Jennifer H Zarnfaller v. State

Opinion issued July 31, 2018

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00881-CR

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JENNIFER H ZARNFALLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1370846

MEMORANDUM OPINION

A jury found appellant, Jennifer H. Zarnfaller, guilty of the felony offense of

injury to a child,1 and the trial court assessed her punishment at confinement for

eighty years. In thirteen issues, appellant contends that the evidence is legally

1

See TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(1), (e) (Vernon Supp. 2017); TEX.

FAM. CODE ANN. § 151.001 (Vernon 2014).

insufficient to support her conviction and her trial counsel provided her with

ineffective assistance.

We affirm.

Background

Veronica Parga-Lopez, formerly the assistant property manager and a tenant

at the Wimbledon Apartments in Spring, Texas (the “apartment complex”),

testified that in July 2010, appellant lived with her mother in an apartment near

Parga-Lopez. Appellant would often come to see Parga-Lopez in the leasing

office, “boo-hooing, . . . always crying, always depressed, always, . . . hysterical.”

Parga-Lopez would listen to appellant, who would confide in her. At one point,

appellant, while pregnant with the complainant, told Parga-Lopez that “[s]he didn’t

want the [complainant].”

After the complainant’s birth, appellant again told Parga-Lopez that “she

didn’t want the [complainant].” And she specifically asked Parga-Lopez to “take”

the complainant. This caused Parga-Lopez “a lot of concern,” particularly about

appellant’s “ability to mother” the complainant. Parga-Lopez opined that appellant

did not “enjoy[] having [the complainant],” who, she felt, “was a bother” to

appellant.

Parga-Lopez noted that the complainant “was sometimes dirty and smelled

like smoke, like cigarettes.” Appellant “constantly drank” and smoked cigarettes

2

inside her apartment. She was not employed. Her mother, Rona Landon, was the

“only provider” for the family. And appellant and her boyfriend, Vikas Sharma,

spent “most of the time” at home in the apartment with the complainant.

Parga-Lopez explained that she and her daughter, Dora, would occasionally

babysit the complainant. The last time that they watched her, Dora noticed that the

complainant was “not her usual self” and “just laid [sic] there.” 2 She was also

“fussy,” “irritable,” and not smiling. And she “didn’t want to eat” or play. When

Parga-Lopez sought to comfort the complainant by massaging her head, she

noticed that her head was “real soft on the side,” “kind of like how [a] breast feels,

like just a gel.” Alarmed, Parga-Lopez tried to reach appellant and Landon, but

appellant “never came to get” the complainant. When Landon came to pick up the

complainant later that night, Parga-Lopez expressed her concern about the

complainant’s head and demeanor.

Parga-Lopez further testified that thereafter, her concern for the complainant

grew when she noticed that appellant “didn’t come over anymore, didn’t go to the

[leasing] office, . . . [and] just stayed inside.” When Parga-Lopez later spoke to

appellant about the condition of the complainant’s head, appellant responded that

2

Parga-Lopez also noted that on another occasion, appellant “bang[ed]” on the door

to her apartment. When Parga-Lopez opened it, appellant screamed, “I don’t

know what happened.” The complainant “had blood” on her and a cut inside her

mouth and appellant told Parga-Lopez that the complainant had been

“crawling . . . and [then] stood up and fell.”

3

she would “take [the complainant] to the doctor.” Parga-Lopez did not see the

complainant that day, and she opined that appellant was “hiding something.”

Parga-Lopez explained that on the day of the complainant’s death, July 28,

2010, she, while away from her apartment, received a telephone call from the

apartment complex’s property manager, who told her that “something had

happened to” the complainant. When Parga-Lopez arrived home, Dora, who was

crying, told Parga-Lopez that she had been “looking out the window” and heard

appellant “outside screaming,” “My Baby, my baby, my baby.” Dora then saw

emergency medical personnel arrive and take the complainant to a hospital.

Harris County Sheriff’s Office (“HCSO”) Deputy M. Newcomb testified

that on July 28, 2010, he was dispatched to the apartment complex for “a CPR in

progress.” When he arrived, appellant, Sharma, and the complainant were present.

Vivien Miller, a paramedic for Cypress Creek EMS, testified that on July 28,

2010, she was dispatched to the apartment complex in response to a call about a

“cardiac arrest” of an infant. When she arrived, the scene was “complete chaos,”

and she had great difficulty in “determin[ing] if any type of compressions [had

been] done prior to [her] arrival, which is very vital.” According to the

complainant’s family members, she “had been feeling ill all day and . . . resting in

a swing carrier.” When the family members “went to check on her . . . and picked

4

her up,” they discovered that “she was unresponsive and not breathing,” and they

telephoned for emergency assistance.

Miller explained that her examination of the complainant revealed that she

had “no pulse” and was not “breathing whatsoever.” Miller noted that the

complainant had “bruises on her face,” her “little legs” were “so dirty,” and her

“rectum did not look normal.” The complainant’s body temperature was

ninety-four degrees, indicating that she was in “a state of septic shock,” which

would have occurred “over [a period] of days.” This constituted a “red flag” to

Miller because it “indicated that the [complainant] couldn’t have been recently ill

as reported” by her family members.

Miller further testified that despite extensive lifesaving measures

administered by emergency medical personnel, the complainant remained “in

asystole,” meaning “there [was] no -- absolutely no activity of [her] heart, no

muscles in [her] heart [were] moving, . . . [and] no cells in [her] heart muscle itself

[were] working at all.” The complainant, who showed no “signs of life,” was then

transported by ambulance to a hospital, where Miller saw appellant’s mother

“yell[]” at “mak[e] comments toward” appellant.

Dr. Douglas Kasper, the attending physician in the emergency room at the

hospital where the complainant was treated, testified that on July 28, 2010, he

examined the complainant. She was unresponsive, had “no respirations,” had no

5

pulse or “evidence of cardiac activity,” had severe hypothermia, and was dead.

Because the complainant had “no signs of life,” Kasper opined that “nothing else

could be done” for her.

Dr. Kasper noted that when he informed appellant of the complainant’s

death, her “affect was blunted” and “strange.” And she did not seem to “want to

be involved.” Kasper opined that the “story” that appellant had provided to

emergency medical personnel about what happened to the complainant was “not

congruent” with “th[e] massive amount of trauma[]” that the complainant had

sustained. He also stated that he did not believe that whatever had happened to the

complainant was “accidental.”

After he had pronounced the complainant dead, Dr. Kasper ordered a full

scan of the body because of appellant’s “affect” and “things that [he had] found”

during his examination of the complainant. For instance, he found that the

complainant’s skull was “crushed” or “creaking or cracking,” indicating that she

had suffered “skull fractures” and “head trauma.” And her skull “felt mushy,”

“like there was lots of movement.” According to Kasper, “something grave had

occurred.”3

In regard to the full body scan, Dr. Kasper explained that it showed that the

complainant’s head had sustained “multiple skull fractures,” including a

3

Dr. Kasper noted that his examination of the complainant also showed that she had

a “[d]ilated rectum with tears,” which were “old.”

6

“depressed skull fracture,” “in numerous locations”; “hemorrhaging outside the

skull”; an epidural hematoma “all over the scalp,” indicating that “a very large

blood vessel [had been] damaged”; a subdural hematoma, indicating that “bridging

veins [had been] damaged”; and other bleeding “inside the brain itself.” According

to Kasper, the “depressed skull fracture” indicated that “some blunt force trauma”

to the complainant had occurred, and the force used to cause the fracture would

have been significant. He also noted that the complainant had a

pneumomediastinum, meaning “there was air around the heart where it shouldn’t

be”; “a distal tibia/fibula fracture”; a pneumothorax, meaning there was “air

outside of the lung where it’s not supposed to be”; “bruising of the lung”; “gas in

[her] left liver lobe,” potentially indicating a “bowel wall injury”; and a “dilated

rectum.” Kasper opined that the “air around the heart” and the “air outside of the

lung” could have been related to a trauma, including a blunt force trauma. And the

“tibia/fibula fracture” was “consistent with nonaccidental trauma” because “a child

that’s not ambulatory can’t really muster up the acceleration or deceleration to

harm themselves in that way.” Kasper further opined, therefore, that there was a

“high probability” that “somebody had grabbed [the complainant] by the

leg . . . and swung [her] around the room” or grabbed her “by [a] lower extremity

and str[uck] her head against an object.”

7

Deputy J. Ortiz, a member of the HCSO crime scene unit, testified that on

July 28, 2010, he was dispatched to the hospital to photograph the “wounds” found

on the complainant. He noted that she had “readily apparent” “bruising on her

cheek” and chest, and she had a “lemon-size bump” on the right side of her head,

which was “a different color” than the other parts of the complainant’s skin. The

complainant also had “redness behind [her] ear,” which could be “visibly see[n]”

and “some [other] bumps on her head.” Ortiz observed discoloration on her back

and “bruise discoloration” on her lower leg, above the ankle. According to Ortiz,

the complainant’s injuries were “numerous” and “obvious.”

Deputy Ortiz further testified that he spoke to appellant, who showed no

emotion, at the hospital to obtain her consent to take photographs of her apartment.

In appellant’s apartment, Ortiz found several prescription pill bottles with

appellant’s name on their labels. And he saw “lot[s] of empty alcohol bottles” in

the closet in the bedroom.

HCSO Sergeant R. Hunter, the lead investigator assigned to the case,

testified that on July 28, 2010, he was dispatched to the hospital following the

“non[-]accidental” death of the complainant, who was nine-months old. He

determined that appellant, Landon, and Sharma “lived with” and “had access to”

the complainant. When Hunter spoke with appellant at the hospital, he noted that

she was agitated and “appeared to be mad but not upset and crying.” Based on his

8

“professional experience of having dealt with [similar] cases in the past,” Hunter

opined that appellant’s behavior was “quite different than someone that’s

mourning for [her] child.” After speaking to appellant, Landon, and Sharma at the

hospital, they agreed to come to the HCSO station to be interviewed.

During one audio-recorded interview with appellant, admitted into evidence

as State’s Exhibit 92 and played for the jury at trial, Sergeant Hunter noted that she

frequently referred to the complainant as “that baby.” And appellant admitted to

having left the complainant and Sharma alone in her apartment the morning of July

28, 2010 so that she could go to a liquor store, where she purchased “a 1.75-liter

bottle of rum.”

After listening to an audio recording of appellant’s telephone call for

emergency assistance, admitted into evidence as Defense’s Exhibit 1 and played

for the jury at trial, Sergeant Hunter further noted that appellant, on July 28, 2010,

had a “slight slur” in her speech indicating that “there might have been some

drinking” that had occurred that day, or that she “may have been under the

influence of something.” Based on his investigation, Hunter opined that appellant

had “caused the injuries” sustained by the complainant who was dead at the time

that appellant called for emergency assistance.

HCSO Lieutenant W. Kuhlman testified that on July 28, 2010, he was

dispatched to appellant’s apartment following the complainant’s death. He noted

9

that appellant’s apartment was “in desperate need of cleaning” and contained

“really bad living conditions.” In the closet in one of the bedrooms, Kuhlman

found empty “alcoholic beverage containers, beer boxes, as well as rum bottles.”

Lieutenant Kuhlman further testified that he conducted a video-recorded

interview with appellant, admitted into evidence as State’s Exhibit 93 and played

for the jury at trial, during which she stated that the complainant, “a couple [of]

weeks” before her death, had “stopped crawling” and would cry whenever she was

“touched.” Appellant, thinking this “was weird,” further stated that she had also

noticed that, about “a week or two” before the complainant’s death, she had

become “scared to death” of Sharma. And when Sharma would hold her, the

complainant “would scream her head off.” Appellant admitted, however, that she

continued to allow Sharma to care for and bathe the complainant outside of

appellant’s presence.

Dr. Dwayne Wolf, the deputy chief medical examiner at the Harris County

Institute of Forensic Sciences (“HCIFS”), testified that he performed an autopsy on

the body of the complainant. He explained that an external examination of the

complainant revealed contusions and abrasions on the top and back of her head,

behind her ears,4 on her right forehead, on her left cheek, and on both sides of her

4

Dr. Wolf opined that the contusions behind the complainant’s ears were caused by

“impacts to the sides of [her] head.”

10

jaw.5 There was also a hemorrhage near the complainant’s wrist area; contusions

on her upper chest, abdomen, and both upper and lower extremities; and “scabbed

abrasion[s]” on “the right side of [her] chest,” her “central back” area, and “the

outer part of [her right] leg.” According to Wolf, the contusions sustained by the

complainant were caused by “blunt force trauma”6 by being “struck with an

object.”

In regard to the complainant’s skull, Dr. Wolf’s examination revealed that

the contusions on her head were “extensive” and she had “fractures on both sides

of [her] skull.” The fractures on the right side of the complainant’s head looked as

though they had been “healing . . . before the autopsy.” But the fractures on the

left side of her head were “more acute” and had occurred “shortly before [her]

death.” There also appeared to be “depressed fracture[s]” on the complainant’s

head, indicating an “impact of the head against [a] surface” or an “impact of a

surface or object against the head.”

5

Dr. Wolf noted that the complainant’s jaw was fractured, with one fracture being

consistent with “the front of [her] chin” being “impacted.”

6

Dr. Wolf explained that by “blunt force trauma,” he meant that the complainant

had been struck with a “blunt object,” such as “a table, floor, chair, hand, [or]

fist.” And blunt force trauma would have occurred if the complainant’s head had

been struck “against a surface” or if she had been struck “with an object.”

11

Also, on the back of the complainant’s head were signs of “recent

hemorrhaging,” and some of the contusions and fractures on her head occurred

“recent[ly].”7

Dr. Wolf opined that the contusions on the complainant’s head were caused

“by [an] impact with [a] elongated object or objects” and consistent with “a hand

striking or slapping” the complainant. The complainant was “certainly . . . struck”

on her head, and the hemorrhaging seen in her head was caused by “a significant

impact of the head.” Wolf also noted that there was “evidence of direct brain

trauma” as the result of “a significant impact” and the complainant “likely would

have been unconscious at some point before dying.” He opined that there were

likely “at least two or more separate incidents of head trauma” to the complainant,

she had to have been struck with “a lot of force,” and the injuries that she sustained

were “not the kind of injuries [one] would expect to see from a childhood fall.”

Dr. Wolf further noted that the complainant had a contusion on her left lung

and “an impact on [her] back that’s hard enough” it could have caused the lung to

bleed. In other words, the lung contusion was the result of a “blunt trauma” with

7

Dr. Wolf noted that several contusions on the complainant’s head were “from

different time periods,” with some being “acute or recent” and others having

started to heal. He explained that some of the complainant’s head injuries were

“several days” old, while others were “probably less than six hours” old. In regard

to the older skull fractures, Wolf opined that the complainant would have

exhibited symptoms of lethargy or increased sleepiness, crankiness, “general

malaise,” or “not feeling well.”

12

“considerable force.” There appeared to be a bite mark on the complainant’s arm.

And her right forearm had a fracture that appeared to be healing, indicating that her

arm had been broken several weeks prior to the autopsy. According to Wolf, the

fracture on the complainant’s arm would have prevented her from using her hand,

and she would not have been able to crawl using that hand.

There was also a hemorrhage near the complainant’s wrist area that was

“much more recent,” possibly “within six hours” of her death. In regard to the

complainant’s left leg, Dr. Wolf explained that her tibia and fibula had been

fractured “near the time of [her] death” as a result of “bending [her] foot back or

the lower part [her] leg back or an impact.” And the location of the leg fractures

was “consistent with [the complainant] being struck against something” or

someone “grabbing onto [her] leg and possibly swinging th[e] leg.”

Dr. Wolf further testified that his examination of the complainant revealed

that she did not show any signs of illness or disease and nothing other than the

injuries he described at trial would have prevented her “from living a healthy life.”

Based on the autopsy, Wolf opined that the cause of the complainant’s death was

“blunt trauma to the head with skull fractures of the brain injury” and her death

was a result of a homicide.

Dr. Deborrah Pinto, a forensic anthropologist with the HCIFS, testified that

she performed “a pediatric skeletal survey” of the complainant’s body to assess the

13

extent of damage and the age of her various bone injuries. Pinto explained that the

fracture injuries to the right side of the complainant’s skull8 and her right arm were

“healing injuries,” which occurred “within a month” of her death. However, the

injuries to the left side of the complainant’s skull,9 jaw, left tibia, and left fibula10

occurred “at or around the time of [the complainant’s] death.” Pinto opined that at

least “two traumatic events” had occurred—one “likely within the month prior to

[her] death” and the other “at or around the time” of her death. It was also possible

that more than two traumatic events had occurred.

Appellant testified that before the complainant was born, she had given birth

to two other children. Because she had “f[allen] on hard times,” “didn’t have

money,” was “getting evicted,” and “didn’t have anywhere to go,” appellant sent

her two children to live with her aunt with whom “they would have such a great

life.” After “a year or two,” appellant allowed her aunt to adopt her two children.

8

Dr. Pinto opined that fractures on the right side of the complainant’s skull were

caused by a “right to left . . . direct[] impact with an object of small-to-medium

surface area” and not the ground.

9

Dr. Pinto explained that the fractures on the left side of the complainant’s skull

were caused by an “impact” with “something” with a “relatively small surface”

area and not the ground.

10

Dr. Pinto noted that the fractures to the complainant’s tibia and fibula would have

been caused by her foot “being pushed into the leg; so some type of force [that

would] driv[e] the foot and the leg together so that the bone gives way at the ankle

and . . . just collapse[].” The force needed to cause the tibia and fibula fractures

would have been “significant,” “more than just regular . . . day-to-day handling.”

14

Her daughter is now “an honor student,” and her son plays baseball at high school

and is on a “Select Baseball team.”

When appellant was “six months pregnant” with the complainant, she moved

into the apartment complex with Landon. After her birth on October 4, 2009, the

complainant lived in the apartment with “[a]t first just” appellant and Landon.

When the complainant was “about three months old,” Sharma, who had been living

in a “catty-corner” apartment “with his wife, Michelle,” moved into appellant’s

apartment. Appellant explained that Sharma lived in the apartment at “the time of

[the complainant’s] death” and continued to do so afterwards. Appellant admitted

that after the complainant’s death, she continued “sleeping in the same bedroom”

with Sharma.

Appellant explained that she was not working when the complainant was

born and it had been “[a]while” “since [she] had held a regular job.” Her mother,

in contrast, worked “normal hours during the day” and was “the sole source of

income” for the household. A week before the complainant’s death, Sharma began

working the “night-shift.” Before the complainant’s death, appellant was home

most of the time with the complainant. At all times, either appellant’s mother or

Sharma were there with her and the complainant, depending on the time of day.

And, according to appellant, she would only “occasionally” drink alcoholic

beverages.

15

On July 27, 2010, the day before the complainant’s death, appellant called

the complainant’s pediatrician to make a “sick[-]baby appointment” because the

complainant “wasn’t feeling good.” On July 28, 2010, the day of the

complainant’s death, appellant, after Landon “left for work,” was “in [her] bed”

when she “heard [the complainant] screaming.” She then took the complainant

from Sharma. She noted that this incident “didn’t alarm” her because she “just

thought [the complainant] was being cranky.” She subsequently “went to the

liquor store,” leaving “only [Sharma] and [the complainant alone] in the

apartment” for “[a]bout 15, 20 minutes.”

When appellant returned to the apartment, she noticed that the complainant

“didn’t seem like she felt that well” and “felt hot,” but otherwise “she was acting

normally.” Appellant then took the complainant’s temperature, “gave her

Tylenol,” “fed [her] a bottle,” and “held her for a little while” before “put[ting] her

in [her baby] swing.”

While the complainant was sleeping in her swing, appellant and Sharma

started “watching TV” and “[h]aving [some] drinks.” Appellant had “two or three”

drinks, and after a few hours, Sharma went “to go get [the complainant’s] blanket.”

He then “came running out,” saying, “[t]here’s something wrong. . . with [the

complainant]” and “she [is not] breathing.” Appellant then “immediately” called

for emergency assistance.

16

In regard to the complainant, appellant agreed that she had been “an active

baby,” whose “main mode of transportation” was crawling. And when asked

whether she had ever noticed the complainant “not being able to crawl because of

the broken arm,” appellant stated that “[s]he crawled. She was crawling.” She

explained, “[i]t wasn’t like there was something wrong like she was hurt. She

never cried. She was always laughing and happy.” According to appellant, if she

had noticed that the complainant was “unable to crawl because something was

wrong with her arm or her leg,” she “would have t[aken] her to the emergency

room.”

In regard to who she thought had caused the fractures to the complainant’s

skull and leg, appellant testified that, “I feel that [Sharma] did it.” And although

Landon had previously told her that the complainant had fallen, “like, three

times . . . off the bed,” appellant herself had never seen the complainant fall. She

also stated that she had never seen Sharma “hit” or “drop” the complainant.

Further, she explained that the “bump” on the complainant’s forehead was “a

mosquito bite” that had “welled up.” Moreover, although she admitted that the

“other bruises” on the complainant were “obvious,” she stated that she “didn’t see

them” before. When appellant bathed the complainant the night before her death,

she did not observe any “unusual mark or bruise” on the complainant’s body.

17

Dr. Laeeq Khan, the complainant’s pediatrician, testified about the

complainant’s medical care prior to her death and the developmental “checkup”

examinations that he had conducted on the complainant. On cross-examination,

Khan admitted that it would be “incredibly difficult for a 9-month-old to be mobile

in any way” with the fractures that she had sustained to her arm. And he agreed

that the complainant’s arm fractures and external injuries observed at the time of

her death “would certainly be noticeable and obvious” and would be “concerning”

to a pediatrician and a parent.

Sufficiency of the Evidence

In her first issue, appellant argues that the evidence is legally insufficient to

support her conviction because the State did not prove that she “knowing[ly]

injur[ed]” the complaint by omission. She asserts that there is “no evidence” that

she “was aware with reasonable certainty that [the complainant] would be injured

in any way” or that “an injury would have been prevented had [she] done

something/anything to protect [the complainant] or sought medical attention for

[the complainant] in a timely manner.”

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

18

(1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role

is that of a due process safeguard, ensuring only the rationality of the trier of fact’s

finding of the essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference

to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at

750. However, our duty requires us to “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

she is accused. Id.

We note that in reviewing the legal sufficiency of the evidence, a court must

consider both direct and circumstantial evidence, as well as any reasonable

inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is just as probative as

direct evidence in establishing the guilt of an actor, and a conviction may be

supported by circumstantial evidence standing alone. See Kuciemba v. State, 310

S.W.3d 460, 462 (Tex. Crim. App. 2010). “Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury, as the judge of the facts

and credibility of the witnesses, could choose to believe or not to believe the

19

witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d).

A person commits the offense of injury to a child if she intentionally,

knowingly, or recklessly causes serious bodily injury by omission to a child when

she has a legal duty to act. TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(1) (Vernon

Supp. 2017); see also TEX. FAM. CODE ANN. § 151.001 (Vernon 2014) (rights and

duties of parent). “Child” means a person fourteen years of age or younger. TEX.

PENAL CODE ANN. § 22.04(c)(1). “Serious bodily injury” means “bodily injury

that creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 1.07(a)(46) (Vernon Supp. 2017).

“Injury to a child is a result-oriented offense requiring a mental state that

relates not to the specific conduct but to the result of that conduct.” Williams, 235

S.W.3d at 750; see also Thompson v. State, 227 S.W.3d 153, 159 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). Thus, “[t]he State must prove that a

defendant caused a child’s serious bodily injury with the requisite criminal intent.”

Williams, 235 S.W.3d at 750. A person acts “intentionally” or with intent “with

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

to . . . cause the result.” TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2011). A

20

person acts “knowingly” or with knowledge “with respect to a result of [her]

conduct when [she] is aware that [her] conduct is reasonably certain to cause the

result.” Id. § 6.03(b).

Direct evidence of the required mental state is not required. Hart v. State, 89

S.W.3d 61, 64 (Tex. Crim. App. 2002). Instead, proof of mental state almost

always depends upon circumstantial evidence. Smith v. State, 56 S.W.3d 739, 745

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Knowledge and intent may be

inferred from any facts which tend to prove their existence, including the acts,

words, and conduct of the accused, and the method of committing the crime and

from the nature of wounds inflicted on the complainant. Hart, 89 S.W.3d at 64;

Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999); see also Stahle v.

State, 970 S.W.2d 682, 687 (Tex. App.—Dallas 1998, pet. ref’d) (“Knowledge may

be inferred from an accused’s acts, words, and conduct.”).

Here, appellant stood accused by indictment of intentionally or knowingly

causing serious bodily injury to the complainant, a child younger than fifteen years

of age, by failing to protect her.11

11

Appellant also stood accused by indictment of intentionally or knowingly causing

serious bodily injury to the complainant by failing to seek medical attention for

her in a timely manner. See TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(1). The

trial court’s charge authorized the jury to convict appellant if it found she

intentionally or knowingly caused serious bodily injury to the complainant, a child

younger than fifteen years of age, by failing to protect her or by failing to seek

medical attention for her in a timely manner. The jury returned a general verdict

21

Appellant specifically argues that the evidence is legally insufficient to

establish that she was aware with reasonable certainty that her failure to protect the

complainant would cause the complainant serious bodily injury because there is

“no evidence” that she was aware of the complainant’s previous injuries or that the

complainant had suffered severe abuse before her death, such that appellant would

have known that allowing Sharma or Landon to have access to the complainant

would place the complainant in danger of sustaining further serious bodily injury.

There is ample evidence in the record that establishes that the complainant

had suffered serious injuries that would have been apparent to appellant in the

weeks leading up to her death. Forensic anthropologist Dr. Pinto testified about

the age of the complainant’s various bone injuries. And he explained that the

fractures to the right side of the complainant’s skull and her right arm were

“healing injuries” that occurred “within a month” of her death. Similarly, Dr.

of guilty of the felony offense of injury to a child as alleged in the indictment.

“When a general verdict is returned and the evidence is sufficient to support a

finding of guilt under any of the paragraph allegations submitted, the verdict will

be upheld.” Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002)

(quoting McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997)); see also

Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013) (when charge

authorizes jury to convict defendant on more than one theory, verdict of guilt will

be upheld if evidence sufficient on any theory authorized by jury charge). Thus, if

the evidence is legally sufficient to support appellant’s conviction of the offense of

injury to a child based on her failure to protect the complainant, we need not

address whether the evidence is sufficient to support appellant’s conviction based

on a failure to seek medical attention for the complainant in a timely manner. See

Russo v. State, 228 S.W.3d 779, 795 (Tex. App.—Austin 2007, pet. ref’d); see

also TEX. R. APP. P. 47.1.

22

Wolf, who performed the autopsy on the complainant’s body, opined that there had

likely been “at least two or more separate incidents of head trauma,” noting that

some of the complainant’s head injuries were “several days” old.

Several witnesses testified that the trauma the complainant suffered in the

weeks prior to her death would have been readily apparent. In regard to pain, Dr.

Wolf explained that the head trauma she had suffered would have caused the

complainant to exhibit symptoms of lethargy, sleepiness, crankiness, “general

malaise,” or “not feeling well.” And the complainant’s broken right forearm

would have prevented use of her hand such that she would have been unable to

crawl. Appellant’s own witness, Dr. Khan, who was the complainant’s

pediatrician, agreed that these injuries would have been “noticeable and obvious”

in a nine-month-old and “concerning” to him, both as a pediatrician and parent.

See Sandoval v. State, No. 14-12-00879-CR, 14-12-00880-CR, 2014 WL 3870504,

at *6 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014, no pet.) (mem. op., not

designated for publication) (evidence sufficient to show defendant knew with

reasonable degree of certainty her child abused, where child “covered in bruises at

the time of her death” and testimony bone fractures and other injuries “would have

caused the child pain”); see also Guerrero v. State, No. 04-15-00762-CR, 2016

WL 4537694, at *8 (Tex. App.—San Antonio Aug. 31, 2016, no pet.) (mem. op.,

23

not designated for publication) (knowledge failure to act substantially certain to

result in serious bodily injury inferrable from apparent and obvious condition).

The record also shows that the complainant had visible injuries to her body

at the time of her death. Deputy Ortiz, who saw the complainant at the hospital

following her death, noted “numerous,” “obvious,” and “readily apparent” injuries,

including “bruising on her cheek” and chest, a “lemon-size bump” on the right side

of her head, “redness behind [her] ear,” “some [other] bumps on her head,”

obvious discoloration on her back, and “bruise discoloration” on her lower leg.

See Tijerina v. State, No. 13-11-00430-CR, 2012 WL 3525632, at *5 (Tex. App.—

Corpus Christi Aug. 16, 2012, no pet.) (mem. op., not designated for publication)

(eyewitness testimony concerning child’s appearance provided evidence of extent

of defendant’s awareness of child’s condition); Payton v. State, 106 S.W.3d 326,

328–30 (Tex. App.—Fort Worth 2003, pet. ref’d) (jury could reasonably conclude

defendant knew eighteen-month-old child seriously injured because emergency

medical personnel immediately noticed bruises and distended stomach caused by

internal bleeding).

Dr. Wolf’s external examination of the complainant also revealed evidence

of what appeared to be a bite mark on her arm and “blunt force trauma,” including

bruises, contusions, and abrasions on the top and back of her head, on both sides of

her jaw, behind her ears, and on her right forehead, left cheek, upper chest,

24

abdomen, back, and both upper and lower extremities. See Tijerina, 2012 WL

3525632, at *5; Payton, 106 S.W.3d at 328–30.

There is also evidence that appellant had actual knowledge that the

complainant had been seriously injured in the weeks before her death. In an

interview with Lieutenant Kuhlman, appellant stated that “[a] couple of weeks”

before the complainant’s death, she noticed that the complainant had “stopped

crawling” and would cry when “touched.”12 And at trial, appellant admitted that

she had seen the “bump” on the complainant’s forehead, although she stated that

she believed it to be “a mosquito bite” that had “welled up” and when shown

photographs of the complainant’s body at trial, appellant acknowledged that many

of the bruises were noticeable, although she could not explain why she had not

noticed them before the complainant’s death.

Parga-Lopez’s testimony provides further evidence that appellant was aware

that the complainant had been seriously injured in the weeks leading up to her

death. While the complainant was in the care of Parga-Lopez’s daughter, Dora,

12

At trial, however, appellant testified that she did not notice the complainant “not

being able to crawl because of the broken arm” and the complainant did not act

“like there was something wrong like she was hurt. She never cried. She was

always laughing and happy.” However, the jury, as the judge of the facts and

credibility of the witnesses, could choose to believe or not to believe appellant’s

testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986);

Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d). Further, we note that “inconsistent statements . . . are probative of

wrongful conduct and are also circumstances of guilt.” Guevara v. State, 152

S.W.3d 45, 50 (Tex. Crim. App. 2004).

25

she noticed that the complainant was “not her usual self” and “just laid [sic] there.”

She was also “fussy,” “irritable,” “didn’t want to eat,” or “play,” and she was not

smiling. Parga-Lopez discovered that the complainant’s head was “real soft on the

side,” like “a gel.” After she tried unsuccessfully to reach appellant, Parga-Lopez

expressed her concerns about the complainant’s head and demeanor to appellant’s

mother, Landon. Later, her lingering concern led Parga-Lopez to check on the

complainant at appellant’s apartment, where appellant assured her that she would

“take [the complainant] to the doctor.” Perez v. State, No. 08-12-00340-CR, 2015

WL 4940375, at *9 (Tex. App.—El Paso Aug. 19, 2015, no pet.) (not designated

for publication) (defendant’s misrepresentation to witness she had sought medical

care for child established defendant’s knowledge child seriously ill, but refused to

seek medical care).

There is also evidence in the record that appellant had motive not to protect

the complainant because she did not want her. See Guevara v. State, 152 S.W.3d

45, 50 (Tex. Crim. App. 2004) (“Motive is a significant circumstance indicating

guilt. Intent may also be inferred from circumstantial evidence such as acts, words,

and the conduct of the appellant.” (internal citations omitted)). Parga-Lopez

explained that during her pregnancy with the complainant, appellant confided that

she did not want the complainant. And after the complainant’s birth, appellant

26

asked Parga-Lopez to take the complainant permanently because she did not want

her.

Parga-Lopez also testified that after she had visited appellant to

communicate her concerns about the complainant, appellant stopped visiting her at

the apartment complex’s leasing office and instead “just stayed inside” her

apartment. Parga-Lopez opined that appellant was “hiding something.” See

Guevara, 152 S.W.3d at 50 (attempts to conceal incriminating evidence probative

of wrongful conduct and also circumstance of guilt); Hart, 89 S.W.3d at 64 (jury

may infer both intent and knowledge from any facts tending to prove existence of

mental states, including defendant’s acts, words, or conduct); In re P.M.S., No. 03-

01-00178-CV, 2001 WL 1167166, at *2 (Tex. App.—Austin Oct. 4, 2001, no pet.)

(not designated for publication) (“Proof of a culpable mental state generally relies

upon circumstantial evidence, such as the suspicious conduct or statements of the

actor . . . .”).

Further, in her interview with Lieutenant Kuhlman, appellant stated that in

the weeks before the complainant’s death, she had become “scared to death” of

Sharma. And when Sharma would hold her, the complainant “would scream her

head off.” Despite this, appellant admitted that she continued to allow Sharma to

continue to care for and bathe the complainant outside of her presence. This

includes the morning of the complainant’s death, when, even after having “heard

27

[the complainant] screaming” while in Sharma’s arms earlier that morning,

appellant left the complainant with him so she could go to the “liquor store.”

Appellant’s delay in seeking medical assistance for the complainant on the

day she died further indicates her intent. Despite Dr. Wolf’s testimony that the

complainant “likely would have been unconscious at some point before dying” due

to the brain trauma that she had suffered from being struck on the head, appellant

waited until the complainant had stopped breathing before calling for emergency

assistance.13 See Vasquez v. State, No. 13-08-00684-CR, 2011 WL 345919, at *20

(Tex. App.—Corpus Christi Jan. 31, 2011, no pet.) (mem. op., not designated for

publication) (because defendant knew complainant sick and had thrown up many

times, his stomach hurt, he had bruises to his lower abdomen and other parts of his

body, and he had “labored” breathing, jury could reasonably conclude defendant

13

We note that in her brief, appellant asserts that the evidence shows that the only

indication that she had that the complainant had suffered head trauma before her

death led her to take the complainant to her pediatrician, Dr. Khan, on July 6,

2010. She points out that, according to medical testimony, it is possible that the

first skull fracture could already have been inflicted at this point. She then asserts

that it had, and that she had misidentified, and Dr. Khan’s physician’s assistant

misdiagnosed, it as conjunctivitis and rhinitis. However, the jury was free to

accept or reject this explanation. Evidence is not insufficient merely because a

defendant offers a different explanation for the facts. See Jenkins v. State, No.

01-05-00299-CR, 2006 WL 23323, at *6 (Tex. App.—Houston [1st Dist.] Jan. 5,

2006, pet. ref’d) (mem. op., not designated for publication); Coleman v. State, 113

S.W.3d 496, 502 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 145 S.W.3d 649

(Tex. Crim. App. 2004). And the fact finder alone determines what weight to

place on contradictory testimonial evidence, as it depends on the evaluation of

credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim.

App. 1997); Jenkins, 2006 WL 23323, at *6.

28

knew complainant suffered some sort of blunt-force trauma requiring medical

treatment); see also Hart, 89 S.W.3d at 64 (jury may infer both intent and

knowledge from any facts tending to prove existence of mental states, including

defendant’s acts, words, or conduct); In re P.M.S., 2001 WL 1167166, at *2 (proof

of culpable mental state generally relies upon circumstantial evidence, such as

suspicious conduct or statements of actor).

Further, several witnesses were troubled by appellant’s incongruous

demeanor in response to the complainant’s death. Dr. Kasper, the emergency

physician who treated the complainant at the hospital, testified that “the affect of

[appellant] was very strange in general,” describing it as “blunted” and not

“want[ing] to be involved.” Deputy Ortiz, who observed appellant at the hospital,

noted that “there was no emotion.” And Sergeant Hunter noted that appellant

appeared to be agitated, but “not upset or crying.” He further opined that her

behavior was “quite different than someone that’s mourning for [her] child.” See

Hart, 89 S.W.3d at 64 (jury may infer both intent and knowledge from any facts

tending to prove their existence, including defendant’s acts, words, or conduct); In

re P.M.S., 2001 WL 1167166, at *2 (proof of culpable mental state generally relies

upon circumstantial evidence, such as actor’s suspicious conduct or statements).

Finally, appellant does not dispute the fact that she continued living with

Sharma, who she believed was responsible for the complainant’s injuries. See

29

Hart, 89 S.W.3d at 64 (jury may infer both intent and knowledge from any facts

tending to prove their existence, including defendant’s acts, words, or conduct); In

re P.M.S., 2001 WL 1167166, at *2 (proof of culpable mental state generally relies

upon circumstantial evidence, such as actor’s suspicious conduct or statements).

Given the record evidence that appellant was made aware of the soft spot on

the complainant’s skull; appellant admitted that she knew the complainant had

stopped crawling and would cry when touched, especially when being touched by

Sharma; appellant admitted that many of the complainant’s bruises were

immediately apparent; and appellant did not want the complainant, the jury could

have reasonably concluded that appellant was aware with reasonable certainty that

failing to protect the complainant, by preventing her from being left in the care of

those who were supervising her when her injuries occurred, would continue to

result in serious bodily injury to the complainant. See Sandoval, 2014 WL

3870504, at *6 (evidence sufficient to show defendant knew with reasonable

degree of certainty girlfriend abusing child, where “the complainant was covered

in bruises at the time of her death” and testimony bone fractures and other injuries

“would have caused the child pain”); Dusek v. State, 978 S.W.2d 129, 134 (Tex.

App.—Austin 1998, pet. ref’d) (jury could rationally conclude mother of child

whose body covered by many large bruises of varying ages knew boyfriend

abusing child).

30

Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that a rational trier of fact could have found that appellant intentionally or

knowingly caused serious bodily injury by omission to a child by failing to protect

the complainant when she had a legal duty to act.14 See TEX. PENAL CODE ANN.

§ 22.04(a)(1), (b)(1); TEX. FAM. CODE ANN. § 151.001; see also Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. Accordingly, we hold that

the evidence is legally sufficient to support appellant’s conviction for injury to a

child.

We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In her second through thirteenth issues, appellant argues that her trial

counsel did not provide her with effective assistance because counsel did not

“object to the State’s closing argument”; “discover whether the State intended to

use extraneous conduct against [a]ppellant”; “request notice of expert witnesses”;

“object[] to the introduction of” a portion of State’s Exhibit 4; “apply for a

subpoena”; “object to the [trial court’s] charge” to the jury or “request[] an

appropriate instruction on the issue of ‘but for’ causation”; “object to [Sergeant]

14

Having held that the evidence is sufficient to support appellant’s conviction for the

offense of injury to a child based on her failure to protect the complainant, we do

not reach the issue of whether the evidence is sufficient to support appellant’s

conviction based on the alternative theory of failure to seek medical attention. See

Anderson, 416 S.W.3d at 889; see also TEX. APP. P. 47.1.

31

Hunter’s opinion testimony”; “object to inadmissible, extraneous, prejudicial,

character conformity evidence”; “request a limiting instruction to inadmissible,

extraneous, prejudicial, character conformity evidence”; “give an opening

statement”; or move for a directed verdict.

The Sixth Amendment guarantees the right to the reasonably effective

assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prove a claim of ineffective

assistance of counsel, appellant must show that (1) her trial counsel’s performance

fell below an objective standard of reasonableness and (2) 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); Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068. In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs

of the Strickland test by a preponderance of the evidence. Jackson v. State, 973

32

S.W.2d 954, 956 (Tex. Crim. App. 1998). An appellant’s failure to satisfy one

prong of the test negates a court’s need to consider the other prong. Williams v.

State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

Generally, a silent record that provides no explanation for counsel’s actions

will not overcome the strong presumption of reasonable assistance. Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In rare cases in which trial

counsel’s ineffectiveness is apparent from the record, an appellate court may

address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143.

However, the record must demonstrate that counsel’s performance fell below an

objective standard of reasonableness as a matter of law and no reasonable trial

strategy could justify trial counsel’s acts or omissions, regardless of counsel’s

subjective reasoning. Id.

Closing Argument

In her second and thirteenth issues, appellant argues that her trial counsel

improperly failed to object to the State’s closing argument to the jury because the

State “asked the jury to convict on a theory contrary to the law and the jury

charge” and its argument “was outside the four general areas of jury argument.”

In her second issue, appellant complains about the following portion of the

State’s closing argument:

Now, intentionally and knowingly, there’s something a little different

here that we didn’t have in voir dire. Intentionally and knowingly

33

doesn’t go to her causing the actual injuries, right? Because she’s

charged with omission. That mental state of intentionally and

knowingly means that she intentionally and knowingly failed to get

medical attention that the child needed. She intentionally and

knowingly failed to protect that child, as opposed to recklessly. And

so, that’s pretty obvious with the evidence, right?

Appellant asserts that “to properly convict [her],” the State had to prove that she

“consciously and deliberately omitted performing some act, . . . knowing that ‘but

for’ that omission, [the complainant’s] death was reasonably certain.” The State

does not dispute this characterization of its burden. However, it responds that,

taken in context, the complained-of argument was merely a botched effort to

explain that it “was not required to prove that appellant caused the initial injuries to

the complainant.” The State acknowledges that it was “required to prove that

appellant caused additional serious bodily injury to the complainant by failing to

seek medical attention . . . [or] by failing to protect the complainant.” And it notes

that it, later in its closing argument, explained to the jury, “you have to agree

overall that [appellant] caused serious bodily injury by omission.”

Here, although the State’s inartful explanation to the jury of a complex legal

concept may not have been ideal, we cannot conclude that appellant’s trial

counsel’s decision to not object to it was “so outrageous that no competent

attorney” would have done the same. See Menefield v. State, 363 S.W.3d 591, 593

(Tex. Crim. App. 2012) (quoting Goodspeed, 187 S.W.3d at 392). Trial counsel

could have reasonably concluded that it was unnecessary to object to the

34

complained-of argument because the trial court had already properly instructed the

jury on the subject, and counsel did not want to further confuse the jury. See

Brown v. State, 482 S.W.3d 157, 164 (Tex. App.—Texarkana 2015, no pet.) (trial

counsel could have found it unnecessary to address misstatement by State in

closing argument because “the trial court was going to instruct the jury on the

proper standard of proof and/or because he did not want to further confuse the

jury”); see also Helmke v. State, No. 04-12-00826-CR, 2013 WL 5570474, at *3

(Tex. App.—San Antonio Oct. 9, 2013, no pet.) (mem. op, not designated for

publication) (assistance not ineffective where alleged misstatement of law by trial

counsel was considered in context of other statements).

Where a reviewing court can conceive of a potentially reasonable trial

strategy that counsel could have been pursuing, it “simply cannot conclude that

counsel has performed deficiently.” Andrews v. State, 159 S.W.3d 98, 103 (Tex.

Crim. App. 2005). Accordingly, in the absence of a record reflecting why

appellant’s trial counsel did not object to the complained-of statements, and given

the strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance, we hold that appellant has failed to rebut the

presumption that her trial counsel’s decision to not object was reasonable. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court

may not conclude, based on speculation, counsel ineffective when record silent

35

about why he made decisions at trial); see also Miles v. State, No.

01-11-00401-CR, 2012 WL 2357449, at *4 (Tex. App.–Houston [1st Dist.] June

21, 2012, no pet.) (mem. op., not designated for publication) (“In the absence of a

record reflecting why [defendant]’s counsel did not object, we hold that the record

does not firmly establish deficient performance.”).

In her thirteenth issue, appellant complains about the following portion of

the State’s closing argument:

And as you’ve sat there this week, I know that many of you have

thought, I wish [the complainant] had been older so she could run to

[Parga-Lopez]’s apartment and say, [Parga-Lopez] my mommy’s

hurting me. [Sharma], he’s hurting me, please help me. I know many

of you have thought that. She could call her Aunt . . . and say, Please

save me like you did [appellant’s two older children].

Proper jury argument generally must concern one of the following areas:

(1) a summation of the evidence presented at trial, (2) a reasonable deduction

drawn from that evidence, (3) an answer to opposing counsel’s argument, or (4) a

plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.

1999); Acosta v. State, 411 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2013,

no pet.).

Although appellant argues in her brief that because the complained-of

statements “fell outside of the four areas of [permissible] jury argument,” her trial

counsel should have objected to them, she provides no supporting argument or

authorities, nor any analysis or explanation, to support her argument. See Tufele v.

36

State, 130 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(“Appellant has a duty to cite specific legal authority and to provide legal argument

based upon that authority.”).

An appellant’s “brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” TEX.

R. APP. P. 38.1(i). And an appellant waives an issue on appeal if she does not

adequately brief that issue, i.e., by presenting supporting arguments and

authorities. Id.; Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

Accordingly, we hold that she has waived her complaint that her trial counsel

provided her ineffective assistance by not objecting to the State’s closing argument

as “outside the four general areas of jury argument.” See Lucio v. State, 351

S.W.3d 878, 896 (Tex. Crim. App. 2011) (point of error inadequately briefed

“presents nothing for review”); Ruiz v. State, 293 S.W.3d 685, 693 (Tex. App.—

San Antonio 2009, pet. ref’d) (complaint waived where defendant’s brief

“contain[ed] no argument or authorities” to support contention that his counsel was

ineffective); Tufele, 130 S.W.3d at 270–71 (ineffective-assistance-of-counsel

complaint waived for inadequate briefing); see also Castellanos v. State, No. 13-

04-023-CR, 2005 WL 1981519, at *2 (Tex. App.—Corpus Christi Aug. 18, 2005,

no pet.) (mem. op., not designated for publication) (defendant waived

37

ineffective-assistance-of-counsel complaint by “fail[ing] to make a clear and

concise argument with appropriate citations” as required by rule 38.1).

We overrule appellant’s second and thirteenth issues.

“Extraneous Conduct” Evidence

In her third, ninth, and tenth issues, appellant asserts that her trial counsel

provided ineffective assistance regarding certain “extraneous conduct” evidence

admitted at trial.15

In her third issue, appellant argues that her trial counsel provided ineffective

assistance in not filing a written request “to discover whether the State intended to

use extraneous conduct [evidence] against [her]” at trial because it used such

evidence to suggest that she was “a miserable mother of two other children.” And

15

In discussing “extraneous conduct [evidence],” appellant directs us to the

following evidence admitted at trial:

(1) appellant’s two older children went to live with, and were

ultimately adopted by, appellant’s aunt; (2) appellant failed to appear

in court in connection with her custody of her two older children,

resulting in full custody being awarded to her aunt; (3) the

complainant was exposed to methadone at birth; (4) appellant did

not want the complainant; (5) appellant offered to give the

complainant away; (6) Child Protective Services was involved in

supervising appellant’s custody of the complainant; (7) appellant on

occasions other than the date of the complainant’s death commonly

went to Spec’s liquor store to purchase liquor within 15 minutes of

10:00 a.m. opening time; (8) appellant came from a family with

divorced parents; (9) none of appellant’s children share the same

father; (10) none of appellant’s children’s fathers were in the

children’s lives; (11) appellant lived with Sharma, a married man;

(12) appellant continued living with Sharma after the complainant’s

death; and (13) appellant and Sharma lived off of appellant’s mother.

38

“[h]ad trial counsel filed a . . . request in an attempt to discover whether the State

intended to use extraneous conduct [evidence] against [a]ppellant, the State would

have been compelled to give notice” of such evidence.

The record is silent as to why appellant’s trial counsel did not file a written

request “to discover whether the State intended to use extraneous conduct

[evidence] against [her]” at trial. See Menefield, 363 S.W.3d at 593 (“An

ineffective-assistance claim must be firmly founded in the record and the record

must affirmatively demonstrate the meritorious nature of the claim.”) (internal

quotations omitted)); Bone v. State, 77 S.W.3d 828, 835

(Tex. Crim. App. 2002) (“Ineffective assistance of counsel claims are not built on

retrospective speculation; they must be firmly founded in the record.”) (internal

quotations omitted)). Therefore, we must presume that counsel was acting pursuant

to a sound trial strategy. See Bone, 77 S.W.3d at 833; see also Thompson v. State,

9 S.W.3d 808, 813 (“There is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.”); Crocker v. State,

441 S.W.3d 306, 315 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (“Because

the record is silent concerning counsel’s reasons for not objecting, we must

presume counsel had a valid strategy.”); Smith v. State, 84 S.W.3d 36, 42 (Tex.

App.—Texarkana 2002, no pet.) (“Without evidence of the strategy and methods

39

involved concerning counsel’s actions at trial, the court will presume sound trial

strategy.”).

Further, in general, a trial counsel’s failure to file pre-trial motions such as a

request for notice of intent to introduce “extraneous conduct” evidence does not

rise to the level of ineffective assistance of counsel. See Autry v. State, 27 S.W.3d

177, 182 (Tex. App.—San Antonio 2000, pet. ref’d) (trial counsel may have

received oral notice from State and defendant “has not stated what steps he would

have taken if he had received written notice of the State’s intent to introduce

extraneous evidence”); see also Petty v. State, No. 01-01-00213-CR, 2001 WL

1315028, at *4 (Tex. App.—Houston [1st Dist.] Oct. 25, 2001, pet. ref’d) (not

designated for publication) (defendant did not meet burden of showing trial

counsel’s deficient performance because he “did not show that the State did not

provide oral notice. . . [which] would explain why defense counsel did not object”

(internal citations omitted)).

Accordingly, in the absence of a record reflecting why appellant’s trial

counsel did not file a written request “to discover whether the State intended to use

extraneous conduct [evidence] against [her]” at trial, and given the strong

presumption that counsel’s conduct falls within the wide range of reasonable,

professional assistance, we hold that appellant has failed to rebut the presumption

that her trial court’s decision was reasonable. See Jackson, 877 S.W.2d at 771

40

(appellate court may not conclude, based on speculation, counsel ineffective when

record silent about why he made decisions at trial); see also Miles, 2012 WL

2357449, at *4 (“In the absence of a record reflecting why [defendant]’s counsel

did not object, we hold that the record does not firmly establish deficient

performance.”).

In her ninth and tenth issues, appellant argues that her trial counsel provided

ineffective assistance in not objecting to or “request[ing] a limiting instruction,”

pursuant to Texas Rule of Evidence 105(a), about certain “extraneous conduct”

evidence because such evidence was inadmissible under Texas Rules of Evidence

401, 402, 403, 404, and 405.

As previously noted, an appellant’s “brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to

the record.” See TEX. R. APP. P. 38.1(i); see also Tufele, 130 S.W.3d at 271

(“Appellant has a duty to cite specific legal authority and to provide legal argument

based upon that authority.”). And an appellant waives an issue on appeal if she

does not adequately brief that issue by presenting supporting arguments and

authorities. Id.; Cardenas, 30 S.W.3d at 393.

Here, appellant has not made any attempt to demonstrate how the admission

of the “extraneous conduct” evidence about which she complains violates the

Texas Rules of Evidence, or how her trial counsel rendered ineffective assistance

41

by not objecting to such evidence or requesting a limiting instruction.

Accordingly, we hold that she has waived her complaint that her trial counsel

provided ineffective assistance in not objecting to or “request[ing] a limiting

instruction,” pursuant to Texas Rule of Evidence 105(a), about certain “extraneous

conduct” evidence. See Lucio, 351 S.W.3d at 896–97; Ruiz, 293 S.W.3d at 693;

Tufele, 130 S.W.3d at 270–71; see also Castellanos, 2005 WL 1981519, at *2.

We overrule appellant’s third, ninth and tenth issues.

Notice of Expert Witnesses

In her fourth issue, appellant argues that her trial counsel provided

ineffective assistance in not “request[ing] notice of [the] expert witnesses” to be

called by the State because “[o]ne purpose of requesting and receiving notice of

expert witnesses is to adequately prepare for cross-examination” and “[i]t [is]

patently clear from the record that [trial] counsel . . . failed to accomplish any

meaningful cross-examination of the State’s expert[]” witnesses.

Here, we note that the State supplied appellant with its expert witness list

well in advance of trial, making trial counsel’s decision not to request it of no

consequence to the outcome of the trial. Thus, we cannot conclude that there is a

reasonable probability that but for counsel’s purported error, the result of the

proceeding would have been different. See Fisher v. State, No. 09-11-00379-CR,

2012 WL 5450828, at *4 (Tex. App.—Beaumont Nov. 7, 2012, no pet.) (mem. op.,

42

not designated for publication) (defendant failed to show prejudice because

“[r]egardless of the fact that trial counsel failed to make a motion, all of the State’s

expert witnesses were timely designated” and defendant failed to allege how filing

motion for timely designation of experts “reasonably could have changed the

outcome of his case”); Arnolie v. State, No. 01-11-00348-CR, 2012 WL 1143591,

at *3 (Tex. App.—Houston [1st Dist.] April 5, 2012, no pet.) (mem. op., not

designated for publication) (rejecting ineffective-assistance complaint based on

failure to timely request notice of “other bad acts” because record indicated

counsel received notice). Accordingly, we hold that appellant has not shown that

she suffered prejudice because her counsel did not “request notice of [the] expert

witnesses” to be called by the State. See Ladd v. State, 3 S.W.3d 547, 570 (Tex.

Crim. App. 1999) (defendant’s failure to make any effort to prove prejudice from

counsel’s allegedly deficient performance precluded relief on ineffective-assistance

claim); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (defendant

claiming ineffective assistance of counsel must affirmatively prove prejudice from

counsel’s deficient performance); see also Cox v. State, 389 S.W.3d 817, 819 (Tex.

Crim. App. 2012) (reviewing court need not consider both prongs of Strickland test

and can dispose of ineffectiveness claim if defendant fails to demonstrate sufficient

prejudice).

We overrule appellant’s fourth issue.

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Sixth Amendment Right to Confrontation

In her fifth and sixth issues, appellant asserts that her trial counsel provided

ineffective assistance regarding her Sixth Amendment right to confront forensic

neuropathologist Dr. Glenn Sandberg.

In her fifth issue, appellant argues that her trial counsel provided ineffective

assistance in not objecting to the admission into evidence of Dr. Sandberg’s report,

contained within State’s Exhibit 4, the autopsy report prepared by Dr. Wolf,

because it “was inadmissible under (1) the Confrontation Clause of the Sixth

Amendment . . . , (2) Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1345, 158

L.Ed.2d 177 (2004), and (3) Tex. R. Evid. 801(d).”

The record is silent as to why appellant’s trial counsel did not object to the

admission of Dr. Sandberg’s report into evidence. See Menefield, 363 S.W.3d at

593 (“An ineffective-assistance claim must be firmly founded in the record and the

record must affirmatively demonstrate the meritorious nature of the claim.”)

(internal quotations omitted)); Bone, 77 S.W.3d at 835 (“Ineffective assistance of

counsel claims are not built on retrospective speculation; they must be firmly

founded in the record.”) (internal quotations omitted)). Therefore, we must

presume that counsel was acting pursuant to a sound trial strategy. See Bone, 77

S.W.3d at 833; see also Thompson, 9 S.W.3d at 813 (“There is a strong

presumption that counsel’s conduct fell within the wide range of reasonable

44

professional assistance.”); Crocker, 441 S.W.3d at 315 (“Because the record is

silent concerning counsel’s reasons for not objecting, we must presume counsel

had a valid strategy.”); Smith, 84 S.W.3d at 42 (“Without evidence of the strategy

and methods involved concerning counsel’s actions at trial, the court will presume

sound trial strategy.”). As the Texas Court of Criminal Appeals, in regard to the

admission of a laboratory report, explained in Menefield, “[w]e [simply] do not

know why counsel failed to raise a Confrontation Clause objection.” 363 S.W.3d at

593. “[P]erhaps the State could (and with an objection would) have brought [the

report’s author] to the courtroom to testify, and counsel realized that

cross-examining [him] would not benefit his client.” Id.

Accordingly, in the absence of a record reflecting why appellant’s trial

counsel did not object to the admission into evidence of Dr. Sandberg’s report, and

given the strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance, we hold that appellant has failed to rebut the

presumption that her trial counsel’s decision not to object was reasonable. See

Jackson, 877 S.W.2d at 771 (appellate court may not conclude, based on

speculation, counsel ineffective when record silent about why he made decisions at

trial); see also Miles, 2012 WL 2357449, at *4 (“In the absence of a record

reflecting why [defendant]’s counsel did not object, we hold that the record does

not firmly establish deficient performance.”).

45

In her sixth issue, appellant argues that her trial counsel provided ineffective

assistance in not “apply[ing] for a subpoena for the appearance of” Dr. Sandberg

because it deprived her of her constitutional right of confrontation. Appellant’s

brief includes only a single conclusory statement: “Should this Court find that Dr.

Glenn Sandberg’s report was admissible, trial counsel failed to secure the

attendance of Dr. Glenn Sandberg to enforce Appellant’s Sixth Amendment right

to confrontation.” Because appellant offers no argument or authorities, nor any

analysis or explanation, to support her assertion, we hold that she has waived her

complaint that her trial counsel provided her with ineffective assistance in not

“apply[ing] for a subpoena for the appearance of” Dr. Sandberg. See TEX. R. APP.

P. 38.1(i); Cardenas, 30 S.W.3d at 393; see also Lucio, 351 S.W.3d at 896–97;

Ruiz, 293 S.W.3d at 693; Tufele, 130 S.W.3d at 270–71; see also Castellanos,

2005 WL 1981519, at *2.

We overrule appellant’s fifth and sixth issues.

Jury Charge

In her seventh issue, appellant argues that her trial counsel provided

ineffective assistance in not objecting to the trial court’s charge to the jury and not

“mak[ing] a request for the inclusion of an appropriate instruction on the issue of

‘but for’ causation,” pursuant to Texas Penal Code section 6.04(a), because had

46

counsel requested the “‘but for’ causation instruction,” the jury would have been

prohibited from “convicting [appellant] on a theory that was contrary to the law.”

Assuming without deciding that appellant was entitled to the

above-referenced instruction, she still must show that her trial counsel’s

performance fell below an objective standard of reasonableness when considering

prevailing professional norms. Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064;

Bone, 77 S.W.3d at 833. Here, the record is silent as to why appellant’s trial

counsel did not object to the trial court’s charge to the jury or why her trial counsel

did not request the jury instruction to which she now contends she was entitled.

See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d) (overruling defendant’s ineffective-assistance claim, where

“[t]here [was] no evidence in the record as to why [his] trial counsel did not

request an instruction on concurrent causation”); see also Menefield, 363 S.W.3d at

593 (“An ineffective-assistance claim must be firmly founded in the record and the

record must affirmatively demonstrate the meritorious nature of the claim.”)

(internal quotations omitted)); Bone, 77 S.W.3d at 835 (“Ineffective assistance of

counsel claims are not built on retrospective speculation; they must be firmly

founded in the record.”) (internal quotations omitted). Therefore, we must

presume that counsel was acting pursuant to a sound trial strategy. See Bone, 77

S.W.3d at 833; Thompson, 9 S.W.3d at 813 (“There is a strong presumption that

47

counsel’s conduct fell within the wide range of reasonable professional

assistance.”); Crocker, 441 S.W.3d at 315 (“Because the record is silent

concerning counsel’s reasons for not objecting, we must presume counsel had a

valid strategy.”); Smith, 84 S.W.3d at 42 (“Without evidence of the strategy and

methods involved concerning counsel’s actions at trial, the court will presume

sound trial strategy.”).

Accordingly, in the absence of a record reflecting why appellant’s trial

counsel did not object to the trial court’s charge to the jury or “make a request for

the inclusion of an appropriate instruction on the issue of ‘but for’ causation,”

pursuant to Texas Penal Code section 6.04(a), and given the strong presumption

that counsel’s conduct falls within the wide range of reasonable, professional

assistance, we hold that appellant has failed to rebut the presumption that her trial

counsel’s decision not to object or to request a certain instruction was reasonable.

See Jackson, 877 S.W.2d at 771 (appellate court may not conclude, based on

speculation, counsel ineffective when record silent about why he made decisions at

trial); see also Miles, 2012 WL 2357449, at *4 (“In the absence of a record

reflecting why [defendant]’s counsel did not object, we hold that the record does

not firmly establish deficient performance.”).

We overrule appellant’s seventh issue.

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Opinion Testimony

In her eighth issue, appellant argues that her trial counsel provided

ineffective assistance in not objecting to Sergeant Hunter’s “opinion testimony”

that she “cried ‘tears of guilt’ and acted like ‘a mother who did something to her

child’” because Hunter “comment[ed] directly on the credibility and guilt of

[a]ppellant.”

The record is silent as to why appellant’s trial counsel did not object to

Sergeant Hunter’s “opinion testimony.” See Lopez, 343 S.W.3d at 143–44

(defendant did not meet burden of proving ineffective assistance where record

silent as to why trial counsel did not object to witness testimony); see also

Menefield, 363 S.W.3d at 593 (“An ineffective-assistance claim must be firmly

founded in the record and the record must affirmatively demonstrate the

meritorious nature of the claim.”) (internal quotations omitted)); Bone, 77 S.W.3d

at 835 (“Ineffective assistance of counsel claims are not built on retrospective

speculation; they must be firmly founded in the record.”) (internal quotations

omitted)). Therefore, we must presume that counsel was acting pursuant to a

sound trial strategy. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813

(“There is a strong presumption that counsel’s conduct fell within the wide range

of reasonable professional assistance.”); Crocker, 441 S.W.3d at 315 (“Because the

49

record is silent concerning counsel’s reasons for not objecting, we must presume

counsel had a valid strategy.”); Smith, 84 S.W.3d at 42 (“Without evidence of the

strategy and methods involved concerning counsel’s actions at trial, the court will

presume sound trial strategy.”).

Accordingly, in the absence of a record reflecting why appellant’s trial

counsel did not object to Sergeant Hunter’s “opinion testimony” and given the

strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance, we hold that appellant has failed to rebut the

presumption that her trial court’s decision not to object was reasonable. See

Jackson, 877 S.W.2d at 771 (appellate court may not conclude, based on

speculation, counsel ineffective when record silent about why he made decisions at

trial); see also Miles, 2012 WL 2357449, at *4 (“In the absence of a record

reflecting why [defendant]’s counsel did not object, we hold that the record does

not firmly establish deficient performance.”).

We overrule appellant’s eighth issue.

Opening Statement

In her eleventh issue, appellant argues that her trial counsel provided

ineffective assistance in not “giv[ing] an opening statement” to the jury because

this case involved “an incredibly emotional trial” and counsel “fail[ed] to attempt

to focus the jury on the facts applicable to the law.”

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In her brief, appellant summarily asserts that “[a]t the inception of this trial,

trial counsel metaphorically and literally started on the bench. This conduct ‘fell

below the objective standard of reasonableness under prevailing professional

norms.’” She neither asserts, nor shows, that her trial counsel’s decision to not

make an opening statement, an entirely discretionary and inherently tactical

decision, probably caused the jury to return a guilty verdict against her. See TEX.

CODE CRIM. PROC. ANN. art. 36.01(b) (Vernon 2007) (opening statement optional);

see also Jones v. State, No. 08-14-00122-CR, 2017 WL 3048575, at *6–8 (Tex.

App.—El Paso July 19, 2017, no pet.) (not designated for publication) (failure to

meet second Strickland prong where defendant did not show “a reasonable

probability that the outcome of trial would have been different if [trial counsel] had

made an opening statement”); Hernandez v. State, No. 04-01-00242-CR, 2002 WL

31465802, at *4 (Tex. App.—San Antonio Nov. 6, 2002, no pet.) (not designated

for publication) (defendant who did “not direct this court to anywhere in the record

that indicates he was prejudiced by counsel’s decision not to make an opening

statement,” not prejudiced by counsel’s actions); Hernandez v. State, No. 04-00-

00151-CR, 2000 WL 1727098, at *4 (Tex. App. San Antonio—Nov. 22, 2000, no

pet.) (not designated for publication) (defendant “cannot demonstrate the prejudice

required in the second prong of the Strickland test” because he “has not pointed out

evidence in the record which shows how an opening statement could have caused

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the jury to return a not guilty verdict”); Calderon v. State, 950 S.W.2d 121, 127

(Tex. App.—El Paso 1997, no pet.) (“Few matters during a criminal trial could be

more imbued with strategic implications than the exercise of th[e] option [to give

an opening statement].”); Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—

Fort Worth 1996, no pet.) (because giving opening statement provides State

preview of defense strategy, decision to not make opening statement “valid tactical

decision”).

Accordingly, we hold that appellant has not shown that she suffered

prejudice by her trial counsel’s decision not to make an opening statement. See

Ladd, 3 S.W.3d at 570 (defendant’s failure to make any effort to prove prejudice

from counsel’s allegedly deficient performance precluded relief on ineffective

assistance claim); Mitchell, 989 S.W.2d at 748 (defendant claiming ineffective

assistance of counsel must affirmatively prove prejudice from counsel’s deficient

performance); see also Cox, 389 S.W.3d at 819 (reviewing court need not consider

both prongs of Strickland test and can dispose of ineffectiveness claim if defendant

fails to demonstrate sufficient prejudice).

We overrule appellant’s eleventh issue.

Directed Verdict

In her twelfth issue, appellant argues that her trial counsel provided

ineffective assistance in not moving for a directed verdict because “[t]he evidence

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in this case was legally insufficient” and “[h]ad trial counsel made a motion for a

directed verdict, the trial court [w]ould have granted that motion.” Because

appellant offers no argument or authorities, nor any analysis or explanation, to

support her argument, we hold that she has waived her complaint that her trial

counsel provided her with ineffective assistance of counsel by not moving for a

directed verdict. See TEX. R. APP. P. 38.1(i); Cardenas, 30 S.W.3d at 393; see also

Lucio, 351 S.W.3d at 896–97; Ruiz, 293 S.W.3d at 693; Tufele, 130 S.W.3d at

270–71; see also Castellanos, 2005 WL 1981519, at *2. Further, having held that

the evidence adduced at trial is sufficient to support her conviction, we note that

appellant would not have been entitled to a directed verdict. See Williams v. State,

937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (challenge to trial court’s ruling on

motion for directed verdict is challenge to sufficiency of evidence to support

conviction, and is reviewed under same standard).

We overrule appellant’s twelfth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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