                            NUMBERS 13-14-00108-CR

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOSE FRANCO, III,                                                                    Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                  Appellee.


                      On appeal from the 117th District Court
                            of Nueces County, Texas.


                             MEMORANDUM OPINION

               Before Justices Benavides, Perkes and Longoria
                  Memorandum Opinion by Justice Perkes
       Appellant Jose Franco, III, appeals his conviction on two counts of injury to a child,

a first degree felony, and two counts of injury to a child, a third degree felony.1             See



        1 Amanda Gonzales was tried as a co-defendant and convicted on all counts. Her conviction was

previously affirmed in a separate case. See Gonzales v. State, No. 13-14-00103-CR, 2015 WL 1020630
(Tex. App.—Corpus Christi Mar. 5, 2015, no pet.) (mem. op., not designated for publication).
TEX. PENAL CODE ANN. § 22.04 (West, Westlaw through 2015 R.S.). A jury returned a

verdict of guilty and assessed punishment on the four counts to concurrent terms of thirty,

twenty, seven, and two years’ imprisonment, respectively. By seven issues, which we

treat as three, appellant argues: (1) the evidence is insufficient to support three of his

convictions for injury to a child; (2) appellant was egregiously harmed by error in the jury

charge; and (3) appellant’s trial counsel was ineffective. We affirm.

                                                 I.      BACKGROUND

            The following evidence was adduced at trial. Appellant lived with his girlfriend

Amanda Gonzales. The victim, J.F,2 appellant’s thirteen-year-old son, and his three

siblings3 resided in the home, along with Gonzales’s two children. On May 12, 2013,

appellant asked his sister, A.T., if J.F. could reside with her because J.F. was “out of

control.” A.T. testified that she met appellant at his place of work, at which time appellant

stated that Gonzales “wouldn’t let [J.F.] shower, she would make him sleep in his poop

and pee, and [J.F.] smelled like a homeless person.” Appellant also told her that J.F.

had bruises on his bottom. A.T. agreed to have J.F. live with her. A.T. testified that J.F.

told her he did not eat anything for dinner within the last week except for one cold hot dog

on Friday night, and he had only a cold hot dog earlier that morning, which was a Sunday.

J.F. told A.T. that Gonzales recently hit him on the head with the point of a boot resulting

in a gash to his head. He also stated that he was forced to stand in the corner when he

got home from school until 1:00 a.m., and from 6:00 a.m. to 1:00 a.m. on weekends. J.F.


            2   We refer to the victim, his minor siblings, and other family members by their initials to protect their
identity.

            3   One of the siblings is the biological son of Gonzales and appellant.
                                                             2
stated he had defecated on himself that morning because he was not allowed to use the

bathroom, and, in response, Gonzales hit him thirty times with a belt and ten times with a

piñata stick. J.F. told A.T. that he was allowed thirty seconds to use the restroom, and

Gonzales and the other children in the home would hit him if he went over his time. J.F.

explained that Gonzales made him wear diapers because he would have accidents, and

she forced him to wear soiled diapers which resulted in swelling to his private area

causing him pain.

       After feeding J.F., A.T. brought him home and observed extensive bruising to his

bottom. She noted that J.F.’s legs were “really red and swollen” and he looked very

skinny. A.T. took photographs of J.F. depicting his physical appearance and injuries,

which were admitted at trial. A.T. asked J.F. to take a shower, but she had to identify

the shampoo, conditioner, and soap because he did not know how to use them. A.T.

then contacted the Corpus Christi Police Department who dispatched an officer to A.T.’s

residence. After A.T. expressed her concerns regarding J.F.’s treatment, the officer

instructed her to take J.F. to Driscoll Children’s Hospital the next morning.

       Upon arrival at Driscoll Children’s Hospital, J.F. was seen by Dr. Nancy Harper, a

pediatrician certified in child abuse pediatrics and member of the Child Abuse Resource

and Evaluation Team. Dr. Harper testified regarding her interview with J.F, during which

he reported mistreatment by Gonzales and appellant that was consistent with his earlier

report to A.T. In addition, J.F. clarified that he is forced to stand in the corner, facing the

wall with his hands behind his back, from 6:30 a.m. until approximately midnight except

when he is at school. J.F. told Dr. Harper that he is not allowed to drink anything at


                                              3
home, he did not eat dinner from Tuesday to Saturday of the previous week, and he only

ate a hot dog with nothing to drink on Saturday, before eating one hot dog on Sunday

morning. J.F. explained Gonzales usually spanks him thirty times with a belt and ten

times with a wooden piñata stick. He also stated that appellant spanks him with a belt

on his bottom, and his brothers and sisters are encouraged to hit him. J.F. stated that

Gonzales and appellant make him wear a diaper to school, that he bathes once a week,

and that he does not have a toothbrush. J.F. told Dr. Harper that he was required to

stand the entire time he was at home and awake since approximately 2010.

      Dr. Harper testified concerning her physical examination of J.F. She explained

she observed a rash on J.F.’s thighs which was consistent with walking around in soiled

diapers. Dr. Harper also noted leg swelling from J.F.’s prolonged standing, and a one

centimeter scar on J.F.’s head. Dr. Harper testified that J.F. exhibited multiple injuries

that active children should not have, including what appeared to be grip marks on his

upper arms and bruising on his buttocks and thighs.        She stated that J.F. was so

extensively bruised in these areas that the bleeding could have caused him to go into

shock which could lead to “collapse and death.” She also explained that such injuries

can result in the breaking down of the muscles leading to kidney failure, or fat in the

bloodstream causing pulmonary embolisms, which is potentially life-threatening.

      Dr. Harper explained that based on her review of prior medical records, J.F. had

not maintained his prior growth rate. She also stated J.F. was getting far less calories

than his body needed. Dr. Harper diagnosed J.F. with “inflicted injury or physical abuse,

with multiplanar cutaneous trauma, meaning that he had trauma on multiple planes of his


                                            4
body[,]” and a concern for “child torture” and “scapegoating.” Regarding, child torture,

Dr. Harper explained as follows:

      We become concerned about torture when it's more than just multiple
      episodes of corporal punishment. When we see concerns . . . that there
      has been intentional infliction of pain and suffering, physical, psychological
      on a child, more than just what you see from a belt, a stick, or another
      weapon. When you also see these other aspects of humiliation, isolation,
      forced positions or constraint of movement, denial of basic necessities, like
      the ability to have proper clothing, go to the bathroom when you need to, be
      able to drink water when you’re thirsty, when we see all of those features, it
      meets the same criteria that the United Nations uses for torture in other
      areas of the world during conflict.

      Dr. Harper further diagnosed J.F. with a concern for refeeding syndrome, a

life-threatening condition caused by malnutrition, which she described as follows:

      [W]hen you take a person who is starving, you basically take someone who
      no longer has a source of carbohydrates in their diet, you know, like, pasta,
      rice, they don't have carbohydrates coming in, to break down, to make
      glucose or energy for their body, for their brain, for their muscles. When you
      go into that period of starvation, you enter something called catabolism,
      where your body starts to break down your muscles and your fat to provide
      energy. . . . Basically, you digest muscle, whether it's your body skeletal
      muscles that you’ve used for exercise, your heart muscle, brain, liver,
      internal organs, it doesn't discriminate.

      ....

      As soon as the person who is in starvation is then fed a normal diet that
      contains glucose, carbohydrates, you get surges of insulin coming from your
      pancreas. It’s as if your body doesn’t regulate itself well, and you get too
      much of the insulin secreted. As soon as that process starts, multiple
      things happen that can be life-threatening. Critical electrolytes that you
      need for your heart function, like potassium, phosphorous, magnesium,
      they go into cells, because of the insulin, and to lower your blood stream.

      So you can have a heart rhythm problem, you can have heart failure.
      Insulin also tells your kidneys to hold on to fluid and sodium. So, then you
      get swelling in your body and you can also develop congestive heart failure.
      There are multiple things that happen in this process. Your intestines often
      slow down when the phosphorous drops and when you start to feed them,

                                            5
       the stomach stops doing its job well, called gastroparesis, it becomes all
       bloated and it doesn’t empty properly. So, there are multiple things that
       happen when you start to feed them.

       Dr. Harper discharged J.F. and asked that he return the next day for follow-up

testing. The next day Dr. Harper confirmed J.F. was suffering from refeeding syndrome

after reviewing further lab results, and admitted J.F. for in-patient treatment. Dr. Harper

testified that it was her medical opinion that, without medical intervention, J.F. was at a

substantial risk of death due to refeeding syndrome. Over the next three days, J.F. was

administered a calorie-restricted diet that was gradually increased until he could tolerate

1,500 calories-per-day. Dr. Harper examined the other children in the home and noted

none of them showed signs of malnutrition or starvation. Photographs of J.F. taken

during the course of his examination and treatment were admitted into evidence.

       Detective Rodney Cantu with the Corpus Christi Police Department was assigned

to investigate the reported child abuse.        Detective Cantu obtained consent from

Gonzales and appellant to search the residence, where he discovered the belt and piñata

stick identified by J.F., both of which were admitted into evidence at trial. Detective

Cantu testified there was an abundance of food at the residence, including a full

refrigerator, freezer and pantry, as well as dry goods on the kitchen counter. Detective

Cantu took photographs of the apartment which were admitted at trial.

       Detective Cantu interviewed appellant, who admitted to spanking J.F. with a belt

and a piñata stick. Appellant also admitted that J.F. spent a large amount of time in the

corner while at home and was only allowed a limited amount of time in the bathroom.

Appellant told Detective Cantu that he “knows what he did was wrong and that [J.F.] did


                                            6
not deserve the bruises that he received on his backside.”       Appellant further stated to

Detective Cantu that he was aware J.F. was not properly fed, was required to spend long

periods of time standing, needed permission to use the bathroom, was not allowed to

drink water at home, and would only eat a hot dog or two for the entire day on the

weekends. Appellant explained that he did not protect J.F. because he feared retaliation

by Gonzales.

       Three of the other children in the home testified at trial and corroborated that J.F.

was not allowed to eat, go to the bathroom, or take a shower without permission. They

also testified that J.F. was required to wear a diaper and stand in the hallway for long

periods of time. The children stated that J.F. was required to sleep in the hallway with

no mattress, pillow, or blanket.      C.P., J.F.’s ten-year-old sibling, testified that he

witnessed appellant hit J.F. with a belt and a stick. He also observed appellant hold J.F.

against the wall by his neck until J.F. almost passed out. C.P. testified that Gonzales or

appellant would hold J.F. down so that the other could hit J.F. C.P. confirmed that

sometimes J.F. would only eat one hot dog for a whole day.

       I.F., J.F.’s twelve-year-old sibling, testified that both Gonzales and appellant would

hit J.F., and that J.F. would get spanked with a belt, a wire from the vacuum, and a piñata

stick. He testified that Gonzales would hit J.F. on the head with the tip of a high-heel

boot. I.F. stated that J.F. was required to stand in the hallway with his hands behind his

back until he went to bed.     He confirmed that J.F. was not allowed to play on the

weekends, but would be forced to stand all day in the hallway. J.F. was not allowed to

eat school breakfast, but was instead given corn flakes in a zip-lock bag. I.F. testified


                                             7
that Gonzales cut the pockets out of J.F.’s pants and did not allow him to carry a backpack

to prevent J.F. from concealing food.       I.F. explained that J.F. would sometimes have to

wear his sister M.F.’s clothes.      I.F. stated that Gonzales would force him to hit J.F. at

times.

         M.F., J.F.’s fourteen-year-old sibling, testified that when J.F. urinated on the floor,

appellant would rub J.F.’s nose in it where the accident occurred. M.F. also testified that

Gonzales and appellant told the children to lie about whether J.F. was being given food.

         J.F. testified concerning his treatment at the hands of Gonzales and appellant.

His testimony was consistent with his earlier reports to A.T. and Dr. Harper. He further

testified that he would sometimes go several days without eating dinner. J.F. stated that

he was required to wear diapers, and that he was not allowed to change if he had an

accident. J.F. stated that he was forced to wear smelly clothes to school. He explained

that he slept in the hallway without a mattress, blankets or pillow.

         Several officials from J.F.’s school testified concerning their observations. The

school counselor testified that J.F. wore the same dirty, smelly clothes every day, and

that he never had a jacket during cold weather.            J.F.’s physical education teacher

believed that J.F. looked sickly and had seen him eating things off the ground. Three of

J.F.’s teachers testified that they would observe J.F. taking food from the trash and that

he had a strong odor.

         Dr. Robert Rios, a licensed psychologist, conducted a psychological assessment

of J.F. Dr. Rios stated that J.F. was able to give a detailed account of what had occurred

in the home. Dr. Rios opined that the purpose of requiring J.F. to wear a diaper was


                                                8
humiliation.   Dr. Rios diagnosed J.F. with neglect, physical abuse, attention deficit

disorder and post-traumatic stress disorder (PTSD). Dr. Rios stated that the three years

of abuse suffered by J.F. were sufficient to cause PTSD. Dr. Rios also concluded that

the treatment J.F. suffered caused him serious mental injury.

       Julie Thigpen, a licensed professional counselor, conducted weekly therapy

sessions with J.F. during the months preceding trial.            Thigpen testified that J.F.

emotionally presents himself as a child along the age of seven to nine years, rather than

his current age of thirteen years. Thigpen explained that this is consistent with children

who have suffered trauma which “often causes arrests in their development.” Thigpen

testified that J.F. has exhibited feelings of self-blame and detachment from others, and

that J.F. has complained he is often unable to sleep. Thigpen concluded that Gonzales’s

and appellant’s treatment of J.F. has caused J.F. serious mental injury and “changed who

he is.” Thigpen testified that J.F.’s healing will be difficult and will take a long time.

       Dr. Wayne Duehn, a psychologist specializing in child abuse and neglect,

conducted a psychological and social evaluation of J.F. and his family.            Dr. Duehn

characterized J.F.’s treatment by Gonzales and appellant as “scapegoating.”                  He

explained that such treatment causes the victim to think of himself as bad, creating a

pervasive distrust of the world, and delays the victim’s ability to relate to peers.

       The jury found appellant guilty on all counts. This appeal followed.

                            II.    SUFFICIENCY OF THE EVIDENCE

       By his first four issues, appellant argues the evidence is insufficient to support his

conviction on counts one, two and three. Appellant does not challenge count four.


                                               9
 A.    Standard of Review and Applicable Law

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,

767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id.

       In Count 1 of the indictment, the State alleged that appellant committed injury to a

child, a first degree felony, by causing serious bodily injury to J.F. See TEX. PENAL CODE


                                              10
ANN. § 22.04. The hypothetically correct jury charge for this offense required the State

to prove beyond a reasonable doubt that appellant:           (1) intentionally or knowingly;

(2) caused serious bodily injury; (3) to a child—a person fourteen years of age or younger.

See id. § 22.04(a)(1), (c)(1), (d).

       In Count 2 of the indictment, the State alleged that appellant committed injury to a

child, a first degree felony, by causing a serious mental deficiency, impairment or mental

injury to J.F. See id. § 22.04. The hypothetically correct jury charge for this offense

required the State to prove that appellant: (1) intentionally or knowingly; (2) caused a

serious mental deficiency, impairment or mental injury; (3) to a child—a person fourteen

years of age or younger. See id. § 22.04(a)(2), (c)(1), (d).

       In Count 3 of the indictment, the State alleged that appellant committed injury to a

child, a third degree felony, by causing bodily injury. See id. § 22.04. The hypothetically

correct jury charge for this offense required the State to prove that appellant: (1)

intentionally or knowingly; (2) caused bodily injury; (3) to a child—a person fourteen years

of age or younger. See id. § 22.04(a)(3), (c)(1), (f).

B.     Analysis

       1.     Count 1

       By his first issue, appellant argues “[t]he evidence is insufficient to show [appellant]

knowingly and intentionally caused serious bodily injury by withholding nutrition.”

Specifically, appellant contends that the evidence is insufficient to establish “[appellant]

intended or knew the result of his action would be serious bodily injury to [J.F.]”




                                             11
        Injury to a child is a result-oriented offense requiring a mental state that relates

not to the specific conduct but to the result of that conduct. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). The State must prove that a defendant caused a child’s

serious bodily injury with the requisite criminal intent. Id. “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.” TEX. PENAL CODE ANN. § 1.07(a)(46) (West, Westlaw through 2015

R.S.). A person acts intentionally with respect to the result of his conduct when it is his

conscious objective or desire to cause the result. Id. § 6.03(a) (West, Westlaw through

2015 R.S.). A person acts knowingly with respect to a result of his conduct when he is

aware that his conduct is reasonably likely to cause the result. Id. § 6.03(b).

       Intent can be inferred from the extent of the injuries to the victim, the method used

to produce the injuries, and the relative size and strength of the parties. Patrick v. State,

906 S.W.2d 481, 487 (Tex. Crim. App. 1995). It can also be inferred from circumstantial

evidence, such as acts, words, and appellant's conduct. Guevara v. State, 152 S.W.3d

45, 50 (Tex. Crim. App. 2004). Furthermore, a jury is “free to apply common sense,

knowledge, and experience gained in the ordinary affairs of life in drawing reasonable

inferences from the evidence.”      Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d).

       Appellant maintains there is no evidence “indicating [appellant] intended or knew

[J.F.] was suffering or would suffer serious bodily injury from malnutrition.” We disagree.

Multiple witnesses testified that appellant participated with Gonzales in a pattern of


                                             12
denying adequate food and nutrition to J.F. J.F. was not allowed to drink water in the

home, and his daily diet while at home would often consist of one hot dog. This testimony

was corroborated by expert medical testimony that J.F. suffered the resulting effects of

starvation. Further, appellant admitted to Detective Cantu that he was aware J.F. was

not being properly fed. We conclude a rational trier of fact could have inferred from this

evidence that appellant either intentionally or knowingly caused serious bodily injury to

J.F. See Johnson, 364 S.W.3d at 293–94. We overrule appellant’s first issue.

       2.     Count 2

       By his second issue, appellant argues “[t]he evidence is insufficient to show

[appellant] knowingly and intentionally caused serious mental deficiency, impairment or

injury” to J.F. With respect to causation, appellant contends that there is no evidence

from which the jury could determine whether J.F.’s present mental condition was due to

traumas that he witnessed at an earlier age prior to coming into appellant’s care, including

the death of his mother and witnessing the sexual assault of his sister. Next, appellant

asserts that “the evidence is insufficient to show [appellant] had the mens rea” for the

offense. In that regard, appellant cites evidence that Gonzales was the primary abuser,

and that appellant acted to remove J.F. from the environment when he asked A.T. to act

as J.F.’s caretaker.

       Count 2 of the indictment charged appellant with causing mental deficiency,

impairment or injury to J.F. by “denying [him] access to adequate food, water, restroom

facilities and hygienic products, by forcing [him] to stand for long periods of time, by

forcing [him] to wear a diaper to school, and by striking [him] with a stick, belt, shoe and


                                            13
the defendants’ hands.” With respect to causation, the Texas Penal Code provides that

“[a] person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the actor clearly

insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West, Westlaw through 2015 R.S.). Two

combinations may exist to satisfy the requisite causal connection between the

defendant's conduct and the required result:       (1) the defendant’s conduct may be

sufficient by itself to have caused the harm, regardless of the existence of a concurrent

cause; or (2) the defendant’s conduct and a concurrent cause together may be sufficient

to have caused the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App.

1986); Umoja v. State, 965 S.W.2d 3, 9 (Tex. App.—Fort Worth 1997, no pet.).

      Dr. Rios testified that any prior trauma suffered by J.F. would only amplify the

effects of the present abuse. Dr. Rios also testified that the acts of abuse by Gonzales

and appellant were, in and of themselves, sufficient to cause PTSD. Dr. Rios explained

that J.F.’s prior behavior and experiences would have been merely contributory to his

PTSD. Dr. Deuhn further testified that past traumatic events in J.F.’s life did not prevent

him from functioning normally and were “small potatoes” compared to the present abuse.

Dr. Deuhn also stated the prior events would not have made a difference in his

conclusions.

      We conclude that a rational trier of fact could have found from this evidence that

J.F.’s mental deficiency, impairment or injury was caused by appellant and was not solely

attributable to prior events. See Johnson, 364 S.W.3d at 293–94; Robbins, 717 S.W.2d


                                            14
at 351.

      We now turn to appellant’s argument that “the evidence is insufficient to show

[appellant] had the mens rea” for the offense. Appellant argues that the evidence is

insufficient to establish that he intentionally or knowingly caused serious mental

deficiency, impairment, or injury because he acted to remove J.F. from the environment

by arranging for J.F. to reside with A.T.       However, appellant’s argument fails to

acknowledge the extensive evidence of appellant’s active participation in the prolonged

mistreatment of J.F., including: J.F. being singled out for frequent physical assaults;

denial of basic necessities such as food, water, clean clothing, and hygiene; and various

acts of humiliation. We conclude a rational trier of fact could have inferred from this

evidence that appellant intentionally or knowingly caused serious mental deficiency,

impairment, or injury to J.F.    See Johnson, 364 S.W.3d at 293–94.         We overrule

appellant’s second issue.

      By his third issue, appellant further argues that the evidence is insufficient to

support a conviction for Count 2 under the law of parties.         Specifically, appellant

maintains “the evidence was insufficient to show that [appellant] had the intent to cause

serious mental deficiency, impairment, or injury or knew he was doing so.” We have

already concluded that the evidence is legally sufficient to support the intent element of

the offense. Therefore, we need not address appellant’s third issue. See TEX. R. APP.

P. 47.1

      3.     Count 3




                                           15
          By his fourth issue, appellant argues “[t]he evidence is insufficient to show

[appellant] intentionally or knowingly caused [J.F.] any bodily injury on or about May 12,

2013.” Specifically, appellant maintains that he was at work on May 12, 2013, when

Gonzales struck J.F., and that there is no evidence he had any knowledge of what

occurred in his absence.

          Count 3 of the indictment charged appellant with causing bodily injury to J.F. on or

about May 12, 2013, by striking him with a stick and a belt. Third-degree injury to a child

requires evidence of bodily injury. See TEX. PENAL CODE ANN. § 22.04 (a)(3), (f). “Bodily

injury” is defined as “physical pain, illness, or any impairment of physical condition.” Id. §

1.07(a)(8).     Under this definition, “[a]ny physical pain, however minor, will suffice to

establish bodily injury.” Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012).

          “It is well settled that the ‘on or about’ language of an indictment allows the State

to prove a date other than the one alleged in the indictment as long as the date is anterior

to the presentment of the indictment and within the statutory limitation period.” Sledge

v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The limitations period for injury

to a child is ten years from the victim’s eighteenth birthday. TEX. PENAL CODE ANN.          §

12.01(6)(B) (West, Westlaw through 2015 R.S.).           Therefore, the statutory limitations

period for the offense had not yet expired, as J.F. was thirteen-years-old at the time of

trial. The State presented evidence that appellant repeatedly hit J.F. resulting in bodily

injury.

          We conclude that a rational trier of fact could have found beyond a reasonable

doubt that appellant committed the offense of injury to a child prior to the date alleged in


                                               16
the indictment and within the applicable limitations period. See Johnson, 364 S.W.3d at

293–94. We overrule appellant’s fourth issue.

                                III.    JURY CHARGE ERROR

       By his fifth and sixth issues, appellant argues he suffered egregious harm from

error in the jury charge.

A.     Standard of Review

       A claim of error in the jury charge is reviewed using the procedure set out in

Almanza v. State. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other

grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988)). The first step

is to determine whether there is error in the charge. Barrios, 283 S.W.3d at 350; Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Where, as here, appellant did not

object to the charge, the error must be fundamental and will not result in reversal unless

it was so egregious and created such harm that the defendant did not have a fair and

impartial trial. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171. The degree

of harm is determined in light of the entire jury charge, the state of the evidence, including

the contested issues and the weight of the probative evidence, the argument of counsel,

and any other relevant information revealed by the record of the trial as a whole.

Almanza, 686 S.W.2d at 171.            Appellant must have suffered actual, rather than

theoretical, harm. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).            To

constitute egregious harm, the error must affect the very basis of the case, deprive the

defendant of a valuable right, or vitally affect a defensive theory. Id. at 461–62.


                                             17
B.     Analysis

       1.     Culpable Mental State

       By his fifth issue appellant argues he “suffered egregious harm by a charge that

expanded the culpable mental state to include nature of his conduct and circumstances

surrounding his conduct.” Specifically, appellant maintains that the abstract portion of

the jury charge contained improper definitions for “intentionally” and “knowingly.”

Appellant further argues that the application portion of the jury charge did not limit

“intentionally” or “knowingly” to the result of the offense—injury; serious injury; or serious

mental deficiency, impairment or injury—because the application paragraph for each

count included the means of causing the injury.

       The relevant definitions in the abstract portion of the charge were as follows:

       A person acts "intentionally" or with "intent", with respect to the nature of his
       or her conduct or to a result of his or her conduct when it is his or her
       conscious objective or desire to engage in the conduct or cause the result.

       A person acts "knowingly" or with "knowledge", with respect to the nature of
       his or her conduct or to circumstances surrounding his or her conduct when
       he or she is aware of the nature of his or her conduct or that the
       circumstances exist. A person acts "knowingly" or with "knowledge", with
       respect to a result of his or her conduct when he or she is aware that his or
       her conduct is reasonably certain to cause the result.

(Emphasis added).

       As outlined above, injury to a child is a result-oriented offense requiring a mental

state that relates not to the specific conduct but to the result of that conduct. Williams,

235 S.W.3d at 750. A result-oriented offense requires that the culpable mental state

accompany the result of the conduct, rather than the nature of the conduct. Cook v.

State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994).                 A charge which defines

                                              18
“intentionally” or “knowingly” as they relate to the nature of the conduct as well as the

result of the conduct is error. Id.

       Here, the abstract portion of the charge permitted the jury to find appellant

possessed the mens rea for each offense if it concluded that appellant acted either

“intentionally . . . with respect to the nature of [his] conduct . . . when it is [his] conscious

objective or desire to engage in the conduct” or “knowingly . . .with respect to the nature

of [his] conduct or to circumstances surrounding [his] conduct when [he] is aware of the

nature of [his] conduct or that the circumstances exist.” Because the definitions in the

abstract portion of the jury charge did not limit the culpable mental state to the result of

appellant’s conduct, the trial court committed error in submitting those definitions to the

jury. See Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990) (finding error

in jury charge which provided improper definitions for the culpable mental state for an

injury to child offense); see also Cook, 884 S.W.2d at 491 (“Intentional murder under §

19.02(a)(1) is a ‘result of conduct’ offense, therefore, the trial judge erred in not limiting

the culpable mental states to the result of appellant's conduct.”). Therefore, we must

assess whether the error resulted in egregious harm to appellant.

       In assessing harm resulting from the inclusion of improper conduct elements in the

definitions of culpable mental states, we “may consider the degree, if any, to which the

culpable mental states were limited by the application portions of the jury charge.”

Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994) (quoting Cook, 884 S.W.2d

at 492 n. 6.). The relevant portions of the application paragraphs in the jury charge read

as follows:


                                               19
                                         COUNT 1
       Now, if you find from the evidence beyond a reasonable doubt that . . .
       [appellant] did then and there intentionally or knowingly by act or omission
       cause serious bodily injury . . .

                                       COUNT 2
       Now, if you find from the evidence beyond a reasonable doubt that . . .
       [appellant] did then and there intentionally or knowingly cause serious
       mental deficiency, impairment or mental injury . . .

                                         COUNT 3
       Now, if you find from the evidence beyond a reasonable doubt that . . .
       [appellant] did then and there intentionally or knowingly cause bodily injury
       ...

                                         COUNT 4
       Now, if you find from the evidence beyond a reasonable doubt that . . .
       [appellant] did then and there intentionally or knowingly cause bodily injury
       ....

       We note that the language in the application paragraphs appropriately limits the

culpable mental state to the result of the offense. In Patrick v. State, the Court of Criminal

Appeals addressed whether the inclusion of improper definitions of “intentional” and

“knowing” for the result-oriented offense of murder constituted egregious harm in light of

an application paragraph which properly instructed the jury to convict only if it found the

defendant did “intentionally cause the death” of the victim. 906 S.W.2d at 493. In

finding that no such harm resulted, the Court of Criminal Appeals explained:

       Although the definitions of “intentionally” and “knowingly” indiscriminately
       set forth the three alternative conduct elements, when those terms are
       viewed in their factual context, it becomes apparent which conduct element
       applies to which element of the offense. For instance, the application
       paragraph states that appellant “did intentionally cause the death of [the
       victim.]” The term intentionally directly modifies the phrase “cause the
       death”. Referring back to the definitions of culpable mental states, it is
       obvious that the “result of conduct” and cause the result language are the
       applicable portions of the full code definitions. We conclude that because
       the facts, as applied to the law in the application paragraph, pointed the jury

                                             20
       to the appropriate portion of the definitions, no harm resulted from the
       court's failure to limit the definitions of culpable mental states to proving the
       conduct element of the underlying offense.

Id. (citations omitted).

Similarly, the application paragraphs in this case point the jury to the appropriate portion

of the abstract definitions for “intentional” and “knowing.”         Therefore, viewing the

definitions in their factual context, it is apparent that the “result of conduct” and “cause the

result” language are the applicable portions of the definitions. See id.

       Turning to the remaining harm factors, we note the contested issues at trial did not

focus on whether appellant possessed the required mens rea for the charged offenses.

Rather, appellant’s defense was that there was insufficient evidence that J.F.’s injuries

constituted bodily injury, serious bodily injury, or serious mental deficiency, impairment or

injury. Appellant further contested whether there was sufficient evidence establishing

his presence during many of the acts of abuse. Appellant also argued that J.F’s mental

injuries were the result of prior trauma and were not due to anything that occurred while

J.F. resided with appellant. Finally, the State’s closing argument pointed the jury to the

appropriate portion of the definitions for “intentional” and “knowing.”

       Considering the relevant harm factors, we conclude appellant did not suffer

egregious harm as a result of the abstract definitions in the jury charge. See Almanza,

686 S.W.2d at 171. We overrule appellant’s fifth issue.

       2.      Law of Parties

       By his sixth issue, appellant argues he “suffered egregious harm from error in the

application paragraph under the law of parties.” Specifically, appellant maintains that the


                                              21
application portion of the charge “permitted the jury to convict [appellant] for first degree

felony injury to a child even if [appellant] had no knowledge that [Gonzales] intended

serious mental deficiency, impairment or disability.”

       The application paragraph of a jury charge “specifies the factual circumstances

under which the jury should convict or acquit,” and the law must be correctly applied to

the facts for the conviction to be proper. Vasquez v. State, 389 S.W.3d 361, 367 (Tex.

Crim. App. 2012).    The Texas Penal Code provides that “[a] person is criminally

responsible for an offense committed by the conduct of another if . . . acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)

(West, Westlaw through 2015 R.S.).

       In addition to providing for appellant’s conviction as a principal actor, the jury

charge for count 2 provided the following “law of parties” instruction:

              All persons are parties to an offense who are guilty of acting together
       in the commission of the offense. A person is criminally responsible as a
       party to an offense if the offense is committed by his own conduct, by the
       conduct of another for which he is criminally responsible, or both.

              A person is criminally responsible for an offense committed by the
       conduct of another if, acting with intent to promote or assist the commission
       of the offense, he solicits, encourages, directs, aids, or attempts to aid the
       other person to commit the offense. Mere presence alone will not constitute
       one a party to an offense.

               [I]f you find from the evidence beyond a reasonable doubt that on or
       about May 12, 2013 . . . [Gonzales] and [appellant] did then and there
       intentionally or knowingly, cause serious mental deficiency, impairment or
       mental injury to [J.F.] . . . and [Gonzales] and [appellant], then and there
       knew of the intent, if any, of [Gonzales] and [appellant] to intentionally cause
       Injury to a Child and the defendants, [Gonzales] and [appellant], acted with
       intent to promote or assist the commission of the offense by encouraging,

                                             22
       directing, aiding, or attempting to aid and commit the offense of Injury to a
       Child, you will find the defendants, [Gonzales] and [appellant], guilty of
       Injury to [a] Child as charged in the indictment.

       Read in its entirety, the charge instructed the jury that before it could find appellant

guilty under the theory of the law of parties, it had to find that he participated in the offense

of injury to a child and intended the result of serious mental deficiency, impairment or

mental injury to J.F. The instruction includes the requirement of intent to promote or

assist in the commission of the offense of injury to a child, and incorporates repeated

references under Count 2 to the specific result of the offense: “serious mental deficiency,

impairment or mental injury to [J.F.].”

       We conclude the charge correctly instructed the jury to convict appellant only if it

found he had the requisite mental state for the offense. Therefore, appellant has not

demonstrated jury charge error. See Middleton v. State, 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003). We overrule appellant’s sixth issue.

                        IV.     INEFFECTIVE ASSISTANCE OF COUNSEL

       By his seventh issue, appellant argues his trial counsel “was ineffective for failing

to request an instruction for the lesser[-]included offense of reckless injury to a child and

for failing to object to the charge errors noted above.”

A.     Standard of Review and Applicable Law

       To prevail on an ineffective assistance claim, appellant must show (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) the deficient

performance prejudiced the defense.         Strickland v. Washington, 466 U.S. 668, 689

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Our review of


                                               23
counsel’s representation is highly deferential, and we will find ineffective assistance only

if appellant rebuts the strong presumption that his counsel’s conduct fell within the wide

range of reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343

S.W.3d at 142.

       “In order for an appellate court to find that counsel was ineffective, counsel’s

deficiency must be affirmatively demonstrated in the trial record; the court must not

engage in retrospective speculation.” Lopez, 343 S.W.3d at 142. “It is not sufficient that

appellant show, with the benefit of hindsight, that his counsel’s actions or omissions

during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425,

430 (Tex. Crim. App. 2007).       When direct evidence is unavailable, we will assume

counsel had a strategy “if any reasonably sound strategic motivation can be imagined.”

Lopez, 343 S.W.3d at 143. “In making an assessment of effective assistance of counsel,

an appellate court must review the totality of the representation and the circumstances of

each case without the benefit of hindsight.” Id.

B.     Analysis

       Appellant first argues that his trial counsel was ineffective “for failing to request an

instruction on the lesser[-]included offense of reckless injury to a child.” We note that

“claims of ineffective assistance of counsel are generally not successful on direct appeal

and are more appropriately urged in a hearing on an application for a writ of habeas

corpus.” Id. When an ineffective assistance claim is raised on direct appeal, the record

is usually inadequately developed and does not sufficiently reflect the failings of trial

counsel for an appellate court to fairly evaluate the merits of the claim. Id.


                                             24
       The record is silent regarding trial counsel’s motivations for not requesting a lesser-

included offense instruction. In the absence of evidence of trial counsel’s motivation, we

assume a strategic reason for counsel’s actions, if one can be imagined. Id. In that

regard, we note that trial counsel does not act deficiently in failing to request a lesser-

included offense if he was pursuing an all-or-nothing trial strategy. See Ex Parte White,

160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (concluding that counsel was not ineffective

for failing to request a lesser-included offense instruction on manslaughter when the

defendant preferred to adopt an all-or-nothing trial strategy); Lynn v. State, 860 S.W.2d

599, 603 (Tex. App.—Corpus Christi 1993, pet. ref'd) (explaining that requiring a jury to

opt between murder and acquittal, although risky, is sometimes successful).             In the

absence of a record supporting his claim, appellant cannot overcome the strong

presumption that trial counsel’s strategy was reasonable. See Lopez, 343 S.W.3d at

143.

       Next, appellant argues his trial counsel was ineffective “for failing to object to an

improper charge.” Under this sub-issue, appellant relies on his arguments raised in

issues five and six.

       With respect to issue five, we held that appellant was not egregiously harmed by

the improper inclusion of an abstract definition that failed to limit the culpable mental state

to the result of appellant’s conduct. As explained above, the charge included the specific

mens rea in both the abstract portion of the charge, and the facts, as applied to the law

in the application paragraph, pointed the jury to the appropriate portion of the definitions

in the abstract portion of the charge. Under these circumstances, we conclude that


                                              25
appellant has failed to demonstrate a reasonable probability that the result of the

proceeding would have been different had defense counsel objected to the jury charge.

See Strickland, 466 U.S. at 694; Green v. State, 891 S.W.2d 289, 299 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d) (concluding there was not a reasonable probability

the result would have been different had trial counsel objected to erroneous definitions in

abstract portion of the jury charge, where application paragraph focused the jury on the

result of appellant’s conduct.). Therefore, we need not address whether appellant met

his burden under the first prong of Strickland. See Strickland, 466 U.S. at 697; Bazanes

v. State, 310 S.W.3d 32, 42 (Tex. App.—Fort Worth 2010, pet ref’d).

       Appellant also maintains his trial counsel was ineffective in failing to object to the

portion of the jury charge concerning law of parties. Given that we previously held that

the charge was not erroneous, appellant has failed to establish Strickland’s first prong.

See Strickland, 466 U.S. at 689.

       We overrule appellant’s seventh issue.

                                    V.     CONCLUSION

       We affirm the judgment of the trial court.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of June, 2016.




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