COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ARL ENA L I

NDL EY, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00149- CR

Appea l from Criminal District Court No. 6 of Da llas County , Texas (TC # F- 06-89089-X)

O P I N I O N Arlena L indley appea ls he r conviction of injury to a child. Appellant waived he r rig ht to a jury trial and enter ed an open plea of g uilty

. The trial court fo u n d Ap p el l an t g uilty and assessed punishment at imprisonment for a ter m of forty -five y ear s. We affirm.
F ACTUAL SUMMA RY The indictment alleg ed that Appellant intentional l y and knowing ly , by omission, cause d serious bodily injury to the complainant, Titches L indley , a child fourtee n y ear s of ag e or y oung er, by failing to se ek medical attention for him a nd by failing to protec t him from Alonzo Turne r I I I

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The indictment also alleg ed that Appellant had a leg al and statutory duty to act and she had assumed

car e, custody , and control of the complainant. Appellant waived her rig ht to a jury trial and enter ed an open ple a of g uilty

to the indictment having reje cted the State’s pl ea offer of a ten y ear term of imprisonment. The State offe red into evidenc e Appellant’s written judicial confe ssion admitting all of the elements of the offe nse alleg ed in the in dictment. The rec ord ref lects that the trial court

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o r h i s r o l e i n t h e d e a t h o f T i t c h e s L i n d l e y . 1admonished Appellant in acc ordanc e with Article 26.13 of the Code of Criminal Procedure. The

court conclude d th at Appellant was mentally competent, that she understood the nature and
conseque nces of the char g e, and that Appellant’s waiver s and g uilty plea wer e made knowing ly , fre ely , and voluntarily

. Thus, the trial court acc epted Appellant’s g uilty plea. Both the State and defe nse off

ere d evidenc e at the g uilty plea r eg arding the offe nse. Appellant an d h er son, Titches, lived in an apar tment with Appellant’s boy friend, Alonzo
Turner I I I

. Appellant’s friend, L atricia L ove Chance , went to visit them ear ly one morning

. Chance

saw T i t ch es sitti ng outside in his pajamas eating oatmeal. Even though it was a chilly October morning , Titches was n o t we ar i n g s h oes. Chance went inside and saw Turner in the living room while Appellant was in a bedroom g ather ing Titches’ clothes and prepa ring to leave

. Chance went into the bedroom and visited wi t h Ap p el lant for about twenty minutes. Turner broug ht Titches inside the apar

tment and told him to finish his oatmeal. Turner beca me ang ry beca

use Titches had defe cate d on himself, so he made Ti t ch es b en d o ver and touch his toes while Turner struck him

sever al times with a thi ck belt. Turner g rabbe d Titches’ left arm and threw him ag ainst the wall.
He threa tened to “whoop” Titches unless he finished his oatmeal. Titches spit out the oatmeal and
Turner pushed Titches’ fac e into the oatmeal on the floor. Titches was cry ing and Turner put Titches

on his back and stepped on his chest. Both Chance and Appellant saw what Turner was doing to Titches. Turner then picked up Titches by the neck and put his fac e in the toilet while flushing it.
He broug ht T itches back into the bedroom and Titches appea red wea k. Turner made Titches walk back and forth and threa tened to “whoop” him ag ain if he fell. When Titches rea ched Appellant, he told her he was tired. Chance testified that both she and Appellant wer e scar ed. Chance wanted to

remove Appellant and Titches from the situation but Turner told them that Appellant had better not touch Titches or he would kill her. Despite that war ning, Appellant rea ched for Titches as they wer eleaving but Turner took the child awa

y from her and slammed the door

. Chance and Appellant went first to a pay phone so App ellant could call for help but the phone was not w orking

. They then went to the home of Chance ’s cousin, Anthony L ove, and told him what Turner had done. Concerne d and upset about what he had hear d, L ove offe red his phone
to Appellant so she could call the police, but she called Turner instead and asked wher e Titches was. Turner told her he was at a hospital but she knew it was n o t t ru e. L o v e beca me ang ry beca

use Appellant did not appea

r conce rned about Titches, so he asked her to leave

. They stay ed at L ove’s house for about ten minutes befor e returning to the apar tment. Turner had chang ed Titches’ clothes and put a band-a id on his fore head. Turner g ave Appella n t some money and told her to g o buy
g roce ries and promised he had not done any thing to hurt Titches. Appellant and Chance went to the
g roce ry store, the dollar store, and a beauty supply house. After they finished shopping about forty minutes later, Chance dropped off Appellant at the ap ar t m en t

. Appellant called C hance later and told her Titches ha d died. Appellant g ave two w ritten statements to police. I n the first st atement given on the day of the offe nse, she e x plained that Turne r whipped Titche s with a belt beca use he “ use the ba throom”

on himself. She y elled at Turner and he told her to ge t her thing s and leave. Whil e removing her clothes from the closet, a friend came over and beg an talking to her. Turner came into the room and told her to leave . As they wer e leaving with Titches, Turner took Titches by the hand and said he

was stay ing. They left but Appellant returne d later and noticed Turner had chang ed Titches’ clothes. When Appellant asked Titches if he wer e okay , he said he was tired. Appellant told him to lay down and g o to sleep. Appellant went to t h e s t o re an d when she returne d thirty or forty minutes later, Titches was g asping for brea th with his ey es open wide and not blinking. Titches stopped brea thing and Turne r ca lled an ambulanc e.L ater t h e same day , Appellant told the police office rs she wanted to g ive them another

statement beca

use she had not included ever y thing in the first one. I n the second written statement, Appellant said that in addition to whipping Titches with a belt, Turner had put Titches’ head in the toilet an d ru b b ed his fac e in the carpet where Titches had vomited. When Turner beg an to choke Titches, Appellant tried to stop him but he pushed her down on the floor and told her to ge t out of the apa rtment. Detec tive Warren Br eedlo v e o f the Dallas Police Depa rtment investiga ted the death of Titches L indley

. He lear ned thro u gh interviewing Appellant and witnesses that the child abuse beg an at approximately 8 or 9 a.m. and that Appellant left the residenc e at some point that morning , returne d, and left ag ain to g o shopping. Parame dics wer e not called until Appellant returne d to the
apar tment at around 1:30 or 1:45 that a fternoon.
Dr. J eff rey Ba rnar d, the Chief Medica l Ex aminer for Dallas County and the Direc tor of the Southwestern I nstitut e of For ensic Science s, perf ormed the autopsy and his repor t was admitted into evidenc e. Dr . Ba

rnar d found bruises a

nd abra sions on the child’s fac e, larg e bruises on the thighs and rig ht side of the chest and rib cag e, and bruises on the fore arms. The body also had bruising on the rig ht mid-back and extensive c ontusions of the lower back on both side s, the buttocks, and the leg s. The internal examination reve aled a larg e amount of hemorrha g e in connec tion with the bruises

on the body and a substantial lace ration of the liver. Dr. Ba rnar d also found fra cture d ribs. The child

s u ff ered loss of blood as a result of these injuries and died as the result of multipl e blunt-force injuries. I n Dr. Ba

rnar d’s opinion, the injuries wer e co n s i s tent with being whipped with a belt, thrown ag ainst a wall, and kicked multipl e times. I f the child had been g iven medical car e, howeve r, he could ha

ve bee n resusc itated bec ause the blood loss was a prog ressive e vent. Appellant testified that Turner had phy sically abused both Titches and her in the past but shehad not been able to l ea v e h i m b ec ause he threa tened to kill her family

. On t he day Titches died,

Appellant saw Turner whip him with a belt, throw him ag ainst a wall, and rub his fac e on the floor. During her direc t examination, Appellant said she did not have any idea how serious the beating was and she did not have any idea that Titches was g oing to die that day

. But on cross- ex am i nation, Appellant admitted she knew it wa s a serious beating

. She tried to take Titches with he r when she left the apar

tment but Turner would not allow it. Concerne d about what Turner would do to Titches, Appellant and Chance drove to a pay phone. The pay phone was not working s o they went to a friend’ s house. She used the friend’ s cell phone to call Turner and he told her he had taken Titches
to a hospital. He th en s ai d they would take Titches to the hospital when she returne d to the
apar tment. Both Appellant and Turner knew Titches neede d hospital trea tment. She did not call the police beca

use she was afr aid and she thought Turner might calm down if she did what he told her. Appellant and Chance then went to Anthony L ove’s house and Appellant ag ain called Turner to find
out if he had returne d to the apar tment. Chance drove Appellant back to the apar tment. Turner told 2 Appellant that Titche s was complaining that his stomach hurt. They wanted to take Titches to the hospital but they did not have any transporta tion be cause Chance said she had to return the car she

was driving to the owner . Turner ref used to let Appellant use his cell phone to call for an ambulance and he told her that if they took Titches to the hos pital, the authoriti es would take him awa y from her. Turner forc ed Titches to run back and forth while the child complained he was tired. Appellant observe d Titches stumbli ng but she believed he was just tired. Turner finally put Titches down on

a bed. He told Appe l l ant to g o to the g roce ry store so she and Chance left the apar tment. They
returne d in thirty to forty -fiv e minutes and Appellant chec ked on Titches afte r car ry ing in the
g roce ries. He appea

red strang e and had his ey es open wide while turning back and forth in the bed.

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t t h e a p a r t m e n t a t s o m e p o i n t t h a t m o r n i n g . 2When Turner told her to put awa y the g roce ries, she left the room. When she chec ked on him ag ain, Titches was not brea thing. Turner tried to tell Appellant Titches was okay , but she knew he was not, and Turner called 911. An ambulance arr ived and transport ed T i t ch es to the hospital. A police office r ar rived a t the apar tment and took Appellant to the hospital.
At the conclusion of the evidenc e, the trial court found Appellant mentally c o mp etent to enter her plea and that he had made the plea fre ely and voluntarily

. Ba sed on the evidenc e prese nted, the
court found App ell ant g uilty bey ond a rea sonable doubt of injury to a child as char g ed in the indictment. After hear ing arg ument from the State and defense, the co u rt assessed punishment at imprisonment for a ter

m of forty -five y ear s. This appea l follows.
VOLUNTARINESS O F THE GUILTY PLEA
I n two rela ted issues, Appellant contends that her plea of g uilty is involuntary beca use it was made without a complete understanding of the nature of the char g e ag ainst her and the conseque nces of enter ing a g uilty plea. Pointi ng to her testimony that she was unawa re of the extent of the child’s injuries, Appellant arg ues she could not have intentionally or knowing ly cause d serious bodily injury
to her son by failing to protec t him from Turner or by failing to se ek medical car e. Appellant does

n ot alleg e that the trial court had a duty to withdraw the g uilty plea when prese nted wi t h t h i s evidenc e, but instead contends that her g uilty plea was involuntary and her rig ht to due proce ss has been violated beca

use the re co rd does not aff irmatively show she had a full understanding of her
g uilty plea and its conseque nces. The State, citing Mende z v. State , 138 S.W .3d 334 (Tex.Crim.App. 2004), responds that Appellant’s voluntariness challeng e is waived beca use she did not reque st that her guilty plea be withdrawn and has ra i s ed h er co m p laint for the first time on appea l. Appellant takes issue with the State’s inter preta tion and application of Mende z . Rule 33

. 1 o f t he Tex as R ules of Appellate Procedur e requires a party to prese rve error forappellate revie w by making a timely and specific objection or motion and obtaining an adverse

r uling. T E X .R.A P P .P. 33.1. This prese rvation require ment does not apply to two cate g ori e s o f e r r o r s : violations of rig hts which are waivable only and denials of absolute sy stemic require ments. Mende z , 138 S.W .3d at 342. A defe ndant has a rig ht to plead not g uilty

. Mende z , 138 S.W .3d at 344. This is a waivable -only rig ht, that is, one that must be implemented by the sy stem unless expressly waived. Id. The waiver of the rig ht to a plea of not g uilty is sur rounded by proce dural protec tions both constitutional and statutory

. Id. The constitutional rig hts that are aff ecte d may include the rig ht
to have the State prove g uilt bey ond a rea sonable doubt and the rig ht to confr ont and cross-e x amine witnesses ag ainst the defe ndant. Id. Due pr ocess of law re quires that “[w]aivers of c onstitut ional rig hts not only m u s t b e v o l untary but must be knowing , intelligent acts done with sufficie nt

awa renes s o f t h e relevant circ umstances and likely conseque nces.” Id., quoting Brady v. United
States , 397 U.S. 742, 748, 90 S.Ct

. 1463, 25 L .Ed.2d 747 (1970). Due proce ss of law is not denied by a convic tion based on a plea of g uilty that is acc ompanied by

a strong fac tual basis for the ple a demonstrated by the State and a defe ndant’s clea rly expressed desire to enter it despite her profe ssed belief in her innocenc e. Id. , citing No r th Carolina v. Alford , 400 U.S. 25, 38, 91 S.Ct

. 160, 27
L .Ed.2d 162 (1970).
I n Mende z , the Court of Criminal Appea ls held that a defe ndant has the rig ht to chang e a plea of g uilty to a plea of not g uilty when evidenc e inconsistent with g uilt is introduced during a jury or non-jury trial, but the t rial court h as n o d u t y t o chang e the plea sua sponte

. Id. at 350. The court explained that a defe ndant’s decision to plead gu i l t y entails the waiver of some important,
“wa ivable-only ” rig hts. Id. Trial courts have a duty to implement those rig hts, but afte r a court has fulfilled those duties and a defe ndant has made a valid waiver of those rig hts, it is a

ppropriate that the def endant be require d to take some a ffirma tive action to “don the a rmor ag ain.” Id.Appellant does not c ontend that the trial court should have withdrawn he r g uilty plea a fter hear ing the evidenc e at the plea proce eding

. I nstead, she arg ues that her g uilty plea was involuntary b ec au s e h er t estimony shows it was made without a complete understanding of the nature of the char g e ag ainst her and without knowledg e of the conseque nces of her g uilty plea. Appellant seeks to disti ng uish her voluntarine ss and due pr ocess a rg uments from the a

rg ument made in Mende

z . Some courts, i n cl u d i ng this one, have held since Mende z that a defenda

nt must prese rve a complaint reg arding the voluntariness of a gu ilty plea. Starks v. State , 266 S.W .3d 605,
613 (Tex.App.--El Paso 2008, no pet.); Neely v. State , No. 02-07-254- CR, 2008 WL 1932140 (Tex.App.--F ort Worth May 1, 2008, no pet.)(not desig nated for publication); W ilson v. State , Nos. 05-05-01100- CR, 05-05-01101- CR, 05-05-01102- CR, 2006 WL 1892381 (Tex.App.--Da llas
Dec

. 20, 2006, pet. ref

’d). I n W

ilson , the Fifth Court o f Ap p ea l s co nsidered the issue in circ umstances simil ar to the instant case wher e the defe ndant, like Appellant, contende d on appea l that his plea was involuntary based on tes timony introduced during the g uilty plea proce eding

. W i l s o n , 2006 WL 1892381. The court of appea ls applied Mende z, noting that Wil son, lik e t h e defe ndant in Mende

z , did not arg ue there was err or in the proce eding s leading up to, and including, his g uilty p l ea . W

ilson , 2006 WL 1892381 at *3. Be cause the trial court admonished Wil son pursuant to Article 26.16 of his constitutional and statutory rig hts both in w riting and orally at the 3
g uilty plea, the court of appea ls found that a prima facie showing had been made that Wil son’s plea

o f gu i lty was knowing and voluntary , and the burden shifted to him to show he did n o t fu l l y understand the conseque nces of his plea. W ilson , 2006 WL 1892381 at *3, citing Mallet v. Stat e , 65 S.W .3d 59, 64 (Tex.Crim.App. 2001). The court of appea ls conclude d that, althoug h Wil son did
not arg ue that the t rial court should have sua sponte withdrawn his g uilty plea or conducte d some

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. 3other proce eding , his claim that his g uilty plea wa s not voluntary based on his testimony at the

punishment hear ing could not be raised for the first time on appea l. Id. , citing Mende z , 138 S.W .3d at 350. The c ourt of appe als furthe r found that be cause Wil son waived his rig ht to a jury trial and the trial court afte r hear ing the punishment evidenc e found him g uilty , the trial court fulfilled its role of decidi n g W i l s o n ’s g uilt or innocenc e based on the evidenc e. Id. , citing Aldrich v. State , 104
S.W .3d 890, 895 (Tex.Crim.App. 2003). Appellant is in the same circ umstances as the defe ndant in W ilson

. The rec ord ref

lects that Appe l l ant enter ed a g uilty plea, signe d written plea admonishments and a judicial confe ssion admitting g uilt , and waived her constitutional and statutory rig hts with an understanding of the
conseque nces. Fur

ther, Appellant does not claim there was any err or in the proce eding s leading up to, and including, her g uilty plea. She instead arg ues that her tes t i m o n y s h o ws she did not understand the nature of the char g es ag ainst her beca use she testified she was unawa re of the extent of the child’s injuries, and there fore , she could not ha ve intentionally or knowing ly cause d serious bodily injury to her son by failing to protec t him from Turner or by failing to seek medical car e. We
ag ree with the Dallas Court of Appeals that a defenda nt who asserts her guilty plea is invo l u n tary due to t he introduction of evidence inconsistent with g uilt at t he guilty plea procee ding must seek
to withdraw her g uilty plea in order to prese rve the issue for appellate revie w. See W ilson , 2006 WL
1892381 at *3, citing Mende z , 138 S.W .3d at 350. Be cause Appell an t fa i l ed to timely reque st withdrawa l of her plea of g uilty , we conclude she is not permitted to raise the issue for the first time
on appea l. Id.
Even assuming Appellant is not require d to prese rve this issue for revie w, we find it is without merit beca

use Appellant has not car

ried her burden of showing she did not fully understand the char g es ag ainst her or the conseque nces of her g uilty plea. Appellant was proper ly admonishedbefor e waiving her rig ht to a jury trial, signing a judicial confe ssion, and enter ing a plea of g uilty

. Despite her claim that she was unawa re of the sever ity of her son’s injuries, Appellant also testified she knew Turner had inflicted a serious beating on Titches an d she contemplated calling an ambulance for him even before she l eft the apar tment the s econd time. Appellant’s co n t radictory testimony does not demonstrate she did not understand t h e nature of the char g e ag ainst her. We

overr ule I ssues One a

nd Two. The judg ment of the trial c ourt is affir med.

Marc h 24, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore McClure, J., R ivera , J ., and Salas-Me ndoza, J udg e Salas-Mendoza, Judge, sitting by assig nment (Do Not Publish)