Opinion
No. 05-18-00426-CR
05-13-2020
JAVEON DEROID DALCOUR-ZUBER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F15-10957-J
MEMORANDUM OPINION
Before Justices Bridges, Molberg, and Carlyle
Opinion by Justice Carlyle
After trial, a jury convicted appellant Javon Dalcour-Zuber of injury to a child younger than fourteen. TEX. PEN. CODE § 22.04(a)(1), (c)(1), (e). The jury assessed punishment at twenty-five years' imprisonment. Because resolving Mr. Dalcour-Zuber's four issues requires only the application of settled law, we affirm in this memorandum opinion. TEX. R. APP. P. 47.4.
Mr. Dalcour-Zuber first challenges the sufficiency of the evidence to support conviction for injury to a child younger than fourteen. We review evidentiary sufficiency pursuant to the familiar Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894, 901-02 (Tex. Crim. App. 2010). We review all the evidence and reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The State was unable to present any witness who saw Mr. Dalcour-Zuber injure the infant victim, his own son. Instead, the State presented significant circumstantial evidence, which can sufficiently support a criminal conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). First responders who arrived at Mr. Dalcour-Zuber's apartment pursuant to appellant's 911 call for an unresponsive two-month-old noted that they had to knock on the locked front door several times before Mr. Dalcour-Zuber answered. Instead of what one paramedic expected from a typical unresponsive infant call, Mr. Dalcour-Zuber appeared at the door without the child and just stood there. Only when an officer relayed that they were there for the infant did Mr. Dalcour-Zuber respond, "Oh yea, he's upstairs."
The paramedic noted he had been to this apartment on several occasions for 911 calls based on Mr. Dalcour-Zuber's asthma. On these prior calls, the paramedic recalled Mr. Dalcour-Zuber meeting paramedics outside, eager to receive treatment for himself when they arrived.
A firefighter found the infant upstairs on the floor. He was not breathing and had no pulse. Though the infant regained a pulse at the hospital, doctors observed a fractured skull and kept the child alive by life support. The infant's mother later approved removing the infant from life support.
The infant's mother testified that he was only with her or Mr. Dalcour-Zuber during the last two weeks of his life. Mr. Dalcour-Zuber took care of the child when she was at work; he did not have a job. Six days before the infant's death, the parents took the infant to his pediatrician. The pediatrician noted upper respiratory congestion and diagnosed him with a cold. Though she did not do a head examination, the pediatrician checked the infant's soft spot, confirmed it was not sunken, and saw no signs of abuse or neglect. Nothing during the appointment gave the indication that the infant had a head injury.
The mother stated she had not been part of any trauma to the infant's head, and was at work when the boy stopped breathing. Mr. Dalcour-Zuber later stated to police that he had no suspicion she would ever hurt her child. The mother said Mr. Dalcour-Zuber told her he noticed the infant wasn't breathing after changing his diaper. Mr. Dalcour-Zuber first told police he changed the boy's diaper because he had been crying and that it was after this when he noticed the infant wasn't breathing. He also told police he'd previously swaddled the baby and placed him in a bassinet, and though an officer found this hard to believe because the bassinet was "crammed" full of blankets and other items, he saw spit-up on a blanket in the bassinet.
The same officer remained with Mr. Dalcour-Zuber until the mother arrived. He found it "very odd" that Mr. Dalcour-Zuber never asked about the infant's well-being while they waited.
In the autopsy, the medical examiner saw older and newer bruising, indicating the infant had suffered multiple blows to the head over time. The infant's left parietal bone was fractured, typical of an impact to the skull, and there was bleeding both outside and inside the skull. The medical examiner concluded that the infant's brain swelled while the space around the brain filled with blood. That forced the brain downward through the base of the skull and would have affected the infant's body's ability to control vital functions like breathing and heart rate. Another result of the trauma was a lack of oxygen flow to the brain, which caused irreversible cellular damage. There was bleeding around the left eye and upper spinal cord. The medical examiner also noted both new and healing rib fractures, the latter of which was "older than days but, you know, probably not older than a month." The medical examiner concluded blunt force injuries to the head, causable only by significant force, resulted in this non-accidental death.
Mr. Dalcour-Zuber later gave slightly inconsistent statements to police, some of which were inconsistent with information from involved medical personnel. At a formal interview, Mr. Dalcour-Zuber told a detective that the infant may have hit his head on the bassinet railing. After that, Mr. Dalcour-Zuber admitted—contrary to prior statements—that he had previously dropped the boy. Still later in the interview, Mr. Dalcour-Zuber said that when he unswaddled the infant, he rolled out of the swaddle and onto the air mattress, a detail Mr. Dalcour-Zuber had never given before. Mr. Dalcour-Zuber blamed his headache and frustration the night this happened and then said he placed the infant facedown into the blankets, where he was "kinda smothered."
At an interview the next day, Mr. Dalcour-Zuber repeated that the infant rolled onto the air mattress when he unswaddled him. Mr. Dalcour-Zuber said the infant was silent for a minute but that he then started to cry at a volume that rattled Mr. Dalcour-Zuber's head. Citing his headache, Mr. Dalcour-Zuber said he cursed at the infant and turned him over to muffle the crying, but for no more than thirty seconds. He admitted that he could have accidentally suffocated the infant.
Still later in this interview, Mr. Dalcour-Zuber admitted that the infant hit the wall when he pulled the boy out of the swaddle. He said the infant went up in the air when he rolled him out of the swaddle, possibly causing the skull fracture.
To prove injury to a child, the State had to prove that Mr. Dalcour-Zuber, intentionally, knowingly, recklessly, or with criminal negligence, by act, caused a child under age fourteen serious bodily injury. TEX. PEN. CODE § 22.04(a)(1), (c)(1). The indictment charged he committed the crime "intentionally or knowingly." The court gave the jury the option to find he committed the crime recklessly or, separately, by criminal negligence. The jury found Mr. Dalcour-Zuber committed intentional or knowing injury to a child. Though the State lacked direct evidence, the significant circumstantial evidence from the medical examiner, Mr. Dalcour-Zuber's shifting story, and the infant victim's mother's testimony, viewed in the light most favorable to the verdict, rationally justified the jury's conclusion. See Temple, 390 S.W.3d at 359-60. We overrule Mr. Dalcour-Zuber's first issue.
In his second issue, Mr. Dalcour-Zuber complains the trial court abused its discretion by admitting thirteen autopsy photos because they were more prejudicial than probative. See TEX. R. EVID. 403.
The autopsy photographs were relevant and probative of the infant's injuries in this criminal trial on a charge of injury to a child. As the State argues, the photos depict the injuries the infant suffered and serve to rebut Mr. Dalcour-Zuber's claims that the injuries were accidental or the product of negligence. Though a criminal defendant raising such defensive theories does not hand the State a blank check to introduce an unlimited volume of evidence, we conclude the trial court acted within its discretion here in admitting the photos, which depicted the several different injuries to the infant victim's body and its condition, and were not duplicative. See Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Long v. State, 823 S.W.2d 259, 274 (Tex. Crim. App. 1991); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990, op. on reh'g).
Third, Mr. Dalcour-Zuber complains the trial court abused its discretion by admitting State's Exhibit 47 during the punishment phase of trial See TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1); TEX. R. EVID. 403. We disagree. Our law allows trial courts broad leeway in admitting punishment-phase evidence, providing admission of evidence "as to any matter the court deems relevant to sentencing." See TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1); Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999); Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002) (citing Rogers, 991 S.W.2d at 265).
Exhibit 47 included Mr. Dalcour-Zuber's statements regarding his gang membership. Whether as Mr. Dalcour-Zuber says, they demonstrate that he is a mere "wanna-be" or, as the State contends, he is a gang member, we conclude the trial court did not abuse its discretion by admitting the gang-membership evidence during the punishment phase of this trial. See Beham v. State, 559 S.W.3d 474, 484 (Tex. Crim. App. 2018); see also Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Montgomery, 810 S.W.2d at 391.
In his final issue, Mr. Dalcour-Zuber complains that the trial court erred when it instructed the jury regarding extraneous offenses and that this caused egregious harm. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
As relevant, the trial court instructed jurors they could consider extraneous offenses once they found and believed beyond a reasonable doubt that Mr. Dalcour-Zuber committed them. The court instructed jurors:
Then you may consider the same for any bearing it has on relevant matters, including:Mr. Dalcour-Zuber correctly notes that the instruction combines rule of evidence 404(b) and Code of Criminal Procedure article 38.37 sections 1 and 2, the last of which did not apply at all in this injury-to-a-child trial.
a) To determine motive, intent, scheme, or design, if any, of the Defendant;
b) To determine state of mind of the Defendant and the child;
c) For its bearing on the previous and subsequent relationship between the Defendant and the child;
d) For any bearing it has on the character of the Defendant and acts performed in conformity with the character of the Defendant.
In this case, however, because Mr. Dalcour-Zuber failed to request a limiting instruction for the extraneous-offense evidence when it was admitted, article 38.37 never became "law applicable to the case." See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); TEX. CODE CRIM. PROC. art. 36.14. Jurors were free to consider the evidence for all purposes and the trial court did not abuse its discretion by not sua sponte instructing jurors as Mr. Dalcour-Zuber now wishes. See Delgado, 235 S.W.3d at 249; Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008). In these circumstances, we conclude there was no egregious harm. See id.; Santillana v. State, No. 05-16-01046-CR, 2018 WL 4784570, at *3 (Tex. App.—Dallas Oct. 4, 2018, no pet.) (mem. op., not designated for publication); TEX. R. EVID. 105(b)(1).
* * *
Having overruled Mr. Dalcour-Zuber's issues, we affirm.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180426F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F15-10957-J.
Opinion delivered by Justice Carlyle. Justices Bridges and Molberg participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 13th day of May, 2020.