                         NUMBER 13-18-00029-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CODY ALLEN PEMBERTON,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                    On appeal from the 24th District Court
                         of Jackson County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
          Memorandum Opinion by Chief Justice Contreras

      Appellant Cody Allen Pemberton appeals his first-degree felony convictions for

intentionally or knowingly causing serious bodily injury to a child and intentionally or

knowingly causing serious mental deficiency, impairment, or injury to a child. See TEX.

PENAL CODE ANN. § 22.04(a)(1)–(2). By four issues, Pemberton argues that the trial court
erred because it (1) charged the jury on punishment without any reference to community

supervision, (2) included an erroneous statement in the jury charge concerning the

application of good conduct time and parole, and (3) told the jury that it could consider

whether Pemberton testified as a circumstance against him. Pemberton also argues that

(4) his due process rights were violated by “the inadvertent use of false evidence.” We

affirm.

                                         I.   BACKGROUND

          Pemberton is the father of B.P., a minor child. 1 When B.P. was thirty-five days old,

Pemberton’s wife, B.P.’s mother, left the infant under Pemberton’s care. Thereafter,

Pemberton called his wife and told her that he had dropped B.P. B.P. suffered a contusion

to her liver, bleeding in her brain, bruises to her back and chest, and fractures to her

parietal skull, left femur, left radius, and seven ribs. Pemberton was indicted on four

counts: count one alleged Pemberton intentionally and knowingly caused serious bodily

injury to B.P., a person fourteen years or younger, with an unknown object; count two

alleged Pemberton intentionally and knowingly caused serious mental deficiency,

impairment, or injury to B.P., a person fourteen years or younger, by causing her head to

collide with an unknown object; and counts three and four alleged the same offenses but

that Pemberton acted recklessly. Pemberton pleaded not guilty and proceeded to trial.

          Prior to trial, Pemberton filed a sworn application for community supervision. At

trial, evidence was introduced that on March 26, 2014, Pemberton called his wife and

asked her to come home because he dropped B.P. Pemberton and his wife then took

the baby to the emergency room at a hospital in Jackson County. Thomas Roznovsky, a


         We use initials to protect the identity of the child. See Salazar v. State, 562 S.W.3d 61, 63 n.1
          1

(Tex. App.—Corpus Christi–Edinburg 2018, no pet.).

                                                    2
certified nursing assistant, testified that Pemberton told him that he stumbled and was

afraid he was going to fall on the baby so he threw B.P. towards the crib. 2 Stephanie

Cruz, a registered nurse, testified that Pemberton initially told her he was standing next

to the crib but, as their interview progressed, Pemberton explained he was actually

walking to the crib and started to fall when he threw the baby towards the crib. Corporal

Jeff Tipton of the Edna Police Department testified that he interviewed Pemberton at the

Jackson County hospital, and a recording of Pemberton’s statement to Tipton was

admitted into evidence. Pemberton told Tipton that he went to pick up B.P. from the crib

and tripped over one of his dogs as he was stepping back, at which point he “chucked”

B.P. towards the crib. Pemberton told Tipton that B.P.’s chest landed on top of one of the

railings of the crib and that her legs got caught in the slats as she tumbled.

       The following day, B.P. was transferred to Texas Children’s Hospital in Houston,

Texas. Bruce McConathy, a Captain with the Edna Police Department, and Clinton

Wooldridge, the Chief of the Edna Police Department, interviewed Pemberton at the

Houston hospital and made a recording of their interaction, which was admitted into

evidence. In the recording, Pemberton told the officers that he tripped over the larger of

the two dogs he owns, fell backwards, and “shot putted” the baby towards the crib before

he hit the floor, causing B.P. to hit the railing of the crib with her chest and her legs to get

stuck on the slats of the crib.       Tina Bradshaw, a registered nurse from the Texas

Children’s Hospital, testified Pemberton told her he fell backwards after tripping over a

large dog. Pemberton’s wife testified that the couple owned “very small dogs.”




       2Roznovzky initially testified Pemberton told him he stumbled forward but later stated that
Pemberton told him he had fallen backwards.

                                                3
        Marcella Donaruma, M.D., a pediatrician specializing in child abuse, testified about

the injuries suffered by B.P. and explained Pemberton told her he fell backwards after

picking B.P. up from the crib and tripping over a little Papillon dog. Pemberton told Dr.

Donaruma he threw B.P. back towards the crib, and Dr. Donaruma explained in detail

why she believed Pemberton’s story “was implausible and failed to explain the nature of

the child’s injuries in any way that was satisfactory.” Patricia Mancuso, M.D., a pediatric

neurosurgeon, testified that she reviewed MRIs of B.P.’s brain and that they indicated

B.P. had sustained significant damage to her brain. 3 Dr. Mancuso explained that the

most recent MRI of B.P.’s brain indicated that she had volume loss of brain tissue and

that B.P. will suffer from weakness on the right side of her body for the rest of her life. Dr.

Mancuso stated that she suspects B.P. has lost some of her peripheral vision and that it

would likely mean B.P. will never be able to drive a vehicle, but it could not be exactly

determined due to her age. B.P.’s mother testified about the physical and emotional

impairments B.P. now suffers as a result of the injury. The jury found Pemberton guilty

of count one and count two.

        At the punishment phase of trial, the State introduced evidence that Pemberton

moved in with a new girlfriend, Emily Schomburg, after being indicted for the offenses

concerning B.P. and that he physically abused Schomburg’s three-year-old daughter

when he was left alone with that child. Schomburg further testified that Pemberton

punched her refrigerator so hard that he dented the door and broke his hand. Evidence




        According to Dr. Mancuso, B.P. had blood collections over the surface of her brain, blood between
        3

the two hemispheres of the brain, and blood between the superior compartment and the interior
compartment parts of her brain. B.P. also had changes in the brain that showed damage to fiber tracts.

                                                   4
was also introduced that Pemberton punched a friend in high school without being

provoked and while his friend was facing away from him.

       The State requested that the trial court remove the instruction in the punishment

charge concerning the possibility of community supervision because Pemberton failed to

present any evidence that he was eligible, and the trial court agreed. The jury assessed

punishment at life imprisonment for both counts. This appeal followed.

                                II.   JURY INSTRUCTIONS

A. Standard of Review

       “[I]n each felony case . . . tried in a court of record, the judge shall, before the

argument begins, deliver to the jury . . . a written charge distinctly setting forth the law

applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14. Our first duty in

analyzing an alleged jury-charge error is to determine whether error exists. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, then we analyze that error

for harm. Id. The degree of harm necessary for reversal depends on whether the

defendant preserved the error by objection. Id. If there is error and the defendant

preserved the alleged error, we must reverse as long as the error was not harmless.

Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). If the defendant failed to

object, we will reverse only if the record shows egregious harm. See Ngo, 175 S.W.3d

at 750; Cueva v. State, 339 S.W.3d 839, 848 (Tex. App.—Corpus Christi–Edinburg 2011,

pet. ref’d). An egregious harm determination must be based on a finding of actual rather

than theoretical harm. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015).

Actual harm is established when the erroneous jury instruction affected the very basis of

the case, deprived the defendant of a valuable right, or vitally affected a defensive theory.



                                             5
Id. “This is a high and difficult standard which must be borne out by the trial record.”

Reeves, 420 S.W.3d at 816.

B. Jury Instruction on Community Supervision

         By his first issue, Pemberton argues the trial court erred because the jury was not

instructed at the punishment phase that it could consider community supervision.

         In certain circumstances, a jury may recommend to the trial court that a

defendant’s sentence be suspended and that he be placed on community supervision.

See TEX. CODE CRIM. PROC. ANN. art. 42A.055.               A defendant is eligible for jury-

recommended community supervision if: “(1) before trial begins, the defendant files a

written sworn motion with the judge that the defendant has not previously been convicted

of a felony in this or any other state; and (2) the jury enters in the verdict a finding that the

information contained in the defendant’s motion is true.” Id. (emphasis added). “The right

to [community supervision] is valuable; when testimony reasonably supports a

defendant’s motion for [community supervision], the issue should be submitted to the

jury.”   Trevino v. State, 577 S.W.2d 242, 243 (Tex. Crim. App. [Panel Op.] 1979).

However, the burden of proof as to eligibility for community supervision is on the

defendant. Baker v. State, 519 S.W.2d 437, 437 (Tex. Crim. App. 1975); Thompson v.

State, 267 S.W.3d 514, 519 (Tex. App.—Austin 2008, pet. ref’d). To be eligible for

community supervision, a defendant’s sworn application for community supervision and

the evidence must show that he has never been convicted of a felony. Thompson, 267

S.W.3d at 519; Green v. State, 658 S.W.2d 303, 308 (Tex. App.—Houston [1st Dist.]

1983, pet. ref’d); see TEX. CODE CRIM. PROC. ANN. art. 42A.055. In other words, the mere

filing of a sworn application is not sufficient to show eligibility for community supervision.



                                               6
Palasota v. State, 460 S.W.2d 137, 140–41 (Tex. Crim. App. 1970); Thompson, 267

S.W.3d at 519; see TEX. CODE CRIM. PROC. ANN. art. 42A.055. Accordingly, a trial court

does not err by refusing to instruct the jury regarding community supervision in the

absence of evidence to support a request for community supervision. Thompson, 267

S.W.3d at 519; see Walker v. State, 440 S.W.2d 653, 659 (Tex. Crim. App. 1969); Tenery

v. State, 680 S.W.2d 629, 640 (Tex. App.—Corpus Christi–Edinburg 1984, pet. ref’d).

      Here, Pemberton filed a sworn motion with the trial court stating he was eligible for

community supervision; however, Pemberton presented no evidence in support of his

motion. Because Pemberton did not present evidence that he did not have a final felony

conviction, the trial court did not err by refusing to give the charge. See Palasota, 460

S.W.2d at 140–41; Thompson, 267 S.W.3d at 519; Green, 658 S.W.2d at 308–09.

      Pemberton further argues that his due process rights were violated because he

was the only one who could have testified as to whether he had a felony conviction. We

disagree. A defendant need not personally take the witness stand and testify that he has

never been convicted of a felony offense. See Trevino, 577 S.W.2d at 243. Rather, he

or she may obtain such evidence from others who sufficiently know him. Id.; see also

Ramirez v. State, No. 08-99-00406-CR, 2000 WL 1595694, at *5 (Tex. App.—El Paso

Oct. 26, 2000, no pet.) (mem. op., not designated for publication). The trial court here

never suggested that Pemberton was required to testify and, although the question of

whether to testify may have presented Pemberton with a difficult choice, this did not

violate his right against self-incrimination. See Cantu v. State, 738 S.W.2d 249, 256 (Tex.

Crim. App. 1987) (stating that “[n]o constitutional violation is presented by the fact of a

difficult decision for a defendant” and that a defendant “must weigh the benefits of



                                            7
presenting his case against the detrimental possibilities that cross-examination on all

relevant issues might present”); see also Gonzales v. State, No. 14-03-01227-CR, 2005

WL 363945, at *2 (Tex. App.—Houston [14th Dist.] Feb. 17, 2005, no pet.) (mem. op., not

designated for publication) (noting that “[t]he Fifth Amendment protects against compelled

self-incrimination” and that “[b]ecause a defendant is not required—much less

compelled—to testify in order to be eligible for community supervision, [the statute] is not

violative of the Fifth Amendment of the U.S. Constitution”). We overrule Pemberton’s first

issue.

C. Jury Instruction on Parole and Good Conduct Time

         By his second issue, Pemberton argues that the trial court submitted erroneous

instructions to the jury concerning parole and good conduct time.

         Pemberton was charged with two first-degree felonies:         (1) intentionally or

knowingly causing serious bodily injury to a child and (2) intentionally or knowingly

causing serious mental deficiency, impairment, or injury to a child. See TEX. PENAL CODE

ANN. § 22.04(a)(1)–(2).    For the offense of causing serious bodily injury to a child,

Pemberton would be eligible for parole after serving half of his sentence or thirty years,

whichever is less, without consideration of good conduct time. See TEX. CODE CRIM.

PROC. ANN. art. 37.07, § 4(a); TEX. GOV’T CODE ANN. § 508.145(d)(1). For the count of

causing serious mental deficiency, impairment, or injury to a child, Pemberton would be

eligible for parole when his time served plus good conduct time equals one-fourth of his

sentence or fifteen years, whichever is less. See TEX. CODE CRIM. PROC. ANN. art. 37.07,

§ 4(b); TEX. GOV’T CODE ANN. § 508.145(f).




                                             8
      Here, the charge instructed the jury as to both offenses that, “Under the applicable

law in this case, if the defendant is sentenced to a term of imprisonment, he will not be

eligible for parole until the actual time plus good conduct time equals one-fourth of the

sentence imposed.” The State concedes that this was error. Pemberton, however, did

not object to the charge at trial; therefore, we review the error for egregious harm. See

Arrington, 451 S.W.3d at 840.

      We determine on a case-by-case basis whether a defendant was egregiously

harmed by an erroneous jury instruction. Id. In doing so, we consider: the entire jury

charge; the state of the evidence, including contested issues and the weight of the

probative evidence; the parties’ arguments; and all other relevant information in the

record. Id.; Cueva, 339 S.W.3d at 848.

      Although Pemberton received the maximum sentence, a number of other factors

mitigate against a finding of egregious harm. First, the parole instruction contained the

standard language admonishing the jury not to consider the extent to which parole law

might be applied to Pemberton, 4 and a curative instruction, in combination with other

factors, may cure any error. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a); Murrieta v.

State, 578 S.W.3d 552, 556 (Tex. App.—Texarkana 2019, no pet.); see Igo v. State, 210

S.W.3d 645, 647 (Tex. Crim. App. 2006). Further, we presume the jury followed the trial

court’s instructions absent evidence to the contrary. See Gamboa v. State, 296 S.W.3d

574, 580 (Tex. Crim. App. 2009); Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App.



      4   Specifically, the charge stated:

      You may consider the existence of the parole law and good conduct time. However, you
      are not to consider the extent to which good conduct time may be awarded to or forfeited
      by this particular defendant. You are not to consider the manner in which the parole law
      may be applied to this particular defendant.

                                                 9
2005); Murrieta, 578 S.W.3d at 556; Cueva, 339 S.W.3d at 853. Pemberton does not

point to any evidence that rebuts the presumption that the jury followed the trial court’s

instructions to disregard the extent to which parole law might be applied to him, and we

find none. See Igo, 210 S.W.3d at 647; Murrieta, 578 S.W.3d at 556; Cueva, 339 S.W.3d

at 853.

       Second, the evidence showed that Pemberton caused serious bodily injuries to his

infant daughter when she was left alone under his care and that the brain injury she

suffered will impair her for the rest of her life. There were recordings admitted into

evidence where Pemberton states his version of events, and he admitted in the

recordings and to multiple witnesses that his actions led to B.P.’s injuries. Dr. Donaruma

explained in great detail how and why she believed Pemberton’s story did not explain the

injuries suffered by B.P. For example, Dr. Donaruma explained that the way B.P.’s ribs

were fractured vertically, and the fact that she had ribs fractured on both sides of her

body, was inconsistent with Pemberton’s version of events detailing that B.P. fell on her

chest a single time. Dr. Donaruma also explained that B.P. had isolated bruises to her

torso that were inconsistent with a single impact against the rail of a crib. In sum, Dr.

Donaruma stated:

       So the fact that she has left and right bilateral injuries and front and back
       that—biplanar injuries as well as multiple organ systems, central nervous
       system, skeleton, abdomen, skin, all injured in the course of this event
       makes it unbelievable as an explanation for the—for the accumulation of
       this child’s injuries.

Dr. Mancuso described the life-long cognitive and functional impairments to B.P. caused

by the injury to her brain.

       There was also evidence of a second instance of physical abuse towards a three-

year-old toddler that occurred after Pemberton had been indicted for the offenses against
                                            10
his infant daughter. The circumstances surrounding that alleged second incident and

Pemberton’s behavior in reporting the child’s injuries to Schomburg were similar to what

happened with B.P. After Pemberton called Schomburg and told her that her three-year-

old daughter had fallen, Schomburg returned home to find her daughter with bruises

throughout her body, a gash to her eye, and bruising and redness to the right side of her

face and neck.      The CPS investigator who investigated the incident concerning

Schomburg’s daughter testified that the child told her, as the child was being removed

from the home, “does this mean that Cody is not going to hit me anymore?” The mothers

of both children also testified that their daughters now suffered from similar behavioral

problems, and there was other evidence admitted of Pemberton’s violent behavior,

including that he punched a high school friend unexpectedly and that he broke his wrist

punching a refrigerator when he was asked by Schomburg about the pending criminal

charges concerning B.P. Therefore, the evidence relating to punishment was strong.

       Finally, neither party mentioned parole or good conduct time during voir dire.

However, we do note that the State, during its closing argument in the punishment phase,

argued: “Now remember, he will get out. He will get out. Life in prison. Talks about

parole. There’s eligibility for parole. He will eventually get out, but you need to keep him

in as long as possible and that’s why I’m asking you to assess the two life sentences.”

Nevertheless, the State did not mention the application of good conduct time or the length

of time Pemberton had to serve before becoming eligible for parole, and the jury

instructions correctly instructed the jury not to consider these matters when assessing

punishment.




                                            11
       The above evidence, as well as the nature of the offense, offer sufficient support

to explain the jury’s assessment of punishment without suggesting egregious harm from

the charge error. See Cueva, 339 S.W.3d at 853–54; Stewart, 293 S.W.3d at 858. The

jury could have viewed the abuse of B.P. here as particularly heinous because the victim

was Pemberton’s own child who was barely over a month old, especially in light of the

allegation that Pemberton abused a second child a short time thereafter under similar

circumstances. We overrule Pemberton’s second issue.

D. Verbal Error When Instructing the Jury

       By his third issue, Pemberton argues that the trial court erred because it told the

jury it could consider whether Pemberton testified as a circumstance against him. Here,

the trial judge stated the following as he read the charge to the jury:

       Our law provides that a Defendant may testify in his own behalf if he elects
       to do so. This, however, is a privilege accorded a defendant and in the
       event he elects not to testify that fact may be taken as a circumstance
       against him. In this case the Defendant has elected not to testify and you
       are instructed that you cannot and must not refer or allude to the fact
       throughout your deliberations or take it into consideration for any purpose
       whatsoever as a circumstance against him.

An objection must be raised to preserve a complaint regarding an improper judicial

comment, see TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App.

2013), and Pemberton did not object to at the trial court when the presiding judge made

this statement or request a curative instruction. Accordingly, we conclude that this

complaint has been waived.       See TEX. R. APP. P. 33.1; Unkart, 400 S.W.3d at 99.

Furthermore, the trial court immediately after stated the correct instruction to the jury, and

the jury charge itself included the correct language. We overrule Pemberton’s third issue.




                                             12
                             III.    MATERIALLY FALSE EVIDENCE

       By his fourth issue, Pemberton argues that his due process rights were violated

“by the inadvertent use of false evidence because of subsequent improvements in the

science of biomechanics.” 5         Pemberton further states that no “timely objection was

necessary to the inadvertent use of false testimony by the State since it was impossible

to know that the objection was proper at the time the evidence was admitted.”

A. Applicable Law

       The use of materially false evidence to procure a conviction violates a defendant’s

due-process rights under the Fifth and Fourteenth Amendments to the United States

Constitution, regardless of whether the falsity of the evidence is known to the State at the

time of trial. Ex parte de la Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). A

defendant claiming such a violation must prove his or her claim by a preponderance of

the evidence. See id.

       Pemberton argues that he:

       suffered a due process violation by the inadvertent use of false evidence
       because of subsequent improvements in the science of biomechanics.
       Further, no witness for the State was qualified as an expert in the field of
       biomechanics. Neither the defense nor the State were aware of advances
       in the science of biomechanics at the time of trial. These advances, if
       known, would have changed the expert testimony in favor of [Pemberton].

We disagree. First, Pemberton presented no evidence indicating that there have been

subsequent improvements in the science of biomechanics after his trial in January of 2018

or that the doctors’ testimony here was false or has been discredited; rather, Pemberton

cites concurring opinions from a 2012 case from the Texas Court of Criminal Appeals



       5Biomechanics is the study of the application or relation of the laws of mechanics to the body.
Nabors Well Servs. Ltd. v. Romero, 508 S.W.3d 512, 530 (Tex. App.—El Paso 2016, pet. denied).

                                                 13
discussing the role of biomechanics in the death of an infant child.                       See Ex parte

Henderson, 384 S.W.3d 833, 837–43 (Tex. Crim. App. 2012) (per curiam) (Cochran, J.,

concurring). 6 There is no evidence that the doctors here relied on the same scientific

principles for their conclusions as the medical examiner in Henderson. See id. We

therefore reject Pemberton’s contention that the doctors’ testimony in this case was

materially false. See Ex parte de la Cruz, 466 S.W.3d at 866. Second, the improvements

in biomechanics discussed in Henderson were discovered at least by 2007, well before

Pemberton’s trial in 2018.           See Ex parte Henderson, 384 S.W.3d at 839.                       Thus,

Pemberton’s argument that the advances were unknown at the time of his trial fails. Third,

to the extent that Pemberton argues that the doctors in this case were not qualified to

give expert testimony on the field of biomechanics, we note that Pemberton did not object

to either doctors’ testimony on this ground. Accordingly, this complaint has been waived.

See TEX. R. APP. P. 33.1. Finally, the offenses Pemberton was convicted of do not require

expert testimony on biomechanics, see TEX. PENAL CODE ANN. § 22.04(a)(1)–(2), and

Pemberton does not challenge the sufficiency of the evidence underlying his convictions.

We overrule Pemberton’s fourth issue.




        6    Henderson was charged and convicted of capital murder for the death of a three-and-a-half-
month-old child due to a head injury. See Ex parte Henderson, 384 S.W.3d 833, 837 (Tex. Crim. App.
2012) (per curiam) (Cochran, J., concurring). The medical examiner who performed the autopsy testified
unequivocally at trial in 1995 that the child “came to his death as a result of a severe closed head
injury . . . characteristic of abuse, homicide.” Id. However, in 2007, the medical examiner provided an
affidavit at Henderson’s habeas corpus hearing stating that, “Based on the physical evidence in the case, I
cannot determine with a reasonable degree of medical certainty whether [the victim’s] injuries resulted from
an intentional act or an accidental fall.” Id. The medical examiner testified that, as a result, “he would
change the manner of death from ‘homicide’ to ‘undetermined.’” The contested issue in Henderson was
whether the child could have suffered the injuries that led to death from an accidental short fall or whether
Henderson intentionally caused the injury that led to the child’s death.

                                                    14
                                  IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                      DORI CONTRERAS
                                                      Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
31st day of October, 2019.




                                               15
