Opinion filed June 28, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-10-00171-CR

__________

STANDRIDGE SMITH, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 17427B

M E M O R A N D U M O P I N I O N

The jury convicted Standridge Smith of felony murder through injury to a child and

assessed punishment at twenty-five years confinement in the Institutional Division of the Texas 

Department of Criminal Justice and a fine of $5,000. See TEX. PENAL CODE ANN. § 19.02(b)(3) 

(West 2011). The victim was appellant’s daughter, J.S. We modify and affirm.

Appellant argues in seven issues on appeal: (1) the trial court committed reversible error 

by denying appellant’s request for additional experts; (2) the trial court committed reversible 

error by denying appellant’s motion to suppress the written statement taken by law enforcement 

and admitting it into evidence; (3) the trial court committed reversible error by denying 
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appellant’s motion to quash; (4) the trial court committed reversible error by admitting evidence 

of additional injuries received by the alleged victim prior to the date of the events the subject of 

the indictment; (5) the trial court committed reversible error in allowing the State to call 

undisclosed expert witnesses in rebuttal; (6) appellant was deprived of his right to effective 

assistance of counsel by trial counsels’ failure to request jury questions on lesser included 

offenses; and (7) the trial court committed reversible error by allowing a fragmented portion of 

testimony to be read back to the jury during deliberation without indication or explanation of the 

portions removed.

In his first issue, appellant contends that the trial court committed reversible error when it 

denied appellant’s request for additional experts. Prior to trial, appellant filed a motion 

requesting the appointment of Dr. Elliot B. Oppenheim as an expert. The trial court granted 

appellant’s motion. Two months later, appellant filed a motion requesting appointment of 

additional experts. In support of the motion, appellant attached a letter from Dr. Oppenheim in 

which Dr. Oppenheim stated that he believed appellant would need three additional experts: (1) a 

forensic pathologist in order to challenge the State’s primary expert, the medical examiner; 

(2) an obstetrician, neonatologist, or perinatologist to testify regarding the preexisting conditions 

that likely contributed to J.S.’s death; and (3) a pediatric radiologist to respond to anticipated 

allegations of abuse derived from J.S.’s fractured clavicle. In response, the court appointed 

Dr. Marc Shuman, the forensic pathologist recommended in Dr. Oppenheim’s letter, and released 

Dr. Oppenheim. Subsequently, Dr. Shuman referred appellant to Dr. John G. Galaznik, and 

appellant filed a motion requesting the appointment of Dr. Galaznik to replace Dr. Shuman. At 

trial, Dr. Galaznik testified for appellant.

When an indigent defendant makes a threshold showing that expert assistance would 

likely be a significant factor at trial, he is entitled to the appointment of an expert. Ake v. 

Oklahoma, 470 U.S. 68, 82–83, 86 (1985); Griffith v. State, 983 S.W.2d 282, 286–87 (Tex.

Crim. App. 1998). To determine if appellant was entitled to the requested additional experts, 

three factors are relevant: (1) the private interest that will be affected by the State’s action; 

(2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the 

probable value of the additional or substitute procedural safeguards that are sought and the risk 

of an erroneous deprivation of the affected interest if those safeguards are not provided. Ake, 

470 U.S. at 77; Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995). We review the trial 

court’s ruling for an abuse of discretion. Griffith, 983 S.W.2d at 287. The purpose is to ensure 
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that the indigent defendant has access to a competent expert to assist in the evaluation of his 

defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286. The type of expert and the nature and 

complexity of the field of specialty must be considered in deciding if an expert will be helpful or 

a significant factor at trial. Griffith, 983 S.W.2d at 287. This does not mean that a defendant is 

entitled to an expert of his “personal liking” or that he has the right to choose which expert is 

appointed. Id. at 286.

In appellant’s motion requesting appointment of three additional experts, appellant argues 

that the “additional expert witnesses are absolutely necessary to present and address the issues 

before this Court and to ‘mount a meaningful defense which will withstand constitutional Due 

Process legal muster.’” Additionally, the motion provided that appointment was necessary to 

insure appellant “receives his rights to effective assistance of counsel, cross-examination and 

confrontation of witnesses, and compulsory process.” Appellant argues that the effect of the trial 

court’s refusal to appoint the two additional experts is reflected by his allegation that 

Dr. Galaznik’s research and testimony, while extensive and thorough, was easily vulnerable to 

attack by the State by virtue of its generality and by virtue of his being a mere “paper expert.”

As discussed above, appellant was not limited to one expert during the course of this 

case. The trial court approved the appointment of three experts: Dr. Oppenheim, Dr. Shuman, 

and Dr. Galaznik. At trial, Dr. Galaznik offered testimony refuting the State’s expert’s opinion 

on cause of death and cause of injury to J.S.’s clavicle. There is no evidence that Dr. Galaznik 

could not or did not adequately assist appellant. Under these circumstances, the trial court did 

not err when it denied appellant’s request for the appointment of additional experts. Moreover, 

the record does not reflect that, after the trial court appointed Dr. Galaznik, appellant made any 

further requests for experts. We overrule Issue One.

In his second issue, appellant contends that the trial court committed reversible error 

when it denied appellant’s motion to suppress the written statement that he gave to law 

enforcement. We review a trial court’s ruling on a motion to suppress for an abuse of discretion. 

Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011); Oles v. State, 993 S.W.2d 103, 106 

(Tex. Crim. App. 1999). In reviewing a ruling on a motion to suppress, we apply a bifurcated 

standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. 

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to 

the trial court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial court is 

the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their 
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testimony. Id.; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). Second, we 

review de novo the trial court’s application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra,

310 S.W.3d at 447. We will sustain the trial court’s ruling if it is reasonably supported by the 

record and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447–

48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

Appellant contends that his statement was not voluntary for the following reasons: (1) he 

was operating on minimal sleep from a period of several days; (2) he was isolated and pressed 

relentlessly for three and one-half hours; and (3) he was distraught with grief from the recent loss 

of his daughter, J.S. Under such conditions, appellant claims, he could not have “knowingly, 

intelligently, and voluntarily” waived his rights under Article 38.22 of the Texas Code of 

Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). A defendant’s 

statement may be used in evidence against him if he made it freely and voluntarily and without 

compulsion or persuasion. Id. art. 38.21. “The determination of whether a confession is 

voluntary is based on an examination of the totality of circumstances surrounding its 

acquisition.” Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State,

903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). A statement may be involuntary “if there was 

official, coercive conduct of such a nature that any statement obtained thereby was unlikely to 

have been the product of an essentially free and unconstrained choice by its maker.” State v. 

Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Alvarado v. State, 912 S.W.2d 

199, 211 (Tex. Crim. App. 1995)). The ultimate question for a court to answer when it 

determines voluntariness is “whether the suspect’s will was overborne” by the conduct of the 

state actor. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Some relevant 

circumstances include the length of the detention and interrogation, whether the defendant was 

permitted access to his family or attorney, and the presence or absence of physical brutality. 

Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (citing 

Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985), overruled on other grounds by 

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). A defendant’s characteristics and 

status, as well as the conduct of the police, are also important concerns. Haynes v. Washington,

373 U.S. 503, 517 (1963).

Before the trial, the trial court held a hearing on appellant’s motion to suppress to 

determine the voluntariness and admissibility of appellant’s confession. See Jackson v. Denno,

378 U.S. 368, 376–77, 392–93 (1964). The trial court found that appellant had freely and 
5

voluntarily made his statement and that the statement would be admissible against appellant. At 

the hearing, Detective Terrill Lynn Perkins Jr. testified that, following J.S.’s death, he 

coordinated with the Air Force to arrange a meeting with appellant. After a meeting was 

arranged with appellant’s first sergeant, Detective Perkins went to Dyess Air Force Base to speak 

with appellant. On base, he explained to appellant that he needed to speak with him about the 

case and that appellant was under no obligation to speak with him. Appellant agreed to go to the 

law enforcement center to speak with Detective Perkins. After telling appellant that he was free 

to get there however he chose, Detective Perkins asked if appellant would like to ride with him. 

Appellant agreed. Detective Perkins testified that, at that time, appellant was not under arrest, 

was not handcuffed, and rode in the front seat with him to the law enforcement center. When 

they arrived, they went to Detective Perkins’s office in the Child Advocacy Center. Again, 

Detective Perkins told appellant that he was not under arrest and, although was not required to 

give Miranda1 warnings to an individual not in custody, told appellant what his rights were under 

Miranda. Appellant told Detective Perkins that he understood his rights and that he would like 

to speak with Detective Perkins about the case. Detective Perkins told appellant that he was free 

to go to the restroom or to have a drink of water if he would like. Detective Perkins testified that 

the interview took place in his office and was recorded on video. The video is approximately 

three hours and thirty-four minutes long. At the end of the interview, appellant signed a written 

statement in which he stated that, on the date of the offense, he threw J.S. onto the bed, that J.S. 

bounced when she hit the bed, and that he had thrown J.S. onto the bed before. After he signed

the written statement, appellant was not arrested. He called his first sergeant to come pick him 

up, and then he left. Approximately seven days later, he was arrested.

Appellant testified at the suppression hearing as well. He stated that he slept very little in 

the days between the offense and the interview; that he was “in grief” at the time of the 

interview; that, during the interview, he was sobbing uncontrollably; and that he felt that, based 

upon his mental state and lack of sleep, his statements were not his free and unconstrained 

choice. On cross-examination, appellant testified that he was not arrested, was never placed in 

handcuffs, and was never taken to jail.

 

1Miranda v. Arizona, 384 U.S. 436 (1966).
6

After the trial court denied appellant’s motion to suppress, it entered an order in which it 

found appellant’s statements were voluntarily given based on the following specific findings of 

fact:

 1. The defendant was not under arrest; and, he was not in the custody of law 

enforcement.

 2. Prior to beginning the interview, law enforcement read the defendant the 

Miranda warnings.

 3. The defendant indicated he understood his rights under Miranda; and, the 

defendant knowingly waived his rights under Miranda.

 4. Law enforcement did not threaten the defendant with physical harm.

 5. Law enforcement did not promise the defendant anything.

 6. Law enforcement did not coerce the defendant.

 7. At the beginning of the interview law enforcement offered to give the 

defendant “a ride” back to the Air Force base, where he was on active duty.

 8. Law enforcement made sure the defendant’s physical needs were met.

The trial court did not abuse its discretion in admitting appellant’s statement. The record 

does not reflect that appellant’s mental state was such that it rendered his statement involuntary. 

See Licon v. State, 99 S.W.3d 918, 925 (Tex. App.—El Paso 2003, no pet.) (“mere emotionalism

or confusion alone will not render a confession inadmissible”). Furthermore, we give deference 

to the trial court’s rulings on questions of fact when those rulings turn on an evaluation of 

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A 

question turns on an evaluation of credibility and demeanor when the testimony of one or more 

witnesses, if believed, is always enough to add up to what is needed to decide the substantive 

issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). It is clear that the trial 

court believed Detective Perkins’s testimony that showed that appellant’s statement was given 

freely and voluntarily without compulsion or persuasion. We overrule appellant’s second issue 

on appeal.
7

In his third issue, appellant contends that the trial court committed reversible error when 

it denied his motion to quash the indictment. Specifically, appellant complains about the second 

paragraph of the indictment, which provides in part as follows:

[Appellant] did then and there commit and attempt to commit an act clearly 

dangerous to human life, to-wit: throwing [J.S.] onto a bed, that caused the death 

of the said [J.S.], and the said [appellant] was then and there in the course of 

knowingly, recklessly and with criminal negligence committing a felony, to-wit: 

Injury to a Child, and the death of the said [J.S.] was caused while the said 

[appellant] was in the course of and in furtherance of the commission and

attempted commission of the said felony.

Appellant first argues that the language in the second paragraph of the indictment was 

misleading because it rearranged the language of the statutory offense. We review the denial of 

a motion to quash de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Jones v. 

State, 333 S.W.3d 615, 623 (Tex. App.—Dallas 2009, pet. ref’d). The right to notice is set forth 

in both the United States and Texas constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, 

§ 10; Moff, 154 S.W.3d at 601; State v. Rodgers, 214 S.W.3d 644, 647 (Tex. App.—Eastland 

2006, pet. ref’d). A charging instrument must be specific enough to inform the accused of the 

nature of the accusation against him so that he may prepare a defense. Moff, 154 S.W.3d at 601; 

Rodgers, 214 S.W.3d at 647. Appellant does not claim on appeal that the instrument was not 

specific enough to inform him of the nature of the accusation against him. Appellant’s first 

argument under Issue Three is without merit insofar as it relates to the order of the words of 

paragraph two because the paragraph pleaded every element that must be proven at trial in such a 

way that it gave appellant sufficient notice of the charged offense to allow him to prepare a 

defense.

Appellant’s second argument is that the second paragraph of the indictment failed to meet 

the requirements set forth in Article 21.15 of the Texas Code of Criminal Procedure.

Article 21.15 provides as follows:

Whenever recklessness or criminal negligence enters into or is a part or 

element of any offense, or it is charged that the accused acted recklessly or with 

criminal negligence in the commission of an offense, the complaint, information, 

or indictment in order to be sufficient in any such case must allege, with 

reasonable certainty, the act or acts relied upon to constitute recklessness or 

criminal negligence, and in no event shall it be sufficient to allege merely that the 

accused, in committing the offense, acted recklessly or with criminal negligence.

TEX. CODE CRIM. PROC. ANN. art. 21.15 (West 2009).
8

We first note that, because this is an indictment paragraph for felony murder, it is 

sufficient if the indictment alleges the underlying felony committed and the culpable mental state 

attending the underlying felony committed. Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim. 

App. 1999); Flores v. State, 102 S.W.3d 328, 331 (Tex. App.—Eastland 2003, pet. ref’d). Here,

the underlying felony offense is injury to a child, which includes recklessness and criminal 

negligence as culpable mental states. TEX. PENAL CODE ANN. § 22.04 (West Supp. 2011). 

Appellant argues that the phrase “throwing [J.S.] onto a bed” does not sufficiently identify the 

act or acts relied upon to constitute recklessness as required by Article 21.15. Appellant 

correctly acknowledges that an alleged inherently reckless act would satisfy Article 21.15. See 

Smith v. State, 309 S.W.3d 10, 16 (Tex. Crim. App. 2010). However, appellant contends that 

there is nothing clearly dangerous to human life, and thus inherently reckless, about throwing 

J.S. onto a bed. We disagree. The act of throwing a two and one-half month old infant onto a

bed is inherently reckless. As such, it sufficiently apprised appellant of the act constituting 

recklessness. Appellant’s third issue is overruled.

In his fourth issue, appellant contends that the trial court committed reversible error by 

admitting evidence of additional injuries inflicted upon the victim prior to the date of the events 

that were the subject of the indictment.

In its opening statement, the State told the jury that, in the trial, the jury would hear that 

the date of the offense was not the first time appellant had thrown J.S. onto the bed. He had done 

it approximately three weeks earlier. The State began to talk about other “unusual things that we 

found whenever [J.S.] was taken to Cook Medical.” Appellant objected, arguing that it was 

inappropriate for the State to address Rule 404(b) material prior to any decision by the court as to 

its admissibility. TEX. R. EVID. 404(b). In response to the objection, the State replied that it had 

given appellant notice of its intent to use the prior acts, that there was no motion in limine filed 

by appellant, that it was proper in a murder trial under the Code of Criminal Procedure for the 

State to go into the entire relationship between the accused and the decedent, and that it 

“believed that [it could] show this evidence.” The court overruled appellant’s objection. 

Continuing its opening statement, the State told the jury it would hear that, following an 

examination of J.S. after the date of the offense, it was discovered that she was healing from a 

broken clavicle. The State stated that the jury would hear Dr. Lloyd White testify as to the 

approximate time the broken clavicle occurred and as to the most likely cause being abuse.
9

Stacey Smith was appellant’s wife. During the trial, prior to Smith’s testimony before the 

jury, the trial court conducted a hearing outside the presence of the jury to determine the 

admissibility of extraneous offense evidence about which she was expected to testify. Smith

testified that, prior to the date of the offense, she observed an injury to J.S. after J.S. had been 

left home alone with appellant. Following arguments from both sides, the trial court did not 

allow Smith’s testimony concerning her observation of the prior injury.

Later in the trial during Detective Perkins’s testimony, the State offered, and the trial 

court admitted, appellant’s written statement, which included the following: “The first time I 

threw [J.S.] on the bed was about three weeks ago. [J.S.] hit her left eye on the couch while I 

was doing a diaper change.” Appellant did not object. During cross-examination of Detective 

Perkins, appellant offered the video of the interview, including appellant’s statement, into 

evidence. The trial court admitted it, and appellant published it to the jury. Following the video, 

during appellant’s cross-examination of Detective Perkins, appellant asked him, “[W]hich 

injuries did you learn of before [J.S.] was declared deceased?” In response, Detective Perkins 

answered, “I believe it was the subdural hematomas, the retinal hemorrhaging, and the broken 

collar bone.” Later, appellant asked Detective Perkins whether the “fractured clavicle could 

have been the result of a birth injury” and questioned Detective Perkins about his opinion that the 

injuries, including the fractured collar bone, were a result of abuse.

We review a trial court’s decision to admit evidence under an abuse of discretion 

standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Angleton v. State, 971 

S.W.2d 65, 67 (Tex. Crim. App. 1998). A defendant’s prior crimes or bad acts are generally 

inadmissible to prove that he has a bad character or a propensity to commit the offense charged. 

Robinson v. State, 844 S.W.2d 925, 928 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Such 

evidence, however, may be admissible for other purposes, such as proof of motive, intent, plan, 

knowledge, or lack of mistake or accident. Rule 404(b). The “other purposes” listed in 

Rule 404(b) are not exclusive or exhaustive but are merely representative. Robinson, 844 

S.W.2d at 929.

To preserve error for appellate review, the complaining party must make a timely, 

specific objection in the trial court and obtain a ruling on the objection. TEX. R. APP. P. 33.1(a); 

Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008); Wilson v. State, 71 S.W.3d 346, 

349 (Tex. Crim. App. 2002). A party may not complain on appeal of the admission of improper 

evidence offered by the other side when that party introduced the same evidence or evidence of a 
10

similar character. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We are aware 

of the rule that an objecting party does not waive his objection in those cases where a trial court 

has erroneously admitted evidence and the opposing party introduces more evidence to meet, 

destroy, or explain it by introducing rebutting evidence. Id. at 719. That is not the case here, 

however. Appellant did not object to the admission of his written statement in which he admitted 

to throwing J.S. onto the bed prior to the date of the offense. Furthermore, appellant offered into 

evidence the entire video of his statement and raised the issue of how the broken clavicle 

occurred in his questioning of Detective Perkins. Therefore, appellant has waived any error in 

the admission of evidence of the additional injury.

Appellant also seems to contend that, because the State was allowed to discuss the broken 

clavicle in its opening statement, appellant was forced to address the broken clavicle in his case. 

It is proper for the State to state what it expects to prove in its opening statement. TEX. CODE 

CRIM. PROC. ANN. art. 36.01(a)(3) (West 2007). Evidence was ultimately submitted to support 

the State’s opening comments. Any error from the opening statement was removed when the 

evidence was presented to the jury. See Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.—Fort 

Worth 1995, pet. ref’d). Appellant’s fourth issue is overruled.

In his fifth issue, appellant contends that the trial court committed reversible error when it

allowed the State to call two undisclosed expert witnesses in rebuttal.

During the State’s case-in-chief, among other exhibits the State offered, and the trial 

court admitted into evidence, was a picture of J.S.’s collar bone after it had been removed. 

Appellant did not object. Dr. White testified that, although broken clavicles are a very common 

birth injury, the fracture that J.S. suffered was not the result of a birth injury. He stated that the 

injury could not be more than a few weeks old.

During appellant’s case-in-chief, appellant called Dr. Galaznik to testify. Among other 

things, Dr. Galaznik testified about the clavicle bone fracture. He stated that a fractured clavicle 

is the most common fracture of infants at birth, and he attributed J.S.’s fracture to be the result of 

a vaginal birth. Dr. Galaznik also disputed Dr. White’s testimony that the fracture occurred 

within a few weeks of J.S.’s death, and he testified that, based on his research, one could not 

make a valid determination of the date of the fracture.

In order to rebut Dr. Galaznik’s testimony that the fracture occurred at birth and was not 

the result of appellant’s throwing J.S., the State called two witnesses: Dr. Barry Burton Putegnat 

and Dr. Brent Steadman. Following an objection from appellant, Dr. Putegnat and Dr. Steadman 
11

testified. Dr. Putegnat testified that these types of fractures at J.S.’s age generally are caused 

only by vaginal birth or abuse and that J.S.’s fracture did not occur at birth. Dr. Steadman 

testified that he examined J.S. within twenty-four hours of her birth, checked for a broken 

clavicle, and did not note one.

As stated above, we review a trial court’s decision to admit evidence under an abuse of 

discretion standard. Wall, 184 S.W.3d at 743; Angleton, 971 S.W.2d at 67. Appellant’s 

argument seems to be that the trial court erred in two ways: (1) appellant was given no notice of 

these two witnesses and (2) their testimony further elaborated on the alleged extraneous 

fractured-clavicle injury.

Assuming, without deciding, that the fractured clavicle was a new extraneous injury at 

this point in the trial, appellant was not entitled to notice of the extraneous injury because the 

evidence was introduced during the State’s rebuttal testimony, not in the State’s case-in-chief. 

Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). It is permissible for a trial court to 

admit evidence of extraneous offenses in order to rebut a defensive theory. See Moses v. State, 

105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Appellant’s fifth issue is overruled.

In his sixth issue, appellant contends that he was deprived of his right to effective 

assistance of counsel by trial counsels’ failure to request jury questions on lesser included 

offenses. To prevail on a claim of ineffective assistance of counsel, an appellant must establish 

that his lawyer’s performance fell below an objective standard of reasonableness and that there is 

a “reasonable probability” the result of the proceeding would have been different but for 

counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 693–94 (1984); 

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). A reasonable probability is a 

probability sufficient to undermine confidence in the outcome of the trial. Hernandez v. State, 

726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The purpose of this two-pronged test is to judge 

whether counsel’s conduct so compromised the proper functioning of the adversarial process that 

the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 

812–13 (Tex. Crim. App. 1999).

The review of defense counsel’s representation is highly deferential and presumes that 

counsel’s actions fell within a wide range of reasonable professional assistance. Tong v. State, 

25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Appellant must overcome the presumption that, 

under the circumstances, the challenged action might be considered sound trial strategy. 

Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 
12

(Tex. App.—Eastland 2005, pet. ref’d). When the record is silent on the motivations underlying 

counsel’s tactical decisions, an appellant usually cannot overcome the strong presumption that 

counsel’s conduct was reasonable. Thompson, 9 S.W.3d at 813. In order to defeat Strickland’s 

presumption of reasonable professional assistance, “any allegation of ineffectiveness must be 

firmly founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness.” Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 

1996)). When the record contains no evidence of the reasoning behind trial counsel’s actions, 

we cannot conclude that counsel’s performance was deficient. Jackson, 877 S.W.2d at 771.

Appellant argues that his trial attorneys were ineffective because they failed to request a 

jury instruction on the lesser included offenses of manslaughter and criminally negligent 

homicide. Assuming without deciding that appellant was entitled to an instruction on a lesser

included offense, we conclude that the record does not support appellant’s contention that trial 

counsels’ performance fell below an objective standard of reasonableness. “Ineffective assistance 

of counsel claims are not built on retrospective speculation”; they must be firmly founded in the 

record, which “must itself affirmatively demonstrate the alleged ineffectiveness.” Bone v. State,

77 S.W.3d 828, 835 (Tex. Crim. App. 2002). In most cases, the undeveloped record on direct 

appeal will be insufficient to satisfy both prongs of Strickland because the reasonableness of 

counsel’s choices often involve facts not appearing in the appellate record. See Rylander v. 

State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). This case is no different. The record in this 

case is undeveloped and does not shed any light on why trial counsel did not request a jury 

instruction on the lesser offenses of manslaughter and criminally negligent homicide as lesser 

included offenses of murder. See Cardenas v. State, 30 S.W.3d 384, 392–93 (Tex. Crim. App. 

2000). However, the failure to request an instruction on a lesser included offense may be a 

reasonable trial strategy. See, e.g., Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) 

(holding that counsel was not ineffective for adopting an all-or-nothing trial strategy in which 

counsel failed to request jury instructions on the lesser included offenses of manslaughter and 

negligent homicide in a murder case); Lynn v. State, 860 S.W.2d 599, 602–03 (Tex. App.—

Corpus Christi 1993, pet. ref’d). Due to the undeveloped record in this case, we cannot hold that 

counsel were ineffective for failing to request a jury instruction on a lesser included offense. 

Appellant’s sixth issue is overruled.
13

In his final issue, appellant contends that the trial court committed reversible error when 

it allowed only a fragmented portion of testimony to be read back to the jury during its 

deliberations.

When the jury asks that certain testimony be reread, the trial court must first determine if 

the request is proper under Article 36.28 of the Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. art. 36.28 (West 2006); Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App.

2005) (citing Moore v. State, 874 S.W.2d 671, 673 (Tex. Crim. App. 1994)). A request for 

testimony is proper under Article 36.28 if it reflects that the jurors disagree about a specified part 

of the testimony. Howell, 175 S.W.3d at 790. If the request is proper, the trial court must 

interpret the communication, decide which sections of the testimony will best answer the inquiry, 

and then limit the rereading accordingly. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App.

1994). The trial court’s decision will not be disturbed unless a clear abuse of discretion and 

harm are shown. Id.; see also Howell, 175 S.W.3d at 790.

In a note from the jury, the jury stated: “May we request to hear the testimony of 

Dr. G[a]laznik in regards to studies relating to the impact of infant falls. We certify we have a 

disagreement of this testimony.” Outside the presence of the jury, the trial court provided both 

parties with copies of transcripts of what it had determined was the relevant testimony in 

response to the jury’s question. Appellant initially had no objection. The State did have several 

objections to portions of the testimony that it argued were unresponsive to the jury’s question. 

Specifically, the State argued that portions of the selected testimony were not in response to the 

jury’s question regarding the results of a study but, instead, pertained to Dr. Galaznik’s own 

opinion and were speculative. For example, the first objection by the State challenged a portion 

of the testimony that occurred after testimony that related to a study that involved the impact 

from falls at various heights on anthropomorphic test devices. Dr. Galaznik had testified:

So that if one is going to accept that a slam onto a mattress can cause this, then 

one would have to accept that a one-foot fall onto a carpeted surface could also 

cause this, and I don’t think the child abuse community is ready to recognize that 

or accept that as a valid contention.

Appellant argued that Dr. Galaznik was arguing an alternative hypothesis. The trial court 

sustained the State’s objection, and that portion was not read to the jury. Subsequent similar 

objections by the State and arguments by the parties followed.
14

After a review of the record, we hold that the trial court did not abuse its discretion when 

it determined which portions of the testimony best answered the jury’s question and when it

limited the reading accordingly. The record reflects that the trial court heard extensive debate 

regarding the removed portions about which appellant complains. Article 36.28 entitles the jury 

to hear only the “part of such witness testimony or the particular point in dispute, and no other.” 

Article 36.28. The jury requested to hear Dr. Galaznik’s testimony only insofar as it addressed 

“studies.” The trial court’s decision to exclude other portions of the testimony is not so clearly 

wrong as to lie outside the zone within which reasonable persons might disagree. See Howell, 

175 S.W.3d at 790. Appellant’s seventh issue is overruled.

We note that the judgment in the clerk’s record provides the statute for offense as 

“19.02(b)(1) Penal Code,” but in accordance with the jury’s verdict, it should provide 

“19.02(b)(3) Penal Code.” Therefore, we modify the judgment to delete “19.02(b)(1) Penal 

Code” and to instead read “19.02(b)(3) Penal Code.”

The judgment of the trial court is modified and, as modified, affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 28, 2012

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.