                              Fourth Court of Appeals
                                     San Antonio, Texas

                                MEMORANDUM OPINION
                                        No. 04-13-00771-CR

                                        Christopher SMITH,
                                              Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 158th Judicial District Court, Denton County, Texas
                                  Trial Court No. F-2011-1675-A
                           Honorable Sherry L. Shipman, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 23, 2014

AFFIRMED

           A jury found appellant, Christopher Smith, guilty of murder and assessed punishment at

twenty-five years’ confinement. In four issues on appeal, appellant challenges the sufficiency of

the evidence to support his conviction, and he asserts the trial court erred by denying his challenge

to a venire member, denying his request for certain jury instructions, and admitting extraneous

offense evidence. We affirm.
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                             SUFFICIENCY OF THE EVIDENCE

       Appellant first asserts the evidence is insufficient to support his conviction.

A.     Standard of Review

       Evidentiary sufficiency challenges are reviewed under the standard set forth by the United

States Supreme Court in Jackson v. Virginia: “Considering all of the evidence in the light most

favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010). This requires us to assess the evidence in the light most favorable to the verdict.

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting Jackson, 443 U.S. at 319).

We will uphold the verdict unless a rational factfinder must have had reasonable doubt with respect

to any essential element of the offense. Laster, 275 S.W.3d at 518; Narvaiz v. State, 840 S.W.2d

415, 423 (Tex. Crim. App. 1992). We give deference to the responsibility of the jury “to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318-19).

       Each fact need not point directly and independently to the guilt of the accused, as long as

the cumulative force of all the evidence, coupled with the reasonable inferences to be drawn

therefrom, is sufficient to support the conviction. Id. Circumstantial evidence is as probative as

direct evidence and may alone be sufficient to establish guilt. Id. We do not ask whether we

believe the evidence at trial established guilt beyond a reasonable doubt, instead, we consider only

whether the jury reached a rational decision. Brooks, 323 S.W.3d at 899.

B.     Felony Murder

       Appellant was accused of felony murder, which is an unintentional murder committed in

the course of committing a felony. TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). Penal
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Code section 19.02(b)(3) provides that a person commits a first degree felony if a person “commits

or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance

of the commission or attempt, or in immediate flight from the commission or attempt, he commits

or attempts to commit an act clearly dangerous to human life that causes the death of an

individual.” Id. In this case, the underlying felony offense was injury to a child. See TEX. PENAL

CODE § 22.04 (West Supp. 2014).

         Penal Code section 22.04 provides that a “person commits an offense if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or

recklessly by omission, causes to a child . . . (1) serious bodily injury; (2) serious mental deficiency,

impairment, or injury; or (3) bodily injury.” Id. In this case, the jury charge stated, in part, that

“[Appellant], in Denton County, Texas, on or about April 4, 2011, committed or attempted to

commit injury to a child by intentionally, knowingly, recklessly, or with criminal negligence

causing bodily injury to Christian Smith . . . by act, to wit: by shaking Christian Smith, by striking

Christian Smith with an unknown object, or by causing Christian Smith to strike an unknown

object . . . .”

C.       The Evidence

         The complainant, Christian Smith, was born on January 5, 2011, stopped breathing on April

4, 2011, and pronounced dead on April 8, 2011. Christian was the son of appellant and Shamira

Smith.

         Appellant and Shamira each had their own apartment, but they often stayed with each other.

On the evening of April 3, 2011, Shamira and Christian spent the night at appellant’s one-bedroom

apartment, which he shared with his older brother Michael. Shamira testified Christian had been

sick and had a stuffy nose for about a week leading up to April 4. On the morning of April 4,

Shamira fed Christian and then prepared herself for work. Appellant drove Shamira, with
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Christian in the car, to her job at a nearby school, and he then returned to his apartment with

Christian. At the time, appellant was unemployed.

         Appellant’s brother Michael testified appellant used the bedroom in their apartment and he

slept on the couch. Michael said he spent the evening of April 3 with his sister because she had a

broken foot. He said he returned to the apartment on April 4 at around 2:20 p.m., and appellant

had to let him in because the door’s deadbolt was locked. Michael said it was a usual practice for

them both to deadbolt the door. Michael said appellant was fine, his usual self, calm when he

answered the door. Michael testified appellant answered the door shirtless, and he assumed

appellant had been showering because he heard the shower running. Once appellant let him in,

appellant returned to his bedroom and closed the door. Michael did not see Christian and assumed

he was in the bedroom. In his statement to the police, Michael said he thought he heard Christian

“cooing.”

         While appellant was in the bedroom, Michael was in another room doing laundry. After

about five or ten minutes, Michael said appellant ran out of the bedroom “clutching [Christian]

close to his chest,” saying “Mike, I’ve got to go, he’s not breathing, he’s not breathing, and

[appellant] ran out the door.” Michael, who followed appellant, said appellant ran down one flight

of stairs where “he broke down and cried.” Michael got appellant to return to the apartment, where

Michael laid Christian down and started CPR because appellant was not able to help because he

“was panicking . . . he was crying.” Michael told appellant to call the paramedics, and appellant

said he already had called, but he called again. At trial, Michael said nothing came out of

Christian’s nose or mouth, although he could hear congestion in Christian’s nose as he attempted

CPR. But, in his statement to the police, Michael said milk came out of Christian’s nose and

mouth.



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       When the paramedics and police arrived, the police took appellant to the back room to ask

him questions. Michael, who stayed with Christian, heard “a loud boom,” and he saw that

appellant had punched a hole in the wall because he was upset and crying. When the paramedics

were able to recover a pulse from Christian, they transported him to a hospital in Plano. Christian

was soon thereafter air-lifted to a hospital in Dallas. When the paramedics transported Christian,

Michael followed them while appellant went to get Shamira from her place of employment.

       Glen Bays, one of the firefighter/paramedics who responded to the call, said when they

arrived at appellant’s apartment, a man [later identified as appellant] was trying to get their

attention. Bays described the man as “really agitated, really excited, yelling.” Bays said Christian,

who was wearing a onesie and a diaper, was unresponsive, not breathing, and very pale. Bays

testified they asked appellant what happened and appellant said he had fed the baby and was getting

him ready for his bath. Appellant also told the paramedics Christian had either a respiratory

infection or a sinus infection for a couple of weeks. When asked whether appellant said what

caused Christian to stop breathing, Bays responded: “No, he said he was just getting him ready for

a bath and laid him down and found him nonresponsive.” Bays described appellant as “very, very

excited, kind of agitated and seemed almost borderline violent” as they worked on Christian, and

appellant paced back and forth and yelled at them to do their job faster. Bays said paramedics

recovered a pulse from Christian, although he was still not breathing on his own.

       Tim Weaver, a Fire Department Captain and one of the first responders to arrive, also

described appellant as extremely upset. When Weaver asked appellant what happened, appellant

took Weaver to the bathroom and showed him a towel laying on top of a cabinet where appellant

said he had changed Christian’s diaper. Appellant told Weaver Christian stopped breathing as he

was about to bathe the child. Weaver recalled appellant telling him Christian had liquid in his

mouth. Appellant left the bathroom, and put his fist through a wall a few times, screamed and
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“made aggressive motions” such that Weaver thought appellant might hit him, although appellant

was not close enough to Weaver to do so. Weaver said appellant was very agitated when they first

arrived, and appellant’s behavior “frightened [him] for [his] crew, not so much for [himself].”

       Another paramedic, John Whitener, described appellant as very emotional, very irate, and

scurrying around all over the apartment. He could not remember who told him the child had

stopped breathing six to seven minutes before they arrived. Whitener described Christian as not

breathing, having no pulse, and the color blue. Whitener inserted a breathing tube into the child’s

lungs, at which time he noticed the airway was clear, with no signs of vomit, blood, or any other

fluids. After securing the child’s airway, the paramedics next inserted an IV in his neck to inject

epinephrine in an attempt to restart his heart. After a second dose of epinephrine, they were able

to regain a pulse.

       Whitener said that as they worked on Christian, he noticed a laceration on the child’s right

foot in between the fourth and fifth toe. Whitener said the “pinky toe was almost falling off,” and

no one noticed it initially because the baby was not breathing or circulating blood. However, when

they regained a pulse, the laceration began to bleed again in the ambulance. Whitener said there

was no scab and agreed the laceration was “fairly significant.” He said Christian’s heart was

beating on its own, but the child was not breathing on his own when they arrived at the hospital.

During the drive to the hospital, the paramedics monitored Christian’s blood oxygen level.

Christian’s was at 100 percent, which indicated to Whitener there was no lung disease, distress, or

pneumonia.

       The two police officers who responded to the emergency call also testified. One said he

was unable to speak with appellant at the apartment because appellant was hysterical. This officer,

who also drove to the hospital in Dallas, said appellant was disruptive when he arrived at the

hospital. The other officer said he was able to speak briefly with appellant after the paramedics
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transported Christian, and appellant told him he had laid Christian on the floor to feed him, and

Christian suddenly stopped breathing at which time appellant used a baby plunger to try and clear

the child’s airway.

       Police detective Richard Anders testified he went to the Dallas hospital along with another

detective, Andrea Fisher. When he and Fisher arrived at the hospital, only Michael was in the

emergency room. While the detectives spoke with Michael, appellant and Shamira arrived. Both

detectives heard a disturbance in the hallway, and realized it was appellant yelling profanities and

“storming around.” Anders said appellant refused to speak to him and appellant said he would not

speak to any social workers and he wanted to know Christian’s condition. Anders recognized

appellant was worried about the baby and he left appellant alone. A few minutes later, appellant

approached Anders, apologized, and said he would speak with him. Anders said appellant spoke

to him and Fisher willingly for a few minutes. Appellant told Anders about burns to Christian’s

backside, explaining that, in February 2011, he had attempted to bathe Christian in the sink and

the water was too hot when he dipped the child—twice—in the water. Anders said the burns were

significant and covered the child’s buttocks, lower back, and around the back side of his legs.

       Anders testified an officer who had been at appellant’s apartment told him appellant said

he was “sorry.” When Anders asked appellant what he meant by this, appellant said that he had

hurt his son and “it happened on [his] watch.” Anders asked appellant if he hit Christian on

anything or dropped him as he was running out of the apartment with the child, and appellant said

“no.” Anders said appellant described how he attempted to get Christian to start breathing again

by holding Christian up under his armpits and “going back and forth,” shaking the baby, without

supporting the baby’s head. Appellant said he then laid the baby on the counter, “put the butt

down first and then the shoulders and then the head fell and he heard a thunk and [Christian] hit

his head back on the wall . . . .” Appellant admitted turning Christian onto his stomach and slapping
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his back, and he admitted “that he picked the child up using both of his hands around [the child’s]

neck to create a flow.” Appellant told the detectives Christian did not fall off the counter or off

anything else. Appellant also said Christian was recovering from his cold, and appellant did not

think Christian was congested.

           Anders testified he and Fisher then drove from the Dallas hospital to appellant’s apartment

where other officers were already on the scene. Anders said some of the evidence collected was

not consistent with appellant’s version of events. For example, appellant told the detectives he

changed Christian’s diaper and threw it in a trash can next to the toilet, but there was no diaper in

the trash can or anywhere else in the bathroom. Instead, several dirty diapers were found in the

kitchen wastebasket. Also, appellant said a towel he used was on the bathroom counter, but it was

later found in the laundry room. Although appellant said he removed Christian’s onesie in the

bathroom, none were found in the bathroom. Appellant told the detectives he re-dressed Christian

after he stopped breathing. Appellant said he fed Christian with a bottle while in the bathroom,

but the bottle was on the kitchen bar countertop. 1 Appellant told the detectives he used a laptop

in the living room, but one was found on top of the toilet in the bathroom.

           Detective Andrea Fisher testified appellant appeared to be well-versed in how to care for

an infant. She testified in a similar fashion to the inconsistencies between what appellant told her

and Anders and what was actually found at the apartment. Fisher said that when appellant

described Christian’s head hitting the counter, appellant demonstrated by “actually hit[ting] his

head back against the wall pretty hard, and then [appellant said], It sounded just like that.” Fisher

said appellant described the sequence of events as he used children’s nose drops because Christian

was congested, then suctioned his nose, after which the baby threw up, coughed, and stopped


1
    A serology technician testified she found traces of blood on the bottom of the baby bottle.


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breathing. Appellant tried CPR by pushing on Christian’s chest, and then picked him up and shook

him. Fisher testified she thought she heard the sound of a female crying in the background of the

911 call, but she conceded there was no female in the apartment.

       Fisher was next asked about burns to Christian’s right hand. She said appellant told her

his son’s right hand was burned when he (appellant) was attempting to feed Christian a bottle that

had been heated on the stove. Appellant told Fisher he retrieved the bottle from the hot water on

the stove and when he tipped the bottle to test the temperature of its contents, hot water on the

outside of the bottle spilled onto Christian’s hand. Fisher said she saw Christian’s right hand when

the child was at the hospital, and she described it as “blood on his fingers[,] four fingers of his

right hand that appeared not to have skin[,] it was wrinkled and appeared to be a burn.”

       Fisher also testified about the sequence of calls and texts made to and from appellant’s cell

phone. She said the 911 call was made at approximately 2:22 p.m. Before that, Shamira had tried

repeatedly and unsuccessfully to reach appellant, asking about Christian. After the 911 call but

before he called Shamira, appellant called his brothers, his father, his bishop, and an employment

agency. Approximately one hour after the 911 call, appellant finally called Shamira.

       One of appellant’s neighbors shared a wall between the two apartments. At approximately

1:00 or 1:45 p.m. on April 4, 2011, she heard “loud booming noises” or “thumping noises” from

appellant’s side of the wall. She did not know what caused the noise. A “significant time” later,

she heard the emergency response vehicles idling in the parking lot. A downstairs neighbor

testified that sometime between 1:00 p.m. and 2:00 p.m. on April 4, she heard “loud walking and

then it sounded like somebody [or something heavy] dropped” on the floor above her apartment.

About fifteen to thirty minutes later, she heard sirens and she heard someone say “hurry up, he’s

not breathing.”



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        Doctor Michael Cowan, a pediatric emergency physician, said he saw Christian when the

child first arrived at the Plano hospital and Christian had no spontaneous respirations, a very faint

pulse, fixed and dilated pupils, and was not neurologically responsive. Cowan noticed bruising

around Christian’s eyes, which he believed was recent. Cowan agreed symptoms from head

trauma manifest quickly, and Christian’s injuries and symptoms were not consistent with

resuscitative efforts. However, he admitted he could not date the bruises or state what caused the

bruises. Christian also had a subdural hemorrhage, which Cowan said would not be caused by

someone laying a baby on a folded-over towel on a counter-top. Cowan agreed a subdural

hemorrhage of the type he saw on Christian would be caused by a “significant kind of trauma” and

a subdural hematoma retinal hemorrhage also could be caused by blunt force injuries. Cowan

agreed, however, that a lack of oxygen also could cause the brain to swell.

        The day after Christian was admitted to the hospital, the trauma team asked Dr. Amy

Barton, a child abuse pediatrician, to consult on Christian’s case. In addition to examining

Christian, Barton spoke to Shamira, who told Barton she took the child to a doctor on March 29

because of his cold and that Christian had sustained a burn to his hand the following Wednesday

or Thursday. Shamira said they did not seek medical treatment for the burn, but they applied a

burn cream to his hand. Shamira also told Barton that Christian was eating better than he had been

and cooing. Barton found this significant because eating well and cooing means the child feels

well.

        Barton next testified about several photographs she took of Christian. One of the photos

showed a bruise over Christian’s left eye, which Barton said would be the result of “some sort of

blunt force, direct contact to the eyelid.” Other photos showed burns to both the front and back of

Christian’s right hand fingers. Barton said the significance of the fact that only the fingers, and

not the palm, were burned is “that when someone sustains a splash injury . . . you see splotches of
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water or dots of water that go down your hand or leg.” She continued: “A line of demarcation is

consistent with immersion burn or the hand being placed in water up to that exact line. And then

the burn extends only to that line and not above it.” As to Christian specifically, Barton testified

this “mean[t his] fingers themselves were burned and dipped in something.” She believed the

burns were new, and some were second degree and others third degree.

       Barton also testified about Christian’s head injury, stating a brain scan showed a subdural

hemorrhage in the front of his brain in the forehead area. Barton said a subdural hemorrhage can

be caused either by a blunt impact to the head or a rapid back and forth movement of the head, but

not by normal resuscitative efforts such as CPR. “[S]omething severe and traumatic” would cause

a subdural hemorrhage such as Christian’s. Barton said Christian also had hemorrhaging to the

back part of one of his eyes, and such injuries are associated with inflicted head injuries. Christian

also had bruising to both eyelids, which indicated “some sort of blunt force injury to those eyelids

to cause bruising.” Barton explained “inflicted head injury” to mean that something was done to

Christian, such as “[s]haking, slamming, throwing or being hit with an object.” Finally, Barton

stated she saw bruising on Christian’s upper arms, consistent with a violent hand-hold. Barton

said dating the bruising would be very difficult. Barton said Christian ultimately was declared

brain-dead and taken off life-support.

       Doctor Darlene Kurian, who was Christian’s pediatrician, testified she saw Christian at his

two-month wellness check-up on March 10, 2011, at which time all milestones were normal, and

nothing of concern appeared in Christian’s birth record or at the March 10 appointment. She said

Shamira did not indicate any major health concerns or that anything was wrong with the child.

However, when Kurian removed Christian’s clothes for a head-to-toe examination, Kurian saw

old burns on his buttocks. She said the left buttock had what appeared to be second-degree burns



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in three areas that were in the process of healing, and an already-healed burn on the right buttock.

Shamira told Kurian the burns were being treated by another pediatrician.

       Kurian saw Christian again on March 29, 2011 because he had a stuffy nose, this time with

appellant present and Shamira on a speaker phone. Kurian said at the time there was no indication

of any respiratory problem, but she diagnosed him with an acute upper respiratory infection.

Kurian recommended to appellant the use of saline nose drops and suctioning of the nose. Based

upon her March 29 examination of Christian, Kurian would not have expected him to stop

breathing; however, she agreed suctioning a child’s nose may cause the child to stop breathing for

a few seconds. Nor would she expect an infant to vomit and then immediately become lifeless.

Kurian denied being told about any bloody mucous discharge, and she did not remember being

asked about suctioning Christian’s mouth. She said her own examination of Christian did not

reveal any bloody mucous discharge in his nose or mouth, nor any bloody scabs or crusting in his

nose. Kurian said she would not expect an infant who had stopped breathing to have a subdural

hematoma or retinal hemorrhaging.

       Dr. Jill Urban, the medical examiner/forensic pathologist, testified she would not expect to

see as much blood diffused over Christian’s brain, or an impact site caused by something hitting

his head or his head hitting something if he had “just stopped breathing.” Instead, Urban stated a

“forceful event” would have caused bleeding in Christian’s skull and the impact site. Urban

recognized Christian’s injuries as child abuse because “a great deal of force . . . would have been

applied to this child, and a reasonable person would know that it was too much.” According to

Urban, a person performing CPR on Christian would not have caused his head injuries. Urban

believed Christian suffered at least one blow and possibly more. She said the hemorrhage in the

scalp and the subdural hemorrhage were not consistent with the child spontaneously stopping

breathing. Urban also believed the burns to Christian’s fingers were consistent with his hand being
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immersed in hot liquid. She also observed healing burns to Christian’s buttocks and lower back.

Urban concluded three-month-old Christian died as a result of blunt force injuries. She ruled the

manner of death to be homicide because Christian’s injuries were consistent with being inflicted

by someone else.

        During his case-in-chief, appellant called Dr. Thomas Young, a forensic pathologist, to

testify. Young stated the theory that shaking a baby causes lethal brain injury has not been

substantiated in any reasonably scientific manner. Young said many studies over the years have

demonstrated that shaking a child with one’s hands does not generate the type of force that will

cause brain injury. Young testified that even minor handling of a child, such as retracting the

eyelids to look at the eyes, may cause an area of bleeding beneath the skin because the child’s

blood-clotting system is being destroyed by whatever is happening in the brain. Young noted Dr.

Urban found no damage to Christian’s neck and spine, which is inconsistent with shaking a baby.

Young stated the physical evidence with regard to Christian’s head was not consistent with a

traumatic, violent event. He also stated a life-threatening event, such as a child suddenly stopping

breathing, is rare but can happen. Young testified that shaking someone to wake them up—as

appellant told the police he did to revive Christian—does not “come anywhere even in the same

ballpark of the kind of forces that would cause brain damage from shaking.” As to the burns on

Christian’s hand, Young said the burns were consistent with both immersion and non-immersion.

        After reviewing the record, we hold that the evidence was sufficient to support appellant’s

conviction. The evidence is undisputed that appellant was the only adult in possession of Christian

at the time he stopped breathing. When an adult defendant has had sole access to a child at the

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

or murder if the child dies. See Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.—Tyler 1995, no

pet.) (where evidence showed child had been left alone with defendant and injuries to child
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occurred approximately thirty minutes prior to child being brought to emergency room, evidence

was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846-47 (Tex. App.—

Austin 1994, pet. ref’d) (undisputed medical testimony placing adult defendant alone with child

when fatal injuries were sustained supported conviction for injury to a child); Butts v. State, 835

S.W.2d 147, 151 (Tex. App.—Corpus Christi 1992, pet. ref’d) (injuries sustained by child

established by medical testimony to have occurred at time adult defendant admitted to sole

possession of child).

       Also, the jury could have reasonably inferred a consciousness of guilt based on Shamira’s

unsuccessful attempts to reach appellant, his calling several people after the 911 call before he

called Shamira, and his waiting almost an hour after the 911 call to finally call her. “Consciousness

of guilt” is “a well-accepted principle that any conduct on the part of a person accused of a crime

subsequent to its commission, which indicates a ‘consciousness of guilt’ may be received as a

circumstance tending to prove that he committed the act with which he is charged.” See Torres v.

State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no writ) (citation omitted) (noting that

consciousness of guilt is one of strongest types of evidence of guilt).

       Finally, the jury was entitled to believe the medical testimony that Christian suffered a

significant trauma to his head, and the trauma was caused by an “affiliated head injury” as opposed

to him merely stopping breathing.       The evidence is undisputed that Christian was already

unresponsive when the paramedics arrived at appellant’s apartment, within minutes of the 911 call,

and the examining physicians agreed the child’s injuries were consistent with a trauma that had

been incurred within minutes of the time paramedics arrived.

       We conclude the jury was rationally justified in finding appellant guilty beyond a

reasonable doubt.



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                                    VENIRE CHALLENGE

       In his second issue, appellant asserts the trial court erred by denying his challenge for cause

of one of the venire members.         Appellant contends the venire member, Stephen Finley,

demonstrated bias based on his dislike of defense counsel on two occasions: first, Finley indicated

he did not like counsel’s insinuation that he had a bias against black people; and second, Finley

agreed he had “checked out” and would hold her being appellant’s mouthpiece against appellant.

A.     Venire Questions

       During voir dire, the following exchange occurred between defense counsel and Finley:

       Counsel: . . . we have the right to come into a courtroom and have a jury of our
       peers, okay, assess all the facts and the evidence and judge our case.

               And my concern as I look myself, as I look at folks sitting on this side of
       the bar and sitting on this side of the bar is that. Because [appellant] is a young
       black man. Rightly, wrongly, I don’t know, I know it’s 2013, and I probably
       shouldn’t have that inclination at all, but the truth is I am concerned about that for
       him. And it’s probably uncomfortable, Mr. Finley, talking about it, I know it is for
       [appellant], [appellant’s] the most uncomfortable in the room, what do you think
       about it?

       Finley: Well, I didn’t even think about it until you brought it up. Are you
       insinuating - -

       Counsel: No, no.

       Finley: See what I mean? Something I hadn’t even thought about until you brought
       it up.

       Counsel: Yeah, because that fact shouldn’t make a hill of beans anywhere at all and
       shouldn’t be noticed, right?

       Finley: Right, and you’re the one bringing it up, though.

       Counsel: Okay. No and I’ve only had concerns, and I bring it up only because I’ve
       had 60 people before and maybe 59 are good with it, don’t think a thought about it,
       but maybe there is 1 person that does and I feel if we don’t know about it, that’s
       unfair to [appellant]. That’s happened before and that’s the truth of it.
       I want to ask, does that fact matter to anybody? Yes, sir?

                                              ...
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       Counsel: [Later in discussing being a good parent] Like you try to do everything
       the right way and it just doesn’t happen sometimes. But that there are good parents,
       right?

       Potential jurors: Yes.

       Counsel: Mr. Finley, what makes you a good parent?

       Finley: Hard to say.

       Counsel: Have you checked out on me?

       Finley: Yes.

       Counsel: That’s honest. Let me ask you this, then, if I can have your attention for
       about 20 more seconds: Are you going to be able to give [appellant] a fair and
       impartial trial, in spite of the fact that you may not - - that I may be his mouthpiece,
       and you’re not going to hurt my feelings?

       Finley: Probably not.

       Counsel: Okay. Fair enough. Okay. Is there anybody that feels like Mr. Finley at
       this point? . . . .

Defense counsel later challenged Finley for cause, and the trial court denied the challenge.

A.     Standard of Review

       When reviewing the denial of a challenge for cause, we examine the record of the voir dire

to determine if there is sufficient evidence to support the trial court’s ruling. Feldman v. State, 71

S.W.3d 738, 744 (Tex. Crim. App. 2002). We review the trial court’s ruling with “considerable

deference” because it is in the best position to evaluate a venire member’s demeanor, attitude, and

tone of voice. See Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007). We grant the trial

court particular deference when the prospective juror’s answers are “vacillating, unclear or

contradictory.” Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); Feldman, 71

S.W.3d at 744.      However, “[t]he record need not establish a venire member’s bias with

unmistakable clarity” to support a challenge for cause. Barefield v. State, 784 S.W.2d 38, 44 (Tex.

Crim. App. 1989).
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       A venire member may be challenged for cause for having a bias for or against the

defendant, or against the law. TEX. CODE CRIM. PROC. ANN. art 35.16(a)(9), (c)(2) (West 2006);

see also Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998) (interpreting “bias against

the law” to mean “refusal to consider or apply the relevant law”). Bias is considered an inclination

toward one side rather than to the other. Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App.

1982). Bias exists as a matter of law when a prospective juror admits that he is biased for or

against a defendant. Id. When a venire member is shown to be biased as a matter of law, he must

be excused when challenged, even if he states that he can set his bias aside and provide a fair trial.

Id.; see Smith v. State, 907 S.W.2d 522, 530 (Tex. Crim. App. 1995). When bias is not established

as a matter of law, the trial court has discretion to determine whether bias actually exists to such a

degree that the prospective juror is disqualified and should be excused from jury service.

Anderson, 633 S.W.2d at 853. However, it is left to the discretion of the trial court to initially

determine whether such a bias exists and the court’s decision will be reviewed in light of all of the

answers given. Anderson, 633 S.W.2d at 853. In deciding on the propriety of the court’s ruling

on challenges for cause during voir dire, we keep in mind that the trial judge has had the

opportunity to observe the tone of voice and demeanor of the prospective juror in determining the

precise meaning intended, while we have only the “cold record.” Briddle v. State, 742 S.W.2d

379, 384 n. 1 (Tex. Crim. App. 1987), indirectly overruled on other grounds, Cockrell v. State,

933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

B.     Analysis

       We conclude appellant did not satisfy his burden. First, the significance of Finley’s answer

that he had not thought about race until counsel brought it up is unclear. Second, Finley’s answer

“Probably not” when asked if he could give appellant a fair and impartial trial in spite of the fact

that counsel was appellant’s “mouthpiece” does not establish bias as a matter of law. Finally,
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because Finley’s alleged bias was not explored after he gave his initial answers, we cannot say

bias actually existed to such a degree that he was disqualified and should be excused from jury

service. On such a “cold record” we must give deference to the trial court’s voir dire ruling when

the trial court heard Finley’s tone of voice and observed his demeanor. Accordingly, we cannot

conclude the trial court abused its discretion by denying appellant’s challenge for cause.

                                     JURY INSTRUCTIONS

       In his third issue, appellant asserts the trial court erred by denying his request for a jury

instruction on criminally negligent homicide, or, alternatively, erred in denying his objection to

the inclusion of mens rea language relating to criminal negligence in the underlying injury-to-a-

child portion of the charge.

A.     Instruction on Criminally Negligent Homicide

       After the defense rested its case, but before the State offered rebuttal witnesses, the trial

court and attorneys discussed the jury charge. Appellant’s attorney asked for an instruction on

criminally negligent homicide as a lesser-included offense. The State responded that if the court

granted that request, then the State wanted an instruction on manslaughter as a lesser-included

offense. The trial court then asked defense counsel if she had an objection to a manslaughter

instruction, to which she responded that she wanted to think about it. The trial court decided to

allow everyone an opportunity to consider and research the requests, and asked the State to prepare

a charge that included both requested instructions and everyone would reconvene after the State

put on its rebuttal witnesses to finalize the charge.

       The next day, because the rebuttal witness was late, the trial court called a recess, and at

some point an “Off-the-record initial charge conference” was held. After the rebuttal witness

testified, the trial court again called a recess and informed the jurors the next order of business was

to finalize the charge. The court told the jurors “while you were on recess this morning, all these
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attorneys and I have worked very hard to get that as close as we can.” The trial court excused the

jurors and then asked the attorneys “[a]nd so by way of a formal charge conference, if you will let

me know what your current objections are to this version of the charge. The Court will take a

position it’s in a substantially final form, at this point.” Defense counsel did not mention, request,

or object to the lack of an instruction on criminally negligent homicide.

       Although appellant initially requested an instruction on criminally negligent homicide as a

lesser-included offense, the record does not contain any ruling by the trial court or an objection by

defense counsel to the lack of such an instruction. Therefore, appellant has not preserved his

complaint for our review. TEX. R. APP. P. 33.1(a).

B.     Mens Rea Language

       During the charge conference that occurred after the rebuttal witness, defense counsel

renewed her objection to the inclusion of the mens rea “criminal negligence” in this instruction:

“A person commits the offense of injury to a child if he intentionally, knowingly, recklessly, or

with criminal negligence, by act, causes bodily injury to a child.” On appeal, appellant argues the

trial court erred by including this phrase because the Texas Pattern Jury Charge does not include

the phrase.

       We use an abuse of discretion standard in reviewing a trial court’s decision to submit or

refuse a jury instruction. The Texas Penal Code states a “person commits an offense if he

intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally,

knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily injury; (2) serious

mental deficiency, impairment, or injury; or (3) bodily injury.” TEX. PENAL CODE ANN. § 22.04(a)

(West Supp. 2014) (emphasis added). A jury charge, such as the one here, that tracks the language

and definitions of the Texas Penal Code is not error. See Martinez v. State, 924 S.W.2d 693, 699

(Tex. Crim. App. 1996) (holding that a jury charge tracking language of particular statute is proper
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charge because “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed

error on the part of the trial judge”). Accordingly, we conclude the trial court did not err in

submitting the instruction it did.

                                   EXTRANEOUS OFFENSE EVIDENCE

           In his final issue, appellant asserts the trial court erred by admitting evidence of burns on

Christian’s buttocks, back, legs, and foot because the evidence was irrelevant and more prejudicial

than probative. 2 Appellant argues the evidence was not relevant because this incident was

investigated by law enforcement, determined to be an accident, and the investigating agency

intended to request a “no bill” from the Dallas grand jury hearing the case but the Denton County

District Attorney’s Office specifically asked the agency to hold the case pending the outcome of

the underlying criminal trial. 3 Appellant also asserts the evidence of the burns lacked any

probative value and had the potential to affect the jury in an irrational and indelible way.

           A trial court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse

of discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). As long as

the ruling of the trial court is within the “zone of reasonable disagreement,” there is no abuse of

discretion, and the trial court’s ruling will be upheld. Id. If the evidentiary ruling of the trial court

is correct on any theory of liability applicable to that ruling, it will not be disturbed. De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

           Generally, extraneous offense evidence is not admissible at the guilt-innocence phase of a

trial to prove a defendant committed the charged offense in conformity with his bad character.


2
    On appeal, appellant does not challenge the trial court’s admitting evidence of burns to Christian’s fingers.
3
 Detective Samuel Todd testified he investigated the burns to Christian’s backside that occurred on February 5, 2011.
He said he did not typically handle child abuse cases, he believed the injury was accidental, and when asked whether
he believed the injury was intentional, he replied, “Not at the time.” He testified the case was on hold, and he
acknowledged the incident occurred before Christian’s hand was burned and he stopped breathing.


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TEX. R. EVID. 404(b); Devoe, 354 S.W.3d at 469. However, this evidence may be admissible when

it has relevance apart from its character conformity. Devoe, 354 S.W.3d at 469. “For example, it

may be admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Id. Whether it has relevance apart from its character

conformity is a question for the trial court. Id. Even if the evidence is relevant apart from its

character conformity, it still may be excluded under Rule 403 if its probative value is substantially

outweighed by the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim.

App. 2003); see also TEX. R. EVID. 403.

        “In all prosecutions for murder, the state or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing and the previous

relationship existing between the accused and the deceased, together with all relevant facts and

circumstances going to show the condition of the mind of the accused at the time of the offense.”

TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West 2005). Notwithstanding Rule 404, in cases

involving injury to a child, “evidence of other crimes, wrongs, or acts committed by the defendant

against the child who is the victim of the alleged offense shall be admitted for its bearing on

relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous

and subsequent relationship between the defendant and the child.” Id. art. 38.37, § 1(a), (b) (West

2014)

        The Court of Criminal Appeals, noting that it is probably “better to be consistent than

right,” has held that “a simple plea of not guilty does not make issues such as intent relevant issues

of consequence for . . . Rule 404(b) purposes . . . .” Robbins v. State, 88 S.W.3d 256, 261 (Tex.

Crim. App. 2002). But cross-examination of the State’s witnesses or presentation of various

defensive theories can place intent at issue. Id.



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          In Robbins, the defendant suggested through vigorous cross-examination of prosecution

witnesses that the victim’s death was not the result of an intentional act by appellant, the victim

could have died from Sudden Infant Death Syndrome, he was treating the victim “kindly” with the

obvious inference being that appellant would not have intentionally harmed the victim, and the

bruises on the victim’s body could have been caused by incorrectly performed CPR efforts to save

her life rather than from an intentional act by appellant. See id. at 258.

          During its examination of whether evidence of prior injuries to the infant victim while in

the defendant’s care was relevant to the element of intent, the Court of Criminal Appeals

considered it “crucial” that the defendant went beyond a simple plea of not guilty by advancing

theories that would explain the infant’s death. See id. at 261. The Court concluded that, through

vigorous cross-examination and the presentation of defensive theories, the defendant put at issue

his intent: “[W]e cannot say that the trial court would have been outside the zone of reasonable

disagreement to have decided that the relationship evidence was relevant to [defendant’s] intent.”

See id.

          Here, we conclude the trial court did not abuse its discretion in deciding the burn evidence

was relevant for the noncharacter conformity purpose of rebutting appellant’s various defensive

theories including the defensive theory that Christian merely stopped breathing. We also conclude

the burn evidence was relevant to show appellant’s prior relationship with Christian. We next

determine whether the probative value of the burn evidence was outweighed by the danger of

unfair prejudice.

          The burn was important to explain the nature of the relationship between appellant and

Christian because appellant argued Christian spontaneously stopped breathing, he did not inflict

Christian’s injuries, and that even if he did so, he did not do so knowingly. Although several

witnesses testified about the burn, it took minimal time to develop the evidence. The burn is
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mentioned in less than eighty pages of a 1400-page record, and each time the burn was mentioned,

the trial court gave a limiting instruction to the jury. In closing, the State did not dwell on the burn

evidence, but asked the jury to consider the evidence for the purpose of deciding appellant’s intent

on the day Christian stopped breathing, lack of mistake, and lack of accident.

        The testimony and photograph of the burn was not so graphic that it would have impressed

the jury in an irrational, yet indelible way, and it was not as disturbing as the testimony about the

injuries that caused Christian’s death. Finally, the State had a compelling need for the evidence

because its case was entirely circumstantial. Thus, after balancing the Rule 403 factors, we

conclude the trial court did not abuse its discretion by overruling appellant’s objection to the burn

evidence.

                                          CONCLUSION

        We overrule appellant’s issues on appeal and affirm the trial court’s judgment.


                                                    Sandee Bryan Marion, Justice

Do not publish




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