Ewing, Edward, PD-0327-15

Background

On July 30, 2013, Edward Ewing allegedly approached and punched Ismael Ramirez, who was pushing a stroller containing his infant son Maliaki; the blow knocked Ismael down and the stroller flipped, injuring the child.
Victims Nicole Espinosa and Ruben Espinosa identified Ewing at trial; Ewing produced alibi witnesses claiming he was elsewhere that evening.
Ewing was indicted for injury to a child (family-code §22.04 as a result-oriented offense) and tried before a jury.
The trial court instructed the jury on both recklessness and the lesser-included mental state of criminal negligence; the jury convicted Ewing of recklessly causing injury to a child and sentenced him to two years in a state jail facility.
Ewing appealed raising four issues: (1) insufficiency of identification evidence, (2) insufficiency to prove the reckless mental state, (3) charge error for including criminal negligence, and (4) erroneous admission of extraneous-threat testimony.
The Seventh Court of Appeals affirmed, rejecting Ewing’s challenges to identity, mens rea sufficiency, charge inclusion of the lesser mental state, and admission of prior-threat testimony.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ewing)	Held
Sufficiency of identification	Witnesses (Nicole, Ruben) saw and identified Ewing at the scene; credible for jury to accept	Identification was contradictory and alibi witnesses placed Ewing elsewhere; evidence insufficient	Affirmed — two eyewitness IDs and demeanor/resolution of conflicts by jury support conviction
Sufficiency of mens rea (recklessness)	Ewing struck Ismael while Ismael pushed a stroller with a child; objective substantial/unjustifiable risk and conscious disregard supported by facts	Evidence shows at most carelessness or lack of foresight, not conscious disregard — insufficient for recklessness	Affirmed — facts (force of punch, awareness of stroller/child, flight and statements) support reckless mental state
Jury charge (lesser-included criminal negligence)	Inclusion appropriate because criminal negligence is a lesser-included mental state of the charged offense	Court erred by submitting an unrequested and unsupported lesser-included offense	Affirmed — criminal negligence is a proper lesser-included offense; jury rejected it and convicted of recklessness; any charge error non-reversible here
Admission of extraneous-threat testimony	Prior threat evidence was relevant to identity/motive and admissible under Rules 401/404(b); probative value not substantially outweighed by unfair prejudice	Testimony about a prior threat was irrelevant or unduly prejudicial and should have been excluded under Rule 403	Affirmed — trial court did not abuse discretion; threat evidence had probative force on identity/motive and Gigliobianco balancing favored admission

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (reasonable-doubt sufficiency standard)
Brooks v. State, 323 S.W.3d 893 (standard for appellate review of sufficiency)
Williams v. State, 235 S.W.3d 742 (recklessness analysis in result-oriented offenses)
Wortham v. State, 412 S.W.3d 552 (lesser-included offenses: criminal negligence vs. recklessness)
Moses v. State, 105 S.W.3d 622 (admissibility of other crimes/acts to prove identity, motive, intent)
Gigliobianco v. State, 210 S.W.3d 637 (factors for Rule 403 probative/prejudicial balancing)
Moreno v. State, 755 S.W.2d 866 (appellate courts will not act as a thirteenth juror on credibility)