                                                                                   ACCEPTED
                                                                               12-14-00325-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                          5/8/2015 12:23:23 PM
                                                                                 CATHY LUSK
                                                                                        CLERK

                     12-14-00325-CR

                                                          RECEIVED IN
                                                    12th COURT OF APPEALS
        IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                  TYLER, TEXAS                      5/8/2015 12:23:23 PM
                                                         CATHY S. LUSK
                                                             Clerk

             TIMOTHY CORTEZ CHOICE

                              Appellant,

                             v.                        5/8/2015

                 THE STATE OF TEXAS

                                  Appellee



On Appeal from the 241st District Court, Smith County, Texas
               Trial Cause No. 241-1215-13




        ORAL ARGUMENT NOT REQUESTED


                         Austin Reeve Jackson
                         Texas Bar No. 24046139
                         112 East Line, Suite 310
                         Tyler, TX 75702
                         Telephone: (903) 595-6070
                         Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Clifton Roberson
100 E. Ferguson, Suite 1104
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4

    I.      JURISDICTION ............................................................................................. 4

    II.     THERE WERE NO ERRORS IN VOIR DIRE ........................................... 5

    III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
         THE VERDICT .............................................................................................. 5

    IV. POTENTIAL EVIDENTIARY ISSUES ...................................................... 8

    V.      PUNISHMENT ............................................................................................... 9

    VI. EFFECTIVE ASSITANCE OF COUNSEL............................................... 10

CONCLUSION AND PRAYER .................................................................................. 11
CERTIFICATE OF SERVICE ..................................................................................... 12
CERTIFICATE OF COUNSEL ................................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................................ 13




                                                            iii
                                     INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT:

Anders v. California,
 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) .................................... 4, 11, 12

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .................................... 5, 8

Solem v. Helm,
 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) .................................. 9

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 10


FEDERAL COURTS OF APPEAL:

McGruder v. Puckett,
 954 F.2d 313 (5th Cir. 1992) ......................................................................... 9


TEXAS COURT OF CRIMINAL APPEALS:

Brooks v. State,
 323 S.W.3d 893 (Tex.Crim.App. 2010) ........................................................ 5

Cannon v. State,
 668 S.W.2d 401 (Tex.Crim.App. 1984) ........................................................ 11

Curry v. State,
 30 S.W.3d 394 (Tex.Crim.App. 2000) .......................................................... 8

Dewberry v. State,
 4 S.W.3d 735 (Tex.Crim.App. 1999) ............................................................ 7

Gamboa v. State,
 296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 5

                                                        iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Ganious v. State,
 436 S.W.2d 137 (Tex.Crim.App. 1969) ........................................................ 2

Harris v. State,
 656 S.W.2d 481 (Tex.Crim.App. 1983) ........................................................ 9

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 10

Johnson v. State,
  871 S.W.2d 183 (Tex.Crim.App. 1993) ........................................................ 5-6

Johnson v. State,
  614 S.W.2d 148 (Tex.Crim.App. 1981) ........................................................ 10-11

Jones v. State,
  982 S.W.2d 386 (Tex.Crim.App. 1998) ........................................................ 5

Jordan v. State,
  495 S.W.2d 949 (Tex.Crim.App. 1973) ........................................................ 9

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 10

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 10

Murray v. State,
 302 S.W.2d 874 (Tex.Crim.App. 2009) ........................................................ 4

Rhodes v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 9

Rodriguez v. State,
 899 S.W.2d 658 (Tex.Crim.App. 1995) ........................................................ 11

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 11

                                                    v
TEXAS COURTS OF APPEAL:

Beltran v. State,
 99 S.W.3d 807 (Tex.App.—Houston [14th Dist.] 2003) ............................... 5

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 9

Cervantes v. State,
 No. 05-08-00124-CR,
 2009 WL 330249 (Tex.App.—Dallas 2009) ................................................. 7

Davilla v. State,
 No. 04-99-00334-CR,
 2001 WL 322055 (Tex.App.—San Antonio 2001) ....................................... 8

Hernandez v. State,
 No. 07-000374-CR,
 2001 WL 574738 (Tex.App.—Amarillo 2001) ............................................. 7

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997 ) .................................................. 9

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ............................................ 4

McCulloch v. State,
 39 S.W.3d 678 (Tex.App.—Beaumont 2001) ...............................................

Moore v. State,
 54 S.W.3d 529 (Tex.App.—Fort Worth 2001) .............................................. 9

Webb v. State,
 No. 01-11-00403-CR,
 2012 WL 1564298 (Tex.App.—Houston [1st Dist.] 2012 ............................ 7

Winchester v. State,
 246 S.W.3d 386 (Tex.App.—Amarillo 2008) ............................................... 10




                                                 vi
STATUTES:

TEX. CODE CRIM. PROC. art. 4.05 ...................................................................... 4

TEX. PEN. CODE § 1.07 ...................................................................................... 7

TEX. PEN. CODE § 12.32 .................................................................................... 9

TEX. PEN. CODE § 22.04 .................................................................................... 4, 9

TEX. R. APP. PROC. 33.1 .................................................................................... 5, 9




                                                          vii
                                12-14-00325-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                       TIMOTHY CORTEZ CHOICE

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



         On Appeal from the 241st District Court, Smith County, Texas
                        Trial Cause No. 241-1215-13




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Timothy Choice, and

files this brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would

show the Court as follows:
                         STATEMENT OF THE CASE

      Timothy Choice, Jr., seeks to appeal his conviction and sentence for the

offense of Injury to a child. (I CR 102). Mr. Choice was indicted for this offense

in the 241st District Court of Smith County in September of 2013. (I CR 2). In

response to this charge he entered a plea of “not guilty” and elected to have a trial

by jury. (I CR 102). In the end, the jury found him to be guilty and sentenced him

to serve a term of fifty years’ confinement. (Id.). Sentence was pronounced on 23

October 2014 and notice of appeal then timely filed. (I CR 102, 118).

                              ISSUES PRESENTED

      Counsel has reviewed the appellate record in this cause and reluctantly

concludes that as a matter of professional judgment the record contains no

reversible error and no jurisdictional defects are present. Where counsel concludes

that there are no arguable grounds for reversal, he is required to present a

professional evaluation of the record demonstrating why there are no arguable

grounds to be advanced. Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).




                                         2	  
                           STATEMENT OF FACTS

       On the morning of 1 July 2013, Toni Martin awoke to find burns on the feet

and legs of her then two-year-old son, J.M. (III RR 26-27). Ms. Martin thought

back to the prior day when, shortly after she left to go to work the night shift at a

local restaurant J.M.’s father, Appellant, Timothy Choice, had called her and told

her that J.M. “had used the bathroom on himself and that he had gave him a

whipping and gave him a bath.” (III RR 32). When she asked Mr. Choice if he

knew what caused the burns his response was “it might have been from the bath”

he had given J.M. the night before. (III RR 48).

       Ms. Martin made the decision to take J.M. to the hospital and a subsequent

investigation by CPS and treating physicians led them to conclude, based on the

nature and location of the burns, that someone had intentionally held J.M.’s feet

under extremely hot water. (III RR 135; V RR 70). Because he had admitted to

bathing the child and attempting to treat the burns subsequent to the bath, Mr.

Choice was charged with the felony offense of injury to a child. (III RR 32, 44,

48).

       To this charge Mr. Choice entered a plea of “not guilty” and elected to have

a trial by jury. (I CR 102). Trail was held in October of 2014 and after finding

him to be guilty, the jury imposed punishment at fifty year’s confinement. (Id.).

In the end, the jury found him to be guilty and sentenced him to serve a term of



                                         3	  
fifty years’ confinement. (Id.). Sentence was pronounced on 23 October 2014 and

notice of appeal then timely filed. (I CR 102, 118).

                         SUMMARY OF ARGUMENT

      In accordance with the requirements of Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record

and determined that, in his professional opinion, the record contains no reversible

error or jurisdictional defects. Under circumstances where there appears to be no

arguable grounds for reversal on appeal, counsel is required to present a

professional evaluation of the record supporting this assertion. See Mays v. State,

904 S.W.2d 290, 922-23, (Tex.App.—Fort Worth 1995, no pet.).

                                  ARGUMENT

      I. JURISDICTION

      The offense of injury to a child is a felony offense. TEX. PEN. CODE § 22.04.

Therefore, jurisdiction properly rested with the 241st District Court of Smith

County, Texas. See TEX. CODE CRIM. PROC. art. 4.04 (Vernon 2007) (stating that

district courts shall have original jurisdiction in felony criminal cases); Murray v.

State, 302 S.W.2d 874, 877 (Tex.Crim.App. 2009).           Additionally, because it

alleged all of the essential elements of the charged offense, the indictment returned

in this case provided Mr. Choice with sufficient notice of the offense with which

he was charged. (I CR 2); see also TEX. PEN. CODE § 22.04 (elements of the



                                         4	  
offense). Consequently, no error regarding the trial court’s jurisdiction can be

advanced.

                       II. THERE WERE NO ERRORS IN VOIR DIRE.

                       Counsel has reviewed that portion of the record pertaining to voir dire for

errors and has found none. Without exception, all challenges for cause were

agreed and made without objection. (II RR 162, 163, 164, 165, 170, 172, 184). As

a result, Mr. Choice cannot show that in any way the jury being impaneled was not

lawfully constituted. Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App.

2009); Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App. 1998). Finally, the

record does not present any objections to statements or actions by the State that

would warrant a reversal of Appellant’s conviction on appeal. See TEX. R. APP.

PROC. 33.1; Beltran v. State, 99 S.W.3d 807, 811-12 (Tex.App.—Houston [14th

Dist.] 2003, pet. ref’d).

                       III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO
                            SUPPORT THE VERDICT.

                       The standard enunciated in Jackson v. Virginia1 is the one by which

sufficiency of the evidence challenges are measured. Brooks v. State, 323 S.W.3d

893, 895 (Tex.Crim.App. 2010). That is, in order to be legally sufficient the

evidence at trial must support a rational conclusion that each element of the

charged offense was proved beyond a reasonable doubt. Johnson v. State, 871
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979).

                                                                                                                                                     5	  
S.W.2d 183, 186 (Tex.Crim.App. 1993).             Under this standard the record is

reviewed in the light most favorable to the verdict. Id.

        At trial the State was required to prove that on or about the date alleged in

the indictment Mr. Choice intentionally or knowingly caused serious bodily injury

to J.M., a child younger than fourteen, by placing him in hot water. (I CR 2). The

date and identities of J.M. and Mr. Choice were not challenged.

      As to whether Mr. Choice intentionally or knowingly placed J.M.’s legs in

hot water the State relied on testimony from a witness in Mr. Choice’s home who

testified that she saw Mr. Choice running the bathwater for J.M. after J.M. had

urinated on himself. (III RR 110). As she left the house on the day this incident

occurred she stated she specifically saw Mr. Choice take J.M. “to the bathroom to

take a bath.” (III RR 111). Another witness who had also been in the home

corroborated this testimony through her statements that, after the fact, Mr. Choice

told her J.M. “had used the bathroom on himself and that he had gave him a

whipping and gave him a bath.” (III RR 32). When this witness questioned Mr.

Choice about the burns on J.M.’s legs, he replied they “might have ben from the

bath that he had gave him the night before.” (III RR 48).

      From this evidence a jury could have reasonably concluded that it was Mr.

Choice who placed J.M. in the bathwater. Then, turning to the medical evidence,

the jury could have considered testimony from medical experts that the nature of



                                          6	  
the burns indicated “forced immersion; someone holding the child or putting the

child into that hot substance causing the injuries.” (V RR 26).   And while there

was some disagreement among the doctors as to whether this was actually an

immersion injury, the jury was free to resolve hose conflicts in favor of a finding

that supported the verdict. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.

1999).

      Finally, the State was required to prove that serious bodily injury occurred

and that the hot water used in this act constituted a deadly weapon. (I CR 2).

There was testimony from at least two sources that the burns J.M. suffered were

both serious and permanent injuries. (III RR 135; V RR 40); see TEX. PEN. CODE §

1.07(a)(46) (defining “serious bodily injury). As to the deadly weapon issue, water

is not a deadly weapon per se, however, courts have recognized that water can be a

deadly weapon in similar situations. See, e.g., Webb v. State, No. 01-11-00403-

CR, 2012 WL 1564298 at *8 (Tex.App.—Houston [1st Dist.] Sep. 19, 2012, pet.

ref’d) (not designated for publication); Cervantes v. State, No. 05-08-00124-CR,

2009 WL 330249 (Tex.App.—Dallas Feb. 11, 2009, no pet.) (not designated for

publication); Hernandez v. State, No. 07-000374-CR, 2001 WL 574738

(Tex.App.—Amarillo May 29, 2001, no pet.) (not designated for publication)

(unpublished cases cited for reference only).




                                         7	  
      Consequently, taking the record before the Court as a whole, and viewing

the evidence in the light most favorable to the jury’s verdict, it cannot be said on

appeal that the evidence was legally insufficient to support the judgment rendered

at trial. See Jackson, 443 U.S. at 319 (standard of review); see also King v. State,

29 S.W.3d 556, 562 (Tex.Crim.App. 2002) (on appeal court will not reweigh

evidence); Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000) (any

inconsistencies that may be present are resolved in favor of the verdict).

      IV. POTENTIAL EVIDENTIARY ISSUES

      The one potential evidentiary issue that may have proved substantive on

appeal centers on the State’s admission into evidence of a resume of one of their

expert witnesses and a copy of his medical report. (V RR 14, 24). However, even

if it should not have been admitted, the substance of what was in those documents

was testified to without objection and, at least as to the medical report information,

was testified to by other witnesses without objection. (V RR 50-84). As such, any

objection would be deemed waived on appeal and the trial court’s erroneous ruling

on the same harmless. See, e.g., Davila v. State, 04-99-00334-CR, 2001 WL

322055 (Tex.App.—San Antonio April 4, 2001, no pet.) (not designated for

publication) (cited for reference only) (court reviewing same situation involving a

doctor’s report on child abuse or neglect).




                                          8	  
      V. PUNISHMENT.

      As alleged, the offense of injury to a child is a first degree felony. (I CR 2);

TEX. PEN. CODE § 22.04(e). Consequently, the applicable range of punishment was

a term of confinement for five years to life. TEX. PEN. CODE § 12.32.

      Mr. Choice was sentenced to serve fifty years’ confinement. (VI RR 83).

As such, although the issue of cruel or excessive punishment was not raised at the

time sentence was imposed and, therefore, has been waived on appeal, see TEX. R.

APP. PROC. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.

1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.),

because the sentence imposed was within the statutory punishment range for the

offense it is presumptively not constitutionally cruel and unusual under these

circumstances. Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.—Dallas 1997, pet.

ref’d); see also Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983);

Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973).

      Moreover, on appeal the Court would consider the nature of the offense for

which Mr. Choice was being sentenced along with his personal criminal history,

which was none, and other circumstances surrounding the offense. Solem v. Helm,

463 U.S. 277, 290, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983); McGruder v.

Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Moore v. State, 54 S.W.3d 529, 542

(Tex.App.—Fort Worth 2001, pet. ref’d). Even so, given the record before the



                                          9	  
Court it cannot be argued that the imposed sentence was grossly disproportionate

to the point that it violated the Eighth Amendment. See Winchester v. State, 246

S.W.3d 386, 390 (Tex.App.—Amarillo 2008, pet. ref’d).

      VI. EFFECTIVE ASSISTANCE OF COUNSEL.

      Effective assistance of counsel is to be evaluated under the standard

enunciated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d

344 (1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999).

To prevail on a claim of ineffective assistance of counsel, a defendant must show

(1) that his trial counsel’s performance fell below an objective standard of

reasonableness, and (2) that a reasonable probability exists that, but for trial

counsel’s alleged errors, the result would have been different. Strickland, 466 U.S.

at 687-88. On appeal, the defendant carries the burden of proving ineffective

assistance by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528,

531 (Tex.Crim.App. 1985). Trial counsel’s performance is not to be judged with

the benefit of hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.

1992).

      With the Strickland standard in mind, counsel has reviewed the record

before the court and found no conduct that would rise to the level of rendering trial

counsel’s assistance ineffective. See, e.g., Johnson v. State, 614 S.W.2d 148, 152

(Tex.Crim.App. [Panel Op.] 1981) (holding that, on appeal, courts will not second-



                                         10	  
guess reasonable trial decisions). There were no actions or inactions on the part of

trial counsel that, based on the record available for direct appeal, would support a

claim that ineffective assistance was rendered and also, but for that ineffective

assistance, the result at trial would have been different. See Cannon v. State, 668

S.W.2d 401, 403 (Tex.Crim.App. 1984) (burden is on defendant to establish

ineffective assistance); Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App.

1995) (a review of counsel’s actions looks to the record as a whole and not merely

at isolated incidents).

                          CONCLUSION AND PRAYER

      As counsel was unable to raise any arguable issues for appeal, he is required

to move for leave to withdraw.         See Stafford v. State, 813 S.W.2d 503

(Tex.Crim.App. 1991).

      WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

after affording Mr. Choice the opportunity to review the record and file a pro se

brief should he desire to do so, accept this brief and grant the attached Motion to

Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.

1396 (1967).

                                                 Respectfully submitted,

                                                 /s/ Austin Reeve Jackson
                                                 Texas Bar No. 24046139
                                                 112 East Line, Suite 310
                                                 Tyler, TX 75702

                                        11	  
                                                   Telephone: (903) 595-6070
                                                   Facsimile: (866) 387-0152


                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by facsimile on this the 8th day of May 2015.


                                                   /s/ Austin Reeve Jackson


                         CERTIFICATE OF COUNSEL
      The attorney’s role as an advocate requires that I support my client’s appeal

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve

Jackson, counsel of record in this appeal, do hereby state that I have diligently

searched the entire record in this cause. I have researched the law applicable to the

facts and issues contained therein, and it is my professional opinion that the record

reflects no reversible error. In conformity with the applicable law pertaining to an

appeal of this nature, I have set forth any potential grounds of error and have

briefed them to the extent possible. I have further caused a copy of this brief to be

served by certified mail on Appellant, accompanied by a letter informing Appellant

of the right to examine the record for the purpose of filing a pro se brief.


                                                   /s/ Austin Reeve Jackson




                                          12	  
                     CERTIFICATE OF COMPLIANCE


      I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,578 words.


                                                /s/ Austin Reeve Jackson




                                       13	  
