dallas, texas - 5th court of appeals

NO. 05-11-01156-CR

IN THE COURT OF APPEALS

FOR THE

FIFTH JUDICIAL DISTRICT OF TEXAS

DALLAS, TEXAS

MICHELLE BARRIGA-HERMOSILLO

Appellant

V.

THE STATE OF TEXAS,

Appellee

______________________________________________________________________________

ON APPEAL IN CAUSE NO. 429-82368-2010

FROM THE 296THJUDICIAL DISTRICT COURT

OF COLLIN COUNTY, TEXAS

______________________________________________________________________________

APPELLANT’S BRIEF

PAMELA J. LAKATOS

STATE BAR NO. 04825600

P. O. BOX 868091

PLANO, TEXAS 75086-8091

PHONE (972.979.3363

FAX (469.241.1970)

HARLEY MARTIN

STATE BAR NO. 24068879

P. O. BOX 601672

DALLAS, TEXAS 75360

PHONE (214) 675-5024

FAX (214-919-4053

ATTORNEYS FOR APPELLANT

ORAL ARGUMENT

ACCEPTED225EFJ016893132 FIFTH COURT OF APPEALSDALLAS, TEXAS12 May 22 P7:48Lisa MatzCLERK

5th Court of A

ppealsF

ILED

: 05/24/2012 14:50:48

Lisa Matz, C

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cindy.thornton

Cross-Out

2

NAMES OF PARTIES

Pursuant to TEX. R. APP. P. Rule 38.1, the following is a complete list of the

parties and persons interested in the outcome of this cause:

(A) MICHELLE BARRIGA-HERMOSILLO, Inmate number 01764900, Carol

Young Medical Facility, 5509 Attwater Ave. Dickerson, Texas, the

Appellant,

(B) Mr. Winston Ndubueze Udeh , counsel for Appellant at trial, 8585 N.

Stemmons Frwy., Ste M25, Dallas, Texas, 75247.

(C) PAMELA J. LAKATOS, counsel for Appellant on appeal, P. O. Box

868091, Plano, Texas, 75086-8091, and HARLEY MARTIN, counsel for

Appellant on appeal, P. O. Box 601672, Dallas, Texas 75360.

(D) THE STATE OF TEXAS, by and through GREG WILLIS, Collin County

District Attorney, CRYSTAL LEVONIUS AND SAMANTHA CHAMBERS,

JOHN ROLATER, Assistant District Attorneys, 2100 Bloomdale Road,

McKinney, Texas, 75071.

3

TABLE OF CONTENTS

LIST OF AUTHORITIES……………………………………………………………………………..4

PRELIMINARY STATEMENT………………………………………………………………………. 7

SUMMARY OF THE EVIDENCE IN THE CASE …………………………………………………. 7

STATEMENT OF FACTS……………………………………………………………………… ….. 8

POINT OF ERROR ONE……………………………………………………………………........18

THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY SENTENCING

APPELLANT TO 5 YEARS IN PRISON ON COUNT 4: ENDANGERING A

CHILD, A STATE JAIL FELONY

POINT OF ERROR TWO………………………………………………………………………….21

THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY IMPOSING

A 10-YEAR PROBATED PRISON SENTENCE ON COUNT 5: ENDANGERING

A CHILD, A STATE JAIL FELONY

POINT OF ERROR THREE…………………………………………………………………………25

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR

KNOWINGLY CAUSING SERIOUS BODILY INJURY TO A CHILD BY OMISSION

POINT OF ERROR FOUR………………………………………………………………………….35

COUNTS 4, 5, AND 6 VIOLATE FIFTH AMENDMENT DOUBLE JEOPARDY

PROTECTION BECAUSE THEY PUNISH THE SAME OFFENSE MULTIPLE TIMES

PRAYER……………………………………………………………………………………………. 41

CERTIFICATE OF SERVICE……………………………………………………………………… 42

4

LIST OF AUTHORITIES

Cases

Alvarado v. State, 704 S.W.2d 36, 38–39 (Tex.Crim.App.1985). ................................ 28

Baker v. State, 278 S.W.3d 923, 926 (Tex. App.--Houston 2009). ............................. 23

Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008) ...................................... 38

Blockburger v. United States. 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ........ 37

Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). ....................................... 28

Ex parte Goodman, 152 S.W.3d 67, 70 (Tex. Crim. App. 2004) ................................ 37

Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006). ...................................... 40

Harris v. State, 359 S.W.3d 625, 630 (Tex. Crim. App. 2011 ........................................ 38

Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008) ................................. 37

Ivory v. State, 632 S.W.2d 614, 616 (Tex. Crim. App. 1982)……………………… 20,23

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ................. 28

Johnson v. State, 121 S.W.3d 133 (Tex. App.—Ft. Worth 2003)................................. 30

Johnston v. State, 150 S.W.3d 630, 636 (Tex. App.--Austin 2004, no pet.) .............. 30

Lee v. State, 21 S.W.3d 532, 541 (Tex.App.--Tyler 1990). ............................................ 29

Littrell v. State, 271 S.W.3d 273, 279 (Tex. Crim. App. 2008) ...................................... 39

Millslagle v. State, 81 S.W.3d 895, 897 (Tex. App.--Austin 2002, pet. ref'd) ............. 39

Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). ................................ 20, 23

Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007)……………………… …..38

Splawn v. State, 160 S.W.3d 103, 107-08 (Tex. App.--Texarkana 2005) ................... 23

Splawn v. State, 160 S.W.3d 103, 107-08 (Tex. App.--Texarkana 2005). .................. 20

Villanueva v. State, 194 S.W.3d 146, 160 (Tex. App.—Houston 2006) aff’d in part,

rev'd in part, 227 S.W.3d 744 (Tex. Crim. App. 2007) .............................................. 31

Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007) ............................. 37

Williams v. State, 294 S.W.3d 674, 684 (Tex. App.--Houston 2009 ............................. 29

Young v. State, 358 S.W.3d 790, 802 (Tex. App.--Houston 2012). ............................. 29

5

STATUTES

Tex. Fam. Code §151.001(a)(3 ...................................................................................... 28

Tex. Penal Code §1.07(a)(34) ....................................................................................... 28

Tex. Penal Code §1.07(a)(46) ....................................................................................... 28

Tex. Penal Code §12.35(a) ............................................................................................ 20

Tex. Penal Code §22.04(a)(1) ....................................................................................... 34

Tex. Penal Code §22.041(c) .......................................................................................... 19

Tex. Penal Code §22.041(e) .......................................................................................... 20

Tex. Penal Code §22.041(f ............................................................................................. 19

Tex. Penal Code §6.01(c) .............................................................................................. 28

Tex. Penal Code §6.04 ................................................................................................... 29

6

NO. 05-11-01156-CR

IN THE COURT OF APPEALS

FOR THE

FIFTH JUDICIAL DISTRICT OF TEXAS

DALLAS, TEXAS

______________________________________________________________________________

MICHELLE BARRIGA-HERMOSILLO

Appellant

V.

THE STATE OF TEXAS,

Appellee

______________________________________________________________________________

ON APPEAL IN CAUSE NO. 429-82368-2010

FROM THE 429TH JUDICIAL DISTRICT COURT

OF COLLIN COUNTY, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

Appellant before the Court of Appeals, Michelle Barriga-Hermosillo, herein

after referred to as Appellant, has perfected her appeal. Counsel was

appointed for purposes of this appeal.

7

PRELIMINARY STATEMENT

Appellant was charged by indictment with three counts of Injury to a

Child/Serious bodily Injury and three counts of Abandoning or Endangering a

Child on October 28, 2010. (CR: 19-20)

She entered a plea of not guilty to these charges on August 4, 2011. (RR3:

11) She elected for a trial before a jury and was acquitted of Counts One and

Two, and convicted of Counts Three, Four, Five and Six August 8, 2011 (CR: 98-

111) She was sentenced to Five (5) Years in the Institutional Division, TDCJ on

Count Three, Five (5) years on Count Four, Ten (10) years probated for Ten (10)

years on Count Five and Two (2) years on Count Six. Appellant filed Notice of

Appeal on August 29, 2011. (CR: 18)

SUMMARY OF THE EVIDENCE

Appellant entered a plea of not guilty in front of a jury to a multiple counts

of child abuse and child abandoning or endangerment. (RR3: 9-11) The State

presented testimony from five witnesses: Sonya Bilovecky, the 911 operator, Chris

Jones, the investigating officer from Plano PD, Delia Guillamondegui, an

investigator for Child Protective Services, Dr. Cathleen Lang, the pediatrician,

and Kara York, the foster mother of the child. (RR3: 23; 79; 27; 101; 145) She was

found guilty on Counts Three, Four, Five and Six. (RR4: 168) Punishment was

assessed by the jury. (RR5: 34)

8

APPELLANT’S POINT OF ERROR, ONE

THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY

SENTENCING APPELLANT TO THE 5 YEARS IN PRISON ON

COUNT 4: ENDANGERING A CHILD, A STATE JAIL FELONY

APPELLANT’S POINT OF ERROR, TWO

THE TRIAL COURT COMMITTED FINDAMENTAL ERROR BY

IMPOSING A 10-YEAR PROBATED PRISON SENTENCE ON


APPELLANT’S POINT OF ERROR, THREE

THE EVIDENCE IS LEGALLY INSUFFICIENT TO

SUPPORT A CONVICTION FOR KNOWINGLY CAUSING

SERIOUS BODILY INJURY TO A CHILD BY OMISSION

APPELLANT’S POINT OF ERROR, FOUR

COUNTS 4, 5, AND 6 VIOLATE FIFTH AMENDMENT

DOUBLE JEOPARDY PROTECTION BECAUSE THEY

PUNISH THE SAME OFFENSE MULTIPLE TIMES

STATEMENT OF FACTS

Ms. Sonya Bilovecky, a 911 operator for the Plano Police Department

sponsored the 911 call. (RR3: 24) During the call, which was played for the jury,

9

the child, ISJ1 could be heard crying as Appellant was told to wait for the

paramedics. (RR3: 24).

Detective Chris Jones of the Plano Police Department stated that he was

assigned to the Crimes Against Children Unit and investigated this incident. (RR3:

27-29) His investigation was triggered by a report from Michelle Neely who

contacted him after she received a report on his case. (RR3:29)

Detective Jones went to Children’s Medical Center in Dallas along with

Ms. Neely. When he arrived he observed Appellant in the room with the child.

(RR3: 31) When he inquired what had happened she told him that they were

there because ISJ had an arm injury. She said he liked to be swaddled and that

she had attempted to place him into a blanket and when she put his arm in the

blanket she heard a pop and she knew something was wrong and called 911.

When Detective Jones followed up with a couple of questions he was alerted

that the medical staff wanted to speak with him. (RR3:32)

Detective Jones was told that ISJ had suffered a brain bleed, a spiral

fracture of the bone in his upper left arm, a healing fracture of the left shoulder

blade, a cracked skull, healing fractures of the three ribs on the left side,

suspicion of healing fractures of three ribs on the right side and a torn and

healed frenums of the upper and lower lips. Detective Jones told the jury that

these type of injuries indicated that what happened to this child was not

accidental. (RR3: 33)

1 As the child is a minor, he will be identified in this manner to protect his privacy.

10

Detective requested an interview with Appellant. She became upset and

began to cry when he told her that ISJ’s injuries were not consistent with an

accident. (RR3: 34) Appellant then told him that she and the father of the child

woke up and went into the kitchen to fix a bottle for the child. She then

described what had happened when she was attempting to tuck it in into the

blanket she heard a pop or a popping noise. When asked about the father’s

propensity for anger, she replied that she had never known him to have any

kind of temper or be angry. She stated that she did not witness the father do

anything to the child. (RR3: 34) When asked if there had been any previous

incidents, she informed him that about two weeks earlier they had to take the

child to the hospital about two weeks earlier due to continuous vomiting. She

said that this followed the father telling her he had fallen while holding the child

but that he had fallen on the bed with the child. She stated that she told the

hospital personnel that. Detective Jones was informed that the hospital staff was

never told that the child had been in a fall. (RR3: 35-36)

The child’s father told Detective Jones that he had fallen with the child

and that the child had fallen out of his arms. He told Detective Jones that he

was kicked out of the house because of that incident. (RR3: 38) When Detective

Jones asked Appellant about this she told him that he had been kicked out for

other things, not the incident involving the fall. (RR3: 39)

Later, the father asked to speak with the Detective and Ms. Neely. He told

them he wanted to make things right and wanted to speak in private. He told

11

them his family thought he had anger issues. He began to cry and stated that his

parents were going to be angry with him, because they thought he had and

anger problem and that he had not been honest with the Detective. He stated

that the incident in which he held the baby two weeks earlier and dropped the

baby, the child had actually hit his head on the wood frame of the bed. (RR3:

40) He never changed his story about how the child’s arm was injured. (RR3: 41)

On July 23rd, they went and interviewed Appellant again. He wanted to

ask her about the discrepancy between the story she had told the 911 operator-

that she had injured the arm by pulling it out from inside the blanket as opposed

to what she told him-that she had injured it when she was tucking the arm into

the blanket. (RR3:43)

Subsequently both went to speak with Detective Jones. They both told

him that the father was the one who was taking care of the child in the early

morning hours and not Appellant. Appellant told Detective that he was the one

who caused the injury to the arm. (RR3:44)

Appellant told the Detective that she did not know the child had all of the

injuries. (RR3: 56-57) Detective Jones stated that he thought that the only injury

Appellant was responsible for was the injury to the arm. (RR3: 60)

Delia Guillamondegui testified that appellant relinquished her parental

rights. (RR3: 82)

Dr. Cathleen Lang, a board certified pediatrician, saw ISJ at Children’s

Medical Center of Dallas. He was examined for a fracture. Dr. Lang was brought

12

in because there was suspicion that the injuries were neither self-inflicted nor

accidental. (RR3: 105)

Dr. Lang reviewed the films and then went through a full social and family

history. ISJ’s parents were then interviewed as to what happened and were

questioned about what happened and what the circumstances surrounding

what happened were. (RR3: 106)

Appellant told Dr. Lang that ISJ was in his usual state of health when he

went to sleep the night before. He woke up around 3:15 in the morning and was

given a bottle. Dr. Lang was told that he liked to be swaddled when he slept so

Appellant wrapped him up. His left arm was sticking out so she tried to stick it

back into the swaddled blanket and when she did that she heard a pop. (RR3:

107) His arm was not twisted she tried to put it in. It was bent at the elbow and

against his body. When the arm popped he started crying, and she noticed that

his arm was flopping. They called 911. (RR3: 108)

Dr. Lang stated that this medical history differed from the information

given to Plano Medical Center. There, they were told that ISJ was swaddled and

they tried to undo the swaddle and that’s when his arm popped. Appellant told

them she removed the blanket with difficulty and heard a pop and then ISJ was

refusing to move the left arm. (RR3: 108-109)

After examination, Dr. Lang determined that ISJ had multiple fractures,

acute bleeding inside of the cranium and old blood mixed in with the cerebral

spinal fluid. (RR3: 111-129)

13

Dr. Lang testified that a review of the medical records showed that ISJ

was taken to either a primary physician or the emergency room at least six

times. He was taken once for the fracture, another time for the vomiting and

four times to his primary care physician within the first three months of his life.

(RR3: 140)

Kara York, the foster mother for ISJ testified that she had custody of ISJ for

approximately eight months, beginning in July, 2009. After that period he was

transitioned and went to his paternal great aunt. She attempted to keep ISJ but

the child was returned to her possession in May of 2010. (RR3: 145-146)

She indicated that, if possible, she would try to adopt him. When he first

came into her care she could tell he was in pain but the doctor encouraged her

to touch and hold him. (RR3: 146-147) She indicated that it appeared the ISJ

was bypassing any residual damage and had gone from a meek little child to a

well rounded little boy. (RR3: 147) ISJ was 15 months old at the time of trial. (RR3:

148) ISJ had not had any kind of physical or mental problems since he came

into her care-except for colds and little bumps and bruises from daycare.

(RR3:152)

Kyong Ellis, whose daughter has a baby by ISJ’s father’s brother, testified

she was familiar with Appellant and ISJ’s father. (RR4: 6-7) She stated that

Appellant’s husband had a bad temper and was controlling of Appellant. (RR4:

11-12)

14

Ms. Ellis stated that she was scheduled to testify the day before she

appeared on the stand and that the reason she did not appear was that ISJ’s

family, when they found out she was going to testify, called CPS on her

daughter which caused her to be unable to attend trial on her scheduled date.

(RR4: 12-13)

Appellant testified ISJ was born April 24, 2010 and she lost custody July 23,

2010. (RR4: 19) During that time she took the child to either his primary care

physician or to the emergency room approximately six times. (RR4: 19) The first

trip to the emergency room occurred approximately two weeks after she

witnessed the accidental drop of ISJ by his father when he fell on the mattress

next to his bounce chair. (RR4: 20) She was told by the hospital staff that there

would be no injury from that incident. (RR4: 21) ISJ stayed overnight and then

was released. Appellant was told that it was a virus. (RR4: 22)

The next time she took him to the emergency room was July 23, 2010.

(RR4: 22) On July 22nd, she went to sleep around midnight and woke up around

2:00 a.m. ISJ’s father woke her up, ISJ was crying, and asked if she wanted to

feed him. She told him he could feed him and then she went back to sleep.

(RR4: 23) She was subsequently awakened by ISJ’s father, he was crying and

stated “Babe, I think I broke his arm.” She responded “Please tell me you’re

kidding.” (RR4:23) She called 911 and told them everything ISJ’s father told her

to say. (RR4: 24) She rode to the hospital in the ambulance. (RR4: 25-26) When

she got to the hospital she told the staff the same story she told the 911 operator

15

because this was what ISJ’s father told her. (RR4:26) She was not aware of any

previous injuries to the child. (RR4: 27)

Appellant did not find out the truth until ISJ’s father told he at the hospital.

She then told CPS exactly what happened because she did not want to take

the blame for “nobody when someone hurt my son.” (RR4: 30) After that ISJ’s

father went to stay with his mother. She stated that he was kicked out of the

house when he kept feeding the child in a manner she did not like. (RR4: 30)

She testified that she terminated her parental rights voluntarily because

that would give ISJ the best chance of a family placement. (RR4: 59)

Appellant was given a copy of statements from letters she received in jail

from ISJ’s father, specifically admitted by the Court, and told to read them to

the jury. (RR4: 58) These statements consisted of his confessing to the abuse and

lying about it. He stated that he had sent his confession to his attorney, also.

(RR4: 61-64)

On cross-examination she admitted to writing to ISJ’s father begging him

to confess. (RR4: 72)

An examination of the Medical Records admitted into evidence reflects

the following:

ISJ was released from the hospital the next day, July 24, 2010, at 3:30 PM

to CPS custody. (RR6: 129) He was discharged in “good condition” after

receiving additional tests, a splint for his arm, and “tylenol PRN”. (RR6: 141-42) He

16

had “no MR evidence of injury to the brain parenchyma” and the hospital

recommended a follow-up in 1 week for Orthopedics and Neurosurgery. (RR6:

141-42) His discharge instructions also included “Diet: regular”, “Activity: as

tolerated with splint in place” and a follow-up with Ophthalmology [for retinal

hemorrhages] in 3-4 weeks. (RR6: 141)

He returned with his foster family on July 29, 2010. (RR6: 294) Dr.

Podeszwa’s “Xray findings” showed “Fracture healing in acceptable position;

clavicle fx healed.” (RR6: 295) The child received no new medications; he

remained on Tylenol “every 4 hours as needed for Pain.” (RR6: 293) His first visit to

the ophthalmology clinic on August 12, 2010 revealed that the retinal

hemorrhages were “nearly resolved with only small hemorrhage OD, not in

visually significant location” and no treatment is indicated other than “RTC 1

month”. (RR6: 391)

By August 26, 2010, the child’s broken arm had “healed in an acceptable

position” and his Tylenol was discontinued because his therapy was complete.

(RR6: 402) No treatment was ordered during his September or December visit to

the ophthalmology clinic other than a 3-month and 6-month follow-up,

respectively. (RR6: 431,441) December 30, 2010 reports indicate his retinal

hemorrhage “has resolved”. (RR6: 441) Medical testimony and medical records

show no proof that active treatment was required for the child’s

“nondepressed-nondisplaced”(RR6: 141) occipital fractures, frenum, or cranial

17

bleeding. The child did not undergo surgery at any point and the only

suggestion of necessary medication is the Tylenol “treatment” that was

discontinued as of August 26, 2010. (RR6: 402)

APPELLANT’S POINTS OF ERROR, RESTATED

APPELLANT’S POINT OF ERROR, ONE




APPELLANT’S POINT OF ERROR, TWO




APPELLANT’S POINT OF ERROR, THREE




APPELLANT’S POINT OF ERROR, FOUR




18

APPELLANT’S POINT OF ERROR, ONE,




ARGUMENT AND AUTHORITIES

The facts relevant to this issue are set out in the statement of facts and as

follows:

Appellant was convicted of abandoning or endangering a child on

Count 4 and sentenced to 5 years in prison with no fine. (RR5: 34) Defense

counsel made no objection when the trial court pronounced the sentence.

(RR5: 34)

The state read the indictment for Count 4 before trial began.

“Intentionally, knowingly, recklessly and with criminal negligence by act and

omission, engage in conduct, to-wit: allowing ISJ to be in the presence of ISS2.

without supervision, and said conduct placed ISJ, a child younger than 15 years

of age, in imminent danger of death, bodily injury, and physical and mental

impairment.” (RR3: 10)

The trial court charged the jury with instructions at the conclusion of the

evidence. The jury instructions for Count 4 were similar to the indictment.

2 As the child was named after his father, initials are used to protect the privacy of the child.

19

Appellant was subject to conviction if she: “intentionally, knowingly, recklessly, or

with criminal negligence by act or omission, engage in conduct, to-wit: allowing

ISJ to be in the presence of ISS without supervision, and said conduct placed ISJ,

a child younger than fifteen (15) years of age, in imminent danger of death,

bodily injury, or physical or mental impairment”. (CR: 57)

Defense counsel did not object to the punishment charge for Count 4

(RR4: 6) which provided the following: “You are also instructed that the

punishment for Abandoning or Endangering a Child by act or omission by

abandoning the child under circumstances that a reasonable person would

believe would place the child in imminent danger of death, bodily injury, or

physical or mental impairment, is confinement in the state penitentiary for a

period of not less than two (2) years nor more than twenty (20) years, and…a

fine in any amount not to exceed $10,000.00.” (CR: 80-81, 88) Trial counsel

failed to object to the trial court’s written judgment on Count 4 which shows a

conviction of Tex. Penal Code §22.041(e), abandoning a child, a second

degree felony. (CR: 103)

Count 4 reflects the language of Penal Code Section 22.041(c),

endangering a child. This subsection provides that a person commits an offense

when she “intentionally, knowingly, recklessly, or with criminal negligence, by

act or omission, engages in conduct that places a child younger than 15 years

in imminent danger of death, bodily injury, or physical or mental impairment.”

Tex. Penal Code §22.041(c). A violation of Penal Code §22.041(c) is a state jail

20

felony. Tex. Penal Code §22.041(f). The range of punishment for a state jail

offense is a term of confinement not less than 180 days and not more than 2

years. Tex. Penal Code §12.35(a).

A trial judge commits fundamental error if he allows conviction for

anything but the charged offense or a lesser-included. Ivory v. State, 632 S.W.2d

614, 616 (Tex. Crim. App. 1982). A sentence beyond the range of punishment is

unauthorized. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Relief

from a void sentence may be obtained on direct appeal and no trial objection

is required. Id. When a jury is given the wrong range of punishment for the

offense, the proper remedy is a new hearing on punishment. See Splawn v.

State, 160 S.W.3d 103, 107-08 (Tex. App.--Texarkana 2005).

The jury convicted Appellant of endangering a child, a state jail felony.

Tex. Penal Code §§22.041(c), 22.041(f). But the trial court allowed a sentence

and final conviction for abandoning a child, a second-degree felony. Tex.

Penal Code §22.041(e). A second-degree felony is not a lesser-included offense

of a state jail felony. The 5 year sentence imposed on Count 4 exceeds the

maximum punishment for the offense. While defense counsel did not object to

either the sentence or the final judgment, the issue is still properly before this

Court because no trial objection is needed to correct an invalid sentence.

When the trial court allowed a final conviction for an offense than the one

charged and tried, he committed fundamental error.

21

Because Appellant’s sentence is beyond the range of punishment for the

crime, her sentence is illegal.

APPELLANT’S POINT OF ERROR, TWO, RESTATED





The facts relevant to this point are set out in the statement of facts and as

follows:

This issue is consistent with Point of Error 1, except the probated

sentence is also addressed:

Appellant was convicted of abandoning or endangering a child on

Count 5 and sentenced to a 10-year probated prison term with no fine. (RR5: 34)

Defense counsel made no objection when the trial court pronounced the

sentence. (RR5: 34)

The state read the indictment for Count 5 before trial began.

“Intentionally, knowingly, recklessly and with criminal negligence by act and

omission, engage in conduct, to-wit: allowing ISJ to be in the presence of ISS,

and said conduct placed ISJ, a child younger than 15 years of age, in imminent

danger of death, bodily injury, and physical and mental impairment.” (RR3: 10)

The trial court charged the jury with instructions at the conclusion of the

evidence. The jury instructions for Count 5 were similar to the indictment.

22

Appellant was subject to conviction if she: “intentionally, knowingly, recklessly, or

with criminal negligence by act or omission, engage in conduct, to-wit: allowing

ISJ. to be in the presence of ISS, and said conduct placed ISJ, a child younger

than fifteen (15) years of age, in imminent danger of death, bodily injury, or

physical or mental impairment”. (CR: 57)

Defense counsel did not object to the punishment charge for Count 5

(RR4: 6) which provided the following: “You are also instructed that the

punishment for Abandoning or Endangering a Child by act or omission by

abandoning the child under circumstances that a reasonable person would

believe would place the child in imminent danger of death, bodily injury, or

physical or mental impairment, is confinement in the state penitentiary for a

period of not less than two (2) years nor more than twenty (20) years, and…a

fine in any amount not to exceed $10,000.00.” (CR: 80-81, 93) Trial counsel

failed to contest the trial court’s written judgment on Count 5 which shows a

conviction of Tex. Penal Code §22.041(e), abandoning a child, a second

degree felony. (CR: 103)

Count 5 reflects the language of Penal Code Section 22.041(c),

endangering a child. This subsection provides that a person commits an offense

when she “intentionally, knowingly, recklessly, or with criminal negligence, by

act or omission, engages in conduct that places a child younger than 15 years

in imminent danger of death, bodily injury, or physical or mental impairment.”

Tex. Penal Code §22.041(c). A violation of Penal Code §22.041(c) is a state jail

23

felony. Tex. Penal Code §22.041(f). The range of punishment for a state jail

offense is a term of confinement not less than 180 days and not more than 2

years. Tex. Penal Code §12.35(a).

A trial judge commits fundamental error if he allows conviction for

anything but the charged offense or a lesser-included. Ivory v. State, 632 S.W.2d

614, 616 (Tex. Crim. App. 1982). A sentence beyond the range of punishment is

unauthorized. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Relief

from a void sentence may be obtained on direct appeal and no trial objection

is required. Id. An illegal sentence that is probated is still illegal because “an

order of community supervision cannot suspend a sentence that was of no legal

effect at the time of pronouncement.” Baker v. State, 278 S.W.3d 923, 926 (Tex.

App.--Houston 2009). When a jury is given the wrong range of punishment for

the offense, the proper remedy is a new hearing on punishment. See Splawn v.

State, 160 S.W.3d 103, 107-08 (Tex. App.--Texarkana 2005).

The jury convicted Appellant of endangering a child, a state jail felony.

Tex. Penal Code §§22.041(c), 22.041(f). But the trial court allowed a sentence

and final conviction for abandoning a child, a second-degree felony. Tex.

Penal Code §22.041(e). A second-degree felony is not a lesser-included offense

of a state jail felony. The 10-year probated prison sentence imposed on Count 5

exceeds the maximum punishment for the offense. While defense counsel did

not object to either the sentence or the final judgment, the issue is still properly

before this Court because no trial objection is needed to correct an invalid

24

sentence. The fact the sentence is probated does not make it a legal sentence,

it is still unauthorized punishment. When the trial court allowed a final conviction

for an offense than the one charged and tried, he committed fundamental

error.

Because Appellant’s sentence is beyond the range of punishment for the

crime, her sentence is illegal.

APPELLANT’S POINT OF ERROR, THREE, RESTATED






follows.

When Children’s Hospital staff discharged Appellant’s 3-month old son to

Child Protective Services in “good condition” a day after his arrival, they gave

him everything their tests showed he needed for a full recovery.(RR6: 127, 142) A

splint for his arm, Tylenol for his pain, and instructions to return for more tests.(RR6:

141-42) And they were right.

34 days after Appellant called 911 for her son’s broken arm, he no longer

needed the splint. His fracture was healed. (RR6: 402) And he no longer needed

the Tylenol. His therapy was complete. (RR6: 402) But when the dust finally

25

settled after trial a year later, Appellant had relinquished the rights to her son.

(RR4: 58) She was in prison, convicted of a first-degree felony, “3g” offense--

intentionally and knowingly causing serious bodily injury to her son by failing to

provide medical treatment. (CR: 100)

When a doctor testifies to a child’s multiple fractured ribs, fractured skull,

retinal hemorrhages, hematomas, and broken clavicle, jurors tend to listen. (RR3:

111-19) None of these conditions were ever treated. Doctors examined him,

diagnosed him, released him, and then they tested him some more. There was

never surgery, additional medication, extra procedures, nothing but more tests.

To prove her guilty the state had to prove not just an untreated injury, but that

her failure to get treatment actually caused the child serious bodily injury.

Johnson v. State, 121 S.W.3d 133, 135 (Tex. App.—Ft. Worth 2003). Never mind

they had to prove she didn’t get treatment when she was aware to a

reasonable certainty she would cause serious bodily injury. Id.

That is not to say she was squeaky clean. Not only did she give multiple

accounts of how her son’s arm broke, she never volunteered to anyone that

dad dropped her son. (RR4: 84, 89-91) The state’s doctor testified that if they

knew he was dropped, they would have conducted more tests. (RR3: 136)

Eventually, the day her son was taken away by government agents, they ran

those tests and discovered the retinal hemorrhages. (RR3: 136) But ultimately

they provided the same Tylenol and the same splint he would have received if

he only broke an arm; the same arm she took him to the hospital for

26

immediately when he broke it. (State’s Ex. 1) Causation is not just an increased

risk, it must actually cause or worsen serious bodily injury. Johnson v. State, 121

S.W.3d 133, 136.

With no visible injuries noted in any testimony or report, the prosecution

resorted to x-rays to detail the child’s condition. (RR6: 33-53) The state also used

Appellant’s letters from jail where she tries to reconcile her child’s injuries and

she says things like “I do deserve 2 Be in jail cuzz I knew all this shit was happenin

and didnt do shit[.] I should die in Here really[.]” (State’s Ex. 2 at p. 9) With

statements like that, multiple diagnoses, Appellant’s testimony, the baby’s

terrifying cries on the 911 tape, knowledge she relinquished her parental rights,

and pictures of little baby skull, the jury could be influenced against her.

Dr. Cathleen Lang testified there was no explanation for the child’s injuries

other than “something happened to the child or that the child was hurt.” (RR3:

138) And she specifically ruled out medical causes for his conditions. (RR3: 138)

While the child was not previously administered pain medication, she said his

injuries would be painful. (RR3: 137) Dr. Lang said the child would have

undergone a CT scan to look for bleeding if doctors were told he hit his head.

(RR3: 136) She added that once they knew of his head trauma,

ophthalmologists were summoned who discovered retinal hemorrhages. (RR3:

136) Dr. Lang did not testify any injuries were caused or worsened by a lack of

care, she said if doctors had known the child was dropped they would have

employed the additional diagnostic measures as noted. (RR3: 136) Doctors were

27

able to perform the measures and meet the child’s medical because Appellant

acted promptly during any emergency, which is reflected in her multiple trips to

various medical facilities.

Dr. Lang was asked whether his fracture would limit the use of his arm and

she said it would while it was in a splint. (RR3: 129) The state followed by asking

whether the spiral fracture would cause the “protracted use” of his arm and she

replied that would limit it. (RR3: 129) The child’s foster mother, Kara York, testified

he may have residual developmental problems in multitasking in the future, but

there is no way for knowing for sure. (RR3: 153) The state cross-examined

Appellant on not initially telling Children’s Hospital medical staff how the father

behaved after she learned of her son’s fractures.(RR4: 103) Appellant agreed

with the state on cross-examination that the injuries “could have been deadly”,

“could affect him for the rest of his life”, that such injuries kill a number of babies,

that they “could have caused him serious bodily injury”, and they “could have

caused him serious bodily injury for the rest of his life”. (RR4: 115-16)

The state focused on trying to prove Appellant inflicted serious bodily

injury upon her son, as evinced during closing argument. (RR4: 62-63) No

evidence attributes any of the child’s injuries to a lack of medical treatment.

And she was acquitted of knowingly causing serious bodily injury in Count 1,

recklessly doing so in Count 2, and she should have been found not guilty on

Count 3 because there is no evidence that legally supports a finding that she

caused her son serious bodily injury.

28

Reviewing the sufficiency of the evidence to support a conviction requires

this Court to view all the evidence in the light most favorable to the verdict.

Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). After viewing the

evidence in that light, the Court then determines whether any rational jury could

find the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The standard

presumes that it is the jury’s province to resolve conflicts in testimony, weigh the

strength of the evidence, and determine witness credibility. Brooks v. State, 323

S.W.3d 893, 899.

Knowingly causing serious bodily injury to a child by omission is a result-

oriented offense and the state must prove not only an omission that causes

serious bodily injury, but an omission with awareness that it is reasonably certain

to cause serious bodily injury. Alvarado v. State, 704 S.W.2d 36, 38–39

(Tex.Crim.App.1985). An omission is defined as failure to act. Tex. Penal Code

§1.07(a)(34) An omission is not an offense unless the state proves a legal duty to

act. Tex. Penal Code §6.01(c). A child’s mother has a legal duty to provide

medical care for her son. Tex. Fam. Code §151.001(a)(3). Serious bodily injury is

bodily injury that creates a substantial risk of death or that causes death, serious

permanent disfigurement, or prolonged loss or impairment of the function of any

bodily member or organ. Tex. Penal Code §1.07(a)(46). To show causation, the

state must prove serious bodily injury would not have occurred but for her failure

to provide treatment, either alone or with another cause, unless the other cause

29

was clearly sufficient to produce the result and her failure to provide medical

care was clearly insufficient. Tex. Penal Code §6.04.

Cases upholding injury by omission convictions, many involving death to

the child, depict obvious injuries or blatant refusals to provide treatment. A

labor nurse whose daughter contracted herpes prior to her death was

convicted of recklessly causing serious injury to a child. Young v. State, 358

S.W.3d 790, 802 (Tex. App.--Houston 2012). The defendant, who along with her

boyfriend also tested positive for herpes, was trained to recognize herpes-types

lesions and victims of abuse. Id. at p.798, 802. Upon the child’s death, witnesses

observed her bruised, distended stomach, cuts on her lip, redness around her

mouth, and bruising around her vagina. Id. at p. 795. The court held the mother

knew of the child’s serious injuries and delayed medical treatment until it was

too late. Young v. State, 358 S.W.3d 790, 802.

A defendant’s conviction for serious bodily injury to a child by omission

was upheld when he disregarded 3 observers who told him that the boy, who

could not walk due to the severity of his injuries, needed medical treatment.

Lee v. State, 21 S.W.3d 532, 541 (Tex.App.--Tyler 1990). The defendant not only

repeatedly prevented the mother from obtaining care for the child, he laughed

about the child’s condition. Id.

Another case was legally sufficient when the defendant was told her

unconscious child needed medical attention but she failed to obtain care.

Williams v. State, 294 S.W.3d 674, 684 (Tex. App.--Houston 2009). Paramedics

30

discovered the child’s bruised body, which exhibited rigor mortis, on the floor of

the defendant’s home the next day. Id.

Discussing a child’s condition and deciding to withhold treatment out of

fear that abuse will be discovered demonstrates awareness of a child’s need for

medical treatment. Johnston v. State, 150 S.W.3d 630, 636 (Tex. App.--Austin

2004, no pet.) This factor, in addition to the child’s sickly appearance, distended

abdomen, and inability to hold himself up or hold down food and water for

several days was legally sufficient to support a knowingly causing serious bodily

injury by omission guilty verdict. Id.

A mother’s conviction for knowingly causing serious bodily injury to

a child was reversed when the evidence was found insufficient to prove her

omission caused the result. Johnson v. State, 121 S.W.3d 133 (Tex. App.—Ft.

Worth 2003). The jury acquitted her of directly inflicting the blunt force trauma

that ultimately killed the child. Id. at p. 134 And no evidence was presented to

show the child suffered serious bodily injury because of a lack of medical

treatment. Id. at p. 136

The Johnson court noted the child showed no visible signs of trauma or

abuse. Johnson v. State, 121 S.W.3d 133, 136. The child had lost blood, but this

was not apparent to even doctors. Id. That medical testimony suggested

anyone would know the child was ill and time was always a factor in attempts

at resuscitation did not affect the outcome. “He opined that the sooner a

severely injured person receives medical attention, the better” Id. Evidence the

31

defendant could have sought treatment faster was still insufficient to show she

knowingly caused serious bodily injury by delaying treatment. Id. Ultimately her

conviction was reversed because there was no proof of causation. Id.

The state argued in Johnson that if the evidence was insufficient to prove

knowingly, the court should then find the defendant recklessly caused serious

bodily injury. Johnson v. State, 121 S.W.3d 133, 137. But insufficient evidence

supported a verdict on the reckless charge also because there was no proof of

causation. Id. The court emphasized the lack of visible injury, including no

bruising or apparent blood loss. Id. And the defendant performed CPR when

the child stopped breathing. Id. The court concluded that when the defendant

perceived the risk, she sought reasonable medical treatment. Johnson v. State,

121 S.W.3d 133, 137-38.

By contrast, the court found sufficient evidence to support a conviction

for serious bodily injury by omission in Villanueva. Villanueva v. State, 194 S.W.3d

146, 160 (Tex. App.—Houston 2006) aff’d in part, rev'd in part, 227 S.W.3d 744

(Tex. Crim. App. 2007). The defendant discussed his child’s deteriorating

condition and decided not to seek treatment because CPS would be called. Id.

The child’s mother wanted to take him to the hospital because his lips were

blue, he was grunting, he had a bruised face, and his body was limp. Id. When

she tried to call for help, the defendant grabbed the mother’s arm, took her to

the bedroom, and would not allow her to take the child to hospital. Id. The

32

court held this evidence was sufficient to show he knowingly caused serious

bodily injury to the child by omission. Id.

While the appellate-level decision was ultimately reversed on double

jeopardy grounds, the Court of Criminal Appeals noted in dicta that no omission

caused any injury beyond that caused by the defendant’s act. Villanueva v.

State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007). Because the omission resulted

in no separate and discrete injuries that were at least incrementally greater than

those cause by actions, he could not be prosecuted for the omission. Id.

The child had no obvious injuries, and Appellant disregarded no advice to

seek treatment. The state said in closing a mother knows because she has

intuition. (RR4: 136)(“What did she know? Mothers have an intuition. Mothers

know when something is wrong with their child.”). But these fractures are far

more noticeable in x-ray form with medical testimony than they are with intuition

and no visible signs. When she took her son to the hospital a week before the

her son’s arm broke, doctors who observed him overnight found nothing

abnormal. (RR6: 73-75)

The evidence does not show Appellant knew her son had untreated

conditions or exactly when the fractures occurred. Her son cried a lot as she

told doctors. The jury was misinformed when it heard there was “only one

indication where she talks about how fussy, the baby gets fussy about one time

a week”. (RR4: 159);(RR3: 140) (Dr. Lang: “One time I believe it was listed for

being fussy for one week.”). And the state relied heavily on Appellant’s profane

33

jail letters to try to show she knew the baby needed treatment. “Despite the fact

if you read her particular letter where she goes on for two pages talking about

all the things that he did to the baby, she never addressed any of those things

with medical personnel.” (RR4: 161) The problem is these letters were written

after she learned of all her son’s injuries, and before she realizes her son was

released from the hospital in good condition the next day.

Appellant took her son to the doctor for even minor conditions. And she

took him to the hospital for more severe symptoms. The child had no visible

injuries and his doctors saw no need for further treatment. Appellant provided

him with medical care when she knew it was needed. The facts here were not

nearly as severe as Villanueva. Villanueva v. State, 194 S.W.3d 146, 160. Nothing

shows Appellant considered keeping her son from the hospital the night his arm

broke. And the state showed no proof she hindered anyone from obtaining

treatment for the child. The child did not display visible abnormalities, such as

discoloration, bruising, or swelling. The only instance where the state can

pinpoint a definite injury and a clear need to obtain treatment is July 23, 2010,

and on that night she obtained proper medical treatment for her son. (RR6: 80).

The facts of Johnson are similar to Appellant’s case. Appellant was also

acquitted of inflicting the child’s wounds. (CR: 17) And her son showed no

visible signs of injury or abuse. Evidence of trauma is less pronounced here

because her son did not appear ill while the victim in Johnson did. Johnson v.

State, 121 S.W.3d 133, 136 (“[A]nyone would have been able to recognize the

34

child was ill.”). Most importantly, no evidence was presented to show

Appellant’s son suffered serious bodily injury because of a lack of medical

treatment. Id. at p. 136. When she perceived the risk—be it crying, vomiting, a

broken arm, or constipation—she sought medical care for her son.

Absent proof Appellant knew her son needed further medical attention

and without evidence her son’s injuries were caused by a lack of medical care,

the evidence is legally insufficient to support her conviction for knowingly

causing serious bodily injury to a child by omission. Tex. Penal Code §22.04(a)(1).

The state’s doctor was remarkably silent on how the injuries were treated and

with good reason – she knew they required only minor treatment and nothing

Appellant did affected the course of treatment whatsoever. Even with the

diagnoses of fractured ribs, clavicle and skull, doctors did nothing to treat them

other than monitoring them. So earlier medical intervention would not have

improved any condition her son was diagnosed with. In fact the only evidence

of the baby receiving any medication other than Tylenol was when he was

sedated for an MRI.

The father’s actions were sufficient to cause her son’s injuries, as shown in

his letters to her. “I'm sorry for getting you in this situation. I should be the only

one in jail. It was my clumsiness and accidents that caused this shit to go this far.

I should be the only one punished.” (Def. Ex. 14) He was similarly relieved of his

parental duties so like Appellant, he was unaware that the child’s conditions

were successfully resolved.

35

To say Appellant’s actions were insufficient to cause serious bodily injury is

an understatement. Not only did she seek treatment multiple times, the

treatment she obtained for her son was enough such that he was out of the

hospital a day after he arrived. He required a splint, Tylenol, and monitoring and

he received them without complication. Because the evidence fails to prove

Appellant actually caused serious bodily injury, the evidence is insufficient to

support her conviction for knowingly causing serious bodily injury to her son by

omission.

APPELLANT’S POINT OF ERROR, FOUR, RESTATED






follows:

Appellant was convicted of abandoning or endangering a child in

Counts 4, 5, and 6. All 3 counts alleged the statutory elements of endangering a

child found in Texas Penal Code Section 22.041(c): “Intentionally, knowingly,

recklessly, or with criminal negligence by act or omission, engage in conduct,

to-wit: [conduct] and said conduct placed ISJ, a child younger than 15 years of

age, in imminent danger of death, bodily injury, or physical or mental

36

impairment.” (RR3:10-11) They all allege the same date, victim, the same 4

culpable mental states and the same 4 possible degree of danger. Each count

differed only slightly in the conduct alleged:

Count 4-“allowing ISJ to be in the presence of ISS without supervision”

Count 5-“allowing ISJ to be in the presence of ISS”

Count 6-“not providing medical personnel with an accurate medical history”

Appellant contends her convictions on these counts violate her Fifth

Amendment protection against double jeopardy because they punish the same

offense multiple times. Defense counsel objected to including Counts 4, 5, and 6

in the court’s charge during the guilt-innocence phase. He stated, “Count 4 it

says ‘we, the jury, find the defendant guilty of abandoning or endangering a

child as charged in the indictment.’··The same thing on Count 5 and the same

thing on Count 6, all of them the same language…Your Honor, I'm trying to find

out what -- you have three same questions.” (RR4: 128) The trial court

responded, “Well, if you read the body of the charge Count 4 is without

supervision, Count 5 doesn't have any question about supervision and Count 6 is

for abandoning and endangering. Now, they all constitute abandoning or

endangering but they're all just different methods.” (RR4: 128-129)

The conduct alleged in Counts 4 and 5--allowing the child in his father’s

presence-- is the same conduct whether or not the father was supervised. As

the prosecution stated in closing argument, “Count 4 and 5 there were times

that you heard in the interview she left the baby with the defendant

37

unsupervised, and there are times that she just left the defendant around the

baby. That's the difference in those counts.” (RR4: 161) The statute at issue,

however, is focused on the result of the alleged acts, imminent danger of

impairment, not the nature of conduct.

A person endangers a child when she “intentionally, knowingly, recklessly,

or with criminal negligence, by act or omission, engages in conduct that places

a child younger than 15 years in imminent danger of death, bodily injury, or

physical or mental impairment.” Tex. Penal § 22.041(c).

The double jeopardy clause prohibits (1)multiple prosecutions for the

same offense and (2)multiple punishments for the same offense. Villanueva v.

State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007). The traditional test for

determining whether two charges are the “same offense” for double jeopardy

purposes is the “same elements” test of Blockburger v. United States. 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, the “same elements” test is

inappropriate in cases involving multiple punishments for violations of the same

statutory section because each violation necessarily contains the same

elements. Ex parte Goodman, 152 S.W.3d 67, 70 (Tex. Crim. App. 2004). To

decide whether two or more crimes are the “same offense” in a multiple

punishments context, courts determine the allowable unit of prosecution the

legislature intended in the statute. Huffman v. State, 267 S.W.3d 902, 907 (Tex.

Crim. App. 2008).

38

The allowable unit of prosecution for the offense is determined from the

text of the statute. Harris v. State, 359 S.W.3d 625, 630 (Tex. Crim. App. 2011). If

no explicit reference to the allowable unit of prosecution is found within the

statutory language, courts look to the focus or gravamen of the offense to

determine legislative intent. Id. When the statute focuses on the perpetrator’s

actions, the offense is deemed a “nature of conduct” offense. Huffman, 267

S.W.3d at p. 907. In situations where the legislature focuses on the resulting harm

to the victim, the offense is a “result of conduct” offense. Id.

For crimes that proscribe the nature of a defendant’s actions, the

conduct is the focus of the offense and each instance of such conduct is the

allowable unit of prosecution. Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App.

2007). Thus, each completed violation is considered a separate offense. Id. at p.

719. When one victim suffers multiple results from a single violation, each result

cannot be independently punished or prosecuted because they arose from the

same offense. Id.

Crimes that prohibit particular harm suffered by the victim are result-

oriented and the result of the conduct is the allowable unit of prosecution. Bigon

v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008). Thus, when several instances

of conduct combine to create the proscribed resulting harm to the victim, they

are the same offense because the result, not the act, is the prohibited focus of

the offense. Id. at p. 371-372. Each instance of conduct that combined to

39

create the result is merely an alternate means of accomplishing the offense.

Villanueva v. State, 227 S.W.3d 744, 747.

A person commits the offense of endangering a child “if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or omission, engages in

conduct that places a child younger than 15 years in imminent danger of

death, bodily injury, or physical or mental impairment.” Tex. Pen. Code §

22.041(c). The statute contains no direct reference to the allowable unit of

prosecution, nor does the statute requires proof of whether the violation

occurred in a supervised or unsupervised setting.

As the Austin Court of Appeals observed, Penal Code section 22.041(c)

appears to be a “result of conduct” offense. Millslagle v. State, 81 S.W.3d 895,

897 (Tex. App.--Austin 2002, pet. ref'd). “[T]he the inclusion of all four culpable

mental states in the definition of the offense is a strong indication that it is a

specific result type of crime.” Id. “Further indicating that endangering a child is

a specific result offense, section 22.041(c) does not require that the accused's

conduct be of a particular nature or be committed under particular

circumstances…any conduct that places a child in imminent danger is

prohibited.’’ Millslagle, 81 S.W.3d at p. 897. The allowable unit of prosecution for

a result of conduct offense is not the conduct itself, but the harm that results.

Huffman v. State, 267 S.W.3d 902, 907. The remedy for a double jeopardy

violation is to retain the most serious offense. Littrell v. State, 271 S.W.3d 273, 279

(Tex. Crim. App. 2008)

40

The result of all 3 counts is imminent danger of death, bodily injury, mental

impairment, or physical impairment. Imminent danger is the prohibited conduct

and the allowable unit of prosecution. Huffman, 267 S.W.3d at p. 907. The

indictment for Counts 4, 5, and 6 alleged the same timeframe, the same

culpable mental states, and the same potential danger to the child. (RR3:10-11)

If the offense was focused on the nature of the act or omission, the

conduct in 4 and 5 is still indistinguishable because the legislature did not

include supervision as an element of the offense. Tex. Pen. Code § 22.041(c).

Even if the prosecution could include supervision as a separate element of the

offense, double jeopardy remains an issue for these 2 counts. Proving Michelle

‘allowed the child with his father unsupervised’ necessarily proves she ‘allowed

the child with his father’. If Count 5 is a lesser-included of Count 4 with the

added “element” of supervision, the state cannot prosecute both. See Girdy v.

State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006).

Counts 4, 5, and 6 violate Appellant’s Fifth Amendment protection from

multiple punishments for the same offense. The focus of endangering a child is

the imminent danger that results. And the result, imminent danger is the

allowable unit of prosecution. Appellant committed no more than one offense

because all 3 counts allege imminent danger of the same potential degree.

Appellant requests an acquittal on Count 4, 5, or 6 to reflect a single

conviction for endangering a child. . Since counts 4 and 5 were serious enough

41

to warrant a range of punishment 10 times the allowable sentence for a state

jail felony, they appear to be the most serious.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the undersigned attorney requests

this Court of Appeals to review the record on appeal, and reform the Judgment

to conform with the law as set out in this brief and/or render an acquittal in the

appropriate Counts.

Respectfully submitted,

___________________________________

PAMELA J. LAKATOS

State Bar No. 04825600

Attorney for the Defendant

P. O. Box 868091

Plano, Texas 75086-8091

Phone 972.979.3363

Fax 469.241.1970

42

CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Brief has been

served on John Rolater, Chief of the Appellate Division of the Collin

County District Attorney’s Office, by personal, email, or U.S. Mail delivery,

on March 22, 2012.

PAMELA J. LAKATOS

dallas, texas - 5th court of appeals

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