ACCEPTED
06-14-00140-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/30/2015 9:17:47 AM
DEBBIE AUTREY
CLERK
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
4/30/2015 9:17:47 AM
DEBBIE AUTREY
Clerk
Identity of Parties and Counsel
1. Trial Judge: The Honorable Richard Beacom presided over the trial of
this case, Presiding Judge of the 354th Judicial District Court of Hunt County,
2507 Lee St. Greenville, TX 75401 .
2. Appellant: Tony a Ann Rodriguez, Hunt County Detention Center 2801
Stuart St., Greenville, TX 75401
3. Counsel for Appellant:
a. The Appellant was represented at the Trial Court by Royal Mullins, 2608
Stonewall St., Greenville, Texas 75401
b. The Appellant is represented on appeal by Frank Long, 614 Oak Ave.,
Sulphur Springs, TX 75482.
4. Counsel for the State of Texas:
a. The State of Texas was represented by Noble Dan Walker, Jr., Hunt
County District Attorney, at the trial court level.
b. The State is represented on appeal by and through Noble Dan Walker, Jr.,
District Attorney, 2507 Lee St., Greenville, TX 75401 .
Opening Brief of Appellant
Page 2 of 19
TABLE OF CONTENTS
Identity of Parties and Counsel 2
TABLE OF AUTHORITIES 4
STATEMENT OF THE CASE 5
STATEMENT OF FACTS 6
ARGUMENT 12
APPELLANT'S SINGLE ISSUE 12
Arguments And Authorities 13
PRAYER 17
CERTIFICATE OF SERVICE 17
CERTIFICATE OF COMPLIANCE 18
Opening Brief of Appellant
Page 3 of 19
TABLE OF AUTHORITIES
Cases
Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App., 2010) 14
Gaddis v. State, 753 S.W.2d 396,398 (Tex.Crim.App.1988) 14
Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000) 13
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) 14
Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000) 15
McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008) 14
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g) 14
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) 14
Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004); 14
Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App. 1980) 15
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000) 15
Whitney v. State, 396 S.W.3d 696, 703-04 (Tex. App.--Fort Worth 2013, pet. refd) 14
Rules
TEX. R. APP. P. 44.2(b); 14
Opening Brief of Appellant
Page 4 of 19
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument as the decisional process of this
Court would not be significantly aided by oral argument since the facts and legal
arguments are adequately presented in the briefs submitted to this Court.
STATEMENT OF THE CASE
Appellant was charged by indictment with the 1" degree felony
offense of Injury To A Child Causing Serious Bodily Injury with an alleged
mental state of "intentional" in Cause No. 29,230 in the 354'" District Court
of Hunt County, Texas. Defendant entered a plea of Guilty to an amended
indictment containing the lesser included 2"' degree felony charge of Injury
To A Child Causing Serious Bodily Injury with an alleged mental state of
"reckless" and a trial on punishment was heard from July 13, 2014 to July
16, 2014. The jury returned a verdict of 16 years incarceration in the Texas
Department of Criminal Justice Institutional Division and the Court entered
a judgment consistent with the punishment verdict and the 1" degree count
was dismissed. Appellant now appeals the sentence of 16 years to the 2"'
degree felony offense of Injury To A Child Causing Serious Bodily Injury.
Opening Brief of Appellant
Page 5 of 19
Did the Court err by allowing the State, over a proper objection, to
argue for the jury to violate the law regarding proper consideration of the
full range of punishment.
NO. 06-14-00190-CR
IN THE
SIXTH COURT OF APPEALS OF TEXAS
TEXARKANA, TEXAS
TONYA ANN RODRIGUEZ
vs
STATE OF TEXAS
Brief For The Appellant
STATEMENT OF FACTS
Appellant was indicted for the 151 degree felony of Injury To A Child
Causing Serious Bodily Injury on August 23, 2013. After arraignment and a
Opening Brief of Appellant
Page 6 of 19
pretrial hearing, Appellant's trial counsel and the assistant district attorney
announced a plea agreement on March 18, 2014 consisting of Appellant
entering a plea of guilty to a lesser charge of reckless intent Injury To A
Child Causing Serious Bodily Injury, a second degree felony. (RR Vat 4-5)
The State amended the indictment acting a Count II allegation of reckless
and Appellant entered her plea on April 15, 2014. (RR VI at 7-8) A jury was
selected on July 14, 2014 and a trial to the jury on punishment followed.
After trial, the jury returned a verdict of 16 years and a judgment consistent
with the verdict was entered on July 16, 2014, (CR at 70). Appellant does
not contest the sufficiency of the evidence. A detailed recitation of the facts
is therefore unnecessary. A summary of the testimony is below.
After a jury was empaneled and sworn, the State called Shannon
Tadlock, the mother of the injured child, (RR X at 16). Ms Tadlock testified
about how she discovered her child suffered from a leg fracture. Ms
Tadlock had dropped the child, A. H. at the residence of Appellant where
Appellant operated a small daycare center. Ms Tadlock testified that her
child A. H. was abnormally fussy that Tuesday because of constipation
issues and the matter was discussed with Appellant, (RR X at 21 ). Ms
Tadlock testified that she received a phone call from Appellant that
Tuesday afternoon and there was some discussion of something perhaps
Opening Brief of Appellant
Page 7 of 19
wrong with the child's leg, but it was agreed that Ms Tadlock would pick up
the child at the usual time after 5:00P.M. Ms Tadlock testified that she and
the child's father, Micah, picked up A.H.and noticed something wrong and
took A.H.to the emergency room, (RR X at 25).
Ms Tadlock testified that A.H.was examined including having xrays
taken. Without objection, Ms Tadlock testifies that she was told by the
medical personnel that A.H.suffered a spiral fracture that could was non-
accidental, (RR X at 25). Ms Tadlock testifies about riding in the ambulance
with A.H.from the hospital in Greenville to Children's Medical Center in
Dallas (RR X at 28). And Ms Tadlock repeats with no objection that ..the
doctors told me, again, it was a non-accidental break, that someone had to
have forcibly done this to her, (RR X at 30). With no objection, the following
exchange occurred (RR X at 31):
Q: And did they ever get a chance to go over with you, like,
what they -- the type of force or what type of injury this could
have been? Did they explain that to you?
A: They said they would have had to -- someone would have
had to have literally twisted her leg so hard that it would snap.
They told me that her, especially babies• bones, are very
bendable so even -- that much force is still even really hard to
Opening Brief of Appellant
Page 8 of 19
break them. They said it had -- it couldn't have been done by
accident.
Ms Tadlock then testifies to the events of the next week after her child is
placed with her in-laws pending a CPS investigation. She testifies upon
questioning as to the hearsay regarding the CPS investigation, "Ms Haines
told me that they had ruled us out as hurting her and that they had ruled it
out pretty quickly and that we were allowed to take her home and that they
would begin looking at Ms. Rodriguez with, really, there only being two
people who saw her constantly, me and Ms. Rodriguez, (RR X at 35).
The State called Amanda Haines, the Child Protective Services
investigator (RR X at 44). Ms Haines described how the investigation
regarding the injury to A.H.began and how Appellant became the prime
target of the investigation by Child Protective Services and law
enforcement (RR X 44-54). Ms Haines describes a lengthy interrogation of
Appellant conducted by Detective Fuller of the Greenville Police
Department. She further describes, with no objection as to the absence of
any scientific basis or predicate, the results of an oral swab drug test
administered to Appellant (RR X at 60-65). Ms Haines testifies at length
about the type of test administered and the general dangers of
methamphetamine use regarding child care, (RR X 67). Ms Haines also
Opening Brief of Appellant
Page 9 of 19
discusses her impressions of Appellant from Detective Fuller's
interrorogation, including Ms Haines's speculation that Appellant's "jittery"
behavior during the interview could be from methamphetamine use (RR X
at 72). On cross examination the following exchange occurs (RR X at 76):
Q: At the time did the doctor tell you exactly how that injury-- whether it be
twisting or snapping or how that type of injury would have to be --what type of
force or the actions that would take place?
A: They said it had to be extreme force and that one would have known that
they had broken the leg at that time.
The next witness called by the State is Dr. Kristen Reeder, a
pediatrician from Children's Medical in Dallas (RR X at 79). Dr. Reeder
testified that she examined A.H.and determined that she had a spiral
fracture on her right femur (RR X at 85). As to the force required to cause
the spiral fracture, Dr. Reeder testifies, "There aren't any studies as of now
that actually have a measurement for the force needed; but just through
clinical practice, through real life practice, I personally have changed
thousands of diapers and have never broken a baby's leg"(RR X at 92). Dr.
Reeder answers in the affirmative when asked by the State, "[l]s the type of
force that's required to break a bone like this a sufficient amount of force
that the caregiver would know that they're going to at least cause pain in
Opening Brief of Appellant
Page 10 of 19
the child, if not know they were about to break the child's leg?" (RR X at
92). Dr. Reeder does not offer any opinion with regard to the time the bone
fracture could have happened. After Dr. Reeder, the State rested as to the
punishment hearing.
Appellant called the following witnesses: Juanita Rosales, Appellant's
aunt (RR X at 106-122); John Villareal, Appellant's uncle (RR X at 122-
134); another aunt, Mary Sue Sartin (RR X at 134-136); Donna Jean
Lester, an acquaintance of Appellant's who knew her because Appellant
cared for her grandchild (RR X at 137-150);and Appelleant called a niece of
Appellant's Ashley Johnson (RR X at 150-158). These witnesses all
provided testimony that Appellant kept a very clean home and that they all
trusted her to care for children.
Appellant also testified (RR X 159-233). Appellant admits using a
small amount of a substance she believed to be methamphetamine on the
Saturday prior to the discovery of the child's injury (RR X at 220). Appellant
admitted that the injury must have happened while in Ms Rodriguez's care,
but consistently denied knowing exactly how the injury occurred (RR X at
197). Ms Rodriguez also testified that she had never been convicted of a
felony or misdemanor and was eligible to receieve probation from the jury
Opening Brief of Appellant
Page 11 of 19
(RR X at 211). On cross examination, the prosecutor asked Appellant
about the status of Appellant's disabled daughter and whether or not Adult
Protective Services ever investigated her (RR X at 228). The prosecutor
also asked, 'The members of the Greenville Police Department also made
contact with you; is that correct?" (RR X at 228). Appellant replied, "Uh-
huh" and there was no objection to the line of questioning. Appellant was
also asked about the status of her other daughter's boyfriend as a
registered sex offender with no objection (RR X at 230).
In rebuttal, the State offerred the testimony of Detective Fuller and
questioned her about the interviews of Appellant and whether or not
Detective Fuller believed Appellant was truthful (RR X at 237). The State
also offerred without objection the testimony of Lacey Dejarneatt who
testified about a specific incident involving going to Appellant's home and
finding her daughter unattended (RR XI at 6-8) .
Opening Brief of Appellant
Page 12 of 19
ARGUMENT
APPELLANT'S SINGLE ISSUE
The Court Erred by Allowing the State, Over a Proper Objection, To
Argue For The Jury To Violate The Law Regarding Proper
Consideration Of The Full Range of Punishment
Fact Statement
Appellant incorporates fully all of the facts set out in the Statement of
Facts, above, and adds the additional facts from volume eleven of the
Reporter's Record relevant to this issue .
The jury received the accepted instruction regarding extraneous
offenses as follows:
The State has introduced evidence of extraneous crimes or
bad acts other than the one charged in the indictment in this
case. This evidence was admitted only for the purpose of
assisting you, it it does, in determining the proper
punishment for the offense for which you have found the
defendant guilty. You cannot consider the testimony for any
purpose unless you find and believe beyond a reasonable
doubt that the defendant committed such other acts, if any
were committed (RR XI at 15).
The jury was also instructed on the full range of punishment for injury to
a child by a reckless act causing serious bodily injury as a second degree
felony with the possibility of probation (RR XI at 12-13).
Opening Brief of Appellant
Page 13 of 19
The prosecutor elected to split his argument in two parts. During the first
part of the prosecutor's argument to the jury the following exchange
occurred (RR XI at 20-21 ):
[By Assistant District Attorney Lilley]: So I tell you this: Start
your deliberations at 11 years and go up from there becaue
that's a sign to this defendant and our community that we
never even consider--
MR. MULLINS: Objection, Your Honor. The State is --the
law says the jury can consider the full range and he's giving
instructions to start at a certain place and that's improper
argument.
MR. LILLEY: They were qualified on the full range, Your
Honor. They don't have to consider it if--
MR. MULLINS: It's improper-- it's improper for a prosecutor
to start telling the jury how or where they should start
deliberating or how to deliberate. It's improper argument.
THE COURT: Well, let's -- rather than instruction of where to
start, I think you can argue where the State would like to see
the punishment range go from.
MR. LILLEY: Okay. So where State [sic] believes that the
range that should be honestly considered, based on the
facts that you heard, is 11 years and up because that sends
a message that our community never even considered
probation in this case.
The State further urged the jury to consider the alleged lack of
truthfulness of the Appellant as well as the alleged drug use of Appellant.
Trial Counsel for Appellant argued for a probated sentence.
The jury returned a sentence of 16 years confinement (RR XI at 41).
Arguments And Authorities
Opening Brief of Appellant
Page 14 of 19
The Texas Court of Criminal Appeals recognizs four areas of proper
jury argument: (1) summation of the evidence presented at trial; (2)
reasonable dedution drawn from that evidence; (3) answer to the opposing
counsel's argument; or (4) a plea for law enforcement. Davis v. State, 340
S.W.3d 717,728 (Tex.Crim.App.2010); Jackson v. State, 17 S.W.3d 664,
673 (Tex.Crim.App.2000). In examining challenges to a jury argument, the
remark is to be considered in the context in which it appears. Gaddis v.
State, 753 S.W.2d 396,398 (Tex.Crim.App.1988). At punishment, a jury is
to consider the full range of punishment. Cardenas v. State, 325 S.W.3d
179 (Tex. Crim. App., 2010).
The standard of review for a trial court's ruling on an objection asserting
improper jury argument is abuse of discretion. Whitney v. State, 396
S.W.3d 696, 703-04 (Tex. App.--Fort Worth 2013, pet. refd). An abuse of
discretion involves a decision that was so clearly wrong that it lies outside
the zone within which reasonable persons might disagree. See McCarty v.
State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).
Improper jury argument is reviewed under a nonconstitutional harm
analysis under rule 44.2(b) of the rules of appellate procedure, and must be
disregarded unless it affected appellant's substantial rights. TEX. R. APP.
P. 44.2(b); see Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
Opening Brief of Appellant
Page 15 of 19
2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op.
on reh'g). A substantial right is affected when the error had a substantial
and injurious effect or influence in determining the jury's verdict. King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Conversely, an error
does not affect a substantial right if we have "fair assurance that the error
did not influence the jury, or had but a slight effect." Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001). Three factors are to be
considered in determining whether or not an appellant's subsantial rights
were affected: 1) the severity of the misconduct (i.e., the prejudicial effect
of the prosecutor's remarks); (2) curative measures; and (3) the certainty of
the punishment assessed absent the misconduct. See Martinez v. State, 17
S.W.3d 677, 692-93 (Tex. Crim. App. 2000). Reversible error occurs when,
in light of the record as a whole, the argument is extreme or minifestly
improper, violative of a mandatory statute, or injects new facts harmful to
the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103,
115 (Tex.Crim.App. 2000), citing Todd v. State, 598 S.W.2d 286, 296-97
(Tex.Crim.App. 1980).
During final argument, the prosecutor plainly urged the jury to
disregard the full range of punishment and only "honestly consider" a
sentence over eleven years (RR XI at 20-21). The statement was properly
Opening Brief of Appellant
Page 16 of 19
objected to but the error was compounded by the trial court's remarks in
overruling the objection by stating, " ... 1think you can argue where the State
would like to see the punishment range go from" (RR XI at 21 ). Clearly the
jury would have understood this exchange as being given the judge's
approval, and even instruction, to disregard any sentence in the
punishment range less than eleven years. Taking into account that the
consideration of the full punishment range is the jury's prime duty under
their oath, the erroneous nature of the prosecutor's argument and the
court's ruling is quite obvious. Examining the argument by the prosecutor in
the context of the comment by the trial judge, the substantial and injurious
effect or influence of both the argument and the ruling is clearly wrong and
an abuse of discretion.
The prosecutor's remark is quite severe and prejudicial in that it
actually urges the jury to disregard the law and their oath to render a true
and correct verdict. Specifically, the statement, "So where State [sic]
believes that the range that should be honestly considered, based on the
facts that you heard, is 11 years and up because that sends a message
that our community never even considered probation in this case" (RR XI at
21). Quite possibly, the prosecutor merely mistated what would be a
perfectly proper argument in asking the jury to give a sentence over eleven
Opening Brief of Appellant
Page 17 of 19
years. But the mistatement, namely the words "honestly considered," make
the argument wholly improper. The law is well established that the jury
must consider the full range of punishment.
Considering that the jury assessed sixteen years incarceration to a
Defendant who was clearly eligible for probation highlights the harm in this
case. Taking into account the other obvious errors in the record, Appellant
has demonstrated harm. In particular, the jury heard, without objection,
mere speculation of Defendant's drug use. There was no scientific
evidence or predicate made to prove any details of Defendant's alleged
drug use. The jury heard with no objection, blatant opinions concerning the
character of the accused. The jury heard hearsay without objection from
multiple witnesses called by the State regarding the nature of the child's
injury. The jury also heard witnesses imply that Defendant had other
criminal violations involving Adult Protective Services. Taking into account
the record as a whole, the prosecutor's argument to disregard their oath
and not honestly consider the full punishment range shows clear harm
requiring reversal.
Having proven harm to the degree mandated in cases of non-
constitutional error, Appellant requests this Court reverse the Trial Court's
Opening Brief of Appellant
Page 18 of 19
Judgment and remand the case for further proceedings pursuant to
Tex.R.App.Pro. 43.2(d).
PRAYER
Appellant prays that she be granted the relief requested under the
I hereby certify that a true and correct electronic copy of the foregoing
Appellant's Brief was mailed to Rodriguez, and a true and correct copy
compliant with the E-Filing rules adopted by the Texas Supreme Court,
effective 1-1-2014, has been filed with the Sixth Court of Appeals and has
Opening Brief of Appellant
Page 19 of 19
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used
to produce this document, I certify that the number of words in this brief is
3,480 words.
1<
Frank Long
Opening Brief of Appellant
Page 20 of 19