I concur in the majority's conclusion that the trial court did not abuse its discretion in admitting evidence of previous injuries that seventeen-month-old Tristen suffered while she was in appellant's sole care. ⁽¹⁾ I would hold that evidence showing that Tristen repeatedly suffered various physical injuries when left in appellant's care was admissible to prove the corpus delicti of murder. ⁽²⁾ I believe that the court of appeals correctly concluded that "[t]he State had to prove Tristen's death was the result of the intentional act of the defendant, rather than an accident on his part or the intentional act of [another]." Robbins v. State, No. 9-99-120-CR, slip op. at 10 (Tex. App. - Beaumont 2000) (not designated for publication).

The State's evidence at trial showed that appellant lived with his mother, his girlfriend, Barbara Hope, and Barbara's seventeen-month old daughter, Tristen. Barbara and appellant had a tempestuous relationship. They argued, split up, and reunited several times. Appellant's personality began to change after he started taking Vicodin for injuries he received in a car accident. Although Tristen and appellant once had a good relationship, by the end of January, 1998, Tristen would no longer allow appellant to pick her up. She seemed afraid of him; she started "cowering from him and would cry."

Beginning in November of 1997, Tristen suffered several physical injuries while she was in appellant's sole care. One evening in late November, appellant babysat for Tristen. The next morning she had a black eye. Appellant explained that injury by saying

that he had been bathing Tristen when the child fell in the bathtub and hit her nose. Another time, Tristen's mother took a nap, leaving appellant to watch the child. When she awoke, she discovered that Tristen couldn't walk. In fact, Tristen was so badly injured that she could not stand up or walk for several days. Appellant explained that he had accidentally stepped on Tristen's heel, causing the injury. In early February, three months before Tristen's death, appellant was babysitting the child when Tristen's ear was injured and she suffered bruises on her face and neck. Appellant explained that he had been taking a shower with Tristen and the child slipped and fell in the shower. Appellant maintained that these incidents were simply the result of his "carelessness."

On May 12, 1998, appellant was alone with Tristen for most of the day. Barbara heard Tristen talking before she left home that morning. When appellant's parole officer visited the house in the early afternoon, Tristen appeared to be healthy and "mellow." But when Barbara returned home around 4:00 p.m., appellant told her that Tristen was taking a nap, and, after a brief argument, he left. Barbara checked on Tristen at 5:40 p.m., but didn't disturb her because she appeared to be sleeping. At 6:00 p.m., Barbara decided to wake Tristen up, but when she approached her child, she saw that Tristen's lips were blue and the child was "ice cold." She picked Tristen up and carried her into the living room where appellant's mother was sitting. She tried to breathe into Tristen's mouth, but a pink fluid came gurgling out of Tristen's nose and mouth. Barbara then went outside and started yelling for "anybody to help me," while appellant's mother called 911. Before the ambulance arrived, both appellant's mother and a neighbor performed CPR on Tristen, to no avail. Tristen appeared to be dead before the paramedics arrived. The emergency room doctor thought that Tristen had been dead for some time.

The medical examiner testified that Tristen died from compression asphyxia. She also found a hemorrhage on the left kidney which indicated that force had been applied in that area, as well as blunt force hemorrhages on her chest, indicating that force had been applied to Tristen's back. The medical examiner ruled out CPR as the cause of death because the injury to Tristen's kidney was deep down and required considerable force. She also ruled out SIDS (Sudden Infant Death Syndrome) as a possibility because of Tristen's age "and the story doesn't fit the picture of a SIDS baby death." The State's position was that someone forcefully crushed Tristen to death, and that someone was appellant in whose sole care the child had been left.

Appellant testified and denied ever intentionally striking or abusing Tristen. He stated that he committed no act that caused or led to Tristen's death. The defense medical expert testified that Tristen's cause of death was "undetermined." The defense also theorized that the bruises and injuries noted in the autopsy report were caused by the CPR efforts to resuscitate Tristen.

The State offered evidence during its case-in-chief of prior injuries that Tristen had suffered while she was in appellant's sole care as some proof that Tristen died as the result of a criminal homicide. This testimony was admissible in the State's case-in-chief because the cause of Tristen's death was not an obvious result of intentional homicide. The circumstances were such that Tristen's death could have been considered a tragic accident were there no other evidence. The evidence of her prior injuries, suffered while in appellant's care, supports a finding that Tristen died as the result of a human act rather than as the result of an accident or some undefined natural cause.

As the Fourth Circuit explained in United States v. Woods, ⁽³⁾ in allowing evidence, during the government's case-in-chief, of prior instances in which numerous other children in defendant's care had died or suffered cyanotic episodes:

We think also that when the crime is one of infanticide or child abuse, evidence of repeated incidents is especially relevant because it may be the only evidence to prove the crime. A child of the age of [deceased victim] and of the others about whom evidence was received is a helpless, defenseless unit of human life. Such a child is too young, if he survives, to relate the facts concerning the attempt on his life, and too young, if he does not survive, to have exerted enough resistance that the marks of his cause of death will survive him. Absent the fortuitous presence of an eyewitness, infanticide or child abuse by suffocation would largely go unpunished. ⁽⁴⁾

Here, as in Woods, the State offered the evidence of prior incidents to prove the corpus delicti of the crime.

The situation here is also similar to that in the renowned English case, Rex v. Smith. ⁽⁵⁾ In that case, Smith was charged with murdering Bessie Mundy by drowning her in the bath tub. ⁽⁶⁾ Smith had recently married Ms. Mundy, who, coincidentally, had inherited a significant sum of money. ⁽⁷⁾ He had taken his new "bride" to a doctor, saying that she was in ill health, but the doctor found nothing wrong with Ms. Mundy. At first blush, Ms. Mundy's death appeared to be an accidental drowning. However, the prosecution was then allowed to introduce evidence that two other women: (1) had "married" Smith; (2) were found drowned in the bath tub; (3) had insured their lives at Smith's suggestion; and (4) had been taken to doctors by Smith shortly before their deaths, with Smith asserting that they were in ill health. ⁽⁸⁾ The logical proposition was that one drowned bride is an accident, two are suspicious, and three make murder. Smith was convicted upon what Wigmore called "the doctrine of chances" because the likelihood of three such coincidental events occurring naturally was logically improbable. ⁽⁹⁾ The evidence was not offered to prove that Mr. Smith had a "drowning" or "murderous" character trait, but to show that it was more likely that Ms. Mundy died from a criminal act because two of Mr. Smith's other brides had died under very similar circumstances. The repetition of similar unusual events over time, involving Smith and different brides, made it possible for the jury to conclude that Mundy's drowning was caused by Smith's intentional act rather than by an inadvertent accident or a health problem. ⁽¹²⁾

In the present case, the fact that, as the State notes, "things started to happen to Tristen physically" when she was in appellant's sole care, increases the probability, however minimally, that "something" happened to Tristen while appellant took care of her on the day of her death. None of these incidents, taken alone, conclusively demonstrates that appellant intentionally harmed Tristen on those prior occasions or on the charged occasion. None of them prove any character trait possessed by appellant. But evidence that Tristen repeatedly suffered physical injuries while she was in appellant's care increases the probability that Tristen's injury on the day of her death was the result of some act, careless or otherwise, committed by appellant.

The United States Supreme Court expressed this theory of logical improbability in Estelle v. McGuire. ⁽¹³⁾ In that case, the defendant was charged with murdering his infant daughter. The defendant told police that the child's fatal injuries must have resulted from a fall off the family couch or that "[m]aybe some Mexicans came in" and did it while he was upstairs. ⁽¹⁴⁾ The prosecution then introduced evidence that the child had suffered numerous earlier injuries, as well as expert testimony regarding "battered child syndrome." The defendant objected, stating that the prosecution had failed to show that he had inflicted any of the earlier injuries or that those injuries were intentionally inflicted. ⁽¹⁵⁾ According to the Supreme Court:

evidence demonstrating battered child syndrome helps to prove that the child died at the hands of another and not by falling off a couch for example; it also tends to establish that the "other," whoever it may be, inflicted the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries. ⁽¹⁶⁾

The State did not offer expert evidence of "battered child syndrome" in this case, but evidence of Tristen's prior injuries was relevant for precisely the same reasons as those expressed in McGuire. Tristen's prior injuries made it somewhat less probable that her death was the result of SIDS or some other purely indeterminable and accidental cause of death.

Here, as in Rex v. Smith, one physical injury may be purely the result of accident. But because Tristen suffered four such injuries within a single six month period, each of them while under appellant's care, the probability that sheer accident caused each injury decreases significantly.

Therefore, because the evidence of Tristen's prior injuries was admissible for a non-character purpose to prove the corpus delicti of the crime, I concur in the judgment.

Cochran, J.

Date Delivered: October 23, 2002

Publish

1. We granted appellant's petition for discretionary review on the following grounds:

1) Whether the court of appeals erred in upholding the trial court's decision to admit extraneous acts under Tex. R. Evid. 404(b) involving the victim and appellant.

2) Whether the court of appeals erred in upholding the trial court's decision to admit extraneous acts under Tex. R. Evid. 403.

2. See Salazar v. State, ___ S.W.3d ___, ___ No. 00435-01, slip op. at 7 (Tex. Crim. App., delivered Oct. 9, 2002) (quoting 7 John Wigmore, Evidence § 2072 (Chadbourne rev. 1978)); see also Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App 1993) ("The corpus delicti of a crime-any crime-simply consists of the fact that the crime in question has been committed by someone").

3. 484 F.2d 127 (4^th Cir. 1973).

4. Id. at 133.

5. 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915).

6. 84 L.J.K.B. at 2154.

7. Id. at 2153-54. In fact, Smith was already married, but he went through a marriage ceremony with Ms. Mundy and they lived together as man and wife. Id.

8. Id. at 2154.

9. Texas courts have adopted and repeatedly applied Wigmore's "doctrine of chances" in criminal cases. In Plante v. State, ⁽¹⁰⁾

10. 692 S.W.2d 487 (Tex. Crim. App. 1985). " " ⁽¹¹⁾

11. Id. at 491-92 (quoting 2 John Wigmore, Wigmore on Evidence § 302 (Chadbourn rev. ed. 1979)); see Morgan v. State, 692 S.W.2d 877, 881-82 (Tex. Crim. App. 1985) (under doctrine of chances, trial court did not abuse its discretion in admitting evidence that defendant touched complainant's and her sister's genitals on other occasions). - § ' '

12. See id.; see also 1 John W. Strong, McCormick on Evidence § 190, at 663-64 (West 1999) (recounting case of Rex v. Smith and explaining the theory of implausibility). Other judicial examples of this "logical improbability" theory include Makin v. Att'y Gen. of New South Wales, supra, note 6 (evidence of the remains of 13 other children found buried on the defendant's property admissible in murder of one boy; "the recurrence of the unusual phenomenon of bodies of babies having been buried in an unexplained manner in a similar part of premises" implied that the deaths were "wilful and not accidental") (cited and discussed in McCormick); United States v. York, 933 F.2d 1343, 1350 (7^th Cir. 1991) (in prosecution for defrauding insurance company after murdering his business partner, putting her body in jointly owned bar, and destroying bar by setting off explosives, evidence that defendant had collected life insurance proceeds on former business partner three years earlier, although he was never charged with murder, admissible under Wigmore's doctrine of chances because "the odds of the same individual reaping [life insurance] benefits, within the space of three years, of two grisly murders of people he had reason to be hostile toward seem incredibly low, certainly low enough to support an inference that the windfalls were the product of design rather than the vagaries of chance. ... This inference is purely objective, and has nothing to do with a subjective assessment of [defendant's] character").

13. 502 U.S. 62, 68-69 (1991).

14. Id. at 65.

15. Id. at 71-72.

16. Id. at 68.