No. 14-08-00126-CR
Opinion filed September 24, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 1078046.
Panel consists of Justices FROST, BROWN, and BOYCE.
JEFFREY V. BROWN, Justice.
Brien Roberts, the appellant, was convicted of injury to a child and sentenced to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Roberts appeals his conviction contending that (1) the evidence at trial is factually insufficient to support his conviction, (2) Roberts was egregiously harmed by the omission of an instruction from the punishment phase jury charge, and (3) he received ineffective assistance of counsel during both the guilt and the punishment phases of his trial. We affirm.
I
This case involves multiple serious injuries to a two-year-old girl which ultimately caused her death. On July 25, 2006, Forresa Kindley agreed to let her two daughters, A. and the complainant, spend the night at the home of Kindley's life-long friend Desirae Tuffley. Kindley and Tuffley were very close, and Kindley's daughters considered Tuffley an "auntie." In fact, the girls had spent the night at Tuffley's home on many prior occasions. Tuffley shared her apartment with Roberts, who was her fiancé at the time. During the early evening on the following day, the complainant became unconscious and unresponsive while at the home of Tuffley and Roberts. The complainant was taken by ambulance, first to Houston Northwest Medical Center, and later to Texas Children's Hospital. The complainant was pronounced brain dead on the morning of July 27. An autopsy revealed that the complainant had died as a result of a massive head trauma that caused a fractured skull, hemorrhaging, and brain swelling. Roberts was charged with injury to a child. A jury found Roberts guilty. The range of punishment was confinement for five to ninety-nine years or life, with the option to recommend community supervision if the punishment assessed was ten years or less. The State asked the jury to assess punishment at life imprisonment, and defense counsel argued for five to ten years with a recommendation of community supervision. The jury assessed punishment at twenty years' confinement. II
Roberts appeals his conviction on four grounds: (1) the evidence is factually insufficient to prove that Roberts caused bodily injury to the complainant; (2) Roberts was egregiously harmed by the omission from the punishment phase jury charge of an instruction concerning the State's burden of proof on evidence of extraneous offenses and bad acts; (3) Roberts received ineffective assistance of counsel during the guilt phase of the trial when his trial counsel failed to request limiting instructions concerning extraneous offenses; and (4) Roberts received ineffective assistance of counsel during the punishment phase of the trial when his trial counsel failed to request limiting instructions concerning extraneous offenses. A
In his first issue, Roberts contends that the evidence produced at trial is factually insufficient to prove that he caused bodily injury to the complainant. Specifically, Roberts contends that he was alone with the complainant for only a few minutes on the day in question, under circumstances that would have made it impossible for him to inflict the complainant's injuries. Further, Roberts asserts that the complainant had exhibited no injuries before he left for work that morning, leaving Tuffley alone with the complainant for more than five hours. Finally, Roberts argues that evidence of other peculiar circumstances make it more likely that Tuffley inflicted the fatal injuries on the complainant. The State responds that the medical evidence demonstrates the complainant died as a result of massive blunt force head injuries, and that Roberts was alone with the complainant moments before she lost consciousness. Further, the medical evidence shows that the complainant's injuries could not have been caused by a simple accident, or rough play with another. Finally, the State argues that Roberts lacked credibility as a witness based on the inconsistencies between his statements to police and his trial testimony. Consequently, the State contends that the evidence is factually sufficient to support Roberts's conviction. On direct appeal, a court must begin its factual-sufficiency review with the assumption that the evidence is legally sufficient under Jackson v. Virginia, 443 U.S. 307 (1979). Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We view all the evidence neutrally. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.-Houston [14th Dist.] 2008, pet ref'd). In conducting the analysis, we discuss the evidence which the appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Newby, 252 S.W.3d at 435. Although we may disagree with the jury's conclusion, we must avoid substituting our judgment for that of the jury. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Newby, 252 S.W.3d at 435. It is not enough for this court to harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. We must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict before we are justified in exercising our appellate fact jurisdiction to order a new trial. Id. We begin our review by considering the medical evidence presented at trial. The State presented the testimony of three doctors concerning the nature of the complainant's injuries. Dr. Morna Gonsoulin, an assistant medical examiner with Harris County, testified that she performed an autopsy on the complainant's body. Dr. Gonsoulin stated that this autopsy revealed that, while the complainant had received blows to at least five different areas of her body, her death was caused by subdural (between the scalp and the skull) and subarachnoid (inside the skull) hemorrhaging brought about by a blunt force head injury. The State also presented testimony from Dr. Renan Ornellena, a pediatric trauma specialist at Texas Children's Hospital, who examined and treated the complainant. Both Dr. Gonsoulin and Dr. Ornellena described how a powerful blow to the complainant's head fractured her skull, causing the hemorrhaging and also swelling of her brain. Dr. Libby George, an emergency room specialist at Houston Northwest Medical Center, who also examined and treated the complainant, testified that radiology tests performed at her hospital revealed "severe" bleeding on the brain caused by a forceful blow to the head. Both Dr. Ornellena and Dr. George described the complainant's head injury as similar to those seen with children who were involved in high-speed car accidents, or who have fallen from several stories. All three doctors testified that such a significant blow to the head — forceful enough the fracture the complainant's skull — likely would cause immediate unconsciousness. In the rare event that the complainant was not rendered immediately unconscious, she would not have been able to act "normally." Dr. Ornellena testified that such a victim, if still conscious, would not look sleepy, but rather would "look like [she is] dying," with symptoms such as labored breathing. Dr. Ornellena stated that such a victim could not walk around. On cross-examination, Dr. George stated that the possibility of the complainant remaining conscious after such a blow to the head was "a hard question." Dr. George stated that it was possible that the complainant could have regained consciousness briefly, but would have gone "down hill" rapidly after that. Further, Dr. George testified that, while she could not be "one-hundred percent certain" that the victim of such a blow would be unable to walk, it was "highly unlikely." In light of this uncontroverted testimony, we consider the evidence concerning the events immediately prior to the complainant's loss of consciousness on the evening of June 25. There was testimony from three witnesses concerning the events of that period: Roberts, Tuffley, and Rochelle Cook. Each witness told generally the same story about the events of that evening; however, significant differences existed in each person's account of critical details of the incident. Both Roberts and Tuffley agreed that when Roberts came home from work around 5:20 p.m., Tuffley and the girls were in the bedroom watching television. Roberts went into the kitchen to cook some noodles for himself and the girls. Roberts testified that, because he came home to find Tuffley and the girls in exactly the position they were in when he had left for work, he was concerned that they had not moved or eaten since 11:00 am. Tuffley said she told him that she had tried to feed the complainant, but that she had not eaten more than a few mouthfuls. It is here that Roberts's and Tuffley's accounts begin to diverge. According to Tuffley, Roberts made some noodles for both himself and the complainant. But when the complainant refused to eat her noodles, Roberts became angry with her. Tuffley claimed that she heard the complainant crying and that she came to her defense, causing Roberts to become angry at Tuffley's interference. Tuffley testified that the complainant was not emotionally close to Roberts and did not like being around him. Tuffley also stated that Roberts resented the fact that the complainant was more comfortable with Tuffley than with him. Roberts testified that he was very close to the complainant, that they frequently played and danced together, and that the disagreement over the noodles was minor. According to both Roberts and Tuffley, Roberts then went for a walk outside the apartment taking the complainant with him to get some fresh air. Roberts testified that he carried the complainant the whole time. As they stepped outside the apartment, Roberts said he saw the complainant's grandmother drive up to another apartment across the parking lot. He pointed this out to the complainant, asking her if she saw her grandmother. Roberts testified that she nodded her head in response to him. But the grandmother did not see them, and drove away before they could talk to her. Roberts said that he then took the complainant over to where some of his friends were standing. Roberts stated that he talked with his friends for a few minutes, and that the complainant played and interacted with his friends. Roberts testified that while the complainant had been drifting in and out of sleep earlier, she seemed to be awakening now that they were outside the apartment walking about. Tuffley testified that Roberts and the complainant were outside the apartment for about ten minutes. Roberts stated that he returned to the apartment and laid the complainant down on the bed next to Tuffley and A. Both Roberts and Tuffley testified that they ordered a pizza, and then talked inside the apartment for a little while. Tuffley then took the girls outside to pay for the pizza when she thought she saw the delivery driver arrive. Seeing that the driver went to another apartment, Tuffley took the girls to Cook's apartment, located across the parking lot and in the same complex. Cook was a close friend of Tuffley and Roberts's cousin. Cook testified that she and Roberts grew up together "like brother and sister." On direct examination, Cook testified that Tuffley brought the girls over to her apartment after 5:00 p.m., asking for treats for the girls. Cook stated that the complainant looked like she was sleeping as Tuffley carried her. Tuffley said she and the girls were at Cook's apartment for about a half hour before they all returned to Tuffley's apartment. All three witnesses agreed that as Tuffley and Cook walked across the parking lot, they met Roberts returning from his car. They all ascended the stairway to Tuffley's and Roberts's apartment, but did not go inside immediately. The group stood or sat outside on the stairway and porch area talking amongst themselves. All three witnesses agreed that Roberts then went inside, presumably to use the bathroom. According to both Roberts and Cook, Roberts returned a few minutes later saying that the toilet was not working. He asked Cook if she had a plunger, and Cook replied that she did. Then, according to both Roberts and Cook, the two women went back to Cook's apartment to retrieve the plunger, with Tuffley carrying the complainant. Roberts and A. remained outside Roberts's apartment. Cook, Tuffley, and the complainant returned a few minutes later, delivering the plunger to Roberts. At this point, the witnesses' accounts begin to differ more significantly. 1
According to Tuffley, Cook remained at the foot of the stairs, and Tuffley sat down on the first step from the top with her back to the wall so that she could see inside the apartment. Tuffley testified that A. and the complainant had gone inside the apartment. She further testified that Roberts then walked inside the apartment, presumably to use the bathroom, and was gone for about three minutes. Roberts emerged from the apartment and announced, "It's fixed," which Tuffley inferred to mean the toilet. Tuffley stated that A. and the complainant then came back to the door and asked for some ice. According to Tuffley, Roberts then went back into the apartment to get ice for the girls. Tuffley testified that she could see into the apartment, but not into the kitchen. A minute or so later, Tuffley could see A. eating some ice. But neither of the girls came back to the front door. Tuffley stated that she assumed they had gone into the bedroom. Tuffley further testified that while Roberts remained in the apartment, she could not see whether he was in the kitchen or the bathroom. When Roberts's defense counsel cross examined her, Tuffley again stated that, while she could see into the apartment, she could not see into either the kitchen or the bathroom. Less than ten minutes later, according to Tuffley, Roberts emerged from the apartment and said, "[Complainant] said she was tired and so I'm going to put her to sleep." Tuffley then saw Roberts lay the complainant on the couch and wrap her in a blanket. At this time, Tuffley said the complainant's eyes were closed and she was not moving. Then A. came outside and Tuffley asked her to check on the complainant. A. went inside, returned, and said that the complainant was still asleep. At that point, Tuffley stated that she went indoors to awaken the child, concerned that she had already slept too much throughout the day. Tuffley found the complainant unconscious and unresponsive — a state from which she never recovered. 2
According to Cook, after she, Tuffley, and the complainant returned with the plunger, she handed the plunger to Roberts. Cook stated that she did not go inside the apartment, but rather stood in the doorway. Tuffley, on the other hand, went inside the apartment and stood near the sofa. Cook testified that Roberts then took the plunger and went into the bathroom, presumably to fix the toilet. Cook stated that while Roberts was in the bathroom, Tuffley put the complainant down on the floor, steadied her, and that the complainant then walked toward the back of the apartment where the bedroom and bathroom were located. According to Cook, immediately after the complainant walked around the corner and out of Cook's sight, Roberts walked back out with her in his arms. Cook testified that Roberts asked her, "Mama are you alright?" Cook said that the complainant was not crying but looked very drowsy and "out of it." Cook further testified that, in response to Roberts, the complainant said, "Uncle Brien, I'm tired." According to Cook, the complainant said this three or four times. Roberts then carried the complainant over to the sofa and laid her down. Cook stated that Tuffley then walked over to the complainant and found her to be asleep. Cook stated that, at the time, she was thinking a child "shouldn't fall asleep that quick." The complainant, however, was actually unconscious and unresponsive. Cook testified that about thirty minutes elapsed from when she handed the plunger to Roberts until the complainant was discovered to be unconscious. 3
Roberts's testimony closely matched that of Cook. But Roberts did not state that either Tuffley or Cook had entered the apartment. Instead, he recalled them both standing just outside the door. According to Roberts, he took the plunger into the bathroom to work on the toilet. Roberts stated that he could hear the girls' voices behind him, and that he could hear A.'s voice over everyone else's. He further stated that he wasn't worried about the girls because he knew that "[Cook] was at the door watching them." When the State cross examined him, Roberts testified that both Tuffley and Cook were outside the apartment, and that he heard Tuffley tell the girls to go "inside" the apartment. Roberts indicated that Tuffley was standing outside the door on the patio, while Cook was standing below her on the stairs. Roberts testified that, while he was working on the toilet, he heard a sound like a "small thump" — like someone falling hard onto carpeting. Suspecting that the girls were playing roughly, he poked his head out of the bathroom door and saw the complainant "laying on the floor, kind of slumped over." Assuming that she had hurt herself while playing with A., Roberts testified that he picked her up and asked her if she was okay. He asked her if she wanted to lie down in bed, and according to Roberts, she nodded her head. Roberts stated that he then took her into the bedroom of the apartment and laid her down on the bed. Roberts then returned to the bathroom, turned off the lights, and "put up everything." Roberts said he then looked in on the complainant, and that her eyes were closed as if she were sleeping. Not wanting to leave the child alone, Roberts testified that he then carried her into the living room and laid her on the sofa. He then walked outside and tried to listen to Cook and Tuffley's conversation, but was troubled by the fact that the complainant was asleep. Roberts testified that he felt the complainant had been unnaturally sleepy since he had come home from work, in a way that was unlike her usual behavior. Roberts testified that he stood listening to Cook and Tuffley for ten to fifteen minutes, and then asked A. to go inside and check on the complainant. A. went inside and returned to report that the complainant was sleeping. According to Roberts's testimony, he continued to stand outside the apartment listening to Tuffley and Cook's conversation. Roberts stated that Tuffley then started to go inside the apartment, and Roberts asked her to place pillows around the complainant to prevent her from falling off of the sofa. After Tuffley started to move the pillows, Roberts testified that he told Tuffley to just "bring her over here where we are," meaning closer to the door of the apartment. At that point, according to Roberts, Tuffley began speaking to the complainant, took her hand, and immediately dropped it — apparently as she discovered that the complainant was unresponsive. Roberts testified that he then ran into the apartment and tried to wake up the complainant. From this point forward the three witnesses generally agreed upon their efforts to revive the complainant. Roberts called his mother to ask for her advice on how to awaken the child. Tuffley called 9-1-1, her mother, and then the complainant's mother. Ultimately Cook took the complainant in her arms and carried her into the bathroom and attempted to revive her with cold water and a towel. Later, Tuffley's mother arrived, followed quickly thereafter by an ambulance and Kindley. All three witnesses described the complainant's demeanor as "sleepy" or "drowsy" before her loss of consciousness. Tuffley testified that the complainant had been acting sleepy all day. Cook stated that when she saw the complainant early that morning, and again just before noon, she appeared "OK" and was watching television and occasionally walking around the apartment. On direct examination, Cook testified that when she saw Tuffley with the complainant again after 5:00 p.m., the complainant looked "like she was drowsy, like she was sleepy." Cook first testified that the complainant did not look as if she had a cold, but then stated that she looked like she had pneumonia. When Roberts's counsel cross examined her, Cook described the complainant as being "draped" over Tuffley's shoulder, "falling in and out of consciousness." Roberts described both little girls as looking fine before he left for work around 11:30 a.m. that morning. But upon observing her after he got home, Roberts described the complainant as "not [looking] like her normal self." Roberts testified that the complainant was not eating, playing, or displaying her usual amount of energy. But all three witnesses testified to seeing the complainant walking and talking to some degree before being alone with Roberts inside the apartment. Further, Tuffley testified that the complainant did not go to sleep until around 1:00 a.m. the night before, and that she woke up twice during the night. Roberts points to several alleged weaknesses in the State's case for support of his contention that this evidence is factually insufficient to support his conviction for injury to a child. First, he argues that there is no evidence that he had the opportunity to inflict all of the injuries described by the assistant medical examiner. Dr. Gonsoulin testified that she discovered deep tissue bruising and hemorrhaging in five different areas of the complainant's body. Roberts contends that, because he was alone with the child for only a few minutes, he could not have inflicted each of these injuries upon the child without being observed by either Tuffley or Cook. But this argument cannot succeed because, while there is evidence of multiple injuries to the child, the offense for which Roberts was charged related to serious bodily injury and to complainant's head injury. Since both Dr. Ornellena and Dr. Gonsoulin testified that the complainant's skull fracture and additional resulting injuries were caused by one traumatic blow to her head, all that the State was required to prove was the opportunity for Roberts to strike one blow. Further, Roberts's assertion that he lacked the opportunity to deliver the fatal blow is belied not only by Tuffley's testimony, but also his own. Tuffley stated that when Roberts re-entered the apartment to get the girls ice, he was alone with them for "less than ten minutes" before coming out to tell Tuffley and Cook that the complainant was tired. Even Roberts himself described how he was in the bathroom alone working on the toilet, found the complainant in a heap, took her to the bedroom, returned to the bathroom to turn out the lights and clean up, and then went back to the bedroom to observe her. Roberts testified that he watched the complainant sleeping, thought about her condition, and then carried her to the sofa. Roberts gave no estimation for the amount of time he was alone with the complainant, but his testimony is consistent with the approximate time period described by Tuffley. This period of even a few minutes would have been sufficient for Roberts to strike the one traumatic blow to the complainant's head — the subject of the charged offense. Next, Roberts contends that the evidence establishes that the complainant was "perfectly healthy" before he left her alone with Tuffley for five hours. This assertion is made in an attempt to shift blame for the complainant's injuries to Tuffley, on the basis that she had a greater opportunity to inflict the complainant's injuries. But this argument ignores the most compelling facts of Dr. Ornellena's and Dr. Gonsoulin's testimony. Both doctors testified that the traumatic blow to the complainant's head almost certainly would have rendered her unconscious immediately — or very soon thereafter. In any event, the complainant would have appeared to be in an unmistakably desperate condition. Because Roberts, Tuffley, and Cook all testified to seeing the complainant walk and talk after Roberts came home from work, the traumatic blow could not have been delivered while Tuffley was alone with the complainant. Further, Roberts points to several "suspicious" questions about Tuffley's involvement. Roberts asserts that when the complainant "had fallen into unconsciousness and everyone, including Roberts, was frantically trying to resuscitate her, Tuffley went downstairs to write a check for the pizza deliveryman." But under cross-examination, Roberts himself admitted that he never actually saw Tuffley pay the delivery driver. Cook testified that Tuffley went outside to pay for the pizza after the complainant had been removed to the ambulance. But when pressed on this fact, she stated that she was sitting on the sofa when Tuffley's brother told her that the delivery driver was outside. Like Roberts, Cook did not testify to having seen Tuffley pay for the pizza. Tuffley testified that she and Roberts encountered the driver as they were walking to their car to follow the ambulance to the hospital. Tuffley described this encounter as a rushed scene in which they told the driver that there was an emergency and that they had to go the hospital. Roberts's attempt on appeal to portray Tuffley as detached during the crisis, and more interested in pizza, is at odds with the trial testimony. Finally, Roberts points to the relevance of a tattoo that Tuffley obtained after the complainant's death. Tuffley testified that she bears a tattoo on her shoulder reading, "Only God knows my heart. R.I.P. [complainant]." Tuffley testified that this tattoo means that "God knew that I had nothing to do with [complainant's] death and the separation between our families and God knows I would never do nothing like that." By contrast, Roberts asserts that this tattoo could articulate Tuffley's guilt regarding her personal culpability for the complainant's injuries. But Tuffley testified repeatedly to her strong love and affection for the complainant, as well as her sorrow over the complainant's death. Ultimately, the jury had to decide upon the credibility of the three primary witnesses: Tuffley, Cook, and Roberts. None of the witnesses had a perfect memory regarding the events of that night, or their prior descriptions of them. Tuffley did not remember borrowing the plunger from Cook, and testified that she thought she had repaired the toilet herself earlier in the day. Cook admitted to significant differences between her trial testimony and the statement she gave to sheriff's deputies on the night of the incident. In fact, the State pointed out at least nine separate occasions where Cook in her trial testimony described specific details of the incident that she never mentioned in her statement to investigators. Further, Cook's description about Roberts carrying the complainant out to the sofa was completely inconsistent with Roberts's version — that he picked her up, carried her to the bedroom, and laid her down before returning to the bathroom. Cook described this event as immediate, while Roberts described a process involving multiple actions separated by the time he took to examine the complaint and consider her condition. Moreover, Cook testified that she watched Roberts carry the complainant from around the corner, despite Roberts's testimony that Cook was outside the apartment and several steps down from the porch. Finally, Cook testified that, just minutes before the complainant lost consciousness, Cook heard the complainant say, "Uncle Brien, I'm tired," three to four times. This fact would conflict with the testimony of Dr. Ornellena and Dr. Gonsoulin concerning the complainant's ability to speak after her skull was fractured. Tuffley did not mention the complainant talking after she went inside the apartment with Roberts. Roberts's credibility also was challenged. Roberts testified that he gave a voluntary statement to investigators on the night of the incident in which he swore to disclose all relevant information concerning the incident. But several hours later, Roberts again spoke with investigators, this time adding to his original statement and detailing an earlier incident with the complainant on the night before when Roberts thought the complainant might have hit her head on a television in the dark. Later, Roberts admitted that his trial testimony included even more details not covered by either of his prior statements to investigators. Further, Roberts described walking outside the apartment and listening to the women talk for ten to fifteen minutes before sending A. back inside to check on her sister — an account wholly different from both Tuffley's and Cook's descriptions. It is for the jury to determine if they believe that these witnesses are lying or telling the truth. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Because the jury is the sole judge of a witness's credibility, and the weight to be given the testimony, it may choose to believe some testimony and disbelieve other testimony. Id. Due deference must be given to the fact finder's determinations concerning the weight and credibility of the evidence, and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). There was little evidence presented about the specific means Roberts used in committing the offense. But a neutral review of the evidence reveals three important facts that determine our decision. The first is the compelling and unrebutted medical testimony from three doctors that the complainant suffered a powerful blow to the head that almost certainly rendered her immediately unconscious. Second, Roberts was the only person alone with the complainant in the crucial thirty-minute period before she lost consciousness. While the testimony about this period varied, it was between a few minutes to something less than ten minutes. Even this brief period would have been enough for Roberts, a former high school football player standing 5' 10" and weighing 220 lbs., to inflict one traumatic blow. Finally, both Tuffley and Roberts testified that Tuffley and Cook were standing outside the apartment conversing while Roberts was inside the apartment. Consequently, they would not have been able to see what Roberts was doing with the complainant in either the bathroom or the bedroom. Under the applicable standard of review, we cannot say, with some objective basis in the record, that Roberts's conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 414-17. We conclude, therefore, that the evidence is factually sufficient to support Roberts's conviction. We overrule Roberts's first issue. B
In Roberts's second issue he contends that in the punishment phase of his trial, he was egregiously harmed by the omission from the jury charge of a beyond-a-reasonable-doubt instruction regarding extraneous offenses and bad-act evidence. Roberts asserts that such an instruction was necessary because the State presented evidence concerning injuries to the complainant apart from those specified in the indictment. Roberts contends that, as a result of the trial court's failure to give the burden-of-proof instruction, the jury was able to consider the evidence of other bad acts committed by Roberts using a lesser standard resulting in egregious harm from a harsher sentence. The State responds that such an instruction was not required in this case; and that even if the court did err in failing to give it, such error did not result in egregious harm. The review of alleged charge error is a two-step process. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we examine the jury charge to see if the trial court erred. Abdnor, 871 S.W.2d 731. Second, if we find that the trial court erred, we must determine if the harm is sufficient to warrant reversal. Abdnor, 871 S.W.2d 731-32. The degree of harm necessary for reversal depends on whether the error was preserved. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). In the absence of a request or objection, jury-charge error does not require reversal unless it causes "egregious harm." Id. at 171-72. The State may offer punishment-phase evidence as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon 2006 Supp. 2008); Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). When evidence of extraneous offenses or bad acts is admitted during the punishment phase, the trial court is usually required to instruct the jury sua sponte on the reasonable-doubt standard of proof. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). However, if the extraneous offenses constitute same-transaction contextual evidence, then the trial court is not required to instruct the jury sua sponte regarding the reasonable-doubt standard of proof for extraneous offenses and bad acts. See Garza v. State, 2 S.W.3d 331, 335 (Tex. App.-San Antonio 1999, pet. ref'd). Same-transaction contextual evidence imparts to the jury information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). As such, it is admissible to illuminate the nature of the crime alleged. See id. Dr. Gonsoulin testified regarding the injuries to the complainant that she observed during the autopsy of the complainant's body. Dr. Gonsoulin discussed a diagram in her autopsy report that showed the internal injuries she found during the autopsy. Dr. Gonsoulin described a fracture to the complainant's skull, and hemorrhages in the following parts of the complainant's body: in the muscles above the complainant's ears; under the complainant's scalp; and in tissue in the area of the complainant's buttocks, back, and shoulders. Dr. Gonsoulin testified that all these injuries would have been sustained within the same twenty-four-hour period. Dr. Gonsoulin described observing nine different locations of injuries, indicating at least six blows to the complainant's body — one to the head, three to the buttocks, one to the back, and one to the shoulders. Dr. Gonsoulin testified that, beyond the fractured skull, hemorrhaging, and bruising, she also discovered evidence of liquefied fat. This phenomenon occurs when an individual is struck with such powerful force that the liquid within the body's fat cells at the point of impact is forced out of the cells and pools in the soft tissue. Dr. Gonsoulin stated that such evidence demonstrates a "significant blow," and is usually seen in accidents where pedestrians are struck by cars. Dr. Gonsoulin testified that complainant's injuries are consistent with complainant having been struck with an adult man's hand or with an unknown object. Roberts asserts that the injuries to the complainant's buttocks, back, and shoulders would not constitute the serious bodily injury alleged in the indictment. For the sake of our analysis we presume that this is so. Nevertheless, the offense charged in the indictment was intentionally or knowingly causing serious bodily injury to the complainant. There was evidence that there were times during the last twenty-four hours of the complainant's life during which Roberts was the only adult with the complainant and thus had the opportunity to cause injury to the complainant. There was evidence that the complainant woke up twice in the early morning hours of July 25, 2006, and that Roberts was the only adult who went to check on her in the room in which she was sleeping. There was also evidence that Roberts was the only adult with the complainant for a less-than-ten-minute period later, not long before Tuffley noticed that the complainant was unconscious rather than sleeping. On the other hand, Tuffley was also the only adult with the complainant at times during the last twenty-four hours of the complainant's life, and one of Roberts's defensive theories at trial was that Tuffley's conduct or an accident injured the complainant during one of these time periods. The autopsy report showed a variety of injuries to complainant, and Dr. Gonsoulin testified that these injuries all occurred within the same twenty-four-hour period. On this record, we conclude that the evidence of the non-lethal injuries to the complainant, even if they were evidence of extraneous offenses, imparted to the jury information essential to understanding the context and circumstances of events which, although legally separate offenses, were blended or interwoven. See Camacho, 864 S.W.2d at 531-32; Garza, 2 S.W.3d at 334-35. This evidence was same-transaction contextual evidence, and the trial court was not required to instruct the jury sua sponte regarding the reasonable-doubt standard of proof for extraneous offenses. See Garza, 2 S.W.3d at 335. The trial court did not err in failing to give the reasonable-doubt instruction as to this evidence during the punishment phase. See id. Accordingly, we overrule Roberts's second issue. C
In Roberts's third and fourth issues he contends that he received ineffective assistance of counsel during both the guilt and punishment phases of his trial when his trial counsel failed to request limiting instructions concerning the alleged extraneous offenses discussed in the second issue. Ineffective-assistance-of-counsel claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). We apply the Strickland test when reviewing allegations of ineffective assistance during non-capital punishment proceedings. Gholson v. State, 5 S.W.3d 266, 272-73 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). To prove ineffective assistance, Roberts must demonstrate by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms and a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. "This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record." Id. Unless the record contains evidence regarding the trial counsel's strategy, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Id. Roberts contends that his trial counsel acted deficiently by failing to request limiting instructions concerning the alleged extraneous offenses discussed above under the second issue. Because the evidence regarding these alleged extraneous offenses was same-transaction contextual evidence, the trial court was not required to give a limiting instruction when the evidence was admitted or to give a jury instruction regarding the reasonable-doubt standard of proof for extraneous offenses. See Camacho, 864 S.W.2d at 535; Garza, 2 S.W.3d at 334-35. On this basis alone, trial counsel's failure to request limiting instructions was not ineffective assistance. See Riles v. State, 595 S.W.2d 858, 861 (Tex. Crim. App. 1980) (indicating that the failure to make a meritless objection does not render counsel ineffective). Further, the record in this case does not contain evidence regarding the trial counsel's strategy. Roberts argues to the contrary, claiming that his trial counsel's strategy was obviously to argue that the injuries to the complainant's buttocks, back, and shoulders were "`old' injuries, as evidenced by the absence of obvious bruising." Roberts asserts that his trial counsel wanted "to draw attention to these extraneous offenses, whoever committed them, while arguing at the same time that it was not Roberts who was responsible." However, Roberts infers this trial strategy based on statements by Roberts's counsel during closing argument. These arguments do not speak to counsel's trial strategy in failing to request limiting instructions concerning the alleged extraneous offenses discussed above. The record is silent as to trial counsel's trial strategy in this regard, and Roberts has not shown that the challenged conduct was so outrageous that no competent attorney would have engaged in it. Therefore, Roberts has failed to rebut the presumption of effective representation. See Perez v. State, 56 S.W.3d 727, 731-32 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Roberts's third and fourth issues are overruled. For the foregoing reasons, we affirm the trial court's judgment.