2001-04-22
No. 07-03-0260-CR
July 25, 2005. DO NOT PUBLISH.
Appeal from the 69th District Court of Dallam County, No. 3539, Honorable Ron Enns, Judge.
Panel D: Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
Appellant Nathan Felder brings this appeal challenging his conviction of capital murder and automatic sentence of life in prison. We affirm.
N.T. was two years old at the time of his death. He lived with his mother, Brenda Thaxton, and her boyfriend, Felder.
Thaxton had a job outside the home and left N.T. with appellant while she was at work. On April 22, 2001, Thaxton arrived at work at 9:00 a.m. and left work at 4:00 p.m. After arriving home, Thaxton talked briefly with N.T. and appellant and then left N.T. with appellant again while she went to the grocery store. When Thaxton returned home, N.T. was completely limp and gasping for air.
During the call to 911, appellant explained the child's injuries by saying he fell off the couch. Appellant told police officers that he had gone to the restroom for a minute and when he came back, N.T. was face down, unconscious, and on the floor between a speaker and the arm of the couch.
N.T. was transported to Coon Memorial Hospital in Dalhart and then transferred to Northwest Texas Hospital in Amarillo because of the severity of his injuries. The examining physician noted N.T. had injuries all over his head and upper torso. He had bruises along the jaw bone, in front of his ears, inside the ears, behind the ears, all over his back, lower body, legs and arms.
N.T. never regained consciousness and was pronounced dead on April 23, 2001.
The State charged appellant in a two-count indictment with capital murder and injury to a child. Appellant pled not guilty to both counts.
At trial, after both sides had closed their evidence and the trial court was hearing objections to the charge, the State abandoned the second count of the indictment which alleged injury to a child. Appellant's counsel then requested it be included as a lesser included offense. The court denied the request, and the jury was charged with finding appellant either not guilty or guilty of capital murder.
Appellant next refers us to State's Exhibits 33 and 34, also audiotaped statements to the police, in which appellant, according to his brief, "tells how he slipped and fell with the child to the floor on the date of the incident and how he didn't think he injured the child then, but he wasn't for sure. He also talks about an incident the day before the child's death where the child blew out of the back door of the residence in a high wind, fell from the porch and injured himself.
Finally, in State's Exhibit 34, [appellant] relates in detail falling in the kitchen with the child and the child's head hitting the floor." We presume appellant points the court to these statements as alternative causes for the fatal injuries to N.T.
Medical evidence included the testimony of Dr. Rodney Tucay, the forensic pathologist who performed the autopsy on N.T. He testified that N.T. had 37 separate injuries to the outside of his body, some of which were older than others.
There were several areas of hemorrhage inside N.T.'s brain. There was also an injury in N.T.'s abdominal area to the mesentery fasc. Dr. Tucay testified he would not expect to see head injuries like N.T.'s from an accidental fall from three feet and that the injuries were more consistent with a fall from two or three stories high.
Tucay testified it was very rare to find injuries to a child's mesentery fasc like that suffered by N.T. He said such an injury is not consistent with a fall but with being hit with a blunt object with tremendous force in the stomach. The head injuries to N.T. were recent. Tucay testified:
I will be able to say that in most probability these injuries were not caused by accidents, because of the multiplicity of the injuries on the right side of the head, on the left side of the head, on the forehead, and on the back of the head. If a person would have fallen, you would have — you would expect injury concentrating on the point of impact and inside the brain, but if you have injuries all over the body, that — it's difficult for me to think that it would be an accident.
Dr. Tucay opined the cause of death of N.T. was blunt force injuries to the head and suggested the manner of death was homicide.
The State also presented Dr. Eric Levy, N.T.'s treating physician at Northwest Texas Hospital. At the time of his testimony, Dr. Levy was also serving on the Panhandle Child Fatality Review Team and the Texas State Child Fatality Review Team. Dr. Levy testified he had been involved in hundreds of cases in which a child sustained serious head injuries, but never a case in which a child received fatal head injuries from a fall of three feet. Dr. Levy also testified that, even from a fall of six feet or so, it would be exceedingly rare to receive fatal head injuries. Levy testified when he examined N.T. on April 22, 2001:
He had a geometric pattern of bruises of varying ages, both on the right and the left side of his face. He had bruises throughout his scalp. He had bruises on the left side of his groin. He had multiple bruises over his arms and legs of varying ages. And I put three plus, meaning extensive bruising over the entire lower back. And he had some agonal respirations, which are terminal respirations. It's the type of respiratory pattern that we humans do before we die. And he had occasional what we call decerebrate posturing, which is that type of extension that we do, again, consistent with a severe head injury prior to death.
Dr. Levy testified that N.T. had been severely traumatized and that the history given medical personnel (i.e., N.T. falling between the couch and a speaker) was not consistent with N.T.'s condition because he had "severe, lethal, extensive injuries that could not have occurred in the manner that was told to the health care professionals."
He further indicated that N.T. suffered from violent, focused, and repeated trauma which would have incapacitated N.T. immediately.
Dr. Guileyardo, also a forensic pathologist, was asked by the State to review the evidence in this case and to testify during trial. During trial, Guileyardo testified that the cause of N.T.'s death was blunt force injuries. He stated the injuries sustained by N.T. would be consistent with a large man hitting a 25 pound child with his hand or fist, slamming the child's head against a blunt object or surface, and striking the child on the head with a blunt object. Guileyardo indicated the injuries would not be consistent with an accidental fall in the home because of the multiple impact sites in several areas which were all severe. He indicated the injuries to the intestines would not be seen in any type of fall or bumping into an object but are, instead, the result of a deep squeezing of the tissues against the spine. Guileyardo further testified that with a blow that is going to cause death, the child is going to look abnormal within a very few minutes.