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Kolb v. State

Court of Appeals of Texas, Fourteenth District

April 6, 2017


         On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 14CR3253

          Panel consists of Chief Justice Frost and Justices Boyce and Christopher.


          William J. Boyce Justice.

         Appellant Laura Lea Kolb pushed her boyfriend's four-year-old daughter off a bed while appellant was intoxicated and upset with the girl's father. The fall injured the girl's spinal cord, paralyzing her lungs and ultimately causing her death by asphyxiation. A jury convicted appellant of recklessly causing serious bodily injury to a child.

         At issue in this appeal is whether (1) the evidence is legally sufficient to support the jury's finding that appellant recklessly injured a child; (2) the trial court erred by admitting the medical examiner's expert testimony into evidence; and (3) the trial court erred by refusing to dismiss the case based on alleged withholding of evidence by the State. We hold that (1) the evidence is sufficient to show that appellant acted recklessly in pushing the child off the bed, even if the specific resulting injury was not foreseeable; (2) the medical examiner's testimony was admissible; and (3) the State did not withhold evidence or produce evidence in an untimely manner. Therefore, the trial court did not err. We affirm the trial court's judgment.


         Appellant and her boyfriend, Kevin Moore, returned to their apartment from a bar just before midnight on March 22, 2013. Moore's four-year-old and 15-year-old daughters were asleep in the apartment.

         Upon arriving home, Moore and appellant joined other residents from neighboring apartments who were playing dominos and drinking in the apartment courtyard. Appellant admitted to having at least six drinks over the course of the evening. At some point appellant went upstairs to the apartment, called for Moore to join her, and became upset when he did not join her and would not give her a cigarette. Appellant went into the bedroom where Moore's four-year-old daughter Taylor was sleeping and pushed the child head-first off the queen-sized bed onto the floor, which was strewn with toys. Appellant then picked Taylor up, "threw" her back on the bed, and left the room.

         Appellant returned to the room 10 to 15 minutes later and realized that Taylor was not breathing. She went outside and told Moore. Moore went inside, was unable to elicit a response from Taylor, and called 911.

         Moore carried Taylor downstairs, where he was met by police officers arriving from the police station next door. The officers performed CPR on Taylor until paramedics arrived. Taylor could not be revived and was pronounced dead at the hospital.

         Appellant was charged with murder, but a jury convicted her of the lesser-included offense of reckless injury to a child. See Tex. Penal Code Ann. § 22.04(a) (Vernon Supp. 2016). The trial court sentenced appellant to 14 years' imprisonment. Appellant timely appealed.


         I. Legal Sufficiency of the Evidence

         In her first issue, appellant contends the evidence is legally insufficient to support the jury's finding of reckless injury of a child. In her second issue, appellant contends the evidence is legally insufficient to support any other lesser-included offense, such as criminally negligent injury to a child.

         A. Standard of Review

         The legal sufficiency standard of review is the only standard we 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. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017).

         The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Temple, 390 S.W.3d at 360. We defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd).

         B. Discussion

         Appellant was convicted of recklessly causing injury to a child. "A person commits an offense if [s]he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury." Tex. Penal Code Ann. § 22.04(a).

         "A person acts recklessly, or is reckless, with respect to circumstances surrounding [her] conduct or the result of [her] conduct when [s]he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. § 6.03(c) (Vernon 2011). "The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. When the conduct is engaged in recklessly, the offense is a second-degree felony. Id. § 22.04(e).

         At some point after returning to her apartment from the bar, appellant fell down outside several times and cut her leg. A neighbor helped appellant up to the apartment to bandage the injury and then encouraged appellant to lay down and rest in the bed where Taylor was sleeping. The jury heard testimony from the neighbor that, when she entered the room, Taylor was in the middle of the bed and sleeping like a normal person would sleep in a bed. The jury likewise heard testimony from Moore, who went up to the apartment to check on appellant after her injury, that Taylor was "sleeping straight up" and the "bed was perfectly made" when he looked in the room. After the neighbor and Moore went back downstairs, there was no evidence that anyone other than appellant entered the room before Taylor was discovered in a different position.

         When appellant notified Moore that Taylor was not breathing, Moore went into the bedroom where Taylor had been sleeping. Moore later testified that he observed that the bed covers were messy and he could not see Taylor when he first went into the room. He threw the covers off to the side and saw Taylor laying facedown at an angle towards the foot of the bed. Moore noticed that there was some blood around Taylor's mouth, she had wet herself, and her eyes were rolled back. Moore tried to shake her to wake her up but got no response. After calling 911, Moore carried Taylor downstairs where he was met by officers who instructed him to lay her ...

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