                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________
                                NO. 09-15-00522-CR
                                NO. 09-15-00523-CR
                                NO. 09-15-00524-CR
                               _________________

                    AMANDA DARLENE PIXLEY, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 258th District Court
                               Polk County, Texas
                     Trial Cause Nos. 22617, 22618, and 22619
________________________________________________________________________

                            MEMORANDUM OPINION

      In three separate indictments, a grand jury indicted Amanda Darlene Pixley

for sexual assault of T.D.,1 a child under the age of seventeen. See Tex. Penal Code

Ann. § 22.011(a)(2) (West 2011). Pixley voluntarily entered a plea of no contest in


      1
        To protect the privacy of the minor relevant to Pixley’s case, we identify him
by using initials that disguise his identity. See Tex. Const. art. I, § 30(a)(1) (granting
crime victims “the right to be treated with fairness and with respect for the victim's
dignity and privacy throughout the criminal justice process”)].
                                             1
each of the three cases, and the cases were tried together to the bench on the issue of

punishment. At the conclusion of the hearing, the trial court sentenced Pixley to

twenty years confinement in each case with the sentences to be served consecutively.

Pixley now appeals, and in two issues, complains of (1) evidence admitted during

her punishment hearing and (2) improper argument by the State at the punishment

hearing. We overrule Pixley’s issues and affirm the trial court’s judgments.

                     I. Factual and Procedural Background

      In October 2009, the Department of Family and Protective Services (“DFPS”)

placed Pixley’s two young half-sisters, K.P. and C.P., in Pixley’s custody. On

January 13, 2010, an unconscious K.P., then twenty-one months old, was brought

by ambulance to the hospital in Livingston, Texas, where she was found to have

sustained severe head trauma, in addition to other injuries. The child was taken by

Life Flight to Memorial Hermann Hospital in Houston for urgent surgical

intervention, but she died in the operating room hours later. DFPS removed Pixley’s

other half-sister from her care after K.P.’s death. Law enforcement conducted an

investigation and questioned Pixley, who was “seen as responsible for” K.P.’s death,

but she was not arrested or formally charged for the death or the injuries to the child.

      Unrelated to the foregoing, in 2011, Pixley allowed T.D., a sixteen year old

boy, to live with her in her home for several months, during which time she and the

                                           2
child maintained a sexual relationship. In 2012, Pixley was arrested and charged

with sexual assault of a child and admitted to having sex with T.D. on multiple

occasions.

      In January 2013, a grand jury indicted Pixley for three separate charges of

sexual assault. In October 2014, she waived her right to a jury trial and entered a

plea of no contest in each of the three cases. The trial court ordered a presentence

investigation report (“PSI”) and reset the matter for hearing on punishment for

November 2014. See Tex. Code Crim. Proc. Ann. arts. 42A.252–.253 (West 2017).2

A community supervision officer prepared the PSI and filed it with the court on

October 31, 2014. The trial court then rescheduled the punishment hearing a number

of times over the following year as a result of Pixley’s various claims of medical

issues, and ultimately made a finding on the record that Pixley was “voluntarily

absenting herself” from the proceedings and ordered that she be arrested and remain

in custody pending the punishment hearing.




      2
        Effective January 1, 2017, article 42.12 of the Texas Code of Criminal
Procedure was re-codified, without substantive change, as chapter 42A of the Texas
Code of Criminal Procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§
1.01, 3.01, 4.01, 4.02, 2015 Tex. Gen. Laws 2320. We cite herein to the current
version of the relevant statutory provision, which at all times pertinent to Pixley’s
case was contained in article 42.12, § 9(a).
                                          3
      Before the punishment hearing, the State filed a notice that it intended to offer

evidence at trial of extraneous offenses or bad acts. See Tex. R. Evid. 404(b); Tex.

Code Crim. Proc. Ann. arts. 37.07, 38.37 (West Supp. 2016). Specifically, the State’s

notice provided that it intended to introduce evidence that Pixley had “committed

the offenses of Injury to a Child and Endangering a Child against victim [K.P.]”3

                           II. The Punishment Hearing

      The punishment hearing was ultimately held on December 18, 2015. The

State’s first witness was Jennifer Ross, the medical examiner that conducted an

autopsy on K.P.’s body. Dr. Ross detailed the extensive injuries she found on K.P.

during the autopsy, which included twenty-five “blunt force injuries to the head and

face,” some of which had a pattern like a foreign object struck against the head, three

bruises on the neck, seven bruises and scratches on the chest and abdomen, eleven

bruises on the back, and twenty-seven bruises on the arms and legs. She testified that

while some of the bruises did appear to be “of older age,” evidencing chronic abuse,

most of the bruises “appeared acute, or occurring just prior to death.” She also



      3
         Pixley’s appellate brief indicates that there was a pre-trial hearing held on
the admissibility of the uncharged extraneous offense, and the State’s opening
statement at the punishment hearing lends support to that assertion; however, there
is no transcript of that hearing, nor does the record contain any docket entry or other
record concerning the hearing, the arguments of the parties, or the trial court’s
findings.
                                            4
described a skull fracture that K.P. had sustained and explained that it requires a lot

of intentional force to fracture a skull. Finally, she testified that she found injuries to

K.P.’s brain and diffuse, bilateral hemorrhages in the back of both of her eyes,

caused not from the strike to the head, but from “a repeated shaking episode.” With

regard to the timing of K.P.’s brain and retinal injuries in relation to her death, Dr.

Ross testified that:

             [w]henever a child sustains a shaking injury especially, and her
             findings are consistent with shaking, it is -- they immediately
             become unresponsive after the event. There’s no time period of
             – there’s no interval between injury and unresponsiveness. There
             may be an episode of vomiting, but nothing more than usually.
             So it occurred slightly before calling 9-1-1.

      Dr. Ross concluded, as confirmed in the autopsy report that was admitted into

evidence, that the cause of K.P.’s death was blunt head trauma with skull fracture

and subdural hemorrhage, and the manner of her death was homicide.

      The State next presented evidence from Drs. Fletcher and Strobel, two of the

surgeons involved with K.P.’s care on the night she died, both of whom testified

regarding the extent and severity of the child’s injuries preceding her death. Dr.

Fletcher testified that K.P.’s fatal injuries were in all probability the result of child

abuse. This conclusion was also documented in medical reports that were admitted,

with diagnoses including “multiple trauma due to child abuse” and history that


                                            5
included “[patient] clearly beaten with bruises about face, bite marks and what

appears to be a hit in head on right frontal area with a blunt object like a stick . . . .”

       Travis Nichols, Pixley’s live-in boyfriend in 2010, was called to testify about

his recollection of the events leading up to K.P.’s death. Nichols testified that he

worked on the day that K.P. died, but that he was with Pixley and the children before

he left for work, on his lunch break, and then that evening, after work. His testimony

indicates that K.P. was in Pixley’s physical custody and care the entire day before

she arrived at the hospital. This was consistent with the testimony of Shawna Kurth,

a DFPS investigator who interviewed Pixley while K.P. was at the hospital in

Livingston. Kurth testified that in the interview, Pixley told her that both children

had been solely in her care during the 24-hour period before K.P. was brought to the

hospital and that Nichols, specifically, had never been left alone with the children.

It was also consistent with the testimony of the detective that investigated K.P.’s

death, that after a thorough investigation of the child’s whereabouts throughout the

day of her death, he could find no person who was with the child or had access to

the child to inflict any type of injury to her, other than Pixley. The State also

presented a witness who had seen Pixley in a store with the two girls several hours

before K.P was brought to the hospital. The witness testified that at that time, both

children appeared healthy and with no obvious signs of problems.

                                            6
      Finally, the State called the community supervision officer that prepared the

PSI. During the PSI interview, Pixley told the officer that she had a history with the

prosecutor and investigator handling her sexual assault cases as a result of her having

been investigated and seen as responsible for K.P.’s death. That information was

included in the PSI filed with the court.4 The officer testified that Pixley did not go

into the details of K.P.’s death with her; however, Pixley did acknowledge to her

that K.P. died from a head injury, and Pixley never denied causing that injury, nor

did she suggest that any other person had caused the injury.

      At the conclusion of the punishment hearing, the trial court presented its

findings and rulings:

             I’ve heard the evidence presented today. I’ve read the
             presentence investigation; and in view of such, I assess your
             punishment for each charge at 20 years and a fine of $10,000 and
             court costs and that each of your punishments should be stacked
             and not concurrent.

      The trial court certified Pixley’s right to appeal as to punishment only, and

Pixley filed a timely notice of appeal.




      4
        Although the report was not formally admitted into evidence, it was referred
to throughout the hearing by attorneys for both the State and Pixley.
                                         7
                       III.   Extraneous Offense Evidence

       In her first issue, Pixley complains that the trial court erred in admitting

evidence of an uncharged, unindicted, extraneous offense in the punishment phase,

because the State did not and could not prove beyond a reasonable doubt that

Appellant committed the offense. We review a trial court’s decision to admit

evidence of an extraneous offense or bad act in the punishment phase of a proceeding

for abuse of discretion. Thompson v. State, 425 S.W.3d 480, 490 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d); see also Malpica v. State, 108 S.W.3d 374,

378–79 (Tex. App.—Tyler 2003, pet. ref’d) (“[T]he only review possible of the

sufficiency of the proof of an extraneous offense introduced at the punishment stage

is a review under an abuse of discretion standard of the trial judge’s threshold ruling

on admissibility.”). “Under an abuse of discretion standard, an appellate court should

not disturb the trial court’s decision if the ruling was within the zone of reasonable

disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). The

test for evidentiary relevance is much broader in the punishment phase of a trial than

the guilt-innocence phase, “the purpose being to allow the factfinder as much useful

information as possible in deciding the appropriate punishment for the individual

defendant.” Bowser v. State, 816 S.W.2d 518, 521 (Tex. App.—Corpus Christi 1991,

no pet.).

                                          8
      Article 37.07 of the Code of Criminal Procedure grants a trial court broad

discretion to admit evidence of extraneous crimes or bad acts during the punishment

phase of a proceeding. In relevant part, that statute provides that

      evidence may be offered by the state and the defendant as to any matter
      the court deems relevant to sentencing, including but not limited to the
      prior criminal record of the defendant, his general reputation, his
      character, an opinion regarding his character, the circumstances of the
      offense for which he is being tried, and, notwithstanding Rules 404 and
      405, Texas Rules of Evidence, any other evidence of an extraneous
      crime or bad act that is shown beyond a reasonable doubt by evidence
      to have been committed by the defendant or for which he could be held
      criminally responsible, regardless of whether he has previously been
      charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Additionally, because section 3(d)

of article 37.07 places no conditions on a trial court’s ability to consider the contents

of a PSI, the Court of Criminal Appeals has held that a trial court may consider

extraneous misconduct contained in a PSI even if the offenses are not established

beyond a reasonable doubt to have been committed by the defendant, as long as there

is some evidence from which it could be rationally inferred that the defendant had

some criminal responsibility for the extraneous misconduct. See Smith v. State, 227

S.W.3d 753, 758–59, 763–64 (Tex. Crim. App. 2007).

      In support of her argument that the State failed to meet its burden in this case,

Pixley relies heavily on the opinion of the Fourteenth Court of Appeals in Smith v.


                                           9
State, 292 S.W.3d 36 (Tex. App.—Houston [14th Dist.] 2006), aff’d on other

grounds, 227 S.W.3d 753 (Tex. Crim. App. 2007). We find her reliance on that

opinion to be misplaced, as the Court of Criminal Appeals remanded that case to the

trial court “for reasons entirely different than” those set out by the appellate court.

Smith, 227 S.W.3d at 764. Further, the underlying facts are wholly distinguishable.

In Smith, the evidence presented in the PSI and at the punishment hearing indicated

that the child victim had sustained a myriad of injuries over the course of several

weeks and fatal injuries that were believed to have been sustained “during a range

of six to twelve hours prior to arrival at the hospital; however, the range could have

been much longer or shorter[.]” Smith, 227 S.W.3d at 755–57. Further, the State’s

sole witness at the punishment hearing was unable to say whether the defendant had

been in “exclusive possession” of the child at any time during the period when most

of the child’s injuries occurred. Id. at 756. Based on that evidence, the Court of

Criminal Appeals found that, in assessing the defendant’s punishment for the

specific injury that he pled guilty to causing, the blow that caused the child’s death,

the trial court could not consider whether the defendant had actually caused any of

the child’s other injuries. Id. at 764. However, it held that the trial court was “free to

consider any reasonably available inference” that he knew about and failed to



                                           10
respond to the other injuries, “regardless of whether the PSI establish[ed] his

knowledge to a level of confidence beyond a reasonable doubt.” Id.

      Those facts stand in stark contrast to the record before this court. In the cases

before us, evidence that K.P. died from a head injury while she was under Pixley’s

supervision and that Pixley was “seen as responsible for her death” were among the

contents of the PSI. Thus, as in Smith, evidence concerning the circumstances of

K.P.’s death, and particularly the reasons that Pixley was seen as responsible for that

death, though uncharged and unadjudicated, could nevertheless be taken into

consideration by the trial court in assessing punishment. See id. at 762–63; Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a), (d). Unlike in Smith, however, the State in

these cases did not rely solely on the PSI; it developed the evidence of extraneous

misconduct through extensive testimony at the punishment hearing. Beyond the PSI

itself, the State presented evidence, primarily without objection, detailing not only

the multitude of injuries inflicted upon K.P., but also a general timeline of the day

of her death. Collectively, the evidence indicates that (1) K.P was seen with Pixley

and appeared normal and without significant injury in the hours before her death, (2)

most of K.P.’s injuries, including the fatal ones, were inflicted shortly before her

death, and (3) Pixley was in primary, if not exclusive, possession of the child for the

time period during which those acute injuries were sustained. We find that this

                                          11
evidence and reasonable inferences drawn therefrom are sufficient for the trial court

to have found to a level of confidence beyond a reasonable doubt that Pixley either

caused K.P.’s injuries or that she could otherwise be held criminally responsible for

them. See Smith, 227 S.W.3 at 764; Tex. Code Crim. Proc. Ann. art. 37.07(a)(1).

Therefore, we hold that the trial court did not abuse its discretion by considering

evidence concerning Pixley’s role in or responsibility for K.P.’s injuries or death in

assessing the punishment appropriate for her cases of sexual assault of another child.

We overrule Pixley’s first issue.

                     IV.    Improper Argument by the State

       In her second issue, Pixley argues that the State engaged in prosecutorial

misconduct by engaging in improper argument during the closing argument and by

attempting to testify or introduce evidence outside of the record. Specifically, Pixley

complains that the State engaged in three improper arguments.

A. State’s Decision Not to Prosecute Pixley for KP death

       The first argument about which Pixley complains concerns the fact that the

State never presented charges against Pixley to a grand jury in relation to K.P.’s

death. Pixley argues that it was improper for the prosecutor to argue why he did or

did not take particular actions with regard to that case because the prosecutor himself

did not testify.

                                          12
      There are four areas of proper argument: (1) summation of the evidence, (2)

reasonable deductions from the evidence, (3) answers to the argument of opposing

counsel, and (4) pleas for law enforcement. See Cifuentes v. State, 983 S.W.2d 891,

895 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). In its closing argument, the

State explained that there was no practical purpose in the State pursuing murder

charges against Pixley for K.P.’s death when the potential punishment she faced for

multiple sexual assault charges would have the same practical result —a sentence

that “is tantamount to a life sentence under Texas law.” In doing so, the State was

summarizing and arguing deductions from testimony that had been presented

through the investigator, without substantive objection, that the investigation of

K.P.’s death took “a kind of a turn in a different direction with the establishment of

these sexual assault charges,” and that the strength of the evidence on the sexual

assault charges impacted the case involving K.P.’s death “in a tactical way” that was

discussed with the prosecutor during the investigation. The summation was the

logical extension and reasonable inference of the investigator’s testimony that, with

Pixley having admitted to very serious charges in the sexual assault cases, it would

be unnecessary from a tactical perspective to pursue additional charges relating to

the child’s death. See Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988)

(“The purpose of closing argument is to assimilate the evidence to assist the fact-

                                         13
finder in drawing proper conclusions from the evidence.”). Additionally, the State’s

explanation answered the argument of opposing counsel that the reason the State did

not pursue charges against Pixley for K.P.’s death was that the investigator did not

believe he had probable cause to charge her. Accordingly, the State’s remarks were

within the scope of permissible argument. See Sandoval v. State, 52 S.W.3d 851,

858 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding that if the defense

invites argument, it is appropriate for the State to respond).

B. Effect of Sexual Assault on Victim

      The second area of closing argument that Pixley asserts was improper was the

State’s suggestion that her sexual assaults against T.D. had any adverse effect on

that child. Although Pixley asserts on appeal that the State’s improper argument was

that “the victim in the instant case has been traumatized by the sexual assaults,” no

such statement by the State appears in the record. Rather, the State responded to

Pixley’s implications throughout the hearing that the child was not traumatized or

was only “[l]egally . . . a victim” with an accurate recitation of the evidence

concerning T.D.’s circumstances following the assaults, including his own “criminal

problems” and concluding that “I don’t think you can sit here and say that

definitively what she did to him had no impact on this boy whatsoever.” Moreover,

Pixley did not object at any point to the State’s argument in this regard. We therefore

                                          14
conclude that Pixley failed to preserve her complaint for appeal even if the argument

had been improper. See Tex. R. App. P. 33.1(a); Archie v. State, 221 S.W.3d 695,

699 (Tex. Crim. App. 2007); Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—

Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013).

C. Pixley’s Subsequent Pregnancies

      The third area of argument about which Pixley complains on appeal deals with

the State’s mention of Pixley having had one child and becoming pregnant with

another while on bond after having pled to the charges in this case, which Pixley

characterizes on appeal as the State suggesting that Pixley should be punished for

having become pregnant or suggesting that Pixley only became pregnant as a ploy

to obtain sympathy from the court. However, Pixley’s complaints on appeal do not

comport with the objection presented to the trial court at the time of the argument.

Specifically, Pixley made no objection when the State questioned whether Pixley

acted in a “responsible” manner when she had multiple children while awaiting

punishment for serious crimes. Pixley’s only objection came when the State alluded

to the question of who would care for her children while she was incarcerated: “To

argue that there’s going to have to be a welfare baby out there, there[’s] no evidence

in this case about of [sic] that; and that’s improper.” After the court indicated

understanding of the issue of who would care for the children if she were

                                         15
incarcerated and the State continued with its closing, Pixley raised no objection to

the State’s comment that the pregnancies might have been for sympathy, nor did she

object when the State ultimately characterized her as an “evil person.” Therefore, we

find that Pixley failed to preserve her complaints. See Pena v. State, 285 S.W.3d

459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is

preserved depends on whether the complaint on appeal comports with the complaint

made at trial.”).

      A complaint must generally be properly preserved before it can be presented

on appeal. Tex. R. App. P. 33.1. Pixley concedes that some of the arguments or

statements she now complains of were not objected to at trial; nonetheless, she

argues that “the use of the inflammatory [and] impermissible arguments was so

pervasive that the error became structural error that did not need preservation.” We

disagree. Appellant has not cited, nor are we aware of, any authority supporting the

notion that any degree of pervasiveness can transform discrete instances of allegedly

improper prosecutorial argument into structural error that would excuse compliance

with the Rules of Appellate Procedure. See Mendez v. State, 138 S.W.3d 334, 342

(Tex. Crim. App. 2004) (“Except for complaints involving systemic (or absolute)

requirements, or rights that are waivable only, . . . all other complaints, whether

constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule

                                         16
33.1(a).”). We therefore overrule Pixley’s second issue and affirm the trial court’s

judgments in all three cases.

      AFFIRMED.



                                               ______________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on June 13, 2017
Opinion Delivered September 20, 2017
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          17
