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Date: 12-31-2020
Case Style:
Tatriauna Mariah Roberts v. The State of Texas
Case Number: 05-19-01204-CR
Judge: David Evans
Court: Court of Appeals
Fifth District of Texas at Dallas
Plaintiff's Attorney: Karla Baugh
James Brett Smith
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Dallas, TX - Criminal defense lawyer Child, Elderly or Disabled Individual charge.
Appellant was charged by indictment that she, intentionally and knowingly,
by omission, caused serious bodily injury to complainant, a child under fourteen
years of age, by failing to provide him with adequate food or medical care and the
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appellant had a statutory duty or legal duty to act or had assumed care, custody, or
control of the child. Appellant pled not guilty and the case proceeded to a jury trial.
A. State�s Witnesses
David Gallagher, the fire chief and fire marshal for the City of Gunter,
testified that he has been an EMT since 2000 and a full-time firefighter since 2016.
On June 12, 2017, Gallagher responded to a call for assistance regarding a twomonth old child (hereinafter, �complainant� or �infant�) who was not breathing.
Gallagher testified that when he arrived, the infant was laying on his back without a
pulse and Gallagher commenced CPR. He described the infant as �very small, frail�
who had his skin �drawn in� and did not look like a �normal baby.� Gallagher stated
that appellant, the mother of complainant, told him that she was taking a nap on the
mattress with complainant and another baby and when she woke up, complainant
was not breathing. Gallagher stated that the infant was cold to the touch which
indicated to him that the infant had not been breathing for some time. Gallagher
continued CPR until the ambulance arrived and paramedics took over the infant�s
care.
Adam Huttash, a lieutenant paramedic with the Van Alstyne Fire Department,
testified that he responded to a call on June 12, 2017 for a pediatric patient with CPR
in progress. Huttash testified that the infant was cold to the touch, nonresponsive,
not breathing, without a pulse, and very small for its age. Huttash continued CPR,
inserted an IV for medication, placed an advanced airway, and put the infant on a
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monitor to search for a heart rhythm. During the trip to the hospital, the infant
remained nonresponsive, not breathing and pulseless.
Emily Ogden, a medical examiner for the Dallas County Medical Examiner�s
Office, testified that she performed an autopsy of complainant at the request of
Grayson County. Dr. Ogden testified that complainant was �very emaciated for his
age� and she had �concerns before even starting the autopsy� which included low
weight for a seven-week old infant, signs of dehydration including sunken eyes, skin
tenting,1
and visible ribs and spine. Medical examination photographs in evidence
depict the infant�s skin puckered or wrinkled (tented) all over his body, head to toe,
front and back. A photograph of the front depict the infant�s ribs protruding far
beyond his abdomen and a photograph of his back depicts his spine and ribs
protruding. Dr. Ogden testified that these conditions were not due to decomposition
of the body. Dr. Ogden noted that complainant�s stomach was completely empty
and that the majority of his digestive tract had mucoid material which indicated that
it had been several hours to two days since complainant had last eaten. Dr. Ogden�s
professional conclusion as to the cause of death was malnutrition and dehydration.
At his time of death, complainant weighed 4.48 pounds and a baby of his age in the
50th percentile weighs 11.46 pounds. Dr. Ogden examined his digestive tract but
1
Dr. Ogden, and later Dr. Sridevi Alapati, explained skin tenting is done to check the normal fullness
of the skin from hydration and normal subcutaneous fat. When skin has normal fullness and the skin is
pulled up and released, it returns to its normal shape. But when skin is dehydrated and lacks normal
subcutaneous fat and is pinched and released, the skin remains in a pinched or tented shape.
�4�
could locate no inflammation or evidence of any disease that would cause
complainant not to absorb food. For example, complainant had no history of feeding
intolerance, vomiting, diarrhea, or disease that would not allow for the absorption of
food. Complainant had very little subcutaneous fat, which indicated his body had
already used up his glucose stores and fat storage. Dr. Ogden testified that the
manner of death was homicide because the infant was unable to get food for himself
and �a normal adult would have taken him to a hospital if they were concerned that
he was not getting proper nutrition, because he did not have a reason to not be
absorbing his nutrition other than not getting nutrition.� Dr. Ogden further testified
that it would have taken several weeks for complainant to be in this condition and
he suffered serious bodily injury in the process.
Sridevi Alapati, a pediatrician at the Pediatric Care Center and an on-call
pediatrician with Wilson N. Jones, testified that his was on call on the date of
complainant�s birth on April 19, 2017. Complainant was born at 37 weeks with
hypoglycemia (low blood sugar) and intrauterine growth retardation (lacking
sufficient calories). Complainant received IV fluids and baby formula supplements
during his four-day stay in the hospital after birth. Dr. Alapati testified that appellant
elected to solely breastfeed and a doctor and a lactation nurse would have spoken
with her about breastfeeding. Although appellant made a two-week appointment
with Dr. Alapati�s office, she did not show up to the appointment or call to let them
know she could not come. Appellant came to Dr. Alapati�s office on June 7, 2017
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and refused vaccinations on the new patient paperwork. Dr. Alapati explained that
the office does not take patients whose parents refuse vaccinations and appellant
stated she would find another provider. Dr. Alapati did not examine the infant or
see the infant on June 7, 2017. Dr. Alapati testified that appellant would be in the
best position to know if complainant was getting enough food based on the amount
of wet diapers and to know the heaviness of her breasts to provide enough milk.
Lenora Marshall, appellant�s aunt, testified that appellant lived with her for a
while. Appellant has four children in addition to complainant. Appellant was living
with Marshall when she gave birth to complainant. Marshall worked nights as a
nurse and did not see complainant a lot due to her work schedule. Appellant moved
out with her five children a few days before complainant died. Marshall testified
that appellant talked to her twice about appellant thinking she was not making
enough milk for the infant. Marshall testified that complainant had a twin who was
stillborn. Marshall also identified appellant�s Facebook page which had a user name
of �Mariah and My Four Roberts.�
Ashley Brumm, an OB-GYN physician, testified that appellant came to see
her when appellant was twenty-eight weeks pregnant with complainant. Appellant
went to her routine post-partum visit with Dr. Brumm but voiced no concerns about
not being able to get a pediatrician, breastfeeding, or the well-being of the baby. In
her notes, Dr. Brumm noted that appellant met the requirements for post-partum
depression.
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Danny Jones, an officer with the Gunter Police Department, testified he
responded to a call about a two-month old infant failing to breathe. Jones observed
the infant and described him as �a dark deflated baby doll, frail, small, very thin.�
Jones testified that he saw canisters of baby formula in the home.
Shawn Johnson, the Gunter Chief of Police, testified that he interviewed
appellant and �at one point she said she felt like she knew she wasn�t making enough
milk.� Johnson asked her why she did not supplement with formula if she knew she
was not making enough milk, and appellant stated that she started the �night before�
because she had wanted to keep trying to breastfeed. In regard to her prior children,
appellant stated that she had attempted to breastfeed all of them but she never had
enough milk for any of them and she always had to use formula.
Shaun Hopkins, a special investigator with Texas Department of Family and
Protective Services and a police officer, testified that he met with appellant and heard
her state that �the baby had died because she did not produce enough milk.�
Following Hopkins�s testimony, the State introduced exhibits including a
business record affidavit from the business record custodian of Facebook who
produced the business records of Facebook pursuant to a search warrant. One of
these exhibits included an image of appellant�s Facebook account with the following
entry dated October 9, 2016 and read into the trial transcript as follows:
[Appellant]: Because my bd talking about turning himself in, and when
I get the kids, not going to have a babysitter and I won�t be able to work
without someone watching the kids. This is too much stress and I don�t
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want to be a single mother of five kids. It�s already hard with four.
Frowny face. Frowny face. I just hate to think about it.
[Response]: Why boo?
[Appellant]: Frowny face. Frowny face. I just don�t think I can keep
this baby.
Joseph Lipscomb, a pediatrician, testified that he reviewed complainant�s
autopsy report, complainant�s medical records and the siblings� medical records. Dr.
Lipscomb testified that complainant�s death was due to a failure to thrive, but not
because of any metabolic or genetic disorders. Instead, Dr. Lipscomb testified that
complainant�s failure to thrive was due to malnutrition�a lack of calories�and that
the infant would have suffered physical pain due to the malnutrition. He further
testified that in his professional opinion, complainant�s death could have been
prevented with medical intervention.
B. Defense Witnesses
Henrietta Wilkes, appellant�s cousin and Marshall�s daughter, testified that
she was living at Marshall�s house at the time of complainant�s birth along with her
son, Marshall, appellant, appellant�s five children and the children�s father. Wilkes
testified that she helped take care of complainant and never had any concerns about
the infant not properly feeding. Wilkes testified that she did not believe appellant
would cause harm to her children.
Dr. Charles Keenan, a psychologist, testified that he had met with appellant
and conducted a psychological evaluation, a mental status evaluation, and other tests.
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Dr. Keenan did not find any indication that appellant was incompetent to proceed in
the case. He also noted that appellant was mildly to moderately depressed, but no
indication of mental illness. As discussed further below, the trial court excluded Dr.
Keenan�s testimony concerning specific characteristics of appellant and whether or
not those characteristics make her a mother who would form the intent or not.
ANALYSIS
A. Sufficiency of the Evidence
Appellant asserts the evidence is legally insufficient to show that she desired
for the complainant to sustain serious bodily injury or that she was reasonably certain
her omission would lead to serious bodily injury.
1) Standard of Review
When reviewing whether there is legally sufficient evidence to support a
criminal conviction, the standard of review we apply is whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Murray
v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). The evidence may be circumstantial or direct, and we
permit juries to draw multiple reasonable inferences from the evidence presented at
trial. Vernon v. State, 571 S.W.3d 814, 819 (Tex. App.�Houston [1st Dist.] 2018,
pet. ref�d). The jury is the sole judge of witness credibility and of the weight given
to any evidence presented. Id. at 819�20. A jury may believe or disbelieve some or
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all of a witness�s testimony. Id. at 820. On appeal, reviewing courts determine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the
verdict. Murray, 457 S.W.3d at 448.
2) Penal code
Section 22.04 of the Texas Penal Code defines the offense of injury to a child:
(a) A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes to a child, elderly
individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
TEX. PENAL CODE � 22.04(a).
In this case, appellant was charged with intentionally or knowingly causing
serious bodily injury to complainant by failing to provide complainant with adequate
food or medical care. The Texas Penal Code defines the culpable mental states at
issue here as follows:
(a) A person acts intentionally, or with intent, with respect to the nature
of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct when
he is aware of the nature of his conduct or that the circumstances exist.
A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.
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TEX. PENAL CODE � 6.03(a), (b).
3) Indictment
The indictment in this case charged appellant with the following offense:
intentionally or knowingly, by omission, cause serious body injury to
[complainant], a child 14 years of age or younger, by failing to provide
[complainant] with adequate food, medical care, or [sic] and the
defendant had a statutory or legal duty to act, namely the duty of a
parent under section 151.00l(a) of the Texas Family Code; or
intentionally or knowingly, by omission, cause serious body injury to
[complainant], a child 14 years of age or younger, by failing to provide
[complainant] with adequate food, medical care, or [sic] and the
defendant had assumed care, custody, or control of the child[.]
4) Analysis
Appellant argues that the evidence is insufficient to prove that appellant acted
intentionally or knowingly to cause complainant serious bodily injury. We disagree.
Here, Fire Chief Gallagher testified complainant was �very small, frail� who
had his skin �drawn in� and did not look like a �normal baby.� Officer Jones testified
that he responded to a call of a two-month old failing to breathe and witnessed a
�dark deflated baby doll, frail, small, very thin.� Officer Jones saw canisters of baby
formula in the house. Chief of Police Johnson interviewed appellant who admitted
that she had attempted to breastfeed all of her children and never had enough milk
for any of them and always had to use formula. Appellant also told Johnson that she
knew she was not making enough milk but she wanted keep trying and only began
to supplement her breast milk with formula the night before complainant died.
�11�
Dr. Ogden testified complainant was �very emaciated for his age� and had
signs of dehydration, sunken eyes, skin tenting, visible ribs and a visible spine. She
testified that complainant�s weight at his time of death was 4.48 pounds and her
professional conclusion as to the cause of death was malnutrition and dehydration.
Dr. Ogden testified that the manner of death was homicide because the infant was
unable to get food for himself and �a normal adult would have taken him to a hospital
if they were concerned that he was not getting proper nutrition, because he did not
have a reason to not be absorbing his nutrition other than not getting nutrition.� She
noted that complainant had no history of feeding intolerance, vomiting, diarrhea, or
disease that would not allow for the absorption of food. She further testified that it
would have taken complainant several weeks to come to this condition and he would
have suffered serious bodily injury in the process.
Dr. Alapati testified that appellant elected to solely breastfeed complainant
following his birth and a lactation nurse had spoken to her in the hospital. Dr.
Alapati testified that appellant would be in the best position to know if complainant
was getting enough food based on the amount of wet diapers and the heaviness of
appellant�s breast to provide milk. He also testified that appellant made a two-week
appointment following complainant�s birth but did not come to the appointment.
Dr. Lipscomb testified that complainant�s failure to thrive was due to a lack
of calories and that the infant would have suffered physical pain because of this
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malnutrition. He also testified that complainant�s death could have been prevented
with medical intervention.
Viewing all the evidence in the light most favorable to the verdict, we
conclude a rational jury could have found beyond a reasonable doubt that appellant
had intentionally or knowingly injured complainant by failing to provide food and
medical care. We resolve appellant�s first point against her.
B. Expert Testimony
Appellant asserts the trial court abused its discretion in excluding expert
testimony.
1) Additional facts
When the defense called Dr. Keenan to testify at trial, the State requested a
hearing outside the presence of the jury. Dr. Keenan testified that he had conducted
a forensic psychological evaluation of appellant based upon the discovery, the arrest
and incident reports, and six hours of conducting assessments and interviewing
appellant. Dr. Keenan performed the MMPI which is an objective assessment of her
personality structure and functioning, and the Shipley-2 which is a brief cognitive,
intellectual assessment which consists of vocabulary tests and a test for abstract
reasoning. Dr. Keenan�s �basic findings were that she did not demonstrate any
mental illness, that she did not indicate any of the personality characteristics or traits
that are typically associated with mothers that intentionally harm or kill their
children.�
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The State argued that the MMPI is designed to diagnose psychological
illnesses, not to determine if someone would formulate an intent to commit a crime.
The State asked Dr. Keenan about maternal filicide and Dr. Keenan testified that he
was unaware of maternal filicide research findings. Dr. Keenan did agree that the
�science of predicting when one is capable of killing is inexact� and that �there is
not enough research into the characteristics of filicide to come up with a set profile.�
The following exchange then took place between the State and the trial court:
[Trial Court]: What is it you�re exactly asking me to do, Mr. Smith?
[State�s attorney]: Your Honor, this expert is -- basically what he�s
going to do is get up in front of this jury and basically testify that based
on his clinical review and the studies that he performed that she does
not fit the psychological characteristics of a mother who would
intentionally harm or neglect her child. One is, she�s charged
intentionally and knowingly by omissions committing these acts. I
think it�s going to confuse and mislead the jury. And secondly, by his
own testimony, as far as the maternal filicide issue, I don't think he�s
got the qualifications to testify in that regard, because, in fact, the
science is not clear and he's admitted as much. And I have a case law
on point, Gallo v State, which is from the Court of Criminal Appeals
I'll be glad to tender to the court. But they specifically denied an
expert�s ability to testify when he answered the questions just as Dr.
Keenan just did that basically �
***
So, I guess what the gist of what Dr. Keenan may testify to is that in his
opinion he�s reviewed her, she doesn�t have any mental retardation, she
doesn�t have any mental illness. She was at the time he interviewed her
suffering from depression, which would certainly be admissible,
certainly be relevant to the defense in this case. But I think testifying
about the ultimate issue in this case regarding intent, just based on his
testimony, regarding the inexact science of being able to predict and
profile maternal filicide I think would be inadmissible.
�14�
After hearing argument from both sides, the trial court then continued the trial until
the next day so he could review the legal research and additional papers. The next
day, the trial court made the following ruling:
The Court�s reviewed the Gallo case. The Court�s also reviewed some
of the material provided by the defense. At least, the Court�s reading of
the Gallo case, it indicates that not so much to do with whether or not
Dr. Keenan did enough work or not himself, it�s just with the science
and the reliability of the issue of filicide and being able to competently
or reliably be predictive to the point where it could be applied in a court
of law.
So I�m going to sustain the State�s objection in that regard. Dr. Keenan
will not be allowed to testify with regard to the specific characteristics
of Ms. Roberts and whether or not that makes her a mother who would
form the intent or not. That�s the Court�s reading of the Gallo case.
2) Standard of Review
We review the trial court�s decision to admit or exclude evidence under an
abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82�83 (Tex. Crim.
App. 2016). A trial court abuses its discretion only when its decision falls outside
the zone of reasonable disagreement. Id. at 83.
3) Analysis
In this case, the trial court allowed Dr. Keenan to testify but excluded his
testimony regarding to the specific characteristics of appellant and whether or not
that makes her a mother who would form the intent or not. Appellant asserts that
the evidence was sufficiently relevant and reliable to assist the jury in determining a
fact in issue. We disagree.
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Rule 702 of the Texas Rules of Evidence provides �[i]f scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion or
otherwise.� See TEX. R. EVID. 702. The proponent of the scientific evidence must
show, by clear and convincing proof, that the evidence is sufficiently relevant and
reliable to assist the jury in accurately understanding other evidence or in
determining a fact in issue. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App.
2007). The reliability of �soft� science evidence may be established by showing
that: (1) the field of expertise involved is a legitimate one; (2) the subject matter of
the expert�s testimony is within the scope of that field; and, (3) the expert�s testimony
properly relies upon or utilizes the principles involved in that field.2
See Nenno v.
State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by
State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).
Appellant argues that Keenan satisfied the test for soft sciences outlined in the
Nenno decision and should have been allowed to fully testify. Appellant further
argues that the Gallo decision is distinguishable because in the present case,
Keenan�s opinion was based on his extensive psychological testing of appellant
while the expert in Gallo based his conclusions on the defendant�s CPS records,
2
The Court of Criminal Appeals defined �soft� science as the social sciences or field that are based
primarily upon experience and training as opposed to the scientific method. Nenno, 970 S.W.2d at 561.
�16�
psychological report, and his research expertise on filicide. In Gallo, the defendant
was on trial for killing a three-year old child. 239 S.W.3d at 761�62. The defendant
sought to put on the expert testimony of a professor with a Ph.D. in development
psychology to testify regarding filicide��what researchers call the phenomenon of
parents that kill their children.� Id. at 766. The expert planned to testify why
mothers are statistically more likely to kill their children than fathers and the �risk
factors� associated with the victim�s mother that made her a �risk and potential
suspect for the perpetration of the homicide.� Id. On cross-examination, the expert
testified that the �science of predicting one who is capable of killing is inexact� and
�there hasn�t been extensive enough research into the characteristics of filicide in
order to come up with a set profile.� Id. The trial court ruled that the expert�s
testimony was inadmissible because the court had questions as to whether it was a
legitimate field of expertise, whether it would be helpful to the jury, and did not find
the testimony with regard to the studies of filicide or child abuse to be reliable. Id.
The Court of Criminal Appeals affirmed the ruling by concluding the trial court did
not abuse its discretion in ruling the evidence was inadmissible. Id. at 766�67.
As stated above, the trial court relied upon the Gallo decision in determining
that Keenan could not testify with regard to the specific characteristics of appellant
and whether that makes her �a mother who would form the intent or not� because
the testimony is not sufficiently reliable to assist the jury. As in Gallo, Dr. Keenan
admitted the �science of predicting when one is capable of killing is inexact� and
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that �there is not enough research into the characteristics of filicide to come up with
a set profile.� Accordingly, appellant cannot satisfy the Nenno factors. We conclude
appellant did not show by clear and convincing proof that Dr. Keenan�s testimony
was sufficiently reliable to assist the jury and the trial court did not abuse its
discretion in ruling this evidence inadmissible. We resolve appellant�s second point
against her.
Outcome: On the record of this case, we affirm the trial court�s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: