                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-08-00399-CR

JEREMY D. NASH,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 278th District Court
                                Leon County, Texas
                             Trial Court No. CM-07-458


                            MEMORANDUM OPINION


          Jeremy Nash appeals from a conviction by a jury for the offense of Injury to a

Child causing serious bodily injury. TEX. PEN. CODE ANN. §22.04 (Vernon 2005). The

trial court assessed his punishment at confinement for twenty (20) years in the Texas

Department of Criminal Justice – Institutional Division. Nash complains that the trial

court erred by admitting photographs of the child which were not properly

authenticated, that the evidence was both legally and factually insufficient, and that he

received ineffective assistance of counsel. Because we find no reversible error, we

affirm.
Improper Admission of Evidence

         Nash complains that the trial court abused its discretion by admitting

approximately fifteen photographs into evidence because the photographs were not

properly authenticated. See TEX. R. EVID. 901. The photographs were admitted through

the testimony of a physician at the hospital where the child was treated; however, that

physician did not take the photographs or even see the child on the date the

photographs were taken. That physician first saw the child several days after the

photographs were taken.

         While the rules of evidence do not require that the person who took the

photographs be the sponsoring witness, the witness must provide testimony, based on

personal knowledge, sufficient to support a finding that the matter in question is what

its proponent claims. See TEX. R. EVID. 901(a); see also Huffman v. State, 746 S.W.2d 212,

222 (Tex. Crim. App. 1988) (predicate for videotape or photograph need not be laid by

photographer, subject of photograph, or person present when photograph taken, and

any witness who observed the subject depicted in photograph may lay predicate). It is

undisputed that the physician who was the sponsoring witness did not have personal

knowledge of the truth of what was portrayed in the photographs as depicted that

night.

         Assuming without deciding that the admission of the photographs through this

witness was erroneous, we find that the error, if any, was harmless. See TEX. R. APP. P.

44.2(b). Other properly authenticated photographs were admitted before the jury that

contained similar depictions of the child when he was brought into the hospital. See

Nash v. State                                                                       Page 2
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (Overruling an objection to

evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.). Further, an investigator

with Child Protective Services testified in rebuttal that she had seen the child on the

night he was taken to the hospital and verified that at least seven of the photographs in

question accurately portrayed the child that night based on her personal knowledge.

We overrule issue one.

Legal and Factual Sufficiency

        Nash complains that the evidence was both legally and factually insufficient for

the jury to find that he intentionally or knowingly caused the child’s injuries beyond a

reasonable doubt because the State’s experts did not conclusively establish that the

injuries could not have been accidental.       In reviewing the legal sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most favorable

to the prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).       Furthermore, we must consider all the evidence

admitted at trial, even improperly admitted evidence, when performing a legal

sufficiency review. Clayton, 235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex.

Crim. App. 2004). The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in establishing



Nash v. State                                                                           Page 3
an actor’s guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).

        When reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280

S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.

App. 2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is manifestly

unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse

under the second ground, we must determine, with some objective basis in the record,

that the great weight and preponderance of all the evidence, although legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

        Unless we conclude that it is necessary to correct manifest injustice, we must give

due deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9

(Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually

sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247;

see Watson, 204 S.W.3d at 417.

        In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not enough

that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”

Nash v. State                                                                        Page 4
Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is clearly wrong or

manifestly unjust simply because we would have decided differently than the jury or

because we disagree with the jury’s resolution of a conflict in the evidence. Id. We may

not simply substitute our judgment for the fact-finder’s. Johnson, 23 S.W.3d at 12; Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination of the

weight to be given contradictory testimonial evidence because resolution of the

conflict “often turns on an evaluation of credibility and demeanor, and those jurors

were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our

deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v.

State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). A factual sufficiency review of

circumstantial evidence is the same as a review of direct evidence. King v. State, 29

S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.

App. 1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to

support the jury’s verdict”).

The Facts

        A fifteen-month old child was admitted to the hospital with an acute subdural

hematoma. The child was covered in bruises of varying ages, including bruising to the

front and back of both of his ears, his face, trunk, and extremities. The explanation

ultimately given by Nash was that the child had fallen off of a chair in the bathroom.

He said that he put the child on the chair when another child in the residence called to

him regarding a video game and he went to help that child in another room, leaving the

Nash v. State                                                                      Page 5
injured child alone in the bathroom. When he came back, the child had fallen off of the

chair. The child’s mother was Nash’s girlfriend, and both she and Nash stated that she

was sleeping at the time of the incident. Both agreed that the child was acting normally

earlier in the day, and they believed that the child’s bruising was caused by an iron

deficiency.

        A treating physician at the hospital who had extensive experience in treating

child abuse cases stated that based on his experience and knowledge his opinion was

that the brain injury suffered by the child and the retinal hemorrhaging were

inconsistent with the explanation of a single fall from a chair and iron deficiency. Such

injuries would be caused by a severe car crash or a fall from several stories high. The

child would have quickly lost consciousness after the injury.        The child sustained

permanent brain damage due to the injury. The retinal hemorrhaging and bruising did

not continue while the child was in the hospital, indicating that there was no

undiagnosed medical condition. The bruising on the front and back of the child’s ears

was not likely caused by an ear infection or by falls where the child landed on each ear

in separate falls, but more likely by someone pulling or jerking on the ear. In his

opinion, the injury to the child was “the result of an abusive event.”

        A defense expert neurosurgeon testified that based on his reviews of the child’s

medical records that the child had suffered from a chronic subdural hematoma, which

was a preexisting condition. This condition, coupled with a fall from the chair, could

result in the injury sustained by the child. This physician did not believe that a baby

could be shaken to cause a head injury. He also relied on a study by a bioengineer

Nash v. State                                                                      Page 6
regarding testing conducted using a test dummy to measure acceleration in short falls

and shaking, although the substance of that study was not further elicited before the

jury. The defense expert disagreed with the findings of the American Academy of

Pediatrics regarding injuries sustained by young children from falls and regarding child

abuse in general. He did agree that it would be unusual, though not impossible, for a

fall of seventeen inches as was the height of the chair in question in this case, to cause a

serious head injury.

        The State called an expert witness in pediatrics with a specialty in child abuse

cases in rebuttal who testified that he disagreed with the findings of the defense expert

and did not see the chronic subdural hematoma as described and demonstrated by the

defense expert on the CT or MRI scans of the child taken at the hospital, and in fact

testified that he did not find the scans to be consistent with a chronic subdural

hematoma. He affirmatively stated that the injury sustained by the child could not have

been as a result of the fall as described by Nash, but could have been caused by being

struck against a couch, shaken vigorously and slammed into an object, or hit by a car or

baseball bat. No one was able to determine specifically what caused the child’s injury

based on the x-rays. The fall also could have been from a higher distance depending on

how mobile the child was at that time.

        It was for the jury, as the trier of fact, to resolve the conflicting expert opinions

regarding the cause of the child’s injuries. Viewing the evidence in the light most

favorable to the jury's verdict, and thus assuming that the jury believed the State's

experts and discounted the testimony of the defense experts, the evidence is legally

Nash v. State                                                                          Page 7
sufficient to support a finding beyond a reasonable doubt that Nash was the perpetrator

of the injuries sustained by the child. He was admittedly the only caretaker of the child

at the time of the injury. The testimony showed that his explanation of the head injury

was inconsistent with a short fall. The child was acting normally up until the injury,

and had eaten a cheeseburger earlier in the day.

        Even when all the evidence is considered equally in our factual sufficiency

analysis, including the testimony of the defense experts, we still must give due

deference to the jury's credibility determinations. It was the opinion of the investigator

from CPS that Nash had caused the head injury because he had the availability and

opportunity to do so. No one told the 911 operator or the EMT that arrived at the scene

that the child had fallen. The child’s mother stated that the child had bruises from

falling from learning how to pull up and that he had hit his mouth on rails at the foot of

her bed. Witnesses for Nash testified that he was very upset and crying that day when

the child was injured. The witnesses had seen him with his other children and the

injured child and he seemed to have a good relationship with them all. The State

responded with Nash’s former stepdaughter who alleged that Nash had spanked her

hard enough to leave bruises repeatedly for the eight years he lived with her, her

mother, and her siblings. The State's evidence is not so weak or the defensive evidence

so strong as to preclude the jury from finding beyond a reasonable doubt that Nash

intentionally or knowingly caused the child’s injury.        Issues two and three are

overruled.




Nash v. State                                                                       Page 8
Ineffective Assistance of Counsel

        Nash complains in his fourth issue that he received ineffective assistance of

counsel throughout the trial.     Specifically, he complains that his trial counsel was

ineffective by not objecting to the State’s experts pursuant to rule of evidence 705, by

failing to object to the investigator’s opinion that Nash caused the injuries, by failing to

object to the State’s comment on Nash’s failure to testify, and by failing to object to the

State’s closing argument. Nash filed a motion for new trial but did not allege ineffective

assistance of counsel in that motion.

Standard of Review

        To prevail on an ineffective-assistance claim, Nash must prove (1) counsel’s

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel’s deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). In considering an ineffective-assistance claim, we indulge a strong presumption

that counsel’s actions fell within the wide range of reasonable professional behavior and

were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d

at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this

presumption, a claim of ineffective assistance must be firmly demonstrated in the

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle

for raising such a claim because the record is generally undeveloped and cannot



Nash v. State                                                                         Page 9
adequately reflect the motives behind trial counsel’s actions. Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

        When the record is silent regarding trial counsel’s strategy, we will not find

deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).

In rare cases, however, the record can be sufficient to prove that counsel’s performance

was deficient, despite the absence of affirmative evidence of counsel’s reasoning or

strategy. Id.

        It is critical that Nash obtain the necessary record in the trial court to rebut the

Strickland presumption that counsel’s conduct was strategic for purposes of appeal.

Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing on a

motion for new trial, or by an application for a writ of habeas corpus. See Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Without evidence of the strategy and methods involved concerning counsel’s actions at

trial, the appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at

814. The record is silent as to any trial strategy by counsel. Except as stated above,

when the record is silent as to counsel’s reason for failing to act in some manner, the

appellant fails to rebut the presumption that counsel acted reasonably. See Thompson, 9

S.W.3d at 814.



Nash v. State                                                                        Page 10
Expert Testimony

        Nash complains that he received ineffective assistance of counsel because the

judge was not asked to make a ruling at the conclusion of the preliminary hearing

conducted outside of the presence of the jury prior to the first State expert’s testimony

and that the testimony should have been excluded because the doctor did not identify

the rate of error in the studies on which he relied. However, the rate of error is only one

of a list of non-exclusive factors that the Court of Criminal Appeals has recently stated

“could influence a trial court’s determination of reliability.” Laster v. State, 280 S.W.3d

235, 241 (Tex. Crim. App. 2009) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.

App. 1992)) (emphasis added). A finding regarding the rate of error is not mandatory.

The testimony would not have been excludable on this sole basis when taken with the

entirety of the expert’s testimony. Nash does not challenge the admissibility of the

scientific testimony on any other basis. Therefore, Nash fails to meet the first prong of

Strickland on this complaint.

Opinion Testimony, Comment on Failure to Testify, Improper Jury Argument

        As to the other complaints regarding whether Nash received ineffective

assistance of counsel, we find that the record is silent as to any trial strategy by counsel.

See Thompson, 9 S.W.3d at 814. As such, we do not find that Nash has developed an

adequate record to rebut the presumption that trial counsel acted reasonably. We

overrule issue four.

Conclusion



Nash v. State                                                                         Page 11
        We find that any error in admitting the photos was harmless. We find that the

evidence was both legally and factually sufficient to sustain Nash’s conviction. We find

that Nash did not receive ineffective assistance of counsel based on the failure to

challenge the admissibility of the State’s first expert and that the record is insufficient

for Nash to overcome the presumption that his trial counsel acted reasonably based on

his other complaints. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 17, 2010
Do not publish
[CR25]




Nash v. State                                                                       Page 12
