Appeal from the 405th District Court Galveston County, Texas
Trial Court Cause No. 14CR3253
consists of Chief Justice Frost and Justices Boyce and
William J. Boyce Justice.
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.
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.
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.
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.
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.
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
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.
Legal Sufficiency of the Evidence
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.
Standard of Review
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).
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).
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).
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).
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
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 ...