Opinion filed March 29, 2019




                                      In The


        Eleventh Court of Appeals
                                   ___________

                               No. 11-17-00067-CR
                                   ___________

                          DARIL OSIAS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 244th District Court
                             Ector County, Texas
                     Trial Court Cause No. C-16-0966-CR


                     MEMORANDUM OPINION
       The jury convicted Daril Osias of the third-degree felony offense of injury to
a child by omission. Appellant elected to have the trial court assess punishment.
The trial court assessed Appellant’s punishment at confinement for six years,
suspended the imposition of Appellant’s sentence, and placed him on community
supervision for six years. Appellant brings four issues on appeal. Appellant
contends that (1) the trial court erred when it denied Appellant’s motion for a
directed verdict, (2) the evidence is legally insufficient to support Appellant’s
conviction, (3) the trial court abused its discretion when it denied Appellant’s motion
for a new trial, and (4) Appellant’s trial counsel was ineffective when he failed to
object to the State’s improper comments during closing arguments. We affirm.
      Appellant and Jessie Brumley are the parents of S.O., the child victim in this
case. Brumley posted a request for baby formula on a Facebook group for mothers.
Lauren McMullen, a member of the group, saw the post and offered to take formula
to Brumley. McMullen testified that, when she arrived at Brumley’s trailer, she
noticed that S.O. was not moving and that his feet were “so tiny”; S.O. was
approximately two and one-half months of age at the time. McMullen “felt like
something was wrong.”        She looked through pictures of S.O. on Brumley’s
Facebook page and noticed that the “skin on his legs w[as] hanging” and that he
appeared “malnourished.”      McMullen contacted Child Protective Services and
reported that she thought that S.O. was not being fed.
      Because of the severity of the conditions that McMullen outlined in her report,
Leslie Nolasco, an investigator with the Texas Department of Family and Protective
Services, made an unannounced visit to the trailer where Appellant lived. After
Nolasco entered the trailer, she noticed that S.O. “hadn’t [been] bathed in days,” that
his “skin was hanging . . . nearly off his bones,” and that, although he was not
crawling yet, he had scratches on his knees. When Brumley attempted to feed S.O.,
Brumley took the bottle out of S.O’s mouth before he could nurse properly, even
though he was trying.
      Nolasco asked Appellant and Brumley to take S.O. to the hospital. Appellant
insisted that S.O. was fine, but he complied with her request. Appellant did not
appear to be concerned that S.O.’s health was at risk.
      After Appellant and Brumley took S.O. to the emergency room, Appellant left
to get food from McDonald’s for himself and Brumley. While at the hospital,
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Brumley was admitted into the emergency room due to stomach pains and vomiting.
When Appellant returned, Appellant stayed with Brumley rather than S.O. Nolasco
took care of S.O. and S.M., S.O.’s older sibling; CPS conducted an emergency
removal of both children.
          Deputy John Rainey of the Ector County Sheriff’s Office testified that, when
he arrived at the hospital to assist Nolasco, he noticed that S.O. was “emaciated,”
had a “real foul odor,” had “a redness and a rash on his genitals,” and had a “pressure
sore right around the tailbone.” Appellant told Deputy Rainey that, on Appellant’s
days off, he fed S.O. three times a day. Brumley told Deputy Rainey that she had
stopped breastfeeding and that, even though she gave S.O. formula, he would “throw
it up.”
          Dr. Vic Wall treated S.O. in the emergency room. Dr. Wall testified that S.O.
was “extremely emaciated and extremely dry” and that S.O. had “already used all of
[his] fat stores and was breaking down muscle tissue.” Dr. Wall diagnosed S.O. with
food deprivation and testified that it would take weeks of starvation to cause S.O.’s
condition.
          Lisa Morgan, the speech therapist who later treated S.O. for his feeding
difficulties, testified that, when S.O. tried to drink from his bottle, milk spilled from
his mouth and that he also coughed and choked when he ate. After Morgan made
some adjustments to his bottle feeding, S.O. improved.
          Dr. Babatunde Jinadu, the pediatrician who supervised S.O.’s subsequent
recovery, suspected child neglect because S.O. was undernourished and
underweight. Dr. Jinadu testified that the lack of opportunity to eat caused S.O. to
be malnourished.
          Deborah Puckett, an investigator with the Ector County Sheriff’s Office,
interviewed Appellant. Appellant told Investigator Puckett that the doctors did not
tell him that anything was wrong with S.O. Appellant claimed that S.O.’s condition
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was normal for someone born in the Philippines. He also told Investigator Puckett
that he believed that S.O. had a genetic condition because Appellant and Appellant’s
father were skinny as well.
      Dr. Jose Benigno, S.O.’s initial pediatrician, testified that there was no basis
for the belief that Philippine babies usually do not gain much weight. Dr. Benigno
first saw S.O. on August 31, 2015, when S.O. was seven weeks old. Dr. Benigno
testified that a neonatal screen should have been done when S.O. was two weeks old;
that did not happen. S.O. weighed six pounds one ounce when Dr. Benigno saw
him. Brumley told Dr. Benigno that S.O. weighed five pounds twelve ounces at
birth. In fact, according to medical records, S.O. weighed six pounds twelve ounces
at birth; Appellant did not correct Brumley’s false information. Therefore, the
medical records and Dr. Benigno’s testimony showed a seven-week weight loss of
some eleven ounces rather than a weight gain. Babies usually gain about four to
seven ounces per week. Dr. Benigno was concerned because S.O. was “irritable,”
“acting hungry,” and was “rooting.”
      Neither Appellant nor Brumley expressed any concerns to Dr. Benigno about
any feeding issues. Appellant and Brumley told Dr. Benigno that Brumley breastfed
S.O. every three hours. Dr. Benigno told Brumley to breastfeed S.O. “at least one
and a half hours to every two hours.” Dr. Benigno asked Brumley and Appellant to
bring S.O. back in one week for a weight check. Neither Appellant nor Brumley
ever brought S.O. back to Dr. Benigno. Dr. Benigno testified that, if he had known
S.O.’s correct birth weight, he would have admitted S.O. to the hospital.
      Appellant and Brumley did see Dr. Benigno on September 29, 2015, but they
did not bring S.O. The purpose of their return to Dr. Benigno was to ask him to
write a letter to the effect that babies “in our race” usually do not gain much weight;
he declined their request because Asian babies gain the same as others.


                                          4
      At the conclusion of the State’s evidence, Appellant orally moved for a
directed verdict. He argued that the State did not prove that Appellant intentionally,
knowingly, or recklessly violated the law. Appellant further claimed that the State
had failed to establish all the required elements of the charged offense. The trial
court summarily denied Appellant’s motion for directed verdict.
      The jury convicted Appellant of injury to a child by omission. After a
punishment hearing, the trial court, as we have said, assessed Appellant’s
punishment at confinement for six years. The trial court suspended the imposition
of the sentence and placed Appellant on community supervision for six years.
      Appellant timely filed a motion for new trial and motion in arrest of judgment
in which he asserted that the verdict was contrary to the law and the evidence and
that the State had failed to prove the elements set forth either in the indictment or in
the charge to the jury. The trial court denied Appellant’s motion without a hearing.
This appeal followed.
      In his first issue on appeal, Appellant claims that the trial court erred when it
denied his motion for directed verdict because the State had failed to prove the
“requisite mens rea for either a third degree felony or state jail felony charge of
injury to a child by omission.” A challenge to a trial court’s denial of a motion for
directed verdict is reviewed under the same standard used to review a legal
sufficiency challenge. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App.
1996).
      In his second issue on appeal, Appellant contends that the evidence is legally
insufficient to support his conviction. He bases his issue on a claim that the State
failed to prove beyond a reasonable doubt that Appellant committed the offense
intentionally or knowingly.
      In his third issue on appeal, Appellant contends that the trial court abused its
discretion when it denied Appellant’s motion for new trial. As he does in his first
                                           5
and second issues, Appellant bases his third issue on an assertion that the evidence
was insufficient to support a conviction.
      Each of Appellant’s first three issues involves claims related to the sufficiency
of the evidence. We will review all three issues together.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth 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 review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all the
evidence admitted at trial, as well as improperly admitted pieces of evidence.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      We review a trial court’s denial of a motion for new trial under an abuse of
discretion standard. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002) (citing
Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986); Etter v. State, 679 S.W.2d
511, 515 (Tex. Crim. App. 1984)). We view the evidence in the light most favorable
to the trial court’s ruling and will not overturn a trial court’s decision to deny a
                                            6
motion for new trial unless the decision falls outside the zone of reasonable
disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).
      A person commits the third-degree felony offense of injury to a child by
omission if he intentionally or knowingly causes bodily injury to a child. TEX.
PENAL CODE ANN. § 22.04(a)(3), (f) (West Supp. 2018). An omission that causes
injury to a child constitutes an offense if the person has care, custody, and control of
the child or a legal or statutory duty to act. Id. § 22.04(b). Intent or knowledge may
be inferred from the acts, words, and conduct of an accused at the time of the offense.
Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (citing Beltran v.
State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980)). Intent may also be inferred
from the extent of the victim’s injuries, the method used to produce the injuries, and
the relative size and strength of the parties. Id. (citing Lindsey v. State, 501 S.W.2d
647, 648 (Tex. Crim. App. 1973).
      The evidence showed that Appellant was S.O.’s father. Therefore, he had a
legal duty to feed S.O. See PENAL § 22.04(b).
      Dr. Benigno was concerned about S.O. because S.O. “was acting hungry” and
was “irritable.” Although Dr. Benigno told Appellant and Brumley that they should
feed S.O. more frequently and that they should bring S.O. back in one week, they
never took S.O. back. Had Dr. Benigno known S.O.’s true birth weight, he would
have hospitalized S.O.; Appellant said nothing when Brumley misinformed
Dr. Benigno of S.O.’s actual birth weight.
      Ultimately, during an unannounced visit to Appellant’s trailer, CPS
Investigator Nolasco noticed, among other things, that S.O.’s “skin was hanging . .
. nearly off his bones.” She instructed Appellant and Brumley to take S.O. to the
emergency room. Appellant claimed that there was nothing wrong with S.O. but
agreed to take him to the emergency room.
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       Dr. Wall described S.O. as “extremely emaciated and extremely dry” and said
that S.O. had “already used all of [his] fat stores” and “was breaking down muscle
tissue.” Dr. Wall testified that S.O.’s physical appearance was enough notice that
S.O. needed medical care and that it would take weeks of starvation to cause S.O.’s
condition. An emergency room nurse, Keary Brem, testified that S.O. was visibly
“very sick.” Dr. Jinadu testified that the lack of opportunity to eat caused S.O. to be
malnourished.
      As to Appellant’s claim that there was nothing wrong with S.O. but that S.O.
was small because Philippine babies do not gain much weight right after birth,
Dr. Benigno testified that there was no basis for such a statement. Appellant’s
activities at the hospital while medical personnel administered emergency treatment
to S.O. further supports Appellant’s lack of concern for S.O. and supports his
conviction.
      When we consider the evidence admitted at trial in the light most favorable to
the verdict, we conclude that a rational jury could have found that Appellant
intentionally or knowingly injured S.O. by omission. We also conclude that the trial
court did not err when it denied Appellant’s motion for directed verdict and did not
abuse its discretion when it denied Appellant’s motion for new trial. We overrule
Appellant’s first, second, and third issues on appeal.
      In his fourth issue on appeal, Appellant contends that trial counsel was
ineffective when counsel failed to object to the State’s allegedly improper comments
during closing arguments to the jury. Appellant asserts that the prosecutor
improperly commented on Appellant’s election not to testify when the prosecutor
stated: “Does he ever, at any point in this trial, admit that there is anything wrong
with his child? Not at all. Does he ever show the slightest concern? No.” For the
reasons stated below, even if we were to agree that the State’s argument was


                                          8
improper, Appellant has not shown that trial counsel rendered ineffective assistance
when counsel did not object to the State’s argument.
      To establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Strickland, 466 U.S. at 689.
      A claim of ineffective assistance of counsel must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005).          Trial counsel should ordinarily have an
opportunity to explain his actions before an appellate court denounces counsel’s
actions as ineffective. Id. Without this opportunity, an appellate court should not
find deficient performance unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
      Appellant has failed to overcome the presumption that counsel’s decision not
to object to the argument fell within the range of reasonable professional assistance.
Appellant bears the burden to overcome that presumption. Thompson, 9 S.W.3d at
813. Here, the record is silent as to why Appellant’s trial counsel did not object to
                                          9
the argument. Appellant filed a motion for new trial and a motion in arrest of
judgment, but there was no hearing on the motion. Because the record is silent, it
must be apparent “that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
trial counsel’s acts or omissions.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011). Here, it is reasonable that trial counsel might have decided not to object
to the argument because it would draw more attention to the State’s comment. The
decision not to object to the argument would not have been “so outrageous that no
competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440; see
Orellana v. State, 489 S.W.3d 537, 550 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d) (citing Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, pet.
ref’d)). We overrule Appellant’s fourth issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


March 29, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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