                            ACCEPTED
                        06-14-00140-CR
             SIXTH COURT OF APPEALS
                   TEXARKANA, TEXAS
                   4/30/2015 9:17:47 AM
                       DEBBIE AUTREY
                                 CLERK




       FILED IN
6th COURT OF APPEALS
  TEXARKANA, TEXAS
4/30/2015 9:17:47 AM
    DEBBIE AUTREY
        Clerk
                        Identity of Parties and Counsel


       1. Trial Judge: The Honorable Richard Beacom presided over the trial of

this case, Presiding Judge of the 354th Judicial District Court of Hunt County,

2507 Lee St. Greenville, TX 75401 .


       2. Appellant: Tony a Ann Rodriguez, Hunt County Detention Center 2801

Stuart St., Greenville, TX 75401


       3. Counsel for Appellant:


       a. The Appellant was represented at the Trial Court by Royal Mullins, 2608

Stonewall St., Greenville, Texas 75401


       b. The Appellant is represented on appeal by Frank Long, 614 Oak Ave.,

Sulphur Springs, TX 75482.


      4. Counsel for the State of Texas:

      a. The State of Texas was represented by Noble Dan Walker, Jr., Hunt

County District Attorney, at the trial court level.


      b. The State is represented on appeal by and through Noble Dan Walker, Jr.,

District Attorney, 2507 Lee St., Greenville, TX 75401 .




Opening Brief of Appellant
Page 2 of 19
                                  TABLE OF CONTENTS


Identity of Parties and Counsel                        2

TABLE OF AUTHORITIES                                  4

STATEMENT OF THE CASE                                  5

STATEMENT OF FACTS                                    6

ARGUMENT                                              12

APPELLANT'S SINGLE ISSUE                              12

Arguments And Authorities                             13

PRAYER                                                17

CERTIFICATE OF SERVICE                                17

CERTIFICATE OF COMPLIANCE                             18




Opening Brief of Appellant
Page 3 of 19
                           TABLE OF AUTHORITIES


Cases

Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App., 2010)                          14

Gaddis v. State, 753 S.W.2d 396,398 (Tex.Crim.App.1988)                            14

Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000)                           13

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)                          14

Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000)                    15

McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008)                       14

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g)         14

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)                        14

Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004);                   14

Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App. 1980)                         15

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000)                         15

Whitney v. State, 396 S.W.3d 696, 703-04 (Tex. App.--Fort Worth 2013, pet. refd)   14

Rules

TEX. R. APP. P. 44.2(b);                                                           14




Opening Brief of Appellant
Page 4 of 19
STATEMENT REGARDING ORAL ARGUMENT



       Appellant does not request oral argument as the decisional process of this

Court would not be significantly aided by oral argument since the facts and legal

arguments are adequately presented in the briefs submitted to this Court.


                        STATEMENT OF THE CASE

       Appellant was charged by indictment with the 1" degree felony

offense of Injury To A Child Causing Serious Bodily Injury with an alleged

mental state of "intentional" in Cause No. 29,230 in the 354'" District Court

of Hunt County, Texas. Defendant entered a plea of Guilty to an amended

indictment containing the lesser included 2"' degree felony charge of Injury

To A Child Causing Serious Bodily Injury with an alleged mental state of

"reckless" and a trial on punishment was heard from July 13, 2014 to July

16, 2014. The jury returned a verdict of 16 years incarceration in the Texas

Department of Criminal Justice Institutional Division and the Court entered

a judgment consistent with the punishment verdict and the 1" degree count

was dismissed. Appellant now appeals the sentence of 16 years to the 2"'

degree felony offense of Injury To A Child Causing Serious Bodily Injury.




Opening Brief of Appellant
Page 5 of 19
       Did the Court err by allowing the State, over a proper objection, to

argue for the jury to violate the law regarding proper consideration of the

full range of punishment.




                  NO. 06-14-00190-CR
                        IN THE
          SIXTH COURT OF APPEALS OF TEXAS
                         TEXARKANA, TEXAS




                      TONYA ANN RODRIGUEZ
                                     vs
                             STATE OF TEXAS


                       Brief For The Appellant


                             STATEMENT OF FACTS


      Appellant was indicted for the 151 degree felony of Injury To A Child

Causing Serious Bodily Injury on August 23, 2013. After arraignment and a


Opening Brief of Appellant
Page 6 of 19
pretrial hearing, Appellant's trial counsel and the assistant district attorney

announced a plea agreement on March 18, 2014 consisting of Appellant

entering a plea of guilty to a lesser charge of reckless intent Injury To A

Child Causing Serious Bodily Injury, a second degree felony. (RR Vat 4-5)

The State amended the indictment acting a Count II allegation of reckless

and Appellant entered her plea on April 15, 2014. (RR VI at 7-8) A jury was

selected on July 14, 2014 and a trial to the jury on punishment followed.

After trial, the jury returned a verdict of 16 years and a judgment consistent

with the verdict was entered on July 16, 2014, (CR at 70). Appellant does

not contest the sufficiency of the evidence. A detailed recitation of the facts

is therefore unnecessary. A summary of the testimony is below.


      After a jury was empaneled and sworn, the State called Shannon

Tadlock, the mother of the injured child, (RR X at 16). Ms Tadlock testified

about how she discovered her child suffered from a leg fracture. Ms

Tadlock had dropped the child, A. H. at the residence of Appellant where

Appellant operated a small daycare center. Ms Tadlock testified that her

child A. H. was abnormally fussy that Tuesday because of constipation

issues and the matter was discussed with Appellant, (RR X at 21 ). Ms

Tadlock testified that she received a phone call from Appellant that

Tuesday afternoon and there was some discussion of something perhaps

Opening Brief of Appellant
Page 7 of 19
wrong with the child's leg, but it was agreed that Ms Tadlock would pick up

the child at the usual time after 5:00P.M. Ms Tadlock testified that she and

the child's father, Micah, picked up A.H.and noticed something wrong and

took A.H.to the emergency room, (RR X at 25).


       Ms Tadlock testified that A.H.was examined including having xrays

taken. Without objection, Ms Tadlock testifies that she was told by the

medical personnel that A.H.suffered a spiral fracture that could was non-

accidental, (RR X at 25). Ms Tadlock testifies about riding in the ambulance

with A.H.from the hospital in Greenville to Children's Medical Center in

Dallas (RR X at 28). And Ms Tadlock repeats with no objection that ..the

doctors told me, again, it was a non-accidental break, that someone had to

have forcibly done this to her, (RR X at 30). With no objection, the following

exchange occurred (RR X at 31):


             Q:     And did they ever get a chance to go over with you, like,
             what they -- the type of force or what type of injury this could
             have been? Did they explain that to you?

             A:     They said they would have had to -- someone would have
             had to have literally twisted her leg so hard that it would snap.
             They told me that her, especially babies• bones, are very
             bendable so even -- that much force is still even really hard to



Opening Brief of Appellant
Page 8 of 19
             break them. They said it had -- it couldn't have been done by
             accident.

Ms Tadlock then testifies to the events of the next week after her child is

placed with her in-laws pending a CPS investigation. She testifies upon

questioning as to the hearsay regarding the CPS investigation, "Ms Haines

told me that they had ruled us out as hurting her and that they had ruled it

out pretty quickly and that we were allowed to take her home and that they

would begin looking at Ms. Rodriguez with, really, there only being two

people who saw her constantly, me and Ms. Rodriguez, (RR X at 35).


      The State called Amanda Haines, the Child Protective Services

investigator (RR X at 44). Ms Haines described how the investigation

regarding the injury to A.H.began and how Appellant became the prime

target of the investigation by Child Protective Services and law

enforcement (RR X 44-54). Ms Haines describes a lengthy interrogation of

Appellant conducted by Detective Fuller of the Greenville Police

Department. She further describes, with no objection as to the absence of

any scientific basis or predicate, the results of an oral swab drug test

administered to Appellant (RR X at 60-65). Ms Haines testifies at length

about the type of test administered and the general dangers of

methamphetamine use regarding child care, (RR X 67). Ms Haines also

Opening Brief of Appellant
Page 9 of 19
discusses her impressions of Appellant from Detective Fuller's

interrorogation, including Ms Haines's speculation that Appellant's "jittery"

behavior during the interview could be from methamphetamine use (RR X

at 72). On cross examination the following exchange occurs (RR X at 76):


       Q:    At the time did the doctor tell you exactly how that injury-- whether it be
       twisting or snapping or how that type of injury would have to be --what type of
       force or the actions that would take place?

       A:    They said it had to be extreme force and that one would have known that
       they had broken the leg at that time.

       The next witness called by the State is Dr. Kristen Reeder, a

pediatrician from Children's Medical in Dallas (RR X at 79). Dr. Reeder

testified that she examined A.H.and determined that she had a spiral

fracture on her right femur (RR X at 85). As to the force required to cause

the spiral fracture, Dr. Reeder testifies, "There aren't any studies as of now

that actually have a measurement for the force needed; but just through

clinical practice, through real life practice, I personally have changed

thousands of diapers and have never broken a baby's leg"(RR X at 92). Dr.

Reeder answers in the affirmative when asked by the State, "[l]s the type of

force that's required to break a bone like this a sufficient amount of force

that the caregiver would know that they're going to at least cause pain in


Opening Brief of Appellant
Page 10 of 19
the child, if not know they were about to break the child's leg?" (RR X at

92). Dr. Reeder does not offer any opinion with regard to the time the bone

fracture could have happened. After Dr. Reeder, the State rested as to the

punishment hearing.


       Appellant called the following witnesses: Juanita Rosales, Appellant's

aunt (RR X at 106-122); John Villareal, Appellant's uncle (RR X at 122-

134); another aunt, Mary Sue Sartin (RR X at 134-136); Donna Jean

Lester, an acquaintance of Appellant's who knew her because Appellant

cared for her grandchild (RR X at 137-150);and Appelleant called a niece of

Appellant's Ashley Johnson (RR X at 150-158). These witnesses all

provided testimony that Appellant kept a very clean home and that they all

trusted her to care for children.


      Appellant also testified (RR X 159-233). Appellant admits using a

small amount of a substance she believed to be methamphetamine on the

Saturday prior to the discovery of the child's injury (RR X at 220). Appellant

admitted that the injury must have happened while in Ms Rodriguez's care,

but consistently denied knowing exactly how the injury occurred (RR X at

197). Ms Rodriguez also testified that she had never been convicted of a

felony or misdemanor and was eligible to receieve probation from the jury


Opening Brief of Appellant
Page 11 of 19
(RR X at 211). On cross examination, the prosecutor asked Appellant

about the status of Appellant's disabled daughter and whether or not Adult

Protective Services ever investigated her (RR X at 228). The prosecutor

also asked, 'The members of the Greenville Police Department also made

contact with you; is that correct?" (RR X at 228). Appellant replied, "Uh-

huh" and there was no objection to the line of questioning. Appellant was

also asked about the status of her other daughter's boyfriend as a

registered sex offender with no objection (RR X at 230).


       In rebuttal, the State offerred the testimony of Detective Fuller and

questioned her about the interviews of Appellant and whether or not

Detective Fuller believed Appellant was truthful (RR X at 237). The State

also offerred without objection the testimony of Lacey Dejarneatt who

testified about a specific incident involving going to Appellant's home and

finding her daughter unattended (RR XI at 6-8) .




Opening Brief of Appellant
Page 12 of 19
                                ARGUMENT


                       APPELLANT'S SINGLE ISSUE

The Court Erred by Allowing the State, Over a Proper Objection, To
     Argue For The Jury To Violate The Law Regarding Proper
     Consideration Of The Full Range of Punishment

                               Fact Statement

   Appellant incorporates fully all of the facts set out in the Statement of

Facts, above, and adds the additional facts from volume eleven of the

Reporter's Record relevant to this issue .

   The jury received the accepted instruction regarding extraneous

offenses as follows:

   The State has introduced evidence of extraneous crimes or
   bad acts other than the one charged in the indictment in this
   case. This evidence was admitted only for the purpose of
   assisting you, it it does, in determining the proper
   punishment for the offense for which you have found the
   defendant guilty. You cannot consider the testimony for any
   purpose unless you find and believe beyond a reasonable
   doubt that the defendant committed such other acts, if any
   were committed (RR XI at 15).

   The jury was also instructed on the full range of punishment for injury to

a child by a reckless act causing serious bodily injury as a second degree

felony with the possibility of probation (RR XI at 12-13).



Opening Brief of Appellant
Page 13 of 19
    The prosecutor elected to split his argument in two parts. During the first

part of the prosecutor's argument to the jury the following exchange

occurred (RR XI at 20-21 ):


    [By Assistant District Attorney Lilley]: So I tell you this: Start
   your deliberations at 11 years and go up from there becaue
   that's a sign to this defendant and our community that we
    never even consider--
    MR. MULLINS: Objection, Your Honor. The State is --the
   law says the jury can consider the full range and he's giving
   instructions to start at a certain place and that's improper
   argument.
   MR. LILLEY: They were qualified on the full range, Your
   Honor. They don't have to consider it if--
   MR. MULLINS: It's improper-- it's improper for a prosecutor
   to start telling the jury how or where they should start
   deliberating or how to deliberate. It's improper argument.
   THE COURT: Well, let's -- rather than instruction of where to
   start, I think you can argue where the State would like to see
   the punishment range go from.
   MR. LILLEY: Okay. So where State [sic] believes that the
   range that should be honestly considered, based on the
   facts that you heard, is 11 years and up because that sends
   a message that our community never even considered
   probation in this case.
   The State further urged the jury to consider the alleged lack of

truthfulness of the Appellant as well as the alleged drug use of Appellant.

Trial Counsel for Appellant argued for a probated sentence.

   The jury returned a sentence of 16 years confinement (RR XI at 41).


                         Arguments And Authorities


Opening Brief of Appellant
Page 14 of 19
       The Texas Court of Criminal Appeals recognizs four areas of proper

jury argument: (1) summation of the evidence presented at trial; (2)

reasonable dedution drawn from that evidence; (3) answer to the opposing

counsel's argument; or (4) a plea for law enforcement. Davis v. State, 340

S.W.3d 717,728 (Tex.Crim.App.2010); Jackson v. State, 17 S.W.3d 664,

673 (Tex.Crim.App.2000). In examining challenges to a jury argument, the

remark is to be considered in the context in which it appears. Gaddis v.

State, 753 S.W.2d 396,398 (Tex.Crim.App.1988). At punishment, a jury is

to consider the full range of punishment. Cardenas v. State, 325 S.W.3d

179 (Tex. Crim. App., 2010).

   The standard of review for a trial court's ruling on an objection asserting

improper jury argument is abuse of discretion. Whitney v. State, 396

S.W.3d 696, 703-04 (Tex. App.--Fort Worth 2013, pet. refd). An abuse of

discretion involves a decision that was so clearly wrong that it lies outside

the zone within which reasonable persons might disagree. See McCarty v.

State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).

      Improper jury argument is reviewed under a nonconstitutional harm

analysis under rule 44.2(b) of the rules of appellate procedure, and must be

disregarded unless it affected appellant's substantial rights. TEX. R. APP.

P. 44.2(b); see Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.


Opening Brief of Appellant
Page 15 of 19
2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op.

on reh'g). A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury's verdict. King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Conversely, an error

does not affect a substantial right if we have "fair assurance that the error

did not influence the jury, or had but a slight effect." Solomon v. State, 49

S.W.3d 356, 365 (Tex. Crim. App. 2001). Three factors are to be

considered in determining whether or not an appellant's subsantial rights

were affected: 1) the severity of the misconduct (i.e., the prejudicial effect

of the prosecutor's remarks); (2) curative measures; and (3) the certainty of

the punishment assessed absent the misconduct. See Martinez v. State, 17

S.W.3d 677, 692-93 (Tex. Crim. App. 2000). Reversible error occurs when,

in light of the record as a whole, the argument is extreme or minifestly

improper, violative of a mandatory statute, or injects new facts harmful to

the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103,

115 (Tex.Crim.App. 2000), citing Todd v. State, 598 S.W.2d 286, 296-97

(Tex.Crim.App. 1980).

      During final argument, the prosecutor plainly urged the jury to

disregard the full range of punishment and only "honestly consider" a

sentence over eleven years (RR XI at 20-21). The statement was properly


Opening Brief of Appellant
Page 16 of 19
objected to but the error was compounded by the trial court's remarks in

overruling the objection by stating, " ... 1think you can argue where the State

would like to see the punishment range go from" (RR XI at 21 ). Clearly the

jury would have understood this exchange as being given the judge's

approval, and even instruction, to disregard any sentence in the

punishment range less than eleven years. Taking into account that the

consideration of the full punishment range is the jury's prime duty under

their oath, the erroneous nature of the prosecutor's argument and the

court's ruling is quite obvious. Examining the argument by the prosecutor in

the context of the comment by the trial judge, the substantial and injurious

effect or influence of both the argument and the ruling is clearly wrong and

an abuse of discretion.

      The prosecutor's remark is quite severe and prejudicial in that it

actually urges the jury to disregard the law and their oath to render a true

and correct verdict. Specifically, the statement, "So where State [sic]

believes that the range that should be honestly considered, based on the

facts that you heard, is 11 years and up because that sends a message

that our community never even considered probation in this case" (RR XI at

21). Quite possibly, the prosecutor merely mistated what would be a

perfectly proper argument in asking the jury to give a sentence over eleven


Opening Brief of Appellant
Page 17 of 19
years. But the mistatement, namely the words "honestly considered," make

the argument wholly improper. The law is well established that the jury

must consider the full range of punishment.

       Considering that the jury assessed sixteen years incarceration to a

Defendant who was clearly eligible for probation highlights the harm in this

case. Taking into account the other obvious errors in the record, Appellant

has demonstrated harm. In particular, the jury heard, without objection,

mere speculation of Defendant's drug use. There was no scientific

evidence or predicate made to prove any details of Defendant's alleged

drug use. The jury heard with no objection, blatant opinions concerning the

character of the accused. The jury heard hearsay without objection from

multiple witnesses called by the State regarding the nature of the child's

injury. The jury also heard witnesses imply that Defendant had other

criminal violations involving Adult Protective Services. Taking into account

the record as a whole, the prosecutor's argument to disregard their oath

and not honestly consider the full punishment range shows clear harm

requiring reversal.

   Having proven harm to the degree mandated in cases of non-

constitutional error, Appellant requests this Court reverse the Trial Court's




Opening Brief of Appellant
Page 18 of 19
Judgment and remand the case for further proceedings pursuant to

Tex.R.App.Pro. 43.2(d).


                                  PRAYER
       Appellant prays that she be granted the relief requested under the




   I hereby certify that a true and correct electronic copy of the foregoing

Appellant's Brief was mailed to Rodriguez, and a true and correct copy

compliant with the E-Filing rules adopted by the Texas Supreme Court,

effective 1-1-2014, has been filed with the Sixth Court of Appeals and has




Opening Brief of Appellant
Page 19 of 19
                    CERTIFICATE OF COMPLIANCE

    Relying on the word count function in the word processing software used

to produce this document, I certify that the number of words in this brief is

3,480 words.



       1<
   Frank Long




Opening Brief of Appellant
Page 20 of 19
