                                                         PD-1514&1521&1522&1523-15
PD-1514&1521&1522&1523-15                                 COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 11/23/2015 10:31:48 AM
                                                         Accepted 11/23/2015 11:41:00 AM
                                                                           ABEL ACOSTA
           IN THE COURT OF CRIMINAL APPEALS      OF TEXAS                          CLERK
                         AUSTIN, TEXAS

  CANDRA NICOLE APPLEGATE,
                 APPELLANT

                                 NO. __________________________
                                (COURT OF APPEALS NOS. 11-14-
                                00005-CR, 11-14-00006-CR, 11-14-00007-
                                CR, & 11-14-00008-CR; TRIAL COURT
                                NOS. 010734,010735,010736, & 010738)
 STATE OF TEXAS,
       APPELLEE
                   **************************************
                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                      ELEVENTH JUDICIAL DISTRICT
                            EASTLAND, TEXAS
                   **************************************
                 CHIEF JUSTICE JIM R. WRIGHT, PRESIDING
        *********************************************************
         APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
        *********************************************************
                                     STAN BROWN
                                     P.O. BOX 3122
                                     ABILENE, TEXAS 79604
                                     325-677-1851
                                     FAX 325-677-3107
                                     STATE BAR NO. 03145000
                                     EMAIL: mstrb@aol.com


                                     ATTORNEY FOR APPELLANT

       November 23, 2015
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS


CANDRA NICOLE APPLEGATE,
               APPELLANT

                                NO. __________________________
                                (COURT OF APPEALS NOS . 11 -14-
                                00005-CR, 11-14-00006-CR, 11 -14-00007-
                                CR, & 11-14-00008-CR; TRIAL COURT
                                NOS. 010734,010735,010736, & 010738)
STATE OF TEXAS,
      APPELLEE

             IDENTITY OF JUDGE, PARTIES, AND COUNSEL

    Hon. Brooks Hagler          Stan Brown
    259th District Court        Appellant' s Attorney/ Appeal
    Jones County Courthouse     P.O. Box 3122
    Anson, TX 79501             Abilene, TX 79604

    Joe Edd Boaz                Michael L. Parker
    District Attorney           OFFICE OF ROBERT E. MCCOOL, PLLC
    Jones County Courthouse     237 Market St.
    Anson, TX 79501             Baird, TX 79504

    Candra Nicole Applegate#1906166
    William P. Hobby Unit H208B
    742 FM 712
     Marlin, TX. 76661




                                      II
                                 TABLE OF CONTENTS

SUBJECT                                                                                   PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ........ .. ... .. .......... .ii

STATEMENT REGARDING ORAL ARGUMENT ....................... .... ..v

STATEMENT OF THE CASE ....................................................................... 1

STATEMENT OF PROCEDURAL HISTORY .............................................2

                       UESTION PRESENTED FOR REVIEW

       Did the Court of Appeals fail to deal with the fact the evidence was
insufficient to convict Appellant alone of inflicting the injuries to the
children for the reason there was no charge on the law of parties? (C .R. at
12-13, 24-29)(V R.R.)(VI R.R.)(VII R.R.) .... ...... .. .. .......... .. .. .. .. .. . .. .. ..3

PRAYER FOR RELIEF ..................................................................................9

CERTIFICATE OF SERVICE ................ ...... ..................................................9

CERTIFICATE OF COMPLIANCE ....... ... .. .. ...... ........... .... ..... . .... 10




                                                Ill
                               INDEX OF AUTHORITIES
CASES                                                                                      PAGE
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) ...................................................................................3

Beltran v. State,        S.W.3d                    , 2015 WL 5955015 (Tex .
Crim. App. October 14, 2015) ........... .. ... .. .. ..... ..... .. .. ..... ... . .. .. . ... .. ..5

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................... .3

Collier v. Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987) ...... ...... ....... . .... 3

Fuller v. State, 73 S.W.3d 250 (Tex. Cr. App. 2002) ............................3

Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560 (1979) . .. 3

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) .................... .4

McMillan v. State, 754 S.W.2d 422 (Tex . App .-Eastland 1988, pet.
refd) ...... ........... ... ....... .. ..... ..... ........................ ........... ...4 -5, 7-8

Walker v. State, 823 S.W.2d 247 (Tex. Crim. App . 1991) .......................5

Zapata v. State, 449 S.W.3d 220 (Tex. App.-San Antonio 2014, no pet.) .....5

CONSTITUTIONAL PROVISIONS & RULES                                                          PAGE
U.S. CONST. amend. XIV ......... ..... ... ......... .. .. ...... ....... ....... .passim

Tex. R. App. P. 9.4 ............ .. .............. ..... ... .. .. ... ........ ....... . .. ..... 10

Tex. R. App. P. 66.3(c) .... ....... .. ....... ............................................4




                                                 IV
             STATEMENT REGARDING ORAL ARGUMENT

     Appellant believes the QUESTION PRESENTED; the constitutional

relationship between an instruction on the law of parties and sufficiency of the

evidence; is an issue that merits further clarification for the Bench and Bar.

Therefore, the usual give and take of oral argument would be useful for the Court

in determining the parameters of measuring the sufficiency of proof as against the

allegations presented, and in the absence of a charge on parties when the issue was

obviously raised. Oral argument is essential in order to aid this Court's decisional

processes by providing a more in-depth exploration of that issue .




                                           v
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS
CANDRA NICOLE APPLEGATE,
               APPELLANT

                                    NO. ___________________________
                                    (COURT OF APPEALS NOS. 11-14-
                                    00005-CR, 11-14-00006-CR, 11-14-00007-
                                    CR, & 11-14-00008-CR; TRIAL COURT
                                    NOS. 010734, 010735,010736, & 010738)
STATE OF TEXAS,
           APPELLEE
                     **************************************
                     PETITION FOR DISCRETIONARY REVIEW
                         FROM THE COURT OF APPEALS
                         ELEVENTH JUDICIAL DISTRICT
                             EASTLAND, TEXAS
                     **************************************
                          STATEMENT OF THE CASE

          The indictments alleged Appellant caused bodily injury to a child

    under fourteen, TLW, by fracturing her arm, and caused her serious bodily

    injury by fracturing her leg, and by failure to seek medical attention.

    Causing bodily injury to DLW was similarly alleged, by fracturing his arm.

    (C.R. at 12-13) The jury found Appellant guilty on August 8, 2013 . (C.R. at

    10). On December 9, 2013, the trial court assessed Appellant's punishment

    at ten years TDCJ-ID on both bodily injury charges, and to twenty-six years

    on both serious bodily injury charges, and sentenced her accordingly. (C.R.

    at 11, 29-31).    The Trial Court's Certifications of Defendant's Right of

    Appeal were timely filed (C.R. at 28-30). Appellant seeks review of the

    decision of the Court of Appeals that affirmed the convictions.
              STATEMENT OF PROCEDURAL HISTORY


      Appellant presented two issues in her brief, and the Eastland Court of

Appeals affirmed .    Applegate v. State, 2015 WL 6121522 (Tex. App.-

Eastland      September        30,     2015)(Unpublished         Memorandum

Opinion)(Appendix). Appellant filed a motion for rehearing October 15,

2015, which was denied without written opinion October 22, 2015. This

petition is due to be filed by November 23, 2015; it is therefore timely filed.




                                      2
                        UESTION PRESENTED FOR REVIEW

     Did the Court of Appeals fail to deal with the fact the evidence was
insufficient to convict Appellant alone of inflicting the injuries to the
children for the reason there was no charge on the law of parties? (C.R. at
12- 13, 24-29)(V R.R.)(VI R.R.)(VII R.R.).

                                        ARGUMENT

          Due Process of Law demands the recognition by this Court the State

must prove what it alleges in order to lawfully obtain a conviction . That is

the gravamen of the basic case law governing sufficiency of the evidence in

this case. Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781 , 61 L.Ed.2d 560

(1979); Brooks v. State, 323 S.W.3d 893 (Tex . Crim. App. 2010) ; Fuller v.

State, 73 S.W.3d 250 (Tex. Cr. App. 2002); and see generally, Collier v.

Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987) 1 and Apprendi v. New Jersey ,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).2                                By its

determination at pages six and seven of the Slip Opinion, "The focus is on

the result of the defendant's action and his culpable mental state, not on the


1
    Collier v. Poe, supra, at 343-344, held Due Process rights belo ng to the individ ual, no t
the State.
2
   Apprendi held the Fourteenth Amendment's Due Process clause req uires any fact that
increases the penalty fo r a state crime beyo nd the prescri bed statutory maximum--other
than the fact of a prior conviction--must be submitted to a jury and proved beyond a
 reasonabl e doubt. "Any possible distinction between an 'element' of a felo ny offense and
a 'sentencing factor' was unknown to the practice of criminal indictment , tri al by jury , and
judg ment by court as it existed during the years surro unding o ur Nation's fo unding . As a
general rule , crimina l proceedings were submitted to a jury after bei ng initi ated by an
indi ctment containing 'all the facts and circ umstances which constitute the offe nce , .. .
stated with such certainty and precision , that the defendant . . . may be ena bl ed to
determine the species of offence they constitute, in order that he may pre pare his defence
accordingly . .. a nd that there may be no doubt as to the judgment which should be given,
if the defe ndant be convicted .' ... The defendant's ability to predict with certa inty the
judgment from the face of the felony indi ctment fl owed f rom the invariabl e lin kage of
punishment with crime .. .(after verdict, and barring a defect in the indictme nt , pardo n o r
benefit of clergy, "the court must pronounce that judgment, which the law hath annexed


                                               3
    precise act or the nature of the conduct committed by the defendant," and by

reliance on Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) 3 for

that assertion , the court below decided an important question of state and

federal law that conflicts with the foregoing applicable decisions of this

Court and the Supreme Court of the United States. Tex . R. App. P. 66.3(c) .

          The Court of Appeals , we respectfully suggest, failed to sufficiently

address our argument the evidence could only have been sufficient to sustain

Appellant' s conviction had the jury been instructed on the law of parties.

That was the reason for our extensive reference to the McMillan case in

Appellant's Brief. See generally, McMillan v. State, 754 S.W.2d 422, 423-

424 (Tex. App.-Eastland 1988, pet. refd) , wherein the Eastland Court of

Appeals concluded, after summarizing the evidence that made plain it was

either the appellant, her husband , or both in concert who stole the diamond

in question in that case, "Looking at the evidence in the light most favorable

to the prosecution , we find that a rational trier of fact could have found

appellant guilty beyond a reasonable doubt under the law of parties ." /d . at

424. (Emphasis supplied).

         The instant case, as well, involved a husband and wife accused of the

same offense. Both cases included testimony that clearly established the

offense was committed by either one or the other spouses, or by both


to the crime" (Emphasis supplied)) ." /d . 530 U.S. at 478-479. (Footnote and c itations
omitted) .
3
 Johnson merely held a variance between the cha rging instrument alleging the d ef e ndant
hit the vic tim with his ha nd and the act proved at trial , that defendant threw the victim
against wall , was a result of an immateri al no n-statutory allegation and thus did not
render the e vidence legally insufficie nt to support the convic tio n.


                                             4
    spouses. The significant difference, however, is the trial court in McMillan

    charged the jury on the law of parties, which charge was neither requested

    by the State, nor charged, in this case. In the absence of a charge on parties,

    the evidence was absolutely insufficient to establish beyond a reasonable

doubt Appellant acting alone caused the injuries in question. Appellant's

husband (VII R.R. at 157-159, the husband's mother (V R.R. at 159), and the

Texas Ranger (VII R.R. at 239) all agreed the injuries could have been

caused by Appellant alone, Appellant's husband alone, or both in concert.

          And case law makes plain a charge on the law of parties does in fact

lessen the State's burden of proof.           See generally, Walker v. State, 823

S.W.2d 247 (Tex. Crim. App. 1991) which held the evidence failed to

support the appellant's conviction in light of the charge allowing the jury to

convict only if they found defendant guilty of his own conduct. See also,

Beltran v. State, _ _ _ S.W.3d _ _ _ , 2015 WL 5955015, Slip Op.

4-5 (Tex. Crim. App. October 14, 2015)("The law of parties applies to the

determination of whether a defendant can be found guilty, either acting

alone or together with another as a party ... " /d. at 6).4

          Daniel Wright, Appellant's husband, acknowledged he was also under

accusation of injury to a child involving the twins. "[S]everal indictments of

injury to child." (VII R.R. at 97-98). Then Wright conceded; following the

discovery the twins had numerous broken bones necessitating surgery, both

4
  cf. Zapata v. State , 449 S.W.3d 220, 226-227 (Tex. App.-San Antonio 2014, no
pet.)(When a conviction under the law of parties is authorized by the indictment and
evidence, it must be considered in determining whether submission of a jury instruction
on a lesser-included offense is authorized.)


                                          5
CPS and law enforcement were getting involved, and both he and Appellant

were charged with injury to the twins; he had called Appellant and left a

message. That message was he was sorry and it was entirely his fault. He

claimed, however, that was not an admission of injury to either of the twins,

but instead it was his way of telling Appellant it was his fault the

relationship between them was over. (VII R.R. at 158-163).

       Wright also agreed that prior to the birth of the twins, he had a rule he

would not handle babies under the age of one year. "The issue I had with

that is I felt-- I didn't feel comfortable holding infants under a year old . So I

did, I set a rule. I didn't carry them around. I did hold my niece and nephew,

but it was sitting in a chair at the hospital or at their houses on a couch. I

didn't carry them around or things like that. I didn't feel comfortable doing

that." (VII R.R. at 173). He also emphatically stated he had never witnessed

Appellant "be physically rough or injure these children." (VII R.R. at 175).

Furthermore, there were numerous times when Appellant would leave the

twins in his care, "Every couple of few days she would go for 30, 45

minutes," to "walk at the track." "[S]he just went a few times a week." (VII

R.R . at 178-179). He agreed he told the police he did not think he had done

anything to injure either of the twins, but if he had, it was accidental. (VII

R.R. at 188-189) . He agreed there was never a time when Appellant was

supposed to take the children to the doctor and did not. (VII R.R. at 196).

      At page 8 of the Slip Opinion, the Court of Appeals recognized,

"Ranger Parker testified that either Appellant or Daniel or both Appellant



                                       6
and Daniel were the only people that could have inflicted the twins'

injuries." Other than that scant reference, the court below failed to deal with

our primary sufficiency argument that when it is plain from the evidence in

all likelihood DLW's and TLW's arms were fractured by either Appellant

alone, Daniel Wright alone, or the two of them together, a jury cannot

rationally find beyond a reasonable doubt Appellant alone caused the

injuries. That is particularly compelling in view of there being no evidence

specifically pointing to Appellant as the perpetrator, and with no charge on

the law of parties. The court below should have considered and discussed

McMillan. The Slip Opinion, however, does not even cite the case.

      McMillan v. State, 754 S.W.2d 422, 423-424 (Tex. App.-Eastland

1988, pet. refd), however, must be considered, particularly in view of the

absence of any charge on the law of parties in Appellant's case here:

       Appellant and her husband were both indicted for the theft of
       Mrs. Nita Neyland's diamond. They were tried jointly, and the
      jury was instructed on the law of parties. Appellant and her
      husband were both convicted of the offense ... Appellant and her
      husband were driving from La Grange to Lubbock on New
      Year's Day. They stopped at the Briscoes' home .. .late in the
      afternoon and immediately went to the bathroom. To get to the
      bathroom, they went through the bedroom where the Neylands
      were staying and where the jewelry had been left. .. Before
      leaving, appellant, who was five months pregnant, again went
      to use the bathroom ... Three or four minutes after the couple's
      departure, Mrs. Neyland went to her bedroom where she
      discovered her diamond was missing .. .In the case before us,
      the appellant and her husband alone had access to the bedroom
      where the jewelry was. Although appellant and her husband
      each denied taking the diamond, no one else was present in the
      house on New Year's Day other than the appellant and her
      husband, the owners of the house, and the victim and her
      husband ... No one other than appellant and her husband entered
      the bedroom between the time the diamond was last seen and

                                      7
      when it was discovered missing. Appellant's behavior changed
      after her last trip to the bathroom ... Looking at the evidence in
      the light most favorable to the prosecution, we find that a
      rational trier offact could have found appellant guilty beyond a
      reasonable doubt under the law of parties. ld. at 423-424.
      (Emphasis supplied) .

      There was no objection to the charge by the State, and no request for

submission of a charge on the law of parties. (VIII R.R. at 64) . Plainly, the

court below should have considered our core argument based upon

McMillan, absent a charge on parties, the evidence was insufficient to

support the convictions of Appellant for causing the injuries by acting alone .

The failure to so do requires review by this Honorable Court in order to

clarify the crucial relationship between the law of parties and Due Process

sufficiency of the evidence for the Bench and Bar.




                                      8
                         PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court grant discretionary review and oral argument and, after

full briefing on the merits, issue an opinion reversing and this conviction to

show a judgment of acquittal, or, alternatively, remand this cause to the

Court of Appeals for a proper sufficiency analysis.

                                         Respectfully submitted,
                                      /s/ Stan Brown
                                      STAN BROWN
                                      P.O. BOX 3122
                                      ABILENE, TEXAS 79604
                                      325-677-1851
                                      FAX 325-677-3107
                                      STATE BAR NO. 03145000
                                      EMAIL: mstrb@aol.com

                                      ATTORNEY FOR APPELLANT

                     CERTIFICATE OF SERVICE

       I hereby certify that on this  23rd day of November, 2015, a true
and correct copy of the above and foregoing Petition for Discretionary
Review was emailed to Mr. Joe Edd Boaz, District Attorney, P.O. Box 507,
Anson, TX 79501 at laura.davis@co.jones.tx.us; and to Ms. Lisa McMinn,
State Prosecuting Attorney, at information@spa.texas.gov.

                                      IS/ Stan Brown
                                      STAN BROWN




                                     9
                  CERTIFICATE OF COMPLIANCE

       I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App . P. 9 .4, is  1893 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
                                      IS/ Stan Brown
                                      STAN BROWN




                                    10
APPENDIX
Opinion filed September 30,2015




                                       In The


        eltbtntb ~ourt of appeals
                  Nos.11-14-00005-CR, 11-14-00006-CR,
                   11-14-00007-CR, & 11-14-00008-CR


              CANDRA NICOLE APPLEGATE, Appellant
                                         v.
                     THE STATE OF TEXAS, Appellee

                   On Appeal from the 259th District Court
                             Jones County, Texas
           Trial Court Cause Nos. 010734, 010735, 010736, & 010738


                     MEMORANDUM OPINION
      The jury convicted Candra Nicole Applegate of two third-degree felony
offenses of bodily injury to a child and two first-degree felony offenses of serious
bodily injury to a child. The trial court assessed punishment at confinement for ten
years for each of the convictions for bodily injury to a child and confinement for
twenty-six years for each of the convictions for serious bodily injury to a child. The
trial court sentenced Appellant and ordered that the sentences run concurrently.
Appellant challenges all four of her convictions on sufficiency grounds. She also
claims, in all four appeals, that improper comments by the trial judge fundamentally
harmed her case. We affirm all four of her convictions.
                               I. The Charged Offenses
       The grand jury, in two separate indictments, alleged that Appellant
intentional1y or knowingly caused her child, T.L.W., to suffer (1) serious bodily
injury when Appellant fractured T.L. W. 's leg and (2) bodily injury when Appellant
fractured T.L.W.'s arm. The grand jury also alleged in a third indictment that
Appellant intentionally or knowingly caused another of her children, W.L. W., to
suffer bodily injury when she fractured his arm. The grand jury alleged, in the
indictments, that the injuries were sustained by "manner and means unknown to the
Grand Jury." The grand jury also indicted Appellant on a fourth offense, alleging
that she intentionally or knowingly, by omission, caused serious bodily injury to
T.L. W. when Appellant failed "to provide the child with medical care." As T.L.W. 's
mother, Appellant had a statutory duty to ensure that T.L. W. received medical care.
       A person commits an offense if she "intentionally, knowingly, recklessly, or
with criminal negligence, by act or intentionally, knowingly, or recklessly by
omission, causes to a child" serious bodily injury or bodily injury. TEX. PENAL CODE
ANN . § 22.04(a)(l), (3) (West Supp. 2014). If the person causes serious bodily
injury, then the offense is a felony of the first degree. /d.§ 22.04(e). The offense is
a felony of the third degree if the person causes bodily injury. /d. § 22.04(f). For
the State to prove the offense of serious bodily injury caused by omission, a
defendant must have "a legal or statutory duty to act." /d.§ 22.04(b){l). Appellant
pleaded not guilty to all four offenses, and the State prosecuted all four offenses in
one trial.




                                          2
                                         II. Evidence at Trial
         In October 2010, Appellant and Daniel Wright had twin babies: T.L.W., a girl,
and W.L.W., a boy.               Nine months later, Appellant took her twins to see
Dr. Justin Smith for a physical checkup.
         A. Dr. Smith's Testimony
         Dr. Smith noticed a bruise on T.L.W.'s left leg and ordered an X-ray. The
X-ray revealed fractures above and below T.L. W. 's knee. Dr. Smith then ordered a
full skeletal survey, which is a series ofX-rays of the entire body, because he had "a
high suspicion for abuse" and "injury to the child." The full skeletal survey revealed
that T.L.W. had multiple broken bones. Appellant claimed the injuries had been
caused by "lifting the baby by one leg to change [her] diaper." Dr. Smith ordered a
full skeletal survey of W.L. W. as well, and that survey also revealed numerous
fractured bones. T.L.W. and W.L.W. had a combined total of fifteen fractured
bones.      Dr. Smith testified that the twins did not show signs of osteogenesis
imperfecta or brittle bone syndrome. 1
         B. Dr. Dumas 's Testimony
         Doctor Michel Dumas, a radiologist, interpreted the full body skeletal surveys.
Dr. Dumas opined that, in cases of children under one year of age, an "abnormal
skeletal survey ... raises a suspicion of child abuse." He held that opinion because
such children are not "able to walk and run and play and jump off of things." He
also explained that "there's got to be some good explanation for how that child had
a force that could break a bone applied to one of its limbs or bones." Dr. Dumas
then described T.L.W. 's and W.L. W. 's injuries.



        1
        0steogenesis imperfecta is a condition that causes brittle bones and can increase the likelihood of
broken bones from even minor trauma.

                                                    3
       T.L. W. 's left arm had several fractures in it. Dr. Dumas believed the injuries
occurred "at least several days," and in some cases, many weeks, prior to the X-rays
being taken. He agreed that the fractures were caused by a "twisting motion of
tremendous force" or a "snapping motion of tremendous force," but he could not
explain exactly how the injuries occurred. T.L.W.'s right femur had also been
fractured; the wound had healed with a 30-degree bend in it so that the leg was now
abnormally shaped. Dr. Dumas testified that, if the injury had received prompt
medical care, the injury would not have healed with a "permanent angular
deformity." Finally, he agreed that the wound caused protracted loss of the use of
the limb.
      Dr. Dumas also described "comer fractures" found in T.L.W. ' s left leg.
Comer fractures are specific for child abuse because they come "from a twisting
injury or a pulling injury that you would typically only see in a situation where a
child is maybe swung by their leg or having their leg twisted with such force as to
induce pain." Dr. Dumas agreed that there is "a tremendous amount of physical
force" needed "to cause a comer fracture. " Dr. Dumas believed the comer fractures
suffered by T.L.W. were "not accidental trauma" and were not the result of
horseplay.   Dr. Dumas remarked that T.L.W. had "the most dramatic comer
fractures" that he had ever seen, or heard of, in medical case studies; he also agreed
that an adult woman could inflict such injuries. Dr. Dumas explained that "every
textbook and research [study] says that [comer fractures are] highly speci fie for child
abuse."
      Dr. Dumas then testified that W.L.W. had also suffered four comer fractures
in his legs. Furthermore, W.L. W. 's right hand exhibited an injury at least three to
four weeks old that, if seen in an adult, Dr. Dumas opined would be consistent with
a hammer striking the hand. Dr. Dumas described the injury as "a very unusual


                                           4
fracture for a child." W.L.W. had also suffered a fracture in his left forearm that
appeared to be about a month old. Dr. Dumas opined that W.L.W.'s injuries were
not accidental.
         C. Ms . Brooks's and Ms. Cosby's Testimony
        Julia Elaine Brooks, Daniel's mother and the twins' grandmother,
acknowledged that someone had abused the twins. Elaine indicated that only Daniel
or Appellant could have been responsible for the abuse. Elaine explained that M.C.,
Appellant's two-year-old daughter and the twins' half-sister, lived with her and her
husband, George Brooks, after doctors discovered that M.C. had a broken collarbone
and had substantial bruises all over her body. 2 Elaine never saw Daniel or Appellant
be "physical" with M.C. But when Elaine and George would drive M.C. by
Appellant and Daniel's home on the way to drop her off at school, M.C. would
become terrified. M.C. would beg them not to return her to Appellant and Daniel.
George corroborated this testimony.
        Ashly Cosby was Appellant's cousin by marriage, and she knew Appellant
and the twins well. She noticed that "[a] lot of times" the twins had bruises on their
bodies. Appellant and Daniel claimed that the twins' cribs caused the injuries.
Cosby let Appellant use a mesh playpen for the twins to sleep in because it never
caused bruises on Cosby's children. Nevertheless, the twins continued to have
bruises.
        Cosby testified that Appellant stayed at home to take care of her twins until
Appellant lost custody of them. But Daniel worked during that time period.
Appellant admitted to Cosby "that Daniel was never alone with the children except
on a few rare occasions." Appellant also indicated that Daniel did not interact much
with the twins. In contrast, Appellant "was with the twins all the time." Cosby

        2
          T he grand jury indicted Appellant for intentionally or knowing ly causing bodily injury to M.C.,
but the tria l court granted an instructed verdict as to that charge and it is not a subject of this appeal.

                                                     5
reviewed pictures of the twins, which were taken in the months prior to July 2011;
she pointed out various bruises on their bodies and faces. After the twins were
removed from Appellant and Daniel's custody, Cosby took care of the twins for a
couple of months. During those months, Cosby never recalled the twins having any
bruises.
      Cosby agreed that Appellant never seemed like she was not "trying her best,"
and Cosby never saw Appellant exhibit violent behavior toward the children. Cosby
felt comfortable enough to leave her own children with Appellant on a "handful" of
occasions- meaning less than ten times. Cosby observed that Daniel did not seem
comfortable with the twins and that M.C. "always seemed very afraid of him."
Cosby recalled that Daniel was alone with the twins once when she and Appellant
left one evening to walk at the track.
      D. Testimony ofTwins 'Father and of Ranger Parker
      Daniel believed that Appellant suffered from post-partum depression after the
birth of the twins. He testified she failed to take her prescribed medication and
appeared depressed and "stressed out." Daniel claimed that, for the first nine months
of the twins' lives, he worked multiple jobs, and Appellant was with the twins "24
and 7." Once while Daniel was at work, Appellant called him eight or nine times
and asked him to return home because she could not care for the children. On one
occasion, Daniel came home for lunch and found W.L.W. lying on the ground; "his
right foot was split open pretty good." Daniel remarked that the cut was so deep that
it "looked like maybe it was to the bone." Appellant appeared unaware of this
serious injury until Daniel brought it to her attention. In response, she told Daniel
dry skin caused the wound.
      On another occasion, Appellant called Daniel at work because M.C. was
"unruly and screaming, yelling." Daniel went home to find M.C., hiding in her


                                         6
room, with a handprint on the side of her face; M.C. was crying and screaming.
Daniel also noticed swelling and knots on W.L.W.'s body at various times. When
he questioned Appellant, Appellant said M.C. or a toy had caused the injuries.
Daniel testified about a specific occasion when he had T.L.W. on his shoulders and
she threw herself back. He had to hold onto her by one leg as he grabbed her with
his other arm. T.L. W. was shaken and startled but did not "yell out and scream in
pain." He said that T.L. W. was not injured at that time.
       Daniel admitted that the twins had been abused. He further admitted that only
Appellant or he could have caused the twins' injuries, but he denied that he caused
any of their injuries. He said that the only other person that could have injured the
twins "would be [Appellant]." Shortly after the twins' injuries were discovered and
they had been removed from Daniel and Appellant's custody, Daniel left a message
on Appellant's phone stating that he was sorry and "[t]his is all my fault." Daniel
explained that he apologized for their relationship ending and Appellant being upset.
He also said he was "[e]xtremely upset to the point of tears" when he learned of the
twins' injuries.
      Michael Parker, of the Texas Rangers, investigated the twins' injuries. As
part of his investigation, he interviewed Daniel. Daniel told Ranger Parker that he
was never physically abusive or violent with the twins. Daniel also claimed that he
was never physically abusive or violent with M.C. Daniel rejected the notion that
M.C. was afraid of him. Daniel said that he loved her and thought she was a
wonderful child.
      Ranger Parker testified that he learned that Daniel was sometimes alone with
the twins and M.C. This situation occurred when Appellant ran errands or walked
at the track in the evenings. Ranger Parker also learned that Appellant had told
Dr. Smith that she had never left the twins alone with Daniel. Dr. Smith also testified


                                          7
that Appellant had told him she had never left the twins or M.C. alone with Daniel.
Ranger Parker testified that either Appellant or Daniel or both Appellant and Daniel
were the only people that could have inflicted the twins' injuries. He also thought
that Appellant should have noticed the twins' numerous bone fractures .
                                III. Standard of Review
       We review the sufficiency of the evidence under the standard of review in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288- 89 (Tex. App.-
Eastland 2010, pet. ref d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; lsassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
201 0). The trier of fact is the sole judge of the weight and credibility of the evidence.
Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326). A reviewing
court may not reevaluate the weight and credibility of the evidence and substitute its
own judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). The reviewing court must presume that the factfinder resolved
any conflicting inferences in favor of the prosecution and defer to that resolution.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
                             IV. Discussion and Analysis
      Appellant first challenges, in her four appeals, the sufficiency of the evidence
to support her convictions. In her second issue in each appeal, Appellant argues that
the trial court's comment about her "boilerplate" rights, such as her presumption of
innocence and her right against self-incrimination, fundamentally harmed her




                                            8
because it "de-emphasiz[ed]" the importance of those rights. We will address her
sufficiency issues first.
       A . lssue One: Sufficiency of the Evidence
       Appellant advanced three arguments under her sufficiency challenges. She
first argues the evidence indicated "that Appellant alone, Daniel Wright alone, or the
two of them in conjunction in all likelihood, caused" the injuries to the children. She
claims the jury' s finding that Appellant individually caused the injuries was not
rational. Appellant concludes that, because the State did not include an instruction
on the law of parties in the jury charge, the jury was precluded from finding her
guilty of the offenses charged.
              1. Appellant's First Sufficiency Argument
       The grand jury alleged that Appellant was responsible for the injuries to her
twins. The State did not assert that Appellant and Daniel jointly caused the twins'
InJuries.   Rather, the State argued that Appellant caused the injuries, and she
admitted that she alone could have committed the offenses.
       Serious bodily injury is a "bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or
impairment ofthe function of any bodily member or organ."         PENAL§    1.07(a)(46).
Injury to a child is a result-oriented offense that requires a mental state that relates
not to the specific conduct but to the result of that conduct. Alvarado v. State, 704
S. W.2d 36, 39 (Tex. Crim. App. 1985). A person acts intentionally, or with intent,
with respect to a result of his conduct when it is his conscious objective or desire to
cause the result.   PENAL§   6.03(a) (West 2011). A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result. /d . § 6.03(b). In a circumstantial evidence
case, it is not necessary that every fact point directly and independently to the


                                           9
appellant's guilt; it is sufficient if the conclusion is warranted by the combined and
cumulative force of all the incriminating circumstances. See Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004).
       Testimony from medical experts that "significant force" and a "great deal of
force" were used to cause a child's injuries is sufficient evidence to prove intent to
cause serious bodily injury. Morales v. State, 828 S.W.2d 261, 265 (Tex. App.-
Amarillo 1992), aff'd, 853 S.W.2d 583 (Tex. Crim. App. 1993); see also Sandoval v.
State, No. 14-12-00879-CR, 2014 WL 3870504, at *6 (Tex. App.- Houston [14th
Dist.] Aug. 7, 2014, no pet.) (mem. op., not designated for publication). In addition,
a jury may infer intent or knowledge based on the occurrence of a previous similar
injury. See Morgan v. State, 692 S.W.2d 877, 881 - 82 (Tex. Crim. App. 1985).
Evidence that a defendant was alone with a child when the injury occurred provides
an inference that the defendant caused the injuries sustained. See Nadal v. State, 348
S.W.3d 304, 315 (Tex. App.- Houston [14th Dist.] 2011 , pet. ref d); Flores v. State,
102 S.W.3d 328, 335- 36 (Tex. App.-Eastland 2003, pet. ref d). And avoidance of
Child Protective Services allows for an inference of actions that constitute knowing
activity. See Sandoval, 2014 WL 3870504, at *6.
      Dr. Dumas agreed that the fractures were caused by a "twisting motion of
tremendous force" or a "snapping motion of tremendous force." T.L.W. suffered
protracted loss of use of her leg because she did not receive prompt medical attention
after she sustained the injury. Dr. Dumas further testified that the twins' injuries
occurred at different times with a range from days to more than a month before the
X-rays were taken. Appellant was with her twins "24 and 7," while Daniel was
rarely, if ever, alone with the twins.
      Daniel testified about occasions when Appellant called him to say that she
could not care for the children; he would come home to find the twins or M.C.


                                         10
injured. Cosby testified that Appellant rarely took her twins out in public. When
Cosby asked her why, Appellant "said that she felt like she couldn't go in public
very often with the kids because CPS was always called." Appellant then went on
to acknowledge that she was nervous "[b]ecause the kids have bruises." We also
note that M.C. had previously suffered an unexplained broken collarbone and had
bruising all over her body. With this evidence and the other evidence we have
outlined, we conclude that a rational trier of fact could have found beyond a
reasonable doubt that Appellant intentionally or knowingly caused not only bodily
injury but also serious bodily injury to both of her twins.
                     2 . Appellant's Second Sufficiency Argument
       Appellant claims that she could not be expected to know that T.L .W . needed
medical care because it took X-rays to discover her injuries. We agree with the
State's contention that this argument is without merit in light of our conclusion that
the evidence was sufficient to support the finding that Appellant knowingly or
intentionally caused bodily injury and serious bodily injury to T.L. W. Dr. Dumas
testified that T.L. W. 's right femur had been fractured at least several weeks prior to
its discovery and that it had healed with a "permanent angular deformity," due in
part to the delay in receiving medical attention. See Thompson v. State, 227 S.W.3d
153, 161 (Tex. App. -Houston [1st Dist.] 2006, pet. refd) (failure to provide
medical care to the child aggravated the injury and hindered recovery).
      Cosby testified that, when T.L.W. was six or seven months old, she would cry
and appeared to be in pain when someone would touch her leg. J ena Clendenen,
Appellant' s half-sister testified that T.L. W. 's right leg was not straight; and Ranger
Parker said Appellant should have noticed that her babies had as many bone fractures
as they did. See Johnston v. State, 150 S.W.3d 630, 636 (Tex. App. -Austin 2004,
no pet.) (considering as factors the victim' s "sickly appearance, distended abdomen,


                                           11
and inability to hold himself up or hold down food and water" in the days prior to
receiving medical care in finding the evidence sufficient to support a conviction for
causing serious bodily injury by failure to render care to a child).           T.L.W. 's
deformity in her leg was apparent without X-rays. Appellant knew or should have
known of the extent ofT.L.W. 's injuries and ofT.L.W. 's need for medical attention.
Appellant's failure to provide medical care caused T.L.W. serious bodily injury.
                    3 . Appellant's Third Sufficiency Argument
      Appellant next argues there is no evidence from a grand jury member to show
that the alleged causation by "manner and means unknown to the Grand Jury" was
actually unknown. Appellant claims that without a grand jury member to testify
about the "manner and means unknown to the Grand Jury," there is insufficient
evidence to support Appellant's convictions. Appellant claims that the "manner and
means unknown" element is not met because the evidence showed that the injuries
were caused by "some sort of twisting" motion.
      Appellant cites two cases to support her argument: Sanchez v. State and
Malik v. State. Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012);
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Both cases address
jury instruction issues. Sanchez involved an indictment that alleged a "manner and
means unknown," but evidence adduced at trial narrowed the range of causation
theories. Sanchez, 376 S.W.3d at 770. Malik involved a jury instruction that
included a definition concerning the defendant's detention, but that issue was one of
evidence and not an element of the offense. Malik, 953 S.W.2d at 240. Appellant
has not challenged the jury instructions given in this case, and Sanchez and Malik
are inapplicable to the sufficiency issue that has been raised by Appellant.
      We have previously explained that the State provided sufficient evidence to
convict Appellant of all four offenses. Dr. Dumas testified that the injuries were not


                                         12
accidental. He also opined that the injuries were caused by "tremendous force" and
were likely the result of abuse. But Dr. Dumas could not testify exactly how the
injuries occurred. As Appellant outlined in her brief, ''No one [at trial] could testify
to any degree of medical certainty as to how the fracture[s] occurred" (emphasis
added). A rational factfinder could have found beyond a reasonable doubt that the
manner and means by which Appellant inflicted the injuries to her twins were
unknown. Therefore, there was no need for testimony from a member of the grand
JUry. We overrule Appellant's first issue in each appeal.
       B.lssue Two: Alleged Improper Judicial Comments
       Appellant argues that comments by the trial court about her "boilerplate"
rights, such as her presumption of innocence and her right against self-incrimination,
fundamentally harmed her because it "de-emphasiz[ed]" the importance of those
rights. Most complaints on appeal must be preserved at the trial level by a timely
request for relief. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). The
procedure to preserve error is "(1) to object when it is possible, (2) to request an
instruction to disregard if the prejudicial event has occurred, and (3) to move for a
mistrial if a party thinks an instruction to disregard was not sufficient." /d. at 99
(quoting Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)) (internal
quotation marks omitted). Only if a timely objection would not have prevented harm
and an instruction to disregard would not have cured the harm, may a party then skip
those steps and go straight to a request for a mistrial. /d.
      The trial court informed the parties in this case, outside the presence of the
jury, of its intention to read to the jury the unique portion of each separate charge
and of its intention to only read the "boilerplate" portion, common to each charge,
once. The State's attorney remarked to the trial court, "I believe it's the best practice
that the Court reads each jury charge in its entirety[.]" The trial court had an off-


                                           13
the-record discussion with counsel at the bench without the jury being present and
then had the jury brought into the courtroom. The trial judge then read the unique
portion of each charge. He stopped at various spots to indicate that he would read
the portion of the jury charge common to all the offenses once, at the end.
      Prior to reading the portion common to each offense, which the trial court
called the "boilerplate" portion, the trial court again had an off-the-record discussion
with trial counsel at the bench. The trial court then told the jury:
      I am now going to read to you what we refer to amongst us lawyers as
      the boilerplate language. It is still very important, but it's the same
      language in each charge and so I am only going to read it once but it is
      in each of these charges that you will consider today.
At no point in time did Appellant object. When the State indicated its preference to
read each charge in its entirety, a method that would likely have avoided the use of
the phrase "boilerplate" entirely, Appellant's counsel said nothing in response.
Appellant's counsel never requested an instruction to disregard the comment that
referred to "boilerplate" rights. Appellant's counsel also never moved for a mistrial.
And, immediately after the use of the term "boilerplate," the trial court implored the
jury that Appellant's rights were "still very important" and applied to every single
offense charged. The trial court then went on to thoroughly outline and describe
Appellant's rights and the State's burden of proof. We conclude that Appellant
failed to preserve error because he failed to object when the trial court decided to
read the jury charge in the manner described. He also failed to object when the
phrase "boilerplate" was mentioned.      See TEX. R. APP. P. 33.1(a); Unkart, 400
S.W.3d at 99. We overrule Appellant's second issue in each appeal.




                                          14
                                    V. Conclusion
       We have reviewed the record and hold there was sufficient evidence for a
rational jury to find beyond a reasonable doubt that Appellant committed two first-
degree felony offenses of causing serious bodily injury to a child. We also hold there
was sufficient evidence for a rational jury to find beyond a reasonable doubt that
Appellant committed two third-degree felony offenses of causing bodily injury to a
child. We further hold that Appellant waived any complaint about the comments by
the trial court.
                                VI. This Court 's Ruling
       We affirm all four judgments of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


September 30, 2015
Do not publish. See T EX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J .,
Willson, J., and Bailey, J.




                                          15
                               11TH COURT OF APPEALS
                                  EASTLAND, TEXAS
                                     JUDGMENT

Candra Nicole Applegate,                       * From the 259th District
                                                 Court of Jones County,
                                                 Trial Court No. 010734.

Vs. No. 11-14-00005-CR                         * September 30, 2015
The State of Texas,                            * Memorandum Opinion by Willson, J.
                                                 (Panel consists of: Wright, C.J.,
                                                 Willson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that
there is no error in the judgment below. Therefore, in accordance with this
court's opinion, the judgment of the trial court is in all things affirmed.
