Case Information

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816-15 ORIGINAL

TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN

COA CASE No. 05-13-01586-CR $P_{D-0816-15}$ RECEIVED IN COURT OF CRIMINAL APA- EALS

$$\text{No. 05-13-01586-CR}\text{SEP}172015$$

IN THE COURT OF APPEALS Abel Acosta, Clert FIETH DISTRICT OF TEXAS OF DALLAS

ON APPEAL From THE CRIMINAL District COURT No. 6 OF DALLAS COUNTY TRIAL COURT No. 22326

| aSivia Romera | COA CASE No. 05-13-01586-CR | | :--: | :--: | | APPELLANT | TR. CT. No. FOL-16595-X | | | $\mathrm{P}\mathrm{b}-0816-15$ |

STATE OF TEXAS APPEILEE

APPELIANT'S PETITION FOR DISCRETIONARY REVIEW

FILED IN COURT OF CRIMINAL APPEALS SEP 172015 Abel Acosta, Clerk

aSivia Romera, Prose

TOCT D01883677 1916 N. Hwy 36 By pass Catesville, Texas. 76596.

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PurSuvant to the Provisions of Rule 3R1 (a) Texas Rules of Appellate Procedure, a complete list of the Names of all parties to this action and counsel are as follows:

| Parties | Silluia Romero Appellant State of Texas, Appellee | | :--: | :--: | | Attorneys for Appellant: | James G. Jamison Trial Counsel | | | 529 W. Twelfth Street Dallas, Dallas Ca. TX. 75208 | | | Dan Wood Counsel on Appeal 4303 N. Central Expressway Dallas, Dallas Ca. TX. 75205 | | Attorneys for the state: | Hon. Craig Watkins
Criminal District Attorney
Crowley Court's Building
133 N. River Front Blun. LB19
Dallas, Dallas County, TX. 75207 | | | Sherre Sweet, Asst. Criminal District Attorney, Trial Counsel. |

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JANEZ OF AUTHORITIES

CASE LAW:

Almanza v. State, 686 S.W. 2d 152 (Tex. Crim. App. 1985) Clayton v. State, 235 S.W. 3d 272 (Tex. Crim. App. 2007) Higgins v. state, 785 S.W. 2d 827 (Tex. Crim. App.1990) Hooper v. State, 214 S.W. 2d 9 (Tex. Crim. App. 2007) Jackson v. Viriginia, 493 U.S. 307, 99 S.CT 2781, 61 L. Ed. 2 d 560 (1979) Lafler v. Cooper, 566 U.S. (March 12, 2012 No. 10-209) Patterson v. State, 49 S.W. 3d 294 (Tex. App.-FTWORth200) Patterson v. state, 101 S.W. 2 d 150 (Tex. App. FT. WORTH(2003) Saxton v. state, 804 S.W. 2 d 919 (Tex. Crim. App. 1991)

Statutes And Rules:

Tex. pen. code $\S 603$ (6) Tex. pen. code $\S 603$ (c) Tex. Pen. Code $\S 22.04$ (a) (1) Tex. Pen. Code $\S 22.04$ (c) (1) Tex. Pen. Code $\S 22.04$ (c) Tex. Pen. R.APP. Pro. 21.8 (c) Tex. R. APP. Pro. 43.2

OTHER MATERIAL: Texas Criminal Jory charges 86:1440 (James Publishing Rev. 11, 12/200 APPLLANT'S AFFIDAULT

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INDEX OF AUTHORITIES (ADOENDUM) pp. 3-6

TAYLOR v. STATE, 332 S.W. 3d 483 (TEx. CRIm. APPeal 2041) UNITEDSTATES v. CRONIC, 466 U.S.698, 658, 104 S. CT. 2039, 2046. 2047. 80 L. Ed. 2 d 657 (1984)

JOHNSTON v. STATE, 115 S.W. 3d 761.764 (TEx.APP. AUSTIN 2003), AFE'D, 145 S.W. 3d 215 (TEx. CRIm.APP. 2004)

Ngo v. STATE, 175 S.W. 3d 738, 743-44 (TEx. CRIm. APP. 2005) ALLEN v. STATE, 253 S.W. 3d 260, 264 (TEx. CRIm. 2008) HUTCH v. STATE, 922 S.W. 2d 166, 174 (TEx. Crim. APP. 1996) Thompson v. STATE, 95-W. 3d 808, 812-13 (TEx. CRIm. APP. 1999) Mc FARLAND v. STATE, 845 S.W. 2 d 824,843 (TEx.Crim.APp 1992) Mc. Mann v. Richardson, 397 U.S. 759,771 , n. 19,90 S.CT.1441, 1449, 25 L.Ed. 2 d 763 (1970). United. STATE v. Morrison, 449 U.S. 361,364,1015.CT. 665, 667, 66 L.Ed. 2 d 564 (1981) Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.CT. 1708,1715 64 L.Ed. 2 d. 333 (1980) ANDERS v. CALIFORNIA, 386 U.S. 738, 743,87 S.CT. 1396 , 1399, 18 L.Ed. 2 d 493 (1967) STRICTLANO v. WASHINGTON, 466 U.S. 668, 104 S.CT. 2052, 80 L. Ed. 674 (1984)

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TABLE OF CONTENTS

Identities OF Parties and Counsel.

Index OF Authorities.

STATEMENT OF CASE.

Issues Presented.

Summary of Facts

Summary of the Argument.

Argument and Authorities:

Issue Number One: The Evidence Is Insufficient to Support The Conviction. Issue Number Two: The Trial Court Committed Ēgregious error by charging the July on the Improper Definition of the Culpable MenIAL State of Acting In ten tionally. Issue Number Three: Appellant Did Not Receive Cffective Assistance of Counsel Prior To Trial, at Pre- Hearings on Motions; and, AT TRIAL:

1) Failure To Conduct Pre-Trial Investigations by Meeting with Appellant 2 times in two years and not allowing or bringing an Interpreter; 2) Failure to Conduct Pre-Trial Discovery Depositions.

*6 2) Failure To Conduct Pre-Trial Discovery Depositions of Appellee's Medical, Radiological and Neurological experts; 3) Failure To Conduct Pre-Trial Discovery Depositions of Court-Appoin ted Medical Experts and then failing to Present Medical expert at Trial; 4) Failure To object To Jury Charge Instruction with regard to the improper Definition of culpable Mentel state of Acting Intentionally, even when asked by the court; 5) Failure to Conduct any Pre-Trial Depositions and/or Interviews of witnesses; 6) Failure To investigate and/or depose any current medical physicians currently treating Complaint Child (M.I); 7) Failure To Object to hear-say Testimony relevant to Complintant's current medical condition; 8) Failure to object to state's argument 9) Failure to subject, prosecutions case to meaning Ful adversarial testing; 10) Misaduse given to Appellant to turn down Plea of 10 years by promising Appellant that de Fense's medical expert would be presented and that she (Appellant) would not have to spend 10 years in prison- PRAYER

Certificate of SErvice

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To The Honorable Justices of the Court of Appeals: Silvia Romero, Appellant Prose in this Cause, Files This her Petition for Discretionary Review.

STATEMENT OF CASE

ON October 8, 2001, Appellant, Prose, Was charged by indictment for injury to a child with serious bodily injury (CR:20): A jury trial was held and Appellant's trial Counsel entered a plea of not guilty on behalf of his Client (SRR:8-9). The jury returned a verdict of guilty as indicted (CR:85) (SRR:91). Apter a trial on punishment, The jury returned is Verdict of guilty (SRR:95). In Accordance With the jury verdict Appellant was sentenced to Life imprisonment in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $20,000$ fine (CR:96) (SRR:45-46).

Appellant timely filed her Notice of Appeal(CCR:100). Appellant also timely filed her Motion for New Trials, however, the motion was denied by operation of law (CR:99). See, Rule 21:8(c) Tex.R.App. Pro.

THE Record is cited in this brief/POR as Follows: The Reporters Record, consisting of ten Volumes and one Supplemental Volume, are referred to as $RR$ proceeded by the Volume Number and followed by the Page Number, the Clerk's Record is referred to as CR followed by the page Number.

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Issues Presented

Issue Number One The Evidence Is Insufficient To

Supper The Conviction-

Issue Number Two: The Trial Court Committed By

glous e mor By charging The Jory On The Improper Definition of The culpeble Mental State of Acting Intentionally-

Issue Number Three: Appellant Did Not Reccive EFFactive Assistance of Counsel Prior to Trial, at Pre-Heanngs on Motions and at Trial: 1) Failure To Conduct Pre-Trial Investigations and by meeting with Appellant only two(2) times in two years and not allowing or bringing on Interpreter, 2) Failure To Conduct Pre-Trial Discovery Depositions of Appellee's medical, Radiological and neurological experts 3) Failure To Conduct Pre-Trial Discovery Depositions of Court- Appointed Medical Experts and Then failing to Present Medical Expert at Trial, 4) Failure to object To Jory Charge Instruction with regard to the improper Definition of cul pable mentel state of Acting Intentionally, Even when asked by the Cauti, 5) Failure to Conduct any Pre-Trial Depositions and/or Interviews of Witnesses; 6) Failure to Investigate and/or depose any current medical physicians currently treating Complainant Chid (MI)(7) Failure To object to hear-say testimony relevant To.

*9 Complainant's current Medical condition; 8) Failure to abject to state argument; 9) Failure to subject Prosecution's case to maning Rel adversarial testing; 10) Misadvise given to Appellant to turn down Plea OF 10 years by promising Appellant that defense's Medical Expert would be presented and that she (Appellant) would not have to spend 10 years in prison.

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Summary of Facts

APPELLANT called 911 when her two year old step-claughter Mariangella Iniesta, was unresponsive (SRR:20 25, 7RR: 137-38). Medial personnel, or EMT, Responded to the address in Carrolton, Texas, and a child was found laying on the carpet, unresponsive and with dilated pupil-Symptoms indicative of a brain injury (SRR: 48.52-55). Nourisible injuries to the child were seen by the EMt (SRR:53). Appellant and ano ther Small child were also present at the apartment when the medical personnel arrived (SRR:52). At the time of trial, the child, Mariangella, did not appear and was living in Mexico (SRR:91). According to her aunt, Mariangella, at age 15 is not able to speak, walks with difficulty. One hand is immobile, cannot wash or feed herself and wears a diaper (SRR: 39-40). AT The scene, Appellant told a para Medic, Jose Estrada, The child has fallen from a couch (SRR:97). At the hospital, Appellant made a statement, in an affidavit form, to a child protective Services Worker (7RR:61). See, state Ex.298: the affidavit stated the child, Mariangella, was playing with appellants daughter and Appellant was in the bathroom when she heard a scream (SRR:63). Thinking the child, Anakaren, had fallen, Appellant came in to the Room to find Mariangella, laying in the middle of the chimney (sic) (SRR:63). Appellant suggested mariangella had fallen from the couch or the racking chair (SRR: 63). Later police Returned to the apartment to photograph the arrangement of for niture induding a small, child size, Rocking chair (SRR:78).

*11 A few days after the incident at the apartment, Appellant went to the police station and gave a written statement to the police (F.RR:71). See, state Ex.IB. The statement said that the child was playing with the television remote, would Not calm down, and Appellant grabbed the child's ARMAND pushed the child hard onto the chair (F.RR:52). According to the statement, the chair fell backwards, the child hit her headon the floor and was unresponsive (F.RR:52-53). $◻$ Dr. Pamela Okada, an emergency doctor at child Rents Medical Center of Dallas, testified she did not specifically Remember treating mariangella in 2001 (GRR:24-28) However, after Revewing the records, Dr. Okada stated the records reflect that she treated the child and learned the history given to medical personnel was that the child was injured from a fall from a couch onto either carpet or a chimney and that the mother stated she was not in the room when the injury occurred (GRR:29). The child was unresponsive, no eye movements but there were movements. Of her arms which is called 'posturing which is an abnormal motor function (GRR:30). A CAT scan Revealed a large skull Fracture and Sabdural hematoma (GRR:32). Dr. Okada opined that the injury seen was not consistent with the history of falling off a couch and that the injury was a Result of non-accidental trauma and was intentionally in Plicted (GRR:33). In an affidavit prepared on September 8, 2001, Dr. Okada recommended in this case that CPS, police, social war Ker and RERCH and opthalmology. (on suits be done for non-accidental trauma) (GRR:35). See state ex. 26 .

*12 A pediatric neurosurgeon, Dr. Dale Swift, Testified that on September 9, 2001, he operated on the two-year old child, Mariangella Iniesta, because of a subdural hematoma (2RR:8). The child's brain was swelling and if not treated would have resulted in her death (2RR:12-13). Dr. Swift said that the Patient's history of falling from a couch was not consistent with the injury he saw (2RR:20) such an injury would require much more force (2RR:21). The doctor opined the injury was Not accidental, (2RR:22).

A pediatrician, Dr. Matthew Cox, testified the medical records. show the child had an old upper arm fracture, a left-side skull fracture, a back-of-head skull fracture, brain swelling and hemorrhage (2RR:110-11,119-16). Also, the child's pancreas was torn into two pieces which would require blunt force trauma to achieve (2RR:116-17). The doctor opined the trauma was inflicted and was not accidental and was child abuse (2RR:119-20). The doctor further opined it would be obvious to the person who inflicted The trauma that their action would be injurious (2RR:120).Mariangella Suffered serious bodily injury (2RR:122). Dr. Cox did not Personally examine Mariangella (2RR:126-27).

Appellant testified to the jury that she heard a noise found The child on the floor near the chimney, and the rocking chair was Torned over (2RR:132). Appellant tried to revive the child and called 911 (2RR:136-37). Appellant believed that Mariangella fell from the rocking chair (2RR:137). Mariangella needed to go to the hospital because so, she was asleep, she wasn't waking up." (2RR:191). Later when Appellant gave her statement to police, the:

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Appellant Said the police were yelling at her and told her what to write in her statement to police (PRA:146-49). However, Officer Jose Flores testified that he waspresent when Appellant gave, her statement and that the words on the Statement were the Appellant's own words (RR6:19).

After being released on bond, Appellant later appeared in Court but afterward she believed she was free to go to Mexico (PRA:160-161). Appellant testified that the injury to Mariangela was an unfortunate accident and that she, Appellant, would never harm a child (PRA: 149).

SUMMARY OF ARGUMENT

Appellant was convicted of the first degree felony of injury to a child. Appellant's Conviction should be reversed and an acquittal entered because there is no evidence that Appellant intended to cause the injuries resulting from her actions. In the alternative, the judgment of conviction should be modified and reformed to convict Appellant only of the second degree felony of sense of recklessly causing the injury and the case should be remanded to the trial Court for a punishment trial only. Or in the alternative, Appellant's Conviction should be reversed as a result of ineffective assistance which caused the rejection of aplea leading to a more severe sentence at trial, the remedy must Neutralize the taint of the actual constitutional violation. the sole remedy in these circumstances is to OKDER the state to Reoffer the plba agreement. Or in the Evident Alternative Appellants in Effective assistance of counsellahroughough - the entire Record, Appellant's conviction should bereversed and an acquittal entered.

*14 The Jury charge was submitted without objection(Issue3ineffective assistance of counsel), however, the trial court committed egregious error in its charge by incorrectly instructing the jury on The definition of the culpable mental state of intentional or intent, the incorrect instruction allowed the jury to find appellant guilty because of Appellants in tentional actions of. Throwing or pushing Complainant rather than finding Appellant guilty of first degree Felony injury to a child because of Appellant's intent to cause the injury sustained.

The right to be represented by counsel is by far the most important of a defendant's constitutional rights because it affects the ability of a defendant to assert a myriad of other Right. The right to the assistance of counsel is guaranteed by The sixth and Fourteenth Amendments to the United States Constitution and article 2, Section 10 of the Texas Constitution. This right to the assistance of counsel has long been understood to include a "Right to the effective assistance of counsel." The integrity of our criminal Justice System and the fairness of The adversary criminal process was not assured in Appellant's Case because she was not represented by an effective attorney. Trial Counsel for Appellant failed to object on the record to The Jury charge Instruction with regard to the improper definition of the culpable mental state of acting intentionally. Assisted above, the incorrect instruction allowed the jury to find Appellant guilty because of Appellant's intentionally actions of throwing or pushing Complainant rather than finding Appellant guilty of first degree Felony injury to a.

*15 Child because of Appellant's intent to cause the injury Sustained Trial Counsel's failure to object to the instruction and definition allowed the State's Case for Conuiction to be made Clearly and significantly more persuasive due to the incorrect charge Definition on intentional as applied to the Offense of injury To achild,

Trial Counsel's Errors Were so Significant that Appellant was so severely prejudiced that it should be Unnecessary to establish the prejudice prong of Strickland Prejudice is presumed in situations where the likelihood of Counsel having provided Effective assistance is extremely small such as where counsel failed completely to subject, The prosecution's case to Meaningfal adversarial testing. Strickland

In Appellant's case trial Counsel's strategy as indicated in the record available to Appellant wassaill- chosen that it rendered her trial Fundomentially un Fair Trial Counsel allowed The State time again to testify during opening and closing with absolutely no objection During Appellant's testimony basically accused Appellant of understanding and Compre hending Englishlis a first language when the Court had allowed an interpreter to be used as Appellant's Command of the English language, was, to say the least, poor and extremely limited, thus Causing extreme prejudice against Appellant Trial Counsel's failure To adequately present expert testimony to the jury was inconceivable considering the gravity of the injuries alleged to have been caused intentionally by Appellant upon Review of the record available to Appellant, The.

*16 Court allowed the appointment of a Medical Expert, Dr. Mattew Cox on October 2, 2012, The Order is signed and dated almost a full year before Appellant's Trial, The Record is not clear why or when Dr. Mattew J. Cox became a hostile expert witness, however, the records indicate another Medical Expert was appointed and approved by The Court on March 19, 2013. The medical expert appointed was Dr. Steven C. Gabaeff. Further, the Court authorized payment of reasonable expert fees and reimbur sable Expenses upon submission of a statement of the fees and expenses incurred. The record indicates that no Requests for Pre-Authorization Expenses for Dr. Steven Gabaeff on behalf of Appellant, Silvia Romero were submitted Until the 16th of September, 2013. The day final Hearings and Voir dire began. The Judge denied the Request. The record obtained by Appellant does not contain or indicate that any Medical Expert report was filed by Trial Counsel for Appellant or that Any depositions were taken by Trial Counsel with regard to The medical Expert Trial Counsel attempted to get travel Expenses for Trial Counsel's failure to adequately present expert testimony to the Jury was and should be Considered ineffective assistance of Counsel. There Could have been no Reasonable Trial strategy in Not presenting Expert Medical testimony on behalf of Silvia Romero. In fact at a Pre-Trial Hearing on August 28, 2013, when the Trial Court Judge asked Appellant who ther she wanted to accept The State's

*17 PleG OFFer OF ten ( 10 ) years, the Trial Judge asked her it she wished to confer with her trial counsel. Trial counsel Jamison and Appellant conferred and Jamison advised Appellant that he had a medical expert he was going to present on her behalf and that "she would not have to spend ten years incarcerated." Jamison, Knowing the gravity of the case and the voluminous amount of medical records and rehabilitation records, gave Appellant advise and for misadvice to turn down the state's ofEer. Appellant remained under the understanding that the medical expert, Dr. Steven Gaboete would be presented, all the way up to the time the case rested on both sides. The record indicates trial counsel tried to cover both his Failure to present expert testimony on Appellant's and his misadvice to reject the State's offer by promising to present the expert at trial at the conference held on August 28, 2013. On the record trial counsel indicates he had been on the case a long time and that the medical Records were extensive and that with experts with Their schedules"some needed as much as an eight month advance window" Even on the record, trial counsel Could not admit to Appellant he had failed to file a tumely motion for Pre-Expenses, that same had been denied and that no medical expert would be presented on her behalf. Trial counsel never informed Appellant that he should fail to bring and for present on her behalf any medical expert testimony. Trial Counsel failed to conduct any meaning ful investigation in to the accurate and.

*18 medically informed up-to-date information regarding the Child's (MI) Current medical status. Instead the only alleged up-date on the child's condition was presented by the state through lay-witness, Alexandri Villareal, who the Records available to Appellant show that Trial Counsel neither crossexamined, interviewed and/or deposed to determine when the last time witness Villareal had seen observed and/or cared for the child (MI) FURTHER, Trial Counsel made no attempt to determine whether the child was progressing under medical Care and rehabilitation in Mexico where she resides Trial Counsel's failure to conduct any meaning for Pre-Trial investigations, interviews, depositions and/or discovery was to complete the he failed to subject the prosecution's Case to "Meaning full adversarial testing." His failure to meet with Appellant to develope witnesses information and interviews and to object to the hear-say Testimony on The medical condition of Child (MI) were errors So Serious That Trial Counsel was not functioning as "Counsel guaranteed the Appellant by the Sixth Amendment. I econd, the defendant Appellant argues that Counsel's Performance was so deficient it prejudiced the Appellant at trials.

ARGUMENT ANN AUTHORITIES Issue NUMBER ONE Issue No. ONE (Restated): The evidence is insufficient

*19 To Support Appellant's Conviction for intentionally or Knowingly Causing Serious bodily in Jury to a child. ON may 23, 2014 Appellant filed her Brief with The Court of Appeals, Fifth District of Texas at Dallas by and through her appellate Attorney of Record, DAWWOOD, JR. ON April 17, 2015, the Court of Appeals, Fifth District of Texas at Dallas, based on the Court's opinion, the Judgment of the Trial Court was Modified as follows: 1) The portion of the Trial Court's Judgment that states statute for offense," 22:01 Penal Code," is modified to state "statute for offense," 22:04 Penal Code; and 2) The portion of the trial court's Judgment that states "findings on Deadly Weapon: NA" is modified to state "findings on Deadly Weapon." Deadly Weapon, Not a Firearm. The Court entered it's opinion stanting: "As Reformed, the Judgment is Affirmed." Appellant disagreed with the Court's opinion and by and Through her Appellate attorney of record filed a Motion For Rehearing on May 2, 2015. On June 8, 2015, the Court of Appeals, Fifth District of Dallas, denied Appellant's, Sillie Romero, May 2, 2015 motion for rehearing. Appellant again disagrees and files this her Petition for Discretionary Review on this issue. Appellant asserts there is no evidence that she intentionally or knowingly caused injury to her step-daughter, Mariangella Iniesta. The alternative viewing the evidence in the light most favorable to the Verdict, the most Appellant is guilty of, if any thing, is of acting recklessly in regard to the result of her conduct, when Reviewing.

*20 The legal Sufficiency of the evidence to support a Conviction, a. reviewing court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson p. VIRGINIA, 443 U.S. 307, 319, 49 S. CT 2781, 2789, 61 L.Ed. 560 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable in ferences from basic facts to ultimate facts. 443 U.S. at 319, 99 S. CT. at 2789; and see, Clayton p. State, 235 S.w.3d 772, 778 (Tex. Crim. App. 2007), when Performing a legal-Sufficiency review, the reviewing Court determines whe their the necessary inferences are reasonable based Upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the, verdict." Hooper p State, 214 S. W. 3d 9, 16-17 (Tex. Crim. App. 2007).

Our indictment alleges Appellant intentionally or, Knowingly, Caused Serious bodily injury to a child on or about September 9, 2001 by. Throwing and Pushing or striking the child (CR:20). The lesser included OFFense of recklessly causing injury to a child is included in the Jury charge (CR:80). However, the trial court's charge improperly instructs the jury concerning the culpable mental state of intentionally as: Aperson acts intentionally, or with intent, with respect to to (sic) a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." (CR:79)3 (emphasis added). Effectively, The Trial Judge told the jury they 3 this erroneous Jary charge instruction is discussed further in this PRA.s issue Numbers 2 and 3 but it is important to Note here cur Jury charge definition of "Knowingly" and recklessly "did properly Remee the penal code language of "Nature of his conduct" and "Circumstances Surrounding his conduct". Repectively (CR:79-80), See second Sentence of Tex. Pen. Code Ann. 36-05 (b) and see Tex. pen.' code Ann. 6,03 (c) (Vernon 2001). It is only the definition of "intentionally" in The Court's charge that is incorrect because it includes the phrase engage in the conduct". (CR: 79).

*21 Could Find Appellant guilty of intentionally causing injury to a child. by only finding Appellant was intending to throw, push or strike the did. rather than intend the result. To intentionally "engage in conduct" here is simply not a crime of injury to a child, because injury to a child is a result-Oriented crime, Patterson v. State, 49 S.w. 3d 294 301 (Tex. App. for worth zool, no pet.) Renal code section 22-04 provides that a person commits the first-degree of sense of injury to a child if. She intentionally or knowingly causes serious bodily injury to a Child, who is younger than 15 years of age. See, Tex. PEN-Code Ann 3 22.04 (a)(1), (c)(1),(c)(1), (vernon 2001).

When the conduct is engaged in recklessly, injury to a child is a Felony of the second degree. Tex. PEN-Code Ann 322.04 (c)(Vernon 2001).

When Reviewing a legal- 3ufficiency challenge, a Revi ew ing courtvices The evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements. Of the of Fense beyond a reasonable doubt. See, Sexton v. State, 804 S.W. 2d 910,914 (Tex. Crim. App. 1991) To establish the essential elements of the offence, the statement prove that appellant intentionally or knowingly caused serious bodily injury to the child. See Tex. PEN-Code Ann 222.04 (a)(1),(c)(1),(e) As stated earlier, Injury to a child is an example of a resalt-oriented crime. Patterson, 49 S.w. 3d at 301 (reforming Judgment from intentional or knowingly to recklessly causing injury to a child), and see, Patterson v. state 101 S.W. 2d 150 (Tex. App. Fort worth 2003, Pet. ref'd). The aupable mental state relates not to the nature or circumstances surrounding the conduct, but to the result of defendant's conduct. 49 S.W. 3 d at 301. Awareness of the circumstances is not a mental.

*22 State which the injury to a child stetate makes culpable. Hoggins w datete 985 S.W.zd 827,828 (Tex. Crim. App.) (1990). of course, no non- Party trial witness observed the event subject of the alleged offense, but Appellants statement to Detective Flores was admitted and published to the Jury (7RR:48-52) "Viewing the statement in the light most favorable to the verdict, Appellant says she was "annoyed" and grabbed The child's Arm and pushed her "hare" because the child was playing witho Tu remote Control (7RR 52-53). This admission would only. Support that Appellant intentionally or Krowingly engaged in the conduct of Throwing, Pushing or Striking the child, but not that Appellant in tentionally or Knowingly Caused the result of Serious bodily injury.

The evidence at trial focuses on the severe injury and how it might have been inflicted, not that the result was intentionel or Knowing. The three doctors testifying for the state opined that the action causing the injury sustained by the child was not accidental, but that testimony goes to the nature of the conduct and not thereagth. On Okada Stated, in her medical opinion, the injury was not consistent with falling from a couch and further that the injuries were "non- accidental trauma" and used the term "intentionally in Picted When describing the action needed to inflict the injury presented. (GRR: 331. Again, the how-and-why of the infliction of the injury is not The point-the point is only whether the result is intentionel, Knowing or reckless. Interestingly, Dr. Dale Swift does opine that the child's (M.I). In a separate hearing, Appellant contested the voluntariness of her statement alleging She was coereed; however, the trial court found the statement to be voluntary (SRR: 75). The voluntariness issue was also submitted to the Jury in the court's charged (CP: 83).

*23 2koll Fracture was large but was old and healing Dr. Swift opined that this could have compromised the child's (M.I) skull. However, testimony was never developed by Trial Counsel for Appetent nor were any medical expert's presented on her behalf. this issue will be argued in Issue 3. Further, none of the experts at the trial are asked to opine about whether the actor would intentionally and knowingly cause the result, that result being the injuries shown to Mariange lle. Additionally, Dr. Suif state d'infliction"of the injuries was not accidental (PRR:22). The state asked Dr. SuifIt if a person using the force necessary to inflict the injury seen would "know"that force would cause massive injuries; however, the trial Judge sustained an objection as to speculation (PRR:22) Later, the state again asked Dr. Suift about the intentional act of "Pushing or throwing or flamming a kiln against the floor" but the question focuses on the intention of a person to push the child, but not on the person's intention of causing the resulting injury ( $RRR:31$ ) The best Dr. Suift could do was to retute the defensive theory that the injury might have been caused by the child falling off of a Rocking chair ( $RRR:33$ ) Dr. Cox agreed with the other doctors that this was a cause of "inflicted trauma and not accidental ( $RRR:118-19$ ). The doctors, in using the terms "non accidental" or "intentional," are referring to an act of throwing, Pushing or stricking the child which addresses the specific affirmative action only; however, that is not sufficient evidence for a Jury to find intentional or Knowing Causation of the result [Emphasis added]. In other words, Thereis no evidence in the record to show that Appetent by throwing, Pushing or stricking the child, intended to cause the injury resulting.

*24 For example, if a person were to take an action, such as using a knife to sewer a finger from an another's body, then it could be said the actor had the consciousness objective ordesire to cause the result, ie to Sever the finger from the hand, but under Appellants record no such evidence of causation is found regarding the injury resulting to the child, the Jury could have found that Appellant intentionally and Knowingly threw Pushed or struck the child. without finding the Appellant intentionally or knowingly caused the result-serious bodily injury. At best, the evidence shows that Appellant would have been reckless as defined in the jury charge, with respect to her conduct when she is a ware of but consciously disregards a substantial and injustificable risk that the result would occur (CR:BO). In the light most favorable to the verdict, throwing and pushing or striking are: Shown to be intentional but there is no evidence the injury cause was intended. ON the 17th of April, 2015, the Court of Appenals incorrectly. affirmed the conviction below by finding Appellant did not suffer egregious harm due to the Jury charge error, By its opinion, the Court of Appeals determined that Appellant Romero did not suffer egregious harm. Slip op. at 14. The Court cites Taylor v. state, 332 5-w. 2d 483 (Tex. Crim. App. 2011) for the proposition that unobjected to jury charge errors which Result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive Theory, or make a case for conviction clearly and significantly more pursuasive. Tomorrow, slip op. at 12 (citing Taylor, 332 5-w. 2d at 490). Appellant argues here that the state's case was for conviction was made more clearly and significantly more pur suasive date to the incorrect charge.

*25 Aefinition on intentional as applied to the offense of injury to a child, the court did find charge error in Appellant's case because the language" engage in the conduct or" was improperly added to the definition of intentionally as applied to a result oriented off. ense of injury to a child. Romera, slip op at 13-14. As pointed at in the panels opinion, the state argued that Appellant intended the act"in both the state's opening and closing final argument. Romera Slip of 13-14. the state was able to argue the exact improper definition of intentionally that the trial Juge gave to the Jury. The ability of the state to argues such an incorrect definition gave the Jury the ability to convict Appellant for her engaging in conduct-an act, and not for her intent to cause the result of her act. Just because the jury could have restricted itself to whether Appellant intended the result of injury to a child under the application paragraph of the charge, does not help in the analysis of egregious harm. The Panel states the Appellant has not shown egregious harm, but Appellant is certainly notable to provide evidence of the jury considerations that resulted in her conviction. Romera, slip op at 14; and see, Tes.R. 6410.606(b) In is sufficient to show egregious harm in this case relying solely on the fourth Criteria in Taylor making the States case for conviction clearly and significantly more persuasive. TAY 108,332 S.W. 3d 490. Additionally, Trial Counsel Samisons Error of failing to object to the improper definition as prejudiced the Appellant because prejudice is presumed in situations where the Швейhood of counsel having Provided effective assistance is extremely small such as this case where Counsel failed completely to subject the prosecution's case to meaning Jul adversarial testing. United States w.Crowic, 466 M.S. 648,658,104 S.CT. 2039, 2046, 2047, 80 L.E. 2 d 652 (1984). However, this is argued.

*26 In Appellant's PQR: Issue No. 5: AsideFRom the improper argument of the state, the evidence introduced at trial focused on Appellant's intent to engage in an act, not the result of her act. After the Panel's Thorough review of the evidence, especially from the state's experts (trial counsel did not present any medical expert testimony-see Issue 3), it is apparent the state sought to show the intent of Appellant to engage in Conduct, not that she intended the result of such horrendous injuries. As part of its analysis, the Panel discusses the state of the evidence to determine whe ther egregious harm exists. The Panel stated: The evidence adduced at Trial showed that M.I. Suffered serious bodily injury, was anly two years old at the time of her injuries, Romara and A.K., who was one ycardd, were the only others present in the apartment when M.I. was injured, Romero gave inconsistent statements and implausible explanations relating to M.I.'s injuries, and Romero absconded, Fleeing prosecution Fornine years "Romero Sip. of at 13. That evidence applies specifically to whe ther Appellant engaged in conduct and not necessarily that Appellant intended the result. After the Fact, Appellant certainly would have been a ware of the extent of M.I's injuries, but that is not proof she intended to cause those injuries. The State's proper burden of proof may well have been difficult in this matter Since there were no witnesses to the incident, however, the state's Case was made much easier by the state being able to show and argue Appellant's intentionally engaged in conduct that caused the result as defined in charge. (Emphasis added) The state was relieved of its burden in this case to show Appellant intentionally or knowingly Caused the result and not. Jist engaged in the conduct that happened To cause the injuries. The state simply did not shoulder the proper burden of proof.

*27 in this case under the trial court's charge and this improper burden made the state's case for conviction clearly and more significantly more Persuasive. See, Taylor, 332 S W sd at 490. Additionally, the court of Appeals panel inits opinion dated April 17, 2015, modified the judgment of conviction below to include a deadly weapon finding although the trial court made the finding of "W" regarding a deadly weapon in its judgment Pomeroy Slip of at 15-16. In her appeal, Appellant did not have the opportunity to specifically contest the sufficiency of the evidence in regard to a deadly weapon since it was not a part of the original Judgment and it was not a cross-point raised by the state. The Panel did not determine the legal sufficiency of the use of a deadly weapon under our Records.

In Appellant's Brief filed May 23, 2014 Appellant did so mit that the evidence was insufficient to support her conviction and now specifically asserts the evidence was insufficient to support a deadly weapon finding. Since there was no evidence in our Record of use of a Eream or anything manifestly designed to inflict death or serious bodily injury to sustain a deadly weapon finding the record most shaw anything that is the manner of its use or intended use is capable of causing death or serious bodily injury. See Paul, Code 31,07 (17) (18) (19) (20) (21) (22) It is improper to assume the evidence supports a deadly weapon finding without the proper standard of review analysis under the relevant Case (see, 3ce, Romero, Slip of at 6 (citing Jackson v. Virginia, 443 U.S. 307,318-19 (1939), Mercit v. state, 368 S-W. 3d 56. 525 (Tex-Crim. App. 2012) Brooks v. State 323 S-W. 3d 893,899 (Tex-Crim. App. 2010) (plurality 98.) Appellant is not have contesting the authority of the Panel of the Court of Appeals to Imodified.

*28 its judgment as stated in its opinion. Romero, Slip of at 16 . The issue here is legal Sufficiency-Because no analysis regarding the Sufficiency of the evidence was performed by the Court of Appeals Appellant must now be given the opportunity to both con test the sufficiency of that evidence and require a proper review of the evidence, ifany. Supporting a deadly weapon findings

The indictment does allege specific types of objects being used as a deadly weapon as pointed out by the Panel of the Court of Appeals. Romero, Panel of at 15 . Also, the application charge included the deadly weapon language Id. at 16. However, modifying the judgment to add a deadly weapon would be improper unless such a finding is supported by the evidence. An object to be deemed a deadly weapon must have more than a hypo the tical capability of causing death or serious bodily injury. Johnston, ustate, 115 3w. 2d 761, 764 (Tex App.-Austin 2003), aEE'd, 145.5.w. 2d 215 (Tex. CrimApp.2051) A deadly weapon finding must be supported by evidence relating directly to the circumstances of the criminal episode Id. Due to Appellant's challenge of the sufficiency of the evidence to support a deadly weapon finding concerning Appellant's use of her hands the floor a fireplace or an unspecified object, as alleged in the indictment, this Court, based upon the Court of Appeals denial for rehearsing, should under take the necessary analysis to de termine the legal Sufficiency of a deadly weapon finding.

This Court of Criminal Appeals should find the evidence Insufficient as to the element of culpable mental states of intentionally or knowingly that are required to show the commission of the first degree of injury to a child and enter an acquittal. In the alternative if this court finds sufficient.

*29

evidence only as the mental state of reik lessness, this court should reform the judgment of conviction to find Appellant guilty only of recklessly committing the offense. Tex. R. App. Pro 43.2; Tex. Pen. Code Ann 322 - 09 (a) and (e) and see, Patterson: 46 S -W 3 d at 304 Further, this Court should examine the part of Appels treatment and opinion entered April 17, 2015 regarding its court of Appels) medi- fication, of Appellant's second issue, Reverse the judgment of con- viction and remand this case to the trial court for a new trial.

Issue Number Two

Issue Number Two (Restated): The trial Court committed egregious error by charging the jury on the IMPROPER definition of the culpable mental state of acting INTENTIONALLY As stated in this petition under issue Number one injury to a child is a result oriented offense, Patterson x state 46 S W 2d 294.301 (Tex.App. Fort worth 2001, noPt). Even though the trial Court incorrectly instructed the Jury on the definition of culpable mental state of intentionally. Trial Counsel failed to object to the court's charge or to request an instruction when asked for by the Court (RRR: 5-6) nonefectiveness of counsel disassed further in issue 3) First, it was shown in the discussion in issue Number one of this petition for Discretionary Review, that the incorrect instruction in the trial Court's charge was as follows: "A person acts intentionally. or with intent, with respect to to (sic) a result of his conductwhon

*30 It is his conscidus objective or desire to engage in the conduct or cause the result." (CR:79) (emphasis added).

The correct instruction would have been: "A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. See Texts Criminal Jury charges 36:1990 (James Publishing, Rev. 11 12/2000).

The incorrect instruction is directly related and immediately before the application paragraph (CR:79). As stated earlier, engage in the conduct or "should not have been in the instruction, but by doing so, the trial court is telling the jury in the application paragraph they can find Appellant quilly by intentionally engaging in the conduct. So, in effect, the Jury could have found that the Appellant did intentionally theaw or push the child as alleged in the indictment without the Jury finding beyond a Reasonable doubt that the Appellant intended to cause the Result See, Haggins v. state, 785 S.w. 2d 827,828 (Tex. Crim. App. 1990).

The facts in Hagaias, Similarly to Appellant's case, dealt with an injury to a child where the child received ablow to the head and the defendant there denied doing any thing to the child because injury. Id. at 827. Appellant took the stand and testified that the did nothing to cause an injury and would not intentionally harm a child (7RR:199). The trial court e med in Haggins by overruling the objection to the charge to limit the culpable mental state to the result of the conduct, but instead the trial court quoted the Full language from Texas Penal Code Section 6-03 (a) and (1), Id. In Appellant's case here, the trial court did not foily quote the Texas Penal code Section 6-03 (c) because the.

*31 language [t] he nature of his conduct or 'was omitted in the charge, but the trial court failed to also delete'[t]e engage in the conductron. "(CR:79) See Tex.PEN-Code ANN 36-03 (a) (vernon zool) In terestingly, the trial court properly edited the pertinent Penal code sections Concerning the mental states of "Knowingly" and "Recklessly" which are Shown Correctly in the charge (CR:79-80) See Tex.PEN. Code ANN 3603 (b) and (c) (vernon zool).

Once it is determined charge error occurred, the rai ewing Cunt must reverse if the error was egregious. Almenze e state, 686 3=W.zd 137171 (Tex-Crim. App. 1985) (op. on Reh'g). Egregious Error is one that denies a de fendant a fair and importial trial. Id whether Error reaches the degre of egregiousness, is determined by a Review of the entire record. Id.

The Error in Appellant's Case here is egregious because the trial Court tells thejury inits charge that the jury need not find the result was intentional but that only the conduct was intentional. The jury could then find the Appellant guilty of simply intentionally engaging in the alleged conduct of "[t]hrowing or pushing Compliant[M]into a chair... rather than causing the result of the head injury (cE: 79) And see, Haggins, 785 S. W. 2 d at 828.

Areview of the entire record shows that the state attempt to show Appellantguilty of first degree injury to a child by focusing on the extent of the injury: the experts who testified for the state could not say Appellant intended the result of a fractured shall and other injuries but only that the conduct engaged in was intended, the state focused in argument on Appellant's Version at trial of the story of how the injuries occurred from falling from a couch or a rocking.

*32 Chair and that such a story could not be true due to the extent of the injury, the state wanted the jury to believe that the intentional action of throwing and pushing the child as shown in Appellant's Voluntary statement was what sealed a guilty verdict against Appellant, Appellant Contested the state's version of the events leading to the injuries in her own testimony and by at least three more times in written and oral Statements, the entire case focused on the extent of the injury to the child and the action engaged in by Appellant, not when the the resulting injury was intended as required by the Penal code. Again as discussed in Issue No. 1, jus because the jury could have restricted itself to whether Appellant intended the result of injury to a child under the application paragraph of the charge, does not help in the analysis of egregious, harm, but Appellant is certainly not able to provide evidence of the jury considerations that resulted in her conviction. Remex. Slip. Of. at 14; and see, Tex.R.E viI. 606 (b). It is sufficient to show egregious harmin this case relying solely on the fourth criteria in Taylor making the state's case for conviction clearly and significantly more persuasive. Taylor 332 Sw. 2d 490 Aside from the improper argument of the state, the evidence introduced at trial focused on Appellant's intent to engage in am act, not the result of her act. Again the Appeal Court Panel did find charge error in Appellant's case because the language engage in the conduct or was improperly. 3. From the mis taken double phrase "L" to...." found within the second and third lines of pagetwo of the charge, we canse that the trial court simply deleted L" he Nature of his conduct or... between the two to's but failed to eliminate L" engage in the conductor... found on the fourth line of the same Page.

*33 added to the definition of intentionally as applied to aresult oriented offense of injury to a child. Romero, Slip of at 13-14. As pointed out in the Panel's opinion, the state argued that Appellant"intended the act" in both the state's opening and closing final argument. Romero, Slip of 13-14. As discussed in Issue Number One the state was able to argue the exact improper definition of intentionally that the trial judge gave to the Jury. The ability of the state to argue such an incorrect definition gave the Jury the ability to convict Appellant for her engaging in conduct an act, and not for her intent to cause the result of her act.

Aside from the improper argument of the state, the evidence introduced at trial focused on Appellant's intent to engage in an act, not the result of her act. The court of Appeals review of the evidence, especially from the State's experts, is made more apparent the state sought to show the intent of Appellant to engage in the conduct, not that she intended the result of such horrendous injuries. The court of Appeals stated that"the evidence adduced at trial showed that MI Suffered serious bodily injury, was only two year old at the time of her injuries" further they stated Romero and her daughter A.K. who was one year old, were the only ones in the apartment when MI was injured, that Romero gave inconsistent statements and implausible explanations relating to MI's injury and "Romero absconded, fleeing. Prosecution for nine years. Romero, Slip of at 13. Again, that evidence applies specifically to when the Appellant engaged in conduct and not necessarily that Appellant in tended the result.

*34 After the fact, Appellant Certainly would have been aware of the extent of M.I.'s injuries, but that is not proof she intended to cause Those injuries.

To reiterate from discussion in Issue Number Two-the State's burden of proof may well have been difficult in this matter since there were no witnesses to the incident, however, the state's case was made much easier by the state being able to show and argue. Appellant's intentionally engaged in conduct that caused the result as defined in the charge. (Emphasis added) The state was relieved of its burden in this case to show Appellant intentionally or. Knowingly caused the result and not just engaged in the conduct that happened to cause the injuries. The state simply did not shoulder the proper burden of proof in this case under the trial court's charge and this improper burden made the state's case for conviction clearly and more significantly more persuasive. See, TAYLOR, $332·3.4,3$ d at 990 .

In the Court of Appeals opinion they state, Article 36:19.0f the Texas code of criminal Procedure establishes the standard for reversal on appeal when the requirements of article 36-19, which Relates to the echarge of the court, have been dis regarded: the Judgment shall not be reversed unless the error appearing from the Record was calculated to injure the rights of (the) defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial, Tex Code Crim. Proc. Am. art. 36: 19 (west 2006)."Under Mge, when the defendant fails to object or States that he has no objection to the Jury charge, an appellate court will not reverse.

*35 for sury charge eror unless the record shows egregious Horm' to the defendant. Ngo x state, 175 S.W. ad 758, 743-44 (Tex Crim. App. 2005) Certainly, as discussed Appellant is not able to provide evidence of the Jury Considerations that resulted in her conviction. However, in her case even the Court of Appeals Panel agreed and found Error in Appellant's case because the language engaged in the conduct or was improperly added to the definition of intentionally as applied to a result oriented offense of in Jury to a child. Romero, Sip or at 13-14. This error alone is sufficient to show egregious harm. Relying solely on the fourth criteria in Taylor making the State's case for conviction clearly and significantly more persuasive Taylor 332 S. W. ad 990. However, in Appellant's Case Article 36-19 of the Texas Code of criminal Procedure states, the Judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of [the] defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. Tex Code crim. Proc. Ann. art. 36-19 (west 2006) while Appellant is unable to provide evidence of the Jury deliberations, the record indicates by the argument by state bothet opening and closing, the blatant lack of defense counsel's objections to the incorrect arguments of state and then the Jury charge, the failure of defense to timely file, for the expert's expenses, failure to have deposed any experts, failure to bring any witnesses or conduct any type of investigation or file any exper this report clear on our record (which will be discussed further in Issue Three herein) that the defendant did not have "afair and impartial trial." The cour of Appeals states in their opinion: "Egregious harm."

*36 is a difficult standard toprove and such determination must be done on a case-by-case basis Taylor y state, 552 S.w. 24483, 489 (Tex. Crim. App. 2011); Hatch y state 922 S. w. 2d 166, 171 (Tex. Crim. App. 1996). The actual degree of harm must be assayed in light of (1) the entire Jury charge; (2) the state of evidence; (3) the argument of counsel and (4) any other relevant information reucaled by the record of the trial as a whole. Allen State, 253 9. w. 2d 260, 269 (Tex. Crim. 2008), Al manze, 686 S. w. 2 d at 171. Errors which result in egregious harm are those that affect the very basis of the case, depride the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and more significantly more persuasive. Eg. Taylor, 332 S. w. 2 d 496

The Appellant has met all the criteria in Allen and Almanze:

1) the Jury charge, (2) the state of the evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. These issues have been discussed throughout and Appellant Reiterates them here as if fully set out the record as a whole will be further discussed in Issue Number Four. Additionally Appellant has shown egregious harm in this case, relating solely on the fourth criteria in Taylor-making the state's case for conviction clearly and significantly more persuasive. Finally, Counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State 95. w. 3d 808, 812-13 (Tex. Crim. App. 1999) (citing Mc. Forland v. State, 845 S. w. 2d 824,843 (Tex. Crim. App. 1992). Appellant will discuss counsel's ineffective assistance in Issue Number-However, Appellant relies on the entire Recort to.

*37

show how all criteria has been established citing Altea, Almanza Mo and Taylor.

Because of the egregious Error of giving an incorrect instruction regarding the element of the culpable mental state necessary to convict Appellant of the first degree OfPen se of causing Serious bodily injury to a child, this Court should reverse the Conviction and remand the case to the trial court for a new trial.

Issue Number Three

Issue Number Three (Restated): Appellant Did Not Receive Effective Assistance of Counsel Prior To Trial, at Pre-Yearings on motions; and, AT TRIAL:

1) Failure To Conduct Pre-Trial Investigations and by meeting with APPElLANT only two(2) times in two years and not allowing orbringing an Interpreter; 2) Failure to conduct Pre-Trial Discovery Depositions of ApreLLEE'S medical Radiological and neurological experts; 3) Failure To Conduct Pre-trial Discovery Depositions of court Appointed medical experts and then failing to Present medical expert At Trial; 4) Failure To object to Jury charge Instruction with Regard to the improper Definition of Culpable Mental State of Acting Interntionally, even when asked by the Court; 5) Failure to Conduct any Pre-Trial Depositions and/or Intonuiews of witness 6) Failure to investigate and/ordepose any current medical

*38 physicians currently treating Complaint child (M.I). 7) Failure to object to hear- say testimony relevant to Complainant's current medical condition; 8) Failure to object to State's argument, 9) Failure to subject prosecution's case to "meaning for adversarial testing." 10) Mis advice given to Appellant to turn down Plea of 10 years by promising Appellant that defense's medical expert would be presented and that she would not have to spend 10 years in prison.

The right to the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas ConstitutionThis. right to assistance of counsel has long been understood to include "right to the effective assistance of counsel" See McMenory'sitidow rdson, 397, U.S.759, 771, n. 1490 S.Ct.1441, 1449.25 L.Ed.2d 763 (1970). The integrity of our criminal Justice system and the fairness of the adversary criminal process is assured only if an accused is represented by an effective attorney. See United States in Marrisan, 449 U.S.361, 364, 101.3.CT.665, 667, 66 L.Ed.2d 564 (1981). Absent the effective assistance of counsel a serious risk of injustice infects the trial itself." Cuyler v Sullivan 446 U.S. 335 343, 100 S. Ct.1708, 1715, 64 L.Ed.2d 333 (1980). Thus a defendant is constitutionally entitled to have effective counsel acting in the role of an advocate. See, Anders v. California, 386 U.S. 738,743 87 S.CT.1396, 1399.18 L.Ed.2d. 493 (1967).

The United States Supreme Court in Strictland v Washington,

*39 466 U.S. 668,104 S.CT. 2052, 80 L. 244 (1989) established the federal standard for determining whether anathorney rendered reasonably effective assistance of counsel. The Texa Court of criminal Appcats in Hernandez v. State, 726 S. W 242 53,52 (Tex. Crim. APP. 1986), adopted the Stickkland test as the proper test under state law to gauge the effectiveness of counsel. Pursuant to that test" the de fendant must show that counse l's performance was deficient. This requires showing that Counse l's made errors so serious that counsel was not functioning as the "Counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient Performance Prejudiked the defense. This requires. Showing that Counse l's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. at 682,104 S.CT. at 2064. The purpose of the Stickkland two part test is to Judge whe ther Counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have Produced a reliable result. Thompson v. State, 9 S. W. 3d 808, 812813 (Tex. Crim. APP. 1999)(citing McFarland v. State, 845 Sw. 2d 824843 (Tex. Crim. App. 1992).

There are some errors that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified "thus making it unnecessary to as tablish the prejudice prong of Stickkland. United States v. Cronic, 466 U.S. 648,658, 104 S. CT. 2059 2046, 80 L. 2 d. 26657 (1984) Prejudice is Presmed in Sittations where the likelihood of Counsel having, Provided effective assistance is extremely. small such as where counsel failed completely to subject the.

*40 Prosecution's case to "meaningful adversarial testing. Id. at 660.104. S. CT. at 2047.

In order for the presumption of prejudice to apply the attorney must completely fail to challenge the prosecution's entire case, not just elements of it. Haynes v. Cain, 298 f-3d 375 380, 382 (5th Cir. 2002) en banc; also see Bell v. Cone 533 U.S. 685, 122 S.CT. 1843, 1851. 152 L-Ed. 914 (2002) (noting that cl: reference between situations addressed by Strickland and Coanic is not of degree but of Kind. ^[9] ) Appellant's counsel failed to challenge the Prosecution's entire case, not just elements of it. In trial Counsel's own Words in our record: Obviously, I've been on this case a long time and considering the medical records and the need for expert review and the fact that I've had contact with three different experts on your behalf and with their schedules some of them needed as much as an eight - month old vance window. Should they be called to testify, This case has been going on a long time? RR. 135 Uol.? Our records reflect Trial Counsel failed to present any expert testimony to the Jury the Record reflects that an the day of trial, Trial Counsel presented a motion for travel expenses for the expert. As trial counsel said himself some experts require as much as an eight month window. Trial Counsel did not file a Report by affidavit of medical expert did not attempt to ask for a deposition of said expert, in total Appellant was misadvised to reject the plea on the adouice that Trial counsel gave her that he had a gooo.

*41 medical expert lined up. Attorney's failure to present qualified Medical testimony in support of defendant's only visible defense when combined with other trial errors undermines Confidence in outcome of trial and amounts to ineffective assistance. Bylander e state, 95 S.w. &;d 119 (Tex. App. San Antonio 2002, Pet. granted).

TURTHER, Trial counsel failed to object to the improper definition of intentionally given to the Jury. Even after the Judge asked trial court if he had any objections or instructions for him (Judge) to consider. The Court of Appeals did find charge error in Appellant's case because the language "engage in the conduct or" was improperly added to the definition of intentionally as applied to a result oriented ofFense. OF injury to a child. Romero, slip.OR at 13-14. However The damage was set and no objection was lodged and as pointed out in the Court of Appeals opinion, the state argued that Appellant intended the act"in both the state's opening and closing final argument. Romero, slip.OR 13.

Trial Counsells Failure to conduct any meaning ful PreTrial investigation Resulted in his inability to cross-examine the state's witnesses. Appellant's sister in-law was allowed to give medical testimony without being challenged by Trial Counsel. No a thempt was made to contact any Current treating Physician's on Complaint's M.I. Current status. A lay witness was allowed to give testimony. Regarding her current status without being

*42 Questioned as to the last time she had seen the Complaint M.I, who resides in México-Compliant M.I. was not a legal citizen and there fore after treatment and rehabitition in the United States was sent back to join her father, who was also not a legal citizen.

Appellant's record inits entirely speaks for itself. The absence of Trial court's counsel effective assistance and its injustice infected the trial itself. The review of the totality of the Representation and the particular circumstances of this case Required that Trial counsel subject the Prosecution's case to "meaning ful adversarial testing - The record as a whole indicates that trial counsel's Perfornence Faitedin every element. Appellant's claim is supported by the record which contains direct evidence as to why counsel took the actions or made the ommissions relied upon as the basis of her issves. It is inconceivable that defense counsel could have had a Reason for failing to object to certain hear say that would fail within the Range of objectively reasonable trial strategy. It should be kept in mind, however, that simply labeling aun attorney's actions "Trial strategy" does not insulate the attorney from a finding of ineffective assistance of counsel. An attorney's strategy can be so illChosen as to render a trial fundamentally unfair See, United States v. Rusmisel. 716 Fzd 301, 310 (5th Cir. 1983) the same

*43 He was bringing in his medical expert, As Justice Sather land explained in Powell v. Alabama, 282 U.S. 95,533 CT.55, 77 L.Ed 158 (1932):

The right to be heard would be, in many cases, of little avail. if it did not comprehend the right To beheard by counsel. Even the intelligentand educated laymen has small and some times no skill In the science of law. If charged witha crime, He is incapable, generally, of determining for himself whether the indictment is good or bad. He is un familiar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incumpe tent evidence, of evidence irrelevant to the issue or other wise Inadmissible. He lacks both the skill and Knowledge adequately to prepare his defense, even though he Have a perfect one. He requires the guiding hand of counsel a tevery stepin the proceedings against him. Without it, though he be not guilty, he faces danger of conviction because hedoes not Know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state of federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing

*44

For him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, there fore of due process in the constitutional sense, Id-at 68-69 53 S.CT. at $63-64$ .

The right to the assistance of counsel is guaranteed by the sixth and fourteenth Amendments to the United States Constitution and Article, Section 10 of the Texas Constitution This right to the assistance of counsel has long been understood to include a right to the effective assistance of counsel." See Metinahan v.Richardson, 397 U.S.759, 771, n. 14, 90 S. CT. 1411, 1449, 25 L. ed. 2d 763 (1970).

Appellant as is Seen by our record and the Opinion of the Court of Appeals did not Reccive effective assistance of counsel.

Because of the ineffective assistance of counsel, This Court should reverse the judgment of Conviction and an acquittal entered.

PRAYER

Wherefore, Premises Considered, Appellant respectfully Prays that: 1.) The judgment of conviction be reversed and an acquittal entered, or 2.) The Judgment of Conviction be reversed and an acqui Hal en tered because the legal insufficiency of The evidence of

*45 3) In the alternative, the Judgment of Conviction bereformed for Conviction only of the lesser included OFFense of recklessly causing serious bodily injury to achild because the evidence is sufficient only as to reckless mental state and remand this case for a New punishment hearing: Or 4) In the alternative, the Judgment of conviction be reformed for Conviction because of ineffective assistance of counsel and remand this case for a new Punishment hearing and a remedy to neutralize the taint of the actual constitutional violation and order The state to reoffer the plea agreement, or. 5) The conviction be reversed because of Jurycharge error and the egregious harm inflicted and the case be remanded to the trial court for a new trial.

Respect Fully Submitted Ailvia Romero Ailvia Romero, Prose A ppellant TACI $\pm 01883677$ Lane Murray Unit 1916 N. Hwy 36 Bypass Gatesuille, Tekas 76596.

*46

Certificate of Service

This is to certify that on September $7^{\text{th}}$ a troe and correct copy of the above and foregoing Appellant's Petition for Discretionary Review was for warded for Filing to: Abel Acoste, clerk, court of criminal Appests of Texas, P. O. Box 12308, Capital Station, Austin, Texas 784 H , by depositing Same in the U.S. mailbox located outside The dining hall of the Lane Murray Unit, and a copy of Appellant's petition for Discretionary Review was for warded to Craig wathins, Esq. Criminal District Attorney, Attn: Appellate Div, 133 N. River Front LB 19, Dallas, Texas 75207.

Silvia Romero, Prase

Silvia Romero

*47

Affirmed as Modified and Opinion Filed April 17, 2015.

In The Court of Appeals Fifth District of Eexas at Ballas

No. 05-13-01586-CR SYLVIA ROMERO, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-01-16575-X

OPINION

Before Justices Lang and Brown ^[1] Opinion by Justice Lang Sylvia Romero appeals the trial court's judgment convicting her of injury to a child. The jury found Romero guilty and assessed her punishment at life imprisonment and a $\$10,000$ fine. Romero raises two issues on appeal arguing: (1) the evidence is legally insufficient to support her conviction; and (2) she suffered egregious harm when the trial court included an instruction in the jury charge that authorized the jury to convict her of injury to a child under an incorrect definition of the culpable mental state. The State raises one issue on cross-appeal arguing the judgment should be modified to reflect the correct statute for the offense.

We conclude the evidence is sufficient to support Romero's conviction. Also, we conclude that, even though the trial court included an instruction in the jury charge that

*48

authorized the jury to convict Romero of injury to a child if they found that she intentionally "engage[d] in the conduct," Romero has not shown that she suffered egregious harm. Further, we conclude the judgment lists an incorrect statute for the offense and fails to list that Romero used a deadly weapon, and modify the judgment accordingly. The trial court's judgment is affirmed as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

M.I. was born in Mexico and her mother abandoned her approximately three months after she was born. Afterward, M.I.'s father, Silvio Iniesta, relocated to the United States where he met and married Romero. Iniesta and Romero also had a child together, A.K. The children were approximately one year apart in age. Iniesta worked as a long-haul truck driver and was away from home most of the time while Romero cared for the children.

Alexamari Villareal, Iniesto's sister, visited Romero "at least two times a week." Villareal observed that Romero did not treat the children equally. Villareal believed Romero showed a preference for A.K., and was stricter with and yelled at M.I. Although Villareal did not see Romero physically abuse M.I., she did see Romero treat M.I. roughly. Villareal saw M.I. cry a lot, observed that M.I. was unhappy and sad, and knew that M.I.'s arm was always in pain.

On May 18, 2001, M.I. was taken to the emergency room. Medical imaging revealed an uncommon fracture of M.I.'s humerus bone at the shoulder joint. Also, the imaging revealed that the fracture was several weeks old based on the degree of healing.

On September 9, 2001, Villareal picked her daughter up from Romero's apartment. M.I., who was two years old at the time, grabbed her shoes and wanted to leave with Villareal. Villareal told Romero to tell M.I. "to get ready and go to [Villareal's] house," but Romero said, "No." M.I. started crying. Approximately fifteen minutes after Villareal left Romero's

*49 apartment, she received a "missed call" from Romero. Later, when Villareal saw the missed call, she tried to return Romero's call, but there was no answer.

Meanwhile, on September 9, 2001, Romero called 9-1-1, reporting to the dispatcher that M.I. had fallen off of a couch while jumping and hit her head. When the emergency medical technicians (EMTs) arrived at Romero's apartment, they saw Romero and A.K., and found M.I. lying on the dining room floor carpet. M.I. was unresponsive, had a "blown pupil," and her body was posturing, which is an abnormal motor function. These signs were indicative of a brain injury, so the EMTs immediately took M.I. in the ambulance to the hospital where a medical team was waiting for her.

Pamela Okada, M.D., was waiting for M.I. when she arrived at the hospital and was the first emergency room physician to examine her. Dr. Okada was informed that M.I. had fallen off the couch on either the carpet or "a chimney" and the step-mother had stated she was not in the room when it happened. Dr. Okada found that M.I. was nonresponsive, i.e., she had no eye movement and did not open her eyes spontaneously, and she made no verbal response, spoke no words, and did not cry. She also found that M.I.'s arms were posturing, which is a serious abnormal motor function that shows the body is unable to follow commands. In addition, Dr. Okada found that M.I. had a "blown pupil" or a pupil that is dilated large, which is indicative of brain swelling or something pushing on the brain. Dr. Okada ordered CAT Scans and blood tests. The imaging revealed a large skull fracture and subdural hematoma, a serious brain injury, and that her pancreas was lacerated or torn into two pieces. As a result, M.I. was intubated, i.e., a breathing tube was put into M.I.'s lungs, and provided oxygen.

Dale Swift, M.D., a pediatric neurosurgeon, operated on M.I. Dr. Swift found fresh subdural and epidural hematomas and one long segmented skull fracture that appeared to be a couple of weeks old based on the degree of healing. To alleviate the bleeding and swelling, Dr.

*50 Swift performed a craniotomy, cutting open M.I.'s scalp, drilling a hole in her skull, and removing a large window of bone. Then, M.I. was placed in a pentobarbital coma.

At the hospital, Romero told JoAnne Marchant of Child Protective Services (CPS) that she was in the bathroom when she heard a child scream, "Mamma," and the sound of a fall. Romero stated that she believed A.K. had fallen, but instead found M.I. lying on her back by the fireplace and unconscious. Romero stated that M.I. was in the habit of playing on and jumping from the rocking chair to the fireplace and she believed the rocking chair had fallen over. Also, Romero explained that M.I. broke her arm when she fell off of the bed while playing with a cousin who had wrapped M.I. in a bed sheet. Romero and Marchant drew a diagram of the scene and Romero provided a handwritten affidavit in Spanish, which was translated into English as follows:

Silvia Romero affirms that [M.I.] was playing with her daughter and was in the bathroom when I suddenly heard a scream. I thought that the child [A.K.] had fallen, but it wasn't so.

I found [M.I.] tossed in the middle of the chimney. I picked her up and wet her head with water. And she wasn't breathing very well but her aunt [Villareal] had just left and I called [Villareal] on her cellular and she didn't answer.

Then[,] I dialed 911 and then they tended to the child and they asked me where she had fallen from and I told them from the couch. That is, the rocking chair. I wasn't asked anything else, nothing else, and I am at the clinic.

That night, CPS removed A.K. from Romero's home. Then, CPS proceeded to terminate Romero's parental rights to A.K. After M.I. was released from the hospital, she went through a series of foster homes for approximately a year before she returned to Mexico.

On September 13, 2001, during an interview with the Carrollton police, Romero made a second, voluntary statement to Detectives Vick Humphrey and Jose Flores. The statement was provided in Spanish and was translated into English as follows:

*51 This Sunday [I] was in my apartment with my daughters, [M.I.], [A.K.,] and [Villareal's daughter]. Around 4:00 p.m., my sister-in-law came to my apartment too.

So then we ate and stayed for about five minutes and [Villareal] took [Villareal's daughter]. My daughters and I were watching television. My daughter was playing with the control.

So then I told her, "Calm down, because if you don't, I'm going to spank you." And she wouldn't calm down.

I got really annoyed and grabbed my girl's arm and I pushed her hard on the chair and the chair went backwards and she hit her head on the floor.

She did not react and I took her to the bathroom and I wet her head and she didn't react and I gave her moth-to-mouth resuscitation and nothing.

And then I called 911. That was when they came and tended to her and I went with them. I am sorry about what happened. I am torn because this was an accident and I am so regretful and it hurt me a lot.

Romero was arrested in September 2001, indicted for the offense of injury to a child, and released on bond in March 2002. After being released on bond, Romero fled to Mexico. The case was called for trial on December 9, 2002, but Romero failed to appear and answer. On December 11, 2002, Dallas County Criminal District Court No. 4 signed a judgment nisi against Romero. Romero lived in Mexico for approximately three years before moving to North Carolina with her siblings. Romero was re-arrested in September 2011.

In September 2013, Romero was tried before a jury. During the trial, Villareal testified that at the time of trial, M.I. was fifteen years old and living in Mexico with Iniesta. Villareal also stated that M.I. is unable to talk or feed herself, walks with difficulty, can move only one hand and one eye, and wears a diaper. Dr. Okada, Dr. Swift, and Mathew Cox, M.D., a pediatrician who reviewed M.I.'s medical files, provided medical testimony regarding the nature and extent of M.I.'s injuries during the trial. Romero testified in her own defense and denied harming M.I., stating that she was not in the room at the time of M.I.'s injury and did not know

*52

how M.I.'s injuries occurred. The jury found Romero guilty of injury to child. After a hearing on punishment, the jury assessed Romero's punishment at life imprisonment and a $\$10,000$ fine.

II. SUFFICIENCY OF THE EVIDENCE

In issue one, Romero argues the evidence is insufficient to support her conviction. Romero contends there is no evidence she intended to cause the injuries resulting from her actions. In the alternative, she argues the evidence shows only that she was guilty of the lesser included offense of recklessly causing the injury. The State responds that the overwhelming evidence allowed a rational jury to find Romero guilty of intentionally or knowingly causing serious bodily injury to a child.

A. Standard of Review

When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 31819 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.

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B. Applicable Law

Section 22.04(a)(1) of the Texas Penal Code states that "[a] person commits [the offense of injury to a child] if he intentionally, knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . serious bodily injury." Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2014). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly with respect to a result of his conduct when he is aware his conduct is reasonably likely to cause the result. Tex. Penal CoÓe Ann. § 6.03(b).

The culpable mental state is generally proven by circumstantial evidence. Lopez v. State, 630 S.W.2d 936, 942 (Tex. Crim. App. [Panel Op.] 1982); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). To determine culpability for an offense, a jury is entitled to consider events before, during, and after the commission of the offense. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Barron v. State, 566 S.W.2d 929, 931 (Tex. Crim. App. [Panel Op.] 1982). Proof of a culpable mental state may be inferred from any facts tending to prove its existence, including the acts, words, and conduct of the accused. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the extent of the injuries, and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (citing Lindsey v. State, 501 S.W.2d 647, 648 (Tex. Crim. App. 1973)). Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations are probative of wrongful conduct and also circumstances of guilt. Guevara, 152 S.W.3d at 50. Also, Texas law has long recognized that evidence of a defendant's flight or escape is a circumstance from which an inference of guilt may be drawn. See e.g., Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); Cantrell v.

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State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980).

C. Application of the Law to the Facts

The record shows that M.I. suffered serious bodily injury. The EMTs and Dr. Okada found that M.I. was nonresponsive, posturing, and had a "blown pupil." Medical imaging revealed that M.I. had a large skull fracture and subdural hematoma, and her pancreas was lacerated or torn into two pieces. Dr. Swift performed a craniotomy and found that M.I. had fresh subdural and epidural hematomas and one long segmented skull fracture that appeared to be a couple of weeks old based on the degree of healing. As a result of her injuries, M.I. had to be placed in a pentobarbital coma. Further, Villareal testified that, at the time of trial, M.I. was fifteen years old, and as a result of her injuries, M.I. remains unable to talk or feed herself, walks with difficulty, is unable to move one hand and one eye, and wears a diaper. The jury could infer that Romero intentionally or knowingly injured M.I. from the extent of M.I.'s injuries. See Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from extent of injuries).

The record shows Villareal left Romero's apartment approximately fifteen minutes before M.I. was injured. As a result, Romero and A.K. were the only persons present in the apartment at the time M.I. was injured. M.I. was two years old and A.K. was one year old. The evidence of M.I.'s age and size compared with that of Romero, who the jury was able to see in court, is a circumstance from which the jury could infer that Romero intentionally or knowingly injured M.I. See Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from relative size and strength of parties).

When asked about M.I.'s injuries, Romero gave inconsistent statements. First, she told the 9-1-1 dispatcher that M.I. had fallen off of a couch while jumping and hit her head. Then, she told CPS that while she was in the bathroom, she heard a child scream and found M.I. lying

*55 on her back by the fireplace and unconscious. Romero stated that she believed while M.I. was playing on and jumping from the rocking chair to the fireplace, the rocking chair had fallen over. Next, Romero gave police a voluntary written statement admitting that she pushed M.I. At trial, Romero claimed that she was not in the room when M.I. was injured.

In addition, Dr. Okada and Dr. Swift, the treating physicians, and Dr. Cox, the medical expert at trial, testified that in their opinions M.I.'s injuries were not consistent with Romero's explanation and were the result of non-accidental trauma. Dr. Swift testified that, in his opinion, based on the types of injuries sustained a person would have known that they were going to cause bodily injury to the child. Dr. Cox testified that his review of M.I.'s medical file showed there has been more than one episode of trauma to M.I., which are not explained by the history that was provided by Romero, indicating that her injuries were inflicted and the result of child abuse. Also, Dr. Cox stated that "based on the type of injuries, it would be obvious to the person there that what happened would be injurious." Dr. Cox stated that M.I.'s injuries required "high force." Romero's inconsistent statements to the 9-1-1 dispatcher, CPS workers, and the police, and implausible explanations for M.I.'s injuries are circumstarices from which the jury could infer Romero's consciousness of guilt. See Guevara, 152 S.W.3d at 50 (inconsistent statements and implausible explanations are circumstances of guilt).

Romero was arrested in September 2001, indicted for the offense of injury to a child, and released on bond in March 2002. Romero testified that, although she does not speak English and the judge did not speak Spanish, she understood the trial judge to say, during her March 26, 2002 hearing, that she could just go home and never had to return to court. After that hearing, Villareal picked Romero up from the jail and Romero stayed with her for approximately four months. Then, Romero stated that she went to Mexico because her husband's father died, her husband was supporting her, she did not work, and she was pregnant. However, Villareal

*56

testified that, when Romero left Villareal's home for Mexico, Villareal asked Romero "how she gets free from jail," and Romero told her "she got a call and the Judge tell her just go home." Romero stated she lived in Mexico for three years before moving to North Carolina with her siblings. Romero was re-arrested nine years later in September 2011. The evidence of Romero's flight from prosecution is a circumstance from which the jury could infer Romero's consciousness of guilt. See e.g., Bigby, 892 S.W.2d at 883; Burks, 876 S.W.2d at 903; Cantrell, 731 S.W.2d at 92; Foster, 779 S.W.2d at 859; Rumbaugh, 629 S.W.2d at 752; McWherter, 607 S.W.2d at 535 .

Reviewing all of the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found that Romero intentionally or knowingly caused injury to M.I., a child. See Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 899. Issue one is decided against Romero.

III. JURY CHARGE ERROR

In issue two, Romero argues that she suffered egregious harm when the trial court included an instruction in the jury charge that authorized the jury to convict her of injury to a child if they found that she "intentionally" engaged in the conduct. She claims that the trial court incorrectly defined "intentionally" and that error was egregious because the jury could have found her guilty of intentionally engaging in the alleged conduct based upon that incorrect definition. Romero concedes that the portion of the jury charge containing the definitions of knowingly and recklessly were correct. Finally, Romero acknowledges that no objection was raised at trial respecting the definition of "intentionally."

The State "agrees []' that the definition of 'intentionally' should not have included the phrase 'engage in the conduct or.'" However, the State argues that Romero did not suffer egregious harm because the application paragraphs show the trial court correctly limited the

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culpable mental states to the result of Romero's conduct. Also, the State contends that the jury returned a general verdict of guilty of "intentionally or knowingly causing serious bodily injury as charged in the indictment," so the jury could have found that Romero knowingly caused bodily injury to M.I.

A. Egregious Harm

Article 36.19 of the Texas Code of Criminal Procedure establishes the standard for reversal on appeal when the requirements of article 36.14 , which relates to the charge of the court, have been disregarded: "the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of [the] defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. art. 36.19 (West 2006). Under Almanza, jury charge error requires reversal of the judgment when the defendant has properly objected to the charge and the appellate court finds "some harm" to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When the defendant fails to object or states that he has no objection to the jury charge, an appellate court will not reverse for jury charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).

Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The actual degree of harm must be assayed in light of: (1) the entire jury charge; (2) the state of the evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. Errors which result in egregious harm are those that affect the very basis of the case, deprive the defendant of

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a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive. E.g., Taylor, 332 S.W.3d at 490.

B. Application of the Law to the Facts

First, we examine the entire jury charge. See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. Section 22.04(a)(1) of the Texas Penal Code states that "[a] person commits [the offense of injury to a child] if he intentionally, knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . serious bodily injury." Tex. Penal Code Ann. § 22.04(a)(1). The definition portion of the jury charge states,

A person acts intentionally, or with intent, with respect to [] a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(Emphasis added). The application paragraphs of the jury charge state: Now if you find from the evidence beyond a reasonable doubt that on or about the 9th day of September, 2001, in Dallas County, Texas, the defendant, Silvia Romero, did then and there knowingly or intentionally cause serious bodily injury to [M.I.], a child fourteen years of age or younger, hereinafter called complainant, by throwing or pushing complainant into a chair with her hands, a deadly weapon, or causing complainant to strike the floor, a deadly weapon, or a fireplace, a deadly weapon, or an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors;

Or if you find from the evidence beyond a reasonable doubt that the defendant did unlawfully then and there knowingly cause serious bodily injury to [M.I.], a child fourteen years of age or younger, hereinafter called complainant, by striking the complainant against a floor, a deadly weapon, or by striking complainant against a fireplace hearth, a deadly weapon, or by striking complainant with and against an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors, then you will find the defendant guilty of knowingly or intentionally causing serious bodily injury to a child as charged in the indictment.

*59 The definition and application portions of the jury charge also included the lesser included offense of recklessly causing injury to a child. Neither the State nor Romero objected to the trial court's charge.

The application portion of the trial court's jury charge alleged three theories by which the jury could have found Romero guilty. Although the portion of the jury charge defining "intentionally" includes the phrase "engage in the conduct or," the application paragraph limited the offense to "intentionally cause serious bodily injury."

Second, we review the state of the evidence. See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. The evidence adduced at trial showed that M.I. suffered serious bodily injury, was only two years old at the time of her injuries, Romero and A.K., who was one year old, were the only others present in the apartment when M.I. was injured, Romero gave inconsistent statements and implausible explanations relating to M.I.'s injuries, and Romero absconded, fleeing prosecution for nine years.

Third, we review the argument of counsel. See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. In the first part of the State's closing argument, the State argued

What we know beyond all doubt from what you heard from the evidence is that this was an intentional act. Every doctor who treated this baby told you this was an intentional act. . . .

This was an intentional act. . . . I told you that you could look at everything to determine whether a person acted intentionally, before, during, after. . . .

The doctors told you that this was an intentional act. The brain, the fractures, all the bruising that they saw, this was an intentional violent act, and [Romero] knew, because that's why she fled the country, leaving everything behind.

However, during defense counsel's closing argument, he referred to the court's charge, stating, in part, the jury had to decide "whether this is intentional, that is, [Romero] intended that this result occur." Then, during the second part of the State's closing argument, the State argued, in

*60

part, "Actually, your job is going to be easy. We know it was an intentional act. We know it was her."

We consider the totality of the circumstances as well as the fact that, although the State argued Romero intended the act, the State did not argue or suggest that the jury did not have to find that Romero intended to cause the result. Further, it was Romero's defensive theory that she was not present in the room when M.I. was injured and that M.I.'s injury was the result of an accident.

Finally, we consider any other information revealed by the record of the trial as a whole. See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. The record shows the indictment alleged Romero "intentionally and knowingly cause[d] serious bodily injury to [M.I.]." Romero concedes that the portion of the jury charge containing the definition of knowingly was correct. Further, the jury's verdict states the jury found Romero "guilty of intentionally or knowingly causing serious bodily injury to child as charged in the indictment." Accordingly, the jury could have found that Romero knowingly caused serious bodily injury to M.I.

Even though the trial court included an instruction in the jury charge that authorized the jury to convict Romero of injury to a child if they found that she intentionally "engage[d] in the conduct," we conclude that Romero has not shown that the error resulted in egregious harm. Issue two is decided against Romero.

IV. MODIFICATION OF THE JUDGMENT

In its sole issue on cross-appeal, the State argues the judgment should be modified to reflect the correct statute for the offense. The State argues the trial court's judgment incorrectly lists the statute for the offense as section 22.01 of the Texas Penal Code.

Romero was indicted for the offense of injury to a child. Section 22.04(a)(1) of the Texas Penal Code states that "[a] person commits [the offense of injury to a child] if he intentionally,

*61 knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . serious bodily injury." Tex. Penal Code Ann. § 22.04(a)(1). The jury charge reflects that the jury found Romero "guilty of intentionally or knowingly causing serious bodily injury to a child as charged in the indictment." The trial court's judgment states that Romero was convicted of the offense of "Injury to a Child Serious Bodily Injury." However, the trial court's judgment also lists the statute for the offense as " 22.01 Penal Code." Section 22.01 of the Texas Penal Code defines the offense of assault. Tex. Penal Code Ann. § 22.01 (West Supp. 2014).

An appellate court has the authority to modify an incorrect judgment to make the record speak the truth when it has the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we conclude the trial court's judgment should be modified to reflect the correct statute for the offense, which is section 22.04 of the Texas Penal Code. Issue one of the State's cross-appeal is decided in favor of the State.

Also, although neither party raises the issue, we observe the judgment states that the deadly weapon finding was "N/A." However, the indictment alleged Romero: unlawfully then and there intentionally and knowingly cause[d] serious bodily injury to [M.I.], a child 14 years of age or younger, hereinafter called complainant, by throwing and pushing complainant, into a chair with her hands, a deadly weapon, and causing complainant to strike the floor, a deadly weapon, and a fireplace, a deadly weapon, and object, a deadly weapon, the extant nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors. and did unlawfully then and there knowingly cause[d] serious bodily injury to [M.I.], a child 14 years of age or younger, hereinafter called complaint, by striking the complainant against a floor, a deadly weapon, and by striking complainant against a fireplace hearth, a deadly weapon, and by striking complainant with an against an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors.

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(Emphasis added). Also, the jury charge "instructed that a deadly weapon is a firearm, or anything manifestly designed, made, or adapted for the purpose of inflicted death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." The application paragraphs also referred to the use of a deadly weapon. The jury found Romero guilty as charged in the indictment. See Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (jury's verdict was finding that defendant used deadly weapon as verdict expressly found defendant guilty of the offense "as included in the indictment" and indictment expressly alleged defendant committed offense with "a deadly weapon). Accordingly, we conclude the trial court's judgment should be modified to state that the jury found Romero used a "deadly weapon, not a firearm." See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30 (appellate court has authority to sua sponte modify incorrect judgment to make record speak the truth when it has necessary information to do so).

V. CONCLUSION

The evidence is sufficient to support Romero's conviction. Also, even though the trial court included an instruction in the jury charge that authorized the jury to convict Romero of injury to a child if they found that she intentionally "engage[d] in the conduct," Romero has not shown that she suffered egregious harm. Further, the judgment lists an incorrect statute for the offense and fails to list that Romero used a deadly weapon.

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Court of Appeals Fifth District of Texas at Ballas JUDGMENT

SYLVIA ROMERU, Aptitian No. 05-13-01586-CR V. THE STATE OF TEXAS, Appellee

On Aptent Eam the C'ruimul Disirint C'ruin No. 6, Dullas Coumy, Iexas Trial Court Cause No. F-01-16575-X. Opinion delivered by Justice Lang. Justice Brown participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: (1) The portion of the trial court's judgment that states "Statute for Offense: 22.01 Penal Code" is modified to state "Statute for Offense: 22.04 Penal Code"; and (2) The portion of the trial court's judgment that states "Findings on Deadly Weapon: N/A" is modified to state "Findings on Deadly Weapon: Deadly Weapon, Not a Firearm."

As REFORMED, the judgment is AFFIRMED

Judgment entered this 17th day of April, 2015.

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NOTES

Con be so ill-chosen as to render a trial fundamentally unfair See, United States v. Rusmisel 716 Fzd 301, 310 (5th Cir. 1983) the same can be said of Trial Counsells failure to conduct discovery, depositions medical expert reports, ad vising Appellant to reject the flea offered by the state because.

${}^1$ The Hon. Kerry P. FitzGerald was on the panel and participated at the submission of this case Due to his retirement from this Court on December 31, 2014, he did not participate in the issuance of this opinion. See TEX. R. App. P. 41 I (a), (b).