Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Case Nos. 13-DCR-065002 & 13-DCR-064879
consists of Justices Keyes, Brown, and Lloyd.
Luis Estrella was convicted of felony injury to a child for
failing to provide medical care for a burn suffered by his
son, J.E. (pseudonymously referred to as
"Jason"). He was sentenced to nine years'
confinement. In five issues, Estrella challenges the
sufficiency of the evidence supporting his conviction,
contends there was error in the trial court's charge, and
argues that the trial court erroneously limited his
cross-examination of his son.
also was convicted of felony injury to a child for failing to
provide Jason adequate nourishment. The jury assessed
punishment for that offense at 10 years' confinement but
recommended that the sentence be suspended and that Estrella
be granted community supervision. With regard to this second
conviction, Estrella challenges the legal sufficiency of the
evidence and, again, argues that the trial court erroneously
limited his cross-examination of Jason.
affirm both convictions.
nine-year-old boy rang the doorbell of the home of J.S.,
pseudonymously referred to as Jane. The temperature was in
the 30s, yet the boy, later identified as Jason, was wearing
only shorts and a long-sleeved shirt. He was not wearing
socks or shoes. Jane described his startlingly poor physical
condition, testifying that she had "never seen anything
like that before." His bare legs were "skinny as a
rail." One leg looked like it was "knocked out of
joint or broken or something." The boy's skin was
not a healthy color, or even the color of red that would be
expected from being exposed to cold weather; instead, it was
"salmon colored." She had "never seen that
color skin" on a person. The boy's eyes were swollen
almost shut, and his eye sockets protruded out past his cheek
bones. Jane brought Jason into her house. She immediately fed
him, and he would ask for more food as he finished each
serving. Jason was very hungry.
called a neighbor over, and they called for police and
emergency medical assistance. The police and EMS personnel
arrived quickly. EMS notes state that Jason was emaciated
with atrophy to both arms and legs, distension and rigidity
in his abdomen, and swelling in his face and eye orbits.
Jason had trouble supporting his own weight and could not
walk well. His hair was thin, and he had bruising and scars
across his body. Jason seemed very hungry.
on Jason's hip, according to emergency medical personnel
who evaluated him at Jane's house, indicated that he had
suffered an extensive, painful burn that would have required
immediate medical attention. Jason had a second burn scar on
was taken to Texas Children's Hospital in Katy, where he
was weighed, examined, and photographed. Jason, at age nine,
weighed 52 pounds. A doctor testified that was the average
weight for a six-year-old child.
examination photos were admitted into evidence. They show a
young boy with extremely thin legs, no muscle development on
his arms or legs, and protruding knee joints. His underwear
hung from his body with gapes in the leg holes. His stomach
was distended. And his eye sockets were swollen to the point
that they protruded out beyond his cheek bones.
physical exam and photos also revealed an older burn to
Jason's arm and hip. The hip burn was described as
"extensive" by medical personnel. It wrapped around
his groin area. It covered an area from his hip, traveling
down between his legs, and then up the other side of his
body. The burn scar was a combination of red and dark red,
almost black colors. Dr. Isaac, the Texas Children's
pediatrician who took over Jason's care after he was
transferred from the emergency center, testified that the
burn pattern indicated that an accelerant had been used. The
accelerant appeared to have pooled in the groin crease and
flowed outward when it ignited. The extensiveness of the
scarring indicated to Dr. Isaac that Jason had not received
appropriate medical care for his hip burn.
being evaluated, Jason was admitted to the hospital with a
diagnosis of chronic malnutrition resulting from child abuse.
A chest x-ray revealed that he also had a ruptured lung, and
additional testing revealed that he had a foreign body lodged
in one of his feet. Medical staff attended to his medical
needs and monitored his health as food was reintroduced.
While at Texas Children's, he gained 11 pounds in nine
testimony established that Jason had been living in a house
across the street from Jane with his father, Estrella (the
defendant-appellant), and his stepmother. Jason also lived
with five step- and half-siblings. He was the only child in
the home that was not the biological child of his
testified that he began to be treated differently after his
step-mother suspected him of taking one of her rings. She
burned his arm and his hip as punishment for taking the ring.
There was evidence Estrella and his wife took Jason to Mexico
the following day for medicine for the burns. Around the same
time, Jason's step-mother began confining him to a locked
closet without adequate food or water.
was evidence that the other children in the home were treated
differently. All the other children had bedrooms and beds,
but Jason testified that he slept in a locked closet. The
police inspected the home and found that the bedroom upstairs
where Jason's parents said he slept was barer than the
other bedrooms and did not have a mattress on the bed frame.
There were dozens of pictures of the other children
throughout the home and virtually none of Jason.
Additionally, all the other children attended public school,
but Jason was "homeschooled." The other children
were on Medicaid and saw local physicians when they became
ill, but according to Estrella and Jason's step-mother,
Jason had no medical coverage and would be taken to Mexico
for any medical care.
children were not fed equally either. All the other children
testified that they ate regularly, but Jason testified that
he was frequently denied food and water. There was evidence
that the parents kept the kitchen pantry locked and that
every child except Jason knew where the key was stored. The
parents claimed that Jason's food intake was more closely
monitored because he had undiagnosed food allergies and had
recently eaten an unknown item that caused the face swelling
seen in the medical photographs. But the doctors who examined
Jason at Texas Children's Hospital testified that there
was no medical evidence that Jason had an allergic reaction
as the parents described.
testified to what he believed caused his face swelling. He
had become so thirsty the week before he escaped the house
that he drank his own urine. His face swelled up, his
step-mother saw it, and she moved him from the closet to the
upstairs bedroom. A few days later, while Estrella and
Jason's step-mother were away shopping, Jason escaped out
the bedroom window and walked to Jane's house. Jason told
emergency medical personnel that he had not eaten for two
days when he escaped.
Jason's recovery at Texas Children's Hospital, the
State removed him from the family home. He lived with foster
parents but eventually moved back to Brownsville to live with
his biological mother.
was charged with two injury-to-a-child offenses, both by
omission: one for withholding nutrition and the other for
failing to provide medical care for the hip burn Jason
suffered months before his escape.
Offense of Injury to a Child by Omission
person commits the offense of injury to a child by omission
if, having a legal duty to act, he "intentionally,
knowingly, or recklessly by omission, causes to a child . . .
serious bodily injury . . . or bodily injury." Tex.
Penal Code § 22.04(a)(1), (3); see id §
22.04(b); see also Jefferson v. State, 189 S.W.3d
305, 312 (Tex. Crim. App. 2006). The offense is a
first-degree felony when the mental state is intentionally or
knowingly and the result is serious bodily injury. Tex. Penal
Code § 22.04(e).
to a child is a result-oriented offense requiring a mental
state that relates not to the specific conduct but to the
result of that conduct. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). It is not enough for
the State to prove that the defendant engaged in the alleged
conduct with the requisite criminal intent; the State must
prove that the defendant caused the result with the requisite
criminal intent. See Cook v. State, 884 S.W.2d 485,
490 (Tex. Crim. App. 1994); Lee v. State, 21 S.W.3d
532, 540 (Tex. App.-Tyler 2000, pet. ref'd).
was convicted of two injury-to-a-child offenses, each with a
different mental state. One conviction was for intentionally
or knowingly causing a serious bodily injury to Jason by
omission-that is, failing to obtain appropriate medical
treatment for his hip burn. The second conviction was for
recklessly causing a serious bodily injury to Jason by
omission-that is, failing to provide adequate nourishment to
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 § 6.03(a). A
person acts "knowingly" when he is aware that his
conduct is reasonably certain to cause the result.
Id. § 6.03(b). A person acts
"recklessly" when he is aware of but consciously
disregards a substantial and unjustifiable risk that the
result will occur. Id. § 6.03(c). The result
here, "serious bodily injury, " includes a
"bodily injury . . . that causes death, serious
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ."
Id. 1.07(a)(46); cf. id. § 1.07(a)(8)
(defining "bodily injury" as "physical pain,
illness, or any impairment of physical condition").
for these two offenses, the State was required to prove more
than that Estrella failed to provide medical care and
nourishment. It had to prove that Estrella caused serious
bodily injuries and had the requisite mental state with
regard to the resulting serious bodily injuries. See
Thompson v. State, 227 S.W.3d 153, 160 (Tex.
App.-Houston [1st Dist.] 2006, pet. ref'd).
of the Evidence
challenges the legal sufficiency of the evidence to support
his convictions. With regard to injury-to-a-child for failure
to provide nourishment, he argues there is insufficient
evidence of causation, meaning the evidence is inadequate to
establish that Jason's malnourishment caused a serious
regard to injury-to-a-child for failure to provide medical
care, he argues that the evidence is legally insufficient to
establish any failure to act and legally insufficient to
causally link a delay in treatment to a serious bodily
Standard of review
appeal of a criminal conviction, we review a challenge to the
sufficiency of the evidence under the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318-20 (1979).
See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010). Under the Jackson standard, evidence is
insufficient when, considered in the light most favorable to
the verdict, no rational factfinder could have found that
each essential element of the charged offense was proven
beyond a reasonable doubt. See Jackson, 443 U.S. at
319; Laster v. State, 275 S.W.3d 512, 517 (Tex.
Crim. App. 2009). Legal sufficiency of the evidence is
measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
consider both direct and circumstantial evidence as well as
all reasonable inferences that may be drawn from that
evidence. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000); see Clayton,
235 S.W.3d at 778 ("When the record supports conflicting
inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to
are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to witness testimony.
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.
App. [Panel Op.] 1981); Jaggers v. State, 125 S.W.3d
661, 672 (Tex. App.-Houston [1st Dist.] 2003, pet.
ref'd). The jury may choose to believe or disbelieve any
part of a witness's testimony. Davis v. State,
177 S.W.3d 355, 358 (Tex. App.-Houston [1st Dist.] 2005, no
pet.). Inconsistencies or contradictions in a witness's
testimony do not destroy that testimony as a matter of law.
McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim.
evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to
establish guilt. Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011). "Each fact need not point
directly and independently to the guilt of the appellant, as
long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction."
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
Jackson standard defers to the factfinder to resolve
any conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319; Clayton,
235 S.W.3d at 778. An appellate court presumes the factfinder
resolved any conflicts in the evidence in favor of the
verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at
326. If an appellate court finds the evidence insufficient
under this standard, it must reverse the judgment and enter
an order of acquittal. See Tibbs v. Florida, 457
U.S. 31, 41 (1982).
Offense of failure to provide nourishment
contends there is insufficient evidence that he failed to
provide nourishment and that the failure caused a serious
bodily injury to Jason. We disagree. There is ample evidence
of both elements of this offense.
testified that his parents locked him in a small closet for
days without food and water. He further testified that he had
been denied food for two days straight when he escaped to
medical personnel testified that Jason showed physical signs
of emaciation, had distension and rigidity in his abdomen,
and could not support his own weight due to his deteriorated
physical condition. At the hospital, Jason weighed 52 pounds,
which was his weight three years earlier before being denied
nourishment. Once the doctors reintroduced food, he gained 11
pounds in nine days. The physicians testified that the rapid
weight gain was evidence that he had been denied food
medical photographs show Jason's extremely thin legs and
arms. There is no noticeable muscle development. His legs are
too thin to contact the edges of his underwear that hang
below his distended stomach. His knee joints are visibly
wider than his thighs or calves.
Jason was diagnosed with chronic malnutrition after
examination at Texas Children's Hospital. The physicians
testified that the degree of malnutrition suffered by Jason
was more extreme than any other case they had seen, except
while working outside the United States. When questioned
about the parents' explanation that Jason had not eaten
well for only a few days and as a direct result of an
allergic reaction to food, the physicians explained that the
degree of emaciation was more severe than would be possible
from only a few days of inadequate nutrition. Instead,
Jason's physical appearance supported a medical
conclusion that he had chronic malnutrition over weeks or
evidence provides legally sufficient evidence that Estrella
denied his son nourishment. The physicians' testimony
also provides legally sufficient evidence that Jason suffered
a serious bodily injury because of the malnourishment.
See Baldwin v. State, 264 S.W.3d 237, 243 (Tex.
App.-Houston [1st Dist.] 2008, pet. ref'd) (affirming
conviction of caregiver on evidence boys showed signs of
severe malnourishment with extreme thinness and no weight
gain for three years).
conclude that there is legally sufficient evidence to support
the conviction for injury to a child by omission for failure
to provide nourishment.
Offense of failure to obtain medical care for
Jason's hip burn
also challenges the sufficiency of the evidence with regard
to the conviction for failure to obtain medical care, arguing
that there is inadequate evidence of a failure to act and of
a causal link between a one-day delay in treatment and a
serious bodily injury.
1.Evidence regarding the burn, the timing of treatment,