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No. 02-02-134-CR, 7/10/2003. Criminal Law Click here for the full text of this decision FACTS: D.L., who was 7 years old, was living with his mother in Baltimore, Maryland. In July 2000, he went to stay with appellant, who was his father. On Aug. 11, 2000, appellant was punishing D.L. by spanking him with a belt when D.L. went limp. Appellant rolled D.L. over and saw that his eyes were closed. D.L. did not respond to his name, so appellant splashed water on his face. When D.L. opened his eyes, he started shaking, and appellant called 911 because he thought D.L. was having a seizure. Once D.L. stopped shaking, he told appellant that he was ok, and he appeared to be coherent. When the emergency medical team arrived on the scene, they found D.L. sitting upright and conscious. He appeared to be an abuse victim, not a child suffering from a seizure. His face was swollen, he had a large gash on the bridge of his nose, and he had numerous other burns and bruises. Richard Barash, a paramedic on the scene, testified that D.L.’s pulse was elevated and his temperature had spiked to 104 degrees. He also stated that he would “remember this call for years. When we got there, [D.L.] looked liked he had been in a car accident.” D.L. was eventually sent to Cook Children’s Medical Center where he was considered a level two patient, which means critically ill. D.L. claims to have told appellant that his stepsiblings caused some of his injuries; however, appellant asserts that D.L. never said anything to him, and he thought the wounds were self-inflicted. The jury found appellant guilty of injury to a child by omission, serious bodily injury. HOLDING: Affirmed. Under Texas Penal Code �22.04, it was not sufficient for the state to prove that the appellant failed to provide medical care for a bodily injury. Dusek v. State, 978 S.W.2d 129 (Tex. App. – Austin 1998, pet. ref’d). Instead, it was necessary to prove that D.L. suffered bodily injury because appellant failed to provide him medical care. After reviewing the record, the court holds that the evidence is factually sufficient to support the appellant’s conviction of knowingly causing bodily injury to a child by failing to obtain reasonable medical care for D.L. The jury heard testimony that, when the fire department arrived, D.L.’s face was swollen, and he had an obvious wound across the bridge of his nose that was bright red, open, and had not just occurred. He also observed several open, untreated cigarette burns, old and new, on D.L.’s arms. A paramedic testified that D.L.’s left arm was swollen and looked deformed. He stated that the nose wound, the burns on the arms, and the swelling of the face made it apparent that D.L. needed medical attention, and “[a]ny one of those [wounds] would have brought that kid to the emergency room.” The appellant testified that D.L.’s nose wound happened while he was running through the house two or three days before the 911 call. When the appellant got home from work, D.L.’s nose was already bandaged. After inspecting it, the appellant did not feel like it needed immediate medical attention because it was not bleeding. He also stated that it was still red because D.L. kept picking at the wound. When D.L. testified, he stated that he did not “mess with” or pick at his nose wound. An officer testified that it was obvious that D.L. needed medical attention for the gash on his nose and swelling of his face. A paramedic also testified that the nose wound needed stitches. Specifically, he stated that there is a time period where it would be less painful to get stitches because “[i]f you wait a little longer, they are probably going to have to scrape a little of that tissue that has had time to heal”; otherwise, it will not heal properly. The emergency room doctor at Cook Children’s Medical Center testified that if the nose wound had been sutured, the scarring would have been less. He also described the injury as a disfigurement. Although the jury heard appellant’s testimony that he inspected the nose wound and did not feel that emergency care was required, the appellant admitted that he did not have any medical training. He admitted that he knew about all D.L.’s wounds and that emergency rooms are for stitching wounds. He also testified that he did not take D.L. to the doctor because he did not have a primary care physician. The appellant specifically told a child protective services investigator that he was waiting to get insurance and that “he was aware that [the child's nose] needed medical attention.” Besides D.L.’s nose wound, the jury also heard how the appellant failed to obtain reasonable medical care for a wrist injury and burns on D.L’s body. The doctor testified that D.L. would have been exposed to less pain from the skin wounds on his arms if he had received treatment in a timely medical fashion. “The quicker you heal up, the less pain there is going to be.” The pediatric radiologist at Cook Children’s Medical Center, stated that the wrist injury was probably seven to ten days old. If such an injury is left untreated, it will potentially result in deformity at the wrist and some lack of use. The fact that the arm was not immediately set and immobilized was probably very painful. Although the appellant testified that D.L. never said his wrist hurt and when the appellant noticed it swelling he put ice on it, the jury also heard that appellant planned to send D.L. to the doctor when the insurance forms went through. The court concludes that the proof of guilt is not so obviously weak as to undermine confidence in the verdict, nor is the proof of guilt greatly outweighed by contrary proof. The evidence supports the jury’s finding that appellant was aware that his conduct was reasonably certain to cause the result. OPINION: Livingston, J.; Day, Livingston and Walker, JJ.

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