Oral argument requested

PD-____-15

IN THE TEXAS COURT OF CRIMINAL APPEALS

_________________________________________________

ALICE ANNETTE STEELE

APPELLANT

vs.

THE STATE OF TEXAS

APPELLEE

_________________________________________________

FROM THE FIFTH COURT OF APPEALS

CAUSE NO. 05-13-00930-CR

APPEAL FROM THE 194TH JUDICIAL DISTRICT COURT

OF DALLAS COUNTY, CAUSE NO. F08-45120-M

_________________________________________________

APPELLANT’S PETITION FOR

DISCRETIONARY REVIEW

_________________________________________________

BRUCE ANTON

State Bar No. 01274700

ba@sualaw.com

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214-468-8100 (office)

214-468-8104 (fax)

Counsel for Appellant

PD-0442-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/17/2015 3:43:26 PM

Accepted 4/21/2015 2:21:09 PM

ABEL ACOSTA

CLERK
2

Ground for Review

Whether the complainant’s mother’s affirmation

that what she “want[ed] to know the most” was 

“what happened to [the complainant]” was a call 

for testimony only Steele could supply. 
3

Table of Contents

Ground for Review...................................................................................... 2

Index of Authorities.................................................................................... 4

Identity of Parties and Counsel................................................................. 5

Statement Regarding Oral Argument....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument.................................................................................................... 9

The complainant’s mother’s affirmation that what she “want[ed] to 

know the most” was “what happened to [the complainant]” was a call 

for testimony only Steele could supply. ................................................. 9

I. The trial court’s error..................................................................... 9

II. The court of appeals’s strained resolution................................. 11

III. Neither of the court of appeals’s suggested inferences is at all 

plausible............................................................................................. 13

Prayer........................................................................................................ 16

Certificate of Service ................................................................................ 17

Certificate of Compliance......................................................................... 17

Appendix ................................................................................................... 18
4

Index of Authorities

Cases

Brewer v. State, No. 03-10-00076-CR, 2011 WL 3890365, at *4 (Tex. 

App.—Austin 2011)............................................................................... 12

Cacy v. State, 901 S.W.2d 691, 703–04 (Tex. App.—El Paso 1995, pet. 

ref’d)....................................................................................................... 13

Delay v. State, --- S.W.3d ---, No. PD-1465-13, 2014 WL 4843911 (Tex. 

Crim. App. Oct. 1, 2014) (Meyers, J., dissenting) ............................... 15

Ex parte Jimenez, 364 S.W.3d 866, 888 (Tex. Crim. App. 2012)............ 13

Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990) ....... 11, 15

Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983).......................... 12

Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011)............ 12

Roberson v. State, 100 S.W.3d 36 (Tex. App.—Waco 2002, pet. ref’d) 

(same) .................................................................................................... 12

Steele v. State, No. 05-13-00930-CR, 2015 WL 1291508 (Tex. App.—

Dallas Mar. 19, 2015).................................................................. 8, 13, 14

Statutes

TEX. PEN. CODE § 22.04 .............................................................................. 7

Rules

TEX. R. EVID. 614 ...................................................................................... 15
5

Identity of Parties and Counsel

For Appellant Alice Annette Steele:

BRUCE ANTON

Trial counsel of record

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

EDWARD P. SHOEMAKER

Trial counsel of record

705 Ross Avenue

Dallas, Texas 75202

BRUCE ANTON

BRETT ORDIWAY

Appellate counsel of record

SORRELS, UDASHEN & ANTON

For Appellee the State of Texas:

DOUGLAS MILLICAN

REYNIE TINAJERO

Trial counsel of record

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

133 North Riverfront Boulevard

Dallas, Texas 75207

MARTIN L. PETERSON

Appellate counsel of record

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

THE HONORABLE ERNEST WHITE

194TH JUDICIAL DISTRICT COURT
6

Statement Regarding Oral Argument

The court of appeals’s decision conflicts with this Court’s opinion 

in Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990). Steele 

believes oral argument would be helpful to this Court’s understanding 

of just how.
7

Statement of the Case and Procedural History

While in Steele’s care, the 14-month-old complainant suffered 

head and brain injuries from which she eventually died. (RR4: 55). 

Steele told police that the complainant had fallen and hit her head, and 

that, a few days later, Steele had accidentally bumped the complainant’s head against a doorframe. (State’s Exhibit 58, RR6: 68). The police 

did not believe Steele, and a Dallas County grand jury indicted her for 

intentionally or knowingly injuring a child. (CR: 17); see TEX. PEN. CODE

§ 22.04. 

Steele pleaded not guilty, and, at her trial, the defense called experts who testified that the complainant’s injury could have been 

caused precisely as Steele maintained. (RR8: 62, 67). The State, by contrast, presented experts who testified that the complainant’s injuries 

must have been the result of a massive, high-impact blow against a door 

or another object. The State then asked the jury “to infer Steele initiated the contact between [the complainant’s] head and the object under 

circumstances that would make the resulting severe injury reasonably 

certain to occur.” (St. Br. at 5). And the State bolstered its case by: (1) 

delivering a closing argument which repeatedly stated law contrary to 
8

the charge on the manner and means of the offense; (2) commenting on 

Steele’s failure testify; and (3) arguing in closing that Steele had the 

burden of proving her innocence. (Br. at 11-12). The jury, then, found 

Steele guilty of the lesser-included offense of recklessly injuring a child. 

(RR1: 13-14). 

In Steele’s opening brief on appeal, she argued that the trial court 

erred in allowing the State to support its case in each of those three 

manners. Steele v. State, No. 05-13-00930-CR, 2015 WL 1291508 (Tex. 

App.—Dallas Mar. 19, 2015). The court disagreed, overruling each contention and affirming Steele’s conviction. Id. This petition now follows.
9

Argument

The complainant’s mother’s affirmation that what 

she “want[ed] to know the most” was “what happened to [the complainant]” was a call for testimony only Steele could supply.

! ! !

I. The trial court’s error

The State called the complainant’s mother as its final witness at

the punishment phase of trial. (RR11: 98). After explaining how her 

daughter’s death affected her, she lamented that she would “never know 

what happened” to cause her daughter’s death:

Prosecutor: ...[H]ow has this event, how has it affected 

you personally?

Witness: It changed my life. I lost my daughter at the 

age of 21. I was 21 years old. I never 

thought that I would bury my own child. 

And it is not like she died from being sick. It 

is not like she was born ill. She died because 

of choices somebody else made. And for the 

last five years, I have had to suffer the consequences that my daughter is not here, she 

is not coming back. And when I got her 

back, she was not the baby that I gave birth 

to. I will never know what happened to my 

daughter and that’s fine, that’s fine.

(RR11: 99). The prosecutor seized upon this comment, suggesting that 

“in our conversations you have actually told me that’s kind of what you 
10

want to know the most.” (RR11: 99). The complainant’s mother agreed, 

and the State then pressed on further, questioning whether she had 

“kind of come to terms to the fact that [she was] never going to find that 

out?” (RR11: 99-100). Defense counsel then objected, but was overruled:

Defense counsel: Your Honor, may we approach.

The court: You may.

(Following proceedings were had at the bench.)

Defense counsel: There just isn’t anyway to get through 

this such is as an outrageous attack to 

remain silent [sic]. The only person 

they can find out from is [Steele]. And 

the only explanation she can give is 

post arrest: And they have not asked 

the question once, but twice. This is 

outrageous, just simply the grossest 

violation of the Fifth Amendment that 

you can ever see. And I don’t think 

any instruction to disregard will cure 

after you plant the seed. And I just 

can’t believe...

The court: Any response from the State?

Prosecutor: Well, Your Honor, that does not necessarily imply that the defendant would 

have to say anything, that is a reality 

she lives with, everything that happens in our lives. Things that don’t 

happen in our presence, we never have 

a full understanding what they have 

seen with their own eye. And our 
11

question hasn’t come close to approaching it. The fact that she is never 

going to know what happened to her 

child. That does not imply that the defendant would have to testify in order 

to solve that.

The court: The Court would overrule the objection.

Defense counsel: Can we have a running objection. 

The court: You may.

(RR11: 99-100).

II. The court of appeals’s strained resolution

Accordingly, in Steele’s second issue on appeal, she argued that 

the trial court erred in allowing the State, through its questioning of the 

complainant’s mother, to comment on Steele’s right to remain silent. 

(Br. at 21). Where only Steele was present at the time of the complainant’s injury, the jury necessarily took the State’s prompting of the complainant’s mother as a comment on Steele’s failure to testify. (Br. at 24). 

In support, Steele pointed to this Court’s opinion in Madden v. State, 

799 S.W.2d 683, 699 (Tex. Crim. App. 1990), in which this Court explicitly held that a prosecutor’s argument that “calls for testimony which 

only appellant himself could supply” amounts to a “direct comment on 
12

[an] appellant’s failure to testify and violates [Code of Criminal Procedure] Art. 38.08, and appellant’s rights under both the state and federal 

constitutions.” See also Brewer v. State, No. 03-10-00076-CR, 2011 WL 

3890365, at *4 (Tex. App.—Austin 2011) rev’d on other grounds, 367 

S.W.3d 251 (Tex. Crim. App. 2012) (“If the remark called the jury’s attention to the absence of evidence that only testimony from the defendant could supply, the conviction is subject to being reversed.”). The 

State, in response, complained that Steele “mischaracterize[ed]” what 

actually occurred: “not an improper question or a subterfuge used to 

‘comment’ on Steele’s elections not to testify,” but merely the “proper 

topic” of “the emotional or psychological distress suffered by [the complainant’s] mother.” (St. Br. at 14). 

Unsurprisingly, the court of appeals declined to adopt the State’

position. For, it does not matter what was intended if “the jury would 

necessarily and naturally take it as a comment on the defendant’s failure to testify.” Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.

2011); see, e.g., Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983); 

Roberson v. State, 100 S.W.3d 36 (Tex. App.—Waco 2002, pet. ref’d) 

(same); Cacy v. State, 901 S.W.2d 691, 703–04 (Tex. App.—El Paso 
13

1995, pet. ref’d) (same). But nor did the court accept Steele’s argument. 

Instead, the court overruled Steele’s argument because it reasoned the 

jury did not necessarily and naturally take the complainant’s mother’s 

comment as on the defendant’s failure to testify. Steele, 2015 WL 

1291508 at *8. In so doing, the court identified two alternative interpretations of the complainant’s mother’s testimony. But neither is plausible. 

III. Neither of the court of appeals’s suggested inferences is at 

all plausible

The court of appeals first suggested the complainant’s mother’s 

testimony—that what she “want[ed] to know the most” was “what happened to [the complainant]”—“could have” simply “been a reference to 

the fact that all of the medical experts who testified had differing opinions and explanations of the sequence and severity of [the complainant’s] injuries.” Id. at *8. And, indeed, medical experts are often useful 

in determining the cause of death. See, e.g., Ex parte Jimenez, 364 

S.W.3d 866, 888 (Tex. Crim. App. 2012) (“Additional defense medical 

experts would surely have been helpful, but they were not constitutionally required.”). But a forensic explanation is very different than an explanation of the circumstances surrounding the offense. And here, the 
14

complainant’s mother very generally expressed her desire to know 

“what happened to [her] daughter.” The court’s conclusion that the jury 

could nonetheless have inferred the complainant’s mother’s testimony 

to refer to a scientific explanation is simply illogical.

The court of appeals’s second suggestion fares no better. There, after noting “the mother’s testimony and the prosecutor’s follow-up questions were made after the jury heard, through numerous witnesses, appellant’s explanations of how [the complainant] was injured,” the court 

concluded that, “[i]n context,” the complainant’s mother’s testimony 

could have referred not to Steele’s failure to offer an explanation, but to 

her disbelief of “the explanations that [Steele] had already given.” 

Steele, 2015 WL 1291508 at *8. But, as the court itself recognized, it 

was the jury, not the complainant’s mother, who heard Steele’s explanations of how the complainant was injured. The complainant’s mother 

heard nothing—before trial the State “invoke[d] the Rule” as to “all

witnesses.” (RR4: 11); see TEX. R. EVID. 614 (“At a party’s request, the 

court must order witnesses excluded so that they cannot hear other 

witnesses’ testimony.”). Her testimony couldn’t have indicated her dis-
15

satisfaction with any content, then. The court’s second suggestion is

therefore even more implausible than its first. 

What’s left is the far more likely inference to have been drawn 

from the complainant’s mother’s testimony—the only one, really—and

precisely what Steele has urged from the moment it was uttered: that it 

was a comment on Steele’s right to remain silent. (RR11: 100). And just 

as “[a]rgument that points to a lack of evidence that only the defendant 

personally can supply... violates the defendant's right against selfincrimination,” so does questioning. Madden, 799 S.W.2d at 699. The

trial court thus should have sustained counsel's objection to this exchange as an improper comment on the defendant's failure to testify. Id.

The court of appeals was wrong to hold otherwise.

Somewhat recently, Judge Meyers observed that “[y]ou can always 

tell when an opinion is written with the outcome decided before any legal analysis is done because it reads like a medical report written by a 

doctor who has never conducted a physical examination of the patient.”

Delay v. State, --- S.W.3d ---, No. PD-1465-13, 2014 WL 4843911 (Tex. 

Crim. App. Oct. 1, 2014) (Meyers, J., dissenting). And just like in that 

case, “this is precisely how the... opinion in this case comes across.” Id.
16

The opinion simply “ignored the facts in order to arrive at a desired outcome.” Id. Fortunately, this Court can fix that. 

Prayer

Accordingly, Steele respectfully requests this Court to grant this 

petition so that it may reverse the decision of the court of appeals and 

remand this case to that court to conduct a harm analysis.

Respectfully submitted,

/s/ Bruce Anton

BRUCE ANTON

Bar Card No. 01274700

ba@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Attorneys for Appellant
17

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of 

the foregoing Appellant’s Petition for Discretionary Review was electronically served to the Dallas County District Attorney’s Office and the 

State Prosecuting Attorney on April 17, 2015.

/s/ Bruce Anton

BRUCE ANTON

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies 

that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because 

this petition contains 1,468 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type 

style requirements of TEX. R. APP. P. 9.4(e) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft 

Word 2011 in 14-point Century Schoolbook.

/s/ Bruce Anton

BRUCE ANTON
18

Appendix
AFFIRM; and Opinion Filed March 19, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00930-CR

ALICE ANNETTE STEELE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F-0845120-M

MEMORANDUM OPINION

Before Justices Fillmore, Schenck,

1 and Chief Justice Thomas, Retired2

Opinion by Justice Schenck

Appellant Alice Annette Steele was indicted for the offense of intentionally or knowingly 

injuring a child. A jury convicted appellant of the lesser-included offense of recklessly injuring a 

child, and sentenced her to 20 years’ imprisonment. In three issues, appellant asserts the trial 

court erred by overruling her objections to improper questioning of a witness and improper 

closing argument. We affirm the trial court’s judgment. Because all dispositive issues are 

settled in law, we issue this memorandum opinion. TEX. RS. APP. P. 47.2(a), 47.4.

 1 The Honorable Justice David J. Schenck succeeded Justice Michael O’Neill, a member of the original panel, following Justice O’Neill’s 

retirement. Justice Schenck has reviewed the briefs and the record before the Court.

2 The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by 

assignment.
–2–

BACKGROUND

On February 16, 2008, K.S. and her two-year-old brother went to stay at appellant’s 

home for a few days while their parents were at the hospital for the birth of a new baby. K.S. 

was 14 months old. On February 25, 2008, the children were still at appellant’s home in her 

care. On that morning, appellant called 911 to report that K.S. had been choking on a toy and 

was unresponsive. Paramedics arrived and called for additional help from the Richardson Fire 

Department. K.S. was taken to Richardson Regional Medical Center, where the emergency 

room doctor determined that K.S. needed treatment that was not available there. K.S. was taken 

by care flight to Children’s Medical Center of Dallas, where she underwent brain surgery for a 

subdural hematoma. As a result of her injuries, K.S. suffered brain damage and blindness. K.S.

eventually returned home, but died on December 11, 2008, from complications of her injury.

Appellant was indicted for injury to a child on April 21, 2008. Trial commenced in June, 

2013. The jury heard testimony of some forty witnesses over the course of nine days. The 

evidence at trial included a videotaped interview of appellant by the Richardson police and 

appellant’s written statement, both made on February 25, 2008, after K.S. had been taken to the 

hospital. In these statements, appellant explained that she got up and drove her daughter to 

school, leaving K.S. and her brother at home asleep. When appellant returned, K.S. was still 

asleep, but woke up shortly after and was coughing. Appellant, who has a medical assistant 

certificate, thought K.S. was choking. Appellant stated that she patted K.S.’s back and then put 

her finger in K.S.’s throat and pulled out a small blue “Lego” toy. K.S. “went limp,” and 

appellant called 911. Appellant gave this explanation to the 911 dispatcher and the paramedics

as well as the police.

Emergency personnel who responded on February 25 testified at trial, including the 911 

dispatcher, paramedics, and firefighters from the Richardson Fire Department. A recording of the 
–3–

911 call was played for the jury. Five police officers who were involved in the case also 

testified, as well as three doctors who examined or treated K.S. Through the testimony of these 

witnesses, the State developed evidence that K.S.’s injuries were not consistent with choking; the 

blue Lego was never found; and appellant’s explanation changed in the course of questioning, to 

add that K.S. bit her when she pulled out the Lego, causing appellant to turn around and bump 

K.S.’s head against a door jamb. Medical testimony established that K.S. suffered a massive 

subdural hematoma, which the emergency room doctor defined as “blood on the outside of the 

brain.”

The jury heard evidence that K.S. suffered a bump on her forehead earlier in the week, 

causing a visible raised abrasion. The evidence also showed that there was no other mark visible 

on K.S.’s head except a small red mark on the back of her head observed by the neurosurgeon 

immediately before surgery. Appellant offered the testimony of three experts at trial to interpret 

this evidence. Dr. Janice Ophoven and Dr. John Plunkett, specialists in forensic pathology, are 

both medical doctors. The third expert, John Lloyd, has a Ph.D. in ergonomics and is a brain 

injury specialist. These experts testified that two minor injuries (the first bump on the head and a 

later minor bump on the door jamb consistent with appellant’s explanation) could have been the 

cause of K.S.’s massive subdural hematoma. They also testified that a small injury could cause 

massive bleeding, and any severe impact would leave at least some mark on the skin. Dr. 

Ophoven concluded that in her opinion, “there is not verifiable evidence that this child’s injuries 

were the result of inflicted trauma or child abuse.” Dr. Plunkett testified that a child with a head 

injury could have a “lucid interval” of hours or days before showing symptoms. He further 

explained that the size of a subdural hematoma does not correlate with the amount of impact or 

force that caused the injury; a minor impact could cause a large subdural hematoma. He, too, 

concluded that although K.S. had a traumatic brain injury, he “would not call it intentional.”
–4–

Four doctors testified on behalf of the State. Dr. Gregory Lachar, the emergency room 

doctor who treated K.S.; Dr. Angela Price, the neurosurgeon who operated on K.S.; and Dr. 

Matthew Cox, a specialist in child abuse pediatrics who examined K.S. during her hospitalization 

at Children’s Medical Center, all testified regarding the nature and extent of K.S.’s injuries, as 

well as the treatment required. The fourth doctor, Dallas County Medical Examiner Reade 

Quinton, conducted an autopsy on K.S. in December 2008. 

Dr. Price testified that when K.S. arrived at Children’s, “she was almost very close to 

dying.” Immediate surgery was necessary to control the bleeding in K.S.’s brain. Dr. Price

described massive swelling of K.S.’s brain. She testified that “[t]he most probable set of 

circumstances is that this subdural occurred within two to three hours” before K.S. arrived at the 

emergency room, and “anything over six hours” would be improbable. She testified it was 

“very improbable” that the subdural hematoma occurred and continued to bleed over a 72-hour 

period before K.S. showed any symptoms. The symptoms observed by the paramedics and the 

emergency room doctor suggested “that she is rapidly progressing,” so that the most probable 

time the injury occurred was within a few hours of the paramedics’ arrival. Dr. Cox testified that 

K.S.’s injury could not have been caused by a “minor impact”; it “had to be a severe and violent 

event.” Dr. Quinton testified that the cause of K.S.’s death was blunt-force injury to the head 

and the subsequent consequences of that injury. He classified her death as a homicide. He also 

testified that “[t]he history of the LEGO in the airway did not really fit the findings that were 

found at that time”; “we are also talking about massive swelling of the brain and subdural 

hematoma, which wouldn’t be caused by just airway obstruction.” He testified that 

“progressive” injuries, worsening over the course of a few days, were possible, but not without 

accompanying symptoms, which K.S. did not display.
–5–

The jury found appellant guilty of reckless injury to a child. During the punishment 

phase of the trial, witnesses for the State testified that appellant had been abusive to her own 

children in the past. Her children, however, denied any abuse, and they and numerous other 

witnesses testified that appellant was a loving, caring, person. The jury sentenced appellant to 20 

years’ confinement. This appeal followed.

DISCUSSION

A. Improper jury argument

1. Standards of review and applicable law

In her first and third issues, appellant contends the trial court erred by overruling her 

objections to the prosecutor’s closing argument during the guilt/innocence phase of the trial. 

Proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions 

from the evidence; (3) answers to argument of opposing counsel; and (4) pleas for law 

enforcement. See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Counsel is 

generally given wide latitude in drawing inferences from evidence as long as they are reasonable, 

fair, legitimate, and offered in good faith. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. 

App. 1988). We review a trial court’s ruling on an objection to improper jury argument for 

abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). 

Even if jury argument falls outside permissible areas, an appellate court will not reverse 

unless the error is harmful. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). 

The standard for reviewing whether harm occurred depends on the kind of error involved. Id. 

For constitutional error, we apply the standard set forth in rule 44.2(a) of the Texas Rules of 

Appellate Procedure. Id. Rule 44.2(a) provides that the court of appeals “must reverse a 

judgment of conviction or punishment unless the court determines beyond a reasonable doubt 

that the error did not contribute to the conviction or punishment.”
–6–

For non-constitutional error, a trial court’s erroneous overruling of a defendant’s 

objection to improper jury argument is not reversible unless it affected the appellant’s substantial 

rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 

2000). “A criminal conviction should not be overturned . . . if the appellate court, after 

reviewing the record as a whole, has fair assurance that the error did not influence the jury or had 

but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making 

that determination, the appellate court should evaluate: (1) the severity of the misconduct (the 

magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure 

the misconduct (the efficacy of any cautionary instructions by the judge); and (3) the certainty of 

conviction absent the misconduct (the strength of the evidence supporting the conviction). 

Mosley, 983 S.W.2d at 259.

2. Argument regarding manner and means of injury

Appellant’s first issue relates to a portion of the prosecutor’s closing argument during the 

guilt/innocence phase of the trial. As we discuss below, this argument was made in the rebuttal 

portion of the State’s argument, in response to appellant’s argument that the State must prove 

“what happened”:

And I know I keep talking about this, the thing that she did. The thing that 

she did. Here I am, I am not saying slammed her head again[st] the floor or 

slammed her ahead [sic] against the bed. There is a reason that the 

indictment reads the way it does. The law allows for that. The law foresees 

just this type of situation where, here we have this child that was otherwise 

fine, that was in the care of this person right here. Now all of a sudden they 

are dead. Okay --

MR. ANTON: Your Honor, that is a misstatement of the law. That’s a 

misstatement of the indictment. The indictment says they don’t have to 

prove the weapon. It specifically does not say that they don’t have to tell us 

what happened. And I object to that. That’s a misstatement of the 

indictment, Your Honor.

THE COURT: Overruled. 
–7–

MR. ANTON: I would like a running objection, Your Honor.

THE COURT: You may have it.

Appellant contends that by overruling her objection, the trial court permitted the State to 

argue that it was not required to prove the manner and means of injury. The indictment alleged 

that appellant intentionally or knowingly caused serious bodily injury to the complainant by 

striking her against a door jamb or striking her with or against an unknown object. Appellant 

argues that under the indictment, although the State was not required to prove the object, the 

State was required to prove that appellant struck the complainant. And in her reply brief, 

appellant contends that the only issue at trial was her mental state: “did [appellant] accidentally 

bump the complainant’s head against a doorframe? Or did [appellant] intentionally or knowingly 

strike the complainant with or against a doorjamb or unknown object?” Appellant notes that the 

jury charge contained the same language as the indictment, and contends the State’s argument 

“repeatedly stated law contrary to the court’s instruction on the manner and means of the offense 

by removing the requirement that the jury find beyond a reasonable doubt that [appellant] struck 

the complainant.” Appellant cites State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 

1998), for the proposition that a closing argument stating law contrary to the court’s charge is 

improper.

We conclude the trial court did not err by overruling appellant’s objection. As reflected 

in the objection itself, appellant’s defense included the contention that the State was required to 

prove “what happened” but had not done so. In closing argument, appellant’s counsel stated:

At the very end I would like for the State to tell you . . . at some point 

during their presentation what happened. I think [appellant] is owed that, 

what happened. How did this injury occur, what happened. They haven’t 

told us that yet. And I don’t know if they are going to tell us that after I sit 

down.

If they can’t tell you what happened. If they can’t present a scenario to you 

which is supported by other than their wild speculation and hypotheses 
–8–

made up out of [whole] cloth, I don’t know how you can convict [appellant] 

of anything.

Appellant’s counsel also argued:

[F]inally, in the indictment, it says they used a weapon unknown, we don’t 

even know what they are going to say. We have seen the mattress, we have 

seen the floor, we have seen the doorjamb, we don’t know what else. They 

have come up with any instrument they want claiming injury. They can 

argue whatever they want. Can they ever point out to you what happened[?]

The State answered these arguments by addressing what it was required to prove under the 

indictment. See Brown, 270 S.W.3d at 570. The prosecutor’s argument quoted above was made 

during his rebuttal of the closing argument for the defense. He began this portion of his 

argument by explaining the verdict sought by the State:

We don’t want you to convict her because she lied. We don’t want you to 

convict because she lied to the police. We want you to convict her because 

she is guilty of intentionally or knowingly causing serious bodily injury to 

[K.S.]. And her lies revealed the truth about what happened that morning. 

There is a huge difference between those two. I hope you see the difference.

In context, the trial court was within its discretion to conclude that the prosecutor had not 

misstated the elements of the offense the State was required to prove. And in addition, as we 

explain below, the prosecutor could summarize the evidence or draw reasonable conclusions 

from the evidence in his argument. See Brown, 270 S.W.3d at 570. We conclude the trial court 

did not err by overruling appellant’s objection.

Even if the trial court did err, we conclude any error was not harmful under the standards 

set forth in Mosley. See Mosley, 983 S.W.2d at 259. Under the first factor, appellant argues the 

misconduct was severe. Appellant explains that because she “admitted having engaged in 

conduct contributing to the complainant’s injury,” she “relied entirely on expert witnesses in her 

defense.” The State’s “theme of painting [appellant’s] expert defense . . . as absurd,” therefore, 

improperly undercut the central point of her defense, specifically, that K.S.’s injury “was caused 
–9–

by a minor, accidental impact.” She contends that the State’s argument urged the jury to find 

appellant guilty “simply for being present.”

A prosecutor may argue that the witnesses for the defense are not worthy of belief. 

Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993). When appellant’s experts 

testified on her behalf on the issues contested at trial, their credibility became an issue and was 

the proper subject of comment by the prosecutor. Id. The prosecutor, then, could argue the 

experts’ testimony that a “minor, accidental impact” caused K.S.’s injuries was not credible, 

based on reasonable deduction from other evidence in the record. For example, Dr. Cox testified 

“there had to be a high-force-type injury involving different forces”; “it is a very high-force 

injury, more than what I would see in a head hitting a wall or head being hit into a wall, someone 

holding a child and turning, something along those lines.” Dr. Cox concluded, “[s]o it had to be 

a severe and violent event.” The prosecutor could summarize the evidence or draw reasonable 

conclusions from the evidence. See Brown, 270 S.W.3d at 570; see also Garcia, 126 S.W.3d at 

925 (by telling jury that defense counsel’s arguments were “hogwash,” prosecutor was merely 

stating “in colorful language” his opinion regarding the merits of defense counsel’s arguments; 

trial court did not err by refusing to instruct jury to disregard).

Under the second factor, the trial court did not give any cautionary instruction, which 

weighs in appellant’s favor. Under the third factor, appellant argues the strength of the evidence 

supporting conviction was weak, so there was little certainty of conviction absent the 

misconduct. The jury found appellant guilty of the offense of reckless injury to a child. The jury 

charge contained instructions regarding this offense:

A person commits reckless injury to a child if she recklessly causes bodily 

injury to a child. A person acts “recklessly” or is “reckless” with respect to 

the result of her conduct when she is aware of but consciously disregards a 

substantial and unjustifiable risk that the result will occur. The risk must be 

of such a nature and degree that its disregard constitutes a gross deviation 
–10–

from the standard of care that an ordinary person would exercise under all 

the circumstances as viewed from the standpoint of the person charged.

In cases involving injury to a child, there is rarely direct evidence of exactly how the 

child’s injuries occurred. Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st 

Dist.] 2009, pet. ref’d). Instead, we look to rational inferences from circumstantial evidence to 

determine whether the State met its burden of proof. See id. Intent can be inferred from the 

extent of the injuries to the victim and the relative size and strength of the parties. Patrick v. 

State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). It can also be inferred from circumstantial 

evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 

50 (Tex. Crim. App. 2004).3

Despite the circumstantial nature of the evidence, the jury could have reasonably inferred 

that appellant was the person who injured K.S. See Martin v. State, 246 S.W.3d 246, 261–62 

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (jury could make reasonable inferences from 

circumstantial evidence at trial that appellant caused child’s fatal injuries). The only evidence—

some of which resulted from appellant’s own explanations given to witnesses who testified at 

trial—was that K.S. was in appellant’s care, and only appellant’s care, at the time of her injury; 

appellant first explained that K.S. had been choking; appellant changed her explanation upon 

further questioning; law enforcement officers were unable to substantiate appellant’s explanation 

by any evidence found at her home; and medical experts testified that the nature and extent of 

K.S.’s injuries were not consistent with either choking or “minor, accidental impact” in the 

 3 See also Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d), in which the court explained:

Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its 

injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child 

dies. See Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.—Tyler 1995, no pet.)(where evidence showed child 

had been left alone with defendant and injuries to child occurred approximately thirty minutes prior to child being 

brought to emergency room, evidence was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846 

(Tex. App.—Austin 1994, pet. ref’d) (undisputed medical testimony placing adult defendant alone with child

when fatal injuries were sustained supported conviction for injury to a child); Butts v. State, 835 S.W.2d 147, 151 

(Tex. App.—Corpus Christi 1992, pet. ref’d)(injuries sustained by child established by medical testimony to have 

occurred at time adult defendant admitted to sole possession of child).
–11–

manner appellant described. Further, Dr. Cox testified that the cause of K.S.’s injury “had to be 

a severe and violent event,” such as a car accident. Without evidence of such an accidental 

event, Dr. Cox agreed that there is “a certain element of intent that goes along with that in 

causing those injuries.” He concluded, “[b]ased on the degree of force needed to cause this 

injury, yes, I would expect someone would realize there could be injuries.” The evidence 

supporting the jury’s verdict of reckless injury to K.S. was not so weak that there was little 

certainty of conviction absent the alleged prosecutorial misconduct. See Mosley, 983 S.W.2d at 

259. We overrule appellant’s first issue.

3. Argument regarding burden of proof

Appellant’s third issue addresses a later portion of the prosecutor’s rebuttal argument:

They say that we need objective evidence, that the State should provide 

objective evidence before we should jump to a conclusion that there was 

some sort of additional act. Well, shouldn’t you require credible evidence 

that it was anything other.

THE COURT: You have five minutes.

MR. MILLICAN: Thank you, Your Honor. Did you get any credible 

evidence from them to say --

MR. ANTON: Your Honor, he is shifting the burden of proof.

THE COURT: Overruled.

MR. ANTON: May I have a running objection to that?

THE COURT: You may.

MR. MILLICAN: You are the judges of the credibility of the witnesses.

The only thing that Dr. Ophoven and Dr. Plunkett were making their 

decision on was the word of the defendant, that was the patient history they 

got. And I asked Dr. Ophoven, did you see the video of [appellant]? No, 

that is not important. That is step number one for her, to collect important 

information from her. And when she gets the best information that anyone 

could possibly show her of what happened to [K.S.], she said, I don’t want 

to see that. Don’t you think they should bring some credible evidence to 

support their theory.
–12–

Appellant argues that the trial court erred by overruling her objection because the prosecutor 

argued that she was required to “bring some credible evidence” for the jury to consider. Citing 

Abbott v. State, 196 S.W.3d 334, 344 (Tex. App.—Waco 2006, pet. ref’d), for the proposition 

that a prosecutor may not misstate the law, appellant contends that this argument erroneously 

assigned to her the burden of proof to raise a reasonable doubt as to her guilt. We disagree.

In context, the State made the argument as part of its contention that the expert witnesses 

for the defense were not credible. As we have explained, a prosecutor may argue that the 

witnesses for the defense are not worthy of belief. Satterwhite, 858 S.W.2d at 425. In addition, 

a prosecutor may answer arguments of opposing counsel. See Brown, 270 S.W.3d at 570. The 

prosecutor was addressing appellant’s arguments that (1) the objective facts supported the 

testimony of Drs. Plunkett and Ophoven;4 (2) there are no objective facts supporting the State’s 

theory of intentional injury;5 (3) the testimony of Drs. Price and Cox was unreliable;6 and 

(4) Drs. Plunkett and Ophoven were more credible.7 In addition, appellant’s counsel had 

emphasized that the State had not met its burden of proving “beyond a reasonable doubt that this 

was nonaccidental, intentional head trauma.” We conclude the trial court did not err by 

overruling appellant’s objection.

If error did occur, we would determine whether reversal is required applying the 

standards for constitutional error under rule 44.2. See Mosley, 983 S.W.2d at 259; TEX. R. APP.

P. 44.2(a) (court of appeals must reverse unless court determines beyond a reasonable doubt that 

 4 Appellant’s counsel had argued: “[T]he reason we brought down Dr. Plunkett, the reason we brought down Dr. Ophoven is to tell you 

what Dr. Price told you and the E.R. doctor told you, you can have a minor impact and have a major subdural. . . . Dr. Plunkett, Dr. Ophoven said 

that several days later, that there was another triggering event. In all likelihood in Dr. Plunkett’s opinion, it was when the child’s head impacted 

the doorjamb. And at that point given the pre-existing injury, there was a cascading event. And those are the facts.”

5 “So when they get up and talk to you about how this happened, ask yourself aside from their bald face assertion, what evidence do they 

have of this?”

6 Appellant’s counsel argued Dr. Price was “torn between her loyalty to the staff at Children’s and the truth,” and Dr. Cox “just simply 

won’t be honest with you.”

7 “Our doctors, I would submit to you, use your common sense on this, if you asked Dr. Ophoven or Dr. Plunkett, you got a straight answer. 

Not only did you get a straight answer, you got an answer that you can understand.”
–13–

error did not contribute to conviction). The jury charge stated “the prosecution has the burden of 

proving the defendant guilty, and it must do so by proving each and every element of the offense 

charged beyond a reasonable doubt.” The jury charge correctly required the jury to acquit 

appellant of the offense of injury to a child if the jury did not “believe from the evidence beyond 

a reasonable doubt” that appellant committed the offense, or if the jury had “a reasonable doubt 

thereof.” The record is devoid of any indication that the jury failed to follow the trial court’s 

instructions regarding the burden of proof. See Williams v. State, 937 S.W.2d 479, 490 (Tex. 

Crim. App. 1996) (appellate court presumes jury follows instructions given). That the jury held 

the State to its burden is demonstrated by its failure to find appellant guilty of intentional injury 

to a child. Further, there was sufficient evidence to support the jury’s verdict of reckless injury 

to a child, as we explained in our discussion of appellant’s first issue. We conclude beyond a 

reasonable doubt that any error did not contribute to appellant’s conviction. See TEX. R. APP. P.

44.2(a). We overrule appellant’s third issue.

B. Testimony during punishment phase

Appellant’s second issue relates to testimony given by K.S.’s mother during the 

punishment phase of the trial in questioning by the prosecutor:

Q. . . . [H]ow has this event, how has it affected you personally?

A. It changed my life. I lost my daughter at the age of 21. I was 21 years 

old. I never thought that I would bury my own child. And it is not like she 

died from being sick. It is not like she was born ill. She died because of

choices somebody else made. And for the last five years, I have had to 

suffer the consequences that my daughter is not here, she is not coming 

back. And when I got her back, she was not the baby that I gave birth to. I 

will never know what happened to my daughter and that’s fine, that’s fine.

Q. You say that, that you will never know what happened to your daughter, 

in our conversations you have actually told me that that’s kind of what you 

want to know the most, right?

A. Yes.
–14–

Q. But you have kind of come to terms to the fact that you are never going 

to find that out?

MR. ANTON: Your Honor, may we approach.

THE COURT: You may.

(Following proceedings were had at the Bench.)

MR. ANTON: There just isn’t anyway to get through this such is as [sic] an 

outrageous attack to remain silent. The only person they can find out from 

is [appellant]. And the only explanation she can give is post arrest: And

they have not asked the question once, but twice. This is outrageous, just 

simply the grossest violation of the Fifth Amendment that you can ever see. 

And I don’t think any instruction to disregard will cure after you plant the 

seed. And I just can’t believe . . .

THE COURT: Any response from the State?

MR. MILLICAN: Well, Your Honor, that does not necessarily imply that 

the defendant would have to say anything, that is a reality she lives with, 

everything that happens in our lives. Things that don’t happen in our 

presence, we never have a full understanding what they have seen with their 

own eye. And our question hasn’t come close to approaching it. The fact 

that she is never going to know what happened to her child. That does not 

imply that the defendant would have to testify in order to solve that.

THE COURT: The Court would overrule the objection.

MR. ANTON: Can we have a running objection.

THE COURT: You may.

(End of Bench Conference.)

A comment on a defendant’s failure to testify violates both the federal and state 

constitutions as well as Texas statutory law. Randoph v. State, 353 S.W.3d 887, 891 (Tex. Crim. 

App. 2011) (citing U.S. CONST. amend. V, TEX. CONST. art. 1 § 10, and TEX. CODE CRIM. PROC.

ANN. art. 38.08). The defendant has a separate Fifth Amendment privilege not to testify at either 

the guilt or punishment phases of trial. Id. Randolph addressed remarks made by the prosecutor 

during closing argument in the punishment phase. See id. The test stated in Randolph for 

determining whether a prosecutor’s argument violated a defendant’s Fifth Amendment right was 

“whether the language used was manifestly intended or was of such a character that the jury 
–15–

would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Id. 

The court explained, “[i]n applying this standard, the context in which the comment was made 

must be analyzed to determine whether the language used was of such character.” Id. If the 

prosecutor’s language “might reasonably be construed as merely an implied or indirect illusion, 

there is no violation.” Id.

Here, the prosecutor’s questions followed the mother’s testimony that she will never 

know what happened to her daughter. Appellant argues that because appellant was the only 

person present at the time of K.S.’s injury, “and thus only she could explain the manner in which 

it was incurred,” the jury necessarily took the State’s questions as a comment on her failure to 

testify. Appellant relies on Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990), in 

support of her argument. In Madden, the court stated, “[a]rgument that points to a lack of 

evidence that only the defendant personally can supply . . . violates the defendant’s right against 

self-incrimination.” Id. In Madden, the prosecutor argued that “there’s only one person here that 

knows the answer to all of these questions” about why the defendant acted as he did in 

committing the crime. Id. at 700. The court concluded the trial court should have sustained 

counsel’s objection to this argument as an improper comment on the defendant’s failure to 

testify. Id. The court also determined, however, that in the context of the arguments made and 

the evidence presented at trial, the error did not contribute to the jury’s guilty verdict. Id. at 701.

Viewing the entire record, the mother’s testimony could have been a reference to the fact 

that all of the medical experts who testified had differing opinions and explanations of the 

sequence and severity of K.S.’s injuries, leading to the mother’s conclusion that she will never 

know what happened to her daughter. Dr. Cox, for example, was asked, “may we ever know 

what the actual thing was that she was struck against or struck her?”, to which he responded, “by 

medical assessment alone, I can’t determine that, no.” He testified that he would need more 
–16–

information “for that to be knowable.” The mother’s conclusion was part of her testimony about 

the effect of the offense on her life. See Brown v. State, 2003 WL 21404050, at *6 (Tex. App.—

Dallas June 19, 2003, pet. stricken) (not designated for publication) (post-conviction testimony 

concerning effect on victim’s family of offense of injury to child generally relevant and 

admissible).

In addition, the mother’s testimony and the prosecutor’s follow-up questions were made 

after the jury heard, through numerous witnesses, appellant’s explanations of how K.S. was 

injured. Some of this evidence was from appellant herself, in the video recordings of her

statements to a police detective made on the day of K.S.’s injury, which were played for the jury 

by the State during the guilt/innocence phase of the trial. Further evidence was offered through 

the paramedics, doctors, and law enforcement officials who heard explanations from appellant. 

In context, it was not that appellant had not offered explanations for how K.S.’s injuries 

occurred, but that K.S.’s mother did not believe the explanations that appellant had already 

given. And at the time K.S.’s mother testified, the jury had already convicted appellant of 

reckless injury to a child, indicating that the jury did not find appellant’s explanations credible 

either. It was within the province of the jury to determine the credibility of the evidence. See, 

e.g., Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury is exclusive judge of 

credibility of witnesses and weight to be given their testimony). “A rational trier of fact could 

also consider such untruthful statements by appellant, in connection with other circumstances of 

the case, as affirmative evidence of appellant’s guilt.” Padilla v. State, 326 S.W.3d 195, 201 

(Tex. Crim. App. 2010); see also Garcia, 126 S.W.3d at 924 (when defendant makes statement 

which is admitted into evidence, State’s reference to statement and comparison between 

statement and other evidence collected is not comment on defendant’s failure to testify or right to 

remain silent).
–17–

We conclude that the prosecutor’s questions to K.S.’s mother were not “of such a 

character that the jury would necessarily and naturally take it as a comment on the defendant’s 

failure to testify.” See Randoph, 353 S.W.3d at 891. We overrule appellant’s second issue.

CONCLUSION

Having overruled appellant’s three issues, we affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47.2(b)

130930F.U05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
–18–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

ALICE ANNETTE STEELE, Appellant

No. 05-13-00930-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F-0845120-M.

Opinion delivered by Justice Schenck, 

Justice Fillmore and Chief Justice Thomas, 

Retired, participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 19th day of March, 2015.