Petition for Writ of Certiorari — Karina Yohera Flores, Petitioner v. Texas

NUMBER 13-22-00596-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI — EDINBURG

KARINA YOHERA FLORES, Appellant,

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 24TH DISTRICT COURT

OF JACKSON COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Tijerina and Pefa

Memorandum Opinion by Justice Pena

Appellant Karina Yohera Flores appeals her conviction for the capital murder of

N.F., an individual under ten years of age. See TEx. PENAL CoDE ANN. § 19.03(a)(8). After

a jury returned a guilty verdict, the trial court imposed a term of life imprisonment without

the possibility of parole. See id. § 12.31(a)(2). In nine issues, which we re-organize, Flores

argues that: (1) the trial court committed various errors related to Flores’s requests to

have lesser-included offenses included in the jury charge and to discuss punishment with

the jury; (2) the trial court erred when it did not permit defense counsel to make an offer

of proof by examining a witness; (3) the trial court improperly commented on the weight

of the evidence; (4) the State improperly commented on Flores’s post-arrest silence

during rebuttal closing argument; (5) the trial court erred in allowing the grand jury

foreman to testify; and (6) the capital murder statute is unconstitutional. We affirm.

I. BACKGROUND

Flores and co-defendant Damien Garza were indicted on multiple counts related

to the death of Flores’s four-year-old son, N.F., including one count of capital murder. See

id. § 19.03(a)(8). Count one alleged that on or about February 25, 2021, Flores and

Garza, “acting either as a principal or a party,” “intentionally and/or knowingly . . . cause{d]

the death of an individual, [N.F.],” who “was an individual younger than [ten] years of age”

by: (1) “[clausing [N.F.] to strike a firm surface”; (2) “[s]triking [N.F.] with the defendant's

hand”; (3) “[s]triking [N.F.] with the defendant's foot”; (4) “[s]triking [N.F.] with a hard

object”; (4) “[s]triking [N.F.] with an object unknown to the Grand Jury”; and/or

(5) “[alsphyxiating [N.F.] by a means unknown to the Grand Jury.”

The State did not seek the death penalty and abandoned all counts except for

count one prior to trial. A joint jury trial commenced on October 31, 2022, at which the

following evidence was adduced. At around 12:46 a.m. on February 25, 2021, Flores

arrived at the emergency room of the Jackson County Hospital in Edna, Texas, holding

her son N.F.; Flores appeared “distraught with a child in her hands that looked like [he]

was unresponsive.” N.F. was not breathing and had no pulse. Emergency room

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technician Thomas Roznovsky testified that, when N.F. arrived at the hospital, he looked

“unkept” and “dirty.” After removing N.F.'s clothing, Roznovsky discovered that what he

thought was dirt was “actually . . . bruising in different stages, yellows, greens, blacks,

brown, purple.” Roznovsky also noticed several burn marks on N.F.’s body in different

stages of healing and “discolorations around the neck, . . . ligature marks.” After removing

N.F.’s diaper, Roznovsky identified further bruising and burn marks on the child’s

buttocks. He said “[t]here were several scars, also, on the abdomen.” There were also

“cuts and marks on the child. A lot.” Roznovsky noted that Flores seemed “distracted”

during this time. “She was on the phone the whole time,” which Roznovsky found “kind of

bizarre.”

Dr. Cindy Cedillo-Ruiz (Cedillo) treated N.F. in the emergency room. Dr. Cedillo

opined that N.F.’s injuries appeared to be “intentional,” and affirmed that they would have

been “apparent” to a person of “average observation and intellect, or even someone with

diminished abilities.” Dr. Cedillo authored a “Physician Clinical Report,” which was

admitted into evidence. As the report details, when Flores first came into the hospital, she

reported that N.F. had thrown a “tantrum.” According to Dr. Cedillo, she

spoke to [Flores] outside trauma room in the presence of [D]eputy

[Christopher] Marlow with Jackson County Sheriff['s Office]. [Flores]

[rleports patient had been asleep and she went to check on patient because

he had upper respiratory symptoms for past few days, noticed patient had

a bladder accident in sleep. [Flores] [rleports [she] woke up patient, took to

restroom, placed in shower and that patient then had tantrum including

breath holding and fell in bathtub. [Flores] [t]hen reports [she] initiated CPR

at home bathroom. When asked why did she not call 911, mother stated

she “didn’t know what to do.” Reports [she] was driven to [hospital] by a

friend.

Marlow was dispatched to the Jackson County Hospital at 1:45 a.m. on the date in

question to investigate potential child abuse. Marlow walked over to Flores and found that

“she was just completely indifferent to the situation by her appearance.” Flores was

involved in a conversation on her cellphone and initially ignored Marlow, which “shocked”

and “angered” him. When Flores responded to Marlow, she did so while still on her phone.

Because Marlow could hear the other voice on the phone, he noticed that Flores was

repeating the information given to her by the other person on the phone.

[Marlow]: Yes, sir. It was, again, extremely frustrating. |

kept asking her, “How did you get here? How did

you get here?”

[State]: And what did she say to that?

[Marlow]: She would just look at me with her cold, lifeless

eyes and talk into the phone and say, “They

want to know how | got here.” And then | heard

a male voice on the other end say, “A friend.”

And then she would answer me.

[State]: And what would she say?

[Marlow]: “A friend.”

Two hours after arriving at the Jackson County Hospital, N.F. was transported to

Texas Children’s Hospital in Houston. Flores was interviewed there by Chief David Merritt

of the Granado Police Department and Texas Ranger John Lingle. This interview was

recorded and entered into evidence. When asked what happened with N.F., Flores stated

that she has been struggling with potty training N.F., and that he has “tantrums” where he

will “fall to the floor, and he will pretend like he’s unconscious.” According to Flores, on

the night in question, N.F. peed himself, had a tantrum and was uncooperative, requiring

Flores to “drag him” into the bathroom to clean up, and while she was getting his clothes

from another room, “that’s when he just, he fell.”

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Although she refused to say at first, Flores eventually stated that Garza is the one

who had dropped her off at the hospital. Flores described Garza as a “family friend” and

denied being in a relationship with him. Flores would not provide the name of the person

she said watched N.F. while she worked. Asked about N.F.’s other injuries, Flores stated

that “he’s been doing these tantrums where, um, he'll like fall to the floor, and he'll act

like, you know he’s not responsive and you know like stuff like that.” Flores stated that

N.F. had been having these tantrums for the past two weeks, and that “[m]ost of these

injuries [are] from that. It’s from him just, just not wanting to use the restroom.” Flores

denied knowing anything about burn marks on N.F. and explained that N.F. appeared to

have choke marks because he would “act like he’s unconscious and he'll like have his

head hanging out of the bathtub.”

Flores stated that she believed N.F.’s “mental issues” were causing his behavior.

She also described him as “spoiled” and “lazy” for his resistance to her attempts to potty

train him. At first, Flores admitted only to spanking N.F. with her hand to “discipline him.”

Later, she admitted that she also used a wooden shower brush, and “just kept hitting him,

until [she] realized” what she had done. She admitted to using the wooden brush multiple

times, knowing “not to hit him in the same spots.” Flores admitted to using the wooden

brush as recently as the week before the incident to strike N.F.’s back because he would

sink into the toilet during potty training. She then explained that on the night in question,

N.F. had peed in the bed and she told him to go the restroom. She said: “As soon as |

told him to get up, . . . he starts making a whiny face. | have to drag him to the restroom,

force him to go to the restroom. . . . | went and grabbed his clothes,” and when she came

back, N.F. was lying on his side in the bathtub, non-responsive. After trying to do CPR,

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she stated “we just drove straight to the hospital.”

In a pre-arrest interview on March 3, 2021, which was entered into evidence, Garza

admitted to sharing a residence with Flores and N.F. for the past two years. Garza

detailed how N.F. had spent most of his life with his maternal grandparents, and that N.F.

had only been staying with them for a few months, having moved in around August of

2020. Garza mentioned that the grandparents might have not wanted to care for N.F. any

longer because of his “attitude problem,” and he opined that N.F. was autistic. Garza

stated that he was unemployed and would watch N.F. when Flores would work. Like

Flores, when asked to explain N.F.’s injuries, Garza stated that N.F. would have episodes

and “hit himself,” including sometimes while bathing. Garza stated that for the past three

weeks N.F. would have episodes and would “fall to the ground and hit his head,” “and

that’s how he was you know getting all that stuff on the side of his face and stuff.”! Garza

opined that N.F. behaved this way “to get a reaction out of us,” and said “that's the way

he wanted attention.” Garza denied ever disciplining N.F. or hitting him. Garza stated that

“he didn’t need to” because Flores would discipline N.F. Asked whether he was there on

the “night of this last incident,” Garza responded “yes.” As to why he did not enter the

hospital with Flores and N.F., Garza stated that he thought he would not have been

allowed inside because of COVID restrictions, and he believed the hospital was closed

because of the recent winter freeze.

After several days at Texas Children’s Hospital, N.F. died on March 1, 2021. N.F.’s

autopsy report listed the manner of death as “homicide.” The report notes that “[t]here is

1 Garza's cellphone search history was admitted into evidence. On February 28, 2021, Garza made

a search using the following queries: “knocked into a comah [sic],” and “people falling and knocking self

out.”

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evidence of multiple recent blunt force injuries involving the head, neck, torso, and the

extremities.” These injuries were “consistent with traumatic brain injury with resultant

cerebral hypoxic/ischemic neuronal damage.” There was also evidence of “remote” blunt

force injuries, including “[mJultiple healed scars involving the head, neck, torso, and the

extremities,” and “[rlemote fractures . .. on the ribs, second lumbar vertebra, hands, and

possibly the sternum.” Dr. Rafael Garcia, who performed the autopsy, testified that N.F.’s

injuries were “indicative of non{-Jaccidental injury,” and affirmed that the injuries were

“intentional.” He further narrowed the cause of death to a single instance of blunt force

trauma to the head, which caused N.F.’s traumatic brain injury. A report from the State’s

forensic pathologist notes that N.F.’s injures were consistent with “compression of the

chest” and “compression of the spinal column,” and that “the hand injuries are consistent

with one or more direct impacts to the knuckles.” The forensic pathologist testified that

some of N.F.’s injuries were weeks or months old.

Dr. Marcella Donaruma, who treated N.F. at Texas Children’s Hospital, testified on

behalf of the State as to the “kind of forces” that could have caused N.F.'s injuries, and

“what manner and means [were] used to inflict injury.” Dr. Donaruma testified that N.F.’s

injuries were not consistent with self-inflicted injuries, explaining that children “don't bang

their heads until they break bones or blood vessels.” She also explained that autism or

other psychological issues did not help explain his injuries.

Dr. Donaruma testified that, in her opinion, N.F.’s injuries were consistent with

“child torture.”

Child torture is child abuse. Child torture is defined by a constellation of

circumstances where a child experiences two or more physical assaults or

an extended—a single extended physical assault. It is coupled with

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psychological maltreatment which could take the form of depredation,

rejection, isolation, depravation, terrorizing.

And then in the context of those findings, there’s also neglect of

medical care needs, basic needs, human needs like clothing and shelter,

and the consequences of this constellation of circumstances leads to

prolonged suffering, disfigurement or disability, or death.

Dr. Donaruma noted that she had reviewed certain exhibits provided by the State,

including photographs which show Garza standing over N.F. with a bowl of food in his

hand, with a belt draped around his neck.? Dr. Donaruma also viewed a video admitted

into evidence, obtained from a search of Garza and Flores's digital devices, in which

Garza and Flores can be heard disciplining N.F. In the video, created in September of

2020, N.F. can be seen holding a blue bucket, with his arms shaking.° A large dark purple

bruise can be seen between his eyes. Garza and Flores can be heard telling N.F. the

following:

[Flores]: I’m recording him.

[Garza]: That wasn’t no spirit[*] that came out of him, that

was him throwing up, and he looked at all of us

to see if we were going to spank him or do

something, and since we didn't, this is what it

feels like. You need to cut it out man.

? This photograph was also referenced by Lingle in his arrest affidavit. Lingle further noted that a

search of the house uncovered the belt in question and black marks along the interior walls of the house.

According to Lingle, based on the condition of the belt, the marks on the wall were from the belt.

3 A similar-looking blue bucket was found during a search of the home. Photographs of the bucket

and its contents, which were entered into evidence, show that the bucket contained what appears to be

partially digested ramen noodles.

4 The State introduced into evidence a printed-out document discovered during the search of Garza

and Flores’s residence. As Lingle explained, this document describes “like an exorcism or something of

that nature, like a religious ceremony.” This document includes paragraphs like the following: “I exercise

this authority on [my child’s] behalf to break all curses, spells, evil wishes, evil distress, darkness, magic,

hereditary seals, satanic pronouncements, bonds, covenants, dedications, initiations, both known and

unknown on her mother's and father’s sides all the way back to Adam.”

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[Flores]: He’s making himself do it.

[Garza]: Now you're starting to make yourself throw up.

Now you are going to stand there and hold that

bucket. Congratulations son.

[Flores]: If you’re going to throw up, throw up. Unless

you’re making yourself do it. Hurry up.

[Garza]: You're just playing sick bro.

[Flores]: You like the camera?

[Garza]: See look at him. He knows he is being recorded,

sO....

[Flores]: | just showed him and he was all like, is that me?

[Garza]: Is that you? Yeah that is you dude.

[Flores]: Yeah, you are acting like a fool, and you are

looking like one. And we don’t like that.

[Garza]: | thought you couldn't stand. | thought you

couldn't walk. . . . You look healthy right now.

[Flores]: You're standing and throwing up in the bucket.

[Garza]: And you can hold the bucket and stand? You're

a good actor. Ain't nothing wrong with you,

you're just putting on a show _ for

everybody. ... Everything you do from now on,

we're going to record it. Anytime you don’t listen,

we're going to record it. Until you heal up and

then you can get spanking again. But from now

on, this is what we are going to do. We are going

to keep a record of everything that you do, that

way people can start realizing how bad you are

and how much you don’t listen, and how for

everybody else, you just put on a show and an

act... . Now you want to spit up and everything.

As Dr. Donaruma explained, N.F.’s internal injuries would have caused him “pain,”

“vomiting,” and “[h]e would probably have decreased appetite, if any.” “He might get

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dehydrated from the [inJability to either take in or hold down liquid.” Dr. Donaruma stated

that “[t]his was child torture.” She continued:

With what | saw, based on the videos you showed me and his body and

radiology studies, | believe this was ongoing, and | know it started in that

September video at least, and then he died in February. . . . Torture is

practiced for the purposes of dominance and control to break somebody,

their will. . . . Torture is on purpose, with an agenda. It is cruel. It is

dehumanizing.

Dr. Donaruma further explained that a person of average or below average intelligence

would have noticed N.F.’s injuries.

At the conclusion of the evidence from both sides, the jury returned a guilty verdict,

and the trial court imposed a term of life imprisonment without the possibility of parole.®

This appeal followed.

I. IsSUES RELATED TO PUNISHMENT & LESSER-INCLUDED OFFENSES

In her first four issues, Flores argues that (1) the trial court erred when it notified

Flores that no punishment issues would be permitted during voir dire; (2) the trial court

erred by preventing Flores from making a jury election on punishment for count one;

(3) the “trial court erred by proclaiming and ordering, ‘there will be no voir dire on lesser

includeds because there are no lesser includeds”; and (4) the trial court abused its

discretion in overruling Flores’s objection to the jury charge and her request for

instructions on lesser-included offenses. We address the issues together.

A. Standard of Review & Applicable Law

We review a trial court’s refusal to submit a lesser-included offense instruction for

an abuse of discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023)

5 Garza was also convicted of capital murder and sentenced to life imprisonment without the

possibility of parole. Garza is not a party to this appeal.

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(citing Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004)). A trial court

abuses its discretion when it acts without reference to any guiding rules and principles or

when it acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.

Crim. App. 2019) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990)). Therefore, we will uphold a trial court's ruling if it is within the “zone of reasonable

disagreement.” Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021)

(quoting Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).

“To determine whether a defendant is entitled to an instruction on a lesser-included

offense, we apply a two-pronged test.” Wade v. State, 663 S.W.3d 175, 181 (Tex. Crim.

App. 2022) (citing Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007)); see TEX.

CODE CRIM. PROC. ANN. art. 36.14 (providing that in every felony case, the trial court must

“deliver to the jury .. . a written charge distinctly setting forth the law applicable to the

case”). “First, a reviewing court must determine as a matter of law whether the lesserincluded offense is truly a lesser-included offense.” Wade, 663 S.W.3d at 181 (citing Hall,

225 S.W.3d at 535). “Second, there must be some evidence in the record establishing

that, if the defendant is guilty, he is guilty of only the lesser offense.” /d. (citing Hall, 225

S.W.3d at 536). “In other words, the evidence must establish that the lesser-included

offense provides the jury with a ‘valid, rational alternative to the charged offense.” /d.

(quoting Hall, 225 S.W.3d at 536). This second prong is sometimes referred to as the

“guilty-only requirement.” Chavez, 666 S.W.3d at 776. “[T]he guilty-only requirement is

met if there is affirmative evidence of a factual dispute that raises the lesser offense and

rebuts or negates other evidence establishing the greater offense.” /d. (citing Roy v. State,

509 S.W.3d 315, 319 (Tex. Crim. App. 2017)). “It does not matter if the factual dispute is

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based on direct or circumstantial evidence so long as a rational jury could interpret the

record in a way in which it could find the defendant guilty of only the lesser-included

offense.” /d.

“Regardless of the strength or weakness of the evidence, if more than a scintilla of

evidence, from any source, raises the issue that the defendant was guilty only of the

lesser offense, then the defendant is entitled to an instruction on the lesser offense.”

Wade, 663 S.W.3d at 181 (citations omitted). “We consider all the evidence admitted at

trial,” and “a defendant's testimony alone may be sufficient to raise the issue.” /d. (citations

omitted). For this analysis, “we view the facts in the light most favorable toward submitting

the instruction, not in a light most favorable to the verdict,” and “we evaluate the evidence

in the context of the entire record, but do not consider whether the evidence is credible,

controverted, or in conflict with other evidence.” /d. (citations omitted). However, “if the

defendant presents evidence that he committed no offense at all or if he presents no

evidence, and there is no evidence otherwise raising the issue, a charge on a lesser

offense is not required.” Chavez, 666 S.W.3d at 777 (cleaned up) (citations omitted).

Lastly, the Texas Court of Criminal Appeals has noted that when requesting lesserincluded offense instructions, “general or insufficiently specific objections do not preserve

error for appeal.” Williams v. State, 662 S.W.3d 452, 462 (Tex. Crim. App. 2021) (citations

omitted).

A defendant who files or dictates a laundry-list of objections to the charge

must also specify the legal or factual reasons why he believes himself

entitled to such special instructions. This requirement alerts the trial court,

and the opposing party, of what strategic jury instructions the party wants

and why he is entitled to them. Again though, under Rule 33.1, if the grounds

for the instruction are obvious to the court and opposing counsel, then error

is preserved for appeal. Thus, the trial judge errs only when he refuses to

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submit an instruction on an actual lesser included when (1) such specific

evidence is manifest, or (2) the defendant points to the specific evidence

that negates the greater offense but supports the lesser offense.

Id. (citations omitted).

B. Discussion

In the trial court, Flores specifically requested instructions on the following lesserincluded offenses: injury to a child, manslaughter, aggravated assault causing serious

bodily injury, and criminally negligent homicide. On appeal, Flores also argues that a

lesser-included instruction for felony murder would have been appropriate. As to felony

murder, Flores did not ask for this instruction in the trial court and thus has failed to

preserve error as to this lesser-included offense. See Paz v. State, 44 S.W.3d 98, 100

(Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (“Appellant did not request that the jury

be charged on criminally negligent homicide at trial. As a result, appellant did not preserve

error for our review on criminally negligent homicide, and we will not consider appellant's

point of error with respect to that issue.”).

As to the remaining lesser-included offenses, during trial, defense counsel broadly

argued that the “evidence showed that [if Flores] was guilty of anything, [she was] guilty

of only an unintentional killing or reckless killing, not intentional or knowingly.” Defense

counsel then made specific requests as to each lesser-included offense. First, defense

counsel argued that “evidence has been presented which is subject to different

interpretations. Specifically, | am asking for the lesser included of injury to a child, serious

bodily injury being included because the cause of death has been subject to different

interpretations on the record.” As to manslaughter, defense counsel argued that Flores

“in her statement, admitted to striking [N.F.] for discipline, so then she did this then and

are)

there recklessly causing the death, when she was aware, but consciously disregards a

risk that death will occur.” Defense counsel separately urged an instruction for aggravated

assault causing serious bodily injury. At this point, the trial court interjected and asked

defense counsel “[w]hat evidence has been admitted to negate the higher offense?”

Defense counsel responded as follows:

[Defense Counsel]: Serious bodily injury was caused, but [Flores],

acting alone or even as a party, did not intend

death.

Evidence presented: When she's giving

her statement, striking the child, let's say,

causing serious bodily injury. The child dies five

days later at the hospital.

Death wasn't intended, but it would have

been an aggravated assault [causing] serious

bodily injury. Intervening causes in the middle.

Defense counsel then requested an instruction for criminally negligent homicide.

Defense counsel's only statement in support of this instruction was as follows: “An

unintentional killing by complete disregard or [in]difference for human life. No intent to

cause death; that has been brought up. The nurses testified to reckless failing to do

anything, but not wanting for the child to die.” The trial court denied each one of defense

counsel's requests, overruling her objections to the jury charge.

As to Flores's admission that she struck N.F., the record does not support defense

counsel's contention that Flores’s statement about disciplining N.F. was evidence of an

“unintentional killing or reckless killing.” Flores never admitted to striking or hitting N.F. on

the night in question, as defense counsel seemed to suggest when arguing that Flores

may have struck N.F. with the intent to cause serious bodily injury only. Although Flores

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admitted to hitting N.F. with her hand and the wooden shower brush on prior occasions,

as recently as a week before, she denied hitting or striking him on that night. According

to Flores, on the night in question N.F. peed himself and after he refused to go the

restroom, Flores had to “drag” an uncooperative N.F. “to the restroom, force him to go to

the restroom.” Flores then left N.F., who was “stumbl[ing]” and “fall[ing],” alone in the

bathtub as she went to get his clothes and returned to N.F. non-responsive in the bathtub.

Because Flores never admitted to hitting or striking N.F. on the night he became

non-responsive, defense counsel's re-characterization of the evidence did not provide the

trial court any “affirmative evidence of a factual dispute that raises the lesser offense and

rebuts or negates other evidence establishing the greater offense.” Chavez, 666 S.W.3d

at 776. Defense counsel’s suggestion that Flores's admission to striking N.F. on prior

occasions to discipline him constituted evidence supporting her striking him on the night

in question with a lesser state of mind is speculative and does not constitute any

affirmative evidence negating one of the elements of capital murder. See Cavazos v.

State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (noting that satisfying the guilty-only

requirement “requires more than mere speculation—it requires affirmative evidence that

both raises the lesser-included offense and rebuts or negates an element of the greater

offense.” (emphasis added)). Rather, here, Flores “present[ed] evidence that [s]he

committed . . . no offense at all,” which does not require a charge on a lesser-included

offense. /d. at 777, Because there was no evidence otherwise showing or indicating that

Flores may have struck N.F. on the night in question with a lesser state of mind, the trial

court did not abuse its discretion in denying lesser-included offense instructions based on

Flores’s admission to “striking” N.F; at the most, the decision was within the zone of

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reasonable disagreement. See id.; Inthalangsy, 634 S.W.3d at 754.

As to defense counsel's statement that “the cause of death has been subject to

different interpretations on the record,” we find that defense counsel's statement was too

general and insufficiently specific to preserve error for appeal. See Williams, 662 S.W.3d

at 462. Defense counsel failed to inform the trial court which testimonial or documentary

evidence provided “different interpretations” as to the cause of death. In fact, the record

suggests just the opposite. Dr. Cedillo, Dr. Garcia, and Dr. Donaruma all opined that

N.F.'s injuries were either “intentional” or “non[-Jaccidental,” with Dr. Donaruma stating

that N.F. was the victim of child torture, which is done “on purpose, with an agenda.”

In Williams, appellant was charged with continuous trafficking of persons, and

requested “a jury instruction on the lesser-included offense of human trafficking of

persons[.]" 662 S.W.3d at 455. Before the request for a lesser-included offense

instruction, “the trial court heard [a]ppellant testify in his defense and deny that he

committed any offense at all.” /d. at 463. The record suggested that an off-the-record

charge conference took place, but when pointing to the facts in support of the lesserincluded offense, the only statement provided by defense counsel was that he “believe[d]

there was in substance” evidence satisfying the guilty-only requirement. /d. In ruling

against appellant, the Williams court concluded,

Appellant argues that his complete denial of the offense of trafficking does

not, as the State would have it, automatically bar him from receiving a

lesser-included offense instruction. But we are not addressing whether the

instruction is warranted by evidence at trial. We are addressing, in the first

instance, whether the grounds for the request would have been obvious to

the trial court so that any error in failing to give the instruction was preserved

for appeal. And they would not have been so here. The trial court asked

whether there was evidence that negated the greater offense. Counsel's

response, ‘I believe there was in substance[,]’ failed to direct the trial court

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to specific evidence justifying the jury instruction. And, as the trial court

started to ask another question, counsel cut the court off, saying, ‘Okay.

And then, the Court makes the ruling. It is what it is.’ Because the evidence

supporting trafficking as a rational alternative to the charged offense was

not obvious, and [a]ppellant failed to point to it, the trial court, reversed on

appeal, was classically ‘sand-bagged.’ The reason the contemporaneous

objection rule exists is to give the trial judge an opportunity to make a given

ruling and to get it right.

Id. at 463-64 (alterations in original).

Likewise, here, we conclude that defense counsel’s general and non-specific

statement that “the cause of death has been subject to different interpretations on the

record,” did not provide the trial court with “specific evidence that negates the greater

offense but supports the lesser offense,” especially considering the overwhelming

testimonial and documentary evidence supporting an intentional and non-accidental

killing. See id. at 462. Further, given the fact that Flores denied hitting or striking N.F. on

the night in question, as in Williams, the specific grounds for the requested lesserincluded offenses would not have been apparent to the trial court. See 662 S.W.3d at 463

(faulting court of appeals for concluding that a lesser-included offense instruction was

required because the court relied on facts not provided by defense counsel in urging its

motion for a lesser-included offense and noting that “[nJone of this specific evidence was

manifest because the defensive theory was that he did not commit any crime”).®

5 In her brief, Flores points to a list of facts which she argues support any one of her proposed

lesser-included offense instructions. For example, Flores points to the fact that she brought N.F. to the

hospital, she looked distraught when entering the hospital, she was screaming for help when she entered

the hospital, she attempted to perform CPR on N.F., and she did not attempt to conceal N.F.'s body.

However, defense counsel pointed to none of these facts when urging its lesser-included offense

instructions, and these specific facts were in no way manifest from the context of defense counsel's

argument. See Williams v. State, 662 S.W.3d 452, 462 (Tex. Crim. App. 2021). Accordingly, Flores did not

preserve error as to those factual bases and we cannot conclude that the trial court committed error based

on them. /d.

17

Lastly, in support of an instruction on criminally negligent homicide, defense

counsel argued that the evidence showed “[nJo intent to cause death,” and asserted that

the “nurse testified to reckless failing to do anything, but not wanting for the child to die.”

However, any statement made to a nurse after N.F. was admitted to the hospital, absent

any other evidence evincing a lesser state of mind, does not show that Flores had a lesser

state of mind at the time she inflicted the injury, either as a principal or party, that caused

N.F.'s death.

In Cavazos, appellant was charged with murder and requested manslaughter as a

lesser-included offense. 382 S.W.3d at 384. Appellant was accused of shooting the

victim, and when requesting the manslaughter instruction, the only evidence that

appellant pointed to was a witness’ testimony that after the shooting, appellant “told her

that he did not mean to shoot anyone.” /d. at 385. The Texas Court of Criminal Appeals

rejected appellant's argument, reasoning that

There was no evidence directly germane to recklessness. Pulling out a gun,

pointing it at someone, pulling the trigger twice, fleeing the scene (and the

country), and later telling a friend “I didn't mean to shoot anyone” does not

rationally support an inference that Appellant acted recklessly at the

moment he fired the shots. The evidence here does not support a finding of

recklessness and does not rise to level that would convince a rational jury

to find that if Appellant is guilty, he is guilty of only the lesser-included

offense. Without additional evidence supporting a finding of recklessness,

Salais’s testimony alone is insufficient to require an instruction on the

lesser-included offense of manslaughter. Because the facts did not raise

manslaughter as a valid, rational alternative to the charged offense,

[a]ppellant was not entitled to the requested jury instruction.

Id, at 385-86.

We find the reasoning of Cavazos applicable here. Here, there was no evidence

“directly germane” to a lesser state of mind. See id. at 385. Given the other facts and

18

circumstances of the case, including Flores’s denial of hitting or striking N.F. on the night

in question and her acts evincing consciousness of guilt, her statements to a nurse once

N.F. was already in the hospital do not “rationally support an inference” that Flores acted

with a lesser state of mind “at the moment” that N.F.’s fatal injuries were caused. See id.

Flores has failed to show that this evidence satisfies the guilty-only requirement, and, at

most, the trial court’s decision was within the zone of reasonable disagreement. See id.;

Inthalangsy, 634 S.W.3d at 754.

Having reviewed the evidence in support of Flores’s proposed lesser-include

offense instructions, we have concluded that the evidence referred to by Flores either

does not satisfy the guilty-only requirement as to any of the proposed lesser-included

offenses, see Chavez, 666 S.W.3d at 776, or that defense counsel’s objections to the jury

charge were so general as to fail to preserve error. See Williams, 662 S.W.3d at 462.

Accordingly, we overrule Flores’s fourth issue.

Having found no error in the trial court's rejection of Flores’s requested lesserincluded offense instructions, we need not address the merits of Flores’s remaining claims

as to punishment. The capital murder statute imposes a mandatory sentence of life

imprisonment without parole where, as here, the State does not seek the death penalty.

See TEX. PENAL CODE ANN. § 12.31. Therefore, any alleged errors by the trial court related

to punishment could not have possibly contributed to Flores’s conviction or punishment.

See, e.g., Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996) (“Because

appellant was convicted of capital murder, any erroneous or misleading hypotheticals to

prospective jurors about punishment for the lesser-included offense of murder made no

contribution to appellant’s conviction or punishment,” and “[wle need not address the

19

merits of this allegation because any error would be harmless.”). We overrule Flores’s

first and second issues.

As to Flores’s third issue, according to which the trial court erred in preventing her

from asking questions regarding lesser-included offenses during voir dire, we conclude

that she failed to preserve error. This case is substantially similar to Mohammed v. State,

in which the appellant was charged with capital murder and requested to ask prospective

jurors questions “on the lesser included offenses of felony murder, kidnapping, and

robbery.” 127 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). The court

of appeals continued,

Appellant notes that the trial court denied questioning about the lesser-

included offenses, as well as the punishment for them, on the basis that no

evidence would be presented raising the lesser-included offenses.

Appellant claims that, when, as here, the evidence raises the lesser-

included offenses, restriction of voir dire questioning concerning them

constitutes reversible error.

Id.

The Mohammed court found that appellant had failed to preserve error because

he did not propose “particular, proper questions’ to the trial court. /d. (citing Sells v. State,

121 S.W.3d 748, 754-57 (Tex.Crim.App.2003)). The court of appeals reasoned,

The Court of Criminal Appeals [has] held that, to preserve error, an

appellant must show that he was prevented from asking particular questions

that were proper. That the trial court generally disapproved of an area of

inquiry from which proper questions could have been formulated is not

enough because the trial court might have allowed the proper question had

it been submitted for the court’s consideration. Because appellant did not

show that he was prevented from asking a particular, proper question, he

failed to preserve error for review.

Id. (cleaned up).

20

The reasoning in Mohammed applies to this case. See id. In particular, we note

that Flores filed an objection to the trial court's voir dire restrictions, but did not provide or

propose any particular, proper questions to the trial court. Further, defense counsel did

not provide or propose any particular, proper questions when presenting argument on this

issue before voir dire. Accordingly, we conclude that Flores failed to preserve error. Id.

We overrule Flores’s third issue.

lll. | OFFER OF PROOF

By her fifth issue, Flores argues that the trial court “refused to permit any offer of

proof and challenged [her] to go the appeals court for relief.” On cross-examination of Dr.

Cedillo, defense counsel asked if she had training with battered women and if she could

describe “some characteristics of a battered woman.” The State objected on relevancy

grounds, and the trial court sustained the objection. Later, after Dr. Cedillo had completed

her testimony, defense counsel asked to make an “offer of proof’ as to the line of

questioning previously prohibited. The trial court denied this request, noting that it “would

have to have the witness come back so that you could ask those questions.” The trial

court also told defense counsel to “[p]Jut anything you want on the record.”

A. Standard of Review & Applicable Law

In order to preserve error regarding a trial court's decision to exclude evidence, the

complaining party must comply with Texas Rule of Evidence 103 by making an “offer of

proof’ which sets forth the substance of the proffered evidence. TEx. R. EviD. 103(a)(2)

(“A party may claim error in a ruling to admit or exclude evidence only if the error affects

a substantial right of the party and . . . if the ruling excludes evidence, a party informs the

court of its substance by an offer of proof, unless the substance was apparent from the

21

context.”). “The offer of proof may consist of a concise statement by counsel, or it may be

in question-and-answer form.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.

2009) (citing Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)). “If in the form of

a statement, the proffer ‘must include a reasonably specific summary of the evidence

offered and must state the relevance of the evidence unless the relevance is apparent,

so that the court can determine whether the evidence is relevant and admissible.” /d. at

889-90 (quoting Warner, 969 S.W.2d at 2). “An offer of proof needs to show the facts that

a defendant wishes to prove; if it does not do so, the issue is not preserved for appellate

review.” Railsback v. State, 95 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref'd) (citation omitted).

A party has an absolute right to make an offer of proof. See Kipp v. State, 876

S.W.2d 330, 333 (Tex. Crim. App. 1994). Where an appellant is precluded from making

an offer of proof, we ordinarily must “abate the appeal and remand to the trial court for a

hearing so that appellant can . . . properly perfect the record.” Spence v. State, 758

S.W.2d 597, 599-600 (Tex. Crim. App. 1988) (citations omitted). However, such an error

is harmless if the appellant does not raise a point of error on appeal predicated on the

excluded evidence. See Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref'd) (“[A]s appellant has not raised an issue in this appeal arguing

the trial court erred in excluding Detective Avila's testimony, an abatement to permit

counsel to develop the appellate record would serve no purpose as it would not result in

the development of any information relevant to this appeal.” (citing Rivera v. State, 981

S.W.2d 336, 341 (Tex. App.—Houston [14th Dist.] 1998, no pet.))).

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B. Discussion

The record shows that the trial court explicitly told defense counsel to “[p]ut

anything you want on the record.” Accordingly, defense counsel was allowed to make an

offer of proof by making a concise statement on the record. See Mays, 285 S.W.3d at

889. Regardless, setting this fact aside, any error in precluding defense counsel’s offer of

proof was harmless because Flores does not argue on appeal that the trial court erred in

excluding Dr. Cedillo’s testimony about battered woman syndrome. See Andrade, 246

S.W.3d at 227. We overrule Flores'’s fifth issue.

IV. IMPROPER JUDICIAL COMMENT

By her sixth issue, Flores argues that the trial court erred by improperly

commenting on the weight of the evidence. In particular, Flores complains that during the

testimony of Dr. Garcia about N.F.’s autopsy, the trial court stated: “Doctor don’t feel that

you have to pare down. If something you're doing or seeing has some application to this

autopsy, go ahead and explain everything because | want—a visual picture is worth a

thousand words.”

A. Standard of Review & Applicable Law

“Due process requires a neutral and detached hearing body or officer.” Brumit v.

State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S.

778, 786 (1973)). “Absent a clear showing of bias, a trial court’s actions will be presumed

to have been correct.” /d. “In his discretion, a judge may lawfully provide guidance and

manage the presentation of evidence without abandoning his role as a neutral and

independent arbiter.” Barron v. State, 630 S.W.3d 392, 408 (Tex. App.—Eastland 2021,

23

pet. ref'd) (citing Strong v. State, 138 S.W.3d 546, 552 (Tex. App.—Corpus Christi-

Edinburg 2004, no pet.)).

A judge shall not, “at any stage of the proceeding previous to the return of the

verdict, make any remark calculated to convey to the jury his opinion of the case.” TEx.

CODE CRIM. PROC. ANN. art. 38.05; see Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim.

App. 2003) (holding that a trial judge must refrain from making any remark calculated to

convey his opinion of the case because jurors give special and peculiar weight to the

language and conduct of the trial judge). By creating “a duty on the trial court. . . to refrain

sua sponte from a certain kind of action,” article 38.05 provides the defendant with a right

to be tried in a proceeding devoid of improper judicial commentary. See Proenza v. State,

541 S.W.3d 786, 798-801 (Tex. Crim. App. 2017). “The trial court improperly comments

on the weight of the evidence if it makes a statement that implies approval of the State’s

argument, indicates disbelief in the defense’s position, or diminishes the credibility of the

defense’s approach to the case.” Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—

Houston [14th Dist.] 2006, no pet.).

Generally, the violation of a statutory provision amounts to no more than nonconstitutional error and “must be disregarded” unless the error affects the substantial

rights of the accused. Tex. R. APP. P. 44.2(b). A defendant's substantial rights are affected

if the erroneous admission of evidence had a “substantial and injurious effect or influence”

on the jury’s verdict. Cook, 665 S.W.3d at 599. A defendant's substantial rights are not

affected by trial court error if, after examining the record as a whole, we have fair

assurance that the error did not influence the jury or had but a slight effect. Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

24

When we assess the likelihood that an error adversely influenced the jury, we

consider the entire record, including (1) the character of the alleged error and how it might

be considered in connection with other evidence, (2) the nature of the evidence

supporting the verdict, (3) the existence and degree of additional evidence indicating the

defendant's guilt, and (4) whether the State emphasized the complained-of error.

Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Motilla, 78 S.W.3d at

356-58.

B. Discussion

Flores has not shown any bias on the part of the trial court in making the

complained-of comment and has failed to rebut the presumption that the trial court acted

properly. See Brumit, 206 S.W.3d at 645. Here, the trial court’s comments merely

“provide[d] guidance” to the witness and helped to “manage the presentation of evidence,”

a permissible and necessary role of the trial court. See Barron, 630 S.W.3d at 408.

Further, Flores does not argue or otherwise articulate how this comment by the

trial court resulted in a “substantial and injurious effect or influence” on the jury's verdict.

See Cook, 665 S.W.3d at 599. For example, in Proenza v. State, we found reversible

error based on improper judicial comments where the appellant complained that the “trial

court's questioning of [an expert witness] for almost ten pages of the record served to

discredit his defensive theory, rebut his presumption of innocence, and sway the jury's

verdict.” 555 S.W.3d 389, 399 (Tex. App.—Corpus Christi-Edinburg 2018, no pet.). After

an extensive review of the record, we concluded that:

The subject of the extended exchange between the trial court and the

State's witness related directly to a defensive theory. The court conveyed

its opinion to the jury regarding one of the main issues of the case—whether

25

Proenza’s failure to seek medical care for A.J.V. caused the child to suffer

injury. This, combined with the character of the judicial error; its effect on

Proenza’s defense to the failure-to-seek-medical-care theory of the case;

the court's voir dire explanation that the case involved the death of a child,

a death that was caused by omissions that included failure to seek medical

care; arguments by both sides that emphasized the two theories of omission

as well as Proenza’s defensive theory; and the evidence before the jury that

was not overwhelming on the matter of medical-care consent, leads us to

conclude that the comments by the trial court more than slightly influenced

the verdict.

Id. at 404-05.

Reviewing the record as a whole, we cannot conclude that the complained-of

comment here had such a “substantial and injurious effect or influence” on the jury’s

verdict sufficient to warrant reversal. See Cook, 665 S.W.3d at 599. Considering the

limited nature of the comment, together with the nature and degree of the evidence

supporting conviction, we cannot say that the complained-of comment had any more than

a slight effect on the jury’s verdict, if any. See Gonzalez, 544 S.W.3d at 373; Motilla, 78

S.W.3d at 355. Therefore, even if we found the trial court’s remark to be an improper

comment on the weight of the evidence, the error would not be reversible. See Tex. R.

App. P. 44.2(b). We overrule Flores’s sixth issue.

V. FIFTH AMENDMENT VIOLATION

By her seventh issue, Flores argues that the State improperly commented on

Flores’s post-arrest silence when, during rebuttal closing argument, the prosecutor stated

as follows: “How many people came up and said, [t]his | saw happen, under oath, subject

to perjury? Something that would give it more meat, more credibility subject to cross-

examination. You don't have that.” This statement followed defense counsel's argument

in closing that Flores “could not escape” Garza, and that she was abused and controlled

26

by Garza.

A. Standard of Review & Applicable Law

Proper prosecutorial argument should generally fall within one of the following

categories: (1) summation of the evidence; (2) reasonable deductions from the evidence;

(3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Brown

v. State, 270 S.W.3d 564, 571 (Tex. Crim. App. 2006); Cantu v. State, 944 S.W.2d 669,

671 (Tex. App.—Corpus Christi-Edinburg 1997, pet. ref'd). “In examining challenges to

jury argument, the Court considers the remark in the context in which it appears. Counsel

is allowed wide latitude without limitation in drawing inferences from the evidence so long

as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

“When a prosecutorial remark impinges upon an appellant's privilege against selfincrimination under the constitution of Texas or of the United States, it is error of

constitutional magnitude.” Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App.

2011). “The comment must clearly refer to the accused's failure to testify, and it is not

sufficient if it might be construed as an implied or indirect allusion.” Canales v. State, 98

S.W.3d 690, 695 (Tex. Crim. App. 2003) (cleaned up) (citations omitted). “The test is

whether the language used was manifestly intended or was of such a character that the

jury would necessarily and naturally take it as a comment on the defendant's failure to

testify.” Id.

B. Discussion

Here, the complained-of statement was directly responsive to defense counsel's

argument that Flores was controlled by Garza and that others were “apprehensive and

27

scared of him.” The entire statement in context is as follows:

Controlled by [Garza]. Yeah, there’s some [evidence]. Does that explain it?

Does that excuse it? She said she'd bring some [evidence]. There is some,

okay. But | want you to know that all of this is from what? Third parties,

might have heard, okay. Here is the thing. How many people came up and

said, [t]his | saw happen, under oath, subject to perjury? Something that

would give it more meat, more credibility subject to cross-examination. You

don't have that.

In its proper context, the State’s comment was a permissible answer to argument

of opposing counsel. See Brown, 270 S.W.3d at 571. The State was arguing that,

although Flores could point to some “third party” witness testimony to support the

inference that Garza controlled Flores, none of those witnesses testified to personally

observing instances of controlling or abusive behavior.’ The State did not “clearly refer

to [Flores]'s failure to testify,” and given the context of the statement, we cannot conclude

that “the jury would necessarily and naturally take [the complained-of statement] as a

comment on [Flores]’s failure to testify.” Canales, 98 S.W.3d at 695. Accordingly, we

overrule Flores’s seventh issue.

VI. ADMISSION OF GRAND JURY FOREMAN TESTIMONY

In her eighth issue, Flores argues that the trial court erred in permitting the grand

jury foreman to testify. The State called Rodney Roberson, the grand jury foreman, to

testify in support of the State’s contention that the manner and means of committing the

offense were unknown to the grand jury. On appeal, Flores argues that this testimony

violated the rules pertaining to the secrecy of grand jury proceedings. See TEX. CODE

? When defense counsel argued that Garza controlled Flores and that she could not escape him,

the State objected, and the trial court in a bench conference asked defense counsel what evidence in the

record supported her claim that Flores “couldn't escape,” to which defense counsel responded as follows:

“So the family—and we've given examples in which they said every time she would try to leave, he would

go get her.”

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CRIM. PRoc. ANN. arts. 20A.202, 20A.203.

A. Standard of Review & Applicable Law

We review the challenge to the admission of evidence under an abuse of discretion

standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court

abuses its discretion when it acts without reference to any guiding rules and principles or

when it acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669. Therefore, we will

uphold a trial court’s ruling on admissibility if it is within the “zone of reasonable

disagreement.” /nthalangsy, 634 S.W.3d at 754. The trial court's erroneous admission of

evidence generally constitutes non-constitutional error. Gonzalez, 544 S.W.3d at 373. As

such, we must disregard the error unless it affected an appellant's substantial rights. See

TEX. R. APP. P. 44.2(b).

B. Discussion

Aside from Flores’s bare assertion of “fundamental error,” she does not state how

Roberson’s testimony in any way influenced the jury’s verdict. Given the limited nature of

Roberson’s testimony, the nature and degree of the evidence supporting the verdict, and

the failure of Flores to cite any portions of the record wherein the State emphasized the

complained-of error, we cannot conclude that Roberson’s testimony had a “substantial

and injurious effect or influence” on the jury's verdict. Cook, 665 S.W.3d at 599. Thus,

any error in admitting such testimony must be disregarded. Gonzalez, 544 S.W.3d at 373;

Tex. R. APP. P. 44.2(b). We overrule Flores’s eighth issue.

Vil. © CONSTITUTIONALITY OF CAPITAL MURDER STATUTE

By her ninth issue, Flores argues that the capital murder statute under which she

was convicted “is unconstitutional on its face and a violation of the mandate of Furman v.

29

Georgia, 408 U.S. 238 (1972),” because the imposition of a life sentence without the

Possibility of parole constitutes cruel and unusual punishment. The United States

Supreme Court and the Texas Court of Criminal Appeals have rejected such arguments

and have held that a mandatory life sentence without parole does not violate the Eighth

Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991); Avalos v. State,

635 S.W.3d 660, 672 (Tex. Crim. App. 2021) (applying Harmelin and holding that a

mandatory life sentence without parole imposed on an intellectually disabled person does

not violate the Eighth Amendment). Consequently, Flores’s claim is without merit. See

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

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

criminal appeals.”). We overrule Flores’s ninth issue.

Vill. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PENA JR.

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the

5th day of December, 2024.

30