Proenza, Abraham Jacob ( 2015 )

PD-1100-15
PD-1100-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/24/2015 3:41:03 PM
Accepted 8/26/2015 3:05:54 PM
ABEL ACOSTA
No. 13-13-00172-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
ABRAHAM JACOB PROENZA, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Cameron County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
Bar I.D. No. 24053705
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
August 26, 2015
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
*The parties to the trial court’s judgment are the State of Texas and Appellant,
Abraham Jacob Proenza.
*The case was tried before the Honorable Elia Cornejo-Lopez, 404th District Court,
Cameron County.
*Counsel for Appellant at trial was Ernesto Gonzales, 1601 South F St., Harlingen,
Texas 78550.
*Counsel for Appellant on appeal was Kristen Jernigan, 207 S. Austin Ave.,
Georgetown, Texas 78626.
*Counsel for the State at trial was Evan Robbins and Laura Garcia, Cameron County
Assistant District Attorneys, 964 E. Harrison St., Brownsville, Texas, 78520.
*Counsel for the State on appeal was Jennifer M. Avendaño, Cameron County
Assistant District Attorney, 964 E. Harrison St., Brownsville, Texas 78520.
*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Is there a common-law “fundamental error” exception to
preservation that exists outside of the framework of Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993)?
2. Is a complaint about a judge’s comment on the evidence forfeited if
not raised at trial?
3. The trial judge’s exchange with a witness neither tainted the
defendant’s presumption of innocence nor vitiated the jury’s
impartiality, and it was harmless under any standard.
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
APPENDIX (Opinion of the Court of Appeals, Record Excerpt)
ii
INDEX OF AUTHORITIES
Cases
Aguirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003).. . . . . . . . . . . . . . 9
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (rhn’g). . . . . . . . . . . . 4
In the Interest of B.L.D., 113 S.W.3d 340 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . 4
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 3-5, 8, 10
Drake v. State, __S.W.3d__, 14-13-00855-CR, 2015 Tex. App. LEXIS 4549
(Tex. App.–Houston [14th Dist.] 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . 9
Escobar v. State, 01-13-00496-CR, 2015 Tex. App. LEXIS 3624
(Tex. App.–Houston [1st Dist.] Apr. 14, 2015, no pet.).. . . . . . . . . . . . . . . . . 6
Garcia v. State, 04-13-00667-CR, 2014 Tex. App. LEXIS 10124
(Tex. App.–San Antonio Sept. 10, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . 6
Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . 4
Gray v. State, 159 S.W.3d 95 (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . . . . . . 9
Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . 5, 10
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).. . . . . . . . . . . . . . . . 3, 4, 7
Mays v. State, 05-13-00086-CR, 2014 Tex. App. LEXIS 7330
(Tex. App.–Dallas July 8, 2014, no pet. filed). . . . . . . . . . . . . . . . . . . . . . . . 6
Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . 3, 8
Moore v. State, 03-12-00787-CR, 2015 Tex. App. LEXIS 2638
(Tex. App.–Austin Mar. 20, 2015, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . 6
Proenza v. State, __S.W.3d__, 2015 Tex. App. LEXIS 7579
iii
(Tex. App.–Corpus Christi 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 8, 9
Sanchez v. State, 120 S.W.3d 359 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . 3
Sanchez-Tapia v. State, 07-14-00203-CR, 2015 Tex. App. LEXIS 2273
(Tex. App.–Amarillo Mar. 10, 2015, pet. filed PD-0554-15). . . . . . . . . . . . . 6
Thomas v. State, __S.W.3d__, 2015 Tex. App. LEXIS 6934
(Tex. App.–Houston [1st Dist.] 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 6
Unkart v. State, 400 S.W.3d 94 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . 3, 5
Statutes and Rules
TEX. CODE CRIM. PROC. art. 36.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
TEX. CODE CRIM. PROC. art. 38.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. PENAL CODE § 22.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7
TEX. R. APP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. R. EVID. 103(e) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Other resources
Misc. Docket No. 15-001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iv
No. 13-13-00172-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
ABRAHAM JACOB PROENZA, Appellant
v.
THE STATE OF TEXAS, Appellee
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through its State Prosecuting Attorney,
and respectfully urges this Court to grant discretionary review of the above named
cause, pursuant to the rules of appellate procedure.
STATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument. Despite this Court’s efforts, confusion over
the state of preservation law persists in the courts of appeals. The continued viability
of the “fundamental error” doctrine, and the damage it does to the categorical
approach to preservation established in Marin v. State, are important issues that
deserve discussion.
1
STATEMENT OF THE CASE
Appellant was convicted of injury to a child by omission and sentenced to forty
years in prison.1 The primary issue at trial was appellant’s failure to seek medical
care for the child. Carol Grannum, a doctor at the child’s clinic, testified regarding
a non-parent’s inability to obtain medical care at the clinic without a parent’s prior
approval. The judge engaged her directly on this point. Appellant complained about
this for the first time on appeal, claiming a violation of TEX. CODE CRIM. PROC. art.
38.05.2 The court of appeals interpreted this as a claim of fundamental error,
concluded that it was, and found the error harmful.3
STATEMENT OF PROCEDURAL HISTORY
On July 23, 2015, the court of appeals reversed appellant’s conviction in a
published opinion.4 Justice Garza dissented. No motion for rehearing was filed. The
State’s petition is due on August 24, 2015.
1
1 CR 621. See TEX. PENAL CODE § 22.04(a)(1), (e).
2
App. Br. at 27; see TEX. CODE CRIM. PROC. art. 38.05 (“In ruling upon the admissibility of
evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the
case, . . . nor shall he . . . make any remark calculated to convey to the jury his opinion of the case.”).
3
Slip op. at 22, 33-34 (applying TEX. R. APP. P. 44.2(a), the rule for constitutional errors).
4
Proenza v. State, __S.W.3d__, 2015 Tex. App. LEXIS 7579 (Tex. App.–Corpus Christi
2015).
2
GROUNDS FOR REVIEW
1. Is there a common-law “fundamental error” exception to
preservation that exists outside of the framework of Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993)?
2. Is a complaint about a judge’s comment on the evidence forfeited if
not raised at trial?
3. The trial judge’s exchange with a witness neither tainted the
defendant’s presumption of innocence nor vitiated the jury’s
impartiality, and it was harmless under any standard.
ARGUMENT AND AUTHORITIES
This Court has repeatedly said that questions of fundamental error are now
considered in Marin’s framework for preservation of error.5 Unkart v. State6 held that
Blue v. State,7 the leading case using fundamental error to review unpreserved
complaints about judicial comments, has no precedential value. Yet, as the court of
appeals pointed out, Unkart “left the door open” for fundamental error.8 This area of
law continues to be a source of confusion for lower courts, as both the majority and
dissenting opinions in this case show. This Court should take this opportunity to
5
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). See Mendez v. State, 138 S.W.3d
334, 341 (Tex. Crim. App. 2004); Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim. App. 2003).
6
400 S.W.3d 94 (Tex. Crim. App. 2013).
7
41 S.W.3d 129 (Tex. Crim. App. 2000).
8
Slip op. at 28.
3
abandon the “discredited” common-law doctrine of fundamental error.9
The state of fundamental error is unsettled.
Texas Rule of Appellate Procedure 33.1 “firmly established” that a
contemporaneous objection is generally required to preserve complaints for appeal.10
But its application “turns on the nature of the right allegedly infringed.”11 Marin
identified three distinct kinds of rights: (1) absolute requirements and prohibitions;
(2) rights of litigants which must be implemented by the system unless expressly
waived; and (3) rights of litigants which are to be implemented upon request.12 The
rules for preservation apply only to the third category.13
After Marin, a plurality posited in Blue that Texas Rule of Evidence 103(d)
operates as an exception to Rule 33.1 by permitting review of fundamental error.14
9
In the Interest of B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (citation and quotation omitted)
(calling fundamental error “a discredited doctrine” in light of the court’s “strong policy
considerations favoring preservation”). Review of jury charges for fundamental error is a separate
matter that this Court has deemed codified by TEX. CODE CRIM. PROC. art. 36.19. See Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (rhn’g) (“Article 36.19 actually separately
contains the standards for both fundamental error and ordinary reversible error.”) (emphasis in
original).
10
Grado v. State, 445 S.W.3d 736, 738-39 (Tex. Crim. App. 2014).
11
Id. at 739.
12
Marin, 851 S.W.2d at 279.
13
Id. at 279-80.
14
41 S.W.3d at 131. Rule 103(d) said that “nothing in [the rules of evidence] precludes taking
notice of fundamental errors affecting substantial rights although they were not brought to the
attention of the court.” Re-ordered as Rule 103(e), it is now stated more permissively: “In criminal
cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim
of error was not properly preserved.” The change is “stylistic only,” “without effecting any
4
But the plurality did not explain its reliance on a rule of evidence to review a non-
evidentiary complaint.15 And, as this Court explained in Unkart, “[t]he rationales of
the plurality and concurring opinions are entirely disparate: they did not even focus
on the same error, much less give the same reason why it was error.”16
Unfortunately, while Unkart addressed the jurisprudential significance of Blue,
it did not clarify the status of fundamental error in Texas. On one hand, it framed
preservation in terms of Rule 33.1 and Marin, did not mention Rule 103(d), and held
that Blue has no precedential value.17 On the other hand, it did not disavow Blue’s
reasoning or make it clear that any alleged “fundamental error” stemming from
judicial comments must be considered within Marin’s framework. Unkart’s treatment
by courts of appeals illustrates the remaining confusion; they commonly cite Unkart
along with either Blue or Rule 103(d) for the proposition that there is a “fundamental
substantive change in Texas evidence law.” Misc. Docket No. 15-001 (“FINAL APPROVAL OF
AMENDMENTS TO THE TEXAS RULES OF EVIDENCE”).
15
Reliance on Rule 103(d) as a basis for reviewing unobjected-to error was affirmed without
explanation the following year. Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)
(“Appellant did not object, but it is the province of this Court to ‘take notice of fundamental errors
affecting substantial rights although they were not presented to the court,’ pursuant to Texas Rule
of Evidence 103(d).”).
16
Unkart, 400 S.W.3d at 101. See Blue, 41 S.W.3d at 132-33 (plurality) (judge’s comments
tainted defendant’s presumption of innocence), 135 (Mansfield, J., concurring) (comments denied
defendant a fair trial by showing partiality, which taints the presumption of innocence), 139 (Keasler,
J., concurring) (the right violated was “the right to an impartial judge”).
17
Unkart, 400 S.W.3d at 98-101 & n.11, n.14.
5
error” exception to preservation for some judicial comments.18
This case highlights the confusion surrounding this body of law.
Appellant was accused, in part, of failing to seek medical care for the victim.
Grannum, the victim’s doctor, testified that appellant would not have been able to
bring the victim in for treatment at the clinic without prior approval from the victim’s
parent or guardian.19 The trial court questioned Grannum on this point.20 The court’s
tone is fairly characterized as disapproval of the wisdom of such a practice and/or
doubt that the policy is enforced as strictly as suggested by Grannum. Neither party
objected, and both parties were permitted additional questioning.21
18
See Thomas v. State, __S.W.3d__, 2015 Tex. App. LEXIS 6934, *31-35 (Tex. App.–Houston
st
[1 Dist.] 2015, no pet.) (discussing Unkart’s treatment of Blue but reviewing for fundamental error);
Moore v. State, 03-12-00787-CR, 2015 Tex. App. LEXIS 2638, *20 (Tex. App.–Austin Mar. 20,
2015, pet. ref’d) (not designated for publication) (citing Unkart and Blue); Mays v. State,
05-13-00086-CR, 2014 Tex. App. LEXIS 7330, *8 (Tex. App.–Dallas July 8, 2014, no pet. filed)
(not designated for publication) (same); Sanchez-Tapia v. State, 07-14-00203-CR, 2015 Tex. App.
LEXIS 2273, *12-13 (Tex. App.–Amarillo Mar. 10, 2015, pet. filed PD-0554-15) (not designated
for publication) (citing Unkart and Rule 103(d)); Garcia v. State, 04-13-00667-CR, 2014 Tex. App.
LEXIS 10124, *4 (Tex. App.–San Antonio Sept. 10, 2014, no pet.) (not designated for publication)
(same). Of these five, only Sanchez-Tapia mentions Marin. 2015 Tex. App. LEXIS 2273 at *12,
16.
The First Court has also used Rule 103(d) and Blue to review a prosecutor’s comments for
fundamental error. Escobar v. State, 01-13-00496-CR, 2015 Tex. App. LEXIS 3624, *3-4 (Tex.
App.–Houston [1st Dist.] Apr. 14, 2015, no pet.) (not designated for publication). Other courts
review trial complaints for fundamental error as an extension of Almanza. See, e.g., Drake v. State,
__S.W.3d__, 14-13-00855-CR, 2015 Tex. App. LEXIS 4549, *7 (Tex. App.–Houston [14th Dist.]
2015).
19
18 RR 90-91, 94-95. The entirety of the witness’ testimony appears in 18 RR 78-101. The
applicable portion, 18 RR 90-101, is included in the appendix.
20
18 RR 93-94, 95-100.
21
18 RR 94-95, 100-01.
6
The court of appeals acknowledged that appellant did not object at trial, but
“conclude[d] that the comments of the trial court, which tainted not only Proenza’s
defensive theory but also the presumption of his innocence in front of the jury or
vitiated the jury’s impartiality, were fundamental error and required no objection.”22
But that did not end the analysis. After finding the error fundamental, the court of
appeals found the error reversible under Texas Rule of Appellate Procedure 44.2(a),
the standard for constitutional errors.23 Given that the rationale for reviewing
fundamental error without objection is the egregious harm that it causes, it should be
unnecessary to perform additional harm analysis and impossible to find harmlessness.
And yet the majority did the former and the dissent, the latter.24
What is the specific right at issue?
It could be that both the majority and dissent misuse “fundamental error” as
shorthand for “absolute systemic requirements” that cannot be waived or forfeited
under Marin.25 In fact, this may have been the Blue plurality’s intent; this Court has
referred to Blue as an example of a new systemic right despite acknowledging that the
22
Slip op. at 33-34; see id. at 34 (“they showed bias so egregious as to deem the trial court
biased on the matter of Proenza’s guilt.”) (citing, inter alia, Unkart, 400 S.W.3d at 99).
23
Slip op. at 34.
24
Dissent at 1-2 (agreeing that the comments “constituted fundamental error” but finding them
harmless beyond a reasonable doubt under Rule 44.2(a)). It should be noted that appellant did not
address preservation or mention “fundamental error,” and included a harm analysis for non-
constitutional error under Rule 44.2(b). App. Br. at 33-34.
25
Marin, 851 S.W.2d at 279.
7
basis was unsettled.26 If that is the case, however, making such a broadly defined
right reviewable without any objection undermines the purpose of Marin’s
framework.
Under that framework, one has to identify the particular error to determine
whether the right to be free from such error is systemic or waiveable-only.27 Put
another way, one has to show that objection was unnecessary before an appellate
court will review an unpreserved claim. As Presiding Judge Keller said in her dissent
to Blue, it should be “[t]he kind of error involved, not the egregiousness of a
particular error, [that] determines in Texas state court whether a party must preserve
error by lodging an objection.”28 Those rights categorized as non-forfeitable are
typically narrowly drawn and easy to recognize without a complete analysis of the
record—e.g., jurisdiction over the person, jurisdiction over the subject matter, the
requirement that a district court conduct its proceedings at the county seat, and the
constitutional prohibition of ex post facto laws.29 By entertaining broad claims of
26
Saldano v. State, 70 S.W.3d 873, 889 & n.72 (Tex. Crim. App. 2002). Immediately after its
single reference to Rule 103(d), the Blue plurality quoted extensively from Marin’s discussion of
“rights . . . widely considered so fundamental . . . [that] they are not extinguished by inaction alone.”
Blue, 41 S.W.3d at 131 (quoting Marin, 851 S.W.2d at 278).
27
Saldano, 70 S.W.3d at 889.
28
Blue, 41 S.W.3d at 142 (Keller, J., dissenting); see Mendez, 138 S.W.3d at 339-42 (clarifying
misleading language in Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), and distinguishing
concepts of preservation from harm analysis).
29
Saldano, 70 S.W.3d at 888-89.
8
harm-based error, appellate courts are forced to thoroughly review all allegations of
fundamental error to determine whether or not they need to be reviewed. This waste
of judicial resources is one of the consequences Marin sought to avoid.30
As applied to this case, appellant raised (for the first time on appeal) a purely
statutory complaint under article 38.05. Much as every trial error would be “of
constitutional dimension” if cast as a violation of the right to be heard,31 every trial
court ruling or comment could potentially be evidence of judicial bias and perhaps,
as a result, a tainted jury. For the purpose of preservation, however, it should not
matter that some comments are worse than others; that is purely a function of harm.32
The court of appeals should not have reviewed this unpreserved statutory complaint.
This case is distinguishable from Blue and any error was harmless
Should this Court choose not to decide the merits of any of the Blue opinions,
this case is distinguishable from Blue. A judge’s exchange with a witness over that
witness’s practices (or those of her workplace) “does not translate to an indication as
30
See id. at 887 (“When valid objections are timely made and sustained, the parties may have
a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party
is excused from the requirement of objecting, the results are the opposite.”).
31
Easley v. State, 424 S.W.3d 535, 538-39 (Tex. Crim. App. 2014).
32
And, regardless of the constitutional rights that could be implicated in a given case,
“[s]tatutory violations are reviewed for statutory harm” under Rule 44.2(b). Aguirre-Mata v. State,
125 S.W.3d 473, 481 (Tex. Crim. App. 2003); see also Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim.
App. 2005) (“many–perhaps most–statutes are designed to help ensure the protection of one
constitutional right or another. Having such a purpose does not convert a statutory right into a one
of federal constitutional dimension, much less a right whose violation is considered to be structural
error.”).
9
to the judge’s views about the defendant’s guilt or innocence.”33 It is simply not
comparable to a judge’s declaration that he would prefer that the defendant plead
guilty.34
Moreover, as pointed out by the dissent, any comment on the practices of the
clinic could not have affected the verdict because 1) someone at the clinic would have
called for an ambulance if a child were brought to the clinic in distress, and 2) it was
undisputed that appellant could have taken the victim to the emergency room without
parental approval but failed to do so.35 Even if reviewed as constitutional error, as
both the majority and dissent did, appellant suffered no harm.
Conclusion
Appellant did not object to the judicial questioning that he watched and in
which he participated. It was only through an overly broad characterization of the
right involved that the court of appeals was able to review for fundamental error.
And it was only through the door left open in Unkart that it was able to use that
doctrine. If traditional claims of fundamental error are now reviewed under the
Marin framework, as this Court has repeatedly said since Blue, no review of any
33
See Jasper, 61 S.W.3d at 421 (distinguishing a judge’s expression of irritation at the defense
attorney from the comments in Blue).
34
See Blue, 41 S.W.3d at 130 (quoting the trial judge) (“Frankly, obviously, I prefer the
defendant to plead because it gives us more time to get things done and I’m sure not going to come
out here and sit.”).
35
Dissent at 3-4; 18 RR 92-93.
10
complaint should have been undertaken without categorization as an alleged violation
of a non-forfeitable right. Respectfully, a result-oriented characterization that cannot
be made without first performing a full appellate analysis misses the point of this
Court’s carefully constructed rules for preservation.
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
grant this Petition for Discretionary Review and reverse the decision of the Court of
Appeals.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
John.Messinger@SPA.Texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
11
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool
this document contains 3,692 words.
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that on this 24th day of August, 2015, the State’s
Petition for Discretionary Review was served through the electronic filing manager
or e-mail on the parties below.
René B. González
Cameron County Assistant District Attorney
964 E. Harrison St.
Brownsville, Texas 78520
rgonzalez1@co.cameron.tx.us
Kristen Jernigan
207 S. Austin Ave.
Georgetown, Texas 78626
Kristen@txcrimapp.com
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
12
APPENDIX
NUMBER 13-13-00172-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ABRAHAM JACOB PROENZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez
Appellant Abraham Jacob Proenza challenges his conviction for injury to a child,
four-month-old A.J.V.,1 by omission, a first-degree felony. See TEX. PENAL CODE ANN.
1 We use initials to identify the minors in this case.
§ 22.04(a)(1), (b)(2), (e) (West, Westlaw through Ch. 49, 2015 R.S.) (providing that “[a]
person [who has assumed care, custody, or control of a child] commits [a first-degree
felony] if he . . . intentionally [or] knowingly . . . by omission, causes to a child . . . serious
bodily injury”). The jury returned a guilty verdict and assessed punishment at forty years
in the Texas Department of Criminal Justice—Institutional Division. By four issues,
Proenza contends: (1) the evidence is insufficient to show he committed the offense of
injury to a child resulting in serious bodily injury; (2) the trial court improperly commented
on the weight of the evidence; (3) the trial court erred when it denied his motion to recuse;
and (4) the trial court abused its discretion when it admitted certain autopsy photographs
into evidence. We reverse and remand.
I. BACKGROUND
A. Abraham and Sandra Proenza
Proenza and his wife Sandra testified that they have two daughters, who were
three and one when A.J.V. was born in Minnesota to Sandra’s sister on April 2, 2008.
Hoping to adopt the baby, Proenza and Sandra drove from Texas to take him home with
them. Proenza testified that he had always wanted a little boy, and he and Sandra
named him. A.J.V.’s birth mother came to Texas when A.J.V. was approximately three
or four weeks old and accompanied Sandra when they took A.J.V. to Su Clinica. It is
undisputed that A.J.V.’s birth mother did not sign papers authorizing anyone else,
including Proenza or Sandra, to take A.J.V. for medical care. According to Proenza, she
would not respond to phone calls and had changed her phone numbers. Proenza
2
believed that, without her permission, he would not be able to take A.J.V. to his scheduled
appointment at Su Clinica in early August.2
Proenza and Sandra testified that they raised A.J.V. together until approximately
July 20, 2008, when Proenza’s mother’s daycare closed—Proenza worked there as the
director and Sandra as a teacher and driver. Sandra went to Minnesota to work shortly
thereafter. Sandra testified that she left A.J.V. and their three-year-old daughter in
Proenza’s care, while her mother cared for their one-year-old daughter. They enrolled
their daughters in another daycare, but according to both Sandra and Proenza, they could
not enroll A.J.V. there because they could not show legal guardianship or adoption and,
according to Sandra, they did not have A.J.V.’s birth mother’s signature on the daycare
forms.
Around this same time, J.S.M., Proenza and Sandra’s fifteen-year-old nephew and
the baby’s half-brother, began staying with Proenza because he had nowhere else to live.
Proenza testified that J.S.M. agreed to help with A.J.V. Proenza showed J.S.M. how to
care for A.J.V.—how to change the baby’s diaper and how to feed him; J.S.M.
acknowledged that he understood. According to Proenza, J.S.M. cared for the baby
when Proenza was not at home and when Proenza was there but “separate with [his]
girls.” Proenza also testified that on the Wednesday before A.J.V. passed away, he
2 According to his medical records, A.J.V. was seen at the clinic on April 17, April 27, and June 10,
2008. In addition, Investigator and Lead Agent Daniel Valerio of the Cameron County Sheriff’s Office
testified that a Su Clinica appointment card for A.J.V.’s follow-up visit on August 4, 2008, had been attached
to Proenza’s refrigerator door. A.J.V.’s medical records from the clinic show that he missed an August 8,
2008 appointment.
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enrolled in a business school and asked J.S.M. to care for A.J.V. while he was attending
classes.
Proenza testified that on August 11, 2008, he went to school and when he returned
he checked with J.S.M. to make sure A.J.V. had been fed and bathed. J.S.M. replied
that he had. Later that evening, Proenza put A.J.V. to bed while he cooked dinner for
his daughters. According to Proenza, A.J.V. was a normal color when he put him to bed.
When he checked on A.J.V. fifteen minutes later, A.J.V. was blue and purple in color and
his mouth was open. Proenza immediately began CPR and told J.S.M. to call 911. A
sheriff’s deputy arrived within twenty minutes and told Proenza to keep doing CPR until
EMS arrived. EMS arrived fifteen minutes later, took over CPR, and then transported
A.J.V. to the hospital. Proenza testified that when the sheriff let him leave, he went to
the hospital and learned from his mother that A.J.V. had passed away. Officers took
Proenza to the sheriff’s department, where he gave a statement.
Proenza explained to the jury that he never knew that J.S.M. had mishandled
A.J.V. Proenza related that on August 11, 2008, A.J.V. did not look like he was dying “at
all.” He had been throwing up, but not a whole bottle. Proenza did not take A.J.V. to
the hospital or Su Clinica because he thought if he took A.J.V. for medical care they would
not see him because he did not have proper documentation from A.J.V.’s mother.
B. Pediatrician Carol Grannum, M.D.
Carol Grannum, M.D., a pediatrician employed at Su Clinica, testified that medical
records from Su Clinica show that A.J.V. was seen on April 17, 2008, when he was fifteen
days old. The results of his newborn screening blood tests were normal, and he weighed
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approximately seven pounds. An April 29, 2008 entry reported that on that date A.J.V.
weighed eight pounds. According to the medical records, A.J.V. was seen at Su Clinica
again on June 3, 2008. He weighed ten pounds, eleven ounces and was taking Similac
Advance, six ounces every three hours. At a June 10, 2008 follow-up visit, A.J.V.
weighed eleven pounds, was coughing less, and eating well. According to Dr. Grannum,
the medical records showed that A.J.V. was current on his immunizations and was
progressing as he should according to growth charts.
Dr. Grannum agreed that if someone, other than a parent, tried to take a child to
the clinic, he could not be seen, even for a follow-up appointment. Dr. Grannum also
testified, however, that she would not deny treatment to a child who was in acute distress:
he would be told to go to the hospital’s emergency room, or he would be stabilized at the
clinic and the clinic personnel would call an ambulance to transfer him to the hospital.
The trial court questioned Dr. Grannum concerning the documentation required for
a follow-up visit once a child is a registered patient of the clinic. Later, during re-cross
examination, Dr. Grannum clarified that “the [minor] patient has to be with a legal guardian
or with the mom or dad.” And, in response to inquiries by the trial court, Dr. Grannum
repeated “it’s routine that if it’s not mom and dad and if that person who is bringing the
child in, if that name is not on the form, that person cannot bring the child in.”
C. Peace Officer Jose Barreda
Jose Barreda, a patrol officer with the Cameron County Sheriff’s Office, responded
to the 911 call from the Proenza home. When Barreda arrived, he found Proenza
performing CPR on A.J.V. Barreda described Proenza as “excited nervous” but agreed
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that Proenza’s demeanor gave him no indication that something wrong had happened.
Barreda testified that “the baby was not moving, was not breathing, his eyes were open[,]
and his mouth was also open.” In his opinion, A.J.V. “had expired.”
D. Paramedic Marciano Montanez Jr.
Marciano Montanez Jr., a paramedic with South Texas Emergency Care EMS,
arrived at Proenza’s home twenty minutes after he received a call. He began performing
CPR on A.J.V. In his opinion, Proenza was helping the child by providing CPR. After
securing the child’s airway and starting an IV, EMS transported A.J.V. to the hospital.
E. Investigator and Lead Agent Daniel Valerio
Investigator and Lead Agent Daniel Valerio of the Cameron County Sheriff’s Office
testified that he arrived at Proenza’s home after EMS had taken A.J.V. to the hospital.
He collected information from the scene and spoke briefly with Proenza, who told him that
he placed A.J.V. on a bed in a room by himself because he was crying and when “he was
not crying any more, they went back and checked on him. That’s when they found—they
found him not breathing.” Valerio went to the hospital where Dr. Hayden informed him
that A.J.V. had died and that he was badly malnourished.
In the early morning hours of August 12, 2008, Valerio interviewed Proenza at the
Cameron County Sheriff’s Office.3 According to Valerio, Proenza’s demeanor during his
interview was that he had not done anything wrong, that he was “much more concerned
with what was going to happen to him.” On cross-examination, Valerio explained that he
3 After the jury viewed the entire interview, the trial court admitted the DVD as State’s Exhibit 33,
without objection.
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reached this conclusion because Proenza “never gave us a right explanation of why he
didn't take [A.J.V.] to the doctor.”
Valerio testified that, after obtaining a search warrant, he “went back and
photographed” the home to document the living conditions. He explained that he “didn't
find any milk there, as best as I can recall, or bottles. At that point in time, the first night
we were there, we didn't see any—any used bottles that he was being fed with.”
Finally, Valerio agreed that he arrested J.S.M., who was fifteen at the time, for
injury to A.J.V. Valerio also agreed that he had no information that Proenza was feeding
A.J.V. anything other than baby formula.
F. Captain Javier Reyna
Captain Javier Reyna, an investigator at the Cameron County Sheriff’s Office,
testified that he conducted a second recorded interview with Proenza on the afternoon of
August 12, 2014. The trial court admitted the DVDs of that interview as State’s Exhibits
36 and 37, and they were played for the jury. During cross-examination, Captain Reyna
agreed that Proenza mentioned that he had taken A.J.V. to the grocery store a day or two
earlier and had bought a four-pack of Stage 1 baby food. But Captain Reyna did not
remember seeing baby formula at the house, and even had he seen formula, it would not
prove A.J.V. was eating it because there was a one-year-old child there also. Captain
Reyna testified that Proenza told him he had never been arrested. Proenza also told
him A.J.V. had been throwing up on August 11, 2008 and that he did not have
documentation to seek medical treatment for A.J.V. According to Captain Reyna,
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Proenza told him during the interview that he called his wife in Minnesota because he
was concerned about how much A.J.V. was throwing up.
G. Forensic Pathologist Norma Jean Farley, M.D.
Norma Jean Farley, M.D., a forensic pathologist for Hidalgo County, testified for
the State. According to Dr. Farley, she conducted an autopsy on A.J.V. on August 12,
2008. She determined that his cause of death was dehydration and malnutrition. The
State offered and the trial court admitted autopsy photographs of A.J.V. taken by Dr.
Farley. She agreed that malnutrition could not happen overnight and that there would
be other physical things occurring in the child’s body that would be apparent from the
outside, including “the way the physique of how the child looked when he changed the
diaper [or bathed the child]. You would notice, you know, the folds on the buttocks, the
fact that the ribs are very prominent.” According to Dr. Farley, when she examined the
intestine, she could see no sign of recent food consumption, except for a piece of green
pepper inside the small bowel. Dr. Farley testified that there were no signs that the child
had vomited and no signs that he had been fed formula because she found no curdled,
milky substance in the stomach or the small bowel. When asked to give an approximate
time since the child had eaten, Dr. Farley responded,
He had a green pepper sometime probably in the last 24 hours. Other than
that, I didn't see anything else. The bowel, of course, can clear itself out in
about 24, 48, some people say 72 hours, of all of its contents, but I didn't
see anything else to show me that the child was being fed.
Regarding dehydration, Dr. Farley testified that A.J.V. exhibited the following signs:
a depressed soft spot; sunken eyes; dry mucus membrane on the inside of the eyes and
lips; and poor skin turgor. She testified dehydration occurs faster in infants, especially if
8
the infant has diarrhea, “if the family waits and doesn't take it to the doctor, it could be
dehydrated the next morning and really need water quickly.” Dr. Farley agreed that
dehydration and malnutrition were the cause of death and that A.J.V. “may have survived,
especially with just fluids.” She also agreed that, in her opinion, the conditions of
malnutrition and dehydration were “very obvious.”
H. Friends Mandy Cantu and Her Husband Armando Vela Jr.
Mandy Cantu and her husband Armando Vela Jr., who were long-time friends of
the Proenzas, testified for the defense. Cantu and Vela testified that they had seen
A.J.V. on three different occasions. According to Cantu, Proenza properly cared for and
handled A.J.V. because the baby did not look malnourished or sick in any way. He was
always clean and always dressed. On each occasion, however, they observed that
J.S.M. handled A.J.V., as Cantu testified, “not very gentle” and “kind of rough.”
Approximately two weeks after A.J.V. died, Cantu met with Investigator Valerio and
when asked if she thought that A.J.V. was in need or sick or malnourished, Cantu
answered, “No.” Cantu told Valerio that Proenza, his daughters, J.S.M., and A.J.V. had
come to a cookout at her house the weekend before A.J.V. died. She had taken the
younger children inside to watch television and play. She changed A.J.V.’s diaper and
noticed that he had some diarrhea—“just regular diarrhea”—a medium amount. Cantu
explained that it did not alarm her or cause her to worry about his welfare—“other than
that, to [her], he looked okay, . . . he looked fine.” After she changed A.J.V.’s diaper,
Cantu fed him a bottle that Proenza had brought and that she made up for the baby. And
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when shown a picture of A.J.V. after he died, although Cantu described A.J.V. as thin,
she related that he did not look like that days before his death.
I. Parents Ramon and Rosalinda Proenza
Ramon and Rosalinda Proenza, Proenza’s father and mother, also testified for the
defense. Ramon stated that he saw Proenza, A.J.V., J.S.M., and Proenza’s daughters
when he returned from vacation on August 3 or 4, 2008. Ramon observed that on this
occasion A.J.V. seemed “okay” to him—that he did not see anything wrong with the baby.
According to Ramon, Proenza had everything he needed for his children including formula
for A.J.V. and food for the others.
Rosalinda testified that she saw A.J.V. for the first time when he was just days old,
and Proenza brought him to work at her church daycare. According to Proenza’s mother,
before the daycare closed and before Sandra went to Minnesota to work, A.J.V.’s mother
had come to Texas to take A.J.V. to the doctor because—as Proenza’s mother
understood—he was “throwing up a lot.” She also testified that on July 25, 2008,
Proenza brought his daughters and A.J.V. to her house to wait for Hurricane Dolly to pass.
Proenza brought formula for A.J.V. During that time, Rosalinda fed him several times,
but he continued to throw up. She did not, however, notice if he was dehydrated at that
time. Rosalinda indicated that she was not concerned about Proenza’s ability to take
care of the baby. She described Proenza as an “over-caring dad” who took many
photographs of his children and was “all happy” about having a boy in the family.
According to Rosalinda, on one occasion, she saw J.S.M. hitting A.J.V. in the chest and
10
shaking him. And like Cantu, Rosalinda testified that she saw A.J.V. a few days to a
week before he died and that he did not look like the child in the photographs.
J. Friend Aaron Villarreal
Aaron Villarreal, who had known Proenza for at least twenty years, testified that
he saw Proenza with A.J.V. in July when the baby was “real small.” Villarreal agreed
that he saw nothing wrong with the baby at that time. About a month later, after
Hurricane Dolly, Proenza, his two daughters, A.J.V., and J.S.M. stayed with him during
the day for about four days and one night because Proenza’s home air conditioner was
out and “[t]hey were extremely exhausted.” Villarreal explained that he noticed at that
time that A.J.V. “looked a little bit skinnier.” He was also “tired” and “cranky” like all the
other kids who had to wait in line with Proenza for meals at a makeshift shelter because
of the hurricane. Villarreal testified that he went home for lunch one day and found the
children there but not Proenza. When Villarreal asked J.S.M. where A.J.V. was because
he could not see him, J.S.M. responded, “I put him in the closet because he wouldn’t shut
the f*** up, he kept crying.” Villarreal told J.S.M. to leave, took A.J.V. from the closet,
made him a bottle with powdered formula Proenza had left for him, and fed him. He saw
J.S.M., who he described as “mad at the world” and always giving everyone a “bad
attitude,” mishandle A.J.V. on another occasion when the child was crying. Villarreal
described A.J.V. as “really frail,” “maybe four months at the time,” and “a baby, who hadn't
developed. You know, it didn't have enough strength to sit himself up or anything like
that.” He also testified that Proenza held A.J.V. “properly” and that he “never saw
[Proenza] like grab him forcefully or anything like that.”
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K. Pastor Helen Rodriguez
Helen Rodriguez, pastor of the church where Proenza was a member, testified that
she saw Proenza at church with his daughters and A.J.V. on three occasions. According
to Rodriguez, Proenza cared for the baby at the church. When Rodriguez saw A.J.V.,
she thought he “looked perfectly.” She had no concerns about A.J.V.’s health or welfare.
L. Child Protective Services Special Investigator Jesse Munoz Jr.
Jesse Munoz Jr., a special investigator at Child Protective Services, testified that
he had conversations with Proenza and J.S.M. at the jail the night A.J.V. died and a
second time to discuss the circumstances surrounding the child’s death as well as to
check on the welfare of the other children in the home. According to Munoz, he reported
that Proenza was not happy with their decision to bring A.J.V. home with him and that
A.J.V. was “kind of causing a little financial burden with him and him going to school.”
Proenza told him “that the only thing that was peculiar, that was not normal, was that the
baby was vomiting everything the baby would eat.” According to Munoz, Proenza told
him that the baby drank six ounces of Enfamil formula and 3 ounces of water a day and
that J.S.M. was the last one to feed the baby on August 11 around 2:30 p.m.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, Proenza challenges the sufficiency of the evidence to support his
conviction for injury to a child. He argues that “[t]he record is simply devoid of any
evidence that [he] intentionally or knowingly caused serious bodily injury to [A.J.V.]
[A.J.V.] appeared to be a happy, young child who tragically became sick during a
tumultuous period after a hurricane.”
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A. Standard of Review
In reviewing the legal sufficiency of the evidence, this Court examines all the
evidence in the light most favorable to the verdict to determine whether the jury could
rationally find the essential elements of injury to a child, by omission, beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323
S.W.3d 893, 896 (Tex. Crim. App. 2010) (plurality op.). This Court gives deference to
the judgment of the jury regarding the weight and credibility of the evidence and only
asks whether the inferences supporting its verdict are reasonable based on the
combined or cumulative force of all the evidence. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007); Mayberry v. State, 351 S.W.3d 507, 511 (Tex. App.—San
Antonio 2011, pet. ref’d) (citing Jackson, 443 U.S. at 319). In a sufficiency review,
circumstantial evidence is just as probative as direct evidence, and circumstantial
evidence, standing alone, can be sufficient to establish guilt. Clayton, 235 S.W.3d at
778.
B. Applicable Law
Legal sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc).
“Such a charge is one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State's burden of proof or unnecessarily restrict the
State's theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327.
13
Section 22.04(a) of the penal code provides, in relevant part, that a person
commits an offense if he intentionally or knowingly, by act or omission, causes bodily
injury to a child. TEX. PENAL CODE ANN. § 22.04(a). As authorized by the indictment,
Proenza committed injury to A.J.V., a child, if he assumed care, custody, or control of
A.J.V. and intentionally or knowingly, by failing to feed him or failing to seek medical care
for him, caused A.J.V. serious bodily injury. S e e i d . § 22.04(a)(1), (b)(2), & (d). A
person acts intentionally when “it is his conscious desire to engage in the conduct or
cause the result.” Id. § 6.03(a) (West, Westlaw through Ch. 49, 2015 R.S.). A person
acts knowingly with respect to a result of his conduct when “he is aware that his conduct
is reasonably certain to cause a result.” Id. § 6.03(b). Section 22.04 defines “child” as
“a person 14 years of age or younger.” Id. § 22.04(c)(1). "Serious bodily injury" means
“bodily injury that . . . causes[, among other things,] death . . . .” Id. § 1.07(a)(46) (West,
Westlaw through Ch. 49, 2015 R.S.). “For purposes of an omission . . . the actor has
assumed care, custody, or control if he has by act, words, or course of conduct acted so
as to cause a reasonable person to conclude that he has accepted responsibility for
protection, food, shelter, and medical care for a child . . . .” Id. § 22.04(d).
C. Discussion
Proenza does not dispute that he had assumed care, custody, or control of A.J.V.
at the time of his death. See id. § 22.04(b)(2), (d). Instead, Proenza generally claims
that the evidence is insufficient to show that he intentionally or knowingly caused serious
bodily injury to A.J.V. by failing to feed him or by failing to seek medical care for him.
See id. § 22.04(a)(1).
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Proenza summarizes the evidence, which he claims supports his argument, as
follows:
In this case, Deputy Barreda testified that when he arrived at
[Proenza’s] home on the night of August 11, 2008, [Proenza] was
performing CPR and he did not think that foul play was involved in [A.J.V.]’s
death. In fact, he took no steps to secure the scene, remove [Proenza’s]
other children, or keep [Proenza] from continuing to perform CPR. When
Valerio interviewed [Proenza], [he] was forthcoming and told Valerio that
[A.J.V.] had been crying and when he went to check on him, [A.J.V.] was
not breathing. Valerio admitted that [J.S.M.] was arrested for injuring
[A.J.V.] Cantu, Vela, Ramon Proenza, Rosalinda Proenza, Villarreal, and
Pastor Rodriguez all saw [A.J.V.] days before he died and all testified that
[he] looked fine. Specifically, when Cantu saw [A.J.V.], he did not look
malnourished. In addition, she saw [J.S.M.] handling [A.J.V.] roughly and
feeding him solid food. When Ramon saw [A.J.V.], he had no concerns
about [A.J.V.]’s welfare and [Proenza] had all the supplies necessary to take
care of his children including formula and food. Likewise, when [Proenza]
and his children stayed with Villarreal [following Hurricane Dolly], [Proenza]
had formula and supplies. While [A.J.V.] was at Villarreal’s home, [J.S.M.]
put [A.J.V.] in a closet because he would not stop crying. Pastor Rodriguez
saw [Proenza] with [A.J.V.] and his daughters at church on several
occasions and thought [A.J.V.] “looked perfectly.” Munoz told the jury that
when he interviewed [J.S.M.], [J.S.M.] pulled out scissors and started
attacking a nearby wall[,] which caused Munoz to fear for his life.
[Proenza] explained that [A.J.V.] had been throwing up just before
he passed away, but had been receiving the food and care he needed.
When [Proenza] discovered [A.J.V.] was not breathing, he immediately
started CPR and continued for over forty-five minutes until EMS arrived.
Again, the first officer on [the] scene testified that he did not think foul play
was involved and took no steps to separate [Proenza] from [A.J.V.] or his
other children.
. . . . The medical examiner even testified that dehydration can set
in in a mere twenty-four to forty-eight hours, which is a common length of
time for an infant to have an illness.
Proenza concludes by asserting that “[t]he evidence is simply insufficient to show [he]
committed the offense of injury to a child resulting in serious bodily injury.” See id.;
Brooks, 323 S.W.3d at 896. We disagree.
15
While it is arguable that the evidence referenced by Proenza shows that he did not
intentionally or knowingly cause A.J.V. serious bodily injury by his affirmative acts, it is
not Proenza’s affirmative actions but his omissions in failing to feed A.J.V. and in failing
to seek medical care for the child that are relevant in this case, in short, whether Proenza
intentionally or knowingly by omission caused A.J.V.’s death. And evidence, other than
that Proenza sets out above, established the essential elements of injury to a child, by
omission, beyond a reasonable doubt. See Jackson, 443 U.S. at 319 (1979); Brooks,
323 S.W.3d at 896.
The evidence shows that A.J.V. was born on April 2, 2008, and died on August 11,
2008, when he was four months old. A.J.V.’s pediatrician, Dr. Grannum, testified that at
fifteen days of age A.J.V. weighed almost seven pounds when he presented to Su Clinica
as a normal newborn. A week and one-half later, A.J.V. weighed 8 pounds. At two
months of age, according to the clinic’s records, A.J.V. weighed 10 pounds 11 ounces
and was taking Similac Advance, six ounces every three hours. On June 10, 2008,
during his last follow-up visit, the clinic records show that A.J.V. weighed 11 pounds, was
coughing less and eating well, was current on his immunizations, and was progressing
as he should according to growth charts. Yet Dr. Farley, the forensic pathologist who
conducted the autopsy on A.J.V., testified that when A.J.V. died one month after his last
clinic visit he weighed eight pounds three ounces. This was almost three pounds less
than he weighed a month earlier and only one pound and three ounces more than he
weighed when he was born.
16
Defense witnesses—some who saw the child only days before he died—testified
that A.J.V. looked fine. Yet Mark Hayden, M.D., an emergency physician who saw A.J.V.
when he arrived at the hospital the night he died, testified that A.J.V. appeared
malnourished. Dr. Hayden noted that the medical records revealed that “[A.J.V.]
appeared small and poorly nourished for his age.” And Dr. Farley testified that her
determination of the cause of death was dehydration and malnutrition. She described
A.J.V.’s appearance in her autopsy report as follows:
The infant had a very sunken abdomen, meaning—you know, most infants
have either not protruded or slightly protruded abdomen. This one was
sunken in. And the ribs were very prominent. You could see the ribs very
easily from the skin just looking at the child. And th[ose] were some of the
signs of this malnutrition—malnutrition. There's also that, and we kind of
call it the old person look, where the skin is all wrinkled and kind of falling,
gathering together around the buttocks and upper thigh area that we see in
malnourished individuals, that was also present especially along the
buttocks and upper thigh region. . . .
The autopsy photographs of A.J.V. showed “[a] very malnourished child”—they show[ed]
“really very, very” sunken abdomen, ribs that are “very prominent,” and some wrinkled
folds of skin.
Regarding dehydration, Dr. Farley testified that
the signs of dehydration w[ere] the soft spot at the top of [A.J.V.’s] head, the
fontanel, anterior fontanel was depressed. His eyes were sunken. And
the mucus membrane, really like the inside of the eyes and inside of the
lips, appeared dry. And, of course, poor skin turgor just means when you
pinch the skin, it usually falls back down relatively quickly. But if you're
dehydrated, it will just stand in that upright position for quite some time. It
won't come back down because the moisture in the skin isn't there and the
subcutaneous tissue isn't there and so it just stays pinched and standing
up.
17
According to Dr. Farley, when she pinched A.J.V.’s skin together, it stayed up more than
a minute.
Given the evidence of A.J.V.'s weight and his extreme appearance, the jury could
have inferred that his condition was noticeable to Proenza prior to the child's death. It is
sufficient that the evidence, by inference, shows Proenza was aware that the
circumstances existed and that his conduct—failing to feed A.J.V. and failing to seek
medical care for him—would be reasonably certain to cause the child’s death. See TEX.
PENAL CODE ANN. § 6.03(b) (defining when a person acts knowingly with respect to the
result of his conduct); Kohler v. State, 713 S.W.2d 141, 145 (Tex. App.—Corpus Christi
1986, pet. ref’d) (op. on reh’g). This inference based on circumstantial evidence is
reasonable based on the combined or cumulative force of all the evidence, when
reviewed in the light most favorable to the jury’s verdict. See Clayton, 235 S.W.3d at
778; Mayberry, 351 S.W.3d at 511 (citing Jackson, 443 U.S. at 319).
There was also direct and other circumstantial evidence of Proenza's awareness
of the child's condition. Proenza acknowledged that A.J.V. had refused his bottle on the
evening he died; he had thrown up his formula that night. The evidence reveals that
A.J.V. had been “throwing up a lot” for a long period of time, even before the day care
closed. After Sandra had gone to Minnesota, Proenza called her because he was
concerned about how much A.J.V. was throwing up. And there is evidence that on July
25, 2008, A.J.V. threw up his formula on several occasions while staying with Proenza
and the other children at Proenza’s parents’ home waiting for Hurricane Dolly to pass.
Yet Proenza acknowledged that he did not take A.J.V. to the clinic for a visit early in
18
August because he thought they would not see him without the necessary papers from
A.J.V.’s mother, and Proenza sought no emergency medical care for the child for the
same reason. Instead, Proenza relied increasingly on J.S.M. to watch A.J.V., to clean
him, and to feed him.
Proenza also testified that he did not feed the baby the day he died; J.S.M. told
Proenza that he had fed A.J.V. Proenza explained that on that evening, he saw J.S.M.
attempt to feed A.J.V. a bottle but the baby would not take it. Proenza acknowledged
that it was possible that A.J.V. had not eaten the day he died, or even the night before he
died. While Proenza testified that A.J.V. was being fed, he was not aware of how often.
In sum, the State presented evidence that Proenza knew that A.J.V. was throwing
up his formula and had been doing so for a period of time. He discussed A.J.V.’s
condition with his wife. Proenza thought A.J.V. was being fed, but did not know how
often. Proenza saw A.J.V. reject his bottle the evening he died. Yet he sought no
medical care either at the clinic or at the hospital because he did not have the right
documentation from the child’s mother. Although this evidence leads to the conclusion
that Proenza’s reason for failing to provide medical care was that he believed that the
clinic would not see A.J.V. without the proper documentation, the evidence shows that
Proenza was aware of A.J.V.’s condition and the need to feed A.J.V. or to take him to the
clinic or the hospital for medical care and Proenza did not even try to take A.J.V. to see
a doctor.
D. Summary
19
Examining all the evidence in the light most favorable to the verdict and giving
deference to the judgment of the jury regarding the weight and credibility of the evidence,
we conclude that the evidence is legally sufficient to support Proenza’s conviction. See
Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 896. The jury could have rationally
found, beyond a reasonable doubt, that Proenza intentionally or knowingly caused
A.J.V.’s death by failing to feed A.J.V. or by failing to seek medical care for him. See
Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 896; see also TEX. PENAL CODE ANN.
§ 22.04(a)(1). We overrule Proenza’s first issue.
II. JUDICIAL BIAS
By his second issue, Proenza argues that the trial court improperly commented on
the weight of the evidence by, among other things, questioning Dr. Grannum about what
documentation is required for a child’s follow-up clinic visit. See TEX. CODE CRIM. PROC.
ANN. art. 38.05 (West, Westlaw through Ch. 49, 2015 R.S.) (providing that, before the
return of the verdict, the trial judge shall not “make any remark calculated to convey to
the jury his opinion of the case”). Proenza argues that the trial court’s “comments
violated Texas Code of Criminal Procedure [a]rticle 38.05 by indicating a disbelief in the
defense’s position and by diminishing the credibility of the defense’s approach to the
case.” See Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). Proenza also argues that the trial court’s actions were so egregious that the
trial court violated his right to a fair and impartial trial, such that fundamental error
occurred and he could complain about it for the first time on appeal. He asserts that the
trial court’s questions and interjected facts were harmful to him and favorable to the State.
20
Proenza complains that the trial court’s comments “undoubtedly influenced the jury’s
verdict” when it negated his defensive theory by attempting to show that he could have
fraudulently obtained medical care.
In response, the State asserts that Proenza did not preserve error on this issue
because he did not object to the trial court’s comments at the time they were made. See
Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). The State argues that, even
if Proenza preserved error, the trial court’s questions to the witness were not comments
on the weight of the evidence. The State asserts that, instead, the questions “were
[asked] in order to clarify what [Proenza’s] trial counsel had already asked [Dr. Grannum]”
and “do not show a disbelief in the defense’s theory nor did they diminish credibility as to
the defense’s approach to the case.” The State offers no response to Proenza’s
fundamental-error argument.
A. The Trial Court’s Comments and Questions
Proenza complains of a colloquy that occurred between the trial court and the
State’s witness, Dr. Carol Grannum, a pediatrician at Su Clinica. Before the trial court
asked questions of Dr. Grannum, Proenza and the State elicited the following relevant
testimony from Dr. Grannum during their cross-, redirect-, and recross-examinations:
[Cross-Examination by Proenza]
Q. Well, let me ask you this, Doctor, if somebody else tries to take the
child that's not the parent and has no documentation as a guardian,
what occurs?
A. Then we can't see the patient.
Q. Even for a follow-up?
21
A. Yeah, we can't see the patient.
Q. What's the reason for that?
A. Well, we have had problems before where the patient has come in
without a legal guardian, and if shots are given and if the parents
didn't sign for the shots, you know, they have often just become very
angry with us, so we always have to have that.
Q. Also for legality purposes, the parent is the one who authorizes?
A. Right, someone to bring the child in.
Q. The medication, the prescriptions and everything else. The
treatment, basically?
A. Right.
....
[Redirect-Examination by the State]
Q. Doctor, if a patient came to your clinic who was visibly in distress,
would you ever deny them care?
A. Oh, we would see the patient and we would say, you know, this—
you know, if we can't take care of a situation here, we will call the
ambulance and the patient will be, you know, transferred to the
hospital, to the Emergency Room if the patient were in distress.
Q. So you wouldn't deny a patient?
A. No.
....
[Recross-Examination by Proenza]
Q. Well, you said you would call the ambulance, but you are not
committing yourself accessible to treat the patient right on the spot.
A. Right. We will go to the front desk, if the patient were in acute
distress, and we would say, you need to go to the Emergency Room
22
right away and we will call EMS. If the patient were in acute
distress, we would stabilize the patient first and still call EMS.
Q. Correct.
After counsel for Proenza and the State indicated they had no further questions
and asked that the witness be excused, the trial court entered into the following
complained-of colloquy with Dr. Grannum.
THE COURT: Ma'am, once the child is a registered patient of the
clinic, what do you all require for documentation on
follow-up visits.
THE WITNESS: Meaning if the patient needs to come back, we would
give them a little note saying you [are] due back in a
week or in two weeks or two months.
THE COURT: So in this case, you had given [A.J.V.] a follow-up
appointment.
THE WITNESS: Yes.
THE COURT: When he—when [A.J.V.] is presented for his return
visit, what do you require if anything, for the child to be
seen?
WITNESS: We would see the patient unless the patient wasn't
brought in, I guess, by mom or dad, doesn't have a note
saying that whoever is bringing the patient in.
THE COURT: But if he has a card, they just present it and go in to be
seen?
THE WITNESS: He doesn't even need a card. You just have to present
your name.
THE COURT: You just sign in on the front?
THE WITNESS: Yeah, and present your name.
THE COURT: And they pull the file and take him in.
23
THE WITNESS: And they pull the file and then they see which doctor
can see them, and we see them.
THE COURT: So you don't go through paperwork each time you
come to the clinic?
THE WITNESS: No, not if the patient has already been seen, and if
that's the patient's medical home.
THE COURT: Okay.
After this exchange, the trial court allowed Proenza to recross Dr. Grannum “just
to clarify,” with the following questions:
Q. Doctor, you said that only if they brought in the patient or a guardian
with authorization, that's what you mean, even if it's a follow-up.
A. Right, but the patient has to be with a legal guardian or with the mom
or dad.
Q. Because even though it's a follow-up, you are still not to going to
see—well, we are talking about a minor child. You are not going to
see the child unless the parent or the guardian or someone with
documentation authorized for you all to give treatment, correct?
A. Correct.
The trial court’s colloquy with Dr. Grannum continued with the following:
THE COURT: But do you actually ask those questions? Or do you
just assume that's the parent that's bringing the child?
THE WITNESS: No, no, no, because a lot of times, patients come
without a mom or a dad, and then the triage nurse
would actually come up to us and say, Doctor
Grannum, this patient doesn't have a mom or dad, you
know, and I mean, they come and they ask us.
THE COURT: Is that on the first visit or in the follow up visit?
THE WITNESS: Even on a follow-up visit, even on a follow-up visit.
THE COURT: Okay. Tell me about that process.
24
THE WITNESS: I'm not sure exactly what the triage nurse asks, but if
it's the patient comes into the front desk, if it's not mom
and it's not dad and they don't have a paper with their
name on it, and I guess they present an ID showing
that this is who they say they are, usually we don't see
the patient.
THE COURT: Okay. So, on the follow-up visits, they have to show
documentation, that's just y'all's procedure?
THE WITNESS: Right. It has to be mom or dad, or there has to be a
letter that the person brings in with his or her name on
it authorized by mom and dad.
THE COURT: Oh, just any letter would do saying, hey, . . . I give
authority to [insert name of adult] to take my child to the
clinic?
THE WITNESS: Actually, we also have a form from our clinic that we
give to mom and dad if they want to send the patient
with somebody else. We actually have our own form.
THE COURT: Oh, okay. But as long as you have that form, they will
see the child?
THE WITNESS: And it has to be in the chart.
THE COURT: And they ask for that each time, even though the child
has already been cleared for treatment?
THE WITNESS: It's—it's routine that if it's not mom and dad and if that
person who is bringing the child in, if that name is not
on the form, that person cannot bring the child in.
THE COURT: And is there any such form like that for [A.J.V.] . . . that
was filled in at the first visit?
THE WITNESS: I can check.4
4 At this point, the following exchange occurred,
JUROR: May I ask a question?
25
....
THE COURT: And Doctor, is that a clinic policy?
THE WITNESS: Yes.
THE COURT: And do you know what the purpose of that is?
THE WITNESS: No.
....
THE COURT: So, I could show up and say that's my child, treat him.
THE WITNESS: Right.
THE COURT: How would you know otherwise?
THE WITNESS: Right. Yeah, that's a question I would have to ask the
front desk.
THE COURT: Okay. All right. Thank you. Because I know—
maybe my doctor is very lax because they let any of my
sisters and any of my brothers take my kids.
THE WITNESS: No, we have to actually have—
THE COURT: When I am in trial, I can't go, so—
THE WITNESS: I am sure that can be done there once there is
something written in the chart that says that those
people are allowed to see your kid.
THE COURT: You can't, I'm sorry. You may not, but if you will write it down,
I'll consider it. Any objections to a juror asking question or
writing it down?
[THE DEFENSE]: As long it's is [sic] done in the proper way, Judge, which is
through the foreperson.
THE COURT: Well, they don't have a foreperson.
[THE DEFENSE]: Well, not yet, but that would be my suggestion.
THE COURT: And we need to wait until y'all are deliberating.
26
B. Applicable Law
1. Comment on the Weight of the Evidence
Under article 38.05 of the Texas Code of Criminal Procedure, a judge shall not
discuss the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.05. Specifically,
[i]n ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall
simply decide whether or not it is admissible, nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.
Id.; see Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (holding that a trial
judge must refrain from making any remark calculated to convey his opinion of the case
because jurors give special and peculiar weight to the language and conduct of the trial
judge). “The trial court improperly comments on the weight of the evidence if it makes a
statement that implies approval of the State's argument, indicates disbelief in the
defense's position, or diminishes the credibility of the defense's approach to the case.”
Simon, 203 S.W.3d at 590; see Hoang, 997 S.W.2d at 681. If a trial judge makes an
improper comment on the weight of the evidence and if error is preserved, we must then
decide if the comment was material, i.e., if the jury was considering the same issue.
Simon, 203 S.W.3d at 592. If the comment is material, we then determine whether it
rises to the level of reversible error in violation of article 38.05. See id. (citing
Brokenberry v. State, 853 S.W.2d 145, 153 (Tex. App.—Houston [14th Dist.] 1995, pet.
denied)).
2. Preservation of Error
The “traditional and preferred procedure” for preservation of error regarding
27
improper comments by the trial court includes: (1) objecting; (2) requesting an
instruction to disregard if the prejudicial event has occurred; and (3) moving for a mistrial
if a party thinks an instruction to disregard was not sufficient. Unkart v. State, 400
S.W.3d 94, 99 (Tex. Crim. App. 2013); see Peavey v. State, 248 S.W.3d 455, 470 (Tex.
App.—Austin 2008, pet. ref'd); see also Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.
App. 2009) (“Preservation of error is a systemic requirement on appeal.”). And if an issue
has not been preserved for appeal, an appellate court will generally not address its merits.
Ford, 305 S.W.3d at 532; see TEX. R. APP. P. 33.1(a) (providing in part that, as a
prerequisite to presenting a complaint for appellate review, a timely request, objection, or
motion must be made and ruled upon by the trial court); see also Villarreal v. State, No.
13-09-00046-CR, 2010 WL 1618649, at *3 (Tex. App.—Corpus Christi Apr. 22, 2010, no
pet.) (mem. op., not designated for publication).
However, the Unkart Court left the door open for a judicial comment that can rise
to the level of fundamental error and alleviate the need to follow the above preferred
procedure for error preservation. See Unkart, 400 S.W.3d at 99. And being guided by
Judge Keasler’s concurrence in Blue v. State and the First Court of Appeals’ reasoning
in Jaenicke v. State, we have concluded that a defendant may complain for the first time
on appeal about a trial court's lack of impartiality, as in this case—“so long as the trial
judge's conduct is so egregious as to deem the judge biased on the matter . . . .”
Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus Christi 2008, no pet.)
(finding that Hernandez could complain for the first time on appeal after determining that
the trial judge’s conduct—applying “an ill-conceived mathematical formula” and refusing
28
to consider the full range of punishment—was so egregious as to deem it biased on the
matter of punishment) (citing Blue, 41 S.W.3d 129, 129–30 (Tex. Crim. App. 2000) (en
banc) (Keasler, J., concurring) (discussing a defendant’s right to an impartial judge at the
guilt/innocence phase of the trial and reversing a conviction based on comments made
by the trial court during voir dire even though Blue failed to object at trial); Jaenicke, 109
S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op. on reh’g)
(observing that the right to an impartial judge articulated in Judge Keasler’s concurrence
should encompass a criminal appellant’s complaint that a trial court refused to consider
the full range of punishment)).
3. Fundamental Error
A trial court's comments do not constitute fundamental error unless they rise to
“such a level as to bear on the presumption of innocence or vitiate the impartiality of the
jury.” Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The Jasper Court
recognized that several types of comments do not rise to the level of fundamental error,
including those the trial court makes to correct counsel’s misstatement or
misrepresentation of previously admitted testimony, to maintain control and expedite the
trial, to clear up a point of confusion, or to reveal irritation at counsel. Id. But Texas law
discourages questioning by the trial judge in other areas because it presents two dangers:
(1) the questioning could convey the judge's opinion of the case to the jury and so
influence their verdict; and (2) the court “in its zeal and active participation” could assume
the role of an advocate and lose the neutral and detached role that is required of a judge.
Williams v. State, 89 S.W.3d 325, 328 (Tex. App.—Texarkana 2002, pet. ref'd); see also
29
Long v. State, No. 13-13-00579-CR, 2015 WL 234021, at *4 (Tex. App.—Corpus Christi
Jan. 15, 2015, no pet.) (mem. op., not designated for publication) (concluding that a trial
court’s questioning of two witnesses during the punishment stage of this open-plea case
tried before the bench was not fundamental error because the court did not assume the
role of an advocate and lose the neutral and detached role, but cautioning that the “extent
and adversarial nature of the trial judge's questioning of [the witnesses was] cause for
unease.”).
C. Analysis
Proenza asserts that “the trial judge improperly commented on the weight of the
evidence” when she “continued asking question after question trying in an obvious
attempt to get Dr. Grannum to say that if [Proenza] had appeared at the clinic and stated
he was [A.J.V.’s] father, the child could be treated because the [c]linic would not verify
that information.” Proenza complains that the trial court “repeatedly questioned Dr.
Grannum in an effort to get her to say that [he] could have lied to get health care for
[A.J.V.].”
1. Comment on the Weight of the Evidence
After the State and Proenza completed their examination of Dr. Grannum and
asked that she be excused, the trial court engaged in its interrogation of the witness. The
trial court asked Dr. Grannum a number of questions about the paperwork needed for a
child to be seen at the clinic. The general tenor of the questions and comments indicated
that the trial court sought clarification of Dr. Grannum’s testimony. See Williams, 89
S.W.3d at 328; see also Long, 2015 WL 234021, at *4. Yet the trial court’s comments
30
and questions appear to have arisen from the court’s personal experience with its own
children’s visits to a doctor, not from any confusing testimony provided by the witness
because Dr. Grannum testified consistently that certain documentation was required
before someone other than a parent could bring a child to be seen at the clinic. The trial
court’s need for clarification was based on facts known to the trial court itself—facts it
interjected during the course of its exchange with Dr. Grannum. The trial court’s need
for clarification was not based on evidence that was before the jury. See Clark v. State,
282 S.W.3d 924, 928–29 (Tex. App.—Beaumont 2009, pet. ref'd) (citing Jasper, 61
S.W.3d at 421). The extent of the trial court’s questioning and the interjection of the trial
court’s own experience is cause for concern. See Williams, 89 S.W.3d at 328. The
record shows that the colloquy even engaged a juror who sought to ask a question.
Based on the above, we conclude that the trial court’s comments and questions
were calculated to convey to the jury the court’s opinion on the procedure by which a child
could be seen by any health care provider. By its comments, the trial court indicated its
disbelief in Proenza’s position that he thought he could not seek medical care for A.J.V.
without proper documentation and diminished the credibility of Proenza’s approach to the
case. See Simon, 203 S.W.3d at 590; Hoang v. State, 997 S.W.2d 678, 681 (Tex.
App.—Texarkana 1999, no pet.). So we conclude that the trial court improperly
commented on the weight of the evidence.
Because Proenza did not object to the trial court’s challenged comments on the
weight of the evidence, he did not preserve error. So our review on appeal is for
fundamental error. See Unkart, 400 S.W.3d at 99.
31
2. Fundamental Error and Harm
In support of his fundamental-error argument, Proenza claims that by its comments
to and questions of Dr. Grannum, the trial court violated his right to a fair and impartial
trial; in other words, the trial court’s conduct was so egregious as to deem the judge
biased on the matter of guilt, which harmed him. See Hernandez, 268 S.W.3d at 184;
Simon, 203 S.W.3d at 590; see also Unkart, 400 S.W.3d at 99. Regarding this alleged
bias, Proenza asserts that “the trial judge’s comments undoubtedly influenced the jury’s
verdict” because (1) it negated his defensive theory by attempting to show that he could
have fraudulently obtained medical care, (2) “the jury could not help but be swayed by
[the trial court’s] shocking comments on the weight of the evidence,” and (3) his
“substantial right to a fair and impartial trial was violated by the one person who was to
remain neutral.” See Simon, 203 S.W.3d at 590.
It is apparent from our review of the record that the trial court believed the
procedure for children to be seen for medical care was different from the procedure
described by Dr. Grannum. This witness testified that authorization from the parent was
required before a child would be seen at the clinic where she was employed and where
A.J.V. had been seen as a patient. The trial court challenged this testimony. For
example, the trial court asked of Dr. Grannum, “[D]o you just assume that's the parent
that's bringing the child?”, and commented, “[M]aybe my doctor is very lax because they
let any of my sisters and any of my brothers take my kids . . . [w]hen I am in trial.” The
jury also heard Dr. Grannum respectfully disagree with the trial court’s comments. As
discussed above, the trial court was not attempting to clarify any points of confusion
32
created by Dr. Grannum’s testimony. See Jasper, 61 S.W.3d at 421. Dr. Grannum
testified consistently that a parent needed to bring his child or to give permission to
another to do so. The trial court was not asking Dr. Grannum to repeat something it did
not hear. And we cannot conclude that the trial court’s comments fit within any other
category set forth in Jasper, such that they would not have risen to the level of
fundamental error. See id. For example, the trial court was not attempting to correct a
misrepresentation or misstatement by counsel of previously admitted testimony. See id.
Finally, it was not making comments to maintain control and expedite the trial or to reveal
its irritation at counsel. See id.
The trial court's frequent participation through questions and comments that cover
almost one-third of Dr. Grannum’s twenty-seven pages of testimony tended to give the
jury the impression that the trial court disbelieved this witness’s testimony and, thus, cast
doubt on Proenza’s defensive theory that he needed the permission of the baby’s mother
before he could take A.J.V. to the clinic. “[I]n its zeal and active participation” the trial
court assumed the role of an advocate and lost the neutral and detached role that is
required of a judge. See Williams, 89 S.W.3d at 328; see also Long, 2015 WL 234021,
at *4. The trial court's questions and remarks, including the court’s interjection of facts
based on its own experience, were unnecessary. The parties were satisfied that Dr.
Grannum’s testimony was complete and had asked that the court release her as a
witness. It was only then that the complained-of exchange began. We conclude that
the comments of the trial court, which tainted not only Proenza’s defensive theory but
also the presumption of his innocence in front of the jury or vitiated the jury's impartiality,
33
were fundamental error and required no objection. See id.
The trial court’s questioning conveyed its opinion to the jury regarding one of the
main issues of the case—Proenza’s failure to seek medical care for A.J.V.—and so
influenced the jury’s verdict. See Williams, 89 S.W.3d at 328; see also Long, 2015 WL
234021, at *4. The trial court’s comments showed lack of impartiality; they showed bias
so egregious as to deem the trial court biased on the matter of Proenza’s guilt. See
Hernandez, 268 S.W.3d at 184; Simon, 203 S.W.3d at 590; see also Unkart, 400 S.W.3d
at 99. And we cannot say beyond a reasonable doubt that the trial court’s error did not
contribute to Proenza’s conviction. 5 See TEX. R. APP. P. 44.2(a) (stating that when
reviewing constitutional error for harm, the court must reverse unless it determines
5 The dissent concludes that the error was harmless because “the state of the evidence” rendered
the trial judge’s comments “virtually inconsequential” as to whether Proenza committed the crime.
Specifically, the dissent reasons that even if the trial judge’s comments negated Proenza’s defensive theory
that Su Clinica would not have treated the child without parental authorization, the jury was still
“overwhelmingly likely” to have found Proenza guilty because “he did not offer any explanation” for why he
failed to take the child to the emergency room, even though “undisputed” evidence showed that he could
have done so without parental authorization. We disagree with the dissent’s harmless-error analysis for
three reasons. First, under Texas Rule of Appellate Procedure 44.2(a), we must reverse a non-structural
constitutional error “unless [we] determine [] beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.” See TEX. R. APP. P. 44.(2)(a). Under this standard, “it is the State's
burden, as beneficiary of the error, to prove the error is harmless beyond a reasonable doubt.” Davis v.
State, 195 S.W.3d 311, 317 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Chapman v. California,
386 U.S. 18, 23–24 (1967)). In this case, the State has made no attempt to explain why the error was
harmless beyond a reasonable doubt. And by requiring Proenza to offer an explanation for why he
allegedly failed to take the child to the emergency room, the dissent has in essence shifted the burden onto
him to prove the issue of harm. Second, we do not agree with the dissent that the evidence “undisputedly”
showed that Proenza could have obtained emergency medical care without parental authorization; and
even if Proenza could have done so, that fact alone does not defeat the reasonable possibility that the trial
judge’s comments, which showed a lack of impartiality and bias in favor of the State, “moved the jury from
a state of nonpersuasion to one of persuasion” on the matter of Proenza’s guilt. See Wesbrook v. State,
29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (observing that constitutional error is not harmless beyond a
reasonable doubt “if there was a reasonable possibility that the error, either alone or in context, moved the
jury from a state of nonpersuasion to one of persuasion as to the issue in question”). Third, we do not
share the dissent’s confidence that the error was harmless because the evidence of guilt by omission in
this case was less than overwhelming. See id. (noting that “the presence of overwhelming evidence
supporting the finding in question can be a factor in the evaluation of harmless error”).
34
beyond a reasonable doubt that the error did not contribute to the conviction or the
punishment); Blue v. State, 64 S.W.3d 672, 673 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d) (op. on remand) (finding that it could not say beyond a reasonable doubt that
the error of the trial court had not contributed to the conviction).
D. Summary
We sustain Proenza’s second issue.6
III. CONCLUSION
We reverse the conviction and remand for proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Dissenting Opinion by Justice Garza.
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of July, 2015.
6 Given our disposition of this issue, we need not address the remaining issues and sub-issues,
which include challenges to the trial court’s denial of Proenza’s motion to recuse and its use of “confession”
to describe Proenza’s recorded interview with law enforcement. See TEX. R. APP. P. 47.1.
35
NUMBER 13-13-00172-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ABRAHAM JACOB PROENZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
DISSENTING OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Dissenting Opinion by Justice Garza
I agree with the majority’s conclusions that the evidence was sufficient to support
Proenza’s conviction and that the trial court’s comments during the testimony of Dr. Carol
Grannum constituted fundamental error. However, I respectfully dissent because I
believe that: (1) the error in making the comments was not “structural” such that no harm
analysis is required; (2) the error was harmless under the applicable standard; and (3)
Proenza’s other issues lack merit.
I. PEDIATRICIAN COMMENTS
In Blue v. State, the Texas Court of Criminal Appeals found that comments by the
trial judge were improper because they “tainted appellant’s presumption of innocence in
front of the venire.” 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). The court
of criminal appeals found that this constituted “fundamental error” which may be raised
for the first time on appeal—yet it remanded to the appellate court for further proceedings
rather than rendering a judgment of acquittal or remanding to the trial court for a new trial.
Id. at 133. The appellate court’s subsequent opinion on remand consisted only of a brief
harm analysis. See Blue v. State, 64 S.W.3d 672, 673 (Tex. App.—Houston [1st Dist.]
2001, pet. ref’d) (“Blue II”) (concluding that the error was harmful under Texas Rule of
Appellate Procedure 44.2(a)). The court of criminal appeals’ disposition in Blue shows
that just because an error is “fundamental” does not mean that the error is necessarily
“structural” error that is immune to a harm analysis. See Blue, 41 S.W.3d at 133; see
also Johnson v. State, 169 S.W.3d 223, 236 (Tex. Crim. App. 2005) (noting, in discussing
the right of appellant to testify, that “[c]haracteriz[ation of the right] as ‘fundamental’ does
not necessarily mean that a violation of the right is ‘structural’”). Instead, an error involving
improper comments by a trial judge is subject to a separate harm analysis as prescribed
in Texas Rule of Appellate Procedure 44.2(a), under which we must reverse “unless [we]
determine beyond a reasonable doubt that the error did not contribute to the conviction
or punishment.” TEX. R. APP. P. 44.2(a); see Blue II, 64 S.W.3d at 673; see also Lyssy v.
State, No. 07-10-0474-CR, 2012 WL 4372936, at *1 (Tex. App.—Amarillo Sept. 21, 2012,
order) (not designated for publication) (noting that “inappropriate comments by a trial
2
judge are not structural errors, immune from a harmless error analysis”).
Considering the entirety of the record, I would determine beyond a reasonable
doubt that the trial court’s comments regarding her experiences with her own pediatrician
did not contribute to Proenza’s conviction or punishment. See TEX. R. APP. P. 44.2(a).
The comments made by the trial court may have indicated that the judge was biased as
to the issue of whether Proenza could have taken A.J.V. for a follow-up at Su Clinica
without parental authorization. But I do not believe that these isolated comments
demonstrated that the judge was partial overall, or biased as to the issue of Proenza’s
guilt in general. Cf. Johnson, 169 S.W.3d at 235 (Tex. Crim. App. 2005) (noting that lack
of an impartial trial judge is structural error immune to harm analysis).
More importantly, the state of the evidence rendered the comments virtually
inconsequential as to whether Proenza was guilty of the charged offense. Grannum
testified that, if Proenza had shown up at Su Clinica without parental authorization but
with the child in acute distress, the clinic would have called EMS and directed Proenza to
take the child to the emergency room. Further, it was undisputed that Proenza could
have taken A.J.V. to a hospital emergency room without parental authorization. Proenza
did not take the child to the emergency room, and he did not offer any explanation for why
he failed to do so. Accordingly, even if the trial court had never made the comments, the
jury was still overwhelmingly likely to have reached the same ultimate conclusion—i.e.,
that Proenza intentionally or knowingly caused A.J.V. serious bodily injury by omission.
For the foregoing reasons, I would find that the error in this case, though
“fundamental” such that no trial objection was required to preserve the issue on appeal,
was not “structural” error for which no harm analysis is required. And, applying the harm
3
analysis mandated by the rules of appellate procedure, I would find that the error is
harmless. See TEX. R. APP. P. 44.2(a); Blue, 41 S.W.3d 129, 132; Blue II, 64 S.W.3d at
673. I would overrule this part of Proenza’s second issue.
II. “CONFESSION” COMMENTS
Because I would find that the trial court’s comments regarding her experiences
with her own pediatrician to be harmless error, I would proceed to address the remainder
of Proenza’s arguments on appeal.
Proenza additionally argues by his second issue that the trial court improperly
commented on the weight of the evidence by repeatedly referring to his recorded
interview with law enforcement as a “confession.” See TEX. CODE CRIM. PROC. ANN. art.
38.05 (West, Westlaw through ch. 46, 2015 R.S.) (providing that, before the return of the
verdict, the trial judge shall not “make any remark calculated to convey to the jury his
opinion of the case”). Proenza complains that the trial court’s comments “undoubtedly
influenced the jury’s verdict” because they “implie[d] approval of the State’s argument,
indicate[d] disbelief in the defense’s position, and diminishe[d] the credibility of the
defense’s approach to the case.”
In response, the State asserts, among other things, that Proenza did not preserve
error on this issue because he did not object to the trial court’s comments at the time they
were made. See Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). Proenza
also argues, as he did with respect to the pediatrician comments, that the error in making
the “confession” comments was “fundamental” such that his counsel’s failure to object at
trial did not waive the error.
4
A. The Comments
The following exchange occurred in the presence of the jury before the State
played a DVD recording of one of Proenza’s interviews with law enforcement:
THE COURT: Let me explain this to the jury. Ladies and gentlemen of
the jury, the original confession was recorded on a VHS
tape. Y’all are familiar with a VHS tape? All right. Let the
record indicate that all of the jurors nodded affirmatively.
Of course, technology has improved from VHS to digital,
and so [defense counsel] and his client have seen the
VHS tape. Today the State appears with it on a DVD or
a CD player.
[Prosecutor]: Yes, Your Honor.
THE COURT: On a CD player. And so [defense counsel], without
seeing this data on the CD or DVD, is unable to verify that
it’s the same information. Although I have not admitted it,
I’m going to play it, because the only way for [defense
counsel] to see that it hasn’t been changed, as far as the
contents is concerned, other than the form, is by playing
it. And so we’re going to play it and then we’ll ask
[defense counsel] if that’s the same confession that he
saw when it was on VHS tape.
At first, the DVD was inaudible, and attempts were made to find an alternate player. After
the matters were resolved, the trial court said: “All right. So let’s rewind to the beginning
and start playing that. And if it doesn’t get any better, then you don’t have a confession.”
The recording was played in its entirety and admitted, without objection, as State’s Exhibit
33.
The only other reference to Exhibit 33 as a “confession” was by defense counsel
when he asked Investigator Valerio the following question during his cross-examination:
“You said a while ago that in the interview, or confession, as you call it, on Mr. Proenza,
that he was not concerned about the child?” Investigator Valerio responded, “That’s
correct.”
5
B. Discussion
“A confession is defined as a voluntary declaration by one person to another that
the declarant has committed a crime.” Terry v. State, 420 S.W.2d 945, 947 (Tex. Crim.
App. 1967) (internal quotations and citations omitted). A confession contains “a direct
acknowledgement or responsibility for a crime or an admission of incriminating facts.”
See id. (citing Robinson v. State, 142 Tex. Crim. 636, 639, 155 S.W.2d 811, 812 (1941)
(per curiam)); Cordova v. State, 754 S.W.2d 502, 505 (Tex. App.—San Antonio 1988, no
pet.).
During the interview on which this argument is based, Proenza stated, among
other things, the following: (1) at three months, A.J.V. looked fine; (2) they tried to feed
the child; (3) A.J.V. kept “getting skinnier and skinnier”; (4) compared to other “kids,”
A.J.V. was small; (5) Proenza discussed this with his wife who told him that A.J.V. was
like his brothers; (6) after drinking four or five ounces, A.J.V. would gag and then “it could
come out”; (7) Proenza wondered if A.J.V. was healthy; (8) he was “trying to tell [his] wife,”
and was waiting for papers from his sister-in-law; (9) A.J.V. vomited for about a month
beginning in the middle of July; (10) Proenza asked family members and friends if that
was normal; (11) A.J.V. accepted three eight-ounce bottles of Similac a day and would
just sip others and then drop them; (12) A.J.V. missed his August appointment at the clinic
because Proenza did not have the papers to take him; (13) A.J.V. had a sad demeanor;
(14) when asked if A.J.V. would have been attended to at the hospital if Proenza had
taken him there, Proenza answered, “Yes, Sir”; (15) Proenza agreed that he should have
taken A.J.V. to the doctor and that A.J.V. was his responsibility; and (16) Proenza stated
6
that during the afternoon of the day of his death, A.J.V. “was doing fine. He looked sick,
not that he was actually dying,” like he had the flu or a cold.
Although the State and Proenza referred to this recording as either a statement or
an interview, I believe that the statement was in the nature of a confession because it
contained numerous admissions of incriminating facts. See Terry, 420 S.W.2d at 947
(citing Robinson, 142 Tex. Crim. at 639, 155 S.W.2d at 812); Cordova, 754 S.W.2d at
505. By referring to Proenza’s recorded statement as a confession, the trial court did not
express its approval of the State’s argument, indicate disbelief in Proenza’s position, or
diminish the credibility of his approach to the case, as Proenza urges. See Simon v.
State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 38.05. Instead, the court merely described the statement
appropriately as a confession and did not violate article 38.05 by impermissibly
commenting on the weight of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.05.
Because I would conclude that the trial court’s use of the word “confession” was not a
comment on the weight of the evidence, I would not reach Proenza’s fundamental-error
argument on this matter. I would overrule Proenza’s second issue in its entirety.
III. MOTION TO RECUSE
By his third issue, Proenza complains that his motion to recuse the trial judge
should have been granted because she was partial and biased. See TEX. R. CIV. P.
18b(b)(1–2). On appeal, Proenza claims that he established that the impartiality of the
trial judge might reasonably be questioned and that she was biased against him based
on the following: (1) the trial judge questioned his decision to hire a new attorney prior to
trial and stated on the record that Proenza could not hire a different attorney if he became
7
dissatisfied with his new attorney; and (2) during her political campaign, the trial judge
“publicly chastised her opponent for giving defendants probation in child abuse cases.”
See id. The State claims, in relevant part, that the motion to recuse was properly denied
because Proenza failed to timely file his motion. See TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii).
I agree with the State.
A. Applicable Law and Standard of Review
A motion to recuse “must be filed as soon as practicable after the movant knows
of the ground stated in the motion.” TEX. R. CIV. P. 18a(b)(1)(A). In addition, the motion
must not be filed “after the tenth day before the date set for trial . . . unless, before that
day, the movant neither knew nor reasonably should have known . . . that the ground
stated in the motion existed.” TEX. R. CIV. P. 18a(b)(1)(B)(ii). These procedural
requirements are mandatory, and a party who fails to comply waives his right to complain
of a judge's failure to recuse herself. Vickery v. Tex. Carpet Co., Inc., 792 S.W.2d 759,
763 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (citing Gaines v. Gaines, 677
S.W.2d 727, 730 (Tex. App.—Corpus Christi 1984, no writ)).
On appeal, we review the denial of a motion to recuse under an abuse of discretion
standard. TEX. R. CIV. P. 18a(j)(1)(a). The test for abuse of discretion is not whether, in
the opinion of the reviewing court, the facts present an appropriate case for the trial court's
action; rather, it is a question of whether the trial court acted without reference to any
guiding rules or principles. Mosley v. State, 141 S.W.3d 816, 834 (Tex. App.—Texarkana
2004, pet. ref’d).
8
B. Substitution of Counsel
As a basis for his motion to recuse, Proenza asserted that the trial judge violated
his right to retained counsel of choice. Proenza complains of the following comments
made by the trial judge on August 30, 2012, at the hearing on his motion to substitute
counsel:
And, Mr. Proenza, the way I feel about cases is that—and what I try to
prevent in my Court is lawyers—firing one group and hiring another and
then in three months you fire Mr. Gonzales and hire somebody else and you
continue this case. I believe that justice—trial delayed is justice delayed.
And so we have to finish this case. And so that is my concern. And so I’m
not going to put up with that from you. So are you sure that you want to
move from the Garzas to Mr. Gonzales? Because you’re going to have to
stay with Mr. Gonzales regardless of how this turns out two or three months
down the road, “Oh, I don’t like Mr. Gonzales, I want to go back to the
Garzas, or somebody else,” you're going to be stuck with the lawyer you
have. Because I’m not going to allow lawyers—defendants to just keep
moving around from lawyer to lawyer.
After the trial court made the foregoing comments, she granted Proenza’s motion to
substitute counsel. During the hearing, the trial judge also set a trial date for December
3, 2012 and announcements for November 29, 2012. Proenza did not file his motion to
recuse—which was based, in part, on the trial judge’s comments regarding his right to
hire new counsel—until November 28, 2012. Proenza knew of this ground on August 30,
2012, but chose not to file a motion to recuse on that basis until three months later, within
five days of the scheduled trial setting. See TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii).
C. Political Advertisements
Proenza also moved for recusal on the basis that the trial judge, while running for
office, advertised that defendants in child cases needed tougher punishments. Proenza
specifically complained that the trial judge “repeatedly attack[ed] and criticize[d] the
incumbent [j]udge for having given deferred probation to several defendants who had
9
been charged with some type of offense involving children.” Yet, as Proenza noted in his
motion to recuse, these political advertisements were run in 2008 during the trial judge’s
election campaign.
Proenza was indicted on April 14, 2010, arraigned on May 6, 2010, participated in
pretrial hearings, and filed numerous pretrial motions during 2012, including a motion for
discovery and an application for probation and election to have the jury assess
punishment, both of which were filed after substitution of counsel. Proenza did not file
his motion to recuse until November 28, 2012, although he knew or reasonably should
have known of this ground before then. See TEX. R. CIV. P. 18a(b)(1)(B)(ii).
D. Discussion
Based on the above, I would conclude that the trial court did not abuse its discretion
by denying Proenza’s motion to recuse, because the motion was not timely filed. See
TEX. R. CIV. P. 18a(j)(1)(A). The court acted with reference to the procedural rules set out
in Rule 18a. See Mosley, 141 S.W.3d at 834; see also TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii).
Because the rule 18a procedural requirements are mandatory, see TEX. R. CIV. P.
18a(b)(1)(A), (B)(ii), and because Proenza failed to comply with those requirements, he
has waived his right to complain of the trial judge's failure to recuse herself.1 See Vickery,
792 S.W.2d at 763 (citing Gaines, 677 S.W.2d at 730). I would overrule Proenza’s third
issue.
1 Because my discussion of the procedural requirements of rule 18a is dispositive of this issue, I
do not address the merits of Proenza’s motion to recuse. See TEX. R. CIV. P. 47.1.
10
IV. AUTOPSY PHOTOGRAPHS
By his fourth issue, Proenza contends that the trial court abused its discretion when
it admitted State’s Exhibits 19 through 22 because they were “gruesome” autopsy photos
which only served to inflame the jury. I disagree.
A. Applicable Law
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” TEX. R. EVID. 401; Montgomery v. State, 810 S.W.2d
372, 386 (Tex. Crim. App. 1990) (op. on reh’g) (en banc). “Evidence which is not relevant
is inadmissible.” TEX. R. EVID. 402. But even evidence that is relevant may be excluded
“if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” TEX. R. EVID. 403. And while evidence
offered by an opposing party will inherently be prejudicial, “unfair prejudice” results when
the evidence tends to cause a decision to be based on an improper basis, such as
emotion, “without regard to the logical probative force of the evidence.” Casey v. State,
215 S.W.3d 870, 879–80, 883 (Tex. Crim. App. 2007); Reese v. State, 33 S.W.3d 238,
240 (Tex. Crim. App. 2000) (explaining that unfair prejudice occurs when evidence
provides “an undue tendency to suggest that a decision be made on an improper basis”).
Specific as to photographs, “[i]f there are elements of a photograph that are genuinely
helpful to the jury in making its decision, the photograph is inadmissible only if the
emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo v.
State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).
11
B. Standard of Review
The decision to admit or exclude photographic evidence is generally left to the
sound discretion of the trial court. Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App.
2005) (citing Erazo, 144 S.W.3d at 488; Williams v. State, 958 S.W.2d 186, 195 (Tex.
Crim. App. 1997) (en banc)).
The court of criminal appeals has provided a nonexclusive list of four factors to
consider when analyzing a challenge to evidentiary rulings under rule 403: (1) the
probative value of the evidence; (2) the extent that the evidence may “impress the jury in
some irrational, but nevertheless indelible way”; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d
782, 787 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389–90. Additionally, when
deciding whether autopsy photographs are unfairly prejudicial, we should consider the
number of photographs, the size of the photographs, whether they are in color or black
and white, the detail depicted in the photo, the gruesomeness of the photo, whether the
body is naked or clothed, and whether the body had been altered by the autopsy in a way
that would be detrimental to the appellant. Shuffield, 189 S.W.3d at 787; Prible, 175
S.W.3d at 734; Reese, 33 S.W.3d at 241.
C. Discussion
Outside the presence of the jury, the State offered color autopsy photographs that
depicted A.J.V.’s intestines and brain. The State explained that it offered these exhibits
to show malnutrition and not some other cause of death. Defense counsel objected to
“the grossness of [Exhibits 19 through 22], which actually would just inflame the minds of
the jury and be used for no other purpose than for that.” The trial court overruled
12
Proenza’s objection. When the State offered Exhibits 19 through 22 before the jury,
defense counsel again objected on the same bases: prejudice and relevance. The trial
court again overruled Proenza’s objections and admitted the exhibits.
1. Relevance
Autopsy photographs are generally admissible as relevant in helping the medical
examiner explain the cause of death when there is some disputed fact concerning the
victim’s death. See Rayford v. State, 125 S.W.3d 521, 530 (Tex. Crim. App. 2003) (finding
no error in the admission of autopsy photographs that showed pre-death injuries
consistent with kidnapping theory); Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App.
2001) (explaining that the autopsy photographs in a capital murder case showed the
child’s extensive internal injuries which could not have been caused in the manner
defendant had explained to them). The controversies in the present case were how A.J.V.
died and whether Proenza failed to feed A.J.V. or to seek medical care for him and, thus,
caused his death.
Proenza argues that the photographs of A.J.V.’s internal organs were not
necessary to aid the jury in determining the cause of death. Yet according to Dr. Farley’s
testimony, Exhibit 19 was a photograph of A.J.V.’s intestine “that you can actually see
through.” She explained that the intestine is “usually covered in yellow adipose tissue or
fatty tissue.” But in this case “[i]t’s not covered with fat as we would get in—in other
infants,” and it is “a sign of malnutrition, severe malnutrition, because it’s using the fat
source of the body to—to compensate for the fact that it’s not getting food . . . .” Regarding
Exhibit 20, Dr. Farley testified that it was “an up-close picture of the brain” showing a
“subarachnoid hemorrhage,” most likely a sign of trauma. Although something happened
13
to the child’s head, in Dr. Farley’s opinion, “it did not cause the death of the child.” She
further explained that Exhibit 21 was the large and small intestine “after it was opened.”
Dr. Farley testified that although there is “usually a pasty material throughout the bowel,”
she found “almost nothing left in the intestine at all.” The only thing she “actually found
in the bowel was a pepper that was green, a little piece of pepper,” as seen in Exhibit 22.
Proenza claimed that A.J.V. was fed and that he took care of A.J.V. However, the
photographs supported the medical examiner’s explanation as to the cause of death
being dehydration and malnutrition.
Based on the above, I would conclude that the photographs admitted as State
Exhibits 19 through 22 were relevant to explain the State’s theories of the case and were
probative of disputed facts. See TEX. R. EVID. 401, 402. They were fully explained to the
jury as part of Dr. Farley’s examination of the alleged injury. And there were elements of
each photograph, discussed above, that would have been “genuinely helpful to the jury
in making its decision.” See Erazo, 144 S.W.3d 487.
2. Unfair Prejudice
Having determined that the evidence was relevant, I turn to whether the danger of
unfair prejudice substantially outweighed the probative value; in other words, whether “the
emotional and prejudicial aspects [of the photographs] substantially outweigh the helpful
aspects.” Id. at 491–92; see TEX. R. EVID. 403.
Relying on Prible, Proenza argues that we should follow its holding that autopsy
photographs of children’s organs are unfairly prejudicial and should not be admitted. See
175 S.W.3d at 736. Proenza notes that, in Prible, the medical examiner testified that the
cause of each child’s death was smoke inhalation, which was supported by an autopsy
14
report; therefore, the photographs were not needed by the State. Id.; see TEX. R. EVID.
403 (excluding relevant evidence if its probative value is substantially outweighed by,
among other things, the “needless presentation of cumulative evidence”).
Proenza’s reliance on Prible is misplaced. The appellant therein was charged with
the deaths of the children’s parents, not the deaths of the children. Prible, 175 S.W.3d at
726. And no one disputed that the children died of smoke inhalation, which was the
ostensible purpose for the children’s autopsy photographs being admitted. Id. at 736.
Instead, the Prible Court concluded that
the minimal probative value of the autopsy photographs [of the children], if
any, was substantially outweighed by the danger of unfair prejudice,
confusion of the issues—by unduly focusing the jury’s attention upon the
deaths of the children rather than the deaths of their parents for which
[Prible] was charged—and needless presentation of cumulative evidence.
Id. Based on this reasoning, the Prible Court determined that “[t]he trial court abused its
discretion in admitting the [autopsy photographs of the children] over appellant’s [r]ule
403 objection.” Id. The present case is distinguishable because Proenza complains of
the admission of autopsy photographs of A.J.V., the child that he was accused of seriously
injuring. And Proenza’s only rule 403 objection was based on undue prejudice; i.e., that
the exhibits would inflame the minds of the jury. See TEX. R. EVID. 403. Proenza did not
object that the probative value of the autopsy photographs was substantially outweighed
by the danger of confusing the issues or needlessly presenting cumulative evidence, as
did the appellant in Prible. See id.; Prible, 175 S.W.3d at 736.
Of the four non-exclusive factors considered when examining a rule 403 challenge,
I have already concluded that the autopsy photographs were relevant to explain the
State’s theories of the case and probative of disputed facts; thus, consideration of the first
factor weighs against a finding of abuse of discretion. See Shuffield, 189 S.W.3d at 787;
15
Montgomery, 810 S.W.2d at 389–90; see also TEX. R. EVID. 402. I have also concluded
that there were elements of each photograph that would genuinely help “the jury in making
its decision.” See Erazo, 144 S.W.3d 487. And “[v]isual evidence accompanying
testimony is most persuasive and often gives the fact finder a point of comparison against
which to test the credibility of a witness and the validity of his conclusions.” Chamberlain
v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (en banc). For these reasons, I
further conclude that the State needed the autopsy photographs; therefore, consideration
of the fourth factor also weighs against a finding of abuse of discretion. See Shuffield,
189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389–90. As to the third factor, a review
of the record reveals that the State needed little time to develop a foundation for
introduction of the challenged photographs; this weighs also against a finding of abuse of
discretion. See Shuffield, 189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389–90.
Proenza asserts that the admission of Exhibits 19 through 22 “would inflame the
minds of the jury.” By his assertion, he is arguing that the second Shuffield factor weighs
in favor of exclusion. See Shuffield, 189 S.W.3d at 787. The record contains 8½ x 11
color photocopies of the exhibits, but the record does not reflect the size of the originals.
See id.; Prible, 175 S.W.3d at 734; Reese, 33 S.W.3d at 241. Although the photographs
may have been unpleasant to view, they accurately represented the internal organs of
the child as damaged by Proenza’s fatal omissions. See Shuffield, 189 S.W.3d at 787;
Prible, 175 S.W.3d at 734; Reese, 33 S.W.3d at 241. And while the photographs were
graphic and reflected alterations of the organs due to autopsy procedures, I do not believe
that they were likely to have created an emotional response that substantially outweighed
the helpful aspects of the photographs. See Erazo, 144 S.W.3d at 491–92; see also
16
Casey, 215 S.W.3d at 879–80, 883. Instead, the prejudicial effect of the photographs, if
any, did not substantially outweigh their probative value. See TEX. R. EVID. 403; see also
Erazo, 144 S.W.3d 487; Shuffield, 189 S.W.3d at 787; Prible, 175 S.W.3d at 734; cf.
Reese, 33 S.W.3d at 240–44 (concluding that the probative value of photos of a murdered
woman and her unborn child lying in a coffin was substantially outweighed by unfair
prejudice). A trial court does not abuse its discretion simply because it admits gruesome
photos. Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004); Sonnier v. State,
913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc). I would conclude that the trial
court did not abuse its discretion when it admitted the State’s Exhibits 19 through 22 into
evidence; therefore, I would overrule Proenza’s fourth issue.
V. CONCLUSION
Because I would affirm the trial court’s judgment, I respectfully dissent.
DORI CONTRERAS GARZA,
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of July, 2015.
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