Affirmed and Memorandum Opinion filed August 7, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00879-CR
NO. 14-12-00880-CR
MACIEL DELOSANGELES SANDOVAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 1309686 & 1357622
MEMORANDUM OPINION
Appellant Maciel Delosangeles Sandoval appeals her convictions for felony
murder and intentionally or knowingly causing serious bodily injury to a child. On
appeal, appellant contends the evidence at trial was legally insufficient to prove
either offense, and that she was denied effective assistance of counsel in violation
of her rights under the United States and Texas Constitutions. We hold the
evidence was sufficient to prove appellant committed the offense of injury to a
child by failure to protect the complainant, and was sufficient to prove appellant
was a party to felony murder based on her disregard of her legal duty to act. We
also hold, on the record before us which is silent as to her counsel’s strategy, that
appellant has not shown a reasonable probability that her counsel’s representation
fell below an objective standard of reasonableness, or that there is a reasonable
probability that the result of the proceeding would have been different but for the
alleged deficiency. We therefore affirm.
BACKGROUND
In 2009, appellant began a romantic relationship with Elida “Judith”
Herrera. Judith and her son Eric moved into the apartment occupied by appellant
and her daughter, the complainant. Appellant decided that Judith would take over
caring for the complainant, which had previously been her sister Silvia’s
responsibility.
On June 3, 2011, Houston firefighters met appellant and Judith at their
shared apartment in response to appellant’s emergency call that the complainant
was not breathing. By the time the firefighters arrived, the four-year-old
complainant was lying motionless and without a pulse on the floor. One of the
responding firefighters testified the complainant was “cool to the touch.” The
firefighters began performing CPR on the complainant and transported her to the
hospital. Resuscitation efforts were unsuccessful and the complainant was
declared dead at the hospital.
In the two years between the emergency call and Judith’s joining appellant’s
household, a number of people, ranging from close relatives to medical
professionals, expressed concerns to appellant that the complainant was being
mistreated. More than one heated argument with appellant arose out of these
concerns. The people and entities who raised concerns directly with appellant as to
2
the complainant’s treatment included her sister Juana, Juana’s husband Angel,
Laura (a friend of the couple who sometimes stayed at their home), and Child
Protective Services.
Others began expressing concern to appellant about mistreatment and
neglect of the complainant as early as 2010, when a nurse who was treating the
complainant for an injury informed appellant she would be making a report to
Child Protective Services. 1 Appellant had brought the complainant to the hospital
to get an X-ray and stitches for an ear wound appellant claimed was from falling
off of a scooter earlier that day. The nurse testified that the complainant also had
what appeared to be older bruises on her right side that were inconsistent with a
scooter fall that same day. Appellant told the nurse the bruises were from a fall the
week before.
Approximately two weeks later, the complainant needed a second set of
stitches for a laceration on her chin. Because she had an open case with Child
Protective Services at this point, appellant asked her sister Juana to take the
complainant for medical treatment. Juana, who had not seen the complainant in
the past year, was shocked by her thin appearance. Appellant told Juana that the
complainant had fallen while playing in the park. Appellant told Juana to take the
complainant to a clinic, and not her usual hospital, because of appellant’s ongoing
case with Child Protective Services.
Appellant’s sister Silvia lived with Judith and appellant briefly in 2009 and
observed Judith disciplining the complainant on multiple occasions, including by
holding her against a wall and beating her with a belt or by locking her in a room.
Gloria and Silvia noticed that the complainant became extremely skinny after
1
Child Protective Services also received at least two other reports of suspected child
abuse or neglect regarding the complainant, one of which was procured by appellant’s siblings.
3
Judith moved in, and her personality changed drastically from bubbly to quiet.
When Gloria tried to engage the complainant by asking her questions in Judith’s
presence, the complainant stared at Judith and would not answer. The complainant
told her aunts that her mother and Judith were “mean to her,” and that she was
afraid of Judith, who beat her a lot.
Appellant’s siblings became concerned that the complainant had an
excessive number of injuries for which appellant offered unsatisfying explanations.
Gloria noticed a brown bruise around the complainant’s eye in October 2010, and
Juana saw a purple bruise around her eye in November 2010. In response to
Gloria’s and Juana’s questions regarding complainant’s black eyes, appellant
claimed the complainant was very clumsy and fell frequently. Appellant’s sister
Gloria asked both appellant and the complainant about burns she noticed on the
backs of the complainant’s hands. Gloria observed Judith staring at the
complainant as if warning her not to say anything. Appellant told Gloria the
complainant had pulled on a television cord, which electrocuted her. Appellant
claimed she had heard the complainant scream and reached for her, but the cord
had already burned the complainant’s hands. Two of appellant’s sisters testified
that the burns appeared only on the backs of the complainant’s hands not the
palms, and that the explanation did not make sense to them at the time.
Appellant’s sister Juana and her husband Angel lived with Judith and
appellant in early 2011. Angel explained that Juana made the decision to move
into the apartment because she wanted to see what was going on with the
complainant. Juana and Angel testified that they observed several bruises on the
complainant’s body, and Angel noted that the complainant had been left in a dark
room alone with the door locked. Juana testified that the complainant’s demeanor
changed when Judith would walk into the room.
4
When Juana expressed concern to appellant about the complainant’s bruises
and injuries and offered to take care of the complainant, appellant explained that
the complainant was clumsy and said she would have to discuss the offer with
Judith. Juana had not seen the complainant being clumsy. Later that evening,
appellant spoke to Judith about the complainant’s treatment. A violent altercation
ensued that ended with Judith leaving the apartment for the evening. Judith came
back the next day, and appellant continued to allow her to care for the complainant.
When Angel told appellant that the way she and Judith were treating the
complainant was wrong, appellant accused Angel of hitting her and called the
police. Juana and Angel, who testified appellant’s accusation was false, promptly
moved out of the apartment.
Appellants’ siblings grew so concerned that they met without the appellant
present and resolved to have a neighbor make a complaint to Child Protective
Services. They later advised the complainant’s father to check on the complainant,
and he also spoke with Child Protective Services. The siblings did not hear
anything further about the complaint until after the complainant was pronounced
dead on June 3, 2011. In the four days leading up to the complainant’s death,
however, appellant called a caseworker at Child Protective Services five times,
including two calls on the day of the complainant’s death. Appellant did not report
any suspected child abuse or neglect during these phone calls. Appellant later told
an investigating officer that she made the phone calls in an attempt to find out if
her case with Child Protective Services had been closed.
The firefighters who responded to appellant’s emergency call on June 3 were
unaware of appellant’s interactions with Child Protective Services, and appellant
did not mention either her phone calls or the previous investigation to them. The
firefighters removed the complainant’s clothing as part of their initial assessment,
5
and noticed bruising all over the complainant’s body and on her face. The
firefighters also noticed a laceration on the complainant’s chin. Appellant told one
of the firefighters that the complainant cut herself earlier that morning when she
fell off of the toilet. Neither appellant nor Judith responded when the officers
asked how the complainant received the bruises all over her body, however. Dr.
Adam Rusher attempted to resuscitate the complainant at the hospital and testified
that immediately upon her arrival at the hospital, her bruises were “very apparent.”
An investigation followed the complainant’s death, in the course of which
appellant gave two interviews to Roy Swainson, an officer in the City of Houston
Police Department’s homicide division. Appellant offered explanations for some
of the complainant’s injuries, including falling off the toilet and hitting the sink,
failing off of a scooter, falling off of an ottoman, falling at the beach, scratching
herself, and wearing sandals that were too tight. Officer Swainson felt that these
explanations were insufficient to explain all of the complainant’s injuries, but
appellant insisted the complainant was an excessively clumsy child and that she
did not know where the other bruises came from.
Despite claiming that she bathed the complainant at least every other day,
appellant claimed she had not seen some of the bruises appearing on the
complainant in pictures taken after her death. Dr. Albert Chu performed the
complainant’s autopsy, which revealed several injuries including twenty-one scalp
and facial contusions, bleeding on the surface of her brain, a bruised cerebellum,
more than twenty bruises or contusions to her torso, bruises on her sacral region,
buttocks, and extremities, extensive damage to the tissues underneath the skin, 2 a
contusion or bruise of the small intestine as well as the mesentery, fractures in each
2
Dr. Chu testified that the complainant had multiple avulsion pockets—“tearing of the
connected tissue underneath the skin with associated bleeding and liquefying of soft tissue”—
underneath the bruises in her sacral region, buttocks, and extremities.
6
shoulder blade, and a fracture to the humerus in her left arm. Several of these
injuries were judged to be a minimum of three days old based on the inflammatory
response within the cell samples taken from the areas. 3
The autopsy also revealed the complainant had an accumulation of fat
emboli in the blood vessels in her lungs. According to evidence introduced at trial,
fat emboli form when tissues and structures with fat—such as a long bone or the
fat beneath the skin—suffer significant injury. Fat emboli collect in the blood
stream, and the blood, needing oxygen, eventually carries the fat emboli to the
lungs. If enough fat emboli are present in the blood stream, it can cause blockages
in the vessels in the lungs, interfering with the flow of blood into the lungs and the
lungs’ ability to oxygenate the blood. The complainant had blockages from fat
emboli in all lobes of her lungs. Based on the lack of an inflammatory reaction to
the presence of the emboli in the lungs, the emboli were judged to have traveled to
the lungs within hours of her death. Medical testimony suggested the onset of
death would have been “relatively sudden” once the blood was unable to get into
the lungs because of the blockages.
According to Judith, approximately thirty minutes before the firefighters
arrived, she saw the complainant alive prior to taking a shower. She told the
emergency responders she exited the shower to see the complainant’s body shaking
on the ground. According to appellant, Judith called her while she was at work to
tell her that the complainant was dying, and appellant rushed home. 4 According to
appellant, the complainant was not breathing when she arrived home, and she
3
Dr. Chu testified that most of the bruising on the complainant’s head and the contusions
extending from her chest to her arms fell within this age range. Dr. Chu testified it was also
possible that someone had assaulted the already-bruised complainant an hour before she died.
4
The investigating officer confirmed with appellant’s employer that she reported to work
on the day of the complainant’s death, but the record does not reveal whether the officer
confirmed at what time appellant left work.
7
immediately called 911.
Appellant was indicted and charged with felony murder as well as the felony
of knowing or intentional injury to a child by omission. Appellant’s trial counsel
did not request a jury instruction on the lesser-included offense of reckless injury
to a child. Appellant’s trial counsel also did not object to or request jury
instructions on testimony from appellant’s sister Juana that she once saw appellant
strike the complainant with a belt repeatedly for refusing to eat. The jury found
appellant guilty of both offenses.
ANALYSIS
Appellant raises two issues on appeal, contending (1) evidence at trial was
insufficient to support her two convictions, and (2) she did not receive effective
assistance of counsel at trial. We address each issue in turn.
I. Sufficient evidence supports appellant’s convictions.
In her first issue, appellant argues that the evidence presented at trial is
legally insufficient to support her convictions. We hold the evidence was
sufficient and overrule appellant’s first issue.
A. Standard of review
We resolve legal sufficiency challenges by considering all of the evidence in
the light most favorable to the verdict, and determining whether a rational jury
could find each element of the offense beyond a reasonable doubt. Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The essential elements of an
offense are defined by the “hypothetically correct jury charge.” Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). 5 The jury is the sole judge of the
5
The hypothetically correct jury charge is “one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
8
credibility of witnesses and the weight to give testimony, and our role on appeal is
simply to ensure that the evidence reasonably supports the jury’s verdict.
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
Where intent is an element of the offense, the lack of direct evidence as to
intent does not render the evidence legally insufficient. See Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002). Instead, the required culpable mental state
may be inferred from the surrounding circumstances. Ledesma v. State, 677
S.W.2d 529, 531 (Tex. Crim. App. 1984). The jury may infer intent from
circumstantial evidence, such as the acts, words, and conduct of the appellant.
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
B. There is sufficient evidence that appellant intentionally or
knowingly injured the complainant by omission.
A person commits the offense of injury to a child if he “intentionally,
knowingly, or recklessly by omission” causes serious bodily injury6 to a child for
whom she has assumed care, custody, or control. Tex. Penal Code Ann. § 22.04
(West Supp. 2013); Alvarado v. State, 704 S.W.2d 36, 38–39 (Tex. Crim. App.
1985). The State was required to prove that appellant either intended or “was
aware with reasonable certainty that serious bodily injury to the [complainant]
would result from her omissions.” Patterson v. State, 46 S.W.3d 294, 302 (Tex.
App.—Fort Worth 2001, no pet.).
The indictment and the jury charge included three theories by which
appellant could be found guilty of intentionally or knowingly causing serious
bodily injury to a child by omission: (1) by failing to seek medical attention for the
offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.
6
“‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46) (West 2011).
9
complainant in a timely manner; (2) by failing to protect the complainant; or (3) by
failing to adequately nourish the complainant. We hold the evidence was sufficient
to support appellant’s conviction for failing to protect the complainant, and
therefore do not reach the sufficiency of the evidence regarding the State’s
alternative theories.
Appellant concedes that she knew Judith often disciplined the complainant,
but suggests that “there is nothing in the record to suggest that appellant knew . . .
that Judith was causing the complainant serious bodily injury . . . .” To the
contrary, there is evidence that (1) appellant was aware the complainant had
sustained several injuries over time; (2) those injuries were not sustained
accidentally; and (3) some of the injuries, or the combination of injuries, were
serious. Viewed together, this evidence supports an inference that appellant was
aware with reasonable certainty that failing to protect the complainant—by
removing her from those who were supervising her when the injuries occurred—
would continue to result in serious bodily injury to the complainant.
The State presented sufficient evidence for a rational jury to determine
beyond a reasonable doubt that the complainant’s injuries were the result of abuse
and not accident. The jury heard expert testimony that “normal handling” would
not cause the injuries to complainant’s bones and that “multiple injuries of
different ages affecting different bones” such as the complainant’s are
“inconsistent with accidental injury.” Cf. Morales v. State, 828 S.W.2d 261, 265
(Tex. App.—Amarillo 1992), aff’d, 853 S.W.2d 583 (Tex. Crim App. 1993)
(holding jury could rely on “medical evidence that ‘several slammings,’ and
‘significant force,’ as well as a ‘great deal of force,’ was required to produce the
child’s severe injuries” to infer intent to cause child serious bodily injury).
On appeal, appellant contends nothing in the record proves her awareness of
10
such abuse, relying on appellant’s “numerous explanations for the complainant’s
injuries, citing to specific events where the child hurt herself.” The State was not
required to disprove the possibility of an innocent explanation for each and every
injury, nor was the jury bound to accept that the mother offered these explanations
to others solely because she believed in them, and not because she wanted to evade
discovery and interference for her or Judith’s sake. Given the testimony of
numerous witnesses that they expressed concerns to appellant about the
complainant’s treatment and that the bruising on the complainant was immediately
apparent, as well as the photographs in evidence, the jury could reasonably
conclude appellant knew the complainant’s injuries were not the result of mere
falls and thus someone was abusing the complainant. See Dusek v. State, 978
S.W.2d 129, 134 (Tex. App.—Austin 1998, pet. ref’d) (holding jury could
rationally conclude mother of son whose body was covered by many large bruises
of varying ages knew her boyfriend was physically abusing her son). Furthermore,
appellant claimed that when she arrived home, the complainant was lying on the
floor with no clothes, but that one of the two women dressed the complainant
before the ambulance arrived.7 The jury could rationally conclude that the couple
wanted to dress the complainant because the bruises were so apparent and
suggestive of abuse.
Even if appellant never personally witnessed Judith or anyone else seriously
injuring the complainant, each significant injury the complainant collected in her
relatively short life made belief in an innocent explanation less and less reasonable.
Cf. Garza v. State, 632 S.W.2d 823, 825 (Tex. App.—Dallas 1982), rev’d on other
grounds, 715 S.W.2d 642 (Tex. 1986) (“Each successive occurrence tends
7
Appellant initially told Officer Swainson she remembered dressing the nonresponsive
complainant herself while awaiting the ambulance, but then said it was Judith who had dressed
the complainant.
11
increasingly to negative an innocent explanation.”). Although appellant offered
statements attributing those injuries to accidental causes, a rational jury could have
determined that her belief in those explanations crossed the line between
unreasonable and incredible, particularly in light of the number of people and
entities—even strangers—who expressed suspicion to the contrary, as well as
appellant’s deliberate avoidance of Child Protective Services. The jury could infer
beyond a reasonable doubt that the abusive mistreatment of the complainant was
more than a disregarded risk, but rather a known fact within appellant’s
household.8
A rational jury could also have determined that the accumulation of the
complainant’s injuries, which medical testimony established was not the result of
one episode, was such that anyone lacking the conscious objective or desire for the
complainant to suffer serious bodily harm would have intervened. See Galvan v.
State, 699 S.W.2d 663, 671 (Tex. App.—Austin 1985, pet. ref’d) (holding State
presented sufficient evidence that “no person could have allowed [the complainant]
to reach the deteriorated physical condition that he was in at the time of his death
without having the conscious objective or desire to do so”). The complainant was
covered in bruises at the time of her death. There was testimony that the bone
fractures, as well as other injuries, would have caused the child pain even from
regular contact such as hugging. 9 Cf. Hill v. State, 883 S.W.2d 765, 770 (Tex.
App.—Amarillo 1994, pet. ref’d) (“Although [the party disciplining the
8
Appellant’s own closing arguments undermined the credibility of her belief in the
innocent explanations for the complainant’s injuries. Appellant’s trial counsel referred to
appellant as a “battered woman,” a characterization that suggests appellant was more than aware
her partner was abusive.
9
Although appellant attempted to elicit testimony that if the complainant had an
abnormal pain threshold perhaps nobody would notice that she was in pain, there was also
testimony that a school clerk noticed bruises on the complainant and felt the complainant wince
as she hugged her.
12
complainant] said he did not realize he had injured [the complainant] that badly,
the jury, as the judge of the credibility of the witnesses and the weight to be given
their testimony, was free to reject [his] belated and self-serving attempt to conceal
his intent.” (internal citation omitted)).
The jury could also infer that appellant knew with a reasonable degree of
certainty that not removing the complainant from Judith’s care would result in the
further accumulation of injuries. Cf. Payton v. State, 106 S.W.3d 326, 331 (Tex.
App.—Fort Worth 2003, pet. ref’d) (holding evidence was sufficient where there
was testimony that it was “obvious [the abuser’s] behavior was an ongoing
problem, and appellant had done nothing about it”). Unlike Dusek v. State, in
which there was no evidence the appellant’s boyfriend had ever seriously injured
her son before, the jury in this case heard expert testimony that the complainant
had her bones broken more than once. Dr. Jennifer Love testified at trial that based
upon the bone fractures’ various states of healing, the complainant suffered “a
minimum of three traumatic episodes” and possibly more if the scapula fractures
on each side did not occur simultaneously. According to Dr. Love, the
complainant’s first humerus fracture likely occurred two weeks before her second,
and the scapula fractures likely occurred much closer to death. Dr. Love’s
testimony established that serious bodily injury was not an isolated incident but
was occurring frequently enough that the complainant’s body did not have time to
finish healing prior fractures before being reinjured.
Judith’s access to the complainant was solely the result of her relationship
with appellant. But rather than cut off Judith’s access, which appellant claimed she
offered the complainant,10 appellant facilitated the abuse by offering explanations
10
Appellant told Officer Swainson that she had asked the complainant whether she would
rather that the two of them get their own apartment again, but that the complainant wanted them
all to continue living together as a family.
13
that were designed to mislead those attempting to assist the complainant, and by
actively evading the involvement of Child Protective Services. Cf. Young v. State,
358 S.W.3d 790, 802 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“By
consciously choosing to lie about [the abuser’s] access to [the complainant],
appellant exposed her to further abuse and thwarted efforts to investigate the real
cause of [the complainant’s] injuries.”); Couchman v. State, 3 S.W.3d 155, 163–64
(Tex. App.—Fort Worth 1999, pet. ref’d) (“The jury could have reasonably
concluded that [appellant] lied to [the investigator] because he had something to
hide.”). Even after the complainant’s death, appellant continued to conceal any
abuse, putting clothes on the complainant 11 and telling Officer Swainson that
Judith spoiled the complainant, and the complainant always wanted to be with
Judith.
We hold the jury heard sufficient evidence to infer that appellant knew with
reasonable certainty that the abuse would continue if she did not protect the
complainant. We therefore overrule appellant’s first issue as to her conviction of
injury to a child.
C. There is sufficient evidence that appellant was a party to felony
murder.
Appellant also contends the evidence was insufficient to convict her of
felony murder as either a principal or a party. We disagree and conclude that the
evidence was sufficient to convict appellant as a party based on her legal duty to
protect the complainant.
11
Although appellant made conflicting statements to Officer Swainson regarding which
of the women chose to dress the complainant in clothes that would cover her many injuries, we
presume the jury resolved such conflicts in the light most favorable to the verdict. Cf. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (holding evidence may be sufficient under
an assumption that a jury believed a portion of but not the entirety of a witness’s testimony).
14
A person commits the offense of felony murder if he commits “an act clearly
dangerous to human life that causes the death of an individual” in the course of and
in furtherance of the commission of a felony other than manslaughter. Tex. Penal
Code Ann. § 19.02(b)(3) (West 2011). A person is criminally responsible for an
offense committed by the conduct of another if, “having a legal duty to prevent
commission of the offense and acting with intent to promote or assist its
commission, he fails to make a reasonable effort to prevent commission of the
offense.” Tex. Penal Code § 7.02(a)(3) (West 2011). “The penal code does not
require that a party to the crime be physically present at the commission of the
offense.” Guevara, 152 S.W.3d at 52.
The jury was authorized to convict appellant of felony murder if it found (1)
one of the two women caused the complainant’s death by intentionally or
knowingly striking her with either a belt, a hand, or an unknown object; 12 and (2)
appellant either struck the complainant herself, or was criminally responsible for
Judith’s striking the complainant.13 The charge included two theories under which
appellant could be criminally responsible for Judith’s striking the complainant.
Under the aiding theory, appellant would be guilty if, acting with the intent to
12
The charge instructed the jury that any one of the three would constitute the felony of
injury to a child.
13
Although the application portion of the charge submitted to the jury restricted them to
considering appellant’s guilt as a party under the theory that Judith was the principal, a
hypothetically correct jury charge neither “unnecessarily increase[s] the State’s burden of proof
or unnecessarily restrict[s] the State’s theories of liability.” Malik, 953 S.W.2d at 240. We note
that although some evidence was presented at trial that Judith’s son, Eric, had previously been
violent with others, neither side introduced evidence or made arguments suggesting Eric may
have harmed the complainant. In her statement to Officer Swainson, appellant adamantly denied
that Eric had ever hurt her daughter or even had unsupervised access to the complainant, and
Officer Swainson testified that he found no evidence to the contrary in the course of his
investigation. Because appellant has not raised the issue on appeal, we need not consider
whether Judith and appellant were the only potential abusers, or whether the hypothetically
correct jury charge would include other potential abusers as part of its application section on
appellant’s liability as a party.
15
promote or assist the commission of the offense, she “solicited, encouraged,
directed, aided or attempted to aid” Judith in striking the complainant. Under the
legal-duty theory, appellant would be guilty as a party if she had a legal duty to
prevent Judith from striking the complainant but, acting with the intent to promote
or assist the offense, failed to make a reasonable effort to prevent commission of
the offense. See Tex. Penal Code Ann. § 7.02(a)(2)–(3). Appellant does not
separately address the sufficiency of the evidence on the legal-duty theory in her
brief, focusing instead on the aiding theory. Because we conclude the evidence is
sufficient to convict appellant on the legal-duty theory, we address only her
arguments that could apply to that theory. See Carson v. State, 422 S.W.3d 733,
741–42 (Tex. App.—Texarkana 2013, pet. ref’d) (holding not necessary to prove
aiding under legal-duty theory); Pumphrey v. State, No. 05-06-00726-CR, 2007
WL 2052159, at *3 (Tex. App.—Dallas July 19, 2007, pet. ref’d) (mem. op., not
designated for publication).
Appellant does not dispute that she had a legal duty and concedes that expert
testimony established that the complainant died of complications due to blunt force
trauma. She contends, however, that the evidence was insufficient to convict her
either of striking the complainant herself, or of being criminally responsible for the
striking of the complainant. Appellant’s primary basis for this contention is that
(1) she was not at home when the complainant died or in the hours prior to death,
and (2) Dr. Edwina Popik testified that the injury that caused the complainant’s
death would have occurred only hours before the death because fat emboli are very
acute.
Not only was the jury not required to believe appellant’s statement that the
complainant was already dead or in distress when she arrived home, 14 see
14
Conflicting evidence was presented on this question. During appellant’s cross-
16
Montgomery, 369 S.W.3d at 192, but appellant’s argument overstates Dr. Popik’s
testimony. The State’s expert testified that the fat emboli “would have gotten [to
the lungs] within hours of death” in response to a question regarding “how long the
fat emboli had been in her lungs in relationship to the time she died” (emphasis
added). This testimony does not establish that the fat emboli had to be formed
within hours of the complainant’s death, or that the injuries causing the emboli
would have occurred within hours of the complainant’s death. There was autopsy
evidence from Dr. Chu that most of the bruising on the complainant’s head and the
contusions extending from her chest to her arms were a minimum of three days
old.
Moreover, the State charged appellant with having a legal duty to prevent
Judith from striking the complainant and failing to make a reasonable effort to
prevent her from doing so. Even if Judith struck the complainant while appellant
was not home, appellant’s absence at that particular time does not answer the
question whether appellant made reasonable efforts to prevent Judith from striking
the complainant when she was not home. See Guevara, 152 S.W.3d at 52 (holding
physical presence during commission of offense is unnecessary for party liability).
Appellant also appears to challenge the sufficiency of the evidence that she
acted with intent to promote or assist the commission of the offense. As discussed
in the previous section, however, Judith’s unsupervised access to the complainant
was solely the result of appellant’s continuing to allow her that access. The
evidence established that appellant declined to have her sister take care of the
complainant instead of Judith, even after others began raising concerns about the
examination of Officer Swainson, Officer Swainson agreed with defense counsel that appellant
was at work at the time her daughter was found deceased in her apartment. One of the
responding firefighters testified, however, that both women were in the apartment when he
arrived and that appellant made the emergency call from her home.
17
complainant’s treatment and obvious injuries. The evidence also established that
appellant avoided Child Protective Services when they were investigating claims
of mistreatment and made excuses for the complainant’s injuries that medical
experts and family members attempting to assist the complainant considered
implausible in light of the number, extent, and frequency of injuries.
Appellant’s suddenly urgent desire to discover if Child Protective Services
had concluded its investigation—a desire that arose within days of the complainant
dying due to complications from blunt force trauma—could suggest to a rational
jury that appellant was not only aware of the trauma but willing to postpone its
treatment until suspicions of mistreatment had subsided. Cf. Ransom v. State, 920
S.W.2d 288, 302 (Tex. Crim. App. 1994) (holding defendant’s participation as a
party may be based “on actions of the defendant which show an understanding and
common design to do the prohibited act”). Furthermore, a rational jury could
reasonably infer from evidence of complainant’s previous untreated fractures that
appellant had a history of subordinating the complainant’s need for medical
treatment to her desire to perpetuate the living arrangements of the household. A
rational jury could conclude that these actions promoted continuing abuse. Cf.
Young, 358 S.W.3d at 802; Pumphrey, 2007 WL 2052159, at *3. We hold there
was sufficient evidence for a rational jury to find that appellant, acting with intent
to promote or assist the commission of the offense, did not make reasonable efforts
to prevent Judith from striking the complainant. We therefore overrule the
remainder of appellant’s first issue challenging her conviction of felony murder.
II. On this record, appellant has not shown ineffective assistance of
counsel.
In her second issue, appellant contends she received ineffective assistance of
counsel because (1) her trial counsel failed to request that the jury be instructed on
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the lesser-included offense of reckless injury to a child by omission; and (2)
testimony was introduced that appellant once struck the complainant with a belt
but trial counsel did not object under Texas Rule of Evidence 403 or request
burden-of-proof or limiting instructions regarding that evidence.
A. Standard of review and applicable law
The United States and Texas Constitutions guarantee a criminal defendant
the effective assistance of counsel. U.S. Const. Amend. VI; Tex. Const. art. I, §
10. Under the standard announced by the Supreme Court of the United States in
Strickland v. Washington, 466 U.S. 668 (1984),15 an appellant must show both
“deficient performance of trial counsel and harm resulting from that deficiency that
is sufficient to undermine the confidence in the outcome of the trial” by a
preponderance of the evidence. Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim.
App. 2013). Failure to make either showing defeats the ineffectiveness claim. See
id.
Our review of the reasonableness of trial counsel’s conduct is highly
deferential. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We
view the conduct in its context at the time, and apply a “strong presumption” that
counsel’s conduct “falls within a wide range of reasonable professional
assistance.” Id. “[I]n almost all cases,” direct appeal is an inadequate vehicle for
raising an ineffective assistance claim because the record is generally
underdeveloped. Id. at 102; see also Massaro v. United States, 538 U.S. 500, 504–
05 (2003). Ordinarily, counsel should have an opportunity to explain his or her
actions before being held ineffective. Rylander v. State, 101 S.W.3d 107, 111
15
In Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986), the Court of
Criminal Appeals adopted Strickland’s two prong test for both Constitutions’ guarantees of
effective counsel.
19
(Tex. Crim. App. 2003).
In this case, the record is silent on trial counsel’s reasoning for failing to
take the actions identified by appellant because appellant did not file a motion for
new trial. Accordingly, we may not hold counsel’s performance deficient unless
“the challenged conduct was so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(internal quotation marks omitted). More specifically, it must be apparent from the
record “that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
trial counsel's acts or omissions, regardless of his or her subjective reasoning.”
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
Even if the appellant overcomes the presumption of reasonableness, she
must also prove that she was prejudiced by her counsel’s actions. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must show that
“‘there is a reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.’” Ex parte Martinez, 330 S.W.3d 891,
901 (Tex. Crim. App. 2011) (quoting Strickland, 466 U.S. at 695).
B. The record does not show appellant’s counsel was deficient in
failing to request an instruction on a lesser-included offense.
We need not determine whether appellant was entitled to the instruction on a
lesser-included offense, because the Court of Criminal Appeals has previously
upheld the failure to request a lesser-included offense as reasonable where the
defendant desired “an all-or-nothing trial strategy.” Ex Parte White, 160 S.W.3d
46, 55 (Tex. Crim. App. 2004). As such, the challenge to counsel’s effectiveness
does not present the “rare case” where no imaginable trial strategy could justify the
behavior. See Andrews, 159 S.W.3d at 102. Nor does the record before us reflect
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whether appellant desired the strategy at the time, or what counsel’s subjective
reasons were for pursuing it. Because the record is silent as to such matters, we
will not speculate as to counsel’s reasons for failing to request the instruction.
Vasquez v. State, 830 S.W.2d 948, 950–51 (Tex. Crim. App. 1992); Perez v. State,
56 S.W.3d 727, 732 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding
appellant failed to show counsel was ineffective for failing to request a lesser
included offense instruction for a smaller quantity of cocaine where record was
silent as to counsel’s reasoning).
C. The record does not show ineffective assistance in counsel’s
handling of testimony from appellant’s sister.
Appellant also complains her counsel was ineffective with respect to
testimony from appellant’s sister Juana that she once observed appellant strike the
complainant with a belt in Judith’s presence. Appellant contends her counsel was
ineffective in failing to (1) object to the testimony as unfairly prejudicial under
Texas Rule of Evidence 403; (2) request a limiting instruction on that testimony;
and (3) request a burden-of-proof instruction regarding the incident.
1. Appellant has not shown prejudice from counsel’s failure to
object to the testimony under Rule 403.
In order to show prejudice from a failure to object, appellant “must show
that he would likely have been successful on appeal had the issue been properly
preserved.” Ex parte Moore, 395 S.W.3d at 158. Appellant has not argued that
the testimony at issue was not relevant, but rather that even relevant testimony may
be excluded if “its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.”
Tex. R. Evid. 403.
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A trial court’s ruling under Rule 403 is reviewed for an abuse of discretion.
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). A Rule 403
analysis includes such factors as “(1) the probative value of the evidence; (2) the
potential of the evidence to impress the jury in some irrational but nevertheless
indelible way; (3) the time the proponent needs to develop the evidence; and (4)
the proponent’s need for the evidence.” Wright v. State, 178 S.W.3d 905, 923
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). The court’s ruling admitting
evidence does not provide a basis for reversal if it is within the zone of reasonable
disagreement. Pawlak, 420 S.W.3d at 810.
Although we acknowledge that “misconduct involving children [is]
inherently inflammatory,” Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim.
App. 1990) (op. on reh’g), appellant has not shown that the trial court would have
committed reversible error had it concluded from balancing these factors that the
testimony’s prejudicial force did not substantially outweigh its probative value.
Appellant concedes that the first 403 factor weighs in favor of admission
because the testimony was probative of the relationship between appellant and the
complainant. Appellant then contends that the fourth factor weighs in favor of
exclusion because the State had ample evidence to establish the relationship
between appellant and the complainant without relying on Juana’s testimony.
Juana’s testimony had other probative value, however. A central issue in the
case was whether the jury found credible appellant’s statements of belief in
alternative explanations for the complainant’s injuries. As such, appellant’s candor
during her interviews with Officer Swainson was highly probative. Appellant
admitted to physically disciplining the complainant, but only with her hand.
Evidence that appellant had also struck the complainant with a belt could
undermine the inference that appellant was fully cooperating with the
22
investigation, rather than attempting to conceal abuse. As such, the testimony was
probative not only as to the type of discipline appellant imposed on the
complainant—and the level of restraint she exercised while doing so—but also as
to appellant’s credibility.
With regard to the second factor, appellant contends the testimony had the
potential to impress the jury in an irrational but indelible way because “[i]t
provided an avenue for the jury to assume that appellant abused her child, or was at
least complicit in her being abused when this testimony merely evidenced an act of
discipline.” Appellant’s argument assumes that if she had a disciplinary purpose,
the physical discipline she administered cannot constitute abuse. We disagree. See
Hill v. State, 883 S.W.2d 765, 770 (Tex. App.—Amarillo 1994, pet. ref’d)
(“Appellant, despite counseling in 1984 in avoidance of physical punishment . . .
physically abused the children, often saying, ‘Spare the rod, spoil the child . . . .’”).
The trial court could reasonably have concluded that the jury was less likely to
draw an irrational inference that appellant must abuse her child because she used
physical force as discipline than it was to draw a rational inference that the
discipline, as administered, could cause the type of blunt force trauma capable of
producing the complainant’s many injuries.
We hold appellant has not shown that it would have been outside the zone of
reasonable disagreement for the trial court to conclude that the probative value of
her sister’s testimony was not substantially outweighed by the risk of unfair
prejudice to appellant. Appellant has therefore not shown that she was prejudiced
by her counsel’s failure to object to the testimony under Rule 403.
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2. The record does not show appellant’s counsel was deficient
in failing to request limiting or burden-of-proof instructions
for testimony regarding extraneous acts.
Appellant also argues that her counsel should at minimum have requested
limiting instructions regarding Juana’s testimony that appellant struck the
complainant with a belt. Appellant’s analysis assumes that this incident constitutes
extraneous conduct, although the State contends that the testimony related to
allegations in appellant’s felony murder charge. In the alternative, the State
characterizes the evidence as same-transaction contextual evidence, which the
State contends does not require a limiting instruction. See Castaldo v. State, 78
S.W.3d 345, 352 (Tex. Crim. App. 2002).
We need not decide whether the incident was an extraneous act because,
even if we assume appellant’s characterization is correct, appellant has not shown
that the failure to request the instructions falls within the category of rare cases
where no reasonable trial strategy could explain trial counsel’s conduct. See Perez,
56 S.W.3d at 731. Although the Court of Criminal Appeals held in Ex parte
Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001), that the failure to request such
instructions constituted deficient performance, the Court did so while reaffirming
its inability to determine ineffectiveness when the petitioner made the same claims
on direct appeal, at which point the record was silent as to counsel’s reasoning. Id.
at 632. Because the record before us is similarly silent as to trial counsel’s reasons
for not requesting the burden-of-proof and limiting instructions, which would have
drawn additional attention to the evidence, we hold appellant has failed to show
that her counsel’s performance fell below an objective standard of reasonableness.
We therefore overrule appellant’s second issue.
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CONCLUSION
Having overruled both of appellant’s issues, we affirm the judgment of the
trial court.
/s/ J. Brett Busby
Justice
Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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