                                         NO. 12-17-00390-CR

                                IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

 AMANDA RAQUEL MITCHELL,                                    §       APPEAL FROM THE 173RD
 APPELLANT

 V.                                                         §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                   §       HENDERSON COUNTY, TEXAS

                                         MEMORANDUM OPINION
        Amanda Raquel Mitchell appeals her conviction for abandoning or endangering a child. In
five issues, Appellant argues that the State violated the Michael Morton Act1 and her due process
rights under Brady v. Maryland2 and that the trial court erred by denying her motions for an
instructed verdict, a mistrial, and a new trial. We affirm.


                                                  BACKGROUND
        Appellant was charged by indictment with abandoning or endangering a child by failing to
protect him and failing to provide medical attention to his injuries. She pleaded “not guilty,” and
the matter proceeded to a jury trial.
        At trial, the evidence showed that Appellant lived with Guy Ramey, his son, and
Appellant’s three children. One day, a preschool teacher noticed bruising on Appellant’s youngest
son, three-year-old K.M. The preschool director notified the Texas Department of Family and
Protective Services (the Department). K.M. said that Ramey caused the bruising. Ramey pleaded
“guilty” to the offense of injury to a child.


        1
          TEX. CODE CRIM. PROC. ANN. art. 39.14(h), (k) (West Supp. 2018); see Francis v. State, 428 S.W.3d 850,
856 n.12 (Tex. Crim. App. 2014).
        2
            373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
        Appellant testified that she did not know Ramey was abusing K.M. She claimed that she
bathed K.M. the night before the bruises were discovered but did not notice them.
        Ultimately, the jury found Appellant “guilty” of abandoning or endangering a child. The
trial court assessed Appellant’s punishment at confinement for two years in a state jail facility, but
suspended the sentence and placed her on community supervision for five years. This appeal
followed.


                                         DISCLOSURE OF EVIDENCE
        In Appellant’s first issue, she argues that the State violated her due process right to the
disclosure of favorable evidence under Brady. In her second issue, she argues that the same
nondisclosure violated the Michael Morton Act.
Preservation of Error
        Preservation of error is a systemic requirement on appeal. Wilson v. State, 311 S.W.3d
452, 473 (Tex. Crim. App. 2010). It is the duty of the appellate courts to ensure that a claim is
preserved in the trial court before addressing its merits. Id. In general, a claim is preserved for
appellate review only if (1) the complaint was made to the trial court by a timely and specific
request, objection, or motion and (2) the trial court either ruled on the request, objection, or motion
or refused to rule and the complaining party objected to that refusal. TEX. R. APP. P. 33.1(a);
Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). If a party fails properly to object to
errors at trial, even constitutional errors can be forfeited. Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012).
Analysis
        Department Investigator Janira Sanchez testified that K.M. underwent a medical evaluation
at a local hospital, and the results of the evaluation indicated new and old bruising. Cayce
Hampton Bosher3 testified that, at the time of these events, she was the lead investigator of crimes
against children for the Henderson County Sheriff’s Office. She reviewed documentation of the
medical assessment. In the documentation, the doctor noted that K.M. had multiple injuries in
various stages of healing, which indicated that the abuse was ongoing.




        3
          The record indicates that the investigator’s name was Cayce Hampton at the time of these events and Cayce
Bosher at the time of trial.


                                                        2
          After these two witnesses testified, Appellant complained to the trial court that the State
did not provide her K.M.’s medical records. Appellant averred that the records might contain
exculpatory information, such as documentation of a recent, prior doctor visit. Appellant then
requested access to the records. The State responded that it notified Appellant of the existence of
the records but did not provide access to her through its discovery sharing system because of
HIPAA and other privacy concerns. The State maintained that it was Appellant’s responsibility to
make a request to view the records. The trial court granted Appellant access to the records and
time to review them privately with her attorney. Appellant made no further objection concerning
the medical records.
          On appeal, Appellant argues that she is entitled to a new trial because the medical records
contain “a treasure trove of valuable evidence[,] . . . some of which arguably [is] exculpatory.”
We disagree. Appellant has not preserved her Brady and Michael Morton Act complaints for our
review. Although Appellant asserted to the trial court before she saw the medical records that they
might contain exculpatory evidence, she did not assert that they contained such evidence after she
reviewed them. Nor did she make a motion for continuance to the trial court. When previously
withheld evidence is disclosed at trial, a defendant’s failure to request a continuance waives any
Brady violation. Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d).
Because Appellant did not object or request a continuance after viewing the records, we conclude
that any violation based on the State’s alleged nondisclosure of them is forfeited. See id.; TEX. R.
APP. P. 33.1(a); Clark, 365 S.W.3d at 339. Accordingly, we overrule Appellant’s first and second
issues.


                                       MOTION FOR INSTRUCTED VERDICT
          In Appellant’s third issue, she argues that the trial court erred by denying her motion for
an instructed verdict because the State did not offer evidence to show she did not provide medical
attention, nor did it offer evidence to negate the exception to the offense.
Standard of Review and Applicable Law
          A challenge to a trial court’s ruling on a motion for an instructed verdict is a challenge to
the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686
(Tex. Crim. App. 1990). In Texas, the Jackson v. Virginia4 standard is the only standard that a

          4
              443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).


                                                            3
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the state is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, the relevant
question is whether, after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact would have found the essential elements of the crime beyond a reasonable
doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The responsibility of the trier of fact is to
resolve conflicts in the testimony fairly, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. See id. The jury is the exclusive judge of the credibility of
witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
App. 2000). Likewise, reconciliation of conflicts in the evidence is within the exclusive province
of the jury. Id. Because the jury is the sole judge of a witness’s credibility and the weight to be
given the testimony, it may choose to believe some testimony and disbelieve other testimony.
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
       To satisfy the elements of abandoning or endangering a child as alleged in the indictment,
the State was required to prove that Appellant intentionally, knowingly, recklessly, or with
criminal negligence engaged in conduct by omission that placed K.M., a child under fifteen years
old, in imminent danger of death, bodily injury, or physical or mental impairment by failing to
protect K.M. from Ramey or failing to provide medical attention to K.M.’s injuries caused by
Ramey, and that she did not voluntarily deliver K.M. to a designated emergency infant care
provider under Section 262.302 of the Texas Family Code.           See TEX. PENAL CODE ANN.
§ 22.041(c), (h) (West 2011).
Analysis
       At trial, K.M.’s seven-year-old sister, C.C., testified that the children in the house were
spanked, twice by Appellant and most often by Ramey. She further testified that they were
spanked multiple times on multiple days. According to C.C., Ramey used a long wooden paddle
to spank the children. Sometimes Appellant left the room during the spankings, and sometimes
she watched. But she never did anything to stop the spankings. One day, after one of the children
threw mud in Appellant’s hair, Appellant drilled holes in the paddle to make it move faster.
       Heather Smith testified that she was a teacher at Kiddie Kampus, the preschool K.M.
attended. On April 20, 2016, when K.M. arose from the toilet and turned to flush, Smith saw that
he was severely bruised from his lower back to his knees. K.M. told Smith that “Guy” was



                                                4
responsible for the bruises. Appellant brought K.M. to preschool that day and did not mention any
injuries.
        Investigator Sanchez testified that she received a phone call concerning K.M. from the
Kiddie Kampus director and began an investigation. As a result, the Department determined that
exigent circumstances existed for the removal of K.M., C.C., their four-year-old brother,5 and
Ramey’s son, twelve-year-old C.R. Sanchez and others from the Department and law enforcement
went to the home to get C.C. and C.R. after they came home from school. When Appellant and
Ramey arrived at the home, Sanchez apprised them of the situation and requested that they pack
some things for the children. Appellant and Ramey then went inside with C.C. and C.R. Sanchez
and the others waited outside for around fifteen minutes before Appellant came out asking where
C.C. and C.R. were. Investigator Hampton went behind the house into some tall grass and found
the children. According to Sanchez, based on her experience and the results of a medical
evaluation, she believed that the bruises on K.M.’s body were both new and old and were
consistent with the children’s accounts of what occurred.
        Bosher testified that she conducted interviews with Appellant and Ramey after they were
arrested on April 22. Video recordings of the interviews were admitted into evidence. When
Appellant was brought into the interview room, she started crying almost immediately and cried
through most of the twenty-minute interview, although there is little sign of her tears in the video.
When Bosher asked Appellant about the last time she looked at K.M.’s bottom, she answered that
she gave him a bath the night of April 19, washed his whole body, and did not see anything. Bosher
then showed Appellant a photograph of K.M.’s injuries. Appellant covered her face and repeated
the phrases “Oh my God!” and “Oh my baby!” several times before responding to any more of
Bosher’s questions. When Appellant finally appeared to calm down, Bosher told her that her
children said Ramey caused the injuries and that they called him “the paddle man.” Appellant
responded, “Did you ever find a paddle?”
        After the State rested its case, Appellant moved for an instructed verdict, arguing that the
State did not offer evidence to negate the exception to the offense, namely, that “the defendant did
not voluntarily deliver the child to a designated emergency infant care provider under Section
262.302 of the Texas Family Code.” See id. § 22.041(h). The trial court overruled Appellant’s
motion.

        5
            K.M.’s brother’s initials are also K.M. He attended preschool at Kiddie Kampus as well.


                                                          5
       In her defense, Appellant testified that she is not guilty of the charge against her. She
claimed that she did not know there was a paddle in her house, had no idea how K.M. was injured,
and was unaware of the injuries at that time. Appellant stated, “If I would have saw that on my
child, there’s no way I would have sat around and watched it. There was no way I would have let
my kids suffer like I have in the past.” She claimed she “made a mistake by not paying enough
attention to [her] . . . everyday surroundings.” Appellant confirmed that she gave K.M. a bath on
April 19 but claimed she did not see the injuries. She explained,


       I don’t know if it was because of my arm[.]6 I just wasn’t functioning right or what[.] [B]ut I did not
       see nothing on my kids or I would have took them in. . . . I would have took them to the hospital
       like I did whenever my kids ever got hurt or sick.


       On appeal, Appellant argues that the State was required to prove “each of the conjunctive
elements alleged in the indictment.” She contends that the evidence is insufficient to sustain her
conviction because none of the State’s witnesses supplied any evidence that she “failed to provide
proper care to her child under the Texas Family Code Section 262.302.” In support of her
argument, Appellant lists the State’s witnesses and observes that each of them “did not testify as
to whether Appellant sought or provided medical treatment to [K.M.].” We liberally construe
Appellant’s arguments as challenging both the allegation that she did not provide medical attention
to K.M.’s injuries and the allegation that she did not deliver K.M. to an emergency infant care
provider under Section 262.302 of the family code. But even under this liberal construction, we
cannot grant Appellant relief.
       First, the evidence is sufficient to show that Appellant did not deliver K.M. to an emergency
infant care provider under Section 262.302. That section provides the following:


       A designated emergency infant care provider shall, without a court order, take possession of a child
       who appears to be 60 days old or younger if the child is voluntarily delivered to the provider by the
       child’s parent and the parent did not express an intent to return for the child.



TEX. FAM. CODE ANN. § 262.302(a) (West 2014). Delivery of a child under that section is a
statutory exception to the offense of abandoning or endangering a child. See TEX. PENAL CODE
ANN. § 22.041(h). Therefore, the State was required to “negate the existence of [the] exception in

       6
           Evidence showed that Appellant was recovering from a fractured arm at the time.


                                                         6
the accusation charging commission of the offense and prove beyond a reasonable doubt that
[Appellant] or [Appellant’s] conduct does not fall within the exception.” See TEX. PENAL CODE
ANN. § 2.02(b) (West 2011). Smith testified that when she discovered K.M.’s injuries, he had
recently turned three years old. Appellant testified that K.M. was born on January 4, 2013. This
evidence, as well as a photograph of K.M. taken on the day his injuries were discovered, is
sufficient to prove that he did not appear to be sixty days old or younger. Thus, Appellant could
not have delivered him to an emergency infant care provider under Section 262.302.
         Second, the evidence is sufficient to prove that Appellant failed to provide medical
attention to K.M.’s injuries. In Appellant’s videotaped interview, she acted shocked when Bosher
showed her the pictures of K.M.’s injuries. At trial, she testified that she had no idea that K.M.
was injured and that if she had known, she would have taken him to the hospital.7 The jury could
have reasonably inferred from this evidence that Appellant did not provide medical attention to
K.M.’s injuries. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
         Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the
jury rationally was justified in finding beyond a reasonable doubt that Appellant is guilty of
abandoning or endangering a child. See id.; Brooks, 323 S.W.3d at 899; see also TEX. PENAL
CODE ANN. § 22.041. Accordingly, we overrule Appellant’s third issue.


                                              JUROR MISCONDUCT
         In her fourth issue, Appellant complains that the trial court erred by denying her motion
for mistrial after a juror stated he decided to convict after making an observation at home the night
before the verdict. In her fifth issue, she argues that the trial court erred by denying her motion
for new trial based on the same alleged juror misconduct.
Standard of Review and Applicable Law
         A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and
its ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330
S.W.3d 253, 292 (Tex. Crim. App. 2010). We review a trial court’s denial of a motion for new
trial for an abuse of discretion, reversing only if the trial judge’s opinion was clearly erroneous



         7
         In her brief, Appellant implies that we only must consider evidence elicited by the State in its case in chief.
However, when reviewing a trial court’s ruling on a motion for an instructed verdict, we consider all the evidence.
Madden, 799 S.W.2d at 686 & n.3.


                                                           7
and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Holden v. State, 201
S.W.3d 761, 763 (Tex. Crim. App. 2006).
       A defendant must be granted a new trial when the jury has engaged in such misconduct
that the defendant did not receive a fair and impartial trial. TEX. R. APP. P. 21.3(g). However,
during an inquiry into the validity of a verdict, a juror may not testify about any statement made
or incident that occurred during deliberations, the effect of anything on any juror’s vote, or any
juror’s mental processes concerning the verdict. TEX. R. EVID. 606(b)(1). A trial court may not
receive a juror’s affidavit or evidence of a juror’s statement regarding these matters. Id. An
exception to this rule is that a juror may testify about whether an outside influence improperly was
brought to bear on any juror. See id. 606(b)(2).
       A defendant may preserve jury misconduct error by a motion for new trial or, if the
misconduct is exposed during trial, by a motion for mistrial. Camacho v. State, 864 S.W.2d 524,
530 (Tex. Crim. App. 1993). Generally, a motion for new trial alleging jury misconduct must be
supported by the affidavit of a juror or some other person who was in a position to know the facts.
Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985). Otherwise, the motion must state a
reason for the omission of the affidavit. Id.
Analysis
       After the jury returned its verdict, Appellant filed a motion for mistrial alleging that the
prosecutor and defense counsel spoke with several jurors, and one juror stated that

       the turning point for him that caused him to find [Appellant] “guilty” was when the night before the
       verdict was rendered, he was bathing his young son. During the process of bathing his son, he
       contemplated whether [Appellant] could not have noticed that her son’s buttocks were bruised. [The
       juror] stated that he concluded that there was no way, based on his experience bathing his son the
       night before the verdict was rendered, that [Appellant] could not have known that her son had bruises
       on his buttocks[.]


Appellant argued that the juror’s actions violated the following instruction of the trial court:

       During your deliberations in this case, you must not consider, discuss, nor relate any matters not in
       evidence before you. You should not consider nor mention any personal knowledge or information
       you may have about any fact or person connected with this case, which is not shown by the evidence.




                                                        8
Appellant further argued that the juror’s actions constituted an improper outside influence on him
and “likely” other jurors as well. She contended that because of the juror’s misconduct, she was
deprived of a fair and impartial jury. The trial court denied the motion.
          In the motion for mistrial, her ensuing motion for new trial, and on appeal, Appellant
supports her argument that the juror was exposed to an improper outside influence by comparing
his actions to those of a juror in McQuarrie v. State. 380 S.W.3d 145 (Tex. Crim. App. 2012). In
McQuarrie, the defendant in a sexual assault case moved for a new trial based on evidence that a
juror researched the effects of date rape drugs on the internet during an overnight recess in
deliberations. Id. at 148. At a hearing on the motion, the defendant offered as evidence the
affidavits of two other jurors. Id. The trial court determined that the affidavits did not show an
outside influence and refused to consider them pursuant to Rule 606(b). Id. The court of appeals
agreed, but the court of criminal appeals held that the internet research constituted an outside
influence and remanded the case for a new hearing on the motion. Id. at 155.
          Although the juror’s actions here, like the juror’s actions in McQuarrie, occurred at home
during an overnight recess in deliberations, we cannot agree with Appellant that they likewise
constitute an “outside influence.” An outside influence must come from outside the jury and its
deliberations, but not everything that comes from outside the jury room qualifies as an outside
influence for the purposes of Rule 606(b). Colyer v. State, 428 S.W.3d 117, 127 (Tex. Crim. App.
2014).     The court of criminal appeals interprets “outside influence” to mean “something
originating from a source outside of the jury room and other than from the jurors themselves.”
McQuarrie, 380 S.W.3d at 154. A Rule 606(b) inquiry is limited to that which occurs outside of
the jury room and outside of the juror’s personal knowledge and experience. Id. at 153.
          Here, the juror stated that while bathing his son, he observed that it would be impossible
to do so without seeing bruises like K.M.’s. This observation is within the juror’s personal
knowledge and experience. Therefore, we conclude that the trial court reasonably could have
found that the juror’s observation was not an outside influence. See id. at 153–54; TEX. R. EVID.
606(b).
          Furthermore, a juror may testify about an outside influence only when it was “improperly
brought to bear” with an intent to influence a juror. See TEX. R. EVID. 606(b)(2)(A); Colyer, 428
S.W.3d at 128–29. For example, the juror who researched date rape drugs in McQuarrie told other
jurors about her finding in an effort to affect the verdict. Colyer, 428 S.W.3d at 129 (citing



                                                  9
McQuarrie, 380 S.W.3d at 148). In this case, there is no evidence that the juror bathed his son in
an effort to affect the verdict. Nor is there any evidence that he told any other jurors about bathing
his son in an effort to affect the verdict. Therefore, the trial court reasonably could have found
that the outside influence, if any, was not improperly brought to bear on any juror. See Colyer,
428 S.W.3d at 128–29; see also TEX. R. EVID. 606(b)(2)(A).
        Finally, even had the trial court found that the juror was exposed to an improper outside
influence, the juror still would be prohibited from testifying about the influence’s effect on him.
See Colyer, 428 S.W.3d at 129. Courts use the objective “reasonable person” test to determine
whether there is a reasonable possibility that the unauthorized information or communication
would have a prejudicial effect on the hypothetical average juror. See id.; McQuarrie, 380 S.W.3d
at 154. In this case, common sense dictates that a person could not bathe K.M. without seeing the
extensive bruising depicted in the pictures in evidence. Therefore, the trial court in this case
reasonably could have found that the hypothetical average juror would not be improperly
influenced to convict based on observing his own child in the bathtub. See Colyer, 468 S.W.3d at
129; McQuarrie, 380 S.W.3d at 154.
        In conclusion, the trial court properly could have denied Appellant’s motion for mistrial by
deciding that no outside influence was shown, any outside influence was not improperly brought
to bear on a juror, or the hypothetical average juror would not be improperly influenced by the
information. See TEX. R. EVID. 606(b); Colyer, 428 S.W.3d at 129; McQuarrie, 380 S.W.3d at
153–54; Coble, 330 S.W.3d at 292. Accordingly, we overrule Appellant’s fourth issue.
        For the same reasons, the trial court did not abuse its discretion by denying Appellant’s
motion for new trial. See TEX. R. EVID. 606(b); Colyer, 428 S.W.3d at 129; McQuarrie, 380
S.W.3d at 153–54; see also Riley, 378 S.W.3d at 457; Holden, 201 S.W.3d at 763. Additionally,
the motion was not supported by an affidavit of a juror or some other person who was in a position
to know the facts, nor does it state a reason for the omission of the affidavit. See Trout, 702
S.W.2d at 620. Consequently, the motion for new trial should not have been entertained by the
trial court and is not properly preserved for appeal. See id. Accordingly, we overrule Appellant’s
fifth issue.




                                                 10
                                                   DISPOSITION
         Having overruled Appellant’s first, second, third, fourth, and fifth issues, we affirm the
trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered November 5, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                         11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         NOVEMBER 5, 2018


                                         NO. 12-17-00390-CR


                                AMANDA RAQUEL MITCHELL,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 173rd District Court
                    of Henderson County, Texas (Tr.Ct.No. CR16-0565-173)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
