Shakira Lynn Bickerstaff AKA Shakira Bickerstaff v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-17-00380-CR
________________________
SHAKIRA LYNN BICKERSTAFF AKA SHAKIRA BICKERSTAFF, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1431860D; Honorable Scott Wisch, Presiding
October 23, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following an open plea of guilty, Appellant Shakira Lynn Bickerstaff aka Shakira
Bickerstaff, was convicted by the trial court of injury to a child, a first degree felony,1 and
sentenced to forty years confinement. In presenting this appeal, counsel has filed an
1 TEX. PENAL CODE ANN. § 22.04(a)(1), (c)(1), (e) (West Supp. 2018).
Anders2 brief in support of a motion to withdraw. 3 We affirm and grant counsel’s motion
to withdraw.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, it reflects no potentially
plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling
authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813
(Tex. Crim. App. 1978). Counsel has demonstrated that he has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying her of the right to file a pro se response if she desired to do so,
and (3) informing her of the right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408.4 By letter, this court granted Appellant an opportunity to
exercise her right to file a response to counsel’s brief, should she be so inclined. Id. at
2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
4 Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22, 411 n.35. The duty to send the client a copy of this court’s decision is an informational one, not a
representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of
appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
2
409 n.23. In this cause, Appellant did file a response. The State, however, did not favor
us with a brief.
BACKGROUND
Late at night on August 19, 2014, Appellant’s boyfriend made a call to 911 when
he discovered that Appellant’s ten-month-old son would not wake up. When officers and
first responders arrived at the residence, they discovered the child lying on the couch
unresponsive. He exhibited numerous visible injuries such as bruises, abrasions,
scratches, and cuts on his face and body.
Appellant was interviewed by one of the officers. In recalling the events of that
day, she told the officer the infant had fallen from a bed and twisted his arm earlier in the
day. According to her, the infant often sustained injuries from falls and from playing with
his older sister.
ANALYSIS
Appellant was initially charged with three separate counts of causing the death of
her son who was under the age of ten, a capital offense.5 The State gave notice that it
would not seek the death penalty; however, it would seek a deadly-weapon finding.
During plea negotiations, the State added a fourth count to the indictment alleging that
Appellant knowingly caused serious bodily injury to a child younger than fifteen years old
by striking the child with or against a hard object or surface or by impeding his normal
5 TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp. 2018). All references to “section” or “§” are
references to the Texas Penal Code.
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breathing with her hand.6 In exchange for Appellant’s open plea of guilty, the State
waived the three original counts in the indictment, proceeded on the new count, and
agreed not to pursue a deadly-weapon finding.
The elements of the offense, as charged, are that Appellant knowingly caused
serious bodily injury to a child fourteen years of age or younger. § 22.04(a)(1), (c)(1).
“Serious bodily injury” is defined as bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ. § 1.07(a)(46).
At the punishment phase, the medical examiner testified she ruled the cause of
death to be battered infant syndrome indicating “multiple episodes of abuse over time”
and that the manner of death was a homicide.7 She testified the victim showed signs of
trauma consistent with a hand being placed over the nose and mouth resulting in
asphyxiation which posed a substantial risk of death. The infant also had many healed
scars and injuries, fractured ribs, and a fracture to his skull which caused swelling in his
head. The swelling was consistent with impact on a hard, flat surface sufficient to cause
death. She also testified the victim had too many injuries of different ages for an infant
who was not yet mobile.
6 We note that the amended indictment erroneously alleges “a child younger than 15 years of age,”
when the offense of injury to a child applies to a child fourteen years of age or younger. § 22.04(c)(1). This
defect in the indictment does not rise to the level of plausible reversible error because (1) Count One of the
same indictment alleged that the victim was under ten years of age and the evidence established that the
victim was actually under one year of age and (2) Appellant failed to preserve error by not objecting to the
defect prior to the commencement of a trial on the merits. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b)
(West 2005).
7 Prior to a full examination of the child, the medical examiner had expressed to one of the police
officers that she could not yet determine if the death was an accident or a homicide.
4
At the conclusion of the punishment phase, defense counsel asked for ten years
deferred adjudication while the State argued for a life sentence. The court assessed a
forty-year sentence.
ANALYSIS
By the Anders brief, counsel maintains that after his comprehensive review of the
record, there are no arguable grounds to present on appeal. According to counsel, the
charging instrument does not present plausible reversible error, the evidence is sufficient
to support Appellant’s conviction, and the forty-year sentence is within the statutory range
of punishment.
When we have an Anders brief by counsel and a pro se response by an appellant,
we have two choices. We may determine that the appeal is wholly frivolous and issue an
opinion explaining that we have reviewed the record and find no reversible error; Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders, 386 U.S. at 744),
or we may determine that arguable grounds for appeal exist and remand the cause to the
trial court so that new counsel may be appointed to brief issues. Id. (citing Stafford v.
State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991)).
This court has also conducted an independent examination of the record to
determine if there are any non-frivolous issues which might support the appeal. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re
Schulman, 252 S.W.3d at 409; Stafford, 813 S.W.2d at 511. We have found no such
issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After
reviewing the record, counsel’s brief, and Appellant’s response, we agree with counsel
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that there are no plausible grounds for reversal of Appellant’s conviction. See Bledsoe,
178 S.W.3d at 826-27.
CONCLUSION
Accordingly, the trial court’s judgment is affirmed and counsel's motion to withdraw
is granted.
Patrick A. Pirtle
Justice
Do not publish.
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