IN THE
TENTH COURT OF APPEALS
No. 10-08-00399-CR
JEREMY D. NASH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Leon County, Texas
Trial Court No. CM-07-458
MEMORANDUM OPINION
Jeremy Nash appeals from a conviction by a jury for the offense of Injury to a
Child causing serious bodily injury. TEX. PEN. CODE ANN. §22.04 (Vernon 2005). The
trial court assessed his punishment at confinement for twenty (20) years in the Texas
Department of Criminal Justice – Institutional Division. Nash complains that the trial
court erred by admitting photographs of the child which were not properly
authenticated, that the evidence was both legally and factually insufficient, and that he
received ineffective assistance of counsel. Because we find no reversible error, we
affirm.
Improper Admission of Evidence
Nash complains that the trial court abused its discretion by admitting
approximately fifteen photographs into evidence because the photographs were not
properly authenticated. See TEX. R. EVID. 901. The photographs were admitted through
the testimony of a physician at the hospital where the child was treated; however, that
physician did not take the photographs or even see the child on the date the
photographs were taken. That physician first saw the child several days after the
photographs were taken.
While the rules of evidence do not require that the person who took the
photographs be the sponsoring witness, the witness must provide testimony, based on
personal knowledge, sufficient to support a finding that the matter in question is what
its proponent claims. See TEX. R. EVID. 901(a); see also Huffman v. State, 746 S.W.2d 212,
222 (Tex. Crim. App. 1988) (predicate for videotape or photograph need not be laid by
photographer, subject of photograph, or person present when photograph taken, and
any witness who observed the subject depicted in photograph may lay predicate). It is
undisputed that the physician who was the sponsoring witness did not have personal
knowledge of the truth of what was portrayed in the photographs as depicted that
night.
Assuming without deciding that the admission of the photographs through this
witness was erroneous, we find that the error, if any, was harmless. See TEX. R. APP. P.
44.2(b). Other properly authenticated photographs were admitted before the jury that
contained similar depictions of the child when he was brought into the hospital. See
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Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (Overruling an objection to
evidence will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling.). Further, an investigator
with Child Protective Services testified in rebuttal that she had seen the child on the
night he was taken to the hospital and verified that at least seven of the photographs in
question accurately portrayed the child that night based on her personal knowledge.
We overrule issue one.
Legal and Factual Sufficiency
Nash complains that the evidence was both legally and factually insufficient for
the jury to find that he intentionally or knowingly caused the child’s injuries beyond a
reasonable doubt because the State’s experts did not conclusively establish that the
injuries could not have been accidental. In reviewing the legal sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most favorable
to the prosecution 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,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). Furthermore, we must consider all the evidence
admitted at trial, even improperly admitted evidence, when performing a legal
sufficiency review. Clayton, 235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex.
Crim. App. 2004). The standard of review is the same for direct and circumstantial
evidence cases; circumstantial evidence is as probative as direct evidence in establishing
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an actor’s guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
When reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280
S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.
App. 2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is manifestly
unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse
under the second ground, we must determine, with some objective basis in the record,
that the great weight and preponderance of all the evidence, although legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must give
due deference to the fact-finder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9
(Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually
sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247;
see Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not enough
that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”
Nash v. State Page 4
Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is clearly wrong or
manifestly unjust simply because we would have decided differently than the jury or
because we disagree with the jury’s resolution of a conflict in the evidence. Id. We may
not simply substitute our judgment for the fact-finder’s. Johnson, 23 S.W.3d at 12; Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals
that a different result is appropriate, we must defer to the jury’s determination of the
weight to be given contradictory testimonial evidence because resolution of the
conflict “often turns on an evaluation of credibility and demeanor, and those jurors
were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our
deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v.
State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). A factual sufficiency review of
circumstantial evidence is the same as a review of direct evidence. King v. State, 29
S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.
App. 1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to
support the jury’s verdict”).
The Facts
A fifteen-month old child was admitted to the hospital with an acute subdural
hematoma. The child was covered in bruises of varying ages, including bruising to the
front and back of both of his ears, his face, trunk, and extremities. The explanation
ultimately given by Nash was that the child had fallen off of a chair in the bathroom.
He said that he put the child on the chair when another child in the residence called to
him regarding a video game and he went to help that child in another room, leaving the
Nash v. State Page 5
injured child alone in the bathroom. When he came back, the child had fallen off of the
chair. The child’s mother was Nash’s girlfriend, and both she and Nash stated that she
was sleeping at the time of the incident. Both agreed that the child was acting normally
earlier in the day, and they believed that the child’s bruising was caused by an iron
deficiency.
A treating physician at the hospital who had extensive experience in treating
child abuse cases stated that based on his experience and knowledge his opinion was
that the brain injury suffered by the child and the retinal hemorrhaging were
inconsistent with the explanation of a single fall from a chair and iron deficiency. Such
injuries would be caused by a severe car crash or a fall from several stories high. The
child would have quickly lost consciousness after the injury. The child sustained
permanent brain damage due to the injury. The retinal hemorrhaging and bruising did
not continue while the child was in the hospital, indicating that there was no
undiagnosed medical condition. The bruising on the front and back of the child’s ears
was not likely caused by an ear infection or by falls where the child landed on each ear
in separate falls, but more likely by someone pulling or jerking on the ear. In his
opinion, the injury to the child was “the result of an abusive event.”
A defense expert neurosurgeon testified that based on his reviews of the child’s
medical records that the child had suffered from a chronic subdural hematoma, which
was a preexisting condition. This condition, coupled with a fall from the chair, could
result in the injury sustained by the child. This physician did not believe that a baby
could be shaken to cause a head injury. He also relied on a study by a bioengineer
Nash v. State Page 6
regarding testing conducted using a test dummy to measure acceleration in short falls
and shaking, although the substance of that study was not further elicited before the
jury. The defense expert disagreed with the findings of the American Academy of
Pediatrics regarding injuries sustained by young children from falls and regarding child
abuse in general. He did agree that it would be unusual, though not impossible, for a
fall of seventeen inches as was the height of the chair in question in this case, to cause a
serious head injury.
The State called an expert witness in pediatrics with a specialty in child abuse
cases in rebuttal who testified that he disagreed with the findings of the defense expert
and did not see the chronic subdural hematoma as described and demonstrated by the
defense expert on the CT or MRI scans of the child taken at the hospital, and in fact
testified that he did not find the scans to be consistent with a chronic subdural
hematoma. He affirmatively stated that the injury sustained by the child could not have
been as a result of the fall as described by Nash, but could have been caused by being
struck against a couch, shaken vigorously and slammed into an object, or hit by a car or
baseball bat. No one was able to determine specifically what caused the child’s injury
based on the x-rays. The fall also could have been from a higher distance depending on
how mobile the child was at that time.
It was for the jury, as the trier of fact, to resolve the conflicting expert opinions
regarding the cause of the child’s injuries. Viewing the evidence in the light most
favorable to the jury's verdict, and thus assuming that the jury believed the State's
experts and discounted the testimony of the defense experts, the evidence is legally
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sufficient to support a finding beyond a reasonable doubt that Nash was the perpetrator
of the injuries sustained by the child. He was admittedly the only caretaker of the child
at the time of the injury. The testimony showed that his explanation of the head injury
was inconsistent with a short fall. The child was acting normally up until the injury,
and had eaten a cheeseburger earlier in the day.
Even when all the evidence is considered equally in our factual sufficiency
analysis, including the testimony of the defense experts, we still must give due
deference to the jury's credibility determinations. It was the opinion of the investigator
from CPS that Nash had caused the head injury because he had the availability and
opportunity to do so. No one told the 911 operator or the EMT that arrived at the scene
that the child had fallen. The child’s mother stated that the child had bruises from
falling from learning how to pull up and that he had hit his mouth on rails at the foot of
her bed. Witnesses for Nash testified that he was very upset and crying that day when
the child was injured. The witnesses had seen him with his other children and the
injured child and he seemed to have a good relationship with them all. The State
responded with Nash’s former stepdaughter who alleged that Nash had spanked her
hard enough to leave bruises repeatedly for the eight years he lived with her, her
mother, and her siblings. The State's evidence is not so weak or the defensive evidence
so strong as to preclude the jury from finding beyond a reasonable doubt that Nash
intentionally or knowingly caused the child’s injury. Issues two and three are
overruled.
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Ineffective Assistance of Counsel
Nash complains in his fourth issue that he received ineffective assistance of
counsel throughout the trial. Specifically, he complains that his trial counsel was
ineffective by not objecting to the State’s experts pursuant to rule of evidence 705, by
failing to object to the investigator’s opinion that Nash caused the injuries, by failing to
object to the State’s comment on Nash’s failure to testify, and by failing to object to the
State’s closing argument. Nash filed a motion for new trial but did not allege ineffective
assistance of counsel in that motion.
Standard of Review
To prevail on an ineffective-assistance claim, Nash must prove (1) counsel’s
representation fell below the objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s deficiency, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). In considering an ineffective-assistance claim, we indulge a strong presumption
that counsel’s actions fell within the wide range of reasonable professional behavior and
were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d
at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this
presumption, a claim of ineffective assistance must be firmly demonstrated in the
record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle
for raising such a claim because the record is generally undeveloped and cannot
Nash v. State Page 9
adequately reflect the motives behind trial counsel’s actions. Rylander v. State, 101
S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.
When the record is silent regarding trial counsel’s strategy, we will not find
deficient performance 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); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).
In rare cases, however, the record can be sufficient to prove that counsel’s performance
was deficient, despite the absence of affirmative evidence of counsel’s reasoning or
strategy. Id.
It is critical that Nash obtain the necessary record in the trial court to rebut the
Strickland presumption that counsel’s conduct was strategic for purposes of appeal.
Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing on a
motion for new trial, or by an application for a writ of habeas corpus. See Jackson v.
State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.
Without evidence of the strategy and methods involved concerning counsel’s actions at
trial, the appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at
814. The record is silent as to any trial strategy by counsel. Except as stated above,
when the record is silent as to counsel’s reason for failing to act in some manner, the
appellant fails to rebut the presumption that counsel acted reasonably. See Thompson, 9
S.W.3d at 814.
Nash v. State Page 10
Expert Testimony
Nash complains that he received ineffective assistance of counsel because the
judge was not asked to make a ruling at the conclusion of the preliminary hearing
conducted outside of the presence of the jury prior to the first State expert’s testimony
and that the testimony should have been excluded because the doctor did not identify
the rate of error in the studies on which he relied. However, the rate of error is only one
of a list of non-exclusive factors that the Court of Criminal Appeals has recently stated
“could influence a trial court’s determination of reliability.” Laster v. State, 280 S.W.3d
235, 241 (Tex. Crim. App. 2009) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.
App. 1992)) (emphasis added). A finding regarding the rate of error is not mandatory.
The testimony would not have been excludable on this sole basis when taken with the
entirety of the expert’s testimony. Nash does not challenge the admissibility of the
scientific testimony on any other basis. Therefore, Nash fails to meet the first prong of
Strickland on this complaint.
Opinion Testimony, Comment on Failure to Testify, Improper Jury Argument
As to the other complaints regarding whether Nash received ineffective
assistance of counsel, we find that the record is silent as to any trial strategy by counsel.
See Thompson, 9 S.W.3d at 814. As such, we do not find that Nash has developed an
adequate record to rebut the presumption that trial counsel acted reasonably. We
overrule issue four.
Conclusion
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We find that any error in admitting the photos was harmless. We find that the
evidence was both legally and factually sufficient to sustain Nash’s conviction. We find
that Nash did not receive ineffective assistance of counsel based on the failure to
challenge the admissibility of the State’s first expert and that the record is insufficient
for Nash to overcome the presumption that his trial counsel acted reasonably based on
his other complaints. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed March 17, 2010
Do not publish
[CR25]
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