Opinion filed September 30, 2015




                                      In The


        Eleventh Court of Appeals
                                   ____________

                  Nos. 11-14-00005-CR, 11-14-00006-CR,
                   11-14-00007-CR, & 11-14-00008-CR
                              ____________

              CANDRA NICOLE APPLEGATE, Appellant
                             V.
                 THE STATE OF TEXAS, Appellee

                   On Appeal from the 259th District Court
                             Jones County, Texas
           Trial Court Cause Nos. 010734, 010735, 010736, & 010738


                     MEMORANDUM OPINION
      The jury convicted Candra Nicole Applegate of two third-degree felony
offenses of bodily injury to a child and two first-degree felony offenses of serious
bodily injury to a child. The trial court assessed punishment at confinement for ten
years for each of the convictions for bodily injury to a child and confinement for
twenty-six years for each of the convictions for serious bodily injury to a child. The
trial court sentenced Appellant and ordered that the sentences run concurrently.
Appellant challenges all four of her convictions on sufficiency grounds. She also
claims, in all four appeals, that improper comments by the trial judge fundamentally
harmed her case. We affirm all four of her convictions.
                               I. The Charged Offenses
       The grand jury, in two separate indictments, alleged that Appellant
intentionally or knowingly caused her child, T.L.W., to suffer (1) serious bodily
injury when Appellant fractured T.L.W.’s leg and (2) bodily injury when Appellant
fractured T.L.W.’s arm. The grand jury also alleged in a third indictment that
Appellant intentionally or knowingly caused another of her children, W.L.W., to
suffer bodily injury when she fractured his arm. The grand jury alleged, in the
indictments, that the injuries were sustained by “manner and means unknown to the
Grand Jury.” The grand jury also indicted Appellant on a fourth offense, alleging
that she intentionally or knowingly, by omission, caused serious bodily injury to
T.L.W. when Appellant failed “to provide the child with medical care.” As T.L.W.’s
mother, Appellant had a statutory duty to ensure that T.L.W. received medical care.
       A person commits an offense if she “intentionally, knowingly, recklessly, or
with criminal negligence, by act or intentionally, knowingly, or recklessly by
omission, causes to a child” serious bodily injury or bodily injury. TEX. PENAL CODE
ANN. § 22.04(a)(1), (3) (West Supp. 2014). If the person causes serious bodily
injury, then the offense is a felony of the first degree. Id. § 22.04(e). The offense is
a felony of the third degree if the person causes bodily injury. Id. § 22.04(f). For
the State to prove the offense of serious bodily injury caused by omission, a
defendant must have “a legal or statutory duty to act.” Id. § 22.04(b)(1). Appellant
pleaded not guilty to all four offenses, and the State prosecuted all four offenses in
one trial.




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                                        II. Evidence at Trial
        In October 2010, Appellant and Daniel Wright had twin babies: T.L.W., a girl,
and W.L.W., a boy.              Nine months later, Appellant took her twins to see
Dr. Justin Smith for a physical checkup.
        A. Dr. Smith’s Testimony
        Dr. Smith noticed a bruise on T.L.W.’s left leg and ordered an X-ray. The
X-ray revealed fractures above and below T.L.W.’s knee. Dr. Smith then ordered a
full skeletal survey, which is a series of X-rays of the entire body, because he had “a
high suspicion for abuse” and “injury to the child.” The full skeletal survey revealed
that T.L.W. had multiple broken bones. Appellant claimed the injuries had been
caused by “lifting the baby by one leg to change [her] diaper.” Dr. Smith ordered a
full skeletal survey of W.L.W. as well, and that survey also revealed numerous
fractured bones. T.L.W. and W.L.W. had a combined total of fifteen fractured
bones. Dr. Smith testified that the twins did not show signs of osteogenesis
imperfecta or brittle bone syndrome.1
        B. Dr. Dumas’s Testimony
        Doctor Michel Dumas, a radiologist, interpreted the full body skeletal surveys.
Dr. Dumas opined that, in cases of children under one year of age, an “abnormal
skeletal survey . . . raises a suspicion of child abuse.” He held that opinion because
such children are not “able to walk and run and play and jump off of things.” He
also explained that “there’s got to be some good explanation for how that child had
a force that could break a bone applied to one of its limbs or bones.” Dr. Dumas
then described T.L.W.’s and W.L.W.’s injuries.



        1
        Osteogenesis imperfecta is a condition that causes brittle bones and can increase the likelihood of
broken bones from even minor trauma.

                                                    3
      T.L.W.’s left arm had several fractures in it. Dr. Dumas believed the injuries
occurred “at least several days,” and in some cases, many weeks, prior to the X-rays
being taken. He agreed that the fractures were caused by a “twisting motion of
tremendous force” or a “snapping motion of tremendous force,” but he could not
explain exactly how the injuries occurred. T.L.W.’s right femur had also been
fractured; the wound had healed with a 30-degree bend in it so that the leg was now
abnormally shaped. Dr. Dumas testified that, if the injury had received prompt
medical care, the injury would not have healed with a “permanent angular
deformity.” Finally, he agreed that the wound caused protracted loss of the use of
the limb.
      Dr. Dumas also described “corner fractures” found in T.L.W.’s left leg.
Corner fractures are specific for child abuse because they come “from a twisting
injury or a pulling injury that you would typically only see in a situation where a
child is maybe swung by their leg or having their leg twisted with such force as to
induce pain.” Dr. Dumas agreed that there is “a tremendous amount of physical
force” needed “to cause a corner fracture.” Dr. Dumas believed the corner fractures
suffered by T.L.W. were “not accidental trauma” and were not the result of
horseplay.   Dr. Dumas remarked that T.L.W. had “the most dramatic corner
fractures” that he had ever seen, or heard of, in medical case studies; he also agreed
that an adult woman could inflict such injuries. Dr. Dumas explained that “every
textbook and research [study] says that [corner fractures are] highly specific for child
abuse.”
      Dr. Dumas then testified that W.L.W. had also suffered four corner fractures
in his legs. Furthermore, W.L.W.’s right hand exhibited an injury at least three to
four weeks old that, if seen in an adult, Dr. Dumas opined would be consistent with
a hammer striking the hand. Dr. Dumas described the injury as “a very unusual


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fracture for a child.” W.L.W. had also suffered a fracture in his left forearm that
appeared to be about a month old. Dr. Dumas opined that W.L.W.’s injuries were
not accidental.
        C. Ms. Brooks’s and Ms. Cosby’s Testimony
        Julia Elaine Brooks, Daniel’s mother and the twins’ grandmother,
acknowledged that someone had abused the twins. Elaine indicated that only Daniel
or Appellant could have been responsible for the abuse. Elaine explained that M.C.,
Appellant’s two-year-old daughter and the twins’ half-sister, lived with her and her
husband, George Brooks, after doctors discovered that M.C. had a broken collarbone
and had substantial bruises all over her body.2 Elaine never saw Daniel or Appellant
be “physical” with M.C. But when Elaine and George would drive M.C. by
Appellant and Daniel’s home on the way to drop her off at school, M.C. would
become terrified. M.C. would beg them not to return her to Appellant and Daniel.
George corroborated this testimony.
        Ashly Cosby was Appellant’s cousin by marriage, and she knew Appellant
and the twins well. She noticed that “[a] lot of times” the twins had bruises on their
bodies. Appellant and Daniel claimed that the twins’ cribs caused the injuries.
Cosby let Appellant use a mesh playpen for the twins to sleep in because it never
caused bruises on Cosby’s children. Nevertheless, the twins continued to have
bruises.
        Cosby testified that Appellant stayed at home to take care of her twins until
Appellant lost custody of them.               But Daniel worked during that time period.
Appellant admitted to Cosby “that Daniel was never alone with the children except
on a few rare occasions.” Appellant also indicated that Daniel did not interact much
with the twins. In contrast, Appellant “was with the twins all the time.” Cosby

        2
          The grand jury indicted Appellant for intentionally or knowingly causing bodily injury to M.C.,
but the trial court granted an instructed verdict as to that charge and it is not a subject of this appeal.

                                                    5
reviewed pictures of the twins, which were taken in the months prior to July 2011;
she pointed out various bruises on their bodies and faces. After the twins were
removed from Appellant and Daniel’s custody, Cosby took care of the twins for a
couple of months. During those months, Cosby never recalled the twins having any
bruises.
      Cosby agreed that Appellant never seemed like she was not “trying her best,”
and Cosby never saw Appellant exhibit violent behavior toward the children. Cosby
felt comfortable enough to leave her own children with Appellant on a “handful” of
occasions—meaning less than ten times. Cosby observed that Daniel did not seem
comfortable with the twins and that M.C. “always seemed very afraid of him.”
Cosby recalled that Daniel was alone with the twins once when she and Appellant
left one evening to walk at the track.
      D. Testimony of Twins’ Father and of Ranger Parker
      Daniel believed that Appellant suffered from post-partum depression after the
birth of the twins. He testified she failed to take her prescribed medication and
appeared depressed and “stressed out.” Daniel claimed that, for the first nine months
of the twins’ lives, he worked multiple jobs, and Appellant was with the twins “24
and 7.” Once while Daniel was at work, Appellant called him eight or nine times
and asked him to return home because she could not care for the children. On one
occasion, Daniel came home for lunch and found W.L.W. lying on the ground; “his
right foot was split open pretty good.” Daniel remarked that the cut was so deep that
it “looked like maybe it was to the bone.” Appellant appeared unaware of this
serious injury until Daniel brought it to her attention. In response, she told Daniel
dry skin caused the wound.
      On another occasion, Appellant called Daniel at work because M.C. was
“unruly and screaming, yelling.” Daniel went home to find M.C., hiding in her


                                          6
room, with a handprint on the side of her face; M.C. was crying and screaming.
Daniel also noticed swelling and knots on W.L.W.’s body at various times. When
he questioned Appellant, Appellant said M.C. or a toy had caused the injuries.
Daniel testified about a specific occasion when he had T.L.W. on his shoulders and
she threw herself back. He had to hold onto her by one leg as he grabbed her with
his other arm. T.L.W. was shaken and startled but did not “yell out and scream in
pain.” He said that T.L.W. was not injured at that time.
      Daniel admitted that the twins had been abused. He further admitted that only
Appellant or he could have caused the twins’ injuries, but he denied that he caused
any of their injuries. He said that the only other person that could have injured the
twins “would be [Appellant].” Shortly after the twins’ injuries were discovered and
they had been removed from Daniel and Appellant’s custody, Daniel left a message
on Appellant’s phone stating that he was sorry and “[t]his is all my fault.” Daniel
explained that he apologized for their relationship ending and Appellant being upset.
He also said he was “[e]xtremely upset to the point of tears” when he learned of the
twins’ injuries.
      Michael Parker, of the Texas Rangers, investigated the twins’ injuries. As
part of his investigation, he interviewed Daniel. Daniel told Ranger Parker that he
was never physically abusive or violent with the twins. Daniel also claimed that he
was never physically abusive or violent with M.C. Daniel rejected the notion that
M.C. was afraid of him. Daniel said that he loved her and thought she was a
wonderful child.
      Ranger Parker testified that he learned that Daniel was sometimes alone with
the twins and M.C. This situation occurred when Appellant ran errands or walked
at the track in the evenings. Ranger Parker also learned that Appellant had told
Dr. Smith that she had never left the twins alone with Daniel. Dr. Smith also testified


                                          7
that Appellant had told him she had never left the twins or M.C. alone with Daniel.
Ranger Parker testified that either Appellant or Daniel or both Appellant and Daniel
were the only people that could have inflicted the twins’ injuries. He also thought
that Appellant should have noticed the twins’ numerous bone fractures.
                                III. Standard of Review
      We review the sufficiency of the evidence under the standard of review in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). The trier of fact is the sole judge of the weight and credibility of the evidence.
Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326). A reviewing
court may not reevaluate the weight and credibility of the evidence and substitute its
own judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). The reviewing court must presume that the factfinder resolved
any conflicting inferences in favor of the prosecution and defer to that resolution.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
                             IV. Discussion and Analysis
      Appellant first challenges, in her four appeals, the sufficiency of the evidence
to support her convictions. In her second issue in each appeal, Appellant argues that
the trial court’s comment about her “boilerplate” rights, such as her presumption of
innocence and her right against self-incrimination, fundamentally harmed her




                                           8
because it “de-emphasiz[ed]” the importance of those rights. We will address her
sufficiency issues first.
      A. Issue One: Sufficiency of the Evidence
      Appellant advanced three arguments under her sufficiency challenges. She
first argues the evidence indicated “that Appellant alone, Daniel Wright alone, or the
two of them in conjunction in all likelihood, caused” the injuries to the children. She
claims the jury’s finding that Appellant individually caused the injuries was not
rational. Appellant concludes that, because the State did not include an instruction
on the law of parties in the jury charge, the jury was precluded from finding her
guilty of the offenses charged.
             1. Appellant’s First Sufficiency Argument
      The grand jury alleged that Appellant was responsible for the injuries to her
twins. The State did not assert that Appellant and Daniel jointly caused the twins’
injuries. Rather, the State argued that Appellant caused the injuries, and she
admitted that she alone could have committed the offenses.
      Serious bodily injury is a “bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” PENAL § 1.07(a)(46).
Injury to a child is a result-oriented offense that requires a mental state that relates
not to the specific conduct but to the result of that conduct. Alvarado v. State, 704
S.W.2d 36, 39 (Tex. Crim. App. 1985). A person acts intentionally, or with intent,
with respect to a result of his conduct when it is his conscious objective or desire to
cause the result. PENAL § 6.03(a) (West 2011). A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result. Id. § 6.03(b). In a circumstantial evidence
case, it is not necessary that every fact point directly and independently to the


                                           9
appellant’s guilt; it is sufficient if the conclusion is warranted by the combined and
cumulative force of all the incriminating circumstances. See Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004).
      Testimony from medical experts that “significant force” and a “great deal of
force” were used to cause a child’s injuries is sufficient evidence to prove intent to
cause serious bodily injury. Morales v. State, 828 S.W.2d 261, 265 (Tex. App.—
Amarillo 1992), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993); see also Sandoval v.
State, No. 14-12-00879-CR, 2014 WL 3870504, at *6 (Tex. App.—Houston [14th
Dist.] Aug. 7, 2014, no pet.) (mem. op., not designated for publication). In addition,
a jury may infer intent or knowledge based on the occurrence of a previous similar
injury. See Morgan v. State, 692 S.W.2d 877, 881–82 (Tex. Crim. App. 1985).
Evidence that a defendant was alone with a child when the injury occurred provides
an inference that the defendant caused the injuries sustained. See Nadal v. State, 348
S.W.3d 304, 315 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Flores v. State,
102 S.W.3d 328, 335–36 (Tex. App.—Eastland 2003, pet. ref’d). And avoidance of
Child Protective Services allows for an inference of actions that constitute knowing
activity. See Sandoval, 2014 WL 3870504, at *6.
      Dr. Dumas agreed that the fractures were caused by a “twisting motion of
tremendous force” or a “snapping motion of tremendous force.” T.L.W. suffered
protracted loss of use of her leg because she did not receive prompt medical attention
after she sustained the injury. Dr. Dumas further testified that the twins’ injuries
occurred at different times with a range from days to more than a month before the
X-rays were taken. Appellant was with her twins “24 and 7,” while Daniel was
rarely, if ever, alone with the twins.
      Daniel testified about occasions when Appellant called him to say that she
could not care for the children; he would come home to find the twins or M.C.


                                          10
injured. Cosby testified that Appellant rarely took her twins out in public. When
Cosby asked her why, Appellant “said that she felt like she couldn’t go in public
very often with the kids because CPS was always called.” Appellant then went on
to acknowledge that she was nervous “[b]ecause the kids have bruises.” We also
note that M.C. had previously suffered an unexplained broken collarbone and had
bruising all over her body. With this evidence and the other evidence we have
outlined, we conclude that a rational trier of fact could have found beyond a
reasonable doubt that Appellant intentionally or knowingly caused not only bodily
injury but also serious bodily injury to both of her twins.
                    2. Appellant’s Second Sufficiency Argument
      Appellant claims that she could not be expected to know that T.L.W. needed
medical care because it took X-rays to discover her injuries. We agree with the
State’s contention that this argument is without merit in light of our conclusion that
the evidence was sufficient to support the finding that Appellant knowingly or
intentionally caused bodily injury and serious bodily injury to T.L.W. Dr. Dumas
testified that T.L.W.’s right femur had been fractured at least several weeks prior to
its discovery and that it had healed with a “permanent angular deformity,” due in
part to the delay in receiving medical attention. See Thompson v. State, 227 S.W.3d
153, 161 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (failure to provide
medical care to the child aggravated the injury and hindered recovery).
      Cosby testified that, when T.L.W. was six or seven months old, she would cry
and appeared to be in pain when someone would touch her leg. Jena Clendenen,
Appellant’s half-sister testified that T.L.W.’s right leg was not straight; and Ranger
Parker said Appellant should have noticed that her babies had as many bone fractures
as they did. See Johnston v. State, 150 S.W.3d 630, 636 (Tex. App.—Austin 2004,
no pet.) (considering as factors the victim’s “sickly appearance, distended abdomen,


                                          11
and inability to hold himself up or hold down food and water” in the days prior to
receiving medical care in finding the evidence sufficient to support a conviction for
causing serious bodily injury by failure to render care to a child).           T.L.W.’s
deformity in her leg was apparent without X-rays. Appellant knew or should have
known of the extent of T.L.W.’s injuries and of T.L.W.’s need for medical attention.
Appellant’s failure to provide medical care caused T.L.W. serious bodily injury.
                   3. Appellant’s Third Sufficiency Argument
      Appellant next argues there is no evidence from a grand jury member to show
that the alleged causation by “manner and means unknown to the Grand Jury” was
actually unknown. Appellant claims that without a grand jury member to testify
about the “manner and means unknown to the Grand Jury,” there is insufficient
evidence to support Appellant’s convictions. Appellant claims that the “manner and
means unknown” element is not met because the evidence showed that the injuries
were caused by “some sort of twisting” motion.
      Appellant cites two cases to support her argument: Sanchez v. State and
Malik v. State. Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012);
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Both cases address
jury instruction issues. Sanchez involved an indictment that alleged a “manner and
means unknown,” but evidence adduced at trial narrowed the range of causation
theories. Sanchez, 376 S.W.3d at 770. Malik involved a jury instruction that
included a definition concerning the defendant’s detention, but that issue was one of
evidence and not an element of the offense. Malik, 953 S.W.2d at 240. Appellant
has not challenged the jury instructions given in this case, and Sanchez and Malik
are inapplicable to the sufficiency issue that has been raised by Appellant.
      We have previously explained that the State provided sufficient evidence to
convict Appellant of all four offenses. Dr. Dumas testified that the injuries were not


                                         12
accidental. He also opined that the injuries were caused by “tremendous force” and
were likely the result of abuse. But Dr. Dumas could not testify exactly how the
injuries occurred. As Appellant outlined in her brief, “No one [at trial] could testify
to any degree of medical certainty as to how the fracture[s] occurred” (emphasis
added). A rational factfinder could have found beyond a reasonable doubt that the
manner and means by which Appellant inflicted the injuries to her twins were
unknown. Therefore, there was no need for testimony from a member of the grand
jury. We overrule Appellant’s first issue in each appeal.
      B. Issue Two: Alleged Improper Judicial Comments
      Appellant argues that comments by the trial court about her “boilerplate”
rights, such as her presumption of innocence and her right against self-incrimination,
fundamentally harmed her because it “de-emphasiz[ed]” the importance of those
rights. Most complaints on appeal must be preserved at the trial level by a timely
request for relief. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). The
procedure to preserve error is “(1) to object when it is possible, (2) to request an
instruction to disregard if the prejudicial event has occurred, and (3) to move for a
mistrial if a party thinks an instruction to disregard was not sufficient.” Id. at 99
(quoting Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)) (internal
quotation marks omitted). Only if a timely objection would not have prevented harm
and an instruction to disregard would not have cured the harm, may a party then skip
those steps and go straight to a request for a mistrial. Id.
      The trial court informed the parties in this case, outside the presence of the
jury, of its intention to read to the jury the unique portion of each separate charge
and of its intention to only read the “boilerplate” portion, common to each charge,
once. The State’s attorney remarked to the trial court, “I believe it’s the best practice
that the Court reads each jury charge in its entirety[.]” The trial court had an off-


                                           13
the-record discussion with counsel at the bench without the jury being present and
then had the jury brought into the courtroom. The trial judge then read the unique
portion of each charge. He stopped at various spots to indicate that he would read
the portion of the jury charge common to all the offenses once, at the end.
      Prior to reading the portion common to each offense, which the trial court
called the “boilerplate” portion, the trial court again had an off-the-record discussion
with trial counsel at the bench. The trial court then told the jury:
      I am now going to read to you what we refer to amongst us lawyers as
      the boilerplate language. It is still very important, but it’s the same
      language in each charge and so I am only going to read it once but it is
      in each of these charges that you will consider today.
At no point in time did Appellant object. When the State indicated its preference to
read each charge in its entirety, a method that would likely have avoided the use of
the phrase “boilerplate” entirely, Appellant’s counsel said nothing in response.
Appellant’s counsel never requested an instruction to disregard the comment that
referred to “boilerplate” rights. Appellant’s counsel also never moved for a mistrial.
And, immediately after the use of the term “boilerplate,” the trial court implored the
jury that Appellant’s rights were “still very important” and applied to every single
offense charged. The trial court then went on to thoroughly outline and describe
Appellant’s rights and the State’s burden of proof. We conclude that Appellant
failed to preserve error because he failed to object when the trial court decided to
read the jury charge in the manner described. He also failed to object when the
phrase “boilerplate” was mentioned. See TEX. R. APP. P. 33.1(a); Unkart, 400
S.W.3d at 99. We overrule Appellant’s second issue in each appeal.




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                                   V. Conclusion
       We have reviewed the record and hold there was sufficient evidence for a
rational jury to find beyond a reasonable doubt that Appellant committed two first-
degree felony offenses of causing serious bodily injury to a child. We also hold there
was sufficient evidence for a rational jury to find beyond a reasonable doubt that
Appellant committed two third-degree felony offenses of causing bodily injury to a
child. We further hold that Appellant waived any complaint about the comments by
the trial court.
                               VI. This Court’s Ruling
       We affirm all four judgments of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


September 30, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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