Michelle Elaine Bearnth v. State

Opinion issued October 27, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00906-CR

———————————

Michelle Elaine Bearnth , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1231845

O P I N I O N

A jury found Michelle

Elaine Bearnth guilty of the offense of felony murder, with the underlying

felony of injury to a child, and assessed punishment at thirty-three years’

confinement. [1] In five issues, Bearnth contends (1) the

evidence is legally and factually insufficient to support the jury’s verdict;

(2) the trial court erred in denying her motion to quash the felony murder

indictment because that offense is in pari

materia with the offense of injury to a child, injury to a child is

assaultive conduct that cannot underlie a felony murder charge, and the

indictment was motivated by prosecutorial vindictiveness; and (3) she was

entitled to a hearing on her motion for new trial.

We affirm.

Background

Bearnth lived in a home

with her two children, her boyfriend Josh Perkins, and his three children from

a prior relationship. Bearnth was the

primary care-giver to the five children, including Perkins’s two-year old

daughter K.P., who was blind in her right eye.

On September 30, 2008, Bearnth called Perkins at work to report that K.P.

had fallen in the backyard and suffered a black eye after hitting a paving

stone. Perkins saw the black eye when he

returned home from work, but the child otherwise appeared unharmed and acted

normally.

The next day, Bearnth, who was the only adult in the

house, called 911 stating that K.P. had fallen in the bathroom. When paramedics arrived at the scene, K.P. was

unconscious and barely breathing. She had

bruises on her hip, arms, legs, chest, upper and lower back, and around her

mouth. K.P. also had two skull fractures—one

on the side of her head and one on the back of her head.

Bearnth

remained unemotional the entire time the paramedics tended to K.P. She told the paramedics and police officers

at the scene that K.P. was prone to accidents and fell frequently because of

her limited vision, but she gave inconsistent accounts of how K.P. fell. K.P. never regained consciousness and died in

the hospital one week later.

A

grand jury indicted Bearnth for injury to a child. See Tex. Penal Code Ann. § 22.04. The indictment was later amended to allege

felony murder with the underlying offense of injury to a child through

intentional, knowing, reckless, or criminally negligent conduct. See Tex. Penal Code Ann. § 19.02(b)(3). Bearnth filed a motion to quash the

indictment, which the trial court denied.

At

trial, the jury heard testimony from the paramedics and police officers at the

scene who described K.P.’s injuries, Bearnth’s explanations of the events

giving rise to the injuries, and Bearnth’s demeanor. Several social workers and Child Protective

Services representatives testified regarding their investigation into K.P.’s

injuries. The jury also heard testimony

from the doctor who treated K.P. in the hospital, the medical examiner, and a

forensic anthropologist. All three

doctors testified that K.P.’s injuries were not accidental or consistent with a

short fall. K.P.’s father testified that

K.P. acted normally the night before she was injured, and various relatives and

friends testified that K.P. did not have bruises when she returned to Perkins

and Bearnth’s care after staying with her mother a few days earlier.

The

defense presented testimony from several witnesses who described Bearnth’s care

and demeanor with K.P. and the other children.

Dr. Emily Ward testified as an expert and contradicted the conclusions

of the other three doctors that a short and accidental fall could not have

caused K.P.’s complex skull fracture.

Bearnth herself also testified that K.P.’s injuries were the result of

an accidental fall from the toilet.

The

jury found Bearnth guilty of felony murder and assessed punishment. Bearnth filed a motion for new trial,

asserting that the behavior of several CPS employees present at trial and the

exhibition presented by K.P.’s uncle across the street from the court house

intimidated the jurors and witnesses.

The trial court overruled the motion by operation of law.

Sufficiency

of the Evidence

In her first issue, Bearnth contends

the evidence is legally and factually insufficient to support her felony murder

conviction. A defendant commits felony murder if she “commits or attempts to

commit a felony, other than manslaughter, and in the course of and in

furtherance of the commission or attempt, or in immediate flight from the

commission or attempt, [she] commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann . §

19.02(b)(3). The underlying felony

offense in this case is injury to a child.

See Tex. Penal Code Ann . § 22.04.

A. Standard of Review

This court reviews sufficiency-of-the-evidence challenges

applying the same standard of review, regardless of whether an appellant raises

a legal or a factual sufficiency challenge. See Ervin v. State ,

331 S.W.3d 49 , 52–54 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) . This standard of review is the standard

enunciated in Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781,

2789 (1979). See Brooks v. State , 323 S.W.3d 893, 912 , 927–28 (Tex. Crim. App. 2010) . Under

this standard, evidence is insufficient to support a conviction if, considering

all the record evidence in the light most favorable to the verdict, no rational

fact-finder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Laster v. State , 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the

record contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense, or (2) the evidence conclusively establishes a

reasonable doubt. See Jackson , 443 U .S. at 314, 320, 99 S. Ct. at

2786, 2789 . The

sufficiency-of-the-evidence standard gives full play to the responsibility of

the fact-finder to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes the

fact-finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that resolution is rational. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 .

B. Evidence of Felony Murder

Three medical experts opined

that K.P.’s injuries could not have been caused by a short or accidental

fall. Dr. Ezekiel Salinas, K.P.’s

treating physician, described the injuries as the result of a “violent force”

and consistent with her hitting, being hit with, or being pushed into a blunt object. He stated that the fracture on the side of

her head was significant enough that she would not have been conscious for very

long after the injury. He also testified

that Bearnth’s story about K.P. falling in the backyard was inconsistent with K.P.’s

injuries; she had a black eye but no scrapes or abrasions.

Dr. Kathryn Haden-Pinneri

performed the autopsy on K.P. She determined

that the injury to the side of K.P.’s head caused her death. She also testified that the severity of

K.P.’s skull fracture was inconsistent with a three-foot-tall child standing in

the bathtub and falling, or sitting on the toilet and falling, because there

was not enough force from that height to cause such a fracture. Dr. Haden-Pinneri did not believe K.P. slipped

on the wet bathroom floor because the doctor observed bruises covering K.P.’s entire

body, instead of significant bruising on only one side. She counted 72 bruises on K.P.’s body and

testified that a short fall would not cause that degree of bruising. She agreed with Dr. Salinas that Bearnth’s

story about K.P. falling in the backyard did not explain K.P.’s black eye and

that a particular bruise on K.P.’s hip was unlikely to have been caused by an accident. According to Dr. Haden-Pinneri, the fracture

to the back of K.P.’s head appeared to be healing and therefore was older than

the injury to the side of her head.

Based on her findings, Dr. Haden-Pinneri determined that the manner of K.P.’s

death was homicide as a result of blunt force trauma to the head.

Dr.

Haden-Pinneri consulted with a forensic anthropologist regarding K.P.’s

injuries. Dr. Jennifer Love, who

specializes in the study of bones and fractures, testified that the fracture to

the back of K.P.’s head occurred one or two weeks before the fracture to the

side of her head. She disagreed that the

fracture to the side of K.P.’s head was accidental. She testified that the injury was caused by

the skull hitting a blunt object with a “significant force greater than [a]

typical fall,” regardless of whether the object was swung or K.P. was pushed

into the object. Finally, Dr. Love

testified that three “red flags” for child abuse were all present with K.P.—the

location of the fracture, the type of fracture, and the number of

fractures.

In

addition to the testimony of the State’s medical experts, the jury heard

testimony regarding K.P.’s physical state from various eyewitnesses. Several paramedics testified to the number of

bruises on K.P.’s body, that some appeared to be partially healed, that the

bruises did not appear to be the “usual kid-falling bruises,” and that they

were not accompanied by the scraped and bruised knees common with a child who

frequently falls. Two paramedics

testified that some of the bruises on K.P.’s back and legs resembled handprints

and that the bruises around her mouth were the size of fingertips.

The State presented testimony

showing that Bearnth’s explanation of K.P.’s injuries changed over time. One paramedic testified that Bearnth recounted

that she was bathing K.P. when the child fell and hit her head in the

bathtub. An officer testified that she

heard Bearnth tell the same story to a friend later at the scene. Bearnth told another paramedic that K.P. had

suffered from diarrhea for several days, that she was bathing K.P. after the

child had defecated on the bathroom floor, that K.P. was not acting right and

“playing possum” in the bathtub, and that the child fell when Bearnth took her

out of the tub. She did not mention that

K.P. fell from the toilet.

Officer Pool, who was in charge of

the police investigation, interviewed Bearnth in his patrol car at the

scene. Bearnth told him that K.P. had

defecated on the bathroom floor and was sitting on the toilet as Bearnth

cleaned the bathroom. Bearnth left the

room briefly to remove a basket and returned to find K.P. lying face-up on the

floor, having hit her head on the bathtub and the floor. A social worker who interviewed the family at

the hospital testified that Bearnth told her K.P. fell from the toilet when

Bearnth removed a basket from the room.

Bearnth’s explanation of the other

bruises on K.P.’s body also changed over time.

At one point, Bearnth told a CPS worker that she had no explanation for

the bruises on K.P.’s arms. Two weeks

later, Bearnth told another CPS worker that K.P. was bruised when she returned

from her weekend visit with her mother.

But the jury heard testimony from various family members and friends who

stated K.P. was not bruised and acted normally when she returned from spending

the weekend with her mother only two days before her injury. Perkins also testified that he did not see

any bruises on K.P., other than her black eye, the night before her injury and

that she behaved normally.

The record also indicates that

Bearnth was the only adult present at the time of the injury; there is no

evidence that anyone else was in the bathroom with K.P.

Bearnth’s contends that (1) the

paramedics inaccurately relayed her explanation of the accident, (2) her

medical expert negated the testimony of the State’s three doctors, (3) the

three doctors further acknowledged that their conclusions could be wrong, and (4)

no one advanced a clear theory about what happened or linked the bruises to

Bearnth. The jury, as the sole judge of

the credibility of the witnesses and the weight to be given their testimony, was

free to weigh Bearnth’s testimony and her expert’s opinions against the State’s

evidence. See Clayton , 235 S.W.3d at 778 ; Williams v. State , 294 S.W.3d 674, 683

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) . As to Bearnth’s second point,

Dr. Salinas and Dr. Haden-Pinneri acknowledged that some studies indicate that

a complex fracture can occur with a short fall, but stated that those studies did

not contradict their ultimate conclusions about the extent of K.P.’s head

injury. Dr. Salinas iterated that the

studies also state that the more complex the fracture, the less likely the fall

was accidental. Dr. Haden-Pinneri

criticized the studies because they defined a short fall to include a fall from

monkey bars or a swing, and she was unsure of the methodology used. This testimony does not negate either

doctors’ prior testimony.

“[T]he verdict will withstand a sufficiency

challenge as long as the combined and cumulative force of all the circumstances

permits the conclusion that the jury was rationally justified in finding the

defendant guilty of each element of the crime beyond a reasonable doubt.” Williams ,

294 S.W.3d at 683 (holding evidence was sufficient in injury to child case when

medical examiner testified that child’s injuries could not have occurred as

defendant described and were sustained by violent physical abuse at time when defendant

was alone with child). Injury to a child cases particularly depend

on circumstantial evidence because “there is rarely direct evidence of exactly

how the child’s injuries occurred.” Id. “Texas

case law is replete with holdings that when an adult defendant has had sole

access to a child at the time its injuries are sustained, the evidence is

sufficient to support a conviction for injury to a child, or murder if the

child dies.” Garcia v. State , 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet.

ref’d).

The jury would have been

rationally justified in concluding Bearnth caused the injury to K.P. as a basis

for felony murder given the testimony that K.P.’s injuries required more force

than a short fall, that the effects of the injury would have been quickly

apparent, and that Bearnth was the only adult in the house. See

Williams , 294 S.W.3d at 683 . Bearnth’s

changing narrative of how K.P. fell is further circumstantial evidence of

guilt. See Kemmerer v. State , 113 S.W.3d 513, 515 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d) (holding evidence that child’s injury required more force

than defendant’s explanation of short fall and jury could have viewed

defendant’s changing explanations as evidence of guilt). We hold the evidence is sufficient to support

the jury’s finding of felony murder through injury to a child. See

Williams , 294 S.W.3d at 683 .

We overrule Bearnth’s first issue.

Motion

to Quash Indictment

In

her second, third, and fourth issues, Bearnth argues that the trial court erred

in denying her motion to quash the State’s indictment because (1) the offenses

of felony murder and injury to a child are in pari materia , (2) injury to a child is assaultive conduct that

cannot provide the underlying felony in a felony murder prosecution, and (3) the

timing, emotional nature of this case, and limited evidence indicate that her

conviction was motivated by prosecutorial vindictiveness.

A. Standard of Review

“An issue raised by an indictment may present a question of law.” Hollin

v. State , 227 S.W.3d 117, 120 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d). The question is subject to de

novo review when its resolution does

not require an evaluation of the credibility and demeanor of a witness. Id.

B.

Pari

Materia

In her second issue, Bearnth complains that she should have been

prosecuted for the specific offense of injury to a child, not the general

offense of felony murder, because the provisions of the Penal Code setting

forth those offenses are in pari materia . Pari

materia is a settled rule of statutory interpretation: “statutes that deal with the same general

subject, have the same general purpose, or relate to the same person or thing

or class of persons or things, are considered to be in pari materia though they

contain no reference to one another, and though they were passed at different

times or at different sessions of the legislature.” Azeez

v. State , 248 S.W.3d 182, 191 (Tex. Crim. App. 2008) (quoting Cheney v. State , 755 S.W.2d 123, 126

(Tex. Crim. App. 1988)); see T ex. Gov’t Code Ann. § 311.026 (West

2005) (codification of doctrine). The

rule applies “where one statute deals with a subject in comprehensive terms and

another deals with a portion of the same subject in a more definite way.” Azeez ,

248 S.W.3d at 192 (quoting Cheney ,

755 S.W.2d at 126 ). Where a general statute and a more detailed

enactment are in conflict, the latter will prevail unless it appears the

legislature intended to make the general act controlling. See Tex. Gov’t Code Ann. § 311.026(b); Cheney , 755 at 126.

Two penal provisions are in pari materia “where one provision has broadly defined an offense,

and a second has more narrowly hewn another offense, complete within itself, to

proscribe conduct that would otherwise meet every element of, and hence be

punishable under, the broader provision.

In the case in which the special statute provides for a lesser range of

punishment than the general, obviously an ‘irreconcilable conflict’ exists, and

due process and due course of law dictate that an accused be prosecuted under

the special provision, in keeping with presumed legislative intent.” Mills

v. State , 722 S.W.2d 411, 414 (Tex. Crim. App. 1986).

To determine whether two statutes are in pari materia , we consider four factors: whether the statutes (1) are contained in the

same legislative act, (2) require the same elements of proof, (3) involved

different penalties, and (4) were clearly written to achieve the same objective. Hollin ,

227 S.W.3d at 121 (citing Burke v. State ,

28 S.W.3d 545, 547 (Tex. Crim. App. 2000)).

Similarity of purpose or object is the most important factor. See Hollin ,

227 S.W.3d at 121 .

This appeal involves the broad offense of felony

murder and the “more narrowly hewn” offense of injury to a child. See Tex. Penal Code Ann . §§ 19.02(b)(3),

22.04. The “felony murder” statute

provides that a defendant commits murder when she commits a felony other than

manslaughter and, during the course of its commission, commits an act clearly

dangerous to human life that causes the death of an individual. Tex.

Penal Code Ann. § 19.02(b)(3). A

defendant is guilty of “injury to a child” if she “intentionally, knowingly,

recklessly, or with criminal negligence, by act or intentionally, knowingly, or

recklessly by omission, causes to a child . . . (1) serious bodily injury; (2)

serious mental deficiency, impairment, or injury; or (3) bodily injury.” Tex.

Penal Code Ann . § 22.04(a).

The indictment alleged that Bearnth committed or

attempted to commit “the felony offense of injury to a child by unlawfully,

intentionally, knowingly, recklessly and with criminal negligence causing

bodily injury” and, “while in the course of and furtherance of the commission

of and attempt to commit said offense, [Bearnth] did commit and attempt to

commit an act clearly dangerous to human life.”

The injurious or “clearly dangerous” act allegedly commited by Bearnth

was (1) striking K.P.’s head with a blunt object, an unknown object, or her

hand or (2) causing K.P.’s head to strike a blunt or unknown object.

The trial court’s charge tracked the language in the

indictment and instructed the jury to find Bearnth guilty of felony murder if

she “unlawfully, intentionally, knowingly, recklessly or with criminal

negligence caus[ed] bodily injury to” K.P. by causing her head to strike a

blunt object or by striking her head with a blunt object and, “while in the

course of and furtherance of the commission or attempt to commit said offense

did commit or attempt to commit an act clearly dangerous to human life” by

causing K.P.’s head to strike a blunt object or by striking her head with a

blunt object. The jury found Bearnth

guilty of felony murder, but did not answer whether it found her guilty of injury

to a child by “intentionally or knowingly causing bodily injury to [K.P.].”

Applying the four factors

listed above, we first note that felony murder and injury to a child appear in

the Penal Code under different chapters—felony murder in chapter 19, titled

“Criminal Homicide,” and injury to a child in chapter 22, titled “Assaultive

Offenses.” While both chapters 19 and 22

are contained in title five, “Offenses Against the Person,” the severity and

type of offense vary between the two chapters.

The chapter 22 offenses result in the death of the complainant, whereas

the chapter 19 offenses are assaults.

The Court of Criminal Appeals has noted that statutes featured in the

same title, but in different chapters, are not necessarily in pari materia. See Mills , 722 S.W.2d at 416 (holding

statutes for theft and securing execution of document by deception not in pari materia even though both appear in

same title of Penal Code); see also

Roberson v. State , No. AP-74671, 2002 WL 34217382 , at *11–12 (Tex. Crim.

App. Jun. 20, 2007) (mem. op., not designated for publication) (noting capital

murder and injury to a child from different legislative acts and are not in pari materia though both appear in

different chapters under same title).

Second, felony murder and injury to a child do not

require the same elements of proof.

Section 22.04 is limited to offenses against a specific class of

complainants considered especially vulnerable—children, the elderly, and the

disabled. See Tex. Penal Code Ann .

§ 22.04. In contrast, felony murder

requires proof of an underlying felony regardless of the identity of the

complainant or the type of felony. See id. § 19.02(b)(3). Felony murder does not require any mental

state beyond that required for the commission of the underlying felony. Lomax

v. State , 233 S.W.3d 302 , 306–07 (Tex. Crim. App. 2007); see Burke , 28 S.W.3d at 549 (holding

elements for aggravated assault with serious bodily injury and intoxication

assault too dissimilar to be in pari

materia because intoxication assault requires proof of intoxication and no

mental state and aggravated assault requires proof that, regardless of

intoxication, defendant acted intentionally, knowingly, or recklessly). More importantly, felony murder requires

proof that the defendant caused the death of the complainant, whereas injury to

a child only requires proof of serious bodily injury; serious mental

deficiency, impairment, or injury; or bodily injury. Compare

Tex. Penal Code Ann . §

19.02(b)(3), with id. §

22.04. Thus, the conduct proscribed in

the “injury to a child” statute would not meet every element of the offense

under the “felony murder” statute.

Third, felony murder and injury to a child involve different

penalties. Felony murder is a first

degree felony punishable by five years to life in prison. See Tex. Penal Code Ann . §§ 12.32, 19.02(c)

(West 2011). In contrast, as indicted

and charged in this case, injury to a child may be a felony in the first,

second, or third degree or a state jail felony, depending on the defendant’s

mental state and the circumstances of the offense. See id.

§ 22.04(e)–(g) (explaining that degree of felony is coordinate with

defendant’s mental state). The available

punishment for injury of a child ranges from 180 days to life in prison. See id.

§§ 12.32–12.35 (West 2011).

Finally, we cannot say the

“felony murder” and “injury to a child” statutes were written to achieve the

same purpose. By proscribing the conduct

that constitutes “injury to a child” under section 22.04, the legislature sought

to protect a specific class of individuals considered particularly vulnerable

to injury and exploitation. See Ybarra v. State , No. 03-06-00685-CR,

2008 WL 2468706 , at *4 (Tex. App.—Austin June 18, 2008, pet. ref’d) (mem. op.,

not designated for publication) (stating section 22.04 does not have same

purpose as Code of Criminal Procedure art. 42.12, § 3g(a)(2) because “the

former is designed to protect children from serious bodily injury while the

latter is designed to deter the use of a deadly weapon in the commission of any

felony offense.”). The felony murder statute,

however, serves the general purpose of imposing criminal responsibility for

death and preventing homicide by deterring, punishing, and incapacitating “persons

who commit felonious acts that are ‘clearly dangerous to human life,’” whether

or not those acts are against a child. See Hollin , 227 S.W.3d at 122 (holding

that felony murder statute “encompasses the purpose of the intoxication

manslaughter statute, as well as other felonies, and goes beyond that specific

purpose”). “When you embark upon an

inherently dangerous criminal project, you are responsible for the deadly

consequences that result from that felonious conduct.” Lawson

v. State , 64 S.W.3d 396, 398 (Tex. Crim. App. 2001) (Cochran, J.,

concurring). Consequently, the

objectives of the “felony murder” and “injury to a child” statutes are not so

closely related so as to justify interpreting them together. See

Hollin , 227 S.W.3d at 122 ; Ybarra ,

2008 WL 2468706 , at *4.

Because our analysis leads us to conclude that injury

to a child under section 22.04 and felony murder under section 19.02(b)(3)

involve different penalties, are in different chapters of the Penal Code,

require different elements of proof, and are not intended to achieve the same

objective, we hold these statutes are not in pari materia . See Hollin , 227 S.W.3d at 122 .

We overrule Bearnth’s second issue.

C. Underlying Felony

In her third issue, Bearnth asserts that a felony murder conviction will

not lie when the underlying felony is injury to a child. Only manslaughter and lesser-included

offenses of manslaughter, however, are excluded from felony murder; “[t]he

offense of ‘injury to a child’ can qualify as an underlying felony in a felony

murder prosecution.” Contreras v. State , 312 S.W.3d 566, 584

(Tex. Crim. App. 2010) (citing Johnson v.

State , 4 S.W.3d 254, 258 (Tex. Crim. App. 1999)); see Garrett v. State , 573 S.W.2d 543 , 545–46 (Tex. Crim. App.

1978).

We overrule Bearnth’s

third issue.

D. Prosecutorial

Vindictiveness

In her fourth

issue, Bearnth challenges the trial court’s denial of her motion to quash the

indictment “without a hearing when there was clearly an issue of prosecutorial

vindictiveness at hand . . . .” She

asserts the record establishes that the State amended the indictment to include

a felony murder charge in retaliation for her exercise of her right to a trial

by jury. We disagree.

Bearnth’s fourth issue is drafted so

as to complain about the trial court’s failure to conduct a meaningful hearing

on the issue of prosecutorial vindictiveness.

Bearnth suggests, as an alternative form of relief, that the Court

should abate and remand this case for “findings of fact and conclusions of law

or a hearing on this issue.” We note,

however, that the reporter’s record includes a hearing at which both Bearnth’s

motion to quash the indictment and the State’s motion to amend the indictment

were presented. The hearing spans more

than 20 pages of the reporter’s record.

At no time during the hearing did the trial court limit Bearnth’s

presentation of her motion and arguments, and Bearnth did not object to the

manner in which the hearing was conducted.

Neither did she request a continuance or an opportunity for further

hearing on the issue of prosecutorial vindictiveness. Given these circumstances, Bearnth’s

complaint about the lack of a meaningful opportunity to be heard is without

merit.

Construing

Bearnth’s fourth issue as a complaint that the trial court erred in denying her

claim of prosecutorial vindictiveness, we conclude that Bearnth has not

established she is entitled to relief.

“Courts must presume that a criminal prosecution is undertaken in good

faith and in nondiscriminatory fashion to fulfill the State’s duty to bring

violators to justice.” Neal v. State , 150 S.W.3d 169, 173 (Tex.

Crim. App. 2004). A

defendant bears the burden of proving, by a preponderance of the evidence, a

claim of prosecutorial vindictiveness. Ex parte Legrand , 291 S.W.3d 31, 41

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Bearnth asserts that “the timing [of the

amended indictment], the emotional nature of the charged crime, the upsetting

surrounding facts of a tragic death of a child, and the sparse evidence against

[her] all weigh heavily in favor of a presumption that this was a case of

prosecutorial vindictiveness.” Bearnth,

however, has not cited a case, and we have found none, in which similar

circumstances gave rise to a presumption of vindictiveness. The motion to amend the indictment was filed

shortly before a trial setting, but nothing else in the record suggests that

the prosecutor had an improper motive. The

prosecutor informed the trial court that she filed the motion to amend in

response to Bearnth’s motion to quash and to cure deficiencies pointed out in

that motion. On this record, we cannot

conclude that the trial court erred.

We overrule Bearnth’s fourth issue.

Motion for New Trial Hearing

In her fifth

issue, Bearnth contends the trial court erred by allowing her motion for new

trial to be overruled by operation of law.

She argues that she was entitled to a hearing on the motion because it

raised issues of jury intimidation that could not be determined from the record—namely,

whether the jurors were influenced by CPS workers sitting in attendance at trial

or by a demonstration outside the court house.

The State responds that Bearnth failed to present her motion to the

trial court in accordance with the Rules of Appellate Procedure. See Tex. R. App. P. 21.6.

A

defendant has a right to a hearing on a motion for new trial when the motion

raises matters that cannot be determined from the record. Reyes

v. State , 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). The trial court, however, need not conduct a

hearing if the motion for new trial is not timely presented. See Tex. R. App. P. 21.6 (requiring

defendant to present motion for new trial to trial court within 10 days of

filing); see also Rozell v. State ,

176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (noting that right to hearing on

motion for new trial is not absolute). Presentment

requires a defendant to do more than simply file the motion for new trial with

the trial court clerk. “The presentment

must be directed to the trial court or another authorized to act on behalf of

the trial court.” Carranza v. State , 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). This requirement puts “the trial court on

actual notice that a defendant desires the trial court to take some action on

the motion for new trial such as a ruling or a hearing on it.’” Stokes

v. State , 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (quoting Carranza , 960 S.W.2d at 78 ); see Butler v. State , 6 S.W.3d, 636 , 639 - 40

(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on reh’g) (discussing

history of motions for new trial and presentment requirement in criminal cases).

Bearnth

timely filed her motion for new trial in this case, but the record does not

contain any ruling on the motion, a proposed order containing the trial judge’s

signature or notation, or a docket entry evidencing a hearing on the

motion. The only suggestion of

presentment in the record is the prayer in Bearnth’s motion requesting an

evidentiary hearing and a “Certificate of Presentment” stating that the motion

“was presented to the court within ten days of filing as required under the

rules.” Both documents, however, are

signed only by Bearnth’s attorney; they do not include any notation from the trial

judge or other court personnel. We cannot

conclude that the presentment requirement was satisfied where the record shows

only defense counsel’s statement that the motion had been presented, but does

not indicate that counsel in fact communicated the request for a hearing in a

timely manner to a person capable of acting on it. See Tex. R. App. P. 21.6; Hiatt v. State , 319 S.W.3d 115 , 122 - 23

(Tex. App.—San Antonio 2010, pet. ref’d) (holding that certificate of

presentment signed by defense counsel was insufficient evidence of presentment);

Longoria v. State , 154 S.W.3d 747,

762 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (same); Oestrick v. State , 939 S.W.2d 232, 235

(Tex. App.—Austin 1997, pet. ref’d) (same);

see also Burrus v. State , 266 S.W.3d 107, 115 (Tex. App.—Fort Worth 2008,

no pet.) (holding that certificate of presentment and docket entry noting

filing of motion were insufficient to establish presentment).

At oral argument,

Bearnth’s appellate counsel stated that he had hand delivered the motion to the

trial judge in her chambers and requested a hearing, but then encountered

difficulty in obtaining a hearing or a record of his request. However, the record before us contains no

such information. We are sensitive to

the realities of practice for lawyers who attempt to obtain the signature of

the heavily-burdened trial judges. Nevertheless,

under well-established law, it was Bearnth’s burden to provide us with a record

that shows she properly presented the motion. See Tex. R. App. P. 21.6. Although it is not required, one practice is

to personally deliver the motion to the trial judge in open court and on the

record. See Gardner v. State , 306 S.W.3d 274, 305 (Tex. Crim. App. 2009)

(noting that documentary evidence or notation that trial judge personally

received copy of motion could substitute for personal visits to trial courts by

attorneys). Other ways to achieve

presentment are by obtaining the trial court’s ruling on the motion for new

trial, by obtaining the trial judge’s signature or notation on the proposed

order, or by setting a hearing date on the docket. See

Carranza , 960 S.W.2d at 79 - 80. Another option, as recognized by this court,

is to schedule a hearing through the trial court’s coordinator. Butler ,

6 S.W.3d at 640 (determining presentment was shown where record showed that

defense counsel informed court coordinator that motion was filed and asked that

it be set for hearing, court coordinator entered a hearing date in Justice

Information Management System (J.I.M.S.), and, when the hearing was

rescheduled, court coordinator’s initials appeared on “agreed setting” form on

line designated “Approved by Court”).

But, because none of these things are apparent on this record, we cannot

hold that Bearnth timely presented her motion for new trial or that the trial

court abused its discretion in failing to hear the motion. [2]

We overrule Bearnth’s fifth

issue.

Conclusion

Having

determined that the evidence is legally sufficient to support Bearnth’s

conviction and that the trial court did not err in denying Bearnth’s motion to

quash the indictment or in allowing her motion for new trial to be overruled by

operation of law, we affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel consists of Justice Jennings, Justice Sharp,

and Justice Brown.

Justice Jennings, joining the majority opinion and concurring

separately.

Justice Sharp, concurring without opinion.

Publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. §§

19.02(b)(3), 22.04 (West 2011).

[2]

Bearnth’s appellate counsel also

suggested during oral argument that another “practicality” may justify

modification of the presentment requirement:

the trend towards the electronic filing of documents in trial courts. It is not our role as an intermediate appellate

court to determine changes of law, but we see no reason to abandon the

presentment requirement. The presentment

requirement has as its objective notice to the trial court that some action is

required. See Stokes , 277 S.W.3d at 21 . That objective is not satisfied simply

because a document is filed by electronic submission, rather than by paper

copy.