text:
    Reginald Wayne TAYLOR, Appellant v. The STATE of Texas, Appellee.
    No. 06-05-00022-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 6, 2005.
    Decided Sept. 8, 2005.

      Staci Dian Biggar, Guerrero & Biggar LLP, Houston, for appellant.
    Shirley Cornelius, Assistant District Attorney, Houston, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Reginald Wayne Taylor was convicted by a jury for the offense of sexual assault of a child. Taylor pled “true” to the enhancement allegation that he had once before been convicted of the felony offense of robbery. The trial court assessed his punishment in accordance with the parties’ agreement at thirty-five years’ imprisonment and sentenced him accordingly. Taylor appeals, contending the trial court erred: 1) in disallowing the testimony of a witness; and 2) in giving an Allen charge to the jury. We affirm.

The sufficiency of the evidence is not challenged. Briefly, the victim, T.G., fifteen years old at the time of the offense, testified that, during the early morning hours of November 21, 2003, Taylor took her to a motel room where he removed her shorts and underwear and put his mouth on her vagina. Immediately after this assault, Taylor told T.G. that, if anybody ever found out about it, she had “better deny it to the end.” Taylor was thirty-three years old at the time of this offense.

Taylor first complains of the trial court’s action in disallowing the testimony of his father, Henry Roy. Henry’s testimony was excluded because it would have been in violation of the Rule.

T.G. testified she and her mother confronted Taylor and his family about the alleged sexual assault. She said she (T.G.) spoke to Henry alone and told him the incident did happen. Taylor now claims this testimony was unexpected, and because he did not anticipate that testimony, he had not intended to call Henry as a witness. Taylor maintained that no such private conversation took place between T.G. and Henry, and wanted the opportunity to rebut her testimony by offering the testimony of Henry, who had been sitting in the courtroom throughout the trial. The trial court excluded the rebuttal testimony because the Rule was invoked at the beginning of trial and the State objected to the testimony.

Disqualification of a defense witness for such witness’ violation of the Rule must be viewed in light of the defendant’s constitutional right to call witnesses on his or her behalf. Davis v. State, 872 S.W.2d 743, 745 (Tex.Crim.App.1994). Generally, a defense witness should not be excluded solely for violation of the Rule. Lopez v. State, 960 S.W.2d 948, 953 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). The trial court’s decision to exclude a witness’ testimony is reviewed under the abuse of discretion standard. See id. A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id. The test for determining if a court properly exercised its discretion in excluding testimony in this context is: 1) whether the “particular and extraordinary circumstances” show the defendant or his or her counsel consented, procured, connived, or had knowledge of a witness or potential witness who is in violation of the sequestration rule, and 2) if no particular circumstances exist to justify disqualification, was the testimony of the witness crucial to the defense. Id. (citing Webb v. State, 766 S.W.2d 236, 245 (Tex.Crim.App.1989)). The appellant has the burden of establishing both prongs. Id.

Taylor contends Henry’s testimony was crucial because the trial centered around T.G.’s credibility and Henry could have directly controverted one of her claims. However, excluded testimony is not considered crucial if it can be supplied by witnesses other than the excluded witness. See Cooper v. State, 578 S.W.2d 401, 403 (Tex.Crim.App. [Panel Op.] 1979), overruled in part on other grounds, Bates v. State, 587 S.W.2d 121, 143 (Tex.Crim.App.1979); Flores v. State, 915 S.W.2d 651, 653 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).

The confrontation between T.G. and her mother and Taylor and his family was confirmed by Gladie Roy, Taylor’s mother. Gladie’s testimony was apparently anticipated by Taylor, and she was placed under the Rule. Gladie testified that she, Henry, and Taylor were all present during the confrontation by T.G. and her mother. Gladie further testified she asked T.G. whether the allegations she was making against Taylor were true, and T.G. replied, “I’m not sure.” It was therefore clear to Taylor that the conversations between the various participants in this confrontation were important. He could have reasonably expected to call Henry to testify regarding some aspect of that confrontation, particularly, who was conversing with whom, which would necessarily include a private conversation between Henry and T.G., or the lack of a private conversation between them. Taylor, having knowledge of Henry’s presence in the courtroom and the context of his potential testimony, fails to meet the first prong of the Webb test.

Taylor also fails to meet the second prong because the excluded testimony was not crucial to his defense. There were obviously other participants in the confrontation who could have addressed the issue of whether T.G. and Henry spoke together in private. While the other witnesses could not have testified concerning what was said during a private conversation between T.G. and Henry, if any such conversation occurred, they could have testified as to whether a private conversation took place at all, which is what Henry denied in Taylor’s proffer of his testimony. The ultimate issue Taylor sought to prove with Henry’s testimony, that no private conversation occurred between T.G. and Henry, could easily have been proven by Gladie’s testimony. Her testimony centered around the confrontation where the private conversation was alleged to have occurred. Taylor, however, chose not to ask Gladie about this matter when he called her to testify. Because other witnesses could have testified to the facts Taylor offered through the proffered testimony of Henry, that proffered testimony was not crucial. Taylor’s first point of error is overruled.

In his second point of error, Taylor complains that

The trial court erred in giving an “Allen” charge to the jury after the jurors sent out multiple notes indicating that one of the members of the jury knew the child complainant personally, that the jury was divided 11 guilty to 1 not guilty, that the person voting “not guilty” has a personal attachment with the neighborhood and one of the witnesses, and that the juror would not [sic] longer deliberate with the majority of the jury.
November 18, 2004

An Allen charge is usually given in response to a specific request by the jury for additional guidance when the jury is deadlocked. See West v. State, 121 S.W.3d 95, 107 (Tex.App.-Fort Worth 2003, pet. ref'd). To prevail on a complaint that an Allen charge is coercive, an accused must show that jury coercion or misconduct likely occurred or occurred in fact. Id. An Allen charge is unduly coercive and therefore improper if it pressures jurors into reaching a particular verdict or improperly conveys the court’s opinion of the case. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App.1973).

The following time line is helpful in understanding the progression of jury notes in this case:

11:44 a.m. jury deliberations began
12:30 p.m. jury excused for lunch
1:30 p.m. jury deliberations resumed
3:38 p.m. first note asking for guidance because the jury was split eight-to-four for guilty; jury instructed to continue its deliberations
4:20 p.m. second note stating that the jury was broken 10-2 for guilty and that “one of the jurors knows Christy McDonald and at least one of the other children that was in front of the courtroom yesterday”; jury instructed to follow the written instructions and continue its deliberations
5:30 p.m. third note stating the jury was split 11-1 for guilty; no response given and jury excused for the day
November 19, 2004
9:05 a.m. jury deliberations resumed
10:12 a.m. fourth note stating the jury was split 11-1 for guilty and that the one voting not guilty “has a personal attachment with the neighborhood and one of the witnesses” and that “the juror will no longer deliberate with the majority of the jury”
10:29 a.m. Allen charge given, over Taylor’s objections
11:55 a.m. jury given short break at its request
12:15 p.m. jury deliberations resumed
12:37 p.m. jury returned unanimous verdict of guilty

As noted, the jury had deliberated approximately two hours and forty-five minutes before reporting it was split eight to four. Approximately one hour after being instructed to continue deliberating, the jury reported it was split ten to two. The court instructed the jury to continue deliberating. Approximately one hour later, the jury reported being split eleven to one. The trial court, noting the jury was “deliberating and discussing and minds [were] being changed,” sent the jury home for the day without further instructions concerning its deliberations. The next day, the jury deliberated for little more than one hour and reported that it was still split eleven to one and that the one “will no longer deliberate.” Only then did the trial court give the following instruction:

If the jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. And such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the same evidence which has been presented to the jury. The questions to be determined by that jury will be the same questions confronting you, and there is no reason to hope the next jury will find these questions any easier to decide than you have found them.
With this additional instruction, you are requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience. Don’t do violence to your conscience, but continue deliberating.

Approximately two hours after receiving this charge, the jury returned into court with its unanimous verdict. On Taylor’s request, the jury was polled and each of the twelve jurors affirmed that the guilty verdict was his or her individual verdict. Under these facts, we do not believe the charge given was coercive.

Although not as neutral as the instruction approved by the Texas Court of Criminal Appeals in Howard v. State, 941 S.W.2d 102, 123-24 (Tex.Crim.App.1996), the Allen charge given in this case is similar to other instructions that have been reviewed and held to be noncoercive. See Arrivalo, 489 S.W.2d at 571-72; West, 121 S.W.3d at 109; Willis v. State, 761 S.W.2d 434, 437-38 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). As in West, the charge given in the instant case does not contain the type of language courts have held to be coercive. See, e.g., Green v. United States, 309 F.2d 852, 855 (5th Cir.1962) (holding Allen charge coercive that told jury it is duty of minority to listen to argument of majority with some distrust of their own judgment because rule is that majority will have better judgment than mere minority). Although not as neutral as it could have been, the instruction in the instant case did not tell the jury that one side or the other possesses superior judgment, and did not tell the jurors to distrust their own judgment. It did tell the jurors twice not to do violence to their conscience.

Because the charge given was not coercive on its face, and because nothing shows it acted to coerce the jury, we hold that Taylor has not shown that jury coercion or misconduct likely occurred or occurred in fact. His second point of error is overruled.

We affirm the judgment.

      . Tex. Pen.Code Ann. § 22.011(a)(2)(C) (Vernon Supp.2004-2005).

      . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . First names are used in this opinion where more than one person has the same last name.

      . Tex.R. Evid. 614.

      . This is the only note naming a witness with whom a juror had personal knowledge. Christy McDonald, however, is not the "child complainant,” but is a witness called by Taylor. The State asserts in a footnote in its brief before this Court that "the reference to 'one of the other children that was in front of the courtroom yesterday’ does not refer to a witness in the case, but rather, to an otherwise unidentified person that juror saw in the hallway, who might or might not have been connected to the case in some manner.”


source: Caselaw Access Project

author: Opinion by Chief Justice MORRISS.

license: Public Domain

text:
    Orian Lee SCOTT, Appellant v. The STATE of Texas, Appellee.
    No. 06-05-00041-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 13, 2005.
    Decided Sept. 8, 2005.

      John Nix, Sherman, for appellant.
    Deborah Moore, Assistant District Attorney, Gary D. Young, Lamar County Attorney, Paris, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

As an employer, and benefactor, Orian Lee Scott seemed too good to be true. The three teenaged boys Scott hired to perform household chores, such as yard work, painting, and bathing his dogs, were paid extremely well — ten dollars per hour each — were occasionally given gifts, and would often be treated to dinner and a movie after a day’s work on the condition they get “cleaned up” before going out. Many times over many months, the three boys complied and took showers in Scott’s guest bathroom, often masturbating while in the curtain-less shower. Scott was so openhanded that, while the boys were taking their showers, they were often still on the clock. Little did they know, they were also being videotaped by a camera hidden in the bathroom clock.

From this series of events, Scott was charged with, and convicted of, nine different charges — -three charges relative to each of the three boys. In each of three indictments, one per boy, the State brought one count of inducing a sexual performance by a child, one count of producing or promoting a sexual performance by a child, and one count of possession of child pornography. Overruling Scott’s motion to sever the offenses, the trial court proceeded in a single prosecution. Scott pled guilty to the three counts of possessing child pornography. A jury found him guilty of the three charges of inducing a sexual performance by a child and of the three charges of producing or promoting a sexual performance by a child. For each conviction of inducing a sexual performance, Scott was sentenced to twenty years, a total of sixty years’ confinement. For each production conviction, he was sentenced to ten years, a total of thirty years. Finally, for the three convictions for possessing child pornography, he was sentenced to a total of ten years. The trial court stacked the sentences, resulting in a combined sentence of 100 years. Scott now appeals, challenging the sufficiency of the evidence to prove the “induce” element of the offenses charged, the consolidation of the trial on all offenses, the reasonableness of the search yielding physical evidence against him, and the stacking of the sentences.

While we find the search valid and the physical evidence admissible, we reverse and render Scott’s conviction on Count One of each indictment, because we find the evidence legally insufficient to prove Scott induced any of the boys to engage in sexual conduct. We reverse and remand for a new trial Scott’s conviction on Count Two of each indictment, and we reverse and remand for a new punishment trial the charges for possession of child pornography, because we find the trial court’s refusal to sever the trial of each Count Two from Count Three, to which Scott had pled “guilty,” was harmful error — affecting the conviction on each Count Two and affecting the punishment on each Count Three.

Below, we (1) provide the factual background, (2) discuss the validity of the search, (8) discuss the legal insufficiency of the evidence to prove Scott induced the boys’ sexual conduct, and (4) discuss the failure to sever each Count Two from its associated Count Three.

(1) Factual Background

A.H. and D.H., fourteen-year-old twin brothers, started working for Scott in August 2003, initially helping him move in, and were each paid $10.00 per hour. After Scott was moved in, the boys did other work around the house. Scott asked the brothers if they had a friend who could help them. The brothers asked J.P., their fifteen-year-old friend, who agreed to work with them. After summer ended, the three boys continued to work, mostly on weekends, about eight hours a day.

Scott provided the boys swim trunks to work in so they would not “ruin” their clothes. Early on, Scott began to suggest the boys shower after having bathed the dogs or spread ant poison. Scott routinely offered to take the boys to dinner and a movie if they got “cleaned up” in the guest bedroom. The boys took several showers during the months they worked for Scott, despite the fact that there was no shower curtain.

In March 2004, the boys were playing on Scott’s computer — they said with his permission — and discovered some photographs of young nude males in suggestive poses. The boys went to authorities, and an investigation by the Lamar County Sheriffs Department ensued. Based on his interviews with the complainants and the mother of two of the complainants, Detective Travis Rhodes obtained a search warrant. The resulting search of Scott’s house yielded child pornography on Scott’s computer and also revealed that he had been secretly videotaping the boys’ showers through use of a camera hidden in a digital clock in the bathroom.

Each boy testified at trial, admitting to masturbating frequently while in the shower. Each, however, made it clear that Scott never offered him money to masturbate in the shower, never encouraged him to do so, never threatened or coerced him into doing so, and never even asked him to do so. The boys testified that they did not know of the videotaping and that it was done without their consent.

(2) The Search Was Valid

Scott filed a pretrial motion to suppress December 6, 2004. Asserting that the boys did not have permission to be on the computer, Scott sought to suppress evidence found on his computer. He also argued that, since Rhodes already knew about the presence of safes on the premises, Rhodes should have included such information in his affidavit. Since Rhodes did not, argues Scott, the search warrant did not authorize search of the locked safe in the laundry room in which the officers found the videotapes. The trial court heard and overruled Scott’s motion.

A search is unreasonable and violates the protections of the Fourth Amendment if it exceeds the scope of the authorizing warrant. U.S. Const. amend. IV; see Long v. State, 532 S.W.2d 591, 596 (Tex.Crim.App.1975); DeMoss v. State, 12 S.W.3d 553, 558 (Tex.App.-San Antonio 1999, pet. ref'd). While the scope of the search warrant is governed by its terms, the search may be as extensive as is reasonably required to locate items described in the warrant. U.S. Const. amend. IV; Haynes v. State, 475 S.W.2d 739, 741-42 (Tex.Crim.App.1971). A container that may conceal the object of a search authorized by warrant may be opened immediately. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see also United States v. Giwa, 831 F.2d 538, 543-44 (5th Cir.1987) (“any container situated within residential premises which is the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant”).

If an appellant challenges the scope of the search because of the location where the items were found, the officer must show that he or she was properly in the place where the item was found, either on basis of the search warrant or under the authority of an exception to the warrant requirement. Snider v. State, 681 S.W.2d 60, 62-63 (Tex.Crim.App.1984); Swink v. State, 747 S.W.2d 53, 54 (Tex.App.-Texarkana 1988, no pet.). To illustrate what the record must show when an appellant advances such a challenge, we look to De-Moss. In a search for an illegal cable box, the officer executing the search warrant in DeMoss did not exceed the scope of the warrant when he searched a shoebox found in a bedroom of the residence specified in the warrant and when he testified that a smaller portion of the cable box could have fit into the box. DeMoss, 12 S.W.3d at 558.

The search warrant issued to Rhodes authorized him to search “[a] single family dwelling located at Rt. 1 Box 130-D Brookston, Texas ... located on county road 34300 5/10 of a mile south of FM38 on the eastside of the county road” including “all other buildings, structures, places and vehicles on said premises and within the curtilage ... which may reposit or secrete property which is the object of the search requested herein.” The search warrant authorized the search for “[a]ny still photos, digital photos, videotapes, DVD’S [sic], MP3[,] or audio recordings” and “[a]ny device or equipment capable of producing and/or storing still photos, digital photos[,] and video.”

Rhodes testified that D.H. did tell him there were two safes located in the house. Rhodes further testified that he based his search for videotapes and recording devices on the complainants’ statements regarding Scott’s comments to them about him secretly recording people in the past and that the safe was a sufficient size to house videotapes. Regardless of whether Rhodes already knew about the safe, the warrant authorized the search of the laundry room and, more specifically, the safe found in the laundry room that contained the videotapes of the complainants taking showers. Rhodes’s testimony shows he was properly in the place where the item was found.

Likewise, the seizure of Scott’s computer was authorized by the search warrant. The boys told Rhodes they did have permission to be on the computer when they discovered the photographs of nude boys. A.H. testified they were allowed to use it “many” times. Scott faded to prove the boys were not rightfully on the computer when they discovered the materials. Therefore, he failed to support his position that the material found on the computer should have been excluded. See Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). We conclude that the seizure of the items in question pursuant to the search warrant was lawful and that the trial court properly overruled Scott’s motion to suppress.

(3) The Evidence Was Legally Insufficient To Prove that Scott Induced Sexual Conduct

Scott contends the evidence is legally and factually insufficient to prove he induced the boys to engage in sexual conduct. He concedes that he induced the boys to take showers, but maintains that such inducement is insufficient to constitute an offense under Section 43.25 of the Texas Penal Code. Because a legal sufficiency challenge, if sustained, results in an acquittal rather than a retrial, we must consider this issue first. See Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996) (en banc); State v. Mercier, 164 5.W.3d 799, 812 (Tex.App.-Corpus Christi 2005, no pet.).

A person commits an offense if, knowing the character and content thereof, he or she employs, authorizes, or induces a child younger than eighteen years of age to engage in sexual conduct or a sexual performance. Tex. Pen.Code Ann. § 43.25(b). “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola. Tex. Pen.Code Ann. § 43.25(a)(2) (Vernon Supp.2004-2005); Alexander v. State, 906 S.W.2d 107, 109 (Tex.App.-Dallas 1995, no pet.). “Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than eighteen years of age. Tex. Pen.Code Ann. § 48.25(a)(1) (Vernon Supp.2004-2005); Alexander, 906 S.W.2d at 109.

The State charged Scott -with allegations of inducing a sexual performance by the three complainants:

did then and there intentionally or knowingly, knowing the character and content thereof, induced a child younger than 18 years of age, to-wit: [each complainant], to engage in sexual conduct or a sexual performance, to-wit actual lewd exhibition of the genitals or the-anus, or masturbation.

(Emphasis added.)

In the absence of a statutory definition, words are to be taken and understood in their common and ordinary meanings. Williams v. State, 674 S.W.2d 315, 322 (Tex.Crim.App.1984); Alexander, 906 S.W.2d at 111. Since the term “induce” is not defined by the Texas Penal Code, we must adopt the word’s meaning in common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). To “induce” is “to lead or move by persuasion or influence, as to some action or state of mind” or “to bring about, produce, cause.” Random House DICTIONARY OF THE ENGLISH LANGUAGE 975 (2d ed. 1987). Black’s Law Dictionary defines “inducement” as “[t]he act or process of enticing or persuading another to take a certain course of action.” Black’s Law DictionaRY 790 (8th ed. 2004). We now turn to look at cases which illustrate the term “induce.”

One induces a child to engage in sexual conduct if he or she instructs the child to disrobe and engage in simulated sexual intercourse with a nude female child. Foty v. State, 755 S.W.2d 195 (Tex.App.-Houston [14th Dist.] 1988, no pet.). Foty photographed the two children in various sexual positions and in a variety of settings both inside and outside his house. Id.

Another man admitted taking photographs of a young girl nude from the waist down with her legs spread and a close-up photograph of the girl’s genitalia, but he argued that he had taken the photographs to document suspected sexual abuse of the girl, a defense which the jury rejected. See Garay v. State, 954 S.W.2d 59, 62 (Tex.App.-San Antonio 1997, pet. ref'd). The appellate court held that the admissions and photographs alone were sufficient evidence to support the inducement charges. Id. at 66.

Still another individual challenged the sufficiency of the State’s proof of the inducement element of this offense. Dorval v. State, No. 03-03-00570-CR, 2004 WL 1685442, at *1, 2004 Tex.App. LEXIS 6813, at *2-3 (Tex.App.-Austin July 29, 2004, no pet.) (not designated for publication). The appellate court held that a rational trier of fact could conclude beyond a reasonable doubt that the complainant was persuaded or prevailed on to engage in the sexual performance by Dorval’s repeated requests, his promise not to touch her, and his assurance that the videotape would belong to her. Id.

The Corpus Christi Court of Appeals recently addressed the limits of the term “induce” as used by Section 43.25(b). See Dornbusch v. State, 156 S.W.3d 859, 866-68 (Tex.App.-Corpus Christi 2005, no pet.). That court determined that Section 43.25(b)’s use of the term “induce” was not unconstitutionally vague as applied to Dornbusch’s alleged conduct. Id. at 867. The record showed that Dornbusch held a position of authority at the complainant’s school, that Dornbusch provided the complainant with alcohol, that he took her to a motel out of town during the school day, and that he made unsolicited sexual advances while at the motel jacuzzi. Id. Since the complainant was supposed to be at school and was, instead, miles away having consumed alcohol, the court concluded Dornbusch had put her in a position in which she found it almost impossible to deny a sexual advance. Id. Such conduct, held the court, fell within the common understanding of the term “induce.” Id. The Dornbusch court concluded that the evidence established Dornbusch used persuasion and influence to bring about the complainant’s sexual conduct and, thus, was legally sufficient to prove inducement. Id. at 868. The evidence was also held to be factually sufficient to support the jury’s verdict. Id. The complainant’s testimony that she was not offered money or grades in exchange for sexual conduct, that she was not intoxicated, that she was not threatened, and that she knowingly consented to the sexual conduct did not outweigh the evidence that Dornbusch induced the sexual conduct by putting the complainant in the above-detailed situation. Id. The statute does not require that any benefit be provided in exchange for the sexual conduct, nor does the common meaning of the term “induce” require such an exchange. Id. Similarly, neither the statute nor the generally understood meaning of “induce” requires that the inducement be verbal and explicit. Id. Dornbusch was careful to distinguish the term “induce” from the term “force.” Id.

We review the legal sufficiency of the evidence by viewing the relevant evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). While the evidence shows that the boys’ masturbation would have fallen into the definition of sexual performance, on this record, there is no direct link between any inducement from Scott — requests, good wages, dinner, entertainment, and gifts — and the boys’ masturbation. All three boys testified that Scott never coerced, encouraged, or even asked them to masturbate in the shower. Scott did encourage them to take a shower, but he did not encourage them to masturbate. In the relatively few cases addressing this offense, most, if not all, have involved sexual conduct or a sexual performance of which the child victim was aware. The boys testified they were unaware they were being videotaped while in the shower.

The State argues that, since Scott had already videotaped the boys in the shower and knew that they were likely to engage in masturbation, Scott’s encouragement and bribery of the boys to take a shower is the functional equivalent of inducing the actual act of masturbation. It would appear that there has been an increasing reach of this provision from Foty to Dom-busch, but finding the evidence sufficient here would expand the statute beyond its plain meaning and beyond our understanding of the Legislature’s intent in passing it.

Scott’s inducement must relate to the specific sexual conduct at which the statute is aimed. That is, inducing the boys to take a shower does not violate the statute. Indeed, it is the masturbation that satisfies the sexual conduct element of the offense. It is this specific conduct which must be induced in order to violate the statute. Put another way, when looking at whether the facts of any given case constitute “inducement” in its ordinary meaning, the focus must be on what, if anything, Scott did to bring about, persuade, or encourage the boys’ masturbation.

It is contrary to the ordinary meaning of the word “induced” to conclude that Scott used “persuasion or influence” to “lead” the boys to masturbate when there was no direct inducement and the boys were not aware they were being observed. By all accounts, the boys did not know Scott was videotaping them while they were in the shower. Each testified that Scott never mentioned masturbation to them, and A.H. testified that he would have refused any request by Scott to masturbate.

Scott did induce the boys to take a shower and then capitalized on the boys’ tendencies to masturbate by recording them for his own gratification. We do not minimize the wrong committed against these young people; the record clearly supports a finding that Scott wronged these boys. However, on these facts, the offense was not one of inducement of a sexual performance or sexual conduct as contemplated by Section 43.25(b). As D.H. testified, “he induced me to be around the environment to do that.” While probably an accurate statement, it does not amount to the offense charged here. We sustain Scott’s first point of error, concluding that, on these facts, the evidence was legally insufficient to prove that Scott induced the boys to masturbate. We reverse the judgment of conviction and render a judgment of acquittal on Count One of each indictment. See Flores v. State, 139 S.W.3d 61, 64 (Tex.App.-Texarkana 2004, pet. ref'd).

Having concluded that the evidence was legally insufficient to support the conviction, we proceed to Scott’s other points of error, with the understanding that Scott is subject to conviction only for the remaining offenses: production or promotion of a sexual performance by a child and .possession of child pornography.

(⅛.) As to Each Indictment, Refusal To Sever Count II from Count III Was Harmful Error

On November 22, 2004, more than thirty days before trial, the State filed its notice of consolidation. See Tex. Pen.Code Ann. § 3.02(b) (Vernon 2003). Before trial, Scott responded and filed a motion to sever Count III from Counts I and II in each indictment. After hearing arguments, the trial court denied the motion to sever and allowed the State to proceed on the consolidated causes.

A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Pen.Code Ann. § 3.02 (Vernon 2003); see also Tex.Code Crim. Proc. Ann. art. 21.24 (Vernon 1989). The accused may rely on Section 3.04, however, and seek a severance of the offenses:

(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.
(b) In the event of severance under this section, the provisions of Section 3.03 do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.
(c) The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b)(2) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

Tex. Pen.Code Ann. § 3.04 (Vernon 2003). When a defendant timely requests severance under Section 3.04(a), his or her right to a severance is absolute and severance is mandatory. See Coleman v. State, 788 S.W.2d 369, 371 (Tex.Crim.App.1990). A motion to sever must be raised before trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex.Crim.App.1999).

By its own terms, Section 3.04(a) does not apply to offenses falling under Section 3.03(b)(2), including offenses involving sexual performance by a child under Section 43.25. Therefore, Scott was not entitled to a mandatory severance of Count I from Count II. Since Counts I and II involve Section 3.03(b)(2) offenses, Scott would bear the burden of showing that he “would be unfairly prejudiced by a joinder of offenses.” See Tex. Pen.Code Ann. § 3.04(c). Section 3.04(c)’s exception does not, however, apply to an offense under Section 43.26 for possession of child pornography. Therefore, on his timely request, Scott was entitled to a mandatory severance of Count III from Counts I and II in each indictment. See Tex. Pen.Code Ann. § 3.04(a); Coleman, 788 S.W.2d at 371.

Error surrounding a trial court’s failure to grant a mandatory severance under Section 3.04(a) is subject to harm analysis. Llamas v. State, 12 S.W.3d 469, 470 (Tex.Crim.App.2000). We must disregard any error that does not affect Scott’s substantial rights. See Tex. Rapp. P. 44.2(b). Everything in the court reporter’s record is data from which we can analyze harm. See Llamas, 12 S.W.3d at 471. The Texas Court of Criminal Appeals has directed Texas courts “[t]o judge the likelihood that harm occurred [by] considering] everything in the record including all the evidence admitted at trial, the closing arguments, and, in this case, the jurors’ comments during voir dire.” Id.

The State relies on Dominguez v. State, 62 S.W.3d 203, 206-08 (Tex.App.-El Paso 2000, pet. ref'd), to support its position that error, if any, in failing to sever the trial on all counts was harmless. The Dominguez trial court refused to sever the trial on allegations of unlawful possession of a controlled substance and failure to stop and render aid, offenses which are markedly different than those before us. Id. at 205. The appellate court recognized that, on his timely request, Dominguez was entitled to a severance of the offenses and that the trial court erred by refusing to grant the severance. Id. at 206. The court concluded, however, that evidence of each of the crimes would have been admissible in a separate trial of the other offense as “same transaction contextual evidence.” Id. at 208 (citing Rogers v. State, 853 S.W.2d 29, 32-34 (Tex.Crim.App.1993).) Since the jury would have heard “the same evidence regardless of whether the offenses were tried separately in different trials or together in one,” the court concluded it was harmless error to refuse to sever the offenses. Id.

The Waco Court of Appeals recently decided a case similar in some respects to the one before us. See Wheat v. State, 160 S.W.3d 631, 634 (Tex.App.-Waco 2005, no pet.). Wheat was charged with two counts of indecency with a child against two complainants and one count of sexual assault of one of those complainants. Id. at 632. Wheat pled “guilty” to both counts of indecency with a child and “not guilty” to the allegations of sexual assault of a child. Id. Each offense was a Section 3.03(b)(2) offense, meaning Section 3.04(c) would require Wheat to prove he was “unfairly prejudiced” by the joinder of the three offenses. The court held that the trial court abused its discretion by refusing to sever the counts to which Wheat pled “guilty.” Id. at 637. Wheat was unfairly prejudiced on the sexual assault allegation by the unauthorized bifurcated trial on the two “guilty” pleas. Id. at 636-37; see also Tex.Code Crim. Proc. Ann. art. 26.14 (Vernon 1989); Ricondo v. State, 634 S.W.2d 837, 841 (Tex.Crim.App.1982). The court pointed out that the consolidation affected what defensive theory Wheat could advance at trial. Wheat, 160 S.W.3d at 636. The court also suggested the possibility that defense counsel could have prevailed on objections to the admission of any evidence relating to those two offenses in a separate trial on the sexual assault charges. Id.

Relying on the principles expressed in Dominguez, the State argues that, even if trial of the allegations in each Count III should have been severed in the instant cases, any error is harmless since all evidence related to Count III would probably have been admissible in trial of Counts I and II either as “same transaction contextual evidence” or as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under Tex.R. Evid. 404(b). See Dominguez, 62 S.W.3d at 208 (citing Rogers, 853 S.W.2d at 32-34); see also Tovar v. State, 165 S.W.3d 785, 795 (Tex.App.San Antonio 2005, no pet.).

Dominguez does not address all of our concerns in the case at bar, however, since that case involved joinder of only offenses to which the defendant had pled “not guilty.” Here, of course, the trial proceeded on charges to which Scott had pled “guilty” and others to which he pled “not guilty.” Dominguez does remain helpful in its illustration of the harm analysis required when dealing with a trial court’s refusal to grant a motion for mandatory severance under Section 3.04(a).

In Wheat, we see another distinction: Wheat was convicted of three offenses, all of which fell under Section 3.04(c)’s discretionary severance provision as well. In the instant case, since Counts III, alleging possession of child pornography, did not fall under Section 3.03(b)(2), discretionary severance under Section 3.04(c) is not the issue as it was in Wheat. The allegations pending against Scott put him squarely within the mandatory severance provision of Section 3.04(a) with respect to Count III. That being the case, on Scott’s timely request for severance, the trial court was required to sever each Count III. However, Wheat remains valuable to our discussion in that it analyzes the impact or prejudice of trying a defendant for an offense to which he or she pled “guilty” with an offense to which he or she pled “not guilty.”

After reviewing the entire record to determine whether the appellant was harmed by the failure to grant mandatory severance, the Llamas court noted the record in that case showed that, no less than five times during voir dire, veniremembers commented in front of the entire jury panel that they were concerned that Llamas had two charges against him. Llamas, 12 S.W.3d at 472 (quoting and affirming the observations of the intermediate appellate court in Llamas v. State, 991 S.W.2d 64, 69 (Tex.App.-Amarillo 1998)). The court pointed out that these concerns constitute “exactly the type of harm that [S]ection 3.04 allows a criminal defendant, in his sole and absolute discretion, to choose to avoid.” Id. (again quoting the observations of the lower court). That being the case, the court could not be sure that the error in refusing mandatory severance did not have a substantial or injurious effect on the jury’s verdict. Id.

Similarly, we note the comments made during voir dire by defense counsel when the panel learned of Scott’s plan to plead “guilty” to possession of child pornography:

[DEFENSE COUNSEL]: Does anybody here had [sic] a son, daughter, grandson or granddaughter that has been the victim of any type of sexual assault r sexual abuse that might make you feel like you could not serve on this jury? What’s your number?
JUROR: 18.
[DEFENSE COUNSEL]: Could you tell me about that?
JUROR: Family members.
[DEFENSE COUNSEL]: Was that your son or daughter?
JUROR: Yes.
[DEFENSE COUNSEL]: The fact that that happened to you, are you going to hold that against Mr. Scott?
JUROR: Well, I got to ask you a question.
[DEFENSE COUNSEL]: Yes, sir.
JUROR: You announced that he had possession of pornographic material.
[DEFENSE COUNSEL]: Yes, I did say that.
JUROR: And that could entice young kids into an act.
[DEFENSE COUNSEL]: You’re right.
JUROR: So, it is extremely hard to be able to stay focused on it without hearing all the facts. But that one statement was awful strong for the D.A. in my opinion.
[DEFENSE COUNSEL]: What number are you?
JUROR: 28.

While the record is somewhat unclear as to which statements are attributable to Juror No. 18 and which are attributable to Juror No. 28, it seems reasonably clear that both made similar comments regarding the guilty plea. At a minimum, some venire-members expressed some ideas associating Scott’s guilty plea with his guilt on the other charges, thereby exposing the entire panel to such ideas. We point out also that Juror No. 18 was on the convicting jury; Juror No. 28 was not. At any rate, we find these comments likely indicative of the impact that a guilty plea may have on a juror deliberating closely-related allegations.

We add that an admission to possession of the videotapes of the showering boys bears significantly on the allegations of production and promotion of a sexual performance of a child. In its opening statement, the State seized on both the guilty plea itself and its close relation to the production or promotion charges:

He’s already pled guilty to possession of child pornography, the videotapes of the boys that he made. According to what I heard on voir dire, it doesn’t really seem that he has an argument over production of a sexual performance because he’s the one that made the videotapes, he’s the one that did everything. He hasn’t pled guilty to it but I think the evidence is going to show that that is pretty strong.

The State similarly mentions the guilty plea during its closing argument to the jury: “Without question he has pled guilty to possessing child pornography, so you sign that. Now, if you go to count two, he hasn’t really pled guilty to that, but he has conceded it under all the facts.” The State refers to Scott’s guilty plea twice more in its rebuttal, at one point clearly associating the guilty plea to the inducement charges as well:

He’s already pled that he knew what was on these tapes. That’s knowledge, that’s intent, that’s conduct on his part to induce. Make no mistake about it. There is no question about it.

The State’s several references to and reliance on the guilty plea in its argument to the jury would serve only to reinforce any of the ideas that the jurors had regarding the impact of Scott’s guilty pleas to Counts III. As did the Texas Court of Criminal Appeals in Llamas, we conclude the trial court’s failure to grant Scott’s timely request for mandatory severance affected Scott’s substantial rights.

We also find persuasive the Waco court’s analysis in Wheat because, although that case involved discretionary severance under Section 3.04(c), it specifically addresses the impact of failure to sever allegations to which a defendant pled “guilty.” The court in Wheat was called on to determine whether failure to grant discretionary severance of three counts, to two of which Wheat pled “guilty,” caused “unfair prejudice.” Our inquiry is somewhat similar in that we must determine whether the trial court’s error in refusing mandatory severance of Counts III to which Scott pled “guilty” had a “substantial or injurious effect on the jury’s verdict.” See Llamas, 12 S.W.3d at 472.

Since here, as in Wheat, we cannot determine what strategy defense counsel would have taken, we cannot conclude the trial court’s failure to sever Scott’s guilty pleas to each Count III is harmless error. Now, it is not unheard of for defense counsel to utilize a strategy like the one defense counsel here was forced to employ. That is, there may be a tactical advantage in admitting to the jury that the appellant did commit some offense, but that the appellant is not guilty of another, often more serious offense. Here, however, it seems clear from defense counsel’s attempts to sever the child pornography allegations that he would not have opted to employ such a strategy.

While we acknowledge that there is evidence of Scott’s guilt of the allegations of production or promotion of a sexual performance by a child, we bear in mind at least two substantial rights — the presumption of Scott’s innocence and his right to a fair trial on Count II of each indictment — both substantial rights in terms of harm analysis. Both of these substantial rights were most likely compromised by the trial court’s failure to sever each Count III. Therefore, we sustain Scott’s point of error and reverse and remand for a new trial as to each Count II. See Tex.Code Crim. Proc. Ann. art. 44.29(a) (Vernon Supp.2004-2005). In connection with each Count III, Scott’s “guilty” plea is unaffected by the failure to sever. He is, however, entitled to a new trial on punishment relating to his “guilty” pleas. See Tex.Code Crim. Proc. Ann. art. 26.14; art. 44.29(b) (Vernon Supp.2004-2005); Wheat, 160 S.W.3d at 637.

Conclusion

The search was valid and the physical evidence was admissible. But, since there is legally insufficient evidence to sustain Scott’s conviction for inducing a sexual performance of a child, we reverse the trial court’s judgment of conviction and render a judgment of acquittal as to Count I in each indictment. Since we cannot disregard the trial court’s error in its failure to sever each Count III pursuant to the mandatory severance provision of Section 3.04(a), we reverse the convictions as to each Count II, sever each Count III from the associated Count II, and remand the cause for a new guilt/innocence trial on each Count II and a new punishment trial on each Count III. Tex.Code CRIM. PROC. Ann. art. 44.29; see Wheat, 160 S.W.3d at 637.

      . See Tex. Pen.Code Ann. §§ 43.25(b), 43.25(d) (Vernon Supp.2004-2005), § 43.26 (Vernon 2003).

      . A.H. testified that he did think it was a bit strange to get paid so much and also get dinner and a movie. Over the months, Scott also gave the boys small gifts such as binoculars, a camera, and an air pistol.

      . While neither the federal nor the state constitution require exclusion of evidence obtained by a private illegal search, Article 38.23 of the Texas Code of Criminal Procedure requires such evidence be excluded. Cobb v. State, 85 S.W.3d 258, 270-71 (Tex.Crim.App.2002).

      . In an unpublished case, the Corpus Christi Court of Appeals came to a similar conclusion while reviewing convictions for aggravated sexual assault and possession of child pornography, holding that "ammunition box was within the scope of the search warrant as it was reasonable to believe that the box could contain photographs.” Heileman v. State, Nos. 13-02-643-CR & 13-02-644-CR, 2004 WL 2335197, at *2, 2004 Tex.App. LEXIS 4521, at *6 (Tex.App.-Corpus Christi May 20, 2004, no pet.) (not designated for publication).

      .The shoebox did not contain a component of an illegal cable box. DeMoss, 12 S.W.3d at 558. Instead, the officer discovered pornographic pictures he believed to be child pornography, at which time he left to procure a second warrant authorizing a search for those items relating to child pornography. See id. Ultimately, DeMoss’s convictions for aggravated sexual assault and inducing sexual performance were affirmed. Id. at 561.

      . An offense under Section 43.25(b) is a second-degree felony. Tex Pen.Code Ann. § 43.25(c) (Vernon Supp.2004 — 2005).

      . The State, in its argument, concedes that, absent the masturbation, there would be no sexual conduct contained in the videotapes. We limit our discussion to the masturbation.

      .We note the unpublished case of Goodson v. State, Nos. 2-01-458-CR, 2-01-45 9-CR, 2-01-460-CR, 2-01-461, CR, 2003 WL 1894578, 2003 Tex.App. LEXIS 3404 (Tex.App.-Fort Worth Apr. 17, 2003, pet. ref’d) (not designated for publication), involving a hidden camera used to tape two girls taking showers. The facts are somewhat analogous, and Goodson, like Scott, was charged with an offense under Section 43.25(b). Id. 2003 WL 1894578, at *2, 2003 Tex.App. LEXIS 3404, at *6. While he challenged the limits of “induce” by way of a motion to quash the indictment, the Goodson case is procedurally distinguishable because Goodson pled guilty. Thus, Goodson was not entitled to a review of the sufficiency of the evidence. Id. at *9.

      . When a reversal rests on the ground that the State has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the State from making a second attempt at conviction. Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); see Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004).

      . Scott also moved to sever Counts I and II and to have a separate trial as to each complainant. But the most important portion of the motion moves the trial court to sever Count III' — to which Scott pled guilty — from Counts I and II, in each case.

      . In terms of analysis, we note that Dominguez is more relevant to the questions presented here than some other cases regarding the issue of severance of multiple sexual offenses committed against children. See Matthews v. State, 152 S.W.3d 723, 726 (Tex.App.-Tyler 2004, no pet.); Salazar v. State, 127 S.W.3d 355, 358 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). All allegations pending against Matthews and against Salazar were specifically included in Section 3.03(b)(2), meaning that severance of these offenses was discretionary under Section 3.04(c). See Matthews, 152 S.W.3d at 730; Salazar, 127 S.W.3d at 364. Therefore, Matthews and Salazar had to show that joinder caused "unfair prejudice" and that the trial court abused its discretion in refusing to sever the trial. See Matthews, 152 S.W.3d at 730; Salazar, 127 S.W.3d at 364. Here, allegations of possession of child pornography under Section 43.26 does not fall within Section 3.03(b)(2) and, therefore, was not subject to discretionary severance. Rather, as we will discuss, severance in the instant case was mandatory under Section 3.04(a).

      . The exchange also could illustrate that Juror No. 18 was interrupted when Juror No. 28 asked, "Well, I got to ask you a question,” in which case Juror No. 18 did not express any notion that Scott’s plea of "guilty” had any bearing on his guilt of the other charges. We think this is the least likely reading of the passage, but possible. Nevertheless, the comments, no matter who made them, posed "the very threat” Section 3.04 permits a defendant to avoid. See Llamas, 12 S.W.3d at 472.

      . The law in this State is well settled that a guilty plea entered without benefit of a plea agreement waives all nonjurisdictional defects occurring before entry of the plea. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972), overruled in part, Young v. State, 8 S.W.3d 656, 666 (Tex.Crim.App.2000); Stahle v. State, 970 S.W.2d 682, 694 (Tex.App.-Dallas 1998, pet. ref’d). The Helms rule applies to pleas of "guilty" before a jury as well as those before the judge. See King v. State, 687 S.W.2d 762, 765-66 (Tex.Crim.App.1985); Splawn v. State, 949 S.W.2d 867, 870 (Tex.App.-Dallas 1997, no pet.).

      . Specifically, the Texas Code of Criminal Procedure provides the following:
      Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.
      TexCode Crim. Proc. Ann. art. 26.14.


author: TERRIE LIVINGSTON, Justice.

text:
    Michael Alexander GORDON a/k/a Michael A. Gordon, Appellant v. The STATE of Texas, State.
    No. 2-04-160-CR.
    Court of Appeals of Texas, Fort Worth.
    Sept. 8, 2005.

      Jim Shaw, Fort Worth, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Sharon Johnson, Christy Jack, and Ben Leonard, Assistant Criminal District Attorneys, Fort Worth, for State.
    PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Michael Alexander Gordon a/k/a Michael A. Gordon appeals from his conviction for criminally negligent homicide. In two points, he contends that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon in the commission of the offense. We affirm.

Procedural Background

After B.C., the son of appellant’s girlfriend, was seriously injured and subsequently died after being in appellant’s care, appellant was indicted for 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.” A jury found appellant guilty of the lesser-included offense of criminally negligent homicide. The jury also found that appellant used a deadly weapon in committing the offense. On appeal, appellant challenges the legal and factual sufficiency of the deadly weapon finding.

Standards of Review

Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

Factual Sufficiency

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

Analysis

Because our disposition of both points involves a discussion of the same facts, we will review them together. A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp.2004-05); Dotson v. State, 146 S.W.3d 285, 299 (Tex.App.-Fort Worth 2005, pet. ref'd). An object qualifies as a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Bailey v. State, 38 S.W.3d 157, 159 (Tex.Crim.App.2001); Dotson, 146 S.W.3d at 299. Anything which actually causes death is a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995).

A fact finder may affirmatively find that a deadly weapon was used even if the object is not identified. Regan v. State, 7 S.W.3d 813, 819-20 (Tex.App.Houston [14th Dist.] 1999, pet. ref'd); Stanul v. State, 870 S.W.2d 329, 333 n. 3 (Tex.App.-Austin 1994, pet. ref'd); Mixon v. State, 781 S.W.2d 345, 346-47 (Tex.App.Houston [14th Dist.] 1989), aff'd, 804 S.W.2d 107, 108 (Tex.Crim.App.1991) (adopting part of court of appeals’ opinion holding that deadly weapon finding may be made even if object not identified as its own). The presence and severity of wounds on the injured party are factors to be considered in determining whether an object was used as a deadly weapon. Bethel v. State, 842 S.W.2d 804, 807 (Tex.App.-Houston [1st Dist.] 1992, no pet.); Mixon, 781 S.W.2d at 347. A jury may consider all the facts of a case in determining whether a deadly weapon was used. Bethel, 842 S.W.2d at 807.

Appellant contends that there is no evidence in the record of the manner in which the unknown object was used; thus, the evidence is insufficient to prove that the object was a deadly weapon. Appellant further contends that the evidence of B.C.’s injuries is equally consistent with other theories urged by appellant in which appellant did not use anything that caused injury to B.C.

The evidence at trial was as follows. Julie Finberg, a police officer for the City of Fort Worth, testified that at 5:05 p.m. on May 19, 2002, she responded to a 911 hangup call at an apartment complex. When she arrived at Apartment 126, she went inside and saw an eighteen-month-old child, B.C., lying on his back on the couch. B.C. was pale, his back was arched, and he had “very sporadic breathing like it was very forced or labored.” His eyes were open, but “it didn’t look like he could focus on anything that was going on around him.” Officer Finberg did not see any other signs of injury on B.C. or any blood, nor did she see any blood on the couch.

A man, whom Officer Finberg identified as appellant, was in the apartment when Officer Finberg arrived. He told her that B.C. had fallen off the couch as he reached for something. According to Officer Fin-berg, a fireman who overheard appellant’s explanation about B.C. falling off the couch turned to her and shook his head no. Officer Finberg testified that the couch was about a foot or a foot and a half off the ground, and the floor was carpeted.

Jessica C., B.C.’s mother, testified that she understood from the autopsy report that B.C. had died by being shaken and hit with a “blunt force object.” According to Jessica, the medical diagnosis she received indicated that B.C.’s injuries could have occurred by falling off the couch only “[i]f he hit his head more than once on something on the way down.” But she then said that the diagnosis was that there was no way that B.C. could have sustained the injuries he did by falling off the couch. Jessica testified that B.C. suffered three head fractures and a collapsed lung, that the back of his head was mushy or soft, that one of his eyes “would stay big and the other one was small,” and that he had a bruise on his back.

Charles Olsen, who at the time of trial had been a paramedic for ten years, testified that when he first saw B.C., it did not appear that B.C.’s airway was blocked. B.C. was breathing, but his respirations were irregular. B.C. also had decorticate posturing, which means that his extremities were drawn in towards the torso. According to Olsen, decorticate posturing indicates a “high degree” of closed head injury. B.C.’s right pupil was reactive to light, but his left pupil was “blown,” or widely dilated and nonresponsive to light.

According to Olsen’s report from that day, one family member, a male, was in the apartment. That person stated that B.C. fell off the couch about ten minutes before EMS was called and had been unconscious since then. Olsen testified that B.C.’s injuries did not fit that scenario. He farther testified that at the time he examined B.C., he suspected shaken baby syndrome from the type of symptoms he noted, but he agreed with the prosecutor that a diagnosis of shaken baby syndrome requires “more investigation and testing and special instruments to look at various parts of the body and put in the eyes.” Olsen did not see anything on B.C.’s exterior that made him believe B.C. had been hit with or against an object. B.C. had no external injuries.

Dr. Daniel Konzelmann, a Tarrant County deputy medical examiner, performed the autopsy on B.C. Dr. Konzel-mann testified that with the exception of B.C.’s head injury, everything else internally appeared normal, and B.C. appeared to be healthy. When Dr. Konzelmann removed B.C.’s scalp, he saw significant hemorrhaging in the subcutaneous tissue, about six to seven inches around, “mainly concentrated toward the back of the head.” According to Dr. Konzelmann, this “galeal bruise,” which was located on the scalp outside of the skull, indicated “an impact.”

In addition to the galeal bruise, Dr. Konzelmann found fractures on B.C.’s skull. One fracture was 2 1/8 inches long, Y-shaped, and centered over the right back of B.C.’s head. A second complex fracture was located on the upper left back of B.C.’s head. This fracture had branching; one branch extended almost to the front of B.C.’s skull around the eye, and its maximum length was about seven inches. The two fractures did not meet. According to Dr. Konzelmann, this indicated that B.C. had sustained two “distinct separate impacts” consistent with two or more blows to the head or with B.C.’s head being struck against an object twice or more. Dr. Konzelmann did not see any distinct skin injuries on the side or the back of B.C.’s head. Dr. Konzelmann also testified that B.C. had significant brain swelling and a left side subdural hemorrhage or hematoma between the skull and brain.

Dr. Konzelmann testified that skull fractures are harder to cause in a child than in an adult because a child’s skull is growing and more flexible; thus, a child can sustain impacts from proportionately greater forces without suffering a fracture or life-threatening injury. According to Dr. Kon-zelmann, “significant force” caused B.C.’s injuries. Dr. Konzelmann testified that B.C.’s injuries were similar to injuries sustained by children who had been in a serious collision and ejected from a car or who had been run over by a car and struck in the head. Dr. Konzelmann stated that B.C.’s injuries could not have occurred by falling or diving off of any part of the couch.

When asked what kind of fall could have caused B.C.’s injuries, Dr. Konzelmann stated that it depended on several variables, that a fall from multiple stories could have caused the injuries, but that in this case he would expect only a single impact to occur from a single fall. He said that it would be possible in an unusual circumstance for one fall to cause two distinct impacts, such as a fall onto “two distinct raised areas that aren’t sharp” but that he would expect that a single fall would lead to a single skull impact.

Dr. Konzelmann opined that the cause of B.C.’s death was “[bjlunt force head injury,” which he agreed was consistent with being struck by or against a “blunt force object.” Dr. Konzelmann explained the lack of external injuries on B.C., testifying that in ten to fifty percent of infants with severe injuries, no external injuries are visible. Dr. Konzelmann could not say what exactly B.C. had been struck with or against, but he agreed it could have been a wall, floor, concrete patio, or something “heavy and flat.” Dr. Konzelmann also agreed that whatever it was, it was a deadly weapon.

On cross-examination, appellant asked Dr. Konzelmann whether B.C. could have been pushed down on the couch and then catapulted off onto the floor and hit his head. Dr. Konzelmann responded that that “could have happened in this case.” Although Dr. Konzelmann testified that he believed the skull fractures occurred around the same time, he admitted that they could have occurred up to twelve hours apart.

On redirect examination, however, Dr. Konzelmann testified that the fractures, which appeared fresh, and the subdural hematoma and galeal bruising, all appeared to have occurred around the same time. He also testified that B.C.’s injuries could not have come from a fall because if a child sustains a fracture as a result of a fall of ten feet or less, the child typically sustains only a short linear fracture, not a complex, branching fracture. Dr. Konzel-mann also rejected the theory that B.C. had sustained the injuries by being “spiked” or pushed onto the couch and then hitting his head after bouncing off. According to Dr. Konzelmann, “the fracture type is wrong, fracture size is wrong[,] and there are two fractures.” Dr. Konzelmann stated that although he had agreed with appellant’s counsel that certain other scenarios could have happened — such as B.C. bouncing off the couch and hitting his head — those scenarios were in addition to whatever caused B.C.’s complex, branching fractures. He agreed that it is much more believable that B.C. was picked up by his legs or waist and swung into a blunt, flat object or that something was accelerated into his head. He also reiterated that adults are much more likely to sustain a head injury in a fall than children. Dr. Konzelmann further stated that it was not important to his findings whether B.C. was shaken or not.

Detective Dennis Hutchins testified that he took appellant’s statement after B.C. had been taken to the hospital. The pertinent parts of appellant’s statement are as follows:

[B.C.] and I went to the living room and were watching television [after Jessica went to work]. I left the front door open so that [B.C.] could play on the front porch. At about 4:45 or 5:00 p.m., I heard [B.C.] crying on the front porch. I went to check on him to make sure he was okay, and he was lying on his back crying. I didn’t see any injuries so I picked him up and took him back inside. For about five or ten minutes, I tried everyhing that I could think of to get [B.C.] to stop crying but nothing was working. I tried holding him; I tried giving him his cup and toys but he still continued to cry.
I was holding him facing me with my thumbs on [B.C.’s] chest and my hands wrapped around his back. I shook [B.C.] about three or four times trying to get him to stop crying. I sat [B.C.] on the couch and he passed out. I shook [B.C.] again in order to wake him up. The second time I shook him was not hard enough to hurt him.

Before Detective Hutchins took appellant’s statement, he had an affidavit from Dr. Michael Cowan who had examined B.C. at the hospital. From Dr. Cowan’s affidavit, Detective Hutchins learned that B.C.’s left pupil was abnormally dilated, indicating a severe head injury, that B.C.’s retina was bleeding, that B.C. had suffered a subdural hematoma, and that B.C. had skull fractures and infarctions to the brain. Dr. Cowan’s affidavit was read into evidence:

Patient is an 18-month-old white male who presented by MedStar and was unresponsive upon arrival. According to paramedics who brought the patient to the hospital, he fell off the couch about 2 feet from the ground. The history of how the patient was injured was given to the paramedics by, quote, Michael.... Michael, end quote, was taking care of the patient at the time of the injury....
... The patient’s extensive head injuries are inconsistent with the patient’s history of falling such a short distance. In other words, the patient’s injuries are consistent with a significant impact or high energy force to the head to cause such an injury.
... The findings on the head CT are consistent with that found [on] a patient that received a significant, quote, blow or, quote, force to the head.
Therefore, the history, as I know it at the present time, the patient falling off the couch, is wholly inconsistent with the patient’s injuries. Based on my history and physical examination and the results of the head CT, this patient is a victim of an intentional injury, e.g., child, physical abuse.

Brenda C., Jessica’s mother, described the area outside Apartment 126, which she shared with Jessica, appellant, and B.C. Just outside the apartment was a concrete patio enclosed by a wooden fence with a gate. According to Brenda, B.C. was not tall enough to open the gate. Outside of the fence is a concrete sidewalk and above it a cement wall about six feet tall. The parking area for the apartments is above the wall. It is accessed by taking the sidewalk to a point where the wall tapers down and two steps lead up into the parking area. The wall had a metal rail with bars about a foot and a half apart.

Dr. Konzelmann was called to testify again for the defense. When asked if there was a height he would have expected B.C. to have fallen from to cause the fractures, Dr. Konzelmann stated that he could explain the presence of one fracture that way, but “two fractures is a lot more difficult.” He agreed that studies have shown that a fall from three stories, or roughly thirty to thirty-six feet, could cause a skull fracture, but Dr. Konzelmann did not know “what the fractures looked like” in the studies. Dr. Konzelmann testified again that he did not think B.C.’s injuries occurred from a free fall and that if B.C. had simply hit his head after falling from a significant height, he would expect to see only one linear fracture rather than two complex, branching fractures. He did agree that “under very specialized circumstances, one blow can cause two fractures.” Dr. Konzelmann also reiterated that although he made some findings that overlap with “the classic description of a shaken infant,” B.C.’s injuries were not consistent with a shaken baby and that was not his diagnosis of cause of death because of the “[tjotal lack of hemorrhaging in the neck muscles as well as evidence of the significant impact.”

On cross-examination, Dr. Konzelmann elaborated on his belief that B.C. did not sustain his injuries by falling, even from a significant height. He agreed that if B.C. had fallen off a six foot wall, he probably would not have suffered a skull fracture. He also testified that when children fall eight or ten feet, fewer than one to two percent sustain any kind of skull fracture, and if they do, the fracture is a simple, nonbranched linear fracture. Additionally, the fracture would not be as long as seven inches and would be closer to an inch or an inch and three quarters. Dr. Konzelmann also testified that if B.C. had fallen onto exposed concrete, i.e., a sidewalk, he would expect to see an abrasion on B.C.’s skin because concrete is rough. He did not see an abrasion on B.C.’s skin.

Based on the record evidence and applying the appropriate standards of review, we hold that the evidence is both legally and factually sufficient to support the jury’s deadly weapon finding. 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. See Stanul, 870 S.W.2d at 330-31, 335; Roark v. State, No. 05-00-00584-CR, 2001 WL 1173916, at *6 (Tex.App.-Dallas Oct. 5, 2001, pet. ref'd) (not designated for publication); Kangas v. State, No. 14-98-00419-CR, 2000 WL 257767, at *3 (Tex.App.-Houston [14th Dist.] Mar. 9, 2000, pet. ref'd) (not designated for publication); Robey v. State, No. 14-91-01029-CR, 1993 WL 282790, at *11 (Tex.App.-Houston [14th Dist.] July 29, 1993, pet. ref'd) (not designated for publication).

Here, two doctors opined that B.C.’s injuries were consistent with being struck rather than falling. Dr. Konzelmann never wavered from his conclusion that B.C.’s injuries could only have occurred from being struck with or against a heavy, flat object rather than falling, even from a significant height. Dr. Konzelmann’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 B.C.’s death. Dr. Konzelmann’s conclusions were based on studies, which he provided to the defense. Appellant did not present any evidence contrary to Dr. Konzelmann’s testimony. Factually, this case is substantially similar to those cases cited above in which medical testimony regarding the nature, severity, and scope of injury supports a jury’s deadly weapon finding. We overrule appellant’s first and second points.

Having overruled both of appellant’s points, we affirm the trial court’s judgment.

      . This offense was included in the court’s charge at appellant’s request.

      . Appellant also contends that the mens rea for the offense, negligence, is inconsistent with a deadly weapon finding, which requires evidence of intent. But an object is not a deadly weapon because the actor intends to cause the result, i.e., death or serious bodily injury; "intent” in the context of a deadly weapon refers to the actor’s intended use of the object. See Dotson, 146 S.W.3d at 299. An object is a deadly weapon if "the actor intends a use of the object in which it would be capable of causing death or serious bodily injury.” Id.