                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00492-CR

RYKA TELAN HOPPER                                                   APPELLANT


                                        V.

THE STATE OF TEXAS                                                        STATE

                                     ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION 1

                                     ----------

      A jury convicted Appellant Ryka Telan Hopper of injury to a child causing

serious bodily injury and assessed her punishment at forty years’ confinement.

See Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2012). In two issues,

Appellant argues that the evidence was insufficient and that the trial court erred




      1
       See Tex. R. App. P. 47.4.
by allowing the State to lower its burden of proof during closing jury arguments.

We affirm the trial court’s judgment.

                                I. BACKGROUND

                                  A. PROLOGUE

      On July 12, 2010, Ahnnahka White (“Annie”), who was almost three years

old, was rushed to a hospital after having a seizure. When she arrived, she had

no detectable heart rate, was in a coma, could not breathe on her own, and

“appeared to be critically ill.” In short, she was clinically dead. Her body was

covered in bruises that appeared to have occurred at different times.          The

doctors were able to resuscitate Annie, but she tragically never recovered and

now is in a persistent vegetative state in an East Texas long-term care facility.

After the hospital alerted the authorities, an investigation was begun to determine

what happened to Annie.

                       B. FACTS LEADING TO JULY 12, 2010

      Appellant is Annie’s mother. By all accounts, including her own, Appellant

is an accomplished liar with a vivid imagination. At the time of Annie’s seizure

that led to her hospitalization, Appellant was living with her boyfriend, Adam

Palmer, and her two daughters, Annie and five-year-old Mahkayla. Palmer, who

was charming but had a bad temper, liked to tell people he was a fireman,

although he was not. Indeed, Palmer and Appellant lived next door to a fire

station. He had a fireman’s uniform and kept a stethoscope on the rearview

mirror of his truck. Appellant apparently believed Palmer was a fireman even
                                        2
though she never knew him to have a job as a firefighter. Palmer had been

convicted of injury to a child before Appellant met him. While Palmer was living

with Appellant and her children, he was on parole for this prior offense and was

not allowed to live with children.

          Appellant had met Palmer in September 2009 and apparently moved in

with him shortly thereafter. Their home had internet access, and Appellant was

well versed in how to contact people electronically. The relationship was rocky,

leading Appellant, Annie, and Mahkayla to move back in with Appellant’s mother

in early 2010 after Palmer gave Appellant a black eye. Appellant was also aware

at this time that Palmer was “under the influence of drugs.”         Palmer and

Appellant continued to see each other, however.

          Beginning in January 2010 and continuing through February 2010,

Appellant began going to multiple hospitals in search of pain medications for

Palmer and muscle relaxers for herself. In February 2010, Appellant called her

sister, Tia Miller, and told her to pick her up at Palmer’s grandmother’s house in

Grand Prairie because Appellant had “had enough [and] it was time to go get

her.”     Appellant sounded upset.   Miller and Appellant’s other sister, Rhonda

Rubio, immediately drove from Houston to Grand Prairie because they were

concerned for the safety of Appellant, Annie, and Mahkayla. 2 After Miller and



          2
          Appellant denied that Annie and Mahkayla were with her when she called
Miller.

                                         3
Rubio arrived, they couldn’t find Appellant.         Appellant called Miller, and

Appellant’s “attitude at that time” was “different,” leading Miller to believe

Appellant and Palmer had “worked it out.” Miller and Rubio did not want to leave

without seeing Appellant, but they eventually did based on Appellant’s wishes.

At some point between January and March of 2010, Appellant also left a voice

message for her step-brother, Shaun Holmberg, in which she was crying.

Holmberg tried to locate Appellant but could not.

      On May 23, 2010, 3 Appellant, her mother, Annie, Mahkayla, Rubio, and

Rubio’s three sons were driving home after attending a family reunion in

Nacogdoches when their car broke down near Marlin. They flagged down a

police officer who called a tow truck to tow them to Marlin. After attempting to

call several people to come help them, including Appellant’s two step-brothers,

Appellant called Palmer because “he would be dumb enough to actually come

out there and work on the car for cheap.” Palmer came to fix the car, and once

the car was fixed, Appellant, Annie, and Mahkayla left with Palmer in Palmer’s

truck. Palmer apparently threatened Appellant and told her that if she didn’t

move back in with him, he would “make sure your family pays for it.” By the time

Appellant’s mother, sister, and nephews arrived home, Palmer was loading his

truck with Appellant’s, Annie’s, and Mahkayla’s possessions. Appellant acted



      3
       From this point forward, all dates will refer to incidents occurring in 2010.


                                          4
“normal,” however. Appellant moved back in with Palmer and brought Annie and

Mahkayla with her. 4

         In June, Appellant sent Holmberg a text message stating that Annie could

not walk. A few hours later, Appellant sent a second text to Holmberg saying that

“the problems were cleared up.”        Also in June, Carla Hamilton, Palmer’s ex-

girlfriend, was at Appellant and Palmer’s house for a play date with Appellant’s

daughters and Alyssa, a two-year-old girl Hamilton was baby-sitting. Appellant

told Hamilton that Annie recently had a seizure and she was taking Annie to a

neurologist to determine the cause. A few weeks later, Hamilton and Alyssa

again were at Appellant and Palmer’s home. Hamilton noticed that Annie “was

just laying [sic] on the couch” and was “real sluggish and lethargic.”     When

Hamilton questioned Appellant about Annie, Appellant stated that she had been

sedated earlier that day for an epilepsy diagnostic test. Hamilton later learned

that Appellant had lied and Annie had never been taken to a doctor. Appellant

previously had told Hamilton that she knew Palmer was on parole for injury to a

child.       Indeed, Appellant told Hamilton that she had to leave with Annie and

Mahkayla when Palmer’s parole officer visited because Palmer was not allowed

to live with children.




         4
      Appellant later told police officers that she voluntarily moved back into
Palmer’s home so she could find a job. Appellant stated Palmer was not living in
the home at the time she moved back in, but that he moved in shortly thereafter.

                                          5
      Beginning on June 25, Appellant resumed her hospital hopping, visiting six

different hospitals over a two-week period and claiming back injuries to get pain

pills. On June 27, Appellant saw Palmer “backhand[]” Annie with his open hand

so hard Annie fell into the refrigerator. Appellant stated she tried to leave after

this incident but stayed after Palmer promised he would not do it again. On July

10, Appellant saw Palmer grab Annie by the shoulders and violently shake her,

making her head “bob[] back and forth.” Appellant stated that Annie was “fine”

the next day.

                                   C. JULY 12

       On July 12, Appellant, Palmer, Annie, and Mahkayla were on their way to

see an orthopedic surgeon “for [Palmer] to have his hand evaluated for [an]

accident he sustained at work.” Annie began to have a seizure with her “right

arm extended straight up, the feet extended,” which lasted approximately one

minute. Annie then went limp and stopped breathing. Palmer drove Annie to the

closest emergency room.

      The doctors determined that Annie had a “very large subdural hematoma”

covering both sides of her brain along with bruising on her brain. The amount of

blood on Annie’s brain would have caused Annie to not behave normally such

that a parent would know Annie “had a problem and they should seek medical

attention.” One of her eyes had a detached retina caused by “severe trauma.”

These injuries were not a result of the seizure.     Indeed, Annie’s spinal fluid

contained blood caused by at least two prior traumatic brain injuries, occurring
                                        6
both recently and as far back as “several weeks.” The bleeding and bruising on

her brain caused “the seizures, which then caused her not to breathe, which then

caused the heart to stop.” Because Annie’s brain was “disastrously injured,” her

strength “had drained away trying to sustain itself,” and “the seizure finished it.”

      Annie’s condition was “cumulative” in that multiple episodes of “substantial

injury” led to the tragic consequences. Indeed, if she had received all of her

injuries at once, she would have died from them. If Annie had received medical

attention after prior traumatic events and been removed from further trauma, she

could have recovered. But because Annie was still recovering from prior traumas

to her brain, she was more susceptible to additional and tragic injury.

                    D. ANNIE’S REPRESENTED MEDICAL HISTORY

      Annie’s attending physician, Dr. James R. Matson, talked to Appellant and

Holmberg (who Appellant had called once she arrived at the hospital) to get

Annie’s medical history. Appellant told Matson that Annie had had a fever of

102°–103° for the past three days and had been sleepy and “cold to [the] touch.”

Holmberg told Matson that Annie had not been able to walk since late June.

Holmberg denied he told Matson that but did admit that he told Matson about

Appellant’s text in late June telling him that Annie could not walk because

Appellant had failed to tell Matson about Annie’s inability to walk. Holmberg told

Matson that Annie began to have seizures in late May.

      Appellant told Matson that Annie’s first seizure occurred when she was

eighteen months of age and lasted about one minute and that Annie had a 103°
                                          7
fever, extended her right arm upward, extended her left leg, and foamed at the

mouth. Annie returned to normal after the seizure. Appellant claimed she took

Annie to her primary-care physician the next day but that he told Appellant the

seizure was a result of the fever and that “no further evaluation or treatment was

needed.” 5 Appellant did not know the name of Annie’s primary-care physician or

where his office was located. Annie continued to have seizures every four days,

but Appellant did not seek any medical help.

      After arriving at the hospital, Palmer took Mahkayla. Palmer later brought

Mahkayla back, and Mahkayla had a black eye.

                              E. THE INVESTIGATION

      During the ensuing investigation, Appellant shared more details about

Palmer’s violence toward Annie. Corporal Justin Graves interviewed Appellant

on July 12 at the hospital. Appellant told Graves that Palmer had abused Annie

on several occasions. On May 30, Annie was bounced to the floor off of a

pedestal waterbed after Palmer moved “violently.”         Annie’s head and neck

“popped backwards” when she hit the floor, and Annie appeared “unbalanced

and dizzy” when she got up. Appellant did not seek medical help for Annie

because she was afraid Palmer would “do something” to Appellant. In mid-June,

Palmer and Annie came out of the bathroom after Palmer gave Annie a bath, and



      5
       During a later police interview, Appellant stated that the diagnosis actually
occurred during a phone call with the unnamed doctor.

                                         8
Appellant saw a cut on Annie’s foot with a BB lodged in the cut.         Appellant

confronted Palmer but did not take Annie to the doctor because she was scared

of Palmer. On July 10, after Palmer gave Annie a bath, Appellant saw Palmer

“forcefully slam” Annie’s head into the door frame as they were leaving the

bathroom. Annie again was unbalanced and dizzy. Appellant repeatedly told

Graves that Palmer broke her arm on July 11 when he jerked her arm. Appellant

told Graves that she had gone to a doctor to have her arm checked, which he

believed because she was wearing a cast on her arm at the time of the interview.

In fact, Graves noticed that Appellant “was worried about her injuries and not so

much about what was going on in the other room [to Annie].”

      Detective Barry Moore spoke with Palmer at the police station on July 12.

Palmer told Moore that he was a “monster” because of how he treats children.

Palmer told Moore that he hit Annie on the head with a belt. When Palmer

demonstrated how he hit Annie, “it shook [the] table and the walls in [the]

interview room.” Palmer also discussed the BB in Annie’s foot but stated that

Appellant held Annie down while he dug the BB out.

      Moore arrested Palmer and then brought Appellant to the police station to

be interviewed. 6 As she had with Graves, Appellant “talk[ed] a lot about herself,”

did not “go right into the details of what happened to Annie,” and focused on what



      6
      The videotape of this interview was played for the jury during the guilt-
innocence portion of Appellant’s trial.

                                        9
happened to her at Palmer’s hands. Appellant mentioned the BB incident to

Moore, but said that Palmer told her to take Annie to the hospital and then

changed his mind. Appellant remembered that the BB Palmer dug out of Annie’s

foot while Appellant held Annie down was gold.

      Appellant discussed the June seizure Annie had that left her unconscious

for sixteen hours. Appellant stated that when Annie woke up, she had problems

speaking, could not understand much of what was said to her, could not walk,

and indicated that her head hurt. Although Appellant admitted she had chances

after this seizure to get help for Annie, she did nothing because she was scared

and she was worried about “our clothes and stuff.” Annie could not walk on her

own after this seizure and never recovered her ability to walk according to

Appellant.   Annie’s “comprehension was a little slow,” she would throw up

occasionally, and was able to use only one arm after the mid-June seizure.

Appellant admitted that she knew Annie had a head injury and that something

was “seriously wrong” when Annie started having seizures in early June. In fact,

Appellant stated that every time Annie had a seizure, she knew there was

“something wrong” and she was “hoping and praying this wouldn’t be the end.”

Even though Palmer would tell Appellant there was nothing wrong with Annie,

Appellant stated she knew something was wrong.

      Appellant either did not know why she failed to get help for Annie, even

though she knew Annie needed medical attention, or blamed Palmer’s efforts in

stopping her from leaving, including taking the battery out of her cell phone and
                                       10
screwing the house windows shut. Additionally, she wanted to get away from

Palmer “without having the whole world in on it.” At the end of the interview,

Appellant said she could call Palmer’s father to bring some clothes to her at the

police station because she was upset she didn’t have any clothes.

      On July 22, an investigator with the Texas Department of Family and

Protective Services (DFPS), Sky Gaeta, went to the hospital to talk to Appellant.

Appellant, as before, could not give Gaeta any information on who Annie’s

primary-care physician was. Appellant told Gaeta that Palmer had abused her

and that she “liked [Palmer], but he got on her nerves sometimes.” Appellant

also recounted for Gaeta that, on June 26, she had seen Annie lying on the bed

“unconscious” and that Palmer told her Annie would be unconscious for sixteen

hours. Appellant tried to wake Annie up, but she would not respond. Appellant

and Palmer “went about their day, went to sleep that night.” At 2:00 a.m. on June

27, Annie woke up, but “could not talk, . . . she could not walk[,] and . . . she

could not use her right arm.” On July 1, Annie could stand on her own but told

Appellant “it would hurt whenever she would go to sit down.” Appellant reported

that Annie previously had daily seizures on June 16 through 19 and that after

Annie woke up on June 27, “she would have seizures daily and many days she

was having multiple seizures a day.” Appellant reported that during the night of

July 10, Annie began crying due to a nightmare. Appellant did not get up to

comfort her daughter because she was “too tired,” so Palmer went to check on

her when Annie continued to cry. Appellant opened her eyes to witness Palmer
                                       11
“violently shaking” Annie. Appellant told Palmer he was going to hurt Annie and

that he needed to come back to bed. Appellant did not get up to check on Annie

after this incident because she was “too sleepy.” Appellant told Gaeta that she

did not leave Palmer because she was afraid. Based upon her discussion with

Appellant, Gaeta believed Appellant was smart.

                            F. APPELLANT ARRESTED

      On July 22, Detective Moore arrested Appellant. One of her cellmates was

Melissa Rivera. Appellant told Rivera that she saw Palmer swing Annie by the

ankles until her head hit the television; however, Appellant did nothing because

Palmer had drugged her. Appellant said she couldn’t get away from Palmer

because she did not have a phone, Palmer jammed the bedroom door “to where

he could get in but [Appellant] couldn’t get out,” and the windows were made of

fiberglass. Appellant also told Rivera that she held Annie down when Palmer

used a knife to get a BB out of Annie’s foot. Appellant never called the police

about Palmer’s abuse because she did not want to lose custody of Annie and

Mahkayla. Rivera was struck by the fact that Appellant seemed concerned only

about herself. Rivera finally confronted Appellant about her attitude and the fact

that many of Appellant’s stories seemed embellished.          Appellant said “she

wanted to play the system like the system was playing her.”

      Another cellmate of Appellant’s, April Pollefeyt, recounted that Appellant

stated Palmer drugged her, hit Annie in the head with a belt, and had thrown

Annie into the television. Pollefeyt did not believe Appellant’s assertion that she
                                        12
had been drugged because the “needle mark” Appellant showed Pollefeyt “was

really just like a spot or something, maybe a rash.”

                        G. APPELLANT’S TRIAL TESTIMONY

      At trial, Appellant asserted that many of her statements to the police and

the doctors were not true. For example, she stated that she and Palmer made

up the BB story when Annie injured her foot on a piece of glass. 7 When asked

why she “would [] make up a story that makes you sound like a horrible person

for a baby that’s just had an accidental injury,” Appellant stated, “A friend of mine

is writing a book, sir.” She further testified that she and Palmer “cooked . . .

many things up together” because they “think quite a bit alike at some times”

based on the fact that their “birthdays are one day apart.”

      Appellant testified that Annie was never unconscious for sixteen hours and

that she had never seen Annie have a seizure before July 12. Appellant also

testified, however, that she was told Annie had a seizure in June. Appellant was

firm that Annie was fine after Palmer backhanded and shook her and that Palmer

told Appellant Annie did not need medical attention. Appellant admitted lying to

Gaeta about how Palmer hurt her arm and clarified she broke her finger hitting

Palmer after Palmer shook Annie on July 10. She further denied that she knew



      7
        Interestingly, Appellant’s nephews similarly had cut themselves on pieces
of glass, which Appellant averred she stitched up without medical intervention.
The subsequent investigation by DFPS into this incident was still pending at the
time of the investigation into Annie’s injuries.

                                         13
Palmer had been convicted of injury to a child and was on parole. Appellant

contended that Hamilton’s testimony to the contrary was a lie.             Appellant

conceded that it “could [have been] an act” when she told Detective Moore that

she knew that Annie had a head injury, that Annie was hurt, and that she needed

to do something.

                     II. SUFFICIENCY OF THE EVIDENCE

      In her first issue, Appellant contends that the evidence is insufficient to

show that her failure to seek medical attention for Annie caused serious bodily

injury to Annie. In other words, there was no evidence “that Appellant’s failure to

treat Annie’s injuries created a substantial risk of death or serious bodily injury

above and beyond that sustained in any of the initial injuries at the hands of

Palmer.”

                                A. STANDARD OF REVIEW

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). The trier of fact is the sole judge of the weight and credibility

of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise,

364 S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our
                                         14
judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the fact finder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903. The standard of review is

the same for direct and circumstantial evidence cases; circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor. Isassi, 330

S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                  B. INJURY TO A CHILD

      Appellant was indicted for a knowing injury to a child by omission.          A

person commits this offense if she knowingly causes injury to a child by omission

and has a duty to act. 8 Tex. Penal Code Ann. § 22.04(a). Parents have a duty to

care for, to control, to protect, and to provide medical care to their children. Tex.

Fam. Code Ann. § 151.001(a)(2), (3) (West 2008). Injury to a child is a “result of

conduct” offense; thus, the State had to prove not only that Appellant knowingly

failed to provide medical care to Annie, but also that she knowingly caused



      8
        The statute allows conviction upon evidence of any one of three culpable
mental states: intentional, knowing, or reckless. See Tex. Penal Code Ann.
§ 22.04(a). The State only charged Appellant with knowingly causing serious
bodily injury.

                                         15
Annie’s injuries. See Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App.

1985); see also Johnston v. State, 150 S.W.3d 630, 634–35 (Tex. App.—Austin

2004, no pet.). 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.”

Tex. Penal Code Ann. § 6.03(b) (West 2011). The requisite culpable mental

state may be inferred from a person’s acts, words, and conduct. See Robledo v.

State, 126 S.W.3d 150,155 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      A person is criminally responsible for the result of conduct if the result

would not have occurred “but for” the actor’s conduct, operating either alone or

concurrently with another cause, unless the concurrent cause was clearly

sufficient to produce the result and the conduct of the actor clearly insufficient.

Tex. Penal Code Ann. § 6.04(a) (West 2011). Thus, the result must be within the

scope of risk of which the defendant is aware, which is met if an intervening

cause is reasonably foreseeable. See Williams v. State, 235 S.W.3d 742, 764–

65 (Tex. Crim. App. 2007). When the challenged conduct is an omission, proof

that a defendant knowingly caused the result requires evidence that she was

aware with reasonable certainty that the injury would have been prevented had

she performed the act that was omitted. Byrd v. State, 112 S.W.3d 675, 677

(Tex. App.—Fort Worth 2003, pet. ref’d).

                                 C. APPLICATION

      The jury heard evidence that Appellant had seen Palmer seriously injure

Annie several times.    During this time of abuse, Annie had suffered multiple
                                        16
seizures with no medical attention. One of these seizures left Annie unconscious

and later unable to walk or talk. Further, after some of the hits she absorbed,

Annie would be dizzy and unstable. Hamilton testified that she saw Annie in late

June, and she was lethargic, sluggish, and not her normal self. Appellant lied

and told Hamilton that she sought medical care for Annie’s seizures after

Hamilton questioned Annie’s condition. Though Appellant lived next door to a

fire station and repeatedly went to hospitals herself seeking prescriptions for pain

medications, Appellant did not seek medical care for Annie.          The evidence

established Appellant had the knowledge and ability to seek medical attention as

she did so for Palmer, herself, and her mother.

       Although Appellant testified that Annie was completely normal before she

had the seizure in the car, this was contrary to what she stated in her videotaped

statement, and her admitted habit of lying and exaggerating was well known.

The jury weighed the credibility of the witnesses, including Appellant, and

reasonably concluded that Appellant knew of Annie’s injuries but failed to seek

medical help. Appellant offered multiple excuses for that failure, including that

she relied on Palmer to tell her when to do so, that she was physically restrained

by Palmer from doing so, that she simply was too tired, or that she did not want

to lose custody of her children. When confronted with her lack of concern for

Annie, the jury heard that Appellant said she “wanted to play the system like the

system was playing her.”



                                        17
      As the sole judges of the credibility of the witnesses, the jury could have

believed Matson and Moore and concluded with reasonable certainty that the

ultimate injuries Annie suffered would have been prevented had Appellant

performed the act that was omitted—obtaining medical attention over the time

period she was being abused. Matson described bruises distributed over Annie’s

torso and limbs that were from three, different traumatic episodes. He further

described blood visible in Annie’s spinal fluid that indicated both recent trauma

and trauma that occurred as much as four weeks before July 12. The CT scan

and MRI both revealed old and new blood over Annie’s brain, which indicated a

more recent and an older event of trauma. Matson further explained that when

there is a blow to the brain, the brain itself will typically look normal on day one.

Annie’s MRI, performed when she was admitted to the hospital, showed

contusions to her brain leading Matson to conclude that “there had been

significant trauma a few to several days or more prior to her presentation.”

      Matson concluded that “there had been some substantial traumatic events

repeated over time that had been very damaging to this child’s brain.”          The

repeated damage to Annie’s brain resulted in contusions and blood on her brain,

which set up a scenario where seizures were extremely likely. The seizure most

likely caused Annie’s cardiac arrest.     Matson was clear in how this scenario

culminated: “I believe that the reason Annie went down and had the [cardiac]

arrest, as a result of the seizure, which wouldn’t ordinarily do that, is because her



                                         18
brain was disastrously injured and her bodily strength had drained away trying to

sustain itself. And the seizure finished it.”

      The jury viewed Appellant’s videotaped interview and heard Moore’s

testimony.    The statements Appellant made to Moore confirmed Matson’s

conclusions. Appellant told Moore that Annie was unconscious for sixteen hours

after her seizure in June and never regained her ability to walk thereafter. Annie

told Appellant that her head hurt.        Appellant acknowledged that she knew

something was “seriously wrong” with Annie and that she felt like each

subsequent seizure could be “the end” for Annie. Yet she did not seek medical

attention for Annie.

      Matson was asked if the outcome for Annie would have been different if

Appellant had sought medical attention for Annie. He responded, “Presumably

there was some first event and had Annie been taken to get medical attention

and that included getting her away from further trauma, it is likely she would have

made a complete or nearly complete recovery.” Matson recognized two separate

actions that were needed to change the outcome of this tragedy, both of which

were independently necessary:          (1) take Annie for medical attention that

Appellant knew was needed and (2) not return her to the circumstances where

she was subjected to the physical abuse. The first act to save Annie is the

allegation of this indictment. The evidence is sufficient that Appellant did neither.

See Thompson v. State, 227 S.W.3d 153, 160–61 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d); Johnston, 150 S.W.3d at 636–37; Byrd, 112 S.W.3d at
                                          19
678; Payton v. State, 106 S.W.3d 326, 330 (Tex. App. —Fort Worth 2003, pet.

ref’d); Hill v. State, 881 S.W.2d 897, 903 (Tex. App.—Fort Worth 1994), aff’d on

other grounds, 913 S.W.2d 581 (Tex. Crim. App. 1996); cf. Dusek v. State, 978

S.W.2d 129, 133 (Tex. App.—Austin 1998, pet. ref’d) (holding evidence

insufficient to support injury-to-child conviction because child’s broken leg treated

same day as injury and no evidence treatment was delayed or recovery hindered

by treatment timing).

      The law does not require that Appellant have specialized and specific

medical knowledge that Annie would suffer a heart attack leading to a coma as a

result of significant and repeated head injuries followed by seizures. Cf. Vasquez

v. State, 272 S.W.3d 667, 672 (Tex. App.—Eastland 2008, no pet.) (recognizing

issue in injury-to-child case not whether defendant aware with reasonable

certainty that injury to child would have been prevented but whether defendant

knowingly caused injury by failing to provide adequate medical care). The law

only requires that Appellant be reasonably certain that failing to get medical care

for Annie would result in serious bodily injury to Annie. This the evidence does.

Based on the cumulative force of the evidence recited above, the State

sufficiently proved through circumstantial evidence that Appellant was reasonably

certain that Annie would suffer severe medical consequences if Annie did not

receive appropriate medical attention. See Luna v. State, 264 S.W.3d 821, 825–

28 (Tex. App.—Eastland 2008, no pet.).              Indeed, the severe medical

consequences Annie suffered were within the scope of medical risk Appellant
                                         20
could have reasonably foreseen based on the circumstantial evidence of Annie’s

prior medical condition before she was rushed to the hospital.           See, e.g.,

Williams, 235 S.W.3d at 764–65 (discussing criminal responsibility for result of

conduct).

      We overrule issue one.

                             III. JURY ARGUMENT

      Appellant argues in her second issue that the trial court erred by allowing

the State to lower its burden of proof during closing jury arguments. As with her

sufficiency argument, Appellant protests that the State argued it only had to

prove Appellant knew Annie needed medical attention:

              And Annie did not get in that [boxing] ring knowingly. She got in that
      ring because her mother placed her in it until the final knockout punch was
      delivered. And we don’t have to prove to you that [Appellant] knew that
      this is - - this was going to be the end result of Annie.

            [Defense Counsel]: Objection, Your Honor. I believe that is the law.

            [The State]: No, the law is - -

            THE COURT: I’ll overrule the objection.

             [The State]: The law is we had to prove to you that she knew that
      Annie needed to seek medical attention. She needed to seek medical
      attention for Annie. And expert after expert told you that Annie’s going to
      be showing signs and symptoms of what that man did to her, while her
      mother sat by and did nothing.

Appellant asserts that this argument lowered the State’s burden of proof because

the State failed to clarify that it also had to show that “Appellant knew or should

have known that failure to get medical treatment could result in Annie’s


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debilitating heart attack or that Appellant’s failure to seek medical attention

caused any injury to Annie beyond what Palmer did to her.” 9 Appellant concedes

that the jury charge correctly stated the applicable law.

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993).          Here, Appellant’s counsel

previously had argued that knowingly meant “your conduct is reasonably certain

to cause the result. . . . But which one of you can tell me looking here you can be

reasonably certain [Annie’s current medical condition was] going to happen eight

days later?” Counsel then emphasized that Appellant is “not a doctor. She

doesn’t know what seizures are.” The State was responding to this argument

and reinforcing the idea that Appellant did not have to know the exact medical

consequences of her omission; she only needed to be reasonably certain that an

injury would result if Annie was not taken to a doctor. Thus, this argument was

permissible as a response to opposing counsel’s argument that Appellant had to

be aware of the exact medical consequences of her omission.


      9
        Appellant also complains of nine other jury arguments made by the State
that she asserts similarly lowered the State’s burden of proof. Appellant failed to
object to these jury arguments on the grounds now raised; thus, she has forfeited
these complaints, and we will not address them. See Tex. R. App. P. 33.1(a)(1);
Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g).

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      We overrule issue two.

                               IV. CONCLUSION

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.



                                          LEE GABRIEL
                                          JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 29, 2013




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