                                                                                                 ACCEPTED
                                                                                             01-14-00930-CR
                                                                                  FIRST COURT OF APPEALS
                                                                                          HOUSTON, TEXAS
                                                                                        8/24/2015 3:33:56 PM
                                                                                       CHRISTOPHER PRINE
                                                                                                      CLERK


                                 No.    01-14-00930-CR


                           IN THE       COURT    OF   APPEALS
                                                                            FILED IN
                                                                     1st COURT OF APPEALS
                           FIRST       JUDICIAL       DISTRICT           HOUSTON, TEXAS
                                                                     8/24/2015 3:33:56 PM
                                   HOUSTON,       TEXAS
                                                                     CHRISTOPHER A. PRINE
                                                                             Clerk




BRIDGET RENAE MILLER,
                            Appellant

VS.


THE    STATE OF TEXAS,
                            Appellee




              APPELLANT'S    BRIEF       SPECIFYING       ERROR   OF WHICH


                        APPELLANT       COMPLAINS      ON APPEAL




          APPEALED      FROM THE       23 9TH   JUDICIAL    DISTRICT   COURT


                          OF BRAZORIA COUNTY,             TEXAS

                            IN CAUSE NUMBER 74,2 32




                       Oral Arguments are Not Requested




John J.      Davis
P.O.   Box    787
2 05 N. Chenango
Angleton, Texas 77516-0787
SBN    05515500
Telephone: (979) 849-4362
Email: d.attorne@sbcglobal.net

ATTORNEY      FOR    APPELLANT
                      IDENTITY   OF   PARTIES   AND    COUNSEL


Attorney for Appellant,          BRIDGET RENAE MILLER

Trial    Counsel:
Dominique Gerard                                Sallie Godfrey
613 W. Mulberry                                 613 W. Mulberry
Angleton, Texas 77515                           Angleton, Texas 77515
Telephone: (979) 549-0999                        Telephone: (281) 802-1743
Facsimile:                                      Facsimile:
SBN:    07813100                                SBN:    24032231


Appellate Counsel:
John J.       Davis
P.O.    Box    787
2 05 N. Chenango
Angleton, Texas 77515
Telephone: (979) 849-4362
SBN:    05515500
d.attorne@sbcglobal.net

Attorneys for the State of Texas:
Jeri    Yenne
Criminal District Attorney
Brazoria County Courthouse
111 East Locust,         Suite 408A
Telephone:       (979)   864-1230
Facsimile:       (979)   864-8914

Trial   Assistants:
        Travis Townsend       (SBN 24048843)
        Lily Martinez         (SBN 24045599)

Appellate Assistant:
        David Bosserman


Trial    Court
Judge Patrick Sebesta
239th Judicial        District   Court
Brazoria County Courthouse
111 East Locust,         Room 310A
Angleton, Texas 77515
Telephone: (979) 864-1256
Facsimile:       (979)   864-1056




                                         li
                                   TABLE   OF   CONTENTS


Identity of Parties and Counsel                                                         ii

Table of Contents                                                                    iii

Index of Authorities                                                                     v

Statement       of   the Case                                                           vi

Citations to the Record                                                                 vi

Issues    Presented                                                                  vii

Statement of         Facts                                                               2

POINT    OF    ERROR ONE                                                                 9


        THE    EVIDENCE      IS   INSUFFICIENT TO      SUPPORT A     JURY   CHARGE      OR


JURY VERDICT ON INJURY TO A CHILD BY FAILING TO SEEK AND/OR

PROVIDE       TIMELY    MEDICAL     CARE AS     ALLEGED    IN   PARAGRAPH   FIVE   OF


THE   INDICTMENT.


        Relevant       Facts                                                             9

        Summary of Argument                                                             12

        Argument and Authorities                                                        14

POINT    OF   ERROR TWO                                                                 18


        BECAUSE      PARAGRAPH      FIVE   OF   THE   INDICTMENT   WAS   SUBMITTED


TO THE JURY IN THE DISJUNCTIVE,                  APPELLANT WAS DENIED THE

RIGHT    TO A   UNANIMOUS         JURY   VERDICT.


        Relevant       Facts                                                            18

        Summary of Argument                                                             19

        Argument and Authorities                                                        21

        Egregious Harm Analysis                                                         24




                                            in
POINT OF ERROR THREE                                                31

     THE TRIAL     COURT    ERRED   WHEN   IT   OVERRULED APPELLANT'S

OBJECTIONS   TO THE   STATE'S ARGUMENTATIVE     SIDEBAR COMMENTS.

     Relevant    Facts                                              31

     Summary of Argument                                            32

    Argument and Authorities                                        33

     Harm Analysis                                                  34

Prayer for Relief                                                   37

Certificate of    Service                                           38




                                    IV
                                INDEX   OF   AUTHORITIES


CASES:
Arizona v.    Fulminante,         111 S.Ct.       1246    (1991)                36,37

Brokenberry v. State, 853 S.W.2d 145
     (Tex.App.-Houston [14th Dist] 1993)                                        33,34
                                                                                   37
Brooks v. State,         323 S.W.3d893            (Tex.Cr.App.      2010)...    15,17

Coble v. State,      330 S.W.3d 253              (Tex.Cr.App.      2010) ....      34

Cruz v.   State,    122    S.W.3d 309
     (Tex.App.-Houston [1st Dist]                   2003)                          34

Gonzalez Soto v.         State,    267 S.W.3d 327
     (Tex.App.-Corpus Christi 2008)                                              23,24
                                                                                 30,31
Guevara v. State,         152 S.W.3d 45           (Tex.Cr.App.      2004)...     15,17

In re W.G.W.,      812    S.W.2d 409
     (Tex.App.-Houston [1st Dist]                   1991)                        33,34
                                                                                    37
In re Winship,      90 S .Ct.      1068      (1970)                              14,17

Jackson v.    Virginia,         99 S .Ct.    2781     (1979)                     14,17

Jimenez v.    State,      240    S.W.3d 384
     (Tex.App.-Austin 2007)                                                      34,37

Johnson v. State,         43 S.W.3d 1 (Tex.Cr.App. 2001)                         34,37

Jourdan v. State,         428 S.W.3d 86           (Tex.Cr.App.      2014)...        29

Landrian v. State,         268 S.W.3d 532           (Tex.Cr.App.      2008).     21-23

Martinez y.    State,      190 S.W.3d 254
     (Tex.App.-Houston [1st Dist]                   2006)                        23,24

Morales v. State,         32 S.W.3d 862           (Tex.Cr.App.      2000) ...       35

Ngo y. State,      175 S.W.3d 738            (Tex.Cr.App. 2005)                  21-24
                                                                                 29-30
Stein v. State,      492 S.W.2d 548              (Tex.Cr.App.      1973)....        34

Stuhler v.    State,      218 S.W.3d 706           (Tex.Cr.App.      2007) .. 15,21-24
                                                                                 29-31
Thompson v. Louisville,            80 S. Ct. 624         (1960)                     14

Vick y. State,      991 S.W.2d 830            (Tex.Cr.App.        1999)             22

                                             v
Warner v. State,      245 S.W.3d 458             (Tex.Cr.App. 2008)...                24

CONSTITUTION:
Article V,      Section 13    Texas Constitution                                      21

Fourteenth Amendment         to United States Constitution...                         14

RULES:
Rule 44.2 Texas Rules of Appellate Procedure                                          34

Rule   613   Texas Rules     of    Evidence                                           35




                           STATEMENT        OF   THE   CASE


       Appellant was       charged      by indictment in five paragraphs

with the offense of Injury to                a     Child      (CR     p.751-752;     V.4

p.199-202). Appellant entered a plea of "not guilty" before a

jury (V.4 p.202). Appellant was found guilty                          of     Injury to a

Child (V.9 p.89).       Punishment           was       assessed       by     the jury at

ninety-nine (99) years             confinement           in     the        Institutional

Division of T.D.C.J.         (V.9 p.152). No fine was                  assessed     (V.9

p.153) .




                        CITATIONS       TO       THE   RECORD


The following abbreviations will be used to cite the record:

CR.    refers    to Clerk's       record.

V.     refers to volume of the Court Reporter's Statement of
       Facts where the evidence referred to may be found.

p.     refers to the page or pages where the cited material may
       be    found.

                                            vi
                                  ISSUES    PRESENTED


POINT OF ERROR ONE:                                                                  9

    THE EVIDENCE       IS       INSUFFICIENT TO SUPPORT A           JURY CHARGE OR

    JURY VERDICT           ON     INJURY     TO    A   CHILD BY    FAILING TO SEEK

    AND/OR PROVIDE              TIMELY      MEDICAL         CARE   AS     ALLEGED   IN

     PARAGRAPH      FIVE    OF    THE    INDICTMENT.


POINT OF ERROR TWO                                                                  18

     BECAUSE   PARAGRAPH FIVE OF THE               INDICTMENT       WAS     SUBMITTED

     TO THE JURY IN THE DISJUNCTIVE,                   APPELLANT WAS DENIED THE

     RIGHT   TO A    UNANIMOUS          JURY VERDICT.


POINT OF ERROR THREE                                                                31

     THE TRIAL       COURT        ERRED     WHEN       IT   OVERRULED APPELLANT'S

OBJECTIONS   TO THE    STATE'S ARGUMENTATIVE                SIDEBAR COMMENTS.




                                           vi 1
                           IN THE      COURT    OF    APPEALS


                           FIRST      JUDICIAL       DISTRICT


                                   HOUSTON,         TEXAS




BRIDGET RENAE MILLER,
                            Appellant

VS.                                                           NUMBER      01-14-00930-CR


THE STATE OF TEXAS,
                            Appellee




              APPELLANT'S    BRIEF      SPECIFYING          ERROR   OF   WHICH


                        APPELLANT      COMPLAINS       ON APPEAL




            APPEALED    FROM THE      23 9TH JUDICIAL         DISTRICT      COURT


                          OF BRAZORIA COUNTY,               TEXAS

                            IN CAUSE NUMBER 74,232




TO    THE   HONORABLE    JUDGE   OF    SAID    COURT:


        COMES NOW,       BRIDGET       RENAE MILLER,          hereafter referred to

as Appellant,      and     respectfully              submits        this         his     brief

specifying error of          which       Appellant           complains          on     appeal.

Pursuant to the          Texas     Rules       of     Appellate          Procedure,        the

Appellant would show             through        his     attorney          the        following

points of error of which he wishes to complain:
                               STATEMENT          OF    FACTS


     For the     sake        of brevity and clarity in this brief,                               the

deceased child will hereafter                    be     referred        to     as        "C\W" or

"child". C/W's mother,              Sandra Vela,          will be referred                 to     as

"mother". C/W's father,               Clifton            Floyd     Tarrant,              will     be

referred to as "father".              Defendant/Appellant Bridget Miller,

will be referred to as             "appellant".

     The name    of    the    deceased           child        in this    case       is    Clifton

Floyd Tarrant II, also called "Little Cliff",                                who     was        born

May 29, 2008     (V.5        p.43; see V.10 SX-4). Sandra Vela was the

child's mother and           Clifton Floyd              Tarrant        was     the        child's

father (V.5 p.41;          V.10      SX-4).           C/W's     mother         and         father

separated in April,          2011 (V.5 p.48). At first C/W stayed with

his mother but        at     the     end of August,             2011,    he went to stay

with his father (V.5 p.48).                The        mother     and     father           did not

divorce until September,             2014    (V.5 p.73).

    Appellant and the father were girlfriend                                 and     boyfriend

(V.7 p.38). Appellant              began     a        relationship with the father

sometime after the mother and father separated (V.5 p.52)                                        and

she started living with the father                       and     the child off and on

three to five        months prior to June 20, 2012                      (V.5        p.74;       V.6

p.134, V.7 p.153,          160).     At      7:15 a.m. on June 20, 2012, C/W

arrived at the emergency room of Brazosport Memorial Hospital

in the arms     of     his     father (V.5              p.187-189,           206).        He     was

unresponsive    (V.5 p.2 01). Dr.            Corey Anderson,                 the     emergency

room physician, diagnosed              C/W        as     having        massive           head and
brain injuries (V.6       p.13).    The     father told nurses that C/W
fell in the bathtub and hit his           head      (V.5       p.192-193,      195,

208). C/W was     later    Life     Flighted       to     Hermann     Hospital's

Department of Neurosurgery in Houston (V.6 p.15, 17-18) .

                      INTERVIEWS      OF APPELLANT


     Over the next five weeks prior to C/W's death, Appellant

related the events        surrounding      the     child's        injuries to no

less than five investigators          through       six        interviews.     They

were as   follows:

  1. Patrol     Officer    Maricruz       Ramos,        Lake     Jackson     Police

     Department, at       Brazosport       Hospital        Emergency       Room on

     June 20, 2012 (V.7 p.15-17);

  2. Patrol     Officer     Slade    Moran,        Lake         Jackson      Police

     Department, at        Brazosport      Hospital Emergency              Room    on

     June 20, 2012. Slade was unable to identify Appellant in

     court    (V.7 p.31-34).

  3. Robert     Turner,     Detective Sergeant, Lake Jackson Police

     Department, at Brazosport            Hospital        Emergency        Room    on

     June 20, 2012     (V.7 p.48-49)       and at Hermann           Hospital        on

     the same day (V.7 p.51-54);

  4. Haley    Deem,    Child Protective Services investigator, at

     Hermann Hospital on June 20, 2012 (V.7 p.103-105).

  5. Eric Holmes,     Child Protective           Services supervisor,             in a

     conference room at Hermann Hospital I.C.U.                     (V.6     p.113,

     121) .

     The interviewers        testified      that        their recollection of
the statements made by Appellant were as follows:

        C/W's father went to work about 6:30 a.m.                            (V.7 p.48, 52,

113).    After the     father        left,        she        received a call from him

asking her to see if his work                    badge        had     fallen in the yard

(V.7 p.103).    She     checked and came back in (V.7                            p.103).      She

then checked on        C/W,        smelled        poop and noticed that C/W had

pooped his pants while he was sleeping                          (V.6 p.121; V.7 p.15,

48, 52, 103).        The stool was dry on his body                         (V.7      p.16,    32,

52).    She took him to the bathroom,                   cleaned him and placed him

in the shower        (V.6 p.121; V.7 p.16,                   20-21,    32, 48,       52, 103).

Appellant checked on C/W twice and he was okay (V.7 p.104).

Appellant left him in the shower                       to     soak     and       went to make

coffee (V.6 p.121;           V.7     p.16,       20-21,       32-33,       48,      52,     104).

When she heard a thud or thump and a cry,                            she ran back to the

bathroom (V.6 p.121;           V.7        p.16,        33,     48, 52, 104).              C/W was

laying in the bottom of the tub                    with his feet closest to the

drain (V.7 p.33,       49,    52).      He had a blank stare                  on     his face,

looked stunned,       and wouldn't respond (V.7 p.16,                         49,    53,    104).

Appellant felt a        bump       on      his     head (V.7 p.16,               33, 49, 53).

Appellant called C/W's father,                    told        him     he     needed to come

home and waited till he arrived (V.7 p.17,                            33-34,        49,    53-54,

104).    The father     returned           about 7:10 a.m.             (V.6 p.105,          113).

Appellant and the father took                    C/W        to the hospital emergency

room (V.7 p.17,       34,    54,    105).

        Although there were some inconsistencies and variations,

Appellant related the              same     basic           facts     throughout            these
interviews.      When Detective          Turner went    to       the   house    where       the


incident occurred, he             found     fecal    matter in C/W's pants on

the floor of the bathroom (V.7 p.55,                  57,    59-60,      64,    84).

                       APPELLANT'S         TRIAL    TESTIMONY


       Appellant also testified before                 a grandjury (V.7 p.215-

216)   and at      trial    (V.7     p.152-235; V.8 p.7-53).                   At     trial,

Appellant related the             same     basic facts. Her trial testimony

relating to the events of the                morning        of     June 20,         2012,    is

set out below and supplemented with citations                           to     where        the

same basic facts may be found in the interviews:

  1. C/W's       father     went     to work about 6:25 a.m.                  (V.7 p.195;

       see p.48,     52,   113) .

  2. As passed C/W's room, she                smelled        poop (V.7 p.195;               see

       V.6 p.121; V.7 p.15,          48, 52, 103).

  3. Appellant        woke C/W up and took him to the                        shower     (V.7

       p.195; see V.6 p.121; V.7 p.16,                20-21,       32, 48,      52, 103).

  4. C/W     had     a big ball of poop in his pants which she held

       until she got him in the shower (V.7 p.195) .

  5. During this period,            the father called on and off because

       he couldn't find his work badge.                Father thought he might

       have dropped        it     in the yard       while        moving.        Appellant

       looked,     didn't find it, and came back in (V.7 p.196; see

       p.103). This call came at 6:52 a.m.                   (V.8 p.28).

  6. Appellant        checked on C/W again twice and                     he     was     okay

       (V.7 p.196-197;          see p.104).

  7. Appellant went to the kitchen to make coffee                             (V.7 p.197;
     see V.6 p.121; V.7 p.16,             20-21,    32-33, 48, 52, 104).

  8. When      she    heard a thud or thump and a cry,                  she ran back

     to the bathroom (V.7 p.197;             see V.6 p.121; V.7 p.16,                  33,

     48,     52,   104) .

  9. C/W was laying on his back              with his feet closest to the

     drain (V.7 p.198; see p.33,             49, 52).

10. C/W had a bump on his head (V.7 p.198; see p.16,                            33, 49,

     53) .

11. Appellant         tried to talk to C/W but he wouldn't                      answer.

     C/W moaned        but didn't look at Appellant. He looked like

     he knocked himself out          (V.7     p.198;       see     p.16,        49,    53,

     104) .

 12. Appellant called C/W's father at 7:03 a.m.                         and told him

     he needed        to come home    (V.7 p.198-199;            see p.17,          33-34,

     49,     53-54,   104;    (V.8 p.36).

 13. At      7:08 a.m.,      the father     called     Appellant          back        (V.8

     p.36). Appellant was crying (V.7 p.199). The father told

     her not to drive that he would pick them up                        (V.7 p.199).

     Appellant did not want to drive because                      she     would have

     to put C/W down (V.7 p.199).

 14. Appellant         did     not    think        C/W's    injury        was        life-

     threatening (V.7 p.199).

                        DOCTOR    FINDINGS    &    OPINIONS


     The State        called     five doctors        including          the     medical

examiner to discredit            Appellant's       version         of         how      C/W

sustained his injuries:
        Dr. Corey     Anderson, emergency room physician Brazosport

Hospital, diagnosed C/W           as having         massive      head     and        brain

injuries and was having trouble breathing (V.6                         p.13).        A     CT

scan confirmed Dr.          Anderson's       diagnosis,         and     arrangements

were made to transfer C/W to             Hermann          Hospital      (V.6       p.16).

Anderson testified that C/W's injuries were "absolutely                                  not"

consistent with a           slip-and-fall         in a bathtub (V.6 p.49). He

opined that it is unlikely that                  a standing ground-level fall

in a bathtub        would    produce such significant                 injuries           (V.6

p.50,    67-70) .

        Dr. Rebecca     Girardet,     associate professor of pediatrics

and specialist in child abuse               at     the    University         of      Texas

Medical School,       testified      that        she consulted        with        Hermann

Hospital on C/W's case looking for signs of abuse and neglect

(V.6 p.143). Her        investigation included an exam of C/W after

he got out of surgery (V.6 p.143-145). She noted his head was

"grossly swollen" due to trauma (V.6 p.145-146).                        The CT scan

from Brazosport Hospital showed                  a lot of subdural hemorrhage

with active bleeding          and swelling of the brain                 (V.6      p. 146-

147). The ophthalmic          exam   showed hemorrhages in the back of

both eyes and a shearing of the                  layers    of   the right retina

(V.6 p.150). Dr. Girardet opined that C/W's injuries were not

consistent with a routine household injury or a slip-and-fall

in the bathtub but could have resulted from                     a     blow      to       the

head (V.6 p.155) .

        Dr. Judianne Kellaway, ophthalmologist at the University
of Texas Medical         School,    examined        C/W       and        found multiple

intraretinal hemorrhages throughout the back of both eyes and

retinoschisis in the right eye (V.6 p.202-203). Retinoschisis

is a shearing or separation of the three layers of the retina

(V.6 p.181-182). It does not result from a direct impact                                (V.6

p. 204) but is     the     result     of      a      severe         shaking       and    is

indicative of abusive head trauma or shaken baby (V.6 p.197).

Retinoschisis cannot be            caused     by     a    slip-and-fall            or    by

slapping (V.6 p.211, 216). Dr. Kellaway opined that C/W's eye

injuries could only be caused by a severe and violent shaking

(V.6 p.203,     211-212) .

       On the    State's rebuttal,          Dr.    Marcella Donaruma,             a child

abuse pediatrician for           the Baylor         College         of     Medicine      at

Texas Children's Hospital, testified that she                            reviewed C/W's

medical records from         Dr.     Vavich        at Parking Way Pediatrics,

Brazosport Hospital, Hermann               Children's         Hospital,           and   the

autopsy report (V.8         p.67, 77). It was her opinion                     that      C/W
was "most likely" the victim of fatal physical abuse and that

"trauma to the head was responsible for his death (V.8 p.71).

She testified that         the     injuries        could      have been caused by

shaking the child,        striking the        head       of    the        child with an

unknown object or causing the head of the child                            to strike an

unknown object     (V.8      p.79).         She     opined      that        the     injury

occurred more than one           (1) hour     and        less than six        (6) hours

from the CT scan which was performed at 7:53 a.m.                            (V.8 p. 72-

74).   She testified       that C/W would not have been able to walk
or talk after         suffering such massive head trauma (V.8 p.79).

It was her opinion that there                     was     "no        way" the child could

have sustained these injuries if he slipped and                                    fell     in the

bathtub (V.8 p.76-77).

      C/W died at Herman Hospital on July 27, 2012,                                  after life

support was removed             (V.5        p.68-69;          V.10 SX 16; V.15 SX 43),

five weeks      (37 days)       after he          was     first        seen at Brazosport

Hospital      (V.6 p.84,       98).    The medical examiner opined that the

manner   of   death      was    a    homicide      and the          cause    of      death       was

blunt trauma of          the head (V.6 p.95-96;                     see also V.5 p.69-70;

V.10 SX 16) .

                                    POINT    OF   ERROR       ONE


      THE     EVIDENCE    IS    INSUFFICIENT TO               SUPPORT A      JURY     CHARGE      OR


JURY VERDICT ON INJURY TO A CHILD                        BY     FAILING TO SEEK AND/OR

PROVIDE TIMELY        MEDICAL        CARE    AS   ALLEGED       IN PARAGRAPH              FIVE    OF


THE   INDICTMENT.


                                      RELEVANT      FACTS


       Paragraph five           of the indictment alleges that Appellant

caused serious bodily injury to                     C/W        by omission "by failing

to seek and/or         provide timely medical care"                         (CR    p.752;        V.4

p.201-202) . At guilt-innocence,                   the court charged the jury on

this theory of culpability (CR p.929-930; V.9 p.14-15).

      C/W's father went to work about 6:30 a.m.                               (V.7 p.48,         52,

113). After the          father        left,       she        received a call from him

asking her to see if his work                     badge        had     fallen in the yard

(V.7 p.103).      This     called came at 6:52 a.m.                         (V.8     p.28).       At
6:55 a.m., C/W's        father        signed        in for work at Dow Chemical

(V.7 p.91). When Appellant found                    C/W       injured in the bathtub

she called C/W's father and told him he needed                               to     come home

(V.7 p.17,    33-34,     49,     53-54,       104). The father received this

call from Appellant        who was hysterical                  at      7:03        a.m.     (V.7

p.91-92).     The Father called Appellant back to                            tell     her not

to drive at     7:08     a.m.     (V.7 p.92). He arrived home at about

7:10 a.m.    (V.6 p.105,       113) and           took C/W and Appellant to the

hospital emergency room (V.7 p.17, 34, 54, 105). They arrived

at the emergency        room     at        7:15     a.m.       (V.5         p.187,         205).

Appellant testified that              they        arrived      at      the        hospital in

under 30 minutes from the time                    she     found       him     injured (V.7

p.199). Detective Robert Turner opined that paramedics                                     could

not have responded        from        the fire station to the house,                        done

their evaluation, and transported                       C/W   to      the     hospital any

faster than it took Appellant's husband to drive                               home,        pick

them up, and     take     them        to     the        emergency room (V.7 p.94).

There was no evidence to support                    a finding that C/W's injury

was caused by or exacerbated by any delay in                            getting           him to

the emergency room. The evidence is insufficient to show that

Appellant failed to        seek        and/or provide timely medical care

or that this led to, caused,               or exacerbated C/W's injury.

    However,   the prosecutor used the allegations in Paragraph

Five to urge jury conviction based                      on a completely different

theory which was likewise not supported by the                               evidence. The

State' third witness was Aimee Mitchell,                       friend of Appellant.



                                            10
Mitchell was using           phone        number     832-508-8992        (V.5 p.141).

Mitchell identified Appellant's                    number     as 979-824-8273          (V.5

p. 146) . Using phone         records,       the State showed           that     on     the

morning of June        20,        2012,     Mitchell        sent     text messages to

Appellant at 6:01,          6:05,    6:29,        6:32,     6:41,     6:50,    and 6:52

a.m.    (V.5 p.146-148).           During this same period Appellant sent

text messages to her at 6:02,                6:27,    6:28,    6:29,     6:40,        6:50,

and 6:51 a.m.        (V.5     p.146-148).           Noting     the     texts     sent by

Appellant at 6:02,           6:27 and 6:28,           Mitchell        testified        that

Appellant said "somebody              was going to the hospital                and      she

might need a       place      to stay because they were going to be in

the hospital in Houston."             (V.5        p.151).      The prosecutor then

attempted to use the text from Appellant at 6:02 to establish

the time at which Appellant told Mitchell that somebody needs

to go to     the     hospital        (V.5     p.153). On cross           examination,

however,    Mitchell admitted              she did not remember why she sent

the first text to Appellant at                    6:01 a.m.    (V.5 p.162-163) nor

could she recall        what        time she received the message                 asking

about possibly staying at Mitchell's house in Houston because

someone was going to the hospital (V.5 p.169,                         175) .

        On final      jury         argument,         the     State     laid     out     the

preposterous theory that C/W was not injured between 6:30 and

7:15 a.m. but,       in fact,       was injured prior to 6:01 a.m.                before

the father left for work (V.9                 p.56-57).        To make this theory

work,    the State     relied        on the testimony of              Aimee    Mitchell

that Appellant sent           a     text message at 6:02 a.m.                 saying she



                                             11
would need a     place     to stay because someone was going to the

hospital   (V.9 p.57). However,               Mitchell           admitted she did not

know when she     received        this        text.        So 6:01        a.m.        is    pure

conjecture on the part of the prosecutor and is not supported

by the evidence.

     In addition,        the   second          and     more substantial problem

with the prosecutor's theory is                 that uncontroverted evidence

shows that C/W     and     Appellant did not arrive                       at     Brazosport

Hospital until 7:15        a.m.     on June 20, 2012                   (V.5 p.187,         205).

The decision to send C/W to Houston                    was not made until after

he was seen by the emergency room doctor and                             was     sent for a

CT scan (see     V.6      p.15-16).           Thus,        it     is     impossible          for

Appellant to have known C/W would                    be sent to Houston or that

she might need     a     place to stay in Houston until                          some       time

after 7:15 a.m.,       well after her last text message to Mitchell

at 6:51 a.m.     (V.5     p.146-148). There is simply no support in

the evidence for Paragraph 5 of the indictment.

                           SUMMARY       OF    ARGUMENT


     Paragraph five of the indictment                       alleges that Appellant

caused serious bodily injury to C/W by omission                                "by     failing

to seek and/or     provide        timely        medical           care" and the court

charged the jury on this theory                 of     culpability at the guilt

phase of the trial.       The evidence strongly supports                             a finding

that the child     was     injured        sometime between 6:52 a.m.                        when

the father called Appellant regarding his lost work badge and

7:03 a.m. when     Appellant        called           the        father     in        hysterics



                                          12
saying C/W had     been     injured and that he needed to come home

immediately. The father immediately                went       home    and took C/W
and Appellant to      the    hospital        emergency        room     where     they
arrived at 7:15      a.m.    There     was    no     credible         evidence     to

suggest Appellant failed        to     seek     immediate        medical       care.

Likewise, there was absolutely no evidence that                       any delay in
seeking medical care caused or exacerbated the serious bodily
injury which had already been sustained by the child.

     However, the      prosecutor argued that C/W was not injured

between 6:30 and 7:15 a.m. but, in fact, was injured prior to

6:01 a.m.   before the father         left    for    work.       To     make   this

theory work, the prosecutor relied on the testimony                       of Aimee

Mitchell that Appellant        sent     a    text    message          at 6:02 a.m.

saying she would need a place           to    stay       in    Houston     because

someone was going to the hospital. However, Mitchell admitted

she did not   know    when she received the text from                   Appellant

regarding someone going        to the hospital and no one knew that

C/W would be sent to the Hospital in Houston until after 7:15

a.m. when C/W was examined at          the     emergency         room     and a CT

scan was performed. This occurred well after Appellant's last

text to Mitchell     at     6:51 a.m. This theory constituted                  pure

conjecture on the part of the prosecutor and the evidence not

only failed to     support    it, the evidence disproved it. There

is simply no support in the evidence               for    Paragraph 5 of the
indictment.




                                      13
                          ARGUMENT AND AUTHORITIES


       The standard       of    review for sufficiency of the evidence

is whether,      after viewing the            evidence           in     the     light        most

favorable to the       prosecution,             any rational             trier        of     fact

could have found the essential elements of the crime beyond a

reasonable doubt.      Jackson          v.    Virginia,           99 S.Ct.          2781,    2789

(1979). The issue in Jackson was                     the     distinction             between a

review for "evidentiary               sufficiency" and the                "no        evidence"

doctrine set out in Thompson v.                    Louisville,         80 S.Ct.       624,    628

-629   (1960).    Jackson,       99     S.Ct.        at     2786. The "no evidence"

doctrine addresses cases where                     the     record is totally devoid

of any relevant evidence to support a crucial                             element of the

offense charged.      Thompson,         80 S.Ct.          at 628.

       In addressing evidentiary sufficiency,                          the Jackson court

noted that the Due Process Clause of the Fourteenth Amendment

protects the accused            against       conviction              except        upon proof

beyond a reasonable            doubt     of         every        fact         necessary        to

constitute the crime            with     which he is charged.                   Jackson        99

S.Ct. at 2787;       In    re     Winship,           90 S.Ct.         1068,    1073    (1970).

Requiring proof beyond            a     reasonable           doubt       of     every        fact

necessary to constitute the crime reduces the risk of factual

error "by impressing upon the factfinder the need                                   to reach a

subjective state of            near     certitude           of    the     guilt        of     the

accused." Jackson,        99 S.Ct.       at        2787.     Thus,       proof        beyond a

reasonable doubt goes            beyond        a mere "modicum"                of     evidence

which cannot by itself rationally support a conviction beyond



                                              14
a reasonable doubt.              Jackson,             99             S.Ct.             at         2789.

      In Texas,     Jackson v.         Virginia        is        the        only        standard a

reviewing court should apply in determining whether                                          evidence

is sufficient to         support        each element of an offense. Brooks

v.   State,    323 S.W.3d 893,          912    (Tex.Cr.App.             2010). But Brooks

emphasized that the State is required                           to     prove each element

beyond a reasonable doubt.              Brooks,       323 S.W.3d              912.          Therefore

if, given all       of       the       evidence,           a     rational              jury       would

necessarily entertain a                reasonable                doubt            as         to     the

defendant's guilt,        due        process requires the appellate                               court

to reverse and      order        a     judgment       of         acquittal.             Guevara v.

State,    152 S.W.3d 45,        49    (Tex.Cr.App.             2004).

      Injury to     a     child is a "result                   of      conduct              offense."

Stuhler v.     State,    218 S.W.3d 706,             718       (Tex.Cr.App.             2007). The

gravamen of the offense is the resulting injury                                    the        conduct

caused,   not the       conduct        that        caused the injury.                   Stuhler at

718. Paragraph Five of the indictment                           alleges an omission in

failing to seek         medical        care. Any such omission                          would,       of

necessity, have occurred               subsequent              to C/W's injury and did

not cause the       injury.          This      is      a         completely                 different

transaction from the            act     which        caused           the     injury.             Thus,

Paragraph Five alleges               a different and distinct offense from

those alleged in Paragraphs One                     through           Four        (see Point of

Error Two).     The uncontroverted evidence shows that this child

was injured sometime after C/W's father went                                 to        work       about

6:30 a.m.     The   father       signed        in for work at Dow Chemical at



                                              15
6:55 a.m. C/W's      injuries        were       totally incapacitating. When

Appellant found that C/W was injured, she called C/W's father

in hysterics and told him he needed to come home.                                The father

received this call at 7:03 a.m.                 He        immediately        drove home,

picked up Appellant         and     the child,            and drove        them     to     the

emergency room where         they        arrived at 7:15 a.m.,               twelve       (12)

minutes after Appellant called him and told him to come home.

As Lake Jackson Detective Robert Turner opined,                            E.M.S.        could

not have done any better.

       On final    jury     argument,           the            State      laid     out     the

preposterous theory that C/W was not injured between 6:30 and

7:15 but,    in   fact,    was injured prior to 6:01                      prior     to     the

father leaving for         work.     Barely          a        scintilla     of     evidence

supported this argument            and      the          allegations        set     out     in

Paragraph Five. Using phone records,                      the State        relied        on an

exchange of text          messages        between              Aimee       Mitchell        and

Appellant which evidently occurred between 6:01 a.m.                               and 6:52

a.m.   The content of the messages                was         not      shown. Noting the

texts sent by     Appellant         at     6:02,          6:27 and 6:28,           Mitchell

testified she thought         Appellant told her "somebody was going

to the hospital and she might               need          a    place to stay because

they were going to be in the hospital in Houston."                                On cross,

however,    Mitchell admitted            she did not remember why she sent

the first text to Appellant at 6:01 a.m.                         nor could she recall

what time she      received        the message                asking     about     possibly

staying at Mitchell's         house in Houston because                      someone        was



                                           16
going to the      hospital.          C/W    did    not      arrive             at Brazosport

Hospital until 7:15 a.m.             and    the    decision           to           send    him to

Houston was not        made   until     he was    examined and                 a    CT scan was

performed, well after            7:15      a.m.    On      the       thin thread of an

unrecalled text message,             the prosecutor             claimed             the    injury

occurred prior to 6:01 a.m. This was his evidentiary                                      support

for Paragraph Five            that    Appellant was guilty by omission in

failing to seek and/or provide                   timely     medical care. This is

not even a scintilla of evidence,                  and does not                rise       to     the

level of a       mere "modicum" of evidence which cannot by itself

rationally support a conviction                   beyond        a    reasonable doubt.

Jackson,   99 S.Ct.      at 2789. The evidence does not prove beyond

a reasonable doubt            that    Appellant or the father                        failed       to

seek and/or provide            timely      medical        care       or        that any such

failure caused serious bodily                injury        to       C/W        or in any way

exacerbated C/W's injury.               Any such failure to                    seek       medical

care would have         occurred        after      C/W     sustained                the serious

bodily injury. The State failed                   to     prove       each           element       of

Paragraph Five beyond a reasonable doubt. Brooks,                                    323 S.W.3d

912; Jackson 99 S.Ct.            at 2787; In re Winship,                   90 S.Ct.            1068,

1073   (1970).     A    rational        jury would necessarily entertain a

reasonable doubt as to Appellant's                     guilt regarding Paragraph

Five of the indictment and due process requires the appellate

court to reverse         and     order      a judgment of acquittal                        as     to

Paragraph Five of         the        indictment.         Guevara          v.        State,       152

S.W.3d 45,   49    (Tex.Cr.App.         2004).



                                            17
                                POINT       OF    ERROR TWO


     BECAUSE PARAGRAPH               FIVE        OF THE INDICTMENT WAS SUBMITTED

TO THE JURY     IN THE DISJUNCTIVE,                  APPELLANT          WAS     DENIED      THE

RIGHT TO A    UNANIMOUS     JURY VERDICT.

                                     RELEVANT       FACTS


     The indictment         in        this        cause alleges the             offense      of

Injury to a     Child      in        five paragraphs (CR p.751-752; V.4 p.

199-202). Paragraphs one through                     four alleged that Appellant

caused serious bodily            to C/W by (1) causing                   C/W's       head    to

strike an unknown       object;             (2)     causing an unknown object to

strike C/W's head;      (3) by shaking                  C/W;     and     (4)     by causing

trauma to C/W's head,        the exact manner and means                         unknown (CR

p.751; V.4 p.200-201).               Paragraph           Five     of     the     indictment

alleges that Appellant caused                     serious       bodily        injury to C/W

by omission "by failing to seek and/or provide timely medical

care...."    (CRp.752; V.4 p.201-202).

     The evidence supporting Paragraphs One through                                  Four was

mainly provided by         Appellant's              statements to investigators,

her trial testimony,         and by the              five       medical        doctors      who

testified to the serious bodily injury sustained                                by    C/W and

to the fact     that,   in their opinion,                 these injuries could not

have been caused by the slip and fall described by Appellant.

(V.5 p.69-70; V.6 p.49-50,              67-70,          95-96,     155,       203,   211-212;

V.8 p.76-77; V.10 SX 16; See the Statement of                             Facts       above).

However,    as set   out        in     Point       of     Error        One which is here

incorporated by reference,              the       evidence supporting Paragraph
Five was       insufficient.      The     evidence was             insufficient                in two

ways:    (1)   it    failed to show that              Appellant           or        the        father

failed to seek and/or provide timely medical care                                       and (2)    it

failed to show that any such omission caused,                             aided,          enhanced

or in any way exacerbated C/W's serious bodily injury.

        At the guilt phase of the trial,                    the trial court charged

the jury in         the   alternative          with        regard        to        each        of the

application paragraphs for               the     five        respective                 indictment

paragraphs (CR p.926-930; V.9 p.11-15)                       and the              verdict forms

only allowed for          a   general      verdict           of     "guilty"              or     "not

guilty" as to the whole           (CR p.934-935; V.9 p.19-20).

                               SUMMARY    OF    ARGUMENT


        The Texas Constitution requires a unanimous jury verdict

in all felony cases.           Injury     to     a        child     is        a     "result        of

conduct offense." The             gravamen           of     the     offense               is      the

resulting injury the            conduct        caused,        not        the conduct that

caused the injury.            Paragraphs         One         through              Four     of     the

indictment and application               paragraphs           of     the           jury        charge

allege four different            manner        and        means     of        causing           C/W's

injury. The jury is not required                     to unanimously agree upon a

single manner and means.

        Paragraph Five of the indictment and jury                                 charge allege

that Appellant caused             serious            bodily        injury           to     C/W     by

omission "by failing to seek and/or                        provide        timely           medical

care...." This alleges            a     different           incident              and     distinct

criminal conduct from            the     incident           and     conduct alleged in



                                           19
Paragraphs One through            Four.         Paragraph              Five        alleges        an

omission after the        incident and              conduct        which           caused        the

serious bodily injury were complete. As set out                                in        Point of

Error One, there        is no evidence in the record supporting the

allegation that failure to promptly                       seek medical care caused

C/W's injury or added to it or exacerbated the injury C/W had

already sustained. Furthermore,                 any conduct              in        failing        to

 promptly seek     medical        care occurred after C/W's injury was

 inflicted,   constitutes distinct                  criminal           conduct           and is a

 completely different           incident.           If     disjunctive              paragraphs

 contain different        criminal        incidents              and     conduct,             then a

 jury must    be instructed that               it        cannot        return        a        guilty

 verdict unless     it    unanimously               agrees that           the        defendant

 committed that     conduct.        The        trial           court     committed              jury

 charge error     when     it     submitted               Paragraph            5         in      the

 disjunctive with         Paragraphs           One        through         Four            without

 requiring the     jury     to     reach        a        unanimous        with regard to

 Paragraph                                                                                     Five.

     That Appellant         suffered            egregious              harm         is         amply

demonstrated in the       record.         The        State spent a considerable

time in its insistence during              voir           dire     and        jury argument

that unanimity was       not      required.              The     State        also        made     a

forceful and extensive           argument           urging        the     jury           to     find

Appellant guilty of       Paragraph            Five.           Nowhere        in     the        jury

charge or arguments       of      counsel was the jury                    ever           informed

that it could     (1)    unanimously            agree           on one or more of the



                                          20
paragraphs numbered one through four but (2) must unanimously
agree on Paragraph         Five.    Read as a whole, the charge misled

the jury into believing that             only       its        ultimate    verdict of

"guilty" need be unanimous. Appellant's right                          to a unanimous

jury verdict was violated and this violation caused egregious

harm to his right to a fair and impartial trial.

                          ARGUMENT AND AUTHORITIES


     Article V, Section 13 of the Texas Constitution requires

a unanimous jury        verdict     in all felony cases.               Nero v. State,

175 S.W.3d 738,     745    (Tex.Cr.App.          2005); Stuhler v.         State,      218

S.W.3d 706,   716 (Tex.Cr.App. 2007).                   Jury    unanimity requires

that the jury agree upon a single and discrete                         incident that

would constitute the          commission           of     the    offense        alleged.

Stuhler at 717.     "What matters           is     that the conduct           (whatever

it may be)    is done with the required culpability                        to     effect

the result the Legislature specified." Landrian v. State, 268

S.W.3d 532,   537   (Tex.Cr.App.        2008).

     Injury to      a    child     is   a        "result of conduct offense."

Stuhler at 718. The gravamen of                  the offense is the resulting

injury caused by the conduct,           not the conduct that caused the

injury. Stuhler at         718. Paragraphs One through                  Four     allege

that Appellant intentionally                or    knowingly        caused       serious

bodily injury to        the   child     by       various        acts    and     an     act

unknown, in other words, by various manner and                         means.        Using

the eighth-grade grammar           exercise        to determine the elements

of the offense which require a unanimous verdict,                         "Appellant"



                                        21
is the subject,        "caused"           is     the        main        verb,     and        "bodily
injury" is the direct object. Stuhler at 718; see Landrian at

537. The Legislature              has thus           defined        Injury        to     a     Child

according to the        kind        and        degree of injury                 that     results.

Stuhler,    718. Jury        unanimity is required for these elements.

Stuhler,    718. Adverbial phrases introduced by the preposition

"by" describe manner and means                       and     are        not elements or the

gravamen of the        offense.       Stuhler at 718.                    Likewise,        whether

the injury is        caused by act or omission is not elemental and

does not require unanimity.                    Stuhler           at 718. The jury is not

required to agree upon a single manner and means. Nqo at 746.

As set out above,       what matters is that the conduct                                (whatever

it may be)     is     done        with the required culpability to effect

the result the Legislature has                       specified.           Landrian        at 537.

Paragraphs One through Four allege different manner and means

for causing the same injury. Unanimity was not required.

     However,       Paragraph        Five        of        the indictment              alleges     a

different    incident       and     distinct           criminal           conduct        from the

incident and conduct alleged in                       Paragraphs One through Four.

Paragraph Five alleges an omission after the                                act        or acts of

causing serious bodily              injury           were        complete.        As     set     out

above,   injury to a child is a                  "result           of     conduct offense."

Stuhler at 718. The gravamen of the offense is                                   the resulting

injury caused by        the conduct.             Stuhler at 718.                The offense is

complete when the gravamen of                    the        offense        is complete.          See

Vick v. State,        991     S.W.2d           830,        833     (Tex.Cr.App.              1999);



                                                22
Gonzalez Soto v.        State, 267 S.W.3d 327, 336 (Tex.App.-Corpus

Christi 2008). Here,              the indictment                   does        not        allege     that

Appellant failed or              omitted          to apply the brakes                          causing     a

vehicle to run       over         C/W        causing             the     injury.           It does not

allege that Appellant omitted                         or     failed           to        supervise        C/W

resulting in C/W's              injury.          To        the     contrary,              Paragraph        5

alleges Appellant failed                   to     seek           medical           care which would

have occurred at        a        time        subsequent                 to     C/W's           sustaining

serious bodily injury. This alleges a different                                           incident and

distinct    criminal    conduct              from          the     conduct              which was    done

with the required culpability to                            effect the result.                  Landrian

at 537.    Seeking     medical             care        is intended to                    mitigate        and

ameliorate the injury,                not cause or add to it and there is no

evidence in the record supporting the allegation that failure

to promptly seek        medical care would have caused C/W's injury

or added to     it or exacerbated                      the        injury           he     had     already

sustained.    Furthermore,             the       evidence              does        not     support        an

omission by Appellant                 in     failing             to seek medical care. Any

conduct in failing to promptly                         seek        medical              care    occurred

after C/W's injury              was        inflicted             and constitutes                distinct

criminal conduct and              is a completely different incident from

the conduct and        incident              which           caused            the         injury.        If

disjunctive paragraphs contain                         different criminal                       incidents

and conduct,    then        a     jury          must be instructed that it cannot

return a guilty verdict unless it unanimously agrees that the

defendant    committed that                conduct.              Martinez           v.     State,        190




                                                  23
S.W.3d 254, 259             (Tex.App.-Houston             [1st     Dist]        2006).         The

trial court committed jury charge                        error     when        it     submitted

Paragraph 5 in             the disjunctive with Paragraphs                      One     through

Four without requiring               the     jury        to     reach a unanimous with

regard to Paragraph Five.                 Stuhler        at 718; Gonzalez Soto,                267

S.W.3d at      334.


                                     EGREGIOUS       HARM


          At the     charging conference of the guilt                      phase        of     the

trial, Appellant's counsel                  did     not object to any portion of

the jury charge            (V.8 p.83). When          a defendant fails to object

to the jury charge,           the appellate court may reverse                          only     if

the record shows egregious harm.                    Nqo,       175 S.W.3d at 749;

Martinez,      190 S.W.3d          259.     For     egregious harm to exist,                   the

record must        show the       defendant        suffered actual             harm from the


jury instruction error that affected the very                              basis        of     the

case or deprived            the     defendant        of a valuable right. Nqo at

750. Neither party has a burden                     to        show harm and ordinarily

there is no way to prove actual harm.                          Warner     v.        State,     245

S.W.3d 458,        463-464        (Tex.Cr.App.       2008). To determine whether

a defendant has            suffered        egregious           harm,     the        court     must

consider (1)         the    entire        charge;        (2)     the      state         of     the

evidence;      (3)    argument of counsel; and (4)                     any other relevant

information.         Martinez at          259-260.       A     review of       these    factors

is   as    follows:

          JURY CHARGE.      Each of the           application          paragraphs begins

"if you find from the evidence beyond a reasonable doubt" and



                                              24
all succeeding paragraphs after the first begin with "or" (CR

p.926-930; V.9 p.11-15). Application paragraphs end with "But

unless you so        believe     from the evidence beyond a reasonable

doubt, or if you have a reasonable                   doubt      thereof,        you will

acquit the defendant of Injury to a Child, as                          alleged in the

indictment, and say        by     your verdict not guilty."                (CR p.930;

V.9 p.15-16).

        The only other references concerning what must be proved

are boiler plate instructions.                 "No    person      may be convicted

unless each element        of     the     offense        is     proved        beyond     a

reasonable doubt."       (CR    p930; V.9 p.16). The prosecution must

prove "each and every element of the offense charged beyond a

reasonable doubt...."          (CR p.931; V.9 p.16).             "In the event you

have a reasonable doubt as to              the       defendant's         guilt       after

considering all the            evidence         before         you,       and        these

instructions, you will           acquit        her    and      say by your verdict

vNot Guilty'."       (CR p.931; V.9        p.17).        The     jury was provided

with only two       verdict      forms,        the first stating,             "We,     the

jury,    find the     defendant,...guilty             of the offense of Injury

to a Child,    as charged in the indictment."                    (CR p.934; V.9 p.

19). The court orally instructed the jury,                      "If    this      is your

unanimous verdict,       there's a space for your presiding juror's

signature."    (V.9 p.19).        The second verdict form states,                     "We,

the jury,    find the defendant,...not               guilty of the offense of

Injury to a Child,       as charged in the indictment."                    (CR p. 935;

V.9 p.19-20).       The court followed with "Again,                   if that is your



                                          25
unanimous verdict, there's a space for your presiding juror's

signature."    (V.9 p.20).

    THE STATE OF THE EVIDENCE.                   As set out above,             the evidence

supporting Paragraphs One through Four was mainly provided by

Appellant's statements to investigators,                         her trial testimony,

and by five     medical        doctors           who     testified           to the serious

bodily injury sustained by C/W                    and     to     the     fact that these

injuries could not        have        been caused by the                 slip        and     fall

described by Appellant.              As     shown in Point of Error One,                      the

evidence supporting Paragraph                     Five         was      insufficient           to

sustain a guilty verdict on that paragraph.

        ARGUMENTS OF     COUNSEL.           On     voir        dire,     the        prosecutor

pointed out that         the     indictment              contained           five     separate

paragraphs and that this meant that there were five different

ways the State could prove its                    case     (V.4        p.74-75). He then

told the venire that if four jurors believe the top paragraph

beyond a reasonable doubt and two believe Paragraph 2 and two

believe Paragraph 3        and        two        believe Paragraph              4     and     two

believe Paragraph 5,           "as        long as that number adds up to all

12 -- okay. You have a unanimous                       verdict,        all     12     --     then

you've reached a       verdict            of guilt."       (V.4 p.75).              The     State

argued that if     one     juror           thinks the State proved the first

paragraph and the        other        11 disagree              but     think        the     State

proved Paragraph 5,       "...one plus the other 11 makes 12."                               (V.4

p.76,    see also p.81).

        On final argument,       the prosecutor pointed out that there



                                             26
were five application             paragraphs             separated by the word "or"

(V.9 p.22-23). The prosecutor then argued for a non-unanimous

verdict stating that two could                     believe       Paragraph 1, two can

believe Paragraph 2, two can believe Paragraph                            3,    four    can

believe Paragraph 4,          and two can believe Paragraph 5 (V.9 p.

24).     "So, what does that mean?                  12 to guilty."        (V.9 p.25).

       Only in the closing of final                      argument, does the State's

ulterior motive regarding Paragraph Five become                            clear.      They

used Paragraph Five          of     the       indictment          to    attempt     to hem

Appellant in stating:

       "She can't all of a sudden                  change      her     story -- because

       there's Paragraph 5 -- she can't all of a                          sudden change

       her story and say you know what? I'm going to get on the

       stand and     say,     well,       I        was    present when Clifton did

       these terrible things to                his        son and I did nothing and

       stood by.

            "She can't       do     that. Paragraph 5 of the                   indictment

       prevents her from changing her story to that."

(V.9 p.50-51). The          prosecutor             again       emphasized Paragraph 5

close to the end of the State's summation stating:

            "I'm telling you,         ladies             and   gentlemen,      this fifth

       paragraph right here -- fifth paragraph right                           here, you

       take that     in concert with the phone calls that she made

       to Aimee Mitchell at 6:01.                   These       events happened prior

       to 6:00     o'clock        that morning.            She needed      a   place     to

       stay.   Somebody's going to the hospital."



                                              27
         "Why does        she         need      a     place     to     stay       because

     somebody's going to the hospital?                   Could        it    be because

     she's trying to further herself from Clifton?                              Maybe she

     didn't want to be a part of what just happened? Or maybe

     she's worried     Clifton          is     going     to come after her for

     what she did.    Either way,             she's     trying        to    create her

     distance   there."


         "....That fifth paragraph gets her -- keeps her from

     actually not     changing          her     story     again.           That       fifth

     paragraph says,      yeah,        I was there and I did nothing and

     I am criminally responsible.                   That kid was in bad shape,

     and I did nothing."

         "Ladies and gentlemen,               we've proven that...paragraph

     beyond a reasonable doubt."

(V.9 p.81).

         "All 12 of you should go back on the very first time

    you vote and agree to Paragraph 5."

(V.9 p.84).

     The prosecutor       then        went     on as he had           previously         to

argue that Appellant       caused the injury rather than failed to

seek medical care    (V.9 p.49-50,             68-76,     82-83).          To     use the

prosecutor's own words,          "I     mean     you     just        literally        have

totally contradicted yourself."                (V.8     p.17).       The evidence is

legally insufficient to support                the     allegations          set out in

Paragraph 5. The     prosecutor's             argument did       not        constitute

reasonable deductions from              the         evidence.         It        was   pure



                                         28
conjecture from facts                  the         State         manufactured,              not        the

witnesses. Yet it gave the jury                          an     easy        out        which was the

precise intention of the State.

        In this case,       there is a laundry list of                             factors           which

lead to the        ultimate            conclusion              that        Appellant        suffered

egregious harm from              the     court's               failure            to      require        a

unanimous verdict for Paragraph Five.

        First of all, the court's failure to instruct                                      the        jury

that it must       be      unanimous in deciding whether Appellant was

guilty of injury           to a child as                 alleged           in     Paragraph           Five

deprived Appellant a valuable right,                            the right to a unanimous

verdict.    See Nqo,       175 S.W.3d at                750.    Stuhler,           218     S.W.3d at

719.    In addition,            numerous            factors           show        that     Appellant

suffered actual harm that affected                             the        very     basis        of     the

case.    Nqo at    750.

        On voir    dire         and    at      the       close       of    evidence        on        final


argument,    the State spent considerable time explaining to the

jury how its verdict need not be unanimous with regard to the

various paragraphs in the indictment.                            See Nqo at 750-751;

Stuhler at 719.           The     State's insistence during voir dire and

jury argument that unanimity was not required is an important

consideration in an egregious harm analysis.                                     Jourdan v.          State

428 S.W.3d 86,       98    (Tex.Cr.App.             2014).

        However,   the prosecutor didn't                        confine           himself        to his

argument for a non-unanimous verdict. He made                                      a forceful and

extensive argument urging                    the        jury to find Appellant guilty



                                                   29
of Paragraph Five.         This court cannot be certain that none of

the jurors relied         on        the        allegations                of     Paragraph           5    in

finding Appellant guilty. See Gonzalez Soto at p.327. If even

a single juror      believed              that Appellant was                      not     guilty          of

Paragraphs One through               Four but was guilty of Paragraph Five

as argued by the State,              the verdict                    was   not      unanimous and,

furthermore, was based on an allegation for which                                         there          was

insufficient evidence. See Nqo at 752. This focus of the jury

argument on Paragraph               Five        could           only      have      increased the

already substantial risk that                        the        jury      would         not     find it

necessary to agree on whether Appellant caused                                      the injury as

in Paragraphs One         through              Four           or was guilty of failing to

promptly seek medical care after                              the     injury       as     alleged in

Paragraph Five.     See Stuhler at 720.

       There was    no     separate                 unanimity             instruction           in       the

application paragraphs of the jury charge.                                     See Gonzalez Soto,

267 S.W.3d at      336.        In        no     part           of     the jury charge or the

arguments of counsel was the jury                              ever informed that it must

(1)   unanimously agree             on        one        or     more      of      the     paragraphs

numbered one through                four            or        (2)     unanimously             agree       on

Paragraph Five or both (1)                    and        (2).        See Stuhler at 719-720.

Read as a    whole,       the charge misled the jury into                                     believing

that only its ultimate verdict of "guilty" need be unanimous.

See Gonzalez Soto          at        p.337.                   The     boilerplate             unanimity

instructions in the charge are                           insufficient             to mitigate the

harm caused by      the    prosecutor's                        confusing           and        erroneous



                                                    30
argument for a           non-unanimous              verdict           and     for a conviction

based on Paragraph Five of the                          indictment.          See Gonzalez Soto

at p.338. Failure              to     instruct           the jury that           it     must     (1)

unanimously agree that                 Appellant             was      guilty of one or more

paragraphs numbered one through four or (2) unanimously agree

that Appellant was guilty pursuant                             to Paragraph Five or both

(1) and (2) deprived Appellant of a fair and impartial trial.

Stuhler at 720.              Appellant's           constitutional               and     statutory

right to a           unanimous        jury        verdict           was   violated       and this

violation caused egregious harm                         to      his       right to a fair and

impartial trial. Nqo at 752.

                                    POINT    OF    ERROR       THREE


         THE   TRIAL     COURT        ERRED       WHEN         IT    OVERRULED        APPELLANT'S


OBJECTIONS       TO    THE    STATE'S       ARGUMENTATIVE             SIDEBAR    COMMENTS.


                                       RELEVANT         FACTS


         On voir       dire,        the State asserted that "A proven lie is

just as good as a confession."                          (V.4        p.96).    The      prosecutor

used this statement to argue that the jury should                                      use     proof

of   a   lie    as     tantamount       to a       confession and therefore direct

evidence of guilt              (V.4     p.96).          On      opening       statement,         the

prosecutor's first and last words were "A proven                                      lie is just

as good as a confession"                (V.5 p.16,             34).

         On cross-examination of Appellant,                           the prosecutor,          tried

to establish that              Appellant           lied        about whether the father,

who was on probation,                had consumed              alcohol and the following

exchange took place:



                                                   31
  Q: So, you were lying to protect him.                               Is that what you were

        saying?

  A: I just didn't tell her.

  Q:    You didn't tell her what? The truth?

  A: That        he was -- that he drank, yes.                        That -- just because

        I didn't tell her doesn't mean I was lying to her.

  Q:    Yes,    it does.

  A:    Well,    I mean --

  Q: I        mean    you just literally                  have        totally     contradicted

        yourself.

        DEFENSE ATTORNEY:             Objection,          argumentative,         Your Honor.

        THE    COURT:       Overruled.


(V.8 p.17).

                                    SUMMARY    OF    ARGUMENT


        On cross-examination              of        Appellant,         the prosecutor,      in

trying to show               Appellant        lied        in     order     to    bolster   his

assertion that "A proven lie is just as good as a confession"

used sidebar remarks to argue with Appellant that her failure

to tell an investigator about                       her        husband's,        the father's,

drinking was a              lie.     Specifically,              the    prosecutor      stated,

"Yes,    it does."           and     "I mean you just literally have totally

contradicted yourself." Appellant objected and was overruled.

        Sidebar comments              and improper              argumentative        questions

are grounds for              reversal if they interfere with                       Appellant's

right to a           fair     trial.     Here,       the questions preceding these

sidebar comments             also     constituted               sidebar         comments   and




                                                32
argumentative questions.                They         were            intended           to         demean

Appellant but the prosecutor had an ulterior motive that went

beyond mere impeachment. He was                       attempting             to     bolster           his

assertion to the jury that "A proven lie is just as good as a

confession."     He   asserted           this        on        voir dire          and        twice     in


opening statement. His              also asserted that proof of a lie was

therefore direct evidence of guilt.                            A defendant's confession

is probably the most probative and damaging evidence that can

be admitted against him. Because proving lies                                     was so crucial

to the State's        theory,           these        sidebar comments and improper

argument went to            the   very          essence               of     the        case.        They

interfered with Appellant's                    right           to     a    fair         trial         and

constitute grounds for reversal.

                            ARGUMENT       AND       AUTHORITIES


        Sidebar remarks           are    remarks          of    counsel      that       are    neither

questions to the witness nor comments addressed to the court.

In re W.G.W. ,        812     S.W.2d 409,             416           (Tex.App.-Houston                [1st

Dist]    1991); Brokenberry v.                 State,          853 S.W.2d 145,               152    (Tex.

App.-Houston [14th Dist] 1993). Here the prosecutor's sidebar

remarks were assertions used purely to argue with                                       Appellant:

"Yes,    it does."      and       "I mean you just literally have totally

contradicted yourself." Appellant objected and was overruled.

    "Improper arguments and sidebar remarks by the prosecutor

        have forced us to reassert                    the           critical       importance of

        convicting an accused only upon the evidence                                    presented,

        without attempting              to inflame or prejudice the minds of



                                                33
      the jurors."

Stein v.    State,          492 S.W.2d 548,            551   (Tex.Cr.App.                1973). Here,

the prosecutors remarks                   were    clearly            argumentative sidebar

remarks and the             trial      court           erred         when           it      overruled

Appellant's objection.

                                       HARM ANALYSIS


      A misapplication               of     the        rules        of     evidence           is   not

constitutional error and                   harm is assessed under Rule 44.2(b)

Rules of Appellate Procedure.                     Cruz       v. State,          122 S.W.3d 309,

313   (Tex.App.-Houston [1st Dist] 2003). Under                                     Rule     44.2(b),

error must be disregarded unless a substantial right has been

affected.       Johnson v.           State,       43     S.W.3d           1,    4        (Tex.Cr.App.

2001).     A substantial right is                      affected when the error has a

substantial and injurious effect or influence                                       in determining

the jury's verdict.                Johnson at 4. Other caselaw has held that

sidebar comments and                 improper          argumentative                questions      are

grounds for reversal only if they interfered with Appellant's

right to a fair trial.                In re W.G.W.             at        416;       Brokenberry at

152; Jimenez           v.     State,      240 S.W.3d 384,                407    (Tex.App.-Austin

2007). But the              right to a fair trial differs little from the

definition of "substantial right."                           Nevertheless,                 the burden

to demonstrate whether Appellant was harmed by                                       a trial court

error does not              rest    on     either        the appellant or the State.

Coble v.    State,           330     S.W.3d       253,       280         (Tex.Cr.App.          2010);

Johnson    at    4 .

      In assessing harm under Rule 44.2(b),                               the appellate court



                                                  34
should consider everything                in     the    record including all the

evidence, the character of the alleged error and how it might
be considered in connection with                   other evidence in the case,

jury instructions, the State's theory, voir dire, and closing
arguments. Morales v. State, 32 S.W.3d 862, 867                            (Tex.Cr.App.

2000).

     To put    the     above        facts        in context,       it is relevant to

show that the State began its cross-examination                            of Appellant

by stating, "Ms. Miller, is that the best story                            you can come

up with?" (V.7        p.212).           Defense        counsel's      objection         was

sustained (V.7 p.212). The prosecutor followed with "When you

testified, you left          out        so many     details."        and     a    defense

objection was again           sustained            (V.7         p.213).     When        the

prosecutor asked,      "Why        do     you     refused to go into detail?",

defense counsel objected but failed                    to       obtain a ruling (V.7

p.213).   This set      the        tone     for    cross-examination.                 These

questions and sidebar          remarks          were    calculated to embarrass

and demean Appellant.

     The State is entitled to                   impeach     a     witness by showing
bias or interest and prior inconsistent statements.                              Rule 613

Texas Rules of       Evidence.          But the prosecutor had a much more

sinister motive than merely impeaching                      credibility.         He    had

already told the       jury        on    voir     dire and twice           in    opening
statement that "A proven lie is just as good as a confession"

and that proof    of     a    lie        was     therefore direct evidence of

guilt.    That Appellant did not lie but refrained from telling


                                           35
one of the investigators that her husband,                       the baby's father,

had been drinking in violation of his probation did phase the

prosecutor or his       sense     of    ethics.           He needed this to be a

lie. The fact that it in no way               constituted           a confession to

felony injury to a child likewise did not phase him.

        Even if this could be considered a lie as the prosecutor

vehemently suggested,       a lie is not necessarily                     a confession.

Here,    the prosecutor's       nit-picking             went     on ad nauseum with

the prosecutor pointing out minor                 variances         in     Appellant's

numerous statements to          investigators,             six in        all     to   five

different investigators,         her    grand           jury testimony and trial

testimony. By this tactic the prosecutor                       was suggesting that

Appellant was repeatedly           lying          and     therefore            repeatedly

confessing. He understood          that       a     defendant's confession is

probably the most probative and damaging evidence that can be

admitted against him,       so damaging            that        a jury should not be

expected to ignore it even if told to do so.                       (1255 and 1257).

Arizona v.    Fulminante,    111 S.Ct.        1246,       1255,    1257    (1991).

        On final argument,      the State returned to this theme.

In opening,    the State repeated the premise that "A proven lie

is just as good as a confession" and then proceeded                              to   list

all the people     to   whom      the     State contended Appellant lied

(V.9 p.20).    On closing,      the State          again repeated the premise

(V.9 p.49)    and again began the nit-picking pointing                          out    all

the minor variances       in Appellant's numerous statements which

the State categorized as lies.               This included failing to tell



                                        36
the investigator Haley                Deem        about       her husband, the father,

drinking alcoholic beverages                        which          prompted      the      sidebar

remarks (V.9 p.53-54).                At      the       end    of closing,          the     State

reinforced the premise stating:

    "Why does          she    have to lie?               Because she's confessing to

        her   crime."

(V.9 p.83). Thus,             the     sidebar            remarks          went      to     demean

Appellant and reenforce the State's premise which constituted
the basis of this case.               Because a defendant's                   confession        is

probably the most probative and damaging evidence that can be
admitted against him, Fulminante, 111 S.Ct. at 255, 1257, and

because proving lies                was      so     crucial to the State's theory,

these sidebar comments and improper argument went to the very

essence of the case. They interfered                           with       Appellant's right

to a fair           trial and constitute grounds for reversal.                             In   re

W.G.W. ,      812 S.W.2d        at     416;       Brokenberry,            853 S.W.2d at 152;

Jimenez, 240 S.W.3d              at       407.      Appellant         suffered         egregious

harm.    Johnson,       43 S.W.3d at 4.

                                              PRAYER


             For the above reasons, Appellant respectfully requests

the judgment of           the        trial        court       be    reversed.          Appellant

further requests that:

        1.    the     trial     court be instructed to enter a verdict of

              not guilty as to Paragraph Five of the indictment and

              that Paragraph Five be dismissed with prejudice;

        2. this cause be remanded                       for    a    new     trial      on guilt-



                                                   37
        innocence and/or punishment.

                                                     Respectfully submitted.

                                                     /s/ John J. Davis

                                                     John J.       Davis
                                                     P.O.    Box    787
                                                     Angleton,       Tx 77516-0787
                                                     SBN    05515500
                                                     Telephone: (979) 849-4362
                                                     d.attorne@sbcglobal.net

                                                     ATTORNEY       FOR APPELLANT




                           CERTIFICATE          OF   SERVICE


     I, hereby       certify that a copy of this APPELLANT'S BRIEF

SPECIFYING   ERROR   OF    WHICH APPELLANT             COMPLAINS           ON APPEAL    was


hand delivered to         David Bosserman, Appellate                      Assistant     for

the Brazoria County             District        Attorney's          Office,        Brazoria

County Courthouse,        111     East Locust,             Suite     408A,        Angleton,

Texas 77515 on this the 4th day of May,                      2015.

                                                     /s/ John J.          Davis

                                                     John J.       Davis




                                           38
