                 PD-0442-15                                              PD-0442-15
                                                      COURT OF CRIMINAL APPEALS
                                          Oral   argument  requested   AUSTIN, TEXAS
                                                      Transmitted 4/17/2015 3:43:26 PM
                                                        Accepted 4/21/2015 2:21:09 PM
                                                                        ABEL ACOSTA
                         PD-____-15                                             CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

             ALICE ANNETTE STEELE
                         APPELLANT

                            vs.

                THE STATE OF TEXAS
                       APPELLEE
   _________________________________________________

             FROM THE FIFTH COURT OF APPEALS
                CAUSE NO. 05-13-00930-CR

     APPEAL FROM THE 194TH JUDICIAL DISTRICT COURT
       OF DALLAS COUNTY, CAUSE NO. F08-45120-M
   _________________________________________________

          APPELLANT’S PETITION FOR
           DISCRETIONARY REVIEW
   _________________________________________________

BRUCE ANTON                       SORRELS, UDASHEN & ANTON
State Bar No. 01274700            2311 Cedar Springs, Suite 250
ba@sualaw.com                     Dallas, Texas 75201
                                  214-468-8100 (office)
BRETT ORDIWAY                     214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com               Counsel for Appellant




     April 21, 2015
             Ground for Review

Whether the complainant’s mother’s affirmation
that what she “want[ed] to know the most” was
“what happened to [the complainant]” was a call
for testimony only Steele could supply.




                      2
                                         Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument .................................................................................................... 9

   The complainant’s mother’s affirmation that what she “want[ed] to
   know the most” was “what happened to [the complainant]” was a call
   for testimony only Steele could supply. ................................................. 9

      I. The trial court’s error ..................................................................... 9

      II. The court of appeals’s strained resolution ................................. 11

      III. Neither of the court of appeals’s suggested inferences is at all
      plausible ............................................................................................. 13

Prayer ........................................................................................................ 16

Certificate of Service ................................................................................ 17

Certificate of Compliance ......................................................................... 17

Appendix ................................................................................................... 18




                                                        3
                                       Index of Authorities

Cases

Brewer v. State, No. 03-10-00076-CR, 2011 WL 3890365, at *4 (Tex.
  App.—Austin 2011) ............................................................................... 12
Cacy v. State, 901 S.W.2d 691, 703–04 (Tex. App.—El Paso 1995, pet.
  ref’d) ....................................................................................................... 13
Delay v. State, --- S.W.3d ---, No. PD-1465-13, 2014 WL 4843911 (Tex.
  Crim. App. Oct. 1, 2014) (Meyers, J., dissenting) ............................... 15
Ex parte Jimenez, 364 S.W.3d 866, 888 (Tex. Crim. App. 2012) ............ 13
Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990) ....... 11, 15
Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983).......................... 12
Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011) ............ 12
Roberson v. State, 100 S.W.3d 36 (Tex. App.—Waco 2002, pet. ref’d)
  (same) .................................................................................................... 12
Steele v. State, No. 05-13-00930-CR, 2015 WL 1291508 (Tex. App.—
  Dallas Mar. 19, 2015).................................................................. 8, 13, 14


Statutes

TEX. PEN. CODE § 22.04 .............................................................................. 7


Rules

TEX. R. EVID. 614 ...................................................................................... 15




                                                        4
                  Identity of Parties and Counsel

For Appellant Alice Annette Steele:

     BRUCE ANTON
          Trial counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

     EDWARD P. SHOEMAKER
          Trial counsel of record
     705 Ross Avenue
     Dallas, Texas 75202

     BRUCE ANTON
     BRETT ORDIWAY
         Appellate counsel of record
     SORRELS, UDASHEN & ANTON

For Appellee the State of Texas:

     DOUGLAS MILLICAN
     REYNIE TINAJERO
          Trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     MARTIN L. PETERSON
         Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

     THE HONORABLE ERNEST WHITE
     194TH JUDICIAL DISTRICT COURT


                                      5
               Statement Regarding Oral Argument

     The court of appeals’s decision conflicts with this Court’s opinion

in Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990). Steele

believes oral argument would be helpful to this Court’s understanding

of just how.




                                   6
           Statement of the Case and Procedural History

     While in Steele’s care, the 14-month-old complainant suffered

head and brain injuries from which she eventually died. (RR4: 55).

Steele told police that the complainant had fallen and hit her head, and

that, a few days later, Steele had accidentally bumped the complain-

ant’s head against a doorframe. (State’s Exhibit 58, RR6: 68). The police

did not believe Steele, and a Dallas County grand jury indicted her for

intentionally or knowingly injuring a child. (CR: 17); see TEX. PEN. CODE

§ 22.04.

     Steele pleaded not guilty, and, at her trial, the defense called ex-

perts who testified that the complainant’s injury could have been

caused precisely as Steele maintained. (RR8: 62, 67). The State, by con-

trast, presented experts who testified that the complainant’s injuries

must have been the result of a massive, high-impact blow against a door

or another object. The State then asked the jury “to infer Steele initiat-

ed the contact between [the complainant’s] head and the object under

circumstances that would make the resulting severe injury reasonably

certain to occur.” (St. Br. at 5). And the State bolstered its case by: (1)

delivering a closing argument which repeatedly stated law contrary to


                                    7
the charge on the manner and means of the offense; (2) commenting on

Steele’s failure testify; and (3) arguing in closing that Steele had the

burden of proving her innocence. (Br. at 11-12). The jury, then, found

Steele guilty of the lesser-included offense of recklessly injuring a child.

(RR1: 13-14).

     In Steele’s opening brief on appeal, she argued that the trial court

erred in allowing the State to support its case in each of those three

manners. Steele v. State, No. 05-13-00930-CR, 2015 WL 1291508 (Tex.

App.—Dallas Mar. 19, 2015). The court disagreed, overruling each con-

tention and affirming Steele’s conviction. Id. This petition now follows.




                                     8
                                Argument

           The complainant’s mother’s affirmation that what
           she “want[ed] to know the most” was “what hap-
           pened to [the complainant]” was a call for testi-
           mony only Steele could supply.

                                 !   !   !

 I.   The trial court’s error

      The State called the complainant’s mother as its final witness at

the punishment phase of trial. (RR11: 98). After explaining how her

daughter’s death affected her, she lamented that she would “never know

what happened” to cause her daughter’s death:

      Prosecutor:     …[H]ow has this event, how has it affected
                      you personally?

      Witness:        It changed my life. I lost my daughter at the
                      age of 21. I was 21 years old. I never
                      thought that I would bury my own child.
                      And it is not like she died from being sick. It
                      is not like she was born ill. She died because
                      of choices somebody else made. And for the
                      last five years, I have had to suffer the con-
                      sequences that my daughter is not here, she
                      is not coming back. And when I got her
                      back, she was not the baby that I gave birth
                      to. I will never know what happened to my
                      daughter and that’s fine, that’s fine.

(RR11: 99). The prosecutor seized upon this comment, suggesting that

“in our conversations you have actually told me that’s kind of what you

                                     9
want to know the most.” (RR11: 99). The complainant’s mother agreed,

and the State then pressed on further, questioning whether she had

“kind of come to terms to the fact that [she was] never going to find that

out?” (RR11: 99-100). Defense counsel then objected, but was overruled:

     Defense counsel:       Your Honor, may we approach.

     The court:             You may.

     (Following proceedings were had at the bench.)

     Defense counsel:       There just isn’t anyway to get through
                            this such is as an outrageous attack to
                            remain silent [sic]. The only person
                            they can find out from is [Steele]. And
                            the only explanation she can give is
                            post arrest: And they have not asked
                            the question once, but twice. This is
                            outrageous, just simply the grossest
                            violation of the Fifth Amendment that
                            you can ever see. And I don’t think
                            any instruction to disregard will cure
                            after you plant the seed. And I just
                            can’t believe...

     The court:             Any response from the State?

     Prosecutor:            Well, Your Honor, that does not neces-
                            sarily imply that the defendant would
                            have to say anything, that is a reality
                            she lives with, everything that hap-
                            pens in our lives. Things that don’t
                            happen in our presence, we never have
                            a full understanding what they have
                            seen with their own eye. And our

                                   10
                            question hasn’t come close to ap-
                            proaching it. The fact that she is never
                            going to know what happened to her
                            child. That does not imply that the de-
                            fendant would have to testify in order
                            to solve that.

      The court:            The Court would overrule the objec-
                            tion.

      Defense counsel:      Can we have a running objection.

      The court:            You may.

(RR11: 99-100).

II.   The court of appeals’s strained resolution

      Accordingly, in Steele’s second issue on appeal, she argued that

the trial court erred in allowing the State, through its questioning of the

complainant’s mother, to comment on Steele’s right to remain silent.

(Br. at 21). Where only Steele was present at the time of the complain-

ant’s injury, the jury necessarily took the State’s prompting of the com-

plainant’s mother as a comment on Steele’s failure to testify. (Br. at 24).

In support, Steele pointed to this Court’s opinion in Madden v. State,

799 S.W.2d 683, 699 (Tex. Crim. App. 1990), in which this Court explic-

itly held that a prosecutor’s argument that “calls for testimony which

only appellant himself could supply” amounts to a “direct comment on


                                    11
[an] appellant’s failure to testify and violates [Code of Criminal Proce-

dure] Art. 38.08, and appellant’s rights under both the state and federal

constitutions.” See also Brewer v. State, No. 03-10-00076-CR, 2011 WL

3890365, at *4 (Tex. App.—Austin 2011) rev’d on other grounds, 367

S.W.3d 251 (Tex. Crim. App. 2012) (“If the remark called the jury’s at-

tention to the absence of evidence that only testimony from the defend-

ant could supply, the conviction is subject to being reversed.”). The

State, in response, complained that Steele “mischaracterize[ed]” what

actually occurred: “not an improper question or a subterfuge used to

‘comment’ on Steele’s elections not to testify,” but merely the “proper

topic” of “the emotional or psychological distress suffered by [the com-

plainant’s] mother.” (St. Br. at 14).

     Unsurprisingly, the court of appeals declined to adopt the State’

position. For, it does not matter what was intended if “the jury would

necessarily and naturally take it as a comment on the defendant’s fail-

ure to testify.” Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.

2011); see, e.g., Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983);

Roberson v. State, 100 S.W.3d 36 (Tex. App.—Waco 2002, pet. ref’d)

(same); Cacy v. State, 901 S.W.2d 691, 703–04 (Tex. App.—El Paso


                                        12
1995, pet. ref’d) (same). But nor did the court accept Steele’s argument.

Instead, the court overruled Steele’s argument because it reasoned the

jury did not necessarily and naturally take the complainant’s mother’s

comment as on the defendant’s failure to testify. Steele, 2015 WL

1291508 at *8. In so doing, the court identified two alternative interpre-

tations of the complainant’s mother’s testimony. But neither is plausi-

ble.

III.   Neither of the court of appeals’s suggested inferences is at
       all plausible

       The court of appeals first suggested the complainant’s mother’s

testimony—that what she “want[ed] to know the most” was “what hap-

pened to [the complainant]”—“could have” simply “been a reference to

the fact that all of the medical experts who testified had differing opin-

ions and explanations of the sequence and severity of [the complain-

ant’s] injuries.” Id. at *8. And, indeed, medical experts are often useful

in determining the cause of death. See, e.g., Ex parte Jimenez, 364

S.W.3d 866, 888 (Tex. Crim. App. 2012) (“Additional defense medical

experts would surely have been helpful, but they were not constitution-

ally required.”). But a forensic explanation is very different than an ex-

planation of the circumstances surrounding the offense. And here, the

                                   13
complainant’s mother very generally expressed her desire to know

“what happened to [her] daughter.” The court’s conclusion that the jury

could nonetheless have inferred the complainant’s mother’s testimony

to refer to a scientific explanation is simply illogical.

      The court of appeals’s second suggestion fares no better. There, af-

ter noting “the mother’s testimony and the prosecutor’s follow-up ques-

tions were made after the jury heard, through numerous witnesses, ap-

pellant’s explanations of how [the complainant] was injured,” the court

concluded that, “[i]n context,” the complainant’s mother’s testimony

could have referred not to Steele’s failure to offer an explanation, but to

her disbelief of “the explanations that [Steele] had already given.”

Steele, 2015 WL 1291508 at *8. But, as the court itself recognized, it

was the jury, not the complainant’s mother, who heard Steele’s explana-

tions of how the complainant was injured. The complainant’s mother

heard nothing—before trial the State “invoke[d] the Rule” as to “all

witnesses.” (RR4: 11); see TEX. R. EVID. 614 (“At a party’s request, the

court must order witnesses excluded so that they cannot hear other

witnesses’ testimony.”). Her testimony couldn’t have indicated her dis-




                                      14
satisfaction with any content, then. The court’s second suggestion is

therefore even more implausible than its first.

     What’s left is the far more likely inference to have been drawn

from the complainant’s mother’s testimony—the only one, really—and

precisely what Steele has urged from the moment it was uttered: that it

was a comment on Steele’s right to remain silent. (RR11: 100). And just

as “[a]rgument that points to a lack of evidence that only the defendant

personally can supply... violates the defendant's right against self-

incrimination,” so does questioning. Madden, 799 S.W.2d at 699. The

trial court thus should have sustained counsel's objection to this ex-

change as an improper comment on the defendant's failure to testify. Id.

The court of appeals was wrong to hold otherwise.

     Somewhat recently, Judge Meyers observed that “[y]ou can always

tell when an opinion is written with the outcome decided before any le-

gal analysis is done because it reads like a medical report written by a

doctor who has never conducted a physical examination of the patient.”

Delay v. State, --- S.W.3d ---, No. PD-1465-13, 2014 WL 4843911 (Tex.

Crim. App. Oct. 1, 2014) (Meyers, J., dissenting). And just like in that

case, “this is precisely how the… opinion in this case comes across.” Id.


                                   15
The opinion simply “ignored the facts in order to arrive at a desired out-

come.” Id. Fortunately, this Court can fix that.

                                 Prayer

     Accordingly, Steele respectfully requests this Court to grant this

petition so that it may reverse the decision of the court of appeals and

remand this case to that court to conduct a harm analysis.

                                  Respectfully submitted,



                                       /s/ Bruce Anton
                                  BRUCE ANTON
                                  Bar Card No. 01274700
                                  ba@sualaw.com


                                       /s/ Brett Ordiway
                                  BRETT ORDIWAY
                                  Bar Card No. 24079086
                                  bordiway@sualaw.com

                                  SORRELS, UDASHEN & ANTON
                                  2311 Cedar Springs Road Suite 250
                                  Dallas, Texas 75201
                                  (214)-468-8100 (office)
                                  (214)-468-8104 (fax)

                                  Attorneys for Appellant




                                    16
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was elec-
tronically served to the Dallas County District Attorney’s Office and the
State Prosecuting Attorney on April 17, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 1,468 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   17
Appendix




   18
AFFIRM; and Opinion Filed March 19, 2015.




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-13-00930-CR

                                       ALICE ANNETTE STEELE, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                                On Appeal from the 194th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F-0845120-M

                                         MEMORANDUM OPINION
                  Before Justices Fillmore, Schenck, 1 and Chief Justice Thomas, Retired 2
                                       Opinion by Justice Schenck
          Appellant Alice Annette Steele was indicted for the offense of intentionally or knowingly

injuring a child. A jury convicted appellant of the lesser-included offense of recklessly injuring a

child, and sentenced her to 20 years’ imprisonment. In three issues, appellant asserts the trial

court erred by overruling her objections to improper questioning of a witness and improper

closing argument. We affirm the trial court’s judgment. Because all dispositive issues are

settled in law, we issue this memorandum opinion. TEX. RS. APP. P. 47.2(a), 47.4.




     1
       The Honorable Justice David J. Schenck succeeded Justice Michael O’Neill, a member of the original panel, following Justice O’Neill’s
retirement. Justice Schenck has reviewed the briefs and the record before the Court.
     2
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.
                                        BACKGROUND

       On February 16, 2008, K.S. and her two-year-old brother went to stay at appellant’s

home for a few days while their parents were at the hospital for the birth of a new baby. K.S.

was 14 months old. On February 25, 2008, the children were still at appellant’s home in her

care. On that morning, appellant called 911 to report that K.S. had been choking on a toy and

was unresponsive. Paramedics arrived and called for additional help from the Richardson Fire

Department. K.S. was taken to Richardson Regional Medical Center, where the emergency

room doctor determined that K.S. needed treatment that was not available there. K.S. was taken

by care flight to Children’s Medical Center of Dallas, where she underwent brain surgery for a

subdural hematoma. As a result of her injuries, K.S. suffered brain damage and blindness. K.S.

eventually returned home, but died on December 11, 2008, from complications of her injury.

       Appellant was indicted for injury to a child on April 21, 2008. Trial commenced in June,

2013. The jury heard testimony of some forty witnesses over the course of nine days. The

evidence at trial included a videotaped interview of appellant by the Richardson police and

appellant’s written statement, both made on February 25, 2008, after K.S. had been taken to the

hospital. In these statements, appellant explained that she got up and drove her daughter to

school, leaving K.S. and her brother at home asleep. When appellant returned, K.S. was still

asleep, but woke up shortly after and was coughing. Appellant, who has a medical assistant

certificate, thought K.S. was choking. Appellant stated that she patted K.S.’s back and then put

her finger in K.S.’s throat and pulled out a small blue “Lego” toy. K.S. “went limp,” and

appellant called 911. Appellant gave this explanation to the 911 dispatcher and the paramedics

as well as the police.

        Emergency personnel who responded on February 25 testified at trial, including the 911

dispatcher, paramedics, and firefighters from the Richardson Fire Department. A recording of the

                                              –2–
911 call was played for the jury. Five police officers who were involved in the case also

testified, as well as three doctors who examined or treated K.S. Through the testimony of these

witnesses, the State developed evidence that K.S.’s injuries were not consistent with choking; the

blue Lego was never found; and appellant’s explanation changed in the course of questioning, to

add that K.S. bit her when she pulled out the Lego, causing appellant to turn around and bump

K.S.’s head against a door jamb. Medical testimony established that K.S. suffered a massive

subdural hematoma, which the emergency room doctor defined as “blood on the outside of the

brain.”

          The jury heard evidence that K.S. suffered a bump on her forehead earlier in the week,

causing a visible raised abrasion. The evidence also showed that there was no other mark visible

on K.S.’s head except a small red mark on the back of her head observed by the neurosurgeon

immediately before surgery. Appellant offered the testimony of three experts at trial to interpret

this evidence. Dr. Janice Ophoven and Dr. John Plunkett, specialists in forensic pathology, are

both medical doctors. The third expert, John Lloyd, has a Ph.D. in ergonomics and is a brain

injury specialist. These experts testified that two minor injuries (the first bump on the head and a

later minor bump on the door jamb consistent with appellant’s explanation) could have been the

cause of K.S.’s massive subdural hematoma. They also testified that a small injury could cause

massive bleeding, and any severe impact would leave at least some mark on the skin. Dr.

Ophoven concluded that in her opinion, “there is not verifiable evidence that this child’s injuries

were the result of inflicted trauma or child abuse.” Dr. Plunkett testified that a child with a head

injury could have a “lucid interval” of hours or days before showing symptoms. He further

explained that the size of a subdural hematoma does not correlate with the amount of impact or

force that caused the injury; a minor impact could cause a large subdural hematoma. He, too,

concluded that although K.S. had a traumatic brain injury, he “would not call it intentional.”

                                                –3–
       Four doctors testified on behalf of the State. Dr. Gregory Lachar, the emergency room

doctor who treated K.S.; Dr. Angela Price, the neurosurgeon who operated on K.S.; and Dr.

Matthew Cox, a specialist in child abuse pediatrics who examined K.S. during her hospitalization

at Children’s Medical Center, all testified regarding the nature and extent of K.S.’s injuries, as

well as the treatment required. The fourth doctor, Dallas County Medical Examiner Reade

Quinton, conducted an autopsy on K.S. in December 2008.

       Dr. Price testified that when K.S. arrived at Children’s, “she was almost very close to

dying.” Immediate surgery was necessary to control the bleeding in K.S.’s brain. Dr. Price

described massive swelling of K.S.’s brain.      She testified that “[t]he most probable set of

circumstances is that this subdural occurred within two to three hours” before K.S. arrived at the

emergency room, and “anything over six hours” would be improbable.           She testified it was

“very improbable” that the subdural hematoma occurred and continued to bleed over a 72-hour

period before K.S. showed any symptoms. The symptoms observed by the paramedics and the

emergency room doctor suggested “that she is rapidly progressing,” so that the most probable

time the injury occurred was within a few hours of the paramedics’ arrival. Dr. Cox testified that

K.S.’s injury could not have been caused by a “minor impact”; it “had to be a severe and violent

event.” Dr. Quinton testified that the cause of K.S.’s death was blunt-force injury to the head

and the subsequent consequences of that injury. He classified her death as a homicide. He also

testified that “[t]he history of the LEGO in the airway did not really fit the findings that were

found at that time”; “we are also talking about massive swelling of the brain and subdural

hematoma, which wouldn’t be caused by just airway obstruction.”                He testified that

“progressive” injuries, worsening over the course of a few days, were possible, but not without

accompanying symptoms, which K.S. did not display.




                                               –4–
       The jury found appellant guilty of reckless injury to a child. During the punishment

phase of the trial, witnesses for the State testified that appellant had been abusive to her own

children in the past. Her children, however, denied any abuse, and they and numerous other

witnesses testified that appellant was a loving, caring, person. The jury sentenced appellant to 20

years’ confinement. This appeal followed.

                                           DISCUSSION

A. Improper jury argument

       1. Standards of review and applicable law

       In her first and third issues, appellant contends the trial court erred by overruling her

objections to the prosecutor’s closing argument during the guilt/innocence phase of the trial.

Proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions

from the evidence; (3) answers to argument of opposing counsel; and (4) pleas for law

enforcement. See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Counsel is

generally given wide latitude in drawing inferences from evidence as long as they are reasonable,

fair, legitimate, and offered in good faith. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.

App. 1988). We review a trial court’s ruling on an objection to improper jury argument for

abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004).

       Even if jury argument falls outside permissible areas, an appellate court will not reverse

unless the error is harmful. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

The standard for reviewing whether harm occurred depends on the kind of error involved. Id.

For constitutional error, we apply the standard set forth in rule 44.2(a) of the Texas Rules of

Appellate Procedure. Id. Rule 44.2(a) provides that the court of appeals “must reverse a

judgment of conviction or punishment unless the court determines beyond a reasonable doubt

that the error did not contribute to the conviction or punishment.”

                                               –5–
         For non-constitutional error, a trial court’s erroneous overruling of a defendant’s

objection to improper jury argument is not reversible unless it affected the appellant’s substantial

rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App.

2000).    “A criminal conviction should not be overturned . . . if the appellate court, after

reviewing the record as a whole, has fair assurance that the error did not influence the jury or had

but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making

that determination, the appellate court should evaluate: (1) the severity of the misconduct (the

magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure

the misconduct (the efficacy of any cautionary instructions by the judge); and (3) the certainty of

conviction absent the misconduct (the strength of the evidence supporting the conviction).

Mosley, 983 S.W.2d at 259.

         2. Argument regarding manner and means of injury

         Appellant’s first issue relates to a portion of the prosecutor’s closing argument during the

guilt/innocence phase of the trial. As we discuss below, this argument was made in the rebuttal

portion of the State’s argument, in response to appellant’s argument that the State must prove

“what happened”:

            And I know I keep talking about this, the thing that she did. The thing that
            she did. Here I am, I am not saying slammed her head again[st] the floor or
            slammed her ahead [sic] against the bed. There is a reason that the
            indictment reads the way it does. The law allows for that. The law foresees
            just this type of situation where, here we have this child that was otherwise
            fine, that was in the care of this person right here. Now all of a sudden they
            are dead. Okay --

            MR. ANTON: Your Honor, that is a misstatement of the law. That’s a
            misstatement of the indictment. The indictment says they don’t have to
            prove the weapon. It specifically does not say that they don’t have to tell us
            what happened. And I object to that. That’s a misstatement of the
            indictment, Your Honor.

            THE COURT: Overruled.


                                                 –6–
            MR. ANTON: I would like a running objection, Your Honor.

            THE COURT: You may have it.

       Appellant contends that by overruling her objection, the trial court permitted the State to

argue that it was not required to prove the manner and means of injury. The indictment alleged

that appellant intentionally or knowingly caused serious bodily injury to the complainant by

striking her against a door jamb or striking her with or against an unknown object. Appellant

argues that under the indictment, although the State was not required to prove the object, the

State was required to prove that appellant struck the complainant. And in her reply brief,

appellant contends that the only issue at trial was her mental state: “did [appellant] accidentally

bump the complainant’s head against a doorframe? Or did [appellant] intentionally or knowingly

strike the complainant with or against a doorjamb or unknown object?” Appellant notes that the

jury charge contained the same language as the indictment, and contends the State’s argument

“repeatedly stated law contrary to the court’s instruction on the manner and means of the offense

by removing the requirement that the jury find beyond a reasonable doubt that [appellant] struck

the complainant.” Appellant cites State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App.

1998), for the proposition that a closing argument stating law contrary to the court’s charge is

improper.

       We conclude the trial court did not err by overruling appellant’s objection. As reflected

in the objection itself, appellant’s defense included the contention that the State was required to

prove “what happened” but had not done so. In closing argument, appellant’s counsel stated:

            At the very end I would like for the State to tell you . . . at some point
            during their presentation what happened. I think [appellant] is owed that,
            what happened. How did this injury occur, what happened. They haven’t
            told us that yet. And I don’t know if they are going to tell us that after I sit
            down.

            If they can’t tell you what happened. If they can’t present a scenario to you
            which is supported by other than their wild speculation and hypotheses

                                                  –7–
          made up out of [whole] cloth, I don’t know how you can convict [appellant]
          of anything.

       Appellant’s counsel also argued:

          [F]inally, in the indictment, it says they used a weapon unknown, we don’t
          even know what they are going to say. We have seen the mattress, we have
          seen the floor, we have seen the doorjamb, we don’t know what else. They
          have come up with any instrument they want claiming injury. They can
          argue whatever they want. Can they ever point out to you what happened[?]

The State answered these arguments by addressing what it was required to prove under the

indictment. See Brown, 270 S.W.3d at 570. The prosecutor’s argument quoted above was made

during his rebuttal of the closing argument for the defense. He began this portion of his

argument by explaining the verdict sought by the State:

          We don’t want you to convict her because she lied. We don’t want you to
          convict because she lied to the police. We want you to convict her because
          she is guilty of intentionally or knowingly causing serious bodily injury to
          [K.S.]. And her lies revealed the truth about what happened that morning.
          There is a huge difference between those two. I hope you see the difference.

In context, the trial court was within its discretion to conclude that the prosecutor had not

misstated the elements of the offense the State was required to prove. And in addition, as we

explain below, the prosecutor could summarize the evidence or draw reasonable conclusions

from the evidence in his argument. See Brown, 270 S.W.3d at 570. We conclude the trial court

did not err by overruling appellant’s objection.

       Even if the trial court did err, we conclude any error was not harmful under the standards

set forth in Mosley. See Mosley, 983 S.W.2d at 259. Under the first factor, appellant argues the

misconduct was severe.      Appellant explains that because she “admitted having engaged in

conduct contributing to the complainant’s injury,” she “relied entirely on expert witnesses in her

defense.” The State’s “theme of painting [appellant’s] expert defense . . . as absurd,” therefore,

improperly undercut the central point of her defense, specifically, that K.S.’s injury “was caused



                                                   –8–
by a minor, accidental impact.” She contends that the State’s argument urged the jury to find

appellant guilty “simply for being present.”

        A prosecutor may argue that the witnesses for the defense are not worthy of belief.

Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993). When appellant’s experts

testified on her behalf on the issues contested at trial, their credibility became an issue and was

the proper subject of comment by the prosecutor. Id. The prosecutor, then, could argue the

experts’ testimony that a “minor, accidental impact” caused K.S.’s injuries was not credible,

based on reasonable deduction from other evidence in the record. For example, Dr. Cox testified

“there had to be a high-force-type injury involving different forces”; “it is a very high-force

injury, more than what I would see in a head hitting a wall or head being hit into a wall, someone

holding a child and turning, something along those lines.” Dr. Cox concluded, “[s]o it had to be

a severe and violent event.” The prosecutor could summarize the evidence or draw reasonable

conclusions from the evidence. See Brown, 270 S.W.3d at 570; see also Garcia, 126 S.W.3d at

925 (by telling jury that defense counsel’s arguments were “hogwash,” prosecutor was merely

stating “in colorful language” his opinion regarding the merits of defense counsel’s arguments;

trial court did not err by refusing to instruct jury to disregard).

        Under the second factor, the trial court did not give any cautionary instruction, which

weighs in appellant’s favor. Under the third factor, appellant argues the strength of the evidence

supporting conviction was weak, so there was little certainty of conviction absent the

misconduct. The jury found appellant guilty of the offense of reckless injury to a child. The jury

charge contained instructions regarding this offense:

           A person commits reckless injury to a child if she recklessly causes bodily
           injury to a child. A person acts “recklessly” or is “reckless” with respect to
           the result of her conduct when she is aware of but consciously disregards a
           substantial and unjustifiable risk that the result will occur. The risk must be
           of such a nature and degree that its disregard constitutes a gross deviation

                                                  –9–
               from the standard of care that an ordinary person would exercise under all
               the circumstances as viewed from the standpoint of the person charged.

          In cases involving injury to a child, there is rarely direct evidence of exactly how the

child’s injuries occurred. Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d). Instead, we look to rational inferences from circumstantial evidence to

determine whether the State met its burden of proof. See id. Intent can be inferred from the

extent of the injuries to the victim and the relative size and strength of the parties. Patrick v.

State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). It can also be inferred from circumstantial

evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45,

50 (Tex. Crim. App. 2004). 3

          Despite the circumstantial nature of the evidence, the jury could have reasonably inferred

that appellant was the person who injured K.S. See Martin v. State, 246 S.W.3d 246, 261–62

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (jury could make reasonable inferences from

circumstantial evidence at trial that appellant caused child’s fatal injuries). The only evidence—

some of which resulted from appellant’s own explanations given to witnesses who testified at

trial—was that K.S. was in appellant’s care, and only appellant’s care, at the time of her injury;

appellant first explained that K.S. had been choking; appellant changed her explanation upon

further questioning; law enforcement officers were unable to substantiate appellant’s explanation

by any evidence found at her home; and medical experts testified that the nature and extent of

K.S.’s injuries were not consistent with either choking or “minor, accidental impact” in the


   3
       See also Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d), in which the court explained:
               Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its
               injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child
               dies. See Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.—Tyler 1995, no pet.)(where evidence showed child
               had been left alone with defendant and injuries to child occurred approximately thirty minutes prior to child being
               brought to emergency room, evidence was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846
               (Tex. App.—Austin 1994, pet. ref’d) (undisputed medical testimony placing adult defendant alone with child
               when fatal injuries were sustained supported conviction for injury to a child); Butts v. State, 835 S.W.2d 147, 151
               (Tex. App.—Corpus Christi 1992, pet. ref’d)(injuries sustained by child established by medical testimony to have
               occurred at time adult defendant admitted to sole possession of child).


                                                                       –10–
manner appellant described. Further, Dr. Cox testified that the cause of K.S.’s injury “had to be

a severe and violent event,” such as a car accident. Without evidence of such an accidental

event, Dr. Cox agreed that there is “a certain element of intent that goes along with that in

causing those injuries.” He concluded, “[b]ased on the degree of force needed to cause this

injury, yes, I would expect someone would realize there could be injuries.” The evidence

supporting the jury’s verdict of reckless injury to K.S. was not so weak that there was little

certainty of conviction absent the alleged prosecutorial misconduct. See Mosley, 983 S.W.2d at

259. We overrule appellant’s first issue.

       3. Argument regarding burden of proof

       Appellant’s third issue addresses a later portion of the prosecutor’s rebuttal argument:

          They say that we need objective evidence, that the State should provide
          objective evidence before we should jump to a conclusion that there was
          some sort of additional act. Well, shouldn’t you require credible evidence
          that it was anything other.

          THE COURT: You have five minutes.

          MR. MILLICAN: Thank you, Your Honor.              Did you get any credible
          evidence from them to say --

          MR. ANTON: Your Honor, he is shifting the burden of proof.

          THE COURT: Overruled.

          MR. ANTON: May I have a running objection to that?

          THE COURT: You may.

          MR. MILLICAN: You are the judges of the credibility of the witnesses.

          The only thing that Dr. Ophoven and Dr. Plunkett were making their
          decision on was the word of the defendant, that was the patient history they
          got. And I asked Dr. Ophoven, did you see the video of [appellant]? No,
          that is not important. That is step number one for her, to collect important
          information from her. And when she gets the best information that anyone
          could possibly show her of what happened to [K.S.], she said, I don’t want
          to see that. Don’t you think they should bring some credible evidence to
          support their theory.


                                              –11–
Appellant argues that the trial court erred by overruling her objection because the prosecutor

argued that she was required to “bring some credible evidence” for the jury to consider. Citing

Abbott v. State, 196 S.W.3d 334, 344 (Tex. App.—Waco 2006, pet. ref’d), for the proposition

that a prosecutor may not misstate the law, appellant contends that this argument erroneously

assigned to her the burden of proof to raise a reasonable doubt as to her guilt. We disagree.

           In context, the State made the argument as part of its contention that the expert witnesses

for the defense were not credible. As we have explained, a prosecutor may argue that the

witnesses for the defense are not worthy of belief. Satterwhite, 858 S.W.2d at 425. In addition,

a prosecutor may answer arguments of opposing counsel. See Brown, 270 S.W.3d at 570. The

prosecutor was addressing appellant’s arguments that (1) the objective facts supported the

testimony of Drs. Plunkett and Ophoven; 4 (2) there are no objective facts supporting the State’s

theory of intentional injury; 5 (3) the testimony of Drs. Price and Cox was unreliable; 6 and

(4) Drs. Plunkett and Ophoven were more credible. 7                                      In addition, appellant’s counsel had

emphasized that the State had not met its burden of proving “beyond a reasonable doubt that this

was nonaccidental, intentional head trauma.”                                We conclude the trial court did not err by

overruling appellant’s objection.

           If error did occur, we would determine whether reversal is required applying the

standards for constitutional error under rule 44.2. See Mosley, 983 S.W.2d at 259; TEX. R. APP.

P. 44.2(a) (court of appeals must reverse unless court determines beyond a reasonable doubt that

     4
        Appellant’s counsel had argued: “[T]he reason we brought down Dr. Plunkett, the reason we brought down Dr. Ophoven is to tell you
what Dr. Price told you and the E.R. doctor told you, you can have a minor impact and have a major subdural. . . . Dr. Plunkett, Dr. Ophoven said
that several days later, that there was another triggering event. In all likelihood in Dr. Plunkett’s opinion, it was when the child’s head impacted
the doorjamb. And at that point given the pre-existing injury, there was a cascading event. And those are the facts.”
     5
       “So when they get up and talk to you about how this happened, ask yourself aside from their bald face assertion, what evidence do they
have of this?”
     6
       Appellant’s counsel argued Dr. Price was “torn between her loyalty to the staff at Children’s and the truth,” and Dr. Cox “just simply
won’t be honest with you.”
     7
       “Our doctors, I would submit to you, use your common sense on this, if you asked Dr. Ophoven or Dr. Plunkett, you got a straight answer.
Not only did you get a straight answer, you got an answer that you can understand.”



                                                                      –12–
error did not contribute to conviction). The jury charge stated “the prosecution has the burden of

proving the defendant guilty, and it must do so by proving each and every element of the offense

charged beyond a reasonable doubt.” The jury charge correctly required the jury to acquit

appellant of the offense of injury to a child if the jury did not “believe from the evidence beyond

a reasonable doubt” that appellant committed the offense, or if the jury had “a reasonable doubt

thereof.” The record is devoid of any indication that the jury failed to follow the trial court’s

instructions regarding the burden of proof. See Williams v. State, 937 S.W.2d 479, 490 (Tex.

Crim. App. 1996) (appellate court presumes jury follows instructions given). That the jury held

the State to its burden is demonstrated by its failure to find appellant guilty of intentional injury

to a child. Further, there was sufficient evidence to support the jury’s verdict of reckless injury

to a child, as we explained in our discussion of appellant’s first issue. We conclude beyond a

reasonable doubt that any error did not contribute to appellant’s conviction. See TEX. R. APP. P.

44.2(a). We overrule appellant’s third issue.

B. Testimony during punishment phase

       Appellant’s second issue relates to testimony given by K.S.’s mother during the

punishment phase of the trial in questioning by the prosecutor:

          Q. . . . [H]ow has this event, how has it affected you personally?

          A. It changed my life. I lost my daughter at the age of 21. I was 21 years
          old. I never thought that I would bury my own child. And it is not like she
          died from being sick. It is not like she was born ill. She died because of
          choices somebody else made. And for the last five years, I have had to
          suffer the consequences that my daughter is not here, she is not coming
          back. And when I got her back, she was not the baby that I gave birth to. I
          will never know what happened to my daughter and that’s fine, that’s fine.

          Q. You say that, that you will never know what happened to your daughter,
          in our conversations you have actually told me that that’s kind of what you
          want to know the most, right?

          A. Yes.


                                                –13–
          Q. But you have kind of come to terms to the fact that you are never going
          to find that out?

          MR. ANTON: Your Honor, may we approach.

          THE COURT: You may.

          (Following proceedings were had at the Bench.)

          MR. ANTON: There just isn’t anyway to get through this such is as [sic] an
          outrageous attack to remain silent. The only person they can find out from
          is [appellant]. And the only explanation she can give is post arrest: And
          they have not asked the question once, but twice. This is outrageous, just
          simply the grossest violation of the Fifth Amendment that you can ever see.
          And I don’t think any instruction to disregard will cure after you plant the
          seed. And I just can’t believe . . .

          THE COURT: Any response from the State?

          MR. MILLICAN: Well, Your Honor, that does not necessarily imply that
          the defendant would have to say anything, that is a reality she lives with,
          everything that happens in our lives. Things that don’t happen in our
          presence, we never have a full understanding what they have seen with their
          own eye. And our question hasn’t come close to approaching it. The fact
          that she is never going to know what happened to her child. That does not
          imply that the defendant would have to testify in order to solve that.

          THE COURT: The Court would overrule the objection.

          MR. ANTON: Can we have a running objection.

          THE COURT: You may.

          (End of Bench Conference.)

       A comment on a defendant’s failure to testify violates both the federal and state

constitutions as well as Texas statutory law. Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim.

App. 2011) (citing U.S. CONST. amend. V, TEX. CONST. art. 1 § 10, and TEX. CODE CRIM. PROC.

ANN. art. 38.08). The defendant has a separate Fifth Amendment privilege not to testify at either

the guilt or punishment phases of trial. Id. Randolph addressed remarks made by the prosecutor

during closing argument in the punishment phase. See id. The test stated in Randolph for

determining whether a prosecutor’s argument violated a defendant’s Fifth Amendment right was

“whether the language used was manifestly intended or was of such a character that the jury
                                          –14–
would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Id.

The court explained, “[i]n applying this standard, the context in which the comment was made

must be analyzed to determine whether the language used was of such character.” Id. If the

prosecutor’s language “might reasonably be construed as merely an implied or indirect illusion,

there is no violation.” Id.

       Here, the prosecutor’s questions followed the mother’s testimony that she will never

know what happened to her daughter. Appellant argues that because appellant was the only

person present at the time of K.S.’s injury, “and thus only she could explain the manner in which

it was incurred,” the jury necessarily took the State’s questions as a comment on her failure to

testify. Appellant relies on Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990), in

support of her argument. In Madden, the court stated, “[a]rgument that points to a lack of

evidence that only the defendant personally can supply . . . violates the defendant’s right against

self-incrimination.” Id. In Madden, the prosecutor argued that “there’s only one person here that

knows the answer to all of these questions” about why the defendant acted as he did in

committing the crime. Id. at 700. The court concluded the trial court should have sustained

counsel’s objection to this argument as an improper comment on the defendant’s failure to

testify. Id. The court also determined, however, that in the context of the arguments made and

the evidence presented at trial, the error did not contribute to the jury’s guilty verdict. Id. at 701.

       Viewing the entire record, the mother’s testimony could have been a reference to the fact

that all of the medical experts who testified had differing opinions and explanations of the

sequence and severity of K.S.’s injuries, leading to the mother’s conclusion that she will never

know what happened to her daughter. Dr. Cox, for example, was asked, “may we ever know

what the actual thing was that she was struck against or struck her?”, to which he responded, “by

medical assessment alone, I can’t determine that, no.” He testified that he would need more

                                                 –15–
information “for that to be knowable.” The mother’s conclusion was part of her testimony about

the effect of the offense on her life. See Brown v. State, 2003 WL 21404050, at *6 (Tex. App.—

Dallas June 19, 2003, pet. stricken) (not designated for publication) (post-conviction testimony

concerning effect on victim’s family of offense of injury to child generally relevant and

admissible).

       In addition, the mother’s testimony and the prosecutor’s follow-up questions were made

after the jury heard, through numerous witnesses, appellant’s explanations of how K.S. was

injured. Some of this evidence was from appellant herself, in the video recordings of her

statements to a police detective made on the day of K.S.’s injury, which were played for the jury

by the State during the guilt/innocence phase of the trial. Further evidence was offered through

the paramedics, doctors, and law enforcement officials who heard explanations from appellant.

In context, it was not that appellant had not offered explanations for how K.S.’s injuries

occurred, but that K.S.’s mother did not believe the explanations that appellant had already

given. And at the time K.S.’s mother testified, the jury had already convicted appellant of

reckless injury to a child, indicating that the jury did not find appellant’s explanations credible

either. It was within the province of the jury to determine the credibility of the evidence. See,

e.g., Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury is exclusive judge of

credibility of witnesses and weight to be given their testimony). “A rational trier of fact could

also consider such untruthful statements by appellant, in connection with other circumstances of

the case, as affirmative evidence of appellant’s guilt.” Padilla v. State, 326 S.W.3d 195, 201

(Tex. Crim. App. 2010); see also Garcia, 126 S.W.3d at 924 (when defendant makes statement

which is admitted into evidence, State’s reference to statement and comparison between

statement and other evidence collected is not comment on defendant’s failure to testify or right to

remain silent).

                                              –16–
       We conclude that the prosecutor’s questions to K.S.’s mother were not “of such a

character that the jury would necessarily and naturally take it as a comment on the defendant’s

failure to testify.” See Randoph, 353 S.W.3d at 891. We overrule appellant’s second issue.


                                         CONCLUSION

       Having overruled appellant’s three issues, we affirm the trial court’s judgment.




                                                   /David J. Schenck/
                                                   DAVID J. SCHENCK
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)

130930F.U05




                                              –17–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ALICE ANNETTE STEELE, Appellant                    On Appeal from the 194th Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-00930-CR        V.                       Trial Court Cause No. F-0845120-M.
                                                   Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee                       Justice Fillmore and Chief Justice Thomas,
                                                   Retired, participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of March, 2015.




                                            –18–
