








NUMBER 13-03-166-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 
                                                                                                                      

IN THE MATTER OF A. J. G., A JUVENILE
                                                                                                                                      

On appeal from the 92nd District Court  
of Hidalgo County, Texas.                                                                                                                      

O P I N I O N

Before Justices Yañez, Rodriguez, and Garza
Opinion by Justice Garza
 
Appellant, A.J.G., appeals from the judgment of the trial court in a juvenile
proceeding.   In twenty-five separate issues, appellant contends: (1) the trial court abused
its discretion in denying appellant’s motion for a new trial; (2) the jury acted arbitrarily and
without reference to guiding principles in reaching its verdict; (3) the trial court committed
reversible error in allowing the prosecution’s closing argument to the jury; (4) there was
legally and factually insufficient evidence to demonstrate the grand jury’s exercise of due
diligence in fashioning the charge; and (5) there was legally and factually insufficient
evidence to support the jury verdict.   We affirm.  
Background
On February 24, 2002, appellant, a 15-year-old girl, gave birth to a son while in the
shower of a bathroom in her parent’s home.  She had concealed her pregnancy from her
family and teachers.  Her mother became concerned about the amount of time her
daughter had been in the bathroom and forced her way in, where she discovered blood on
the walls and floor and her daughter kneeling in the shower.  An ambulance was called.
Appellant’s mother testified that she did not know where the blood had come from, and
appellant never indicated to her mother that she had just given birth.   The paramedics
upon arrival noted that there was a full-term placenta on the floor of the shower, suggesting
that appellant may have had a miscarriage, but appellant denied it.
Appellant was taken to a local hospital, where she continued to deny having just
given birth.  Her mother accompanied her, while her father, who had remained at home,
began cleaning up the bloody bathroom.  When her mother was told by hospital personnel
that appellant had just given birth, she called appellant’s father and told him to look for a
baby.  While talking to his daughter’s nurse on the phone, appellant’s father found the
infant inside a bundle of towels on the top shelf of a linen closet in the bathroom.  He called
again for an ambulance as the baby was injured and not moving or breathing.  The
paramedics found that the baby was deeply cut from his mouth to behind the jaw, and they
were unable to revive him.  At trial, the medical examiner testified that the baby had been
born alive but had bled to death due to an extensive incised cut on his mouth inflicted by
a sharp object of some kind that had severed major blood vessels.  He testified that a razor
blade could have inflicted this injury.
Police investigators checked the towels and other items appellant’s father had
removed from the bathroom while cleaning, including a bloody disposable razor blade, and
analyzed the blood splatter in the bathroom.  Blood on the bathroom walls and in the
shower belonged to the baby, but the blood on the razor blade came from a female.  
At trial, appellant testified that she knew she was in labor the day the baby was
born.  She reported giving birth in the shower with the water running and then attempting
to cut the baby’s umbilical cord using the razor blade, which she had difficulty
accomplishing.  She reported being afraid that her parents would hear her.  After she cut
the cord, she wrapped the baby in some towels and put him in the closet.  She testified that
she did not know how the baby’s cheek was cut and that she failed to tell anyone the
baby’s location because she was scared.  
The grand jury petition charged appellant with engaging in delinquent conduct and
separated the charge into the following four alternative sub-issues:  with or without
specifically identifying the razor blade as the murder weapon; and either with intent to kill
or with intent to cause serious bodily injury.  After a trial, the jury found appellant guilty of
engaging in delinquent conduct by intentionally or knowingly, with intent to cause serious
bodily harm, committing an act clearly dangerous to human life, i.e., killing her infant son
by cutting him with a sharp object “to the Grand Jurors unknown” while under the age of
eighteen.  Appellant was sentenced to five years juvenile commitment with a possible
transfer to the Institutional Division of the Texas Department of Criminal Justice.  This
appeal ensued. 
Standard of Review
The Texas Family Code places juvenile delinquency proceedings in civil courts but
requires their adjudication be based on the standard of proof used in criminal cases.  Tex.
Fam. Code. Ann. §§ 51.17, 54.03(f)  (Vernon Supp. 2003).   Also, the Texas Supreme
Court has held that juvenile delinquency proceedings are “quasi-criminal” in nature and
therefore criminal rules of procedure must be looked to for guidance.  In re B.L.D. and
B.R.D., 113 S.W.3d 340, 351 (Tex. 2003).  Thus, we apply the standards of review
applicable to criminal cases to each of appellant’s claims.  
Motion for New Trial
In six issues, appellant contends that the trial court abused its discretion by denying
her motion for a new trial, thereby depriving appellant of her constitutional due process
rights.  
Texas Rule of Appellate Procedure 38.1, which establishes the required elements
of appellant’s brief, notes that a brief “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” Tex. R. App.
P. 38.1(h); see Dail v. Couch, 99 S.W.3d 390, 392-93 (Tex. App.–Corpus Christi 2003, no
pet.).  If an appellant contends that there has been an abuse of discretion by the trial court,
the appellant must demonstrate how the trial court has acted unreasonably or arbitrarily,
by misapplying the law or by acting without reference to guiding rules and principles.  Dail,
99 S.W.3d at 391 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985)).  
Appellant here failed to include a succinct and clear argument with appropriate
citations to authorities as to how the trial court’s failure to grant a new trial constituted an
abuse of discretion.  Instead, appellant implied throughout her brief that because the jury
verdict was allegedly reached in error (as she argues more specifically in other issues), the
trial court’s subsequent refusal to grant the motion for new trial must have been an abuse
of discretion.  This argument was never made explicit, and there was no specific discussion
or citation to previous case-law on the abuse of discretion standard. 
We conclude below that we will not sustain any of appellant’s other issues raised
on appeal.  As appellant has violated Texas Rule of Appellate Procedure 38.1 by failing to
make additional arguments regarding this alleged abuse of discretion, we hold appellant
has waived her challenge to the trial court’s denial of her motion for a new trial.  See Tex.
R. App. P. 38.1.
Jury Reasonableness
By one issue, appellant argues that the jury acted arbitrarily and without reference
to guiding rules and principles in finding that appellant engaged in delinquent conduct by
committing the offense of murder. 
The language appellant employs to present this issue, i.e., “arbitrarily and without
reference to guiding rules and principles,” reflects the legal standard used to determine
whether a trial court, not a jury, has engaged in an abuse of discretion.  Dail, 99 S.W.3d
at 391.  Juries are not held to an abuse of discretion standard and do not have to consider
guiding rules of legal authority when making their factual findings.  Instead, jury verdicts
are only set aside if they are so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997);
Contreras v. State, 54 S.W.3d 898, 903 (Tex. App.–Corpus Christi 2001, no pet.).  Jury
verdicts are entitled to great deference and may only be overturned on appeal if they are
found to lack any rational relationship to the evidence presented.  Cain, 958 S.W.2d at
407; Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).    
We will review the jury verdict below for factual and legal sufficiency, which ensures
that the verdict will be set aside if found to be manifestly unjust or clearly erroneous. 
However, we will not review here the jury verdict under an abuse of discretion standard,
as appellant suggests, as that is the incorrect standard of review.  Accordingly, appellant’s
issue is overruled. 
Prosecutor’s Closing Argument
By one issue, appellant argues that the trial court committed reversible error when
it allowed the prosecutor to tell the jury during closing arguments, “You are the voice of the
community.  You are going to decide by your verdict here what message you’re going to
send to the community.”  
Arguments by counsel that inflame the prejudices of the jury or ask that the jury
convict or punish based on public sentiment or community outrage are considered a
violation of the constitutional guarantees to a fair trial.  Cortez v. State, 683 S.W.2d 419,
420-21 (Tex. Crim. App. 1984).  Remarks to the jury must fall within one of four categories
in order to be considered proper: (1) summation of the evidence; (2) reasonable
deductions from the evidence; (3) an answer to the arguments of opposing counsel; or (4)
a plea for law enforcement.  Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App.
2000); see In the Matter of S.E.R., No. 13-97-911-CV, 1999 Tex. App. LEXIS 8481, at *21
(Corpus Christi Nov. 10, 1999, no pet.) (not designated for publication) (applying the
standard of review for evaluating improper jury arguments in adult criminal trials to juvenile
adjudication proceedings).  An argument, even if couched in terms of a call for law
enforcement, is improperly presented to the jury if it induces jurors to reach a particular
verdict based upon the demands, desires or expectations of the community, rather than
on the evidence.  Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim App. 1990).
However, the prosecution only commits reversible error when instructing the jury to
convict because of or based on community desires.  The prosecution may properly remind
the jury that it is representative of its community and that its decision can and should reflect
that community’s desire for strong law enforcement.  See, e.g., Goocher v. State, 633
S.W.2d 860, 864 (Tex. Crim. App. 1982) (allowing the prosecution to say: “send these
types of people a message to tell them we’re not tolerating this type of behavior in our
county”); Davila v. State, 952 S.W.2d 872, 879 (Tex.App.–Corpus Christi 1997, pet. ref’d)
(allowing the statement:  “If you don’t convict this man for murder, people in the Valley are
going to think that they can carry a gun and shoot people in cars”); Lawson v. State, 896
S.W.2d 828, 833 (Tex. App.–Corpus Christi 1995, writ ref’d) (allowing the statement:  “I ask
[you to] send a very strong message to this man and everyone else in this community . .
. who thinks it’s okay to get out there and poison the community.”).  
Closing arguments do not constitute reversible error unless they are grossly
improper, violative of a mandatory statute or add new facts harmful to the accused. 
Goocher, 633 S.W.2d at 864.  So long as the prosecution does not urge the jury to
abandon the rule of law and make its decision based on what the community would like,
pleas to the jury that it act as the voice of its community and “send a message” are not
improper. Id.; Goff v. State, 794 S.W.2d 126, 127-28 (Tex. App.–Austin 1990, pet. ref’d).
Appellant asserts here that the trial court erred in overruling her objections to the
State’s closing argument.  Specifically, appellant objected to the following statements: 
“You are the voice of the community.  You are going to decide by your verdict here what
message you’re going to send to the community;”and “Your verdict will send a message.
. . . Your verdict is going to send a message folks, and the question is what message is
that verdict going to send.”  
The State’s closing statements clearly fall within the allowable “plea for law
enforcement” category of argument.  See Goocher, 633 S.W.2d at 864; Lawson, 896
S.W.2d at 833.  The statements about “being a voice” and “sending a message” did not
pressure the jury to reach a guilty verdict based upon the demands, desires or
expectations of the community and abandon consideration of the evidence.  There was no
implication that the community demanded a guilty verdict and the jurors had to acquiesce
to these demands.  Rather, the jury was asked to instruct or guide the community by its
decision.  Such argument is proper and accordingly, appellant’s issue is overruled.  
Due Diligence by the Grand Jury
By four issues, appellant complains that there was legally and factually insufficient
evidence presented by the State to demonstrate that the grand jury exercised due diligence
in determining for purposes of the indictment that the weapon was “a sharp object to the
Grand Jurors unknown.”  The indictment was presented in the disjunctive and charged
appellant with causing the death of her son with “a razor” or “with a sharp object to the
Grand Jurors unknown.”  The jury actually convicted based on the latter description of the
weapon used.  
The original standard for a proper indictment, which appellant urges this Court to
adopt for juvenile proceedings, was established in Hicks v. State, 860 S.W.2d 419, 424
(Tex. Crim. App. 1993) (citations omitted):
When an indictment alleges that the manner and means of
inflicting the injury is unknown and the evidence at trial does not establish
the type of weapon used, a prima facie showing is made that the weapon
was unknown to the grand jury.  However, if the evidence at trial shows
what object was used to inflict the injury, then the State must prove that
the grand jury used due diligence in attempting to ascertain the weapon
used.
 
Id.  The State could satisfy this due diligence requirement through testimony by a grand
juror that the grand jury was unable to find out what object caused the injuries.  Rosales
v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  

          However, as pointed out in Rosales, “the rule in cases like Hicks is no longer viable
in light of our decision in Malik.”  4 S.W.3d at 231.  The decision in Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997) changed the analysis so that the indictment as
presented is not the basis by which the sufficiency of the evidence is measured.  Instead,
sufficiency of the evidence is now measured by the elements of the offense as defined by
the “hypothetically correct jury charge for the case.” Id. at 240.  The hypothetically correct
jury charge is one that accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense.  Id.; see Adi v. State,
94 S.W.3d 124, 130 (Tex. App.–Corpus Christi 2002, pet. ref’d).   
          The hypothetically correct jury charge, so long as it conforms to the Malik
requirements, can be presented in the disjunctive, giving the jury mutually exclusive
alternatives as to how the offense may have been committed.  Kitchens v. State, 823
S.W.2d 256, 258 (Tex. Crim. App. 1991); Mendez v. State, 717 S.W.2d 712, 713 (Tex.
App.–Corpus Christi 1986, pet. ref’d).  For example, the jury charge can allege that a
murder was committed by shooting the victim with a handgun or by strangling the victim,
during the commission of robbery or sexual assault.  Kitchens, 823 S.W.2d at 257, n.2. 
Also, a non-essential element of the charge, such as an allegation that the object used to
cause injury was unknown to the grand jury, may properly be excluded from a
hypothetically correct jury charge.  Rose v. State, 76 S.W.3d 573, 574 (Tex. App.–Corpus
Christi 2002, no pet.); see Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). 
So long as the essential elements of the crime with which the defendant has been charged
have to be found by the jury in order for a guilty verdict to be returned, the State does not
have to additionally and separately prove the good faith and due diligence of the grand jury
in determining non-essential elements of the charge.  See Malik, 953 S.W.2d at 240;
Fagan v. State, 89 S.W.3d 245, 249 (Tex. App.-Texarkana 2002, pet. ref’d) (“the rule
requiring the state to show that the grand jury exercised due diligence in determining the
instrumentality of the offense is no longer relevant to our analysis.”).  
          We apply the Malik standard of the hypothetically correct jury charge in sufficiency
challenges to the present appeal despite its nature as a juvenile proceeding.
  As stated
above, the criminal rules of procedure are utilized by civil courts in juvenile proceedings
because of their serious, quasi-criminal nature.  In re B.L.D. and B.R.D., 113 S.W.3d at
351.  Additionally, many of the due process protections applicable to criminal trials also
apply fully to juvenile proceedings, including the right to appeal.  Tex. Fam. Code Ann. art.
56.01(d) (Vernon 2002);  In re M.S., 940 S.W.2d 789, 790 (Tex. App.–Austin 1997, no
pet.). 
          In a hypothetically correct jury charge for the crime of murder, the exact
identification of the weapon used is unnecessary.  Rather, the necessary elements are
established by the Texas Penal Code: “A person commits murder if he: (1) intentionally or
knowingly causes the death of an individual; (or) (2) intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an individual.” 
Tex. Pen. Code Ann. §19.02 (Vernon 2003).  The State was required to prove beyond a
reasonable doubt that appellant either intentionally caused the death of her son or
intentionally caused serious bodily injury while committing a dangerous act.  The State was
under no further obligation to prove that the grand jury used good faith and due diligence
in determining the identity of the murder weapon when it produced the disjunctive
indictment that described the offense as being committed either “with a razor blade” or
“with a sharp object to the Grand Jurors unknown.”  Rosales, 4 S.W.3d at 231.  To require
otherwise would unnecessarily increase the State’s burden of proof, in violation of the
standard established in Malik.  See Malik, 952 S.W.2d at 240.  Therefore, appellant’s
issues regarding the exercise of due diligence by the grand jury are overruled.  
Legal and Factual Sufficiency
In thirteen issues, appellant contends that the evidence presented at trial was legally
and factually insufficient to support the jury’s verdict.  The standard of review for legal
sufficiency in criminal cases is set out in Jackson v. Virginia, 443 U.S. 307, 320 (1979). 
In a legal sufficiency analysis, this Court must view the evidence in the light most favorable
to the prosecution in order to determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Clewis v. State, 922
S.W.2d 126, 132-33 (Tex. Crim. App. 1996); see In re L.R., 67 S.W.3d 332, 338 (Tex.
App.–El Paso 2001, no pet.) (applying the Jackson standard to serious juvenile cases
where criminal elements must be proven beyond a reasonable doubt).   Thus, the question
on appeal is whether evidence that proved the essential elements of the crime charged
was presented at trial.  Sufficiency of the evidence is measured against the elements of
the offense as defined by the hypothetically correct jury charge for the case.  Malik, 953
S.W.2d at 240.  Here, the State had to prove beyond a reasonable doubt that appellant
intentionally caused the death of her son or intentionally caused him serious bodily injury
while committing an act clearly dangerous to human life.  Intent may be inferred through
circumstantial evidence, including the accused’s acts, words and conduct.  Dues v. State,
634 S.W.2d 304, 305 (Tex. Crim. App. 1982); In re V.M.D., 974 S.W.2d 332, 347 (Tex.
App.–San Antonio 1998, pet. denied).  
The jury was presented with evidence that confirmed all the elements of this charge,
including testimony by a medical examiner regarding the cause of death by a severe cut
to the face and subsequent blood loss.  Testimony by all witnesses revealed that no one
other than appellant saw, had access to, or even knew about the existence of the infant
until he was found by appellant’s father and turned over to paramedics.   Intent was
established through testimony by appellant and her friends and family which revealed
appellant knew she was pregnant, consistently concealed and denied both her pregnancy
and labor, hid the newborn in a linen closet wrapped inside a towel, and refused to admit
to her family, paramedics at the scene, or medical personnel at the hospital that she had
just given birth to a live infant or where she had subsequently placed that infant.  Only a
medical examination revealed that she had recently given birth; appellant continued to
deny the fact until the baby was actually found by her father.  Appellant also admitted at
trial to holding a razor blade in one hand and the baby in the other while attempting to
sever the umbilical cord from the infant’s body.  Moreover, she failed to express sorrow or
remorse for the lost life of her child.  Viewing these facts in a light most favorable to the
verdict, it does not appear unreasonable that a fair and rational fact-finder could have used
this evidence to infer appellant possessed the requisite intent and to establish guilt beyond
a reasonable doubt.  Jackson, 443 U.S. at 318-319.  Thus, the verdict was indeed
supported by legally sufficient evidence.
In a factual sufficiency analysis, all of the evidence, whether favorable to the
prosecution or not, is considered by the appellate court in a neutral light. Clewis, 922
S.W.2d at 129; In re C.P., 998 S.W.2d 703, 708 (Tex. App.–Waco 1999, no pet.) (applying
the Clewis factual sufficiency standards to a juvenile proceeding).  The court will then
determine whether the verdict, in consideration of all available evidence, is so contrary to
the overwhelming weight of the evidence as to be clearly wrong and unjust such that
fairness demands the verdict be overturned.  Clewis, 922 S.W.2d at 129; Rojas v. State,
986 S.W.2d 241, 247 (Tex. Crim. App. 1998).  However, the court must be carefully
deferential to the existing verdict in a factual sufficiency review, in order to avoid
substituting its judgment for that of the jury, which maintains its role as fact-finder and
evaluator of the weight and credibility of witness testimony.  Johnson v. State, 23 S.W.3d
1, 7 (Tex. Crim. App. 2000).  
Appellant argues that the State could not conclusively prove that the razor blade
found at the scene was the murder weapon, as blood on the razor did not match that of the
newborn.  Appellant also argues that the wounding of the infant occurred accidentally when
she attempted to remove his umbilical cord, and thus, the requisite element of intent could
not be conclusively established beyond a reasonable doubt.  For these reasons, appellant
contends the evidence was factually insufficient to support the jury’s verdict.  
The failure of the State to conclusively establish that the razor found was, in fact,
the murder weapon does not affect the overall verdict, as discussed above.  Using the
hypothetically correct jury charge as our barometer against which the sufficiency of the
evidence is measured, the State did not have to prove that the razor was the specific
weapon used; it was sufficient for the State to prove that a sharp object was used and that
only appellant had the opportunity to use such an object, whatever it may have been, on
the infant.  
The accidental-wounding defense, appellant argues, is supported by the fact that
appellant was alone at the time her son was born, she was in a running shower surrounded
by water and blood, and she was inexperienced in matters of childbirth. However, the
evidence also established that appellant deliberately concealed her pregnancy, that she
hid herself and kept completely silent while giving birth in the bathroom while her entire
family was in the house, and that once the baby had been injured, she did not attempt to
seek help as he bled to death.  Rather, she hid the child and denied his very existence. 
Intent may be inferred from the actions or conduct of appellant, and intent to kill or
seriously injure may be inferred from the use of a deadly weapon. See Davila, 952 S.W.2d
at 875.  The jury could reasonably infer from both the circumstances surrounding the
infant’s death and appellant’s testimony regarding using the razor to slice the umbilical cord
and placing the baby in the linen closet that the appellant intended to continue her pattern
of concealment to ensure that the baby would not be heard or seen even after it was born,
and that she therefore silenced and hid the child.  The exact nature of the sharp object
used was never established, but it was nonetheless clear from the testimony of the medical
examiner that some kind of deadly weapon was in fact used.  While the evidence may
have been insufficient to prove that she possessed an intent to kill her son, it did
demonstrate that she knowingly caused serious injury to the newborn which ultimately
caused his death, both through her actions in inflicting the cut and her concealment of the
dying child. 
The jury responded to the evidence presented in a reasonable way, as can be
inferred by its failure to convict on either of the alternative charges in which the weapon
was referred to as the razor blade found at the crime scene, or in which appellant was
specifically described as acting with intent to kill.  The State could not prove either element
beyond a reasonable doubt.  However, for the hypothetically correct jury charge for murder
as authorized by the indictment, all of the essential elements were proved beyond a
reasonable doubt.  The weight of all evidence to the contrary does not demonstrate any
clear error or manifest injustice and therefore cannot overcome the reasonableness of the
jury verdict in relation to the evidence. The verdict was supported by factually sufficient
evidence.  Therefore, we decline to set aside the verdict, and appellant’s issues are
overruled.  
As all twenty-five issues raised on appeal have been considered and overruled by
this Court, we accordingly AFFIRM the judgment of the trial court.                                                                                                                                                          
                                                                                      ________________________
                                                                                      DORI CONTRERAS GARZA,
                                                                                      Justice
 
Opinion delivered and filed 
this the 1st day of April, 2004. 
