                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00234-CR
                             _________________

                  DEWAYNE MCKINLEY BYRD, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                           Trial Cause No. 11166
________________________________________________________________________

                          MEMORANDUM OPINION

      A jury found DeWayne McKinley Byrd guilty of the offense of injury to a

child, K.W. See Tex. Penal Code Ann. § 22.04 (a)(1), (e) (West Supp. 2012).1 The

jury assessed punishment at 99 years confinement. In three issues, Byrd argues (1)

the evidence is insufficient to support his conviction; (2) the prosecutor committed


      1
        Although section 22.04 of the Penal Code was amended in 2011, we cite to
the current version of the statute because the subsequent amendments do not affect
the outcome of this appeal.
                                           1
reversible error in making comments to the jury about Byrd‟s failure to testify; and

(3) Byrd received ineffective assistance of counsel. We find Byrd‟s issues are

without merit and affirm the judgment.

                                   Background

      Byrd lived in a home with his biological son, K.W.‟s mother, and K.W. On

January 25, 2011, K.W.‟s mother left him in Byrd‟s care. K.W.‟s mother left their

apartment by 8 a.m. to attend a class at Lamar University. At the time she left,

K.W. was sitting on the couch, watching television. K.W. could walk, eat, and

play like a normal two-year old child. K.W.‟s mother returned home that afternoon

between 12:30 p.m. and 1:00 p.m. Upon her return, Byrd checked on K.W.,

grabbed his keys, gave her a goodbye kiss, and then left. K.W.‟s mother described

Byrd‟s demeanor as “frantic” and “nervous.” After Byrd left, she heard K.W.

moaning in his sleep, and found that she could not wake him. She simultaneously

called 9-1-1 on the house phone and Byrd on her cellular phone. Byrd returned to

the apartment. When the paramedics arrived, they found K.W. unresponsive. The

paramedics noted multiple bruises on K.W. and suspected child abuse. Byrd told

the paramedics that K.W. had fallen earlier in the day and would not wake up from

his nap. Because of the severity of his injuries, K.W. was ultimately life-flighted

from Beaumont to Texas Children‟s Hospital in Houston.

                                         2
      Dr. Marcella Donaruma, a child abuse pediatrician at Texas Children‟s

Hospital, testified as a consulting physician for K.W. She testified that when K.W.

arrived at the hospital, he was in critical condition. K.W.‟s injuries were life

threatening, and he was on life support. K.W. presented with a number of injuries;

including, acute subdural hemorrhage bilaterally, diffuse cerebral edema, a scalp

hematoma, retinal hemorrhages bilaterally, and bruising all over his head. The

doctor testified that K.W. would have immediately become symptomatic from this

trauma, that he was likely immediately unconscious, and would have appeared in

need of medical attention. The doctor equated the level of injuries K.W. suffered

to those one would expect from a major motor vehicle collision, a fall from several

stories, being hit by an automobile, or being hit in the head with a fist. K.W. also

had bruising on his shoulder blade, his buttocks, and on the backs of his legs,

which could have been caused by impact from a fist. Additionally, K.W. suffered

a lacerated liver, an injured pancreas, and bleeding from one of his adrenal glands,

all of which could have been caused by striking or kicking the back and stomach of

the child.

      The doctor also testified that in her medical opinion, K.W. was “battered by

an adult.” She testified that another child could not have caused K.W.‟s injuries,

that his injuries could not have been accidental, nor could a spanking with a belt

                                         3
have caused all of K.W.‟s injuries. The doctor was adamant that K.W.‟s injuries

could not have been caused by a short fall, or from rough play with another child.

She identified additional injuries that repeated beating with a belt could have

caused in the lower half of K.W.‟s body. She also identified some injuries that

could have been caused by use of a cold iron or a shoe. The doctor expressed

surprise that K.W. survived, considering the extent of injuries he endured.

      According to K.W.‟s father, he can no longer talk, he cannot walk, nor can

he eat without a feeding tube. K.W. sees only shadows with his left eye, and his

right eye is blind. He is chronically ill because of his disabilities. He has seizures,

muscle spasms, and lives with pain daily. While K.W. is four years old, he now

has the mental capacity of a six-month old child.

                            Sufficiency of the Evidence

      In his first issue, Byrd challenges the sufficiency of the evidence to support

his conviction for injury to a child. A reviewing court should apply the Jackson v.

Virginia legal-sufficiency standard to determine the sufficiency of the evidence to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)). We evaluate all the evidence in the light most favorable to the verdict to

                                          4
determine whether any rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury‟s

responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d

at 13.

         A person commits the offense of injury to a child “if he intentionally [or]

knowingly . . . 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 trial court used language in its jury charge that appropriately tracked

this language. See id. Byrd does not contest that K.W. suffered serious bodily

injury; rather, Byrd claims that the evidence is insufficient to prove that he caused

the injury.

         In support of its case, the State presented a number of witnesses at trial. The

upstairs neighbor testified that around 7:15 a.m., she overheard a man in the

downstairs apartment using foul language and aggressively yelling at someone for

having urinated on himself. She testified that she also heard the sound of running

water and a crying child coming from the same apartment. She recalled that the

child started screaming and that it sounded like the child was slipping and falling

                                            5
in the bathtub. She heard the slipping and falling sound four or five times, and

after each time, the child‟s screams would get louder. From the sounds she heard,

the neighbor believed the man was disciplining the child while the child was

bathing. The neighbor estimated that the incident lasted from about 7:15 a.m. to

7:55 a.m. that morning. She recalled that towards the end of the incident, it

sounded as if the child had moved from the bathroom to a bedroom and had

become quieter until the child was silent. She testified that she did not hear a

female‟s voice that morning.

      K.W.‟s mother testified that she awoke around 7:50 a.m. Because her class

began at 8:30 a.m., she needed to leave her apartment by 8 a.m. Her college

professor testified and confirmed that she attended his class that day. He testified

that his class met on Lamar‟s campus at 8:30 a.m., they left campus at 10 a.m. and

travelled to Nederland to student teach, where they concluded class at 11:50 a.m.

      K.W.‟s mother testified that she had been trying to potty train K.W. She

would normally punish K.W. for having an accident by either fussing at him or

whipping him. When she whipped K.W., she did so with a belt or with her hands.

She estimated that she spanked K.W. twice a week for having accidents. She

admitted that she had whipped K.W. the day before the incident because he had a

potty-training accident. She explained that when she discovered he had had an

                                         6
accident, she put him in the bathtub. While in the bathtub, K.W. had another

accident, so she removed him from the bathtub and whipped him on his buttocks.

She testified that she had not observed any bruises on him at that time, nor did she

cause any bruising by whipping him.

      On the morning of this incident, she checked to see if K.W. had had an

accident and discovered that he had. She denied punishing K.W. that morning

though, and explained that she had not had time to punish him because she was in a

hurry to get to class. When she left the apartment, Byrd was awake, but was still in

bed. K.W.‟s mother admitted that when she originally gave a statement to the

police, she told them that K.W. was asleep when she left the apartment. She

explained that she said this to the police because she was concentrating on how she

found K.W., not on how she had left him earlier that morning. K.W.‟s mother

testified that Byrd did not whip K.W. before she left for school that morning, and

to her knowledge he had never before whipped K.W. Finally, while she admitted

that she too had been charged with injury to a child, K.W.‟s mother denied causing

any of K.W.‟s injuries.

      K.W.‟s mother testified that she believes that Byrd whipped K.W. on that

morning for having had an accident. She recalled that while they were at the

hospital, Byrd told her that he “„didn‟t have a reason to whip [K.W.] today‟” since

                                         7
K.W. had not had an accident in the bed. But she knew otherwise; she knew K.W.

had had an accident that morning. She also recalled that when Byrd had returned

to the apartment that afternoon and tried to wake K.W, Byrd stated, “„He is still not

waking up. I‟m not going to play rough with him no more.‟” Byrd also said, “„I

was just trying to toughen him up.‟” She recalled that when K.W. would “whine”

to her, Byrd would tell K.W., “„Man, you got to toughen up. You got to be a

man.‟” K.W.‟s mother also testified that Byrd did not get along with K.W.‟s

father. K.W.‟s father confirmed her testimony about his relationship with Byrd.

K.W.‟s father testified that approximately six to nine months before this incident,

Byrd started a fight with him.

      A Department of Family and Protective Services (DFPS) worker testified

that Byrd came to her office the day after the incident to check on his own son‟s

placement with the Department. The DFPS worker recalled some unsolicited

statements Byrd made to her. He commented to her, “„he was going to go away

for a long time.‟” When asked what he meant by that statement, Byrd responded,

“„I just need to get a lawyer.‟”

      Leeland Keen, a Beaumont police officer, testified that he investigated

K.W.‟s case. As part of his investigation, he interviewed Byrd. Keen testified that

he read Byrd his rights, but Byrd waived his rights and chose to speak to him.

                                         8
Keen asked Byrd what had happened to K.W., Byrd told Keen that he did not

know what caused K.W.‟s injuries. Byrd recalled that his toddler son had struck

K.W. with a toy fire truck. Keen testified that Byrd never implicated K.W.‟s

mother in causing the injuries to K.W. Byrd told Keen that K.W.‟s mother left the

apartment to go to her class at Lamar before he woke up that morning. Byrd told

Keen that K.W. had gotten up that morning, had acted normal, and had eaten

breakfast. Byrd stated that he woke up because he heard K.W. “screaming and

crying” and found K.W. and his son together. But Byrd also told Keen that when

he awoke, the two boys were asleep in their bed. Byrd told Keen that he had given

K.W. a bath that morning because he had vomited, and did not see any bruises on

K.W. while he bathed him. Byrd told Keen that after K.W. had finished his bath,

K.W. laid down on the couch, and fell asleep. Byrd told him he then brought K.W.

to his bed. Byrd told Keen that K.W.‟s mother returned from her class between

1:15 p.m. and 1:30 p.m. Byrd told Keen that he was the only adult with K.W.

while the child‟s mother was gone that day. Keen recalled that Byrd stated, “„I‟m

going away for a long time.‟”

      Keen testified that K.W.‟s mother gave several statements during the course

of the investigation and in none of them did she indicate that Byrd hit K.W.



                                         9
      Dr. Donaruma was able to rule out that K.W.‟s injuries were caused by

accident or any natural causes. She also testified that the injuries were so severe

that K.W. would have immediately become symptomatic. Additionally, the State

presented evidence that as time passed and the extent of K.W.‟s injuries became

known, Byrd‟s version of what happened that day changed—first he told K.W.‟s

mother that he had played too rough with K.W., he then told the paramedics that

K.W. had fallen; and he told Officer Keen that his son hit K.W. in the head with a

toy fire truck. Byrd commented to both an officer and to a DFPS worker that he

was “going away for a long time.” While there is some discrepancy in the time that

the neighbor testified she heard yelling from Byrd‟s apartment and the time that

K.W.‟s mother testified she left to attend school, the jury could have reasonably

believed the child‟s mother‟s testimony that she left prior to any yelling or abusive

behavior.

      After reviewing the record, we hold that the evidence was sufficient for a

jury to find Byrd guilty of the elements of the crime beyond a reasonable doubt.

The jury was entitled to believe that K.W.‟s mother left K.W. in Byrd‟s care in a

healthy, normal condition. The evidence is undisputed that Byrd was the only adult

with K.W. from the time K.W.‟s mother left that morning until she returned that

afternoon to find K.W. severely injured. The physician from Texas Children‟s

                                         10
Hospital agreed that K.W.‟s injuries were consistent with recent, serious trauma,

which she identified as child abuse. “„Texas case law is replete with holdings that

when an adult defendant has had sole access to a child at the time [the child‟s]

injuries are sustained, the evidence is sufficient to support a conviction for injury

to a child, or murder if the child dies.‟” Bearnth v. State, 361 S.W.3d 135, 140

(Tex. App.—Houston [1st Dist.] 2011, pet. ref‟d) (quoting Garcia v. State, 16

S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref‟d)).

      Based on this record, as sole judge of the weight and credibility of the

testimony, the jury could reasonably believe that Byrd battered K.W., which

caused K.W.‟s injuries. See Hooper, 214 S.W.3d at 13. Viewing the evidence in

the light most favorable to the verdict, the evidence is sufficient to show beyond a

reasonable doubt that Byrd committed the offense of injury to a child. See Jackson,

443 U.S. at 319; Hooper, 214 S.W.3d at 13; Bearnth, 361 S.W.3d at 140; see also

Tex. Penal Code Ann. § 22.04 (a)(1). We overrule issue one.

                            Improper Jury Argument

      In Byrd‟s second issue, he argues the prosecutor committed reversible error

in making a comment on Byrd‟s right to remain silent. Byrd exercised his Fifth

Amendment right not to testify at both the guilt and innocence phase and the



                                         11
punishment phase of trial. During the prosecutor‟s closing argument at the

punishment phase of trial, the prosecutor stated:

             [Defense counsel] knows me well. He knows I am going to get
      up here and laugh at the idea that he asks for probation. He knows that
      I am going to stand up here and get angry that he is asking you to give
      him probation. It does make me angry. It should make you angry. This
      is not a probation case. No way; no how. Why would you give him
      probation? What has he done to deserve probation? What has he done
      to deserve to spend anything less than the rest of his life in jail? Beg
      forgiveness? Apologize to the family? Own up to it? No. No. He
      forced you to hold him accountable. Dewayne Byrd doesn‟t take
      responsibility for anything. This isn‟t a probation case.

Byrd did not object to these statements.

      Jury argument is permissible when it falls within one of four categories: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3)

answers to arguments of opposing counsel; and (4) pleas for law enforcement.

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “A comment on a

defendant‟s failure to testify violates both the state and federal constitutions as well

as Texas statutory law.” Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.

2011); see also U.S. CONST. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim.

Proc. Ann. art. 38.08 (West 2005). Yet to preserve error in jury argument, a

defendant must contemporaneously object to the statement and obtain an adverse

ruling. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992). An appellant

forfeits any claim that a prosecutor‟s comments strayed outside the confines of the
                                         12
four permissible categories if he failed to make a contemporaneous trial objection.

Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (citing Cockrell

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Because Byrd did not object

to the prosecutor‟s comments at trial, he has not preserved this alleged error for

review. See id.; see also Tex. R. App. P. 33.1.

      If Byrd‟s trial counsel had preserved this issue for review, without deciding

whether the prosecutor‟s comments were an improper comment on Byrd‟s failure

to testify, we conclude that any error would have been harmless. See Tex. R. App.

P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003,

pet. ref‟d). Under Texas Rule of Appellate Procedure 44.2(a), if we determine

constitutional error exists, we should not reverse the judgment unless we determine

beyond a reasonable doubt that the error contributed to the defendant‟s conviction

or punishment. See Tex. R. App. P. 44.2(a); Wimbrey, 106 S.W.3d at 192. Our

primary concern is the effect the error had, or reasonably may have had, on the

jury‟s decision. Wimbrey, 106 S.W.3d at 192 (citing Mosley v. State, 983 S.W.2d

249, 259 (Tex. Crim. App. 1998) (op. on reh‟g)). In deciding whether trial error

contributed to a defendant‟s conviction or punishment, we consider the nature of

the error, the State‟s emphasis of the error, the error‟s probable collateral



                                         13
implications, and the weight a juror would probably place on the alleged error.

Snowden v. State, 353 S.W.3d 815, 821-22 (Tex. Crim. App. 2011).

      Our review of the entire record demonstrates that these comments were a

small part of the State‟s argument and were not emphasized or mentioned again

and that a juror would probably not attribute much, if any, weight to the error. See

id. Additionally, the trial court‟s charge included an instruction not to consider

Byrd‟s failure to testify, and the jury is presumed to have followed these

instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

We overrule Byrd‟s second issue.

                        Ineffective Assistance of Counsel

      In his third issue, Byrd contends that his counsel was ineffective for failing

to object to the prosecutor‟s improper comments regarding his failure to testify. To

prevail on a claim of ineffective assistance of counsel, an appellant must show (1)

that counsel‟s performance was defective, i.e. counsel made such serious errors

that counsel was not functioning effectively as counsel, and (2) that counsel‟s

deficient performance prejudiced his defense and deprived him of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); see Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

“[A]ppellant must show a reasonable probability that, but for counsel‟s

                                        14
unprofessional errors, the result of the proceeding would have been different.”

Thompson, 9 S.W.3d at 812. The defendant has the burden to prove ineffective

assistance of counsel. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 813. A

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. Strickland, 466 U.S. at

689; see also Thompson, 9 S.W.3d at 813. “Any allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.” Thompson, 9 S.W.3d at 813.

      The record is silent as to why Byrd‟s trial counsel did not object to the

prosecutor‟s comments. Byrd did not file a motion for new trial or otherwise create

a record to demonstrate counsel‟s reasons for not objecting. Byrd argues that there

can be no logical explanation for his trial counsel‟s failure to object to the

prosecutor‟s comments. But Byrd gives no reason why it could not be part of a trial

strategy. Trial counsel may have decided against objecting to avoid further

emphasizing the comments. See Castoreno v. State, 932 S.W.2d 597, 603 (Tex.

App.—San Antonio 1996, pet. ref‟d). Because the record here is silent as to trial

counsel‟s strategy, we would have to speculate to find trial counsel ineffective

based on the asserted grounds, which we cannot do. See Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994). We overrule Byrd‟s third issue.

                                        15
      Having overruled each of Byrd‟s issues, we affirm the trial court‟s judgment.

      AFFIRMED.


                                                ___________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on March 19, 2013
Opinion Delivered May 15, 2013
Do not publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




                                        16
