

Opinion issued October 27, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00906-CR
———————————
Michelle Elaine Bearnth, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 230th District Court
Harris County, Texas

Trial Court Case No. 1231845
 

 
O P I N I O N
          A jury found Michelle
Elaine Bearnth guilty of the offense of felony murder, with the underlying
felony of injury to a child, and assessed punishment at thirty-three years’
confinement.[1]  In five issues, Bearnth contends (1) the
evidence is legally and factually insufficient to support the jury’s verdict;
(2) the trial court erred in denying her motion to quash the felony murder
indictment because that offense is in pari
materia with the offense of injury to a child, injury to a child is
assaultive conduct that cannot underlie a felony murder charge, and the
indictment was motivated by prosecutorial vindictiveness; and (3) she was
entitled to a hearing on her motion for new trial.
          We affirm.  
Background
          Bearnth lived in a home
with her two children, her boyfriend Josh Perkins, and his three children from
a prior relationship.  Bearnth was the
primary care-giver to the five children, including Perkins’s two-year old
daughter K.P., who was blind in her right eye. 
On September 30, 2008, Bearnth called Perkins at work to report that K.P.
had fallen in the backyard and suffered a black eye after hitting a paving
stone.  Perkins saw the black eye when he
returned home from work, but the child otherwise appeared unharmed and acted
normally.  
The next day, Bearnth, who was the only adult in the
house, called 911 stating that K.P. had fallen in the bathroom.  When paramedics arrived at the scene, K.P. was
unconscious and barely breathing.  She had
bruises on her hip, arms, legs, chest, upper and lower back, and around her
mouth.  K.P. also had two skull fractures—one
on the side of her head and one on the back of her head.  
          Bearnth
remained unemotional the entire time the paramedics tended to K.P.  She told the paramedics and police officers
at the scene that K.P. was prone to accidents and fell frequently because of
her limited vision, but she gave inconsistent accounts of how K.P. fell.  K.P. never regained consciousness and died in
the hospital one week later.
          A
grand jury indicted Bearnth for injury to a child.  See Tex. Penal Code Ann. § 22.04.  The indictment was later amended to allege
felony murder with the underlying offense of injury to a child through
intentional, knowing, reckless, or criminally negligent conduct.  See Tex. Penal Code Ann. § 19.02(b)(3).  Bearnth filed a motion to quash the
indictment, which the trial court denied. 

          At
trial, the jury heard testimony from the paramedics and police officers at the
scene who described K.P.’s injuries, Bearnth’s explanations of the events
giving rise to the injuries, and Bearnth’s demeanor.  Several social workers and Child Protective
Services representatives testified regarding their investigation into K.P.’s
injuries.  The jury also heard testimony
from the doctor who treated K.P. in the hospital, the medical examiner, and a
forensic anthropologist.  All three
doctors testified that K.P.’s injuries were not accidental or consistent with a
short fall.  K.P.’s father testified that
K.P. acted normally the night before she was injured, and various relatives and
friends testified that K.P. did not have bruises when she returned to Perkins
and Bearnth’s care after staying with her mother a few days earlier.  
          The
defense presented testimony from several witnesses who described Bearnth’s care
and demeanor with K.P. and the other children. 
Dr. Emily Ward testified as an expert and contradicted the conclusions
of the other three doctors that a short and accidental fall could not have
caused K.P.’s complex skull fracture. 
Bearnth herself also testified that K.P.’s injuries were the result of
an accidental fall from the toilet.  
          The
jury found Bearnth guilty of felony murder and assessed punishment.  Bearnth filed a motion for new trial,
asserting that the behavior of several CPS employees present at trial and the
exhibition presented by K.P.’s uncle across the street from the court house
intimidated the jurors and witnesses. 
The trial court overruled the motion by operation of law.
Sufficiency
of the Evidence
          In her first issue, Bearnth contends
the evidence is legally and factually insufficient to support her felony murder
conviction.  A defendant commits felony murder if she “commits or attempts to
commit a felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight from the
commission or attempt, [she] commits or attempts to commit an act clearly
dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. §
19.02(b)(3).  The underlying felony
offense in this case is injury to a child. 
See Tex. Penal Code Ann. § 22.04.
A.      Standard of Review
This court reviews sufficiency-of-the-evidence challenges
applying the same standard of review, regardless of whether an appellant raises
a legal or a factual sufficiency challenge.  See Ervin v. State,
331 S.W.3d 49, 52–54 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d).  This standard of review is the standard
enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979).  See Brooks v. State, 323 S.W.3d 893, 912, 927–28 (Tex. Crim. App. 2010).  Under
this standard, evidence is insufficient to support a conviction if, considering
all the record evidence in the light most favorable to the verdict, no rational
fact-finder could have found that each essential element of the charged offense
was proven beyond a reasonable doubt.  See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster v. State, 275
S.W.3d 512, 517 (Tex. Crim. App. 2009).  We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the
record contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense, or (2) the evidence conclusively establishes a
reasonable doubt.  See Jackson, 443 U .S. at 314, 320, 99 S. Ct. at
2786, 2789.  The
sufficiency-of-the-evidence standard gives full play to the responsibility of
the fact-finder to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.  See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).  An appellate court presumes the
fact-finder resolved any conflicts in the evidence in favor of the verdict and
defers to that resolution, provided that resolution is rational.  See
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
B.      Evidence of Felony Murder
          Three medical experts opined
that K.P.’s injuries could not have been caused by a short or accidental
fall.  Dr. Ezekiel Salinas, K.P.’s
treating physician, described the injuries as the result of a “violent force”
and consistent with her hitting, being hit with, or being pushed into a blunt object.  He stated that the fracture on the side of
her head was significant enough that she would not have been conscious for very
long after the injury.  He also testified
that Bearnth’s story about K.P. falling in the backyard was inconsistent with K.P.’s
injuries; she had a black eye but no scrapes or abrasions.  
Dr. Kathryn Haden-Pinneri
performed the autopsy on K.P.  She determined
that the injury to the side of K.P.’s head caused her death.  She also testified that the severity of
K.P.’s skull fracture was inconsistent with a three-foot-tall child standing in
the bathtub and falling, or sitting on the toilet and falling, because there
was not enough force from that height to cause such a fracture.  Dr. Haden-Pinneri did not believe K.P. slipped
on the wet bathroom floor because the doctor observed bruises covering K.P.’s entire
body, instead of significant bruising on only one side.  She counted 72 bruises on K.P.’s body and
testified that a short fall would not cause that degree of bruising.  She agreed with Dr. Salinas that Bearnth’s
story about K.P. falling in the backyard did not explain K.P.’s black eye and
that a particular bruise on K.P.’s hip was unlikely to have been caused by an accident.  According to Dr. Haden-Pinneri, the fracture
to the back of K.P.’s head appeared to be healing and therefore was older than
the injury to the side of her head. 
Based on her findings, Dr. Haden-Pinneri determined that the manner of K.P.’s
death was homicide as a result of blunt force trauma to the head.    
          Dr.
Haden-Pinneri consulted with a forensic anthropologist regarding K.P.’s
injuries.  Dr. Jennifer Love, who
specializes in the study of bones and fractures, testified that the fracture to
the back of K.P.’s head occurred one or two weeks before the fracture to the
side of her head.  She disagreed that the
fracture to the side of K.P.’s head was accidental.  She testified that the injury was caused by
the skull hitting a blunt object with a “significant force greater than [a]
typical fall,” regardless of whether the object was swung or K.P. was pushed
into the object.  Finally, Dr. Love
testified that three “red flags” for child abuse were all present with K.P.—the
location of the fracture, the type of fracture, and the number of
fractures.  
          In
addition to the testimony of the State’s medical experts, the jury heard
testimony regarding K.P.’s physical state from various eyewitnesses.  Several paramedics testified to the number of
bruises on K.P.’s body, that some appeared to be partially healed, that the
bruises did not appear to be the “usual kid-falling bruises,” and that they
were not accompanied by the scraped and bruised knees common with a child who
frequently falls.  Two paramedics
testified that some of the bruises on K.P.’s back and legs resembled handprints
and that the bruises around her mouth were the size of fingertips.  
The State presented testimony
showing that Bearnth’s explanation of K.P.’s injuries changed over time.  One paramedic testified that Bearnth recounted
that she was bathing K.P. when the child fell and hit her head in the
bathtub.  An officer testified that she
heard Bearnth tell the same story to a friend later at the scene.  Bearnth told another paramedic that K.P. had
suffered from diarrhea for several days, that she was bathing K.P. after the
child had defecated on the bathroom floor, that K.P. was not acting right and
“playing possum” in the bathtub, and that the child fell when Bearnth took her
out of the tub.  She did not mention that
K.P. fell from the toilet.  
Officer Pool, who was in charge of
the police investigation, interviewed Bearnth in his patrol car at the
scene.  Bearnth told him that K.P. had
defecated on the bathroom floor and was sitting on the toilet as Bearnth
cleaned the bathroom.  Bearnth left the
room briefly to remove a basket and returned to find K.P. lying face-up on the
floor, having hit her head on the bathtub and the floor.  A social worker who interviewed the family at
the hospital testified that Bearnth told her K.P. fell from the toilet when
Bearnth removed a basket from the room.  
Bearnth’s explanation of the other
bruises on K.P.’s body also changed over time. 
At one point, Bearnth told a CPS worker that she had no explanation for
the bruises on K.P.’s arms.  Two weeks
later, Bearnth told another CPS worker that K.P. was bruised when she returned
from her weekend visit with her mother. 
But the jury heard testimony from various family members and friends who
stated K.P. was not bruised and acted normally when she returned from spending
the weekend with her mother only two days before her injury.  Perkins also testified that he did not see
any bruises on K.P., other than her black eye, the night before her injury and
that she behaved normally.  
The record also indicates that
Bearnth was the only adult present at the time of the injury; there is no
evidence that anyone else was in the bathroom with K.P. 
Bearnth’s contends that (1) the
paramedics inaccurately relayed her explanation of the accident, (2) her
medical expert negated the testimony of the State’s three doctors, (3) the
three doctors further acknowledged that their conclusions could be wrong, and (4)
no one advanced a clear theory about what happened or linked the bruises to
Bearnth.  The jury, as the sole judge of
the credibility of the witnesses and the weight to be given their testimony, was
free to weigh Bearnth’s testimony and her expert’s opinions against the State’s
evidence.  See Clayton, 235 S.W.3d at 778; Williams v. State, 294 S.W.3d 674, 683
(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).  As to Bearnth’s second point,
Dr. Salinas and Dr. Haden-Pinneri acknowledged that some studies indicate that
a complex fracture can occur with a short fall, but stated that those studies did
not contradict their ultimate conclusions about the extent of K.P.’s head
injury.  Dr. Salinas iterated that the
studies also state that the more complex the fracture, the less likely the fall
was accidental.  Dr. Haden-Pinneri
criticized the studies because they defined a short fall to include a fall from
monkey bars or a swing, and she was unsure of the methodology used.  This testimony does not negate either
doctors’ prior testimony.  
 “[T]he verdict will withstand a sufficiency
challenge as long as the combined and cumulative force of all the circumstances
permits the conclusion that the jury was rationally justified in finding the
defendant guilty of each element of the crime beyond a reasonable doubt.”  Williams,
294 S.W.3d at 683 (holding evidence was sufficient in injury to child case when
medical examiner testified that child’s injuries could not have occurred as
defendant described and were sustained by violent physical abuse at time when defendant
was alone with child).   Injury to a child cases particularly depend
on circumstantial evidence because “there is rarely direct evidence of exactly
how the child’s injuries occurred.”  Id.  “Texas
case law is replete with holdings that when an adult defendant has had sole
access to a child at the time its injuries are sustained, the evidence is
sufficient to support a conviction for injury to a child, or murder if the
child dies.”  Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet.
ref’d).
The jury would have been
rationally justified in concluding Bearnth caused the injury to K.P. as a basis
for felony murder given the testimony that K.P.’s injuries required more force
than a short fall, that the effects of the injury would have been quickly
apparent, and that Bearnth was the only adult in the house.  See
Williams, 294 S.W.3d at 683.  Bearnth’s
changing narrative of how K.P. fell is further circumstantial evidence of
guilt.  See Kemmerer v. State, 113 S.W.3d 513, 515 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d) (holding evidence that child’s injury required more force
than defendant’s explanation of short fall and jury could have viewed
defendant’s changing explanations as evidence of guilt).  We hold the evidence is sufficient to support
the jury’s finding of felony murder through injury to a child.  See
Williams, 294 S.W.3d at 683.
We overrule Bearnth’s first issue.
Motion
to Quash Indictment
          In
her second, third, and fourth issues, Bearnth argues that the trial court erred
in denying her motion to quash the State’s indictment because (1) the offenses
of felony murder and injury to a child are in pari materia, (2) injury to a child is assaultive conduct that
cannot provide the underlying felony in a felony murder prosecution, and (3) the
timing, emotional nature of this case, and limited evidence indicate that her
conviction was motivated by prosecutorial vindictiveness.
A.      Standard of Review
          “An issue raised by an indictment may present a question of law.”  Hollin
v. State, 227 S.W.3d 117, 120 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).  The question is subject to de
novo review when its resolution does
not require an evaluation of the credibility and demeanor of a witness.  Id.
  
B.
     Pari
Materia
          In her second issue, Bearnth complains that she should have been
prosecuted for the specific offense of injury to a child, not the general
offense of felony murder, because the provisions of the Penal Code setting
forth those offenses are in pari materia.  Pari
materia is a settled rule of statutory interpretation:  “statutes that deal with the same general
subject, have the same general purpose, or relate to the same person or thing
or class of persons or things, are considered to be in pari materia though they
contain no reference to one another, and though they were passed at different
times or at different sessions of the legislature.”  Azeez
v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008) (quoting Cheney v. State, 755 S.W.2d 123, 126
(Tex. Crim. App. 1988)); see Tex. Gov’t Code Ann. § 311.026 (West
2005) (codification of doctrine). The
rule applies “where one statute deals with a subject in comprehensive terms and
another deals with a portion of the same subject in a more definite way.”  Azeez,
248 S.W.3d at 192 (quoting Cheney,
755 S.W.2d at 126).  Where a general statute and a more detailed
enactment are in conflict, the latter will prevail unless it appears the
legislature intended to make the general act controlling.  See Tex. Gov’t Code Ann. § 311.026(b); Cheney, 755 at 126. 
Two penal provisions are in pari materia “where one provision has broadly defined an offense,
and a second has more narrowly hewn another offense, complete within itself, to
proscribe conduct that would otherwise meet every element of, and hence be
punishable under, the broader provision. 
In the case in which the special statute provides for a lesser range of
punishment than the general, obviously an ‘irreconcilable conflict’ exists, and
due process and due course of law dictate that an accused be prosecuted under
the special provision, in keeping with presumed legislative intent.”  Mills
v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986).  
To determine whether two statutes are in pari materia, we consider four factors:  whether the statutes (1) are contained in the
same legislative act, (2) require the same elements of proof, (3) involved
different penalties, and (4) were clearly written to achieve the same objective.  Hollin,
227 S.W.3d at 121 (citing Burke v. State,
28 S.W.3d 545, 547 (Tex. Crim. App. 2000)). 
Similarity of purpose or object is the most important factor.  See Hollin,
227 S.W.3d at 121.  
This appeal involves the broad offense of felony
murder and the “more narrowly hewn” offense of injury to a child.  See Tex. Penal Code Ann. §§ 19.02(b)(3),
22.04.  The “felony murder” statute
provides that a defendant commits murder when she commits a felony other than
manslaughter and, during the course of its commission, commits an act clearly
dangerous to human life that causes the death of an individual.  Tex.
Penal Code Ann. § 19.02(b)(3).  A
defendant is guilty of “injury to a child” if she “intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally, knowingly, or
recklessly by omission, causes to a child . . . (1) serious bodily injury; (2)
serious mental deficiency, impairment, or injury; or (3) bodily injury.”  Tex.
Penal Code Ann. § 22.04(a).     
The indictment alleged that Bearnth committed or
attempted to commit “the felony offense of injury to a child by unlawfully,
intentionally, knowingly, recklessly and with criminal negligence causing
bodily injury” and, “while in the course of and furtherance of the commission
of and attempt to commit said offense, [Bearnth] did commit and attempt to
commit an act clearly dangerous to human life.” 
The injurious or “clearly dangerous” act allegedly commited by Bearnth
was (1) striking K.P.’s head with a blunt object, an unknown object, or her
hand or (2) causing K.P.’s head to strike a blunt or unknown object.  
The trial court’s charge tracked the language in the
indictment and instructed the jury to find Bearnth guilty of felony murder if
she “unlawfully, intentionally, knowingly, recklessly or with criminal
negligence caus[ed] bodily injury to” K.P. by causing her head to strike a
blunt object or by striking her head with a blunt object and, “while in the
course of and furtherance of the commission or attempt to commit said offense
did commit or attempt to commit an act clearly dangerous to human life” by
causing K.P.’s head to strike a blunt object or by striking her head with a
blunt object.  The jury found Bearnth
guilty of felony murder, but did not answer whether it found her guilty of injury
to a child by “intentionally or knowingly causing bodily injury to [K.P.].”  
          Applying the four factors
listed above, we first note that felony murder and injury to a child appear in
the Penal Code under different chapters—felony murder in chapter 19, titled
“Criminal Homicide,” and injury to a child in chapter 22, titled “Assaultive
Offenses.”  While both chapters 19 and 22
are contained in title five, “Offenses Against the Person,” the severity and
type of offense vary between the two chapters. 
The chapter 22 offenses result in the death of the complainant, whereas
the chapter 19 offenses are assaults. 
The Court of Criminal Appeals has noted that statutes featured in the
same title, but in different chapters, are not necessarily in pari materia.  See Mills, 722 S.W.2d at 416 (holding
statutes for theft and securing execution of document by deception not in pari materia even though both appear in
same title of Penal Code); see also
Roberson v. State, No. AP-74671, 2002 WL 34217382, at *11–12 (Tex. Crim.
App. Jun. 20, 2007) (mem. op., not designated for publication) (noting capital
murder and injury to a child from different legislative acts and are not in pari materia though both appear in
different chapters under same title).   
Second, felony murder and injury to a child do not
require the same elements of proof. 
Section 22.04 is limited to offenses against a specific class of
complainants considered especially vulnerable—children, the elderly, and the
disabled.  See Tex. Penal Code Ann.
§ 22.04.  In contrast, felony murder
requires proof of an underlying felony regardless of the identity of the
complainant or the type of felony.  See id. § 19.02(b)(3).   Felony murder does not require any mental
state beyond that required for the commission of the underlying felony.  Lomax
v. State, 233 S.W.3d 302, 306–07 (Tex. Crim. App. 2007); see Burke, 28 S.W.3d at 549 (holding
elements for aggravated assault with serious bodily injury and intoxication
assault too dissimilar to be in pari
materia because intoxication assault requires proof of intoxication and no
mental state and aggravated assault requires proof that, regardless of
intoxication, defendant acted intentionally, knowingly, or recklessly).  More importantly, felony murder requires
proof that the defendant caused the death of the complainant, whereas injury to
a child only requires proof of serious bodily injury; serious mental
deficiency, impairment, or injury; or bodily injury.  Compare
Tex. Penal Code Ann. §
19.02(b)(3), with id. §
22.04.  Thus, the conduct proscribed in
the “injury to a child” statute would not meet every element of the offense
under the “felony murder” statute.  
Third, felony murder and injury to a child involve different
penalties.  Felony murder is a first
degree felony punishable by five years to life in prison.  See Tex. Penal Code Ann. §§ 12.32, 19.02(c)
(West 2011).   In contrast, as indicted
and charged in this case, injury to a child may be a felony in the first,
second, or third degree or a state jail felony, depending on the defendant’s
mental state and the circumstances of the offense.  See id.
§ 22.04(e)–(g) (explaining that degree of felony is coordinate with
defendant’s mental state).  The available
punishment for injury of a child ranges from 180 days to life in prison.  See id.
§§ 12.32–12.35 (West 2011).  
          Finally, we cannot say the
“felony murder” and “injury to a child” statutes were written to achieve the
same purpose.  By proscribing the conduct
that constitutes “injury to a child” under section 22.04, the legislature sought
to protect a specific class of individuals considered particularly vulnerable
to injury and exploitation.  See Ybarra v. State, No. 03-06-00685-CR,
2008 WL 2468706, at *4 (Tex. App.—Austin June 18, 2008, pet. ref’d) (mem. op.,
not designated for publication) (stating section 22.04 does not have same
purpose as Code of Criminal Procedure art. 42.12, § 3g(a)(2) because “the
former is designed to protect children from serious bodily injury while the
latter is designed to deter the use of a deadly weapon in the commission of any
felony offense.”).  The felony murder statute,
however, serves the general purpose of imposing criminal responsibility for
death and preventing homicide by deterring, punishing, and incapacitating “persons
who commit felonious acts that are ‘clearly dangerous to human life,’” whether
or not those acts are against a child.  See Hollin, 227 S.W.3d at 122 (holding
that felony murder statute “encompasses the purpose of the intoxication
manslaughter statute, as well as other felonies, and goes beyond that specific
purpose”).  “When you embark upon an
inherently dangerous criminal project, you are responsible for the deadly
consequences that result from that felonious conduct.”  Lawson
v. State, 64 S.W.3d 396, 398 (Tex. Crim. App. 2001) (Cochran, J.,
concurring).  Consequently, the
objectives of the “felony murder” and “injury to a child” statutes are not so
closely related so as to justify interpreting them together.  See
Hollin, 227 S.W.3d at 122; Ybarra,
2008 WL 2468706, at *4.
Because our analysis leads us to conclude that injury
to a child under section 22.04 and felony murder under section 19.02(b)(3)
involve different penalties, are in different chapters of the Penal Code,
require different elements of proof, and are not intended to achieve the same
objective, we hold these statutes are not in pari materia.  See Hollin, 227 S.W.3d at 122.
We overrule Bearnth’s second issue.
C.      Underlying Felony
          In her third issue, Bearnth asserts that a felony murder conviction will
not lie when the underlying felony is injury to a child.  Only manslaughter and lesser-included
offenses of manslaughter, however, are excluded from felony murder; “[t]he
offense of ‘injury to a child’ can qualify as an underlying felony in a felony
murder prosecution.”  Contreras v. State, 312 S.W.3d 566, 584
(Tex. Crim. App. 2010) (citing Johnson v.
State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999)); see Garrett v. State, 573 S.W.2d 543, 545–46 (Tex. Crim. App.
1978).    
          We overrule Bearnth’s
third issue.
D.      Prosecutorial
Vindictiveness
          In her fourth
issue, Bearnth challenges the trial court’s denial of her motion to quash the
indictment “without a hearing when there was clearly an issue of prosecutorial
vindictiveness at hand . . . .”  She
asserts the record establishes that the State amended the indictment to include
a felony murder charge in retaliation for her exercise of her right to a trial
by jury.  We disagree.    
          Bearnth’s fourth issue is drafted so
as to complain about the trial court’s failure to conduct a meaningful hearing
on the issue of prosecutorial vindictiveness. 
Bearnth suggests, as an alternative form of relief, that the Court
should abate and remand this case for “findings of fact and conclusions of law
or a hearing on this issue.”  We note,
however, that the reporter’s record includes a hearing at which both Bearnth’s
motion to quash the indictment and the State’s motion to amend the indictment
were presented.  The hearing spans more
than 20 pages of the reporter’s record. 
At no time during the hearing did the trial court limit Bearnth’s
presentation of her motion and arguments, and Bearnth did not object to the
manner in which the hearing was conducted. 
Neither did she request a continuance or an opportunity for further
hearing on the issue of prosecutorial vindictiveness.  Given these circumstances, Bearnth’s
complaint about the lack of a meaningful opportunity to be heard is without
merit.   
Construing
Bearnth’s fourth issue as a complaint that the trial court erred in denying her
claim of prosecutorial vindictiveness, we conclude that Bearnth has not
established she is entitled to relief. 
“Courts must presume that a criminal prosecution is undertaken in good
faith and in nondiscriminatory fashion to fulfill the State’s duty to bring
violators to justice.”  Neal v. State, 150 S.W.3d 169, 173 (Tex.
Crim. App. 2004).   A
defendant bears the burden of proving, by a preponderance of the evidence, a
claim of prosecutorial vindictiveness.  Ex parte Legrand, 291 S.W.3d 31, 41
(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).  Bearnth asserts that “the timing [of the
amended indictment], the emotional nature of the charged crime, the upsetting
surrounding facts of a tragic death of a child, and the sparse evidence against
[her] all weigh heavily in favor of a presumption that this was a case of
prosecutorial vindictiveness.”  Bearnth,
however, has not cited a case, and we have found none, in which similar
circumstances gave rise to a presumption of vindictiveness.  The motion to amend the indictment was filed
shortly before a trial setting, but nothing else in the record suggests that
the prosecutor had an improper motive.  The
prosecutor informed the trial court that she filed the motion to amend in
response to Bearnth’s motion to quash and to cure deficiencies pointed out in
that motion.  On this record, we cannot
conclude that the trial court erred.
          We overrule Bearnth’s fourth issue.
Motion for New Trial Hearing
          In her fifth
issue, Bearnth contends the trial court erred by allowing her motion for new
trial to be overruled by operation of law. 
She argues that she was entitled to a hearing on the motion because it
raised issues of jury intimidation that could not be determined from the record—namely,
whether the jurors were influenced by CPS workers sitting in attendance at trial
or by a demonstration outside the court house. 
The State responds that Bearnth failed to present her motion to the
trial court in accordance with the Rules of Appellate Procedure.  See Tex. R. App. P. 21.6.  
          A
defendant has a right to a hearing on a motion for new trial when the motion
raises matters that cannot be determined from the record.  Reyes
v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).  The trial court, however, need not conduct a
hearing if the motion for new trial is not timely presented.  See Tex. R. App. P. 21.6 (requiring
defendant to present motion for new trial to trial court within 10 days of
filing); see also Rozell v. State,
176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (noting that right to hearing on
motion for new trial is not absolute).  Presentment
requires a defendant to do more than simply file the motion for new trial with
the trial court clerk.  “The presentment
must be directed to the trial court or another authorized to act on behalf of
the trial court.”  Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).  This requirement puts “the trial court on
actual notice that a defendant desires the trial court to take some action on
the motion for new trial such as a ruling or a hearing on it.’”  Stokes
v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (quoting Carranza, 960 S.W.2d at 78); see Butler v. State, 6 S.W.3d, 636, 639-40
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on reh’g) (discussing
history of motions for new trial and presentment requirement in criminal cases).  
          Bearnth
timely filed her motion for new trial in this case, but the record does not
contain any ruling on the motion, a proposed order containing the trial judge’s
signature or notation, or a docket entry evidencing a hearing on the
motion.  The only suggestion of
presentment in the record is the prayer in Bearnth’s motion requesting an
evidentiary hearing and a “Certificate of Presentment” stating that the motion
“was presented to the court within ten days of filing as required under the
rules.”  Both documents, however, are
signed only by Bearnth’s attorney; they do not include any notation from the trial
judge or other court personnel.  We cannot
conclude that the presentment requirement was satisfied where the record shows
only defense counsel’s statement that the motion had been presented, but does
not indicate that counsel in fact communicated the request for a hearing in a
timely manner to a person capable of acting on it.  See Tex. R. App. P. 21.6; Hiatt v. State, 319 S.W.3d 115, 122-23
(Tex. App.—San Antonio 2010, pet. ref’d) (holding that certificate of
presentment signed by defense counsel was insufficient evidence of presentment);
Longoria v. State, 154 S.W.3d 747,
762 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (same); Oestrick v. State, 939 S.W.2d 232, 235
(Tex. App.—Austin 1997, pet. ref’d) (same);
see also Burrus v. State, 266 S.W.3d 107, 115 (Tex. App.—Fort Worth 2008,
no pet.) (holding that certificate of presentment and docket entry noting
filing of motion were insufficient to establish presentment).  
At oral argument,
Bearnth’s appellate counsel stated that he had hand delivered the motion to the
trial judge in her chambers and requested a hearing, but then encountered
difficulty in obtaining a hearing or a record of his request.  However, the record before us contains no
such information.  We are sensitive to
the realities of practice for lawyers who attempt to obtain the signature of
the heavily-burdened trial judges.  Nevertheless,
under well-established law, it was Bearnth’s burden to provide us with a record
that shows she properly presented the motion.  See Tex. R. App. P. 21.6.  Although it is not required, one practice is
to personally deliver the motion to the trial judge in open court and on the
record.  See Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009)
(noting that documentary evidence or notation that trial judge personally
received copy of motion could substitute for personal visits to trial courts by
attorneys).  Other ways to achieve
presentment are by obtaining the trial court’s ruling on the motion for new
trial, by obtaining the trial judge’s signature or notation on the proposed
order, or by setting a hearing date on the docket.  See
Carranza, 960 S.W.2d at 79-80.  Another option, as recognized by this court,
is to schedule a hearing through the trial court’s coordinator.  Butler,
6 S.W.3d at 640 (determining presentment was shown where record showed that
defense counsel informed court coordinator that motion was filed and asked that
it be set for hearing, court coordinator entered a hearing date in Justice
Information Management System (J.I.M.S.), and, when the hearing was
rescheduled, court coordinator’s initials appeared on “agreed setting” form on
line designated “Approved by Court”). 
But, because none of these things are apparent on this record, we cannot
hold that Bearnth timely presented her motion for new trial or that the trial
court abused its discretion in failing to hear the motion.[2]    
We overrule Bearnth’s fifth
issue.
Conclusion
          Having
determined that the evidence is legally sufficient to support Bearnth’s
conviction and that the trial court did not err in denying Bearnth’s motion to
quash the indictment or in allowing her motion for new trial to be overruled by
operation of law, we affirm the trial court’s judgment.
 
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel consists of Justice Jennings, Justice Sharp,
and Justice Brown.
Justice Jennings, joining the majority opinion and concurring
separately.
Justice Sharp, concurring without opinion.
Publish.   Tex. R. App. P. 47.2(b).




[1]           See
Tex. Penal Code Ann. §§
19.02(b)(3), 22.04 (West 2011).
 


[2]
          Bearnth’s appellate counsel also
suggested during oral argument that another “practicality” may justify
modification of the presentment requirement: 
the trend towards the electronic filing of documents in trial courts.  It is not our role as an intermediate appellate
court to determine changes of law, but we see no reason to abandon the
presentment requirement.  The presentment
requirement has as its objective notice to the trial court that some action is
required.  See Stokes, 277 S.W.3d at 21.  That objective is not satisfied simply
because a document is filed by electronic submission, rather than by paper
copy.     


