holding that request for evidentiary hearing in prayer of motion for new trial and certificate of presentment signed only by defense counsel were insufficient to establish presentment
How later courts described this case
- holding that request for evidentiary hearing in prayer of motion for new trial and certificate of presentment signed only by defense counsel were insufficient to establish presentment
- holding that evidence was sufficient to support conviction when adult had sole access to a child at the time the child's injuries were sustained
- holding that appellant’s inaccurate explanation of injuries was circumstantial evidence of guilt
- case involving death or injury to child often depends on circumstantial evidence because there is rarely direct evidence of exactly how injuries occurred
Written by the judges who cited it.
The opinion
TERRY JENNINGS, Justice,
concurring.
I join the majority opinion, but write separately to specifically explain why I join it in regard to the question of fact presented to this Court by appellant, Michelle *147 Elaine Bearnth, in light of my recent concurring opinion in Kiffe v. State, 361 S.W.3d 104 (Tex.App.-Houston [1st Dist.] 2011, no pet. h.) (Jennings, J., concurring).
In Kiffe , the defendant argued that this Court, which has conclusive and final jurisdiction over his question of fact, should not have applied a legal-sufficiency standard of review to address his question of fact because doing so deprived him of his state constitutional and statutory right to have his question of fact addressed as a question of fact and his appellate remedy of a new trial. See Tex. Const, art. V, § 6(a); Tex.Code Crim. Proc. Ann. art. 44.25 (Vernon 2006) (entitled, “Cases Remanded”). Kiffe asserted that applying the legal-sufficiency standard of review to his question of fact and depriving him of his appellate remedy of a new trial violated his federal and state rights to due process of law. See U.S. Const, amends. V, XIV; Tex. Const. art. I, § 19.
Given the express language of article V, section 6 of the Texas Constitution and article 44.25 of the Texas Code of Criminal Procedure, it is readily apparent that answering a defendant’s question of fact as a purely legal question violates the United States Constitution’s guarantee of due process of law, as well as its guarantee of the equal protection of the laws, because it, in fact, deprives the defendant of her well-established Texas appellate remedy of a new trial, recognized in the Texas Constitution and by the Texas Legislature in article 44.25. See Kiffe, 361 S.W.3d, at 110-12 (Jennings, J., concurring); see also U.S. Const, amends. V, XIV; Griffin v. Illinois, 351 U.S. 12, 18 , 76 S.Ct. 585, 590 , 100 L.Ed. 891 (1956) (concluding in states that provide for appellate review, criminal defendant is entitled to protections afforded under Due Process and Equal Protection Clauses of United States Constitution); see also M.L.B. v. S.L.J., 519 U.S. 102, 111 , 117 S.Ct. 555, 561 , 136 L.Ed.2d 473 (1996) (quoting Rinaldi v. Yeager, 384 U.S. 305, 310 , 86 S.Ct. 1497, 1500 , 16 L.Ed.2d 577 (1966)) (“This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.”).
Nevertheless, the majority in Kiffe did not agree and answered his question of fact as a question of law, overruling his constitutional issues. Kiffe, 361 S.W.3d at 107-10 . Unless this Court subsequently overrules Kiffe , we must accept Kiffe as binding precedent. Smiley v. McCain, 374 S.W.2d 871, 875 (Tex.1964).