      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                ON MOTION FOR REHEARING



                                        NO. 03-12-00285-CR



                                     Nichole Turner, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
      NO. D-1-DC-10-100052, THE HONORABLE JIM CORONADO, JUDGE PRESIDING



                             MEMORANDUM OPINION


                We withdraw the opinion and judgment dated June 17, 2014, substitute the following

opinion and judgment in their place, and deny appellant’s motion for rehearing.

                A jury convicted appellant Nichole Turner of intentionally or knowingly causing

serious bodily injury to her boyfriend’s five-year-old son, see Tex. Penal Code § 22.04(a)(1), and

sentenced her to 35 years in the Texas Department of Criminal Justice, see id. § 12.32. In three

points of error on appeal, appellant asserts that the evidence is insufficient to support her conviction,

the omission of a lesser-included-offense instruction in the jury charge caused her egregious harm,

and the assistance rendered by her trial counsel was ineffective. The parties are familiar with the

facts of the case, its procedural history, and the evidence adduced at trial. Accordingly, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic

reasons for it. See Tex. R. App. P. 47.4. Finding no reversible error, we affirm the trial court’s

judgment of conviction.


                                            DISCUSSION

                                     Sufficiency of the Evidence

                In her first point of error, appellant asserts that the evidence is insufficient to support

her conviction for injury to a child because it fails to connect her to the child’s older injuries, fails

to show she inflicted serious bodily injury on the child with the requisite mental state, and fails to

establish that the child’s head injuries were serious bodily injuries.

                When reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the verdict to determine whether, based on the

evidence and reasonable inferences therefrom, any rational fact-finder could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013); see Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is not necessary that the evidence directly proves

the defendant’s guilt; circumstantial evidence is as probative as direct evidence in establishing the

guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt. Carrizales

v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007).

                As charged in this case, a person commits the offense of injury to a child if she

intentionally or knowingly causes serious bodily injury to a child fourteen years of age or younger.

                                                    2
See Tex. Penal Code § 22.04(a)(1). Injury to a child is a result-oriented offense, meaning that it

requires a mental state that relates not to the specific conduct but to the result of that conduct.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The State must prove that a

defendant caused a child’s serious bodily injury with the requisite criminal intent. Id. “Serious

bodily injury” includes bodily injury that creates a substantial risk of death or that causes death. See

Tex. Penal Code § 1.07(a)(46). A person acts “intentionally” with respect to a result of her conduct

when it is her conscious objective or desire to cause the result. Id. § 6.03(a). A person acts

“knowingly” with respect to a result of her conduct when she is aware that her conduct is reasonably

certain to cause the result. Id. § 6.03(b). The State may prove a defendant’s criminal culpability by

either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence.

Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Intent can be inferred from the

extent of the injuries to the victim, the method used to produce the injuries, and the relative size and

strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Duren

v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck).

                On the morning of Saturday, April 10, 2012, the dead body of five-year-old J.S. was

discovered in a yard in appellant’s neighborhood (approximately one mile from her apartment) three

hours after appellant called authorities to report him missing. The evidence at trial showed that

appellant had been involved in a relationship with J.S.’s father, with whom she had a

seven-month-old child. The couple had been living together in an apartment along with their three

children: their infant son, appellant’s five-year-old daughter from a previous relationship, and J.S.

However, approximately one month before J.S.’s death, his father moved out of the apartment,



                                                   3
basically abandoning the family. Although appellant was not J.S.’s biological mother, he remained

in her care. The evidence showed that appellant was the sole caregiver for J.S. during the month

preceding his death. The evidence also reflected that appellant was the only adult who had any

contact with J.S. from after school on Wednesday, April 7, through the time his body was found on

the morning of Saturday, April 10.

               The medical evidence at trial showed that J.S. was, essentially, beaten to death.

Dr. David Dolinak, the chief medical examiner for Travis County, performed the autopsy on J.S.

He determined that the cause of J.S.’s death was “blunt force injuries” and the manner of death was

“homicide.” He explained that a blunt force injury occurs “when an object impacts the body or the

body impacts some object and it causes damage or injury to the body, whether it’s a bruise, a broken

bone, [or] tearing of tissue.” Dr. Dolinak testified about numerous injuries inflicted on J.S.,

including “at least 59” external bruises. He indicated that the condition of J.S.’s body “stood out”

to him because J.S. had a large number of bruises distributed all over his body, including his head,

chest, abdomen, back, buttocks, arms, and legs. J.S.’s internal injuries included:


       •       a fractured left collarbone (healing improperly because it was not set),

       •       internal hemorrhaging in his abdomen (Dr. Dolinak removed approximately 200
               milliliters of blood, which he indicated was a significant amount given J.S.’s size),

       •       large tears in the mesentery (the layer of fatty tissue surrounding the intestines),

       •       bleeding behind the intestines (Dr. Dolinak testified that he was unable to measure
               this volume of blood as he had the blood in the abdominal cavity, but there was “a
               significant additional amount of blood in the tissues”),

       •       “a big hole” in the large intestine along with bruising of the intestine itself in
               different areas,

                                                  4
        •       bruising and tears in the wall of the small intestine,

        •       bruising under the surface of the scalp,

        •       bleeding on the surface of the brain,

        •       small areas of hemorrhage in the brain itself, and

        •       hemorrhaging in the tissue around the buttocks, thighs, and lower back (Dr. Dolinak
                testified that the most severe external bruising was around the buttocks and thighs).


Dr. Dolinak testified that the bruises on J.S.’s body were “fatal in and of themselves” and contributed

to the internal bleeding. He further stated the injuries were non-accidental and were consistent with

someone repeatedly hitting J.S. with a blunt object. He opined that J.S. sustained these injuries from

multiple impacts and not during a one-time event. Based on the legal definition of “serious bodily

injury” provided by the prosecutor, Dr. Dolinak classified J.S.’s injuries as “serious bodily injury.”

He also testified that these injuries could have been caused by a hand or a shoe, though he did not

limit causation to these blunt objects.

                In addition to the “recent injuries” noted above, Dr. Dolinak testified about finding

scar tissue in several areas of J.S.’s body. He found scar tissue around the healing fracture of the left

collarbone, in the mesentery, in the retroperitoneum (the tissue deep in the abdomen), and in both

the left and right buttocks areas. The doctor testified that the scar tissue in these areas was “a couple

of weeks” old. He also found evidence of healing in the right side of the scalp and in the small

intestine. The scar tissue in these areas was “two, three, maybe four days” old. In addition,

Dr. Dolinak testified that J.S.’s aorta had been severed from its attachment to the backbone, though

the aorta itself was not torn. Scar tissue in that area indicated this happened during a previous

                                                   5
abdominal injury. From the combination of healing and non-healing tissue in J.S.’s body,

Dr. Dolinak concluded that J.S. suffered multiple impacts over a period of time. He testified that

J.S.’s injuries were consistent with being repeatedly abused by someone.

                Appellant first maintains that the evidence is insufficient because it fails to connect

her to the serious bodily injuries—“the abdominal injuries isolated as the cause of death and the

broken shoulder”—because they occurred two or three weeks before J.S.’s death and the record fails

to demonstrate that appellant had sole access to J.S. at that time. Appellant’s contention, however,

is based on several incorrect assumptions. First, these injuries are not “the serious bodily injuries

necessary to support her conviction” (emphasis added). While the evidence reflects that the

abdominal injuries and collarbone injury were serious bodily injuries, they are not the only serious

bodily injuries J.S. had sustained. Dr. Dolinak’s testimony did not limit his serious-bodily-injury

classification to only J.S.’s abdominal injuries and his broken collarbone. Rather, he classified the

injuries “in [J.S.]’s body” as serious bodily injury. Based on the testimony the medical examiner

presented to the jury, these injuries also included J.S.’s head injuries (the bruising under the surface

of the scalp, the bleeding on the surface of the brain, and the bleeding in the brain itself) as well as

injuries to J.S.’s back, buttocks, and legs.

                Second, the evidence did not isolate the abdominal injuries as the cause of death.

Rather, the medical examiner’s testimony established that the bruising injuries throughout J.S.’s

body (which, again, would include the head injuries as well as the tissue injuries) were “fatal in and

of themselves” in addition to contributing to the internal bleeding J.S. suffered. Dr. Dolinak




                                                   6
concluded that J.S. died as a result of blunt force injuries, but did not limit his finding to blunt force

abdominal injuries.

                Third, contrary to appellant’s claim, the evidence does not show that the fatal

abdominal injuries occurred two to three weeks before J.S. died. Rather, the evidence showed that

J.S. suffered previous additional injuries several weeks prior to his death, as shown by the scar tissue

in the mesentery, the retroperitoneum, and around the detached aorta. However, it is clear from the

evidence that J.S. also sustained recent abdominal injuries that contributed to his death. Dr. Dolinak

testified that the bruising and tears in the small intestine happened within days of J.S.’s death. More

importantly, he testified that the blood in J.S.’s abdominal cavity, more than two full cups, resulted

primarily from large tears in the mesentery and looked “very fresh.” The doctor’s testimony also

indicated that after sustaining these abdominal injuries, J.S. would have been bleeding to death

internally and would not have had the endurance to walk a mile (the distance from appellant’s

apartment to the location where J.S.’s body was found). It would logically follow that J.S. would

not be able to function and carry on daily activities, such as going to school, for several weeks if he

was bleeding to death internally. Furthermore, the evidence reflected that J.S. suffered symptoms

consistent with his abdominal injuries starting the Wednesday night before his death. According to

Dr. Dolinak, symptoms from his abdominal injuries would have started within a few hours—not

weeks—after the injuries were sustained.

                Based on her own admission that she disciplined J.S. after school on the Tuesday

before his body was found and the fact that school officials failed to notice J.S.’s broken collarbone

for several weeks, appellant maintains that “the seriousness of the injuries was not so obvious that



                                                    7
one causing it during discipline would be reasonably certain that conduct would result in serious

bodily injury.” Thus, appellant next contends that the evidence was insufficient because it failed to

demonstrate that she caused serious bodily injury with the requisite mental state. However,

appellant’s contention is again based on incorrect assumptions. She assumes that the fatal injuries

were inflicted either several weeks before his death (an assumption not supported by the evidence,

as we noted above) and the school officials failed to detect them or that the injuries were inflicted

during the “whooping” appellant admits she gave J.S. on Tuesday. However, the evidence in the

record supports the inference that the fatal injuries were inflicted on J.S. sometime after the Tuesday

discipline episode. Dr. Dolinak testified that J.S. would have experienced the onset of symptoms

within hours of the abdominal injuries being inflicted. The evidence reflected that J.S. began

vomiting Wednesday night and was absent from school on Thursday and Friday because he was ill

with diarrhea and continued vomiting. Further, while it may be true that J.S.’s shoulder injury went

undetected by school authorities, Dr. Dolinak testified that J.S.’s abdominal injuries—“some of the

scar tissue around his intestines and mesentery”—would have probably gone undetected by school

officials “unless [J.S.] was having symptoms from it.” The fact that the school officials did not

detect J.S.’s injuries or observe his symptoms further supports the conclusion that the fatal injuries

were inflicted after J.S. left school on Wednesday—the last time he had contact with any adult other

than appellant. Also, the fact that appellant admitted only to “whooping” J.S. with a belt and her

hand on Tuesday does not exclude the possibility that she later inflicted more serious (and fatal)

injuries on the child.




                                                  8
                Appellant asserts in her brief that other than her admission to striking J.S. during

discipline, “[n]o other evidence showed appellant mistreated the child.” However, in cases involving

injury to a child, there is rarely direct evidence of exactly how the child’s injuries occurred. Williams

v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Instead, we look

to rational inferences from circumstantial evidence to determine whether the State met its burden.

Id. The weekend before his death, J.S. spent Easter weekend with appellant’s parents. Neither of

them noticed any marks, bruises, or injuries on the child. Appellant was the sole adult with J.S.

during the times the child sustained extremely severe and fatal injuries. J.S. did not simply have

bruises—although he did have those in great quantity distributed all over his body—he had massive

internal injuries resulting from blunt force trauma. He had significant injuries to several vital

organs—large tears in his mesentery, a big hole in his large intestine, bruising in his large intestine,

bruising in his small intestine, tears in the wall of his small intestine, and bleeding in his brain—as

well as extensive bleeding in his abdomen (predominantly from the tears in his mesentery), in the

tissue behind the intestines, under the surface of his scalp, on the surface of his brain, and in the

tissue around his buttocks, thighs, and lower back. J.S. died as a result of the multiple blunt force

injuries all over his five-year-old, 38-pound body.

                Appellant’s admission to disciplining J.S. does not render the evidence insufficient

to prove the requisite mental state. The jury could infer appellant’s intent or knowledge from the

evidence of the injuries inflicted on J.S., both the severity and number. See Patrick, 906 S.W.2d at

487; see also Moore v. State, 969 S.W.2d 4, 16 n.5 (Tex. Crim. App. 1998) (Keller, J. concurring

and dissenting) (“The extent of a victim’s injuries is, of course, a reflection of the strength of a



                                                   9
defendant’s attack[.]”). The method of producing the injuries also supports the inference that

appellant intentionally or knowingly inflicted serious bodily injury on J.S. See Patrick, 906 S.W.2d

at 487. Dr. Dolinak testified that all of J.S.’s injuries were consistent with repeated blows with a

blunt object and that the abdominal injuries resulted from compression-type forces strong enough

to tear tissues on the inside. Further, the jury could also infer appellant’s intent and knowledge from

the size and strength differential between appellant and J.S. See id.; Duren, 87 S.W.3d at 724. The

jury heard testimony regarding J.S.’s height and weight (45 inches and 38 pounds) and saw

photographs of him on Easter Sunday, less than a week before he was found dead. When appellant,

an adult woman, testified at trial, the jury could see the disparity between appellant and J.S.1 The

record amply demonstrates appellant’s intent or knowledge and supports the jury’s conclusion that

J.S. suffered from violent acts of abuse, not “harsh or misguided discipline” as appellant suggests.

               Finally, appellant avers that the evidence is insufficient because it failed to establish

that J.S.’s head injuries constituted serious bodily injury. This contention is based on Dr. Dolinak’s

failure to specifically mention J.S.’s head injuries when classifying J.S.’s injuries as “serious bodily

injury.” As we noted above, however, Dr. Dolinak classified the injuries “in [J.S.]’s body” as serious

bodily injury. This would include J.S.’s head injuries. And again, the doctor concluded that J.S.

died as a result of blunt force injuries. While appellant wants to restrict those blunt force injuries

to J.S.’s abdominal injuries, no such limitation is demonstrated by the evidence presented at trial.

Moreover, although we disagree with appellant’s conclusion that the evidence fails to establish that


       1
          We also note that during her 911 call to report J.S. missing, appellant described J.S. as
“really frail,” “skinny,” and “not that tall.” Thus, the evidence demonstrates that appellant was
aware of the size and strength disparity between them.

                                                  10
J.S.’s head injuries were serious bodily injuries, the lack of such evidence would not render the

evidence insufficient to support appellant’s conviction. Even excluding the evidence of J.S.’s head

injuries, the record contains sufficient evidence of other serious bodily injuries inflicted on J.S.

by appellant.

                Appellant’s arguments focus on certain pieces of evidence present or lacking in the

record and how their presence or absence supports her defensive theory. In assessing the legal

sufficiency of the evidence, however, we must consider all the evidence in the light most favorable

to the verdict. See Anderson, 416 S.W.3d at 888. Based on the evidence presented at trial and the

reasonable inferences therefrom, we conclude that the jury could have rationally concluded that J.S.

suffered serious bodily injury at the hands of appellant as alleged in the indictment.2 Accordingly,

we hold that the evidence is sufficient to support appellant’s conviction for injury to a child. See

Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13. We overrule appellant’s first point of error.


                               Lesser-Included-Offense Instruction

                In her second point of error, appellant argues that the omission of an instruction in the

jury charge on the lesser-included offense of reckless injury to a child caused her egregious harm.

See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g) (setting forth

procedure for appellate review of claim of jury-charge error). Appellant concedes that she did not




       2
           Once again, because the parties are familiar with the evidence adduced at trial, we do not
recite all of the evidence supporting appellant’s conviction in our analysis. Rather, we limit our
recitation to the evidence that is relevant to appellant’s particular sufficiency challenges.

                                                   11
request such an instruction at trial. The record further demonstrates that appellant failed to object

to the omission of such an instruction in the jury charge.

                The trial judge has a duty to prepare a jury charge that accurately sets out the law

applicable to the specific offense charged. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.

2007); see Tex. Code Crim. Proc. art. 36.14. (“[T]the judge shall, before the argument begins, deliver

to the jury . . . a written charge distinctly setting forth the law applicable to the case.”). The trial

judge has the duty to instruct the jury on the law applicable to the case even if defense counsel fails

to object to inclusions or exclusions in the charge. Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim.

App. 2011). A jury instruction on a lesser-included offense, however, is not “applicable to the case”

absent a request by the defense for its inclusion in the jury charge. See Tolbert v. State,

306 S.W.3d 776, 781 (Tex. Crim. App. 2010). The judge does not have a duty, sua sponte, to

instruct the jury on lesser-included offenses. Id.; see Delgado, 235 S.W.3d at 249. Accordingly, a

defendant cannot complain on appeal about the trial judge’s failure to include a lesser-included-

offense instruction that he did not preserve by request or objection: “he has procedurally defaulted

any such complaint.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013).

                Here, because appellant did not request an instruction on the lesser-included-offense

instruction of reckless injury to a child or object to the trial court’s failure to include such an

instruction in the jury charge, she cannot now complain on appeal about its absence from the charge.

Moreover, the trial court did not have a sua sponte duty to include an instruction on reckless injury

to a child in the jury charge because the instruction was not “applicable to the case” absent

appellant’s request for its inclusion in the charge. Consequently, the omission of such an instruction



                                                  12
in the jury charge does not constitute error. See Tolbert, 306 S.W.3d at 781. In the absence of

error in the charge, we do not review the charge for egregious harm under Almanza. See id. at 782;

see also Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998) (Almanza does not apply unless

appellate court first finds error in jury charge).

                For the above reasons, we overrule appellant’s second point of error.


                                 Ineffective Assistance of Counsel

                In her third and final point of error, appellant asserts that her attorney’s failure to

request a jury instruction on the lesser-included offense of reckless injury to a child (see point of

error two above) constituted ineffective assistance of counsel.

                To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012). Failure to make the required showing of either deficient performance

or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez

v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

                Appellate review of counsel’s representation is highly deferential; we must indulge

a strong presumption that counsel’s representation falls within the wide range of reasonable

professional assistance—that is, we must presume that trial counsel’s actions or inaction and

decisions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S.

at 686; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); see Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009). To rebut that presumption, a claim of ineffective

                                                     13
assistance must be “firmly founded in the record” and “the record must affirmatively demonstrate”

the meritorious nature of the claim. See Menefield, 363 S.W.3d at 592 (citing Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999).

               Direct appeal is usually an inadequate vehicle for raising such a claim because the

record is generally undeveloped. Menefield, 363 S.W.3d at 592–93. This statement is true with

regard to the “deficient performance” prong of the inquiry when counsel’s reasons for failing to do

something do not appear in the record. Id. at 593. Trial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective. Id. “If trial counsel is not

given that opportunity, then the 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 Goodspeed, 187 S.W.3d at 392).

               The record here does not reflect why trial counsel did not request the lesser-included

offense instruction of reckless injury to a child. Absent record evidence regarding counsel’s strategy,

we cannot speculate as to whether a valid strategy existed, and thus appellant cannot rebut the strong

presumption of reasonable assistance. The failure to request a lesser-included-offense instruction,

without explanation for trial counsel’s decisions, does not compel a conclusion that trial counsel’s

performance was deficient. We cannot say that “no reasonable trial strategy could justify” counsel’s

decision to not request such an instruction. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011). As appellant acknowledges, not requesting the instruction could very well have been

trial strategy on the part of appellant’s trial counsel. See, e.g., Tolbert, 306 S.W.3d at 781 (failure



                                                  14
to make desire for lesser-included-offense instruction known to trial court was consistent with “all

or nothing” strategy of pursuing outright acquittal); see also Okonkwo v. State, 398 S.W.3d 689, 697

(Tex. Crim. App. 2013) (defensive issues frequently depend on trial strategy and tactics). We hold

that appellant has failed to demonstrate deficient performance on the part of her trial counsel.3

Accordingly, because appellant has failed to make the required showing of deficient performance,

her claim of ineffective assistance fails. We overrule appellant’s third point of error.


                                         CONCLUSION

               Having overruled appellant’s three points of error, we affirm the trial court’s

judgment of conviction.



                                              __________________________________________
                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed on Motion for Rehearing

Filed: August 8, 2014

Do Not Publish




       3
          Because appellant failed to meet her burden on the first prong of Strickland, we need not
consider the requirements of the second prong—prejudice. See Lopez v. State, 343 S.W.3d 137, 144
(Tex. Crim. App. 2011).

                                                 15
