Genny Granados v. State

Opinion issued

October 20, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00547-CR

———————————

GENNY GRANADOS , Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the 174th

District Court

Harris County, Texas

Trial Court Case No. 1260935

MEMORANDUM

OPINION

A

jury found appellant, Genny Granados, guilty of the offense of felony murder. [1] The jury assessed appellant’s punishment at

50 years in prison. In six issues,

appellant asserts as follows: (1) the State improperly prosecuted her under the

felony murder doctrine; (2) she was denied effective assistance of counsel at

trial; and (3) the evidence is insufficient to support the judgment of

conviction.

We

affirm.

Background

On

February 9, 2008, appellant called her neighbor, Oscar Lopez, complaining that

she had stomach pain. After about three

hours, Lopez drove appellant to Memorial Hermann Southwest Hospital. When they arrived, Lopez got a wheelchair from

the hospital and took appellant into the emergency room. They were greeted by a hospital clerk, Sandra

Richards. Richards commented that appellant

was pregnant. Appellant responded that

she was not pregnant. Richards then sent

appellant to the waiting room. After a

short time, appellant asked Lopez to take her to the restroom.

After 10 to 15 minutes, Lopez

became concerned and knocked on the bathroom door. Appellant told Lopez to wait. After another five or ten minutes had passed,

appellant opened the door. Lopez saw blood on the bathroom floor, walls, and on

appellant’s clothing. Lopez became

frightened and returned appellant to the waiting room.

The

hospital housekeeper, Patricia James, was paged to clean the bathroom. It took James approximately 20 minutes to

clean the blood from the walls, floor, and sink. James also emptied the bathroom’s trash

can. James then cleaned two other nearby

restrooms.

James saw appellant near the

restrooms. She noticed that there was a

blood trail from the wheels of appellant’s wheelchair.

James

took the trash bags that she had collected from the restrooms to the hospital

“soil room” to dispose of them. She

noticed that the bag that she had collected from first bathroom felt

heavy. She lifted the bag from the

bottom and felt what she believed to be “little bones.” James contacted another housekeeper to feel

the bag as well. The women then

contacted the emergency room charge nurse, Gwen Lantz. The nurse opened the trash bag and discovered

a baby boy covered in bloody paper towels.

Nurse

Lantz detected that the baby had a faint heartbeat. She took the baby to one of the emergency

room doctors, who began resuscitation.

The baby was transported to another hospital in the medical center for

care.

A

hospital employee, Carlos Rozan, who speaks fluent Spanish, was asked by

medical personnel to speak to appellant, who is Spanish-speaking. Although she denied it initially, appellant admitted

that she had given birth at the hospital.

When Rozan inquired why appellant had not notified medical personnel that

she was in labor, appellant replied that she already had two children, she did not

want another child, and had no intention of keeping the baby.

Appellant

was admitted to the hospital. An exam

revealed that she had recently given birth.

Officer

D. Morelli of the Houston Police Department was dispatched to the hospital and

spoke with appellant. Appellant told Officer

Morelli that she had given birth to a baby in the bathroom. She stated that she had cut the umbilical cord

with scissors that she had in her purse. Appellant told the officer that she had grabbed

the trash bag out of the trash can, removed all of the trash, put the baby in

the bag, placed the trash on top of the baby, tied up the bag, and placed it

back in the trash can.

The

baby boy, named David, lived 10 days at the hospital before he died. An autopsy determined that the cause of his

death was “complication of hypoxic encephalopathy due to hypovolemic shock with

environmental exposure subsequent to neglect and abandonment afterward

unassisted term delivery.” The

assistance medical examiner would testify at trial “that means that because the

baby had been unattended, the cord had been cut, and the baby had been left out

with no care provided, as well as medical assessment, that the baby went into

shock. And because of the shock, the

brain lost oxygen and several of his organs failed and he contracted an

infection which ultimately took his life.”

The assistant medical examiner agreed that, besides the effects of the

neglect and abandonment, David appeared otherwise to be a normally developed,

healthy baby. The doctor stated that the

autopsy revealed no other medical condition or abnormality that would explain David’s

death.

Appellant

was indicted for the offense of felony murder.

The indictment alleged as follows:

Genny Granados, hereafter styled the Defendant,

heretofore on or about FEBRUARY 9, 2008, did then and there unlawfully,

intentionally and knowingly commit and attempt to commit the felony offense of

ABANDONING A CHILD by having care, custody and control of BABY BOY GRANADOS

a.k.a. DAVID GRANADOS, a child younger than fifteen years of age and hereafter

called the Complainant, and did intentionally abandon the Complainant in a

TRASH RECEPTACLE under circumstances that exposed the Complainant to an

unreasonable risk of harm and without the intent to return for the Complainant,

and the Defendant did not voluntarily deliver the Complainant to a designated emergency

infant care provider under Section 262.302 of the Texas Family Code and while

in the course of and furtherance of the commission and attempted commission of

the felony offense of ABANDONING A CHILD did commit an act clearly dangerous to

human life, to wit: FAILING TO SEEK PROPER MEDICAL CARE FOR THE COMPLAINANT FOLLOWING THE

COMPLAINAN’S BIRTH AND BY PLACING THE COMPLAINANT IN A TRASH RECEPTACLE

FOLLOWING HIS BIRTH and did thereby cause the death of the Complainant.

The jury found appellant

guilty as charged in the indictment and assessed punishment at 50 years in

prison. This appeal followed.

Murder Predicated on Felony Offense

of Abandoning a Child

In

her first issue, appellant asserts, “The State cannot use the underlying

offense of abandoning a child to ‘bootstrap’ its prosecution into one for

felony murder . . . .” Appellant argues

that the act forming the offense of abandoning a child — leaving newborn David in the trash

can without medical care — is the same act relied on by the State to prove

appellant’s commission of “an act clearly dangerous to human life,” a required element

of felony murder. See Tex. Penal Code Ann .

§ 19.02(a)(3) (Vernon 2011). Appellant

asserts, “There must be a showing of felonious criminal conduct and an act

clearly dangerous to human life that causes the death of an individual.” In short, appellant contends that the act

constituting the underlying felony and the act “clearly dangerous to human life”

cannot be the same act. [2]

To preserve a complaint for

our review, a party must have presented to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling if

they are not apparent from the context of the request, objection, or motion. Tex. R.

App. P. 33.1(a)(1); Layton v.

State , 280 S.W.3d 235 , 238–39 (Tex. Crim. App. 2009). As the State points out, appellant did not object

in the trial court that the offense of child abandonment cannot serve as the

underlying offense for felony murder. Thus,

the issue has not been preserved for our review. See Tex. R. App. P. 33.1(a)(1). If an issue has not been preserved for appeal, we should not

address it. See Ford v. State , 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Accordingly, we overrule appellant’s first issue.

Ineffective Assistance of

Counsel

In

her second, third, and fourth issues, appellant contends that she received

ineffective assistance of counsel at trial.

A. Applicable Legal Principles

The Sixth Amendment to the

United States Constitution guarantees the right to reasonably effective

assistance of counsel in criminal prosecutions. See U.S. Const. amend. VI. To show ineffective assistance of counsel, a

defendant must demonstrate both (1) that his counsel’s performance fell below

an objective standard of reasonableness and (2) that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington , 466 U.S. 668 ,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State , 159 S.W.3d 98 , 101–02 (Tex. Crim. App. 2005). A failure to make a showing under either prong

defeats a claim of ineffective assistance of counsel. Rylander

v. State , 101 S.W.3d 107 , 110–11 (Tex. Crim. App. 2003).

An appellant bears the

burden of proving by a preponderance of the evidence that his counsel was

ineffective. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness. Id . at 814. We presume that a counsel’s conduct falls

within the wide range of reasonable professional assistance, and we will find a

counsel’s performance deficient only if the conduct is so outrageous that no

competent attorney would have engaged in it. Andrews ,

159 S.W.3d at 101 .

B. Analysis

Here, the record shows that appellant’s motion for new trial

did not contain an ineffective assistance of counsel claim.

1. Mitigating

Evidence

In her second issue, appellant

first asserts that counsel was aware of “mitigating evidence” that he failed to

develop and offer during the punishment phase of trial. Specifically, appellant contends that counsel

should have offered evidence showing (1) she suffers from mental illness and (2)

she appeared to be confused and mentally unstable on the night of the baby’s

birth. She points to two post-indictment

competency evaluations performed by a psychiatrist and to her jailhouse medical

records. The competency evaluations,

which are contained in the clerk’s record, indicate that appellant suffers from

mental illness for which she takes medication.

Appellant also points to two

Brady notices from the State disclosing

that an attending doctor and a hospital employee has stated that appellant

exhibited signs of mental instability on the night of the baby’s birth. Appellant asserts that counsel should have

subpeoned the psychiatrist, who performed the competency evaluations, and the witnesses

identified in the Brady notices to

testify regarding appellant’s mental status.

She contends that counsel’s failure to develop and offer this

“mitigating evidence” likely had had a negative effect on her sentencing.

The record is silent

regarding (1) trial counsel’s reasons for not calling the witnesses; (2)

whether the witnesses were available; or (3) what the witnesses’ testimony

would have been. “Counsel’s failure to

call witnesses at the guilt-innocence and punishment stages is irrelevant

absent a showing that such witnesses were available and appellant would benefit

from their testimony.” King v. State , 649 S.W.2d 42, 44 (Tex. Crim.

App. 1983). Appellant has not made such

showing.

In short, appellant has not shown that trial counsel

did not make a sound strategic decision to forego subpoenaing the mental health

witnesses and offering her medical records.

See Lopez v. State , 343 S.W.3d

137 , 143 – 144 (Tex. Crim. App. 2011). We cannot conclude that counsel’s performance

was so outrageous that no competent counsel would have engaged in it. See

id. Accordingly, we overrule appellant’s second issue.

2. Appellant’s Disruptive Conduct

Appellant

contends that counsel failed to render effective assistance because he did not

take appropriate action when she was disruptive during various stages of trial. During voir dire, appellant made an outburst

in Spanish. At the request of defense

counsel, the trial court instructed the venire to disregard appellant’s

outburst. Later, appellant “shot the

finger” at one of the State’s witnesses when the witness identified

appellant. The record reflects that,

following that incident, defense counsel told the trial court that he had

admonished appellant not to engage in disruptive conduct. During the State’s closing argument,

appellant stated, “Fuck you, fuck you” and continued to speak in Spanish,

presumably in earshot of the jury. The

record does not reflect that any objection was made to the outburst.

Appellant

also points out that the record reflects that she removed her headphones,

through which she was receiving a Spanish translation of the proceedings, for a

portion of the trial. The record shows that

a discussion regarding appellant’s removal of her headphones was held outside

the presence of the jury. The record

reflects that trial counsel told appellant that it was important to wear the

headphones.

Appellant

asserts that her counsel should have moved to quash the jury panel after

appellant’s outburst during voir dire.

She contends that trial counsel also should have requested the trial

court to instruct the jury to disregard appellant’s other disruptive courtroom behaviors

and sought a mistrial based on the conduct.

Appellant

has not shown that the trial court would have erred had it denied a request for

an instruction to disregard or a motion for mistrial. See

Vaughn v. State , 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (holding that,

before court will sustain ineffective-assistance claim based on counsel’s

failure to make objection at trial, an appellant must show trial court would

have erred by overruling objection); see

also Mooney v. State , 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (stating,

in effective-assistance context, that counsel is not required to file futile

motions). Appellant’s trial counsel may

have been aware that a trial court is not required to reward a defendant for

engaging in disruptive behaviors during trial.

See Molina v. State , 971

S.W.2d 676, 682 (Tex. App. — Houston [14th Dist.] 1998, pet. ref’d) (holding no

error to deny mistrial when defendant made such repeated outbursts during voir

dire that court ordered him bound and gagged); see also Illinois v. Allen , 397 U.S. 337, 346 , 90 S. Ct. 1057, 1062

(1970) (holding that a defendant cannot be permitted by his disruptive conduct

to avoid being tried on the charges brought against him).

The

State posits that counsel may have made a strategic decision not to request an

instruction to disregard or move for mistrial each time appellant misbehaved

because he did not want to draw further attention to appellant’s antics. In any event, the record is silent regarding

why trial counsel handled appellant’s disruptive behavior in the manner that he

did. Because the record is not developed

on this point, we conclude that appellant has not shown that trial counsel’s

performance fell below an objective standard of reasonableness. See Strickland ,

466 U.S. at 687–88, 104 S. Ct. at 2064 ; see

also Lopez , 343 S.W.3d at 143 – 44.

We

overrule appellant’s second issue.

3. Appointment

of Expert Witnesses

Appellant also asserts that trial

counsel “failed to request that the trial court appoint the defense necessary

defense experts.” Specifically,

appellant contends that trial counsel should have sought appointment of experts

to testify regarding what the effect of appellant’s blood loss and pain may

have had on her mental state on the night that she gave birth.

The

record was not developed in the trial court to show how the medical experts

cited by appellant would have aided her defense. To establish ineffective assistance predicated

on counsel’s failure to present additional evidence, including expert

testimony, appellant must show in the record what evidence was available and

how it would benefit the appellant. See King , 649 S.W.2d at 44 . We will not hold that counsel was ineffective

for failing to request the appointment of an expert when the record does not demonstrate

that the expert would have benefitted appellant’s defense. See Brown

v. State , 334 S.W.3d 789, 803 (Tex. App. — Tyler 2010, pet. ref’d) (“[T]he failure to request

the appointment of an expert witness is not ineffective assistance in the

absence of a showing that the expert would have testified in a manner that

benefitted the defendant.”); Cate v.

State , 124 S.W.3d 922, 927 (Tex. App. — Amarillo 2004, pet. ref’d) (same); see also Teixeira v. State , 89 S.W.3d

190 , 193–94 (Tex. App. — Texarkana

2002, pet. ref’d) (holding appellant did not prove ineffective assistance based

on counsel’s failure to call sexual assault expert to testify regarding likelihood

of reoffending when there was no showing in the record that an expert would

have testified to appellant’s benefit).

Moreover,

the record shows that trial counsel cross-examined two of the State’s medical

witnesses regarding the effect of pain and blood loss on a person’s ability to

think clearly and rationally. One of

these witnesses, the emergency room doctor on duty on the night of incident,

testified that blood loss can affect a person’s mental capacity and ability to

reason. Trial counsel may have taken the

strategic risk that testimony regarding the effects of blood loss and pain would

be more powerful coming from the State’s witnesses than from a hired defense

expert.

“ If counsel’s reasons for his

conduct do not appear in the record and there is at least the possibility that

the conduct could have been legitimate trial strategy, we will defer to counsel’s

decisions and deny relief on an ineffective assistance claim on direct appeal.” Ortiz

v. State , 93 S.W.3d 79 , 88–89 (Tex. Crim. App. 2002). A ppellant has failed to present a

record showing that the lack of defense experts was not the product of a legitimate

strategic decision, and we cannot conclude that counsel’s performance in this

regard was so outrageous that no competent counsel would have engaged in it. See

Lopez , 343 S.W.3d at 143 – 44.

We overrule appellant’s fourth issue.

Sufficiency of the Evidence

In

her fifth and sixth issues, appellant contends that the evidence was legally

and factually insufficient to support her conviction for felony murder.

A. Standard of Review

This Court reviews

sufficiency-of-the-evidence challenges applying the same standard of review,

regardless of whether an appellant presents the challenge as a legal or a

factual sufficiency challenge. [3] See

Ervin v. State , 331 S.W.3d 49 , 53 – 54 (Tex. App. — Houston [1st Dist.] 2010, pet. ref’d) (construing

majority holding of Brooks v. State , 323

S.W.3d 893 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789

(1979). See id . Pursuant to 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 ; In re Winship , 397 U.S. 358,

361 , 90 S. Ct. 1068, 1071 (1970); Laster

v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 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 , 318 n. 11, 320, 99 S. Ct. at 2786 , 2789 n.11; see also Laster , 275 S.W.3d at 518 ; Williams , 235 S.W.3d at 750 .

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 that the fact

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

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

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . In viewing the record, direct and

circumstantial evidence are treated equally; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton ,

235 S.W.3d at 778 . Finally, the

“cumulative force” of all the circumstantial evidence can be sufficient for a

jury to find the accused guilty beyond a reasonable doubt. See

Powell v. State , 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Law of the Offense

Felony

murder is an unintentional murder committed in the course of committing a

felony. Threadgill v. State , 146 S.W.3d 654, 665 (Tex. Crim. App. 2004). More particularly, the Penal Code provides

that a person commits the offense of murder if the person “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, he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.” See Tex. Penal Code Ann. § 19.02 ( a) (3) ( Vernon 2 011). Here,

the indictment identified the act clearly dangerous to human life causing the complainant’s

death as “failing to seek proper medical care for the complainant following the

complainant’s birth and by placing the complainant in a trash receptacle

following his birth and did thereby cause the death of the complainant.”

To

support the offense of felony murder, the State charged appellant with the

underlying felony offense of abandoning a child. Under Penal Code section 22.041, a person

commits the offense of abandoning a child “if having custody, care, or control

of a child younger than 15 years, [she] intentionally abandons the child in any

place under circumstances that expose the child to an unreasonable risk of

harm. Tex.

Penal Code Ann . § 22.041(b) (Vernon 2011). To abandon “means to leave a child in any

place without providing the youth reasonable and necessary care, under

circumstances which no reasonable, similarly situated adult would leave a child

of that age and ability.” Id . § 22.041(a). Penal Code section 22.041 does not apply when

“the actor voluntarily delivered the child to a designated emergency infant

care provider under Section 262.302, Family Code.” Id .

§ 22.041(h). The Family Code

defines a hospital as “a designated emergency infant care provider.” Tex. Fam.

Code Ann. § 262.301 (Vernon 2008).

B. Analysis

In

her fifth issue, appellant generally avers that the evidence was not sufficient

to establish the predicate felony offense of abandoning a child or to establish

that she committed or attempted to commit an act clearly dangerous to human

life that caused David’s death. In her

sixth issue, appellant focuses her sufficiency challenge on the element of

intent, which is necessary to prove the offense of abandoning a child.

To prove the offense of

felony murder, the State must prove the elements of the underlying felony,

including the culpable mental state for that felony, but no culpable mental

state is required for the murder committed. Lomax v.

State , 233 S.W.3d 302 , 306–07 (Tex. Crim. App. 2007). Accordingly, in this case, the State was

required to show that appellant intentionally abandoned David but was not

required to show that appellant intentionally or knowingly caused his death. See id. ;

see also Driver v. State , No. 01–08–00522–CR,

2011 WL 2303871, at *6 (Tex. App.—Houston [1st Dist.] June 9, 2011, no pet h.). Appellant contends that the evidence was

insufficient to show that she intentionally abandoned her baby. “Intent can be

inferred from the acts, words, and conduct of the accused.” Patrick v. State , 906 S.W.2d 481, 487

(Tex. Crim. App. 1995). “A person acts

intentionally, or with intent, with respect to the nature of [her] conduct or

to a result of [her] conduct when it is [her] conscious objective or desire to

engage in the conduct or cause the result.” Tex.

Penal Code Ann. § 6.03(a) (Vernon 2011).

At trial, the evidence

showed that, on the night in question, appellant told her neighbor that she was

in a lot of pain and asked him to take her to the hospital. However, she never told him that she was

pregnant.

Once at the hospital,

appellant did not tell hospital personnel that she was pregnant. When the front desk clerk made a statement to

appellant indicating that she thought that appellant was pregnant, appellant

yelled, “No, I’m not.”

The evidence showed that appellant

went into the hospital restroom where she stayed for 15 to 20 minutes. When her neighbor checked on her in the

restroom, appellant told him to wait.

Appellant gave birth to David in the bathroom. She used a scissors from her purse to cut the

umbilical cord. After giving birth, appellant

removed trash from the restroom trash can, placed the infant inside it, and put

the trash on top of the baby.

The evidence showed that David

remained in the waste can covered with trash while the restrooms were being

cleaned. Although she remained at the

hospital after giving birth, appellant did not notify anyone of David’s presence. As a result, the infant did not receive

medical care until he was retrieved from the trash can.

The evidence showed that

when the baby was found in the trash bag, he was toward the bottom of the bag

and covered with paper towels. The

emergency room charge nurse who helped remove the baby from the trash bag

testified that paper towels were wrapped around the infant in a manner indicating

that someone had made an effort to hide the baby.

When hospital employee Carlos

Rozan began questioning her, appellant was not immediately forthcoming about

whether she had given birth. On further

questioning appellant admitted that she had given birth at the hospital. Rozan testified that, when asked why she had

not told someone about the baby, appellant told him that she already had two children,

she did not want another child, and had no intention of keeping the baby. The evidence also showed that appellant’s

husband had recently left her.

Officer Murillo, who spoke

with appellant at the hospital, testified that appellant admitted to giving birth

in the restroom and to cutting the umbilical cord with scissors she had in her

purse. Appellant told the officer that

she had taken the trash bag out of the trash can, removed all of the trash, placed

the baby in the bag, covered the baby with trash, tied up the bag, and put the

bag back in the trash can.

The

assistant medical examiner testified regarding the cause of David’s death. The doctor testified that “because the baby

had been unattended, the cord had been cut, and the baby had been left out with

no care provided, as well as medical assessment, that the baby went into shock.

And because of the shock, the brain lost

oxygen and several of his organs failed and he contracted an infection which

ultimately took his life.” The medical

examiner did not find any other possible cause of death.

Appellant

specifically argues that the evidence does not show that she intentionally

abandoned David. Rather, she asserts

that the evidence shows that she went to the hospital to give birth and to seek

medical assistance. Appellant contends

that it was the hospital’s negligence that caused her to leave her baby in the

trash can, which resulted in his death.

Appellant cites evidence

showing that the clerk, Sandra Richards, working at the front desk of the

hospital that night knew that appellant was in labor. The clerk gave a video-taped statement to

police, which was admitted into evidence at trial. In the tape, the clerk stated that, when

appellant arrived at the hospital, she knew that appellant was pregnant because

she saw “something coming out” from between appellant’s legs. The clerk stated that she could see that

appellant was in labor and was delivering a baby. Nonetheless, the clerk sent appellant to the

waiting room. Thereafter, appellant left

the waiting room, went to the restroom, gave birth, and left the baby in the trash

can. Appellant contends that she was not

thinking rationally because she had lost a lot of blood and was in a great deal

of pain. She asserts that, had the

hospital staff sent her immediately to the labor and delivery floor of the

hospital, she would not have delivered her baby in the restroom and put him in

the trash can.

While evidence of the

clerk’s actions aided in appellant’s defense, ample evidence, as discussed supra , exists in the record to support

the State’s theory that appellant intentionally abandoned her baby in the trash

can. The evidence shows that, through

her words and her actions, appellant took affirmative steps to conceal her

pregnancy and to conceal David once she placed him in the trash can. Although the evidence showed that appellant

lost blood and reported being in pain that night, appellant cites no evidence

in the record to establish that, at the time of the offense, her blood loss or

pain caused her mental state to be so altered that she was incapable of forming

the requisite intent. To the contrary,

the charge nurse testified that, not long after appellant had given birth,

appellant’s vital signs were stable indicating that she had not lost a

significant amount of blood.

It was the jury’s responsibility

to weigh the evidence pertinent to the element of intent and to draw reasonable

inferences from that evidence. Jackson , 443 U.S. at 319 , 99 S. Ct. at

2789 . We cannot conclude that the jury’s

implied finding that appellant had the intent to abandon her baby is irrational. Rather, it is a reasonable inference that

could have been drawn from the evidence.

Viewing

all the evidence, direct and circumstantial, in the light most favorable to the

jury verdict, we conclude that a rational fact finder could have found, beyond

a reasonable doubt, all of the essential elements of the charged offense of

felony murder. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 . More precisely, the jury could have found, beyond

a reasonable doubt, all of the elements of the offense of abandoning a child,

including intent, and also found beyond a reasonable doubt that, while in the

course of and in furtherance of the commission of the felony offense of

abandoning a child, appellant committed an act clearly dangerous to human life

that caused the David’s death. [4] See Tex. Penal Code Ann. §§ 19.02 ( a) (3), 22.041( b). We hold that the evidence is

sufficient to support the judgment of conviction.

We

overrule appellant’s fifth and sixth issues.

Conclusion

We

affirm the judgment of the trial court.

Laura

Carter Higley

Justice

Panel consists of Justices

Keyes, Higley, and Massengale.

Do not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 19.02 ( a) (3) ( Vernon 2 011).

[2]

In support of this argument, appellant relies on Garrett v. State , 573 S.W.2d 543 (Tex. Crim.

App. 1978). The Court of Criminal

Appeals later disavowed Garrett in Johnson v. State to the extent that Garrett stood for the proposition that,

to prove felony murder, the State must show other felonious criminal conduct besides the underlying felony that caused the

death. 4 S.W.3d 254, 258 (Tex. Crim.

App. 1999). After Johnson , Garrett stands

only for the proposition that a conviction for felony murder under Penal Code

section 19.02(b)(3) cannot be based on the underlying felony of manslaughter or

a lesser included offense of manslaughter.

Id .; see Tex. Pen. Code Ann . §

19.02(a)(3) (providing that a person commits the offense of felony murder if he

“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, he commits or attempts to commit an act

clearly dangerous to human life that causes the death of an individual”). Appellant makes no assertion that the

underlying felony in this case, child abandonment, is a lesser included offense

of manslaughter.

[3] Appellant asserts that this Court has

exclusive jurisdiction pursuant to Article 5, section 6(a) of the Texas

Constitution to review fact questions. See T ex.

Const. art. V, § 6(a). Appellant

urges this court to “uphold its own constitutional powers and review factual

sufficiency under the Clewis standards

. . . .” As pointed out by the State, we

addressed this issue in Ervin v. State ,

331 S.W.3d 49 , 53 – 54

(Tex. App.—Houston [1st Dist.] pet. ref’d).

In Ervin , we held that as an

intermediate court of appeals, we are bound to follow the precedent of the

Court of Criminal Appeals. See id.

As a result, we are bound under the Court of Criminal Appeals’s decision

in Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) to

apply the standard of review enunciated in Jackson

v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979), regardless of

whether an appellant frames her issue as a legal or a factual sufficiency

challenge. See id. Thus, that is the

standard that we apply to appellant’s challenges here.

[4] Moreover, the evidence also supports

the implied finding by the jury that appellant did not deliver David to a designated emergency

infant care provider. See Tex.

Penal Code Ann . § 22.041(h) (Vernon 2011) (providing that statute

defining offense of abandoning a child does not apply when the child is

delivered to a designated emergency infant care provider).