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Click here for the full text of this decision FACTS:Police and emergency personnel responded to a 911-hang-up call from a Fort Worth apartment complex. There, they found an 18-month-old child lying on his back, arching it. He was pale and struggling for breath. His eyes were open but unfocused. Michael A. Gordon, the boyfriend of the child’s mother, Jessica, was present in the apartment and told a fireman the child had rolled off the couch. A police officer noticed that the couch was not more than 1.5 feet off the carpeted floor. The child died from his injuries. Gordon was charged with capital murder and injury to a child by striking the child with or against “an object unknown to the grand jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury.” At trial, Jessica testified that the medical report she received said that the child’s head injuries could have been caused by rolling off the couch, but only if he also hit something else on the way down. The report said the child suffered three head fractures and a collapsed lung; the back of his head was mushy, she said, and his eyes were affected. A paramedic on the scene testified to the child’s condition, noting that his symptoms were consistent with other closed head injuries. He testified that when he saw the child, he thought this was a case of shaken-baby syndrome, and he admitted that he did not see anything that made him believe that the child had been hit with or against an object. The medical examiner testified about the autopsy he performed on the child. The medical examiner said the child had a bruise on the scalp outside of the skull that indicated some sort of impact. He also explained how several cracks in the child’s skull indicated that there were two distinct, separate impacts that would be consistent with two or more blows to the head. He further discussed how much harder it is to crack a small child’s skull, since their skulls are more flexible at that age than adult skulls. He equated the extent of the injuries to a fall from at least three stories and doubted that the multiple impacts could have occurred in one fall from the couch. On the other hand, he said, he did not think the child’s injuries in this case had been caused from the fall because of the multiple fractures. He could not say exactly what the child had been hit with or against, but speculated that it could have been a wall, floor, concrete patio or something else that was heavy and flat. Whatever it was, he said, it was a deadly weapon. On cross-examination, the medical examiner admitted that there were a few scenarios of falls off the couch that could cause the injuries, such as if the child pushed down on the couch and was suddenly catapulted off of it, hitting his head hard against the floor. On re-direct, the medical examiner said it was much more likely that the child was picked up from his legs or waist and swung into a blunt, flat object. The police officer who took Gordon’s statement after the child was taken to the hospital also testified. He said Gordon admitted to shaking the child twice to get the child to stop crying, but that the second shake was not hard enough to hurt the child. Additionally, the affidavit of the doctor who examined the child at the hospital was read into evidence, and it concluded that the child’s injuries were inconsistent with the story of the child falling off of the couch. The jury found Gordon guilty of the lesser-included offense of criminally negligent homicide and found, too, that Gordon used a deadly weapon in committing the offense. Gordon contests the factual and legal sufficiency of the evidence. HOLDING:Affirmed. The evidence is both legally and factually sufficient to support the jury’s deadly weapon finding, the court holds. “In a case such as this, in which a child is injured while in the care of one person and there are no witnesses as to what occurred to cause the child’s injury, the primary evidence of the manner of use of an object causing injury or death is evidence about the severity, scope, and nature of the child’s injuries.” Here, two doctors gave their opinion that the child’s injuries were consistent with being struck rather than falling. The medical examiner’s findings were very specific: Although he did agree that some of the defense’s proposed scenarios could have occurred, he also unequivocally stated that those scenarios would not have produced the injuries that caused the child’s death. His conclusions were based on studies, which he provided to the defense. Furthermore, Gordon did not present any evidence to contradict the medical examiner’s testimony. OPINION:Livingston, J.; Livingston, Dauphinot and Holman, JJ.

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