cervera’s complaint does not fall 

within the exception to Rule 606(b). See In re S.P., 9 S.W.3d at 308; Hines, 3 S.W.3d at 623. 

The statements in question were statements made by jurors to fellow jurors during deliberations. 

All of the events and processes described in the affidavit emanated from inside the jury. See 
04-11-00875-CR

- 11 -

Hines, 3 S.W.3d at 623 (holding jurors’ discussion of parole law during deliberations did not 

amount to outside influence). We therefore conclude the trial court did not abuse its discretion in 

denying Cervera’s motion for new trial. See Ford, 129 S.W.3d 550-51 (holding trial court did 

not abuse its discretion in denying motion for new trial when supporting evidence was 

inadmissible under Rule 606(b)). Accordingly, we overrule this issue.

CONCLUSION

For the reasons stated above, the trial court’s judgment is affirmed.

Marialyn Barnard, Justice

DO NOT PUBLISH