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Case Number: 07-18-00391-CR
Judge: Brian Quinn
Court: Court of Appeals Seventh District of Texas at Amarillo
Plaintiff's Attorney: Bill Helwig
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We address the second issue first, as it would provide appellant the greatest relief
if sustained. See Chaney v. State, 314 S.W.3d 561, 565 n.6 (Tex. App.—Amarillo 2010,
pet. ref’d). Through it, appellant challenges the sufficiency of the evidence to establish
the mens rea element of the offense. That is, the evidence allegedly failed to establish
that she acted or nter>to act intentionally or knowingly. As she said, “the issue is whether
an expert opinion, which ignore[s] a broad swath of contradictory science, in concluding
that an injury was intentionally inflicted, can support a verdict for intentional or knowing
conduct.” The experts in question deduced from the severity of the injuries that those
injuries were intentionally inflicted. But, their opinions, according to appellant, are
insufficient to support a finding that appellant intentionally or knowingly caused the injuries
because they either were 1) “based on years of experience, and education in pediatrics”
as opposed to “an understanding or application of biomechanics” and 2) contradicted by
“objective” scientific evidence illustrating that like trauma could be caused by an
accidental fall from the height of 24 inches. So, “[i]n light of the objective evidence before
the jury, the current state of the science and the lack of objective support for the expert
opinion of ultimate intent, this Court should not consider [the experts’] testimony as
probative of intent.” We overrule the issue.
Appellant’s argument is premised on the supposition that there was only one way
to convict her, which consisted of proving she somehow exerted physical force against
the child. However, both the jury charge and evidence illustrate otherwise. Moreover,
she failed to address those alternate avenues and explain why the evidence would be
insufficient to establish her guilt under them.
As evinced by the verdict form, the jury found the appellant “guilty of the offense
of intentionally or knowingly by act or by omission caus[ing] to a child serious bodily
injury.” (Emphasis added). This was after the trial court charged the jury to “find the
defendant guilty of intentionally or knowingly by act or omission caus[ing] serious bodily
injury to a child” if it found appellant 1) “did then and there by act, intentionally or
knowingly, cause serious bodily injury to [the child] by striking or hitting the said [child] . . .
OR” 2) “did intentionally or knowingly by omission cause to [the child] serious bodily
injury, by failing to provide adequate and necessary protection for the said [child] . . . from
serious bodily injury.” (Emphasis added).
As can be seen, the jury was told of two paths leading to conviction. One involved
an intentional or knowing act and the other, an intentional or knowing omission. In view
of the nonspecific nature of the verdict rendered, we do not know what avenue it selected.
So, logically, it was incumbent upon appellant to illustrate on appeal why the evidence, if
any, underlying each avenue was insufficient. Unless she illustrated how the evidence
was not enough to prove an intentional or knowing act or an intentional or knowing
omission on her part, we could not say that the jury erred in convicting her for injuring the
Her attack simply focused on guilt through intentional or knowing act, and her effort
lay with attacking the expert opinions about the injuries being intentionally caused.
Nothing was said about guilt through intentional or knowing omission. And, there was
evidence of omissions on appellant’s part. The first concerns her initial allegation that a
supposedly aggressive two-year-old in the household caused the injuries. Assuming he
did, evidence indicates she not only knew of them but also was counseled to keep the
infant and the “little bit restless” two-year-old separated. Though appellant agreed, the
older undoubtedly maintained access to the younger while both were under her care, for
the injuries could not have occurred otherwise, if appellant’s contention were to be
afforded any credence.
Evidence of another omission on appellant’s part appears of record. It involves
her explanation that the injuries arose from the infant failing from the couch. Apparently,
the child had “frequent falls,” consisting of falling off the bed “six times” or falling from “the
bed or couch on other occasions.” Moreover, one recent alleged fall from a bed resulted
in the infant being taken to a medical clinic after suffering slight head trauma. And, though
appellant was counseled to place the crawling eight-month-old in a crib as opposed to a
couch or bed, she continued to do otherwise since the bed and/or couch was more readily
available than the crib.
One may commit injury to a child by act or omission. TEX. PENAL CODE ANN.
§ 22.04(a)(1) (West 2019). The offense is a result-oriented one wherein the mens rea
relates to the result of the conduct, not to the conduct itself. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007); Harris v. State, No. 07-10-00452-CR, 2012 Tex. App.
LEXIS 9131, at *15 (Tex. App.—Amarillo Nov. 12, 2012, pet. ref’d, untimely filed) (mem.
op., not designated for publication). And, evidence is sufficient to support a conviction for
injuring a child by omission where it illustrates either that a defendant intended to cause
the injury through her omission or that she was aware that her omission was reasonably
certain to cause the injury. See Dorch v. State, Nos. 04-18-00360-CR, 04-18-00361-CR,
2019 Tex. App. LEXIS 10308, at *9–10 (Tex. App.—San Antonio Nov. 27, 2019, no pet.
h.) (mem. op., not designated for publication). As mentioned above, there is evidence of
omissions by appellant encompassing her failure to protect the child. She knew of them
and the injury they could cause. Yet, her conduct remained the same, especially with
regard to placing the infant on a bed or couch. At the very least, appellant had to explain
why the evidence of her repetitive omissions and their potential for injuring the child fell
short of proving she was aware that her omissions were reasonably certain to cause injury
to the eight-month-old infant. But, she did not. Absent that explanation and given the
multiple avenues for conviction permitted under the jury charge, her burden to establish
basis for reversing that conviction was not met. So, it matters not whether the experts’
opinions were sufficiently probative to establish the requisite mens rea, which means we
need not even address the matter. We overrule her issue.
Issue One – Challenge for Cause
Through the only other issue before us, appellant maintains that the trial court
abused its discretion in denying her challenge for cause levied against venire member
Griffin. We overrule the issue.
During voir dire, counsel for appellant asked the venire the same question in
different wording. The question dealt with whether the members could consider
assessing punishment in lowest applicable range, which included probation. At one point
the query consisted of the following question: “Can you consider the minimum range of
punishment, which is five years in prison for a first-degree felony, if she’s probation
eligible, and consider probation, okay?” At another point it consisted of the following: “It’s
a big range of punishment. So the question is really: Can you consider the maximum?
Can you consider the minimum?” At another, the following was asked: “Can you consider
the bottom range” of punishment if appellant were found guilty of injuring a child. Griffin
initially answered “no.” This led to defense counsel challenging him for cause.
In short order, the trial court called Griffin to the bench for further questioning. At
the bench, the State prefaced a question to Griffin by explaining the range of punishment
and the possibility of probation. Then it asked him: “[C]an [you] punish that person as
low as five years plus probation or as much as 99 . . . , can you consider that entire range
of punishment from the lowest to the highest, or do you simply believe that I can’t even
think in terms of five years and probation? It’s just too – I just can’t think that low, and . . .
I can’t follow the law”? Griffin answered: “No. I can consider it.” Then, defense counsel
asked him if he could “realistically consider probation as a possible punishment,” to which
Griffin replied, “No, not with – no.” That question and answer was followed by defense
counsel asking Griffin, “And you don’t know anything about the case. It could be any old
case. But, you know, we’re just asking: Can you consider it?” Griffin responded with “I’m
going to say yes,” and reiterated “Yes” when asked if his answer was “yes.” At that point,
defense counsel said, “[B]ased on the back and forth, I’m still going to maintain my
challenge for cause.” The trial court overruled it.
We review a trial court’s ruling on a challenge for cause with “considerable
deference” since it is in the best position to evaluate the prospective juror’s demeanor
and responses. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Moore
v. State, No. 07-09-00363-CR, 2011 Tex. App. LEXIS 6826, at *2–3 (Tex. App.—Amarillo
Aug. 23, 2011, no pet.) (mem. op., not designated for publication). That review is
undertaken by assessing whether the totality of the voir dire testimony supports the
court’s finding that the prospective juror is able or unable to follow the law as instructed.
See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (en banc). And, particular
deference is due the decision when the prospective juror’s answers are vacillating,
unclear, or contradictory. Smith v. State, 297 S.W.3d 260, 268 (Tex. Crim. App. 2009);
see Perillo v. State, 758 S.W.2d 567, 577 (Tex. Crim. App. 1988) (en banc) (in the case
of a vacillating venire member, the record supports the trial court’s ruling either way, which
means the decision of the trial court is not wrong).
Irrespective of how appellant may characterize Griffin’s “back and forth” answers,
they and the record evince a typical example of vacillation by a venire member. And,
ultimately, Griffin proffered the ability to consider probation for one convicted of injuring a
child. Under those circumstances and given the deference with which we must accord
the trial court’s ruling, we cannot say that its decision fell outside the zone of reasonable
disagreement. We cannot say that it wrongly concluded that Griffin could follow the law
and consider the entire range of punishment. Accord Tabor v. State, No. 07-15-00239
CR, 2016 Tex. App. LEXIS 3262, at *6–7 (Tex. App.—Amarillo Mar. 30, 2016, no pet.)
(mem. op., not designated for publication) (finding denial of challenge for cause was not
abuse of discretion when, at the end of individual questioning, venire member, who had
vacillated earlier, advised the trial court and counsel that he could and would follow the
law). We overrule appellant’s first issue.
Outcome: Having overruled appellant’s two issues, we affirm the trial court’s judgment.