Reversed and Remanded and Memorandum Opinion filed December 5, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00939-CR

                         TRADEZSHA BIBBS, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 177th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1507264

                           MEMORANDUM OPINION

      Appellant Tradezsha Bibbs appeals her conviction for capital murder. In four
issues appellant argues (1) she was egregiously harmed by the trial court’s omission
from the jury charge of an application paragraph on felony murder; (2) the evidence
was factually insufficient to support the jury’s implicit denial of her insanity defense;
(3) the prosecutor committed misconduct by impugning the credibility of the defense
expert; and (4) court costs for indigent defense are unconstitutional as applied to
appellant. Having reviewed the entire charge, the evidence at trial, the closing
arguments of counsel, and other relevant information in the record, we conclude that
appellant was deprived of her valuable right to a jury determination regarding her
guilt of felony murder. We therefore reverse the trial court’s judgment and remand
this case for further proceedings.

                      FACTUAL AND PROCEDURAL BACKGROUND

         Appellant’s four-month-old child died after suffering injuries as a result of
physical abuse. Appellant admitted she abused her child and pleaded not guilty by
reason of insanity at trial. The jury convicted appellant of capital murder and
sentenced her to life in prison without the possibility of parole.

         When appellant was fifteen weeks’ pregnant Tiffany Redd, a nurse with the
City of Houston Nurse Partnership Program, first met with appellant. The Nurse
Partnership Program is a City program in which nurses meet with first-time mothers
to help them have healthy pregnancies and healthy babies. The program follows up
with mothers and babies until the babies turn two years old.

         After appellant had her baby she reached out to Redd for help with stress and
postpartum depression. When appellant asked for help Redd consulted a counselor
with the City program and contacted Child Protective Services. Redd also contacted
the Harris County Mental Health Association (sometimes referred to as MHMRA)
because appellant expressed a desire to harm herself. CPS made arrangements for
someone to be with appellant and the baby at all times because they were afraid
appellant would harm herself or the child. Subsequent events reflect that at some
time appellant was alone with the child, but the record does not reflect how this came
about.

         When the child was three months old, Officer Davis of the Houston Police
Department was assigned to investigate an incident when the child was brought into


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the hospital spitting up blood. CPS was notified when medical professionals at the
hospital also noticed bruising on the child’s face. Davis interviewed appellant who
told Davis she was stressed and fatigued with new motherhood. Appellant reported
that the child was injured as a result of a narrowly-avoided car accident and a car
seat that was not properly secured. Appellant told Davis that the child’s father was
also a source of stress. After interviewing appellant Davis believed that appellant
inflicted injuries on the child out of vengeance against the child’s father.

      Houston firefighter Greg Kantis was the first responder who was dispatched
on a cardiac arrest call on April 13, 2016 at 10:26 p.m. Five minutes later, at 10:31
p.m., Kantis arrived at the Red Carpet Inn where appellant and her child were
staying. When Kantis and his crew arrived, appellant was in the bathroom and the
child was on the floor just inside the door. Kantis asked appellant what had
happened, and appellant told him the child had fallen out of her car seat earlier in
the day. Kantis’s crew assessed the child and performed CPR in the hotel room. An
ambulance unit arrived and transferred the child to Texas Children’s Hospital at
11:14 p.m. The child died the next day in the hospital.

      Houston Police Officer Shaun Hall was dispatched to Texas Children’s
Hospital. At the time Hall arrived he learned that the child was in critical condition
with life-threatening injuries. Hall questioned appellant about what happened to the
child and appellant responded that the child fell out of her car seat earlier in the day.
During an extensive interview appellant did not deviate from her story of how the
child had been injured.

      Detective Elder of the Houston Police Department interviewed appellant at
the hospital after the child’s death. A recording of appellant’s statement was played
for the jury. In appellant’s statement she told Elder that she and the child were in the
hotel when appellant started feeling different. Appellant said she felt as if she “didn’t

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have any care” for the child. Appellant stated that she believed she had postpartum
depression and did not seek help because she had no support and “did not believe in
postpartum.” Appellant admitted she held the child’s arms and the child bounced off
the bed to the floor “two or three times.” Appellant admitted hitting the child in the
chest, face and legs at approximately 6:00 or 7:00 that evening. Appellant stated that
the child’s breathing became irregular in “another couple of hours.” Appellant
admitted this was not the first time she had hit the child. She began hitting the child
when the child was two months old. Approximately one month after the child was
born the father moved out and appellant moved in with her grandmother. When
appellant’s grandmother left appellant had nowhere to live.

      After appellant spoke with Elder he told an officer at the hospital that
appellant needed psychiatric help and asked that she be admitted for assessment of
her mental health. A week and a half later appellant was arrested after her release
from the hospital.

      Dr. Gerald Harris, a clinical psychologist, met with appellant approximately
two months after the death of her child. Harris conducted approximately ten hours
of interviews with appellant, reviewed her medical records, and administered tests
to assess her emotional status. Harris also administered a test designed to detect
whether appellant was malingering. The information from the testing was consistent
with postpartum depression with psychotic features and there was no indication of
malingering. Harris determined that appellant suffered from postpartum depression
with psychotic episodes. In Harris’s opinion appellant was “suffering from a disease
or defect of the mind such that [she] did not know what she did was wrong.”

      To rebut Dr. Harris’s testimony the State called Dr. David Genac. Genac, a
forensic psychologist with the Harris County Mental Health Association met with
appellant and reviewed her medical and legal history. Genac did not treat patients

                                          4
with major depressive disorders and did not consider himself an expert in postpartum
depression. Genac did not conduct any psychometric tests on appellant. Genac did
not think appellant suffered from psychosis. Genac, “did not find any evidence that
there was a serious mental defect at the time of the incident that would make her not
know what she was doing was wrong.”

       Appellant and the State rested and closed their evidence. After the trial court
read the court’s charge to the jury, the State and appellant gave closing arguments
to the jury.

       In the abstract portion of the jury charge, the trial court included definitions
of murder, capital murder, felony murder, and serious bodily injury to a child. In the
application paragraphs of the charge the trial court omitted an application paragraph
for felony murder. The trial court also omitted a verdict form for felony murder.
Neither party objected to the court’s charge. The jury found appellant guilty of
capital murder. Because the State did not seek the death penalty appellant was
automatically sentenced to life without the possibility of parole. See Tex. Penal Code
Ann. § 12.31.

                                      ANALYSIS

       In appellant’s first issue she argues she was egregiously harmed by error in
the jury charge.

I.     Standard of review

       In a criminal case, we review complaints of jury charge error in two steps.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine
whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.
App. 2005). Second, we review the record to determine whether sufficient harm was
caused by the error to require reversal of the conviction. Id.

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      The degree of harm necessary for reversal depends on whether the appellant
preserved error by objecting to the charge. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984) (op. on reh’g). When charge error is not preserved, as in this
case, reversal is not required unless the resulting harm is egregious. Id.; see also Tex.
Code Crim. Proc. art. 36.19.

      Charge error is egregiously harmful when it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.
Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). That is, the error
must have been so harmful that the defendant was effectively denied a fair and
impartial trial. Almanza, 686 S.W.2d at 172. Egregious harm is a difficult standard
to prove and must be determined on a case-by-case basis. Hutch v. State, 922 S.W.2d
166, 171 (Tex. Crim. App. 1996). Under Almanza, the record must show that the
charge error caused the defendant actual, rather than merely theoretical, harm. Ngo,
175 S.W.3d at 750. Neither party has the burden to show harm. Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013).

II.   The jury charge included error in the application paragraph.

      The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. art. 36.14. Because the
charge is the instrument by which the jury convicts, it must contain an accurate
statement of the law and must set out all the essential elements of the offense.
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The application
paragraph applies the relevant law, the definitions found in the abstract portion of
the charge, and general legal principles to the particular facts of the case. Vasquez v.
State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the application
paragraph specifies “the factual circumstances under which the jury should convict

                                           6
or acquit, it is the ‘heart and soul’ of the jury charge.” Id. at 367. “It is not the
function of the charge merely to avoid misleading or confusing the jury: it is the
function of the charge to lead and to prevent confusion.” Reeves, 420 S.W.3d at 818;
see also Uddin v. State, 503 S.W.3d 710, 715 (Tex. App.—Houston [14th Dist.]
2016, no pet.)

      In this case, appellant was indicted for capital murder for intentionally and
knowingly causing the death of her child. See Tex. Penal Code Ann. § 19.03(a)(8)
(person commits an offense of capital murder if she murders an individual under 10
years of age). The abstract portion of the charge contained definitions of the offenses
of murder, capital murder, felony murder, and injury to a child. The application
paragraphs of the charge instructed the jury as follows:

      If you find from the evidence beyond a reasonable doubt that on or
      about the 16th day of April, 2016, in Harris County, Texas, the
      defendant, Tradezsha Bibbs, did then and there unlawfully,
      intentionally or knowingly cause the death of [B.J.-W.R.], a child under
      ten years of age, by shaking [B.J.-W.R.] with a deadly weapon, namely
      her hand, then you will find the defendant guilty of capital murder, as
      charged in the indictment.
      Unless you so find from the evidence beyond a reasonable doubt, or if
      you have a reasonable doubt thereof, or if you are unable to agree, you
      will next consider whether the defendant is guilty of the lesser offense
      of intentionally or knowingly causing serious bodily injury to a child.
      Therefore, if you find from the evidence beyond a reasonable doubt that
      on or about the 16th day of April, 2016, in Harris County, Texas, the
      defendant, Tradezsha Bibbs, did then and there unlawfully,
      intentionally or knowingly cause serious bodily injury to [B.J.-W.R.],
      a child younger than fifteen years of age, by striking [B.J.-W.R.] with
      or against a deadly weapon, namely, a blunt object, or;
      If you find from the evidence beyond a reasonable doubt that on or
      about the 16th day of April, 2016, in Harris County, Texas, the
      defendant, Tradezsha Bibbs, did then and there unlawfully,
      intentionally or knowingly cause serious bodily injury to [B.J.-W.R.],

                                          7
      a child younger than fifteen years of age, by shaking [B.J.-W.R.] with
      a deadly weapon, namely her hand, then you will find the defendant
      guilty of intentionally or knowingly causing serious bodily injury to a
      child.
      If you believe from the evidence beyond a reasonable doubt that the
      defendant is guilty of either capital murder on the one hand or serious
      bodily injury to a child on the other hand, but you have a reasonable
      doubt as to which of said offenses she is guilty, then you must resolve
      that doubt in the defendant’s favor and find her guilty of the lesser
      offense of serious bodily injury to a child.
      If you have a reasonable doubt as to whether the defendant is guilty of
      any offense defined in this charge you will acquit the defendant and say
      by your verdict “Not Guilty.”

The verdict form on the court’s charge included forms for the jury to find appellant
not guilty, not guilty by reason of insanity, guilty of capital murder, or guilty of
serious bodily injury to a child. The charge omitted an application paragraph for
felony murder and a form for the jury to find appellant guilty of felony murder.

      The trial court included a definition of felony murder in the abstract portion
of the charge. The trial court, however, omitted felony murder from the application
paragraph of the charge. The charge conference was not recorded; the record does
not reflect whether appellant requested the lesser-included offense or the trial court
included the definition of felony murder sua sponte. Absent a request from the
defendant a trial court has no duty to instruct the jury on a lesser-included offense.
Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). A trial court does not
err by failing to instruct the jury on an issue that was, by virtue of the defendant’s
silence, simply inapplicable to the case. Mendez v. State, 545 S.W.3d 548, 552 (Tex.
Crim. App. 2018); see also Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.
1998). However, if the trial court undertakes to instruct the jury on a defensive issue,
that issue becomes “law applicable to the case,” whether the defendant requested it
or objected to its absence or not. Mendez, 545 S.W.3d at 552–53.

                                           8
       In this case, because the trial court included a definition of felony murder in
the abstract portion of the charge, the trial court “signaled” that felony murder was
“law applicable to the case.” Id. at 553. By defining felony murder in the abstract
portion of the charge the trial court assumed the duty to deliver the charge correctly
by including an instruction relating to felony murder in the application paragraph.
Id. “[I]t is not sufficient,” then, “for the jury to receive an abstract instruction on the
law and then to render a verdict according to a general conclusion on whether the
law has been violated.” Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App.
1977). Excluding the application section deprives the jury of “an unbiased
application of the law to the facts of the case.” Id.

       The Court of Criminal Appeals found jury-charge error when a trial court
failed to apply its abstract charge on self-defense to the particular facts of the case.
Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). In Barrera, the trial
court issued an abstract self-defense instruction, but did not include an application
section instructing the jury to acquit if it had a reasonable doubt as to self-defense.
Id. Although Barrera did not object to this failure, the court held that “the failure to
apply the law of self-defense to the facts of the case” was error, “even under the
reasoning of Posey.” Id.

       We conclude that the absence of an application paragraph as to felony murder
was erroneous as a complete “fail[ure] to apply an abstract instruction to the facts of
the case.” See Barrera, 982 S.W.2d at 416. This is not a situation in which appellant
is complaining that the trial court should have, but failed to, instruct the jury on a
lesser-included offense. The jury was informed of the law of felony murder but was
not informed of the circumstances under which it should convict or acquit appellant
of that offense.



                                            9
III.   This error caused egregious harm.

       The State does not dispute that the jury charge was erroneous but argues that
the error did not harm appellant. Because appellant did not object to the charge, we
may reverse her conviction only if the record shows that the error resulted in
egregious harm. See Almanza, 686 S.W.2d at 171. In determining whether jury-
charge error is egregiously harmful, we consider not only the erroneous portion of
the charge, but also other relevant aspects of the trial. See Sanchez, 209 S.W.3d at
121. These relevant aspects include: (1) the entirety of the charge itself; (2) the state
of the evidence including contested issues and the weight of the probative evidence;
(3) the arguments of counsel; and (4) any other relevant information revealed by the
trial record as a whole. See id. Charge error is egregiously harmful if it affects the
very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory. Id.

       Entire charge. In determining whether charge error is egregiously harmful,
we first consider whether a reasonable jury referring to other parts of the charge
would find a correct statement of the law or would instead be confused or misled.
Vasquez, 389 S.W.3d at 371; Ngo, 175 S.W.3d at 752 (examining whether error was
“corrected or ameliorated in another portion of the charge” or “was compounded by
[a] misleading statement” in the charge).

       Capital murder occurs when a defendant intentionally or knowingly causes
the death of an individual plus a statutorily-defined aggravating factor. See Tex.
Penal Code Ann. § 19.03(a). Buxton v. State, 526 S.W.3d 666, 680 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d). The applicable defined aggravating factor in
this case is when a child is under ten years old. By contrast, felony murder is an
unintentional murder committed in the course of a felony. See Threadgill v. State,
146 S.W.3d 654, 665 (Tex. Crim. App. 2004). The very essence of the felony-murder

                                            10
rule is to make a person guilty of an “unintentional” murder when she causes another
person’s death during the commission of a felony, such as serious bodily injury to a
child. See Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007).

      The charge failed to instruct the jury that if it found appellant intentionally
injured the child but did not intend to kill the child it could find her guilty of felony
murder rather than capital murder. The charge limited the offenses for which the jury
could find appellant guilty to capital murder or serious bodily injury to a child.
Despite the fact that the abstract portion of the charge defined felony murder it did
not instruct the jury that it could find appellant guilty of the intervening offense of
felony murder if it did not find sufficient evidence to convict appellant of capital
murder. The jury’s only options were to find appellant guilty of capital murder or
serious bodily injury to a child.

      The State argues that appellant was not harmed by the omission from the
application paragraph because the trial court correctly instructed the jury on the
lesser-included offense of serious bodily injury. The State argues appellant was not
harmed because both felony murder and serious bodily injury are first-degree
felonies, exclude appellant from probation eligibility, and require a defendant to
serve half her sentence before becoming eligible for parole. None of this
information, however, was given to the jury in the court’s charge. In fact, for decades
the Court of Criminal Appeals has held that the trial court errs in instructing the jury
on punishment options at the guilt-innocence phase of trial. See Staggs v. State, 503
S.W.2d 587, 588 (Tex. Crim. App. 1974) (“[I]nclusion of information regarding
punishment in the charge at the guilt-innocence stage is improper.”); see also Tex.
Code Crim. Proc. Ann. art. 37.07, § 2(a) (providing that trial court shall instruct jury
on issue of guilt or innocence, without authorizing jury to pass upon the punishment
to be imposed). The fact that the range of punishment for the two lesser-included

                                           11
offenses is the same does not ameliorate the harm of failing to apply the abstract
portion of the charge to the facts of the case. We next consider whether this harm
was ameliorated by other relevant aspects of the trial.

      State of the evidence. The State argues that the evidence supports the jury’s
finding of capital murder, noting that intent can be inferred from the extent of injuries
to the child, the method used to produce the injuries, and the relative size and
strength of the parties. See Martin v. State, 246 S.W.3d 246, 263 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). The State further argues that appellant relied on
her defense of insanity and did not prove that she never intended to kill the child.

      The State is correct in its assertion that the jury could have inferred intent from
appellant’s actions. However, a charge authorizing conviction on an improper legal
theory is not free from egregious error simply because the evidence is sufficient to
support the allegations of the indictment. Uddin, 503 S.W.3d at 720. When “jurors
have been left the option of relying on a legally inadequate theory, there is no reason
to think that their own intelligence and expertise will save them from that error.”
Griffin v. United States, 502 U.S. 46, 59 (1991).

      The record reflects appellant’s admission that she injured her child. The
medical examiner testified to the extent of the child’s injuries and their life-
threatening nature. The evidence also showed that appellant called 911 in an attempt
to save her child. By raising a defense of insanity appellant placed her culpable
mental state at issue. See Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App.
1994); Williams v. State, 502 S.W.3d 262, 267 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d). The trial court’s erroneous charge deprived the jury of the option
to find that appellant acted intentionally but lacked the intent to kill her child. The
evidentiary factor therefore weighs in favor of a finding that the charge error caused
egregious harm.

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      Jury arguments. Both prosecutor and defense counsel primarily argued the
major contested issue in this case: whether appellant could be found not guilty by
reason of insanity. Both sides also argued that if the jury found appellant intended
to harm her child but not cause her death, they should find appellant guilty of serious
bodily injury to a child.

      The prosecutor, however, compounded the error in the application paragraph
by making the following remarks:

      Remember we talked about committing an act clearly dangerous to
      human life. You’re going to see that in felony murder. Well the felony
      is serious bodily injury to a child. So if you commit an act clearly
      dangerous to human life, even if you didn’t intend it to kill the child
      you commit that to human life which did cause the death of the child
      you are still guilty of capital murder ’cause it’s a child and that’s
      important.
On appeal the State admits the prosecutor misstated the law. By misstating the law,
the prosecutor misled the jury to believe that if it found appellant intended to injure
her child but did not intend to cause the child’s death the jury must find appellant
guilty of capital murder. The State attempts to excuse this misstatement of the law
by pointing out that there were two prosecutors and the second prosecutor correctly
stated the law to the jury. We note, however, that the correct statement of law was
during the State’s opening argument and the incorrect statement of law was made
during the State’s final closing just before the jury began to deliberate. Therefore,
just before the jury retired to deliberate the prosecutor misstated the law by telling
them that they should find appellant guilty of capital murder even if she did not
intend to cause the child’s death.

      Considering the prosecutor’s misstatement of the law, it is no exaggeration to
say that appellant was deprived of her valuable right to have a jury determination of
every element of the lesser offense, and that one of her defensive theories was vitally

                                          13
affected, to her substantial detriment. For these reasons, the closing arguments weigh
in favor of a holding of egregious harm.

      Other relevant information from the record. Capital murder, if the State does
not seek the death penalty, is punishable by life in prison without the possibility of
parole. See Tex. Penal Code Ann. § 12.31. Felony murder is a first-degree felony
punishable by five to ninety-nine years in prison plus the possibility of a fine not to
exceed $10,000. See Tex. Penal Code Ann. § 12.32. Unlike a person convicted of
capital murder, a person convicted of felony murder may be eligible for parole at
some time during her sentence. See Tex. Gov’t Code Ann. § 508.145. By failing to
include felony murder in the application paragraph of the charge, the trial court
denied appellant the right to have the jury consider a lesser punishment than life
without parole.

      We further note that the charge not only omitted a paragraph applying felony
murder to the facts of the case but also omitted a verdict form on which the jury
could have found appellant guilty of felony murder. Despite the fact that the charge
defined felony murder, the jury was not instructed on how to apply the evidence it
heard to the offense of felony murder. Moreover, even if the jury could have divined
this knowledge from the erroneous charge, they were never asked a question as to
whether appellant was guilty of felony murder. We sustain appellant’s first issue.

                                    CONCLUSION

      We hold that the charge error was egregiously harmful because it affected the
very basis of the case and deprived appellant of a valuable right: the charge removed
the ability of the jury to determine that appellant harmed her child but did not intend
to kill her. This error effectively denied appellant a fair and impartial trial. See
Sanchez, 209 S.W.3d at 125. We therefore sustain appellant’s first issue.


                                           14
      Having sustained this issue, we do not reach appellant’s additional complaints
on appeal. Accordingly, we reverse the trial court’s judgment and remand the case
for further proceedings. See Tex. R. App. P. 43.2(d).




                                      /s/     Jerry Zimmerer
                                              Justice



Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).




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