Affirmed and Memorandum Opinion filed January 31, 2019.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00983-CR

                       ELIZABETH JIMENEZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1560548

                              MEMORANDUM OPINION

      We consider two issues in this appeal from a conviction for injury to a child:
(1) whether appellant freely and voluntarily entered her plea of guilty, and
(2) whether the State produced sufficient evidence to substantiate the plea of guilty.
As for the first issue, we conclude that appellant has not rebutted the prima facie
showing that her plea was free and voluntary. And as for the second issue, we
conclude that the evidence is sufficient to substantiate the plea. We therefore affirm
the trial court’s judgment.
                                     BACKGROUND1

       The offense in this case arises out of appellant’s failure to timely seek medical
attention for the complainant, her two-month-old daughter. Appellant knew that the
complainant was unwell no later than 10:30 one evening, when the complainant
began vomiting on appellant’s boyfriend. Appellant did not express any alarm,
however, which her boyfriend regarded as “out of the norm” because appellant
“usually made a big deal out of nothing.” Rather than take the complainant to the
hospital, appellant went to a store to buy her boyfriend a new shirt.

       The complainant woke up crying at around 4 o’clock the next morning.
Appellant tried to breastfeed the complainant, but she was very fussy and refused to
eat. Appellant tried to breastfeed again at 7 o’clock, but again the complainant
refused. At 8 o’clock, appellant gave the complainant a fever reducer after detecting
a low-grade fever. At noon, appellant tried to breastfeed for the third time, but once
more the complainant refused.

       At around 3 o’clock that afternoon, appellant took the complainant to a
charitable ministry that provides counseling and maternal assistance. When a
counselor there saw that the complainant was pale and almost lifeless, the counselor
threatened to call CPS unless appellant sought immediate medical attention.
Appellant stormed out of the office, infuriated by the counselor’s threat.

       The counselor called 911, and a police officer intercepted appellant as she was
driving away. With the assistance of EMS, the complainant was then transported to




       1
          Most of these background facts are derived from the presentence investigation report,
which summarized many different sources, including the police reports. There are conflicting
versions of events in those underlying sources, but in accordance with our standard of review, we
present these background facts in the light most favorable to the prosecution.

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the hospital. Doctors there found no visible injuries to the complainant, but scans
revealed that she had a skull fracture and subdural hemorrhages.

       Appellant appeared “emotionless” and “very distant” when she was
subsequently interviewed by police. Appellant could not explain how the
complainant was injured, but she theorized that, when no one was looking, the
complainant may have been dropped on her head by one of appellant’s younger
siblings (ages five to seven).

       Appellant’s theory was implausible to doctors, who believed that the
complainant’s injury was too severe to have been caused by a minor fall. They
opined that the complainant’s complex skull fracture was indicative of one or more
very hard impacts to the head, which they expected would result in permanent
disabilities.

       Appellant was originally charged with two separate offenses. The first was
injury to a child by commission (i.e., by causing the complainant’s skull fracture),
and the second was injury to a child by omission (i.e., by failing to seek medical
care). The prosecution agreed to drop the first charge when appellant agreed to enter
an open plea of guilty to the second charge.

       The trial court deferred a finding of guilt at the end of the plea hearing and
reset the case for sentencing at a later date. In advance of the sentencing hearing, the
trial court received a presentence investigation report, which indicated that the
complainant was in foster care, but suffering from a host of problems. She has
seizures, the report revealed. Also, she has to be fed through a tube because she
cannot eat or swallow. She has breathing difficulties. She cannot see well. And she
cannot walk or hold up her own head.




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      On the day of the sentencing hearing, the focus was largely on appellant’s
responsibility. The prosecutor acknowledged that, out of an agreement with the
defense, she would not pursue the commission charge, but the prosecutor
emphasized that “it has always been the State’s contention that [appellant] was the
actor.” In support of that contention, the prosecutor introduced into evidence a text
message from appellant to her boyfriend, which was sent at some undetermined time
before the complainant’s hospitalization. The text message read: “I’m frustrated.
Little one woke up, tried feeding her but was refusing so I said fuck it gave her to
my mom and walked away before I thought of doing something I would regret for
the rest of my life.”

      Appellant testified that she did not inflict the head injury to the complainant,
but she admitted that she was guilty of “not taking [the complainant] to the hospital
quick enough and not providing the care to her that [she] should have.”

      The trial court found appellant guilty and sentenced her to twenty-five years’
imprisonment. Appellant did not move for a new trial or otherwise complain to the
trial court that she had not understood the consequences of her plea.

                        VOLUNTARINESS OF GUILTY PLEA

      Appellant challenges her guilty plea on constitutional and statutory grounds,
both of which require a showing that the plea was free and voluntary. See Boykin v.
Alabama, 395 U.S. 238, 242 (1969) (“It was error, plain on the face of the record,
for the trial judge to accept petitioner’s guilty plea without an affirmative showing
that it was intelligent and voluntary.”); Tex. Code Crim. Proc. art. 23.13(b) (“No
plea of guilty or plea of nolo contendere shall be accepted by the court unless it
appears that the defendant is mentally competent and the plea is free and
voluntary.”). Her argument is the same as to both grounds. She contends that her


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plea was not free and voluntary because the record does not show that she understood
the elements of the offense.

      The State contends that appellant failed to preserve this issue because she did
not move to withdraw her plea in the trial court. But this issue is not subject to
procedural default. See Davison v. State, 405 S.W.3d 682, 690 (Tex. Crim. App.
2013) (“Boykin operates like a rule of default: Unless the appellate record discloses
that a defendant entered his guilty plea ‘voluntarily and understandingly[,]’ a
reviewing court must presume that he did not, and rule accordingly. For a reviewing
court nevertheless to require an appellant to preserve Boykin error at the trial court
level would turn this constitutional rule of default on its head, reversing the
presumption.”) (citing Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App.
1993)). We therefore address the merits.

      We examine the record as a whole when considering the voluntariness of a
guilty plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per
curiam). If the record establishes that the defendant was duly admonished, then a
prima facie showing arises that the guilty plea was entered knowingly and
voluntarily. Id. The defendant may still raise a claim that her plea was not voluntary,
but the burden shifts to her to demonstrate that she did not fully understand the
consequences of the plea such that she suffered harm. Id.

      We begin by considering whether appellant was duly admonished. We note
that during the plea hearing, there was no formal reading of the indictment, nor did
the trial court specifically admonish appellant as to the elements of the offense.
However, the elements were set forth in a written form that appellant signed before
the plea hearing. The form, entitled “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession,” stated as follows:



                                           5
      In open court and prior to entering my plea, I waive the right of trial by
      jury. I also waive the appearance, confrontation, and cross-examination
      of witnesses, and my right against self-incrimination. The charges
      against me allege that in Harris County, Texas, ELIZABETH
      JIMENEZ, hereafter styled the Defendant, heretofore on or about April
      20, 2016, did then and there unlawfully, while having statutory duty to
      act pursuant to Section 151.001 of the Texas Family Code, intentionally
      and knowingly by omission cause serious bodily injury to N.J.,
      hereafter styled the Complainant, a child younger than fifteen years of
      age, by FAILING TO SEEK MEDICAL CARE AND TREATMENT.

      The form also contained the following acknowledgment: “I understand the
above allegations and I confess that they are true and that the facts alleged above
were committed on April 20, 2016.”

      The trial court referred to this form during the plea hearing. Before admitting
the form into evidence, the trial court asked appellant whether she had signed it,
whether her attorney had explained it to her before she had signed it, and whether
she had understood it. Appellant answered affirmatively to each of these questions.
Based on these answers and on the form itself, we conclude that appellant was duly
admonished, and that the record gives rise to a prima facie showing that her guilty
plea was entered knowingly and voluntarily. See Houston v. State, 201 S.W.3d 212,
219 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that there was a
prima facie case where the charge was disclosed in a “Waiver of Constitutional
Rights, Agreement to Stipulate, and Judicial Confession” and where the trial court
properly admonished the defendant before entering the plea).

      The burden accordingly shifted to appellant to show that she did not fully
understand the consequences of the plea such that she suffered harm. See Martinez,
981 S.W.2d at 197.

      Appellant argues that she did not understand her plea because “at the plea
hearing, no one broke down the elements of the offense and made sure [she]

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understood and was admitting each one.” She focuses on the mens rea element in
particular. While she admits that she knowingly failed to seek medical care for the
complainant, appellant complains that no one explained to her that she was pleading
guilty to knowingly causing injury to the complainant. But the plea papers show
otherwise. Appellant signed a form admitting that she “intentionally and knowingly
by omission cause[d] serious bodily injury to N.J., hereafter styled the Complainant,
a child younger than fifteen years of age, by FAILING TO SEEK MEDICAL CARE
AND TREATMENT.”

      Appellant refers in her brief to evidence that she steadfastly denied having
caused the complainant’s skull fracture. But the offense to which she pleaded guilty
was not for causing the skull fracture itself. Rather, the offense was for causing a
nonspecific injury by failing to seek treatment for the complainant. Evidence from
appellant’s own expert witness supported a finding that appellant’s delay in seeking
treatment caused an injury to the complainant in addition to her initial skull fracture.
The expert opined: “It also appears that there was a significant delay in seeking care
for [the complainant], and the delay likely contributed to the severity of [the
complainant’s] neurologic deficits.”

      Nevertheless, appellant argues that additional clarification was required
because she “had trouble understanding even simple questions throughout the plea
hearing.” In support of this argument, she refers to three particular incidents.

      First, she notes that when the trial court asked if she had ever been treated for
mental illness, she answered negatively, even though the presentence investigation
report showed that she had previously been hospitalized for depression. This
evidence does not show that appellant was incapable of understanding her guilty plea
or the plain language of the charge against her.



                                           7
      Second, she notes that she had no response when the trial court asked if she
wanted “to give up [her] right to a jury trial and continue with [her] plea to [the
Judge] for a presentence investigation.” After she failed to respond, her defense
counsel clarified, “Do you want to go to the Judge for sentencing and not go to a
jury? That’s what we talked about. Do you want the Judge to be the one to assess the
sentence?” Appellant then answered affirmatively. Again, this does not demonstrate
that appellant was incapable of understanding her guilty plea. At most, it shows that
appellant was uncertain about the trial court’s reference to “a presentence
investigation.”

      Third, she notes that she gave conflicting answers when she was asked
whether she had been promised “anything” in exchange for her plea. She initially
answered that question in the negative, but when the trial court later asked her
whether she had specifically been promised “deferred adjudication” (as opposed to
“anything” more generally), she answered in the affirmative. Defense counsel then
clarified that he had discussed the range of punishment with appellant, and that he
would be asking the court for deferred adjudication, while the prosecutor would be
asking the court for prison time. Appellant agreed with that representation, and
answered that no one had promised her deferred adjudication. Once again, this
exchange does not support a finding that appellant was incapable of understanding
that she was pleading guilty to having caused injury to the complainant by failing to
seek medical care. See Saldivar v. State, 542 S.W.3d 43, 46–48 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (overruling a claim that a guilty plea was
involuntary because of “persistent confusion” where the record showed that all of
the confusing points were eventually resolved and clarified).

      We conclude that appellant has failed to rebut the prima facie showing that
she entered her guilty plea freely and voluntarily.

                                          8
                      SUFFICIENCY OF THE EVIDENCE

      Before a trial court may render a judgment of conviction in a felony case
where the defendant has pleaded guilty, the prosecution must produce evidence of
the defendant’s guilt that is “in addition to, and independent of, the plea itself.” See
Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App. 2009); see also Tex. Code
Crim. Proc. art. 1.15 (“In no event shall a person charged be convicted upon his plea
without sufficient evidence to support the same.”). The evidence is sufficient to
substantiate the plea so long as it “covers all of the elements of the charged offense.”
See Menefee, 287 S.W.3d at 13–14. As with other types of sufficiency reviews, we
examine the evidence in the light most favorable to the prosecution. See Cardenas
v. State, 403 S.W.3d 377, 380–81 (Tex. App.—Houston [1st Dist.] 2013, aff’d, 423
S.W.3d 396 (Tex. Crim. App. 2014).

      When, as here, the offense of injury to a child is alleged as a first-degree
felony, it has the following essential elements: the defendant intentionally or
knowingly by omission caused serious bodily injury to a child, the child was fourteen
years of age or younger, and the defendant had a legal or statutory duty to act. See
Tex. Penal Code § 22.04(a)(1), (b)(1), (c)(1), (e).

      Here, the prosecution produced evidence in many forms, including a
presentence investigation report, which stated that appellant was the mother of the
complainant, who was only two months old, meaning that appellant had a statutory
duty to provide the complainant with medical care. See Tex. Fam. Code § 151.001.
The report also revealed that appellant failed to act despite knowing that the
complainant was unwell:

      The defendant told [a CPS caseworker] she had noticed the complainant
      was pale early morning around 7:00 am. She also said the complainant
      had been running a fever all day and was given a fever reducer since
      she believed her two month old baby (the complainant) was teething.
                                           9
      The statement provided to [the CPS caseworker] indicated defendant
      Jimenez knew the complainant was sick all day and did not provide her
      with any medical attention until the police arrived later that day.

Furthermore, the report stated that appellant became infuriated when a counselor
threatened to call the authorities if appellant did not seek immediate medical
attention for the complainant. The trial court could have reasonably inferred from
this evidence that appellant knew that she was causing serious bodily injury to the
complainant by not taking the complainant to the hospital.

      Appellant responds that the evidence is insufficient to support the mens rea
element because there is no evidence that she was aware of the complainant’s skull
fracture, and thus, she could not have known that a delay in treatment would have
caused the complainant any injury. But there was ample evidence that appellant
knew that the complainant needed medical attention for other reasons: the
complainant had vomited the night before, she woke up very fussy, she refused to
be breastfed, and she turned pale as early as 7 o’clock in the morning. A reasonable
factfinder could have concluded that appellant knew that her failure to seek medical
attention under these circumstances would result in serious bodily injury.

      Appellant also contends that the evidence is insufficient because two experts
opined that appellant’s failure to act may have been the result of “unintentional
negligence” or “ignorance.” This point merely raises a conflict in the evidence,
which, under our standard of review, we presume was resolved in favor of the
prosecution. See Parks v. State, 746 S.W.2d 738, 741 (Tex. Crim. App. 1987)
(providing that the factfinder may choose to disregard expert testimony).

      Appellant finally points to evidence that she actually tried to get emergency
help sooner, but she was told by her boyfriend and her mother that a trip to the
hospital was unnecessary, and she was unable to find transportation in any event.


                                         10
This point raises another conflict in the evidence, which we again presume was
resolved in favor of the prosecution.

          We conclude that the evidence is sufficient to substantiate appellant’s plea of
guilty.

                                     CONCLUSION

      The trial court’s judgment is affirmed.




                                          /s/    Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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