## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00144

- CR

JONAS RAY BRADSHAW , Appellant

v
. THE STATE OF TEXAS , Appellee

On Appeal from the 54th District Court McLennan County, Texas Trial Court No. 2020

- 456

- C2

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION

Jonas Ray Bradshaw pled guilty to seven counts of injury to a child 1 and one count of continuous family violence. 2 Bradshaw agreed to have puni shment on those offenses tried to the
trial court

. 3 On appeal , Bradshaw complains that one of the State’s witnesses was allowed to testify to sentencing , specifically to her de sire that Bradshaw receive the maximum sentence available. Although this testi m ony was not admi ssib l e , we find the error in admission harmless

. We affirm the trial court’s judgment s
. 4

1 See T EX

. P ENAL C O DE A NN

. § 22.04 (Supp.). Count o ne alleged a fi rst

- degree felony and counts two through seven alleged t h ird

- degree f

e l on ie s. See T EX

. P ENAL C ODE A NN

. § 22.04(e) , (f)

. Counts 1, 2, 3, 4, and 5 alleged injuries to C.K. Counts 6 and 7 all eged injuries to J

. K. Coun t 8 alleged i njuries against Mother.

2 See T EX

. P ENAL C ODE A NN

. § 25

. 11 (Supp.)

. T hi s was t he only count with a plea

- bargain agreeme nt. The State agreed to recommend a sentence of five years for this count. As a result of his plea agreement with the State, Bradshaw had no right to appeal his continuous family violence c onviction, which was Cou nt 8 of the indictment. Bradshaw did not attempt to appeal , and this opin ion does not address that conviction.

3 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX

. G OV ’ T C ODE A NN

. § 73.001. We are unaware of any conflict between prec e dent of the Tenth Court of Appeals and that of this Court on any relevant issue. See T EX

. R. A PP

. P. 41.3.

4 The trial cou r t sent enced B radshaw as follo ws: Count 1

– life sentence Count 2

– ten years Count 3

– ten yea r s Count 4

– t e n year s Count 5

– ten years Count 6

– ten years Count 7

– ten years Count 8

- five years The court o rdered the sentences to be serv e d co ncurren tly.3

I. B ackground
Bradshaw lived with Mother and her two young sons , C.K. and J.K. 5 Over the course of
their three

- month cohabitation , Bradshaw regul a rly beat the boys an d enga ge d in violent sexual
relations with Mother

. Mother acceded to Bradshaw in this regard in hopes of keeping him “happy , ” “less aggre ssive , ” and away from the boys. Bradshaw , himself , would later express his way of thinking t o a n invest igator with th e De part m e nt of Family and Protective Services : “Why
would I have to beat her if I can take it out on her during sex.” On January 5, 2020 , Mother took C.K. to an emergency room in Waco after Bradshaw brought C.K. , unresponsive, to M o ther

. 6 C.K. was f lo w n to McLane’s Children’s Hospital in Temple.
II. Trial Court Erred to Allow Testimony A bout Preferred Sentence The State presented s ev eral punishment witnesses. One was Grandmother, who was
Mother ’s mother an d the gr andmother of C

. K. and J.K. Over Br a d sh a w’s objectio n, Grandmother was allowed to testify that Bradshaw should be se ntenced to “whatever the

max [imum] punishment that there is.” That t es timony was inadmissible.

“ The wishes of the v i c tim ’ s family membe rs as to the defen d ant ’ s fate fall be yo n d the
par a meters of vi ctim

- impact evidence and are not admissible. ” Simpson v. State , 119 S.W.3d 262
272 ( Tex. Crim. App. 2003)

. The trial court er re d to allow Grandmother’s testimony regarding wh at punishment she felt was appropria t e. We now review th i s error f o r harm.

5 We use i nitia ls and generic titles for the two child complainants and their immedi a te family to p ro te ct th e victims’ privacy. See T EX

. R. A PP

. P. 9.10(a)(3); McClendon v. State , 643 S.W.2d 936, 93 6 n.1 (Tex. Crim. App. [Panel Op.] 198 2 ).

6 On t hat date , C .K. wa s ele ve n months old and J

. K. was about three

- and

- one half years old.4

III. Stan dard of Review An erroneous admission of testimony is reviewed for non

- constitutional error. See Potier v.
State , 68 S.W.3d 65 7, 663 (Tex. Crim. App. 2002) ( “Erroneous ev ide ntiary rulings rarely rise to
the level of denying t he f undamental co n stitutional rights

. ”) ; Solomon v. State , 49 S.W.3d 356,
3 65 ( Tex. Crim. App. 2001) ( stating that erroneous admission of opinion testimony reviewed f or

non
- constitutional error)

. “A c riminal con viction should not be ove r turned for non

- con st i t utional error if the appel l ate court, after examining the record as whole, has fair a ssurance that the error did not influence the jury, or had but a slight ef fec t.” Johnson v. State , 967 S.W.2 d 4 10, 417 (Te x. Crim. App. 1998). “ An y
. . . error, defe ct , irregularity, or variance t hat does no t affect substantial rights must be disregarded

. ” T EX

. R. A PP

. P. 44.2(b) . “ In considering non

- constitutional error, an

ap pellate court must disregard th e er ror if the court, ‘after examining t h e record as a whol e, h as fair assurance that the error did n ot influence the jury, or had but a slight effe ct. ’ ” Bagheri v.
State , 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) ( q uot ing Solomon , 49 S.W.3d at 365; T EX

. R. A PP

. P. 44. 2(b) )

. In a bench trial , the trial court ac ts a s fact

- finder. See Watson v. State , 204
S. W.3d 404, 440 n. 120 ( Tex. Crim. App. 2006) ( Cochran, J., dissenting ) (plurality op.)

. IV. Error W as Harmless
A. Evidence
The trial court heard two days of punishment evidence. After reviewing t hat evidence,

we c on c l ude that the error 7 in admittin g Grandmother’s opi n ion about punishment did not affect Bradshaw’s substantial rights and was harmless. See T EX

. R. A PP

. P. 44.2(b).

7 On t he record of this benc h trial , w e conduc t a harm analysis. See Gipson v. State , 844 S .W.2 d 738, 741 ( Tex. Crim. App. 1992)

.5

Mother met and starte d dating Bradsha w in August 2019. By Octobe r , h e had moved in

w i t h Mother and the boys

. Bradshaw regularly beat the boys, though C.K. received the worst of
it. 8 Bradshaw beat C.K. if he crie d or did not take h is bottle

. 9 Mother d esc ribed some of the
ab use: “If [C.K.] wouldn’t be a really quiet baby, the way [B rad s ha w] wanted him to be quiet, [Brad s haw] would go in t h ere and he would take [C.K.] by his foot and hang him upside down
and hit [him ] on the wall.” If Mother was not su ffi ciently attentive to Bradshaw, “[ h ] e would
take it out on the ki ds” by “hold[ing ] t h em underneath the water” at bath t i me , and “ they w ould be choking, wanting air, and he would pu ll th em out right befor e they passed out.” If the boys struggled or r esi sted , “ [ Bradshaw ] would slap them a nd tell them to stop and to behav e.” On January 5, 20 20, Mother took C.K. to an em e rgency room in Wac o
. C.K. was covered “he ad to toe almost ” with bruises of various age s and color s
. The hospital staff did not
have a ce rvical collar sm all enough for the eleven

- month

- old , and the staff was using their ha n ds to keep the c hild’s spine stable. C.K. h a d bleeding in his b rain and behind his eyes. The staff

was very concerned about the extent of C.K. ’s injuries. Though gen erally calm and quiet, C. K. began vomiting, which was consistent wit h head trauma . C .K. wa s diagnosed as having suffered

a t r aumatic brain injury. C.K. was sent by Careflight to McLane’s Children’s Hospital in Temple.
Waco P olice O fficer Jason Ston e investigated C.K. ’s injuries and the alleg ations against
Bradshaw

. I n descr ibing the sev e ri ty of the beatings C.K. suffered, Stone testified , “ [That was]

8 Mother tes tified , “ [ J .K ]

. was the one child [Bradshaw] didn’t reall y both er be c au s e [ J .K.] had learned to . .

. like, if Jonas i s really, really mad I’m going to d o exact ly what Jonas says .”

9 Bradshaw admitted t o the Department i nvestigator , Ol g a Solyakova , that h e beat C.K. for cry in g.6

probabl y one of the worst beatings that I’v e ever seen a chi ld take in the time that I’ve been a peace officer or just a human on this planet.” 10 At the Waco hospital, Bra dshaw called Mot her , i nstructing her how to answer questions and what to tell staff and inves t igators
Crime S cene T echnic i an Marissa Pophann photographed C.K. ’s injuries at the Waco hospital. Of his injuries, Pophann testi fied , I n my entire eight years of working at t he p ol ice department, this is, hands down by f ar, the worst case of child abus e that I’ve ever seen. I have worked multiple cases of murdered children, and they displayed less extensive injuries than the injur ies I sa w on this child that d ay. [ 11 ]
She obse rve d s everal cuts on C.K. ’s face and fi ngers and on the inside of his lips. P o phann also photo graphed “sever al bruises and bite marks scattered around [ Mother ’s] body,” and she photog raphed bruising on J.K. ’s righ t le g and buttocks. 12
So lyakova intervie wed Br adshaw

. Bradshaw admitted that he beat J.K., a nd that he hit
and bit C

. K. 13 During the interview, Bradsh aw said he was “where he b elon g[ed].” The
i nterview was conducted in the McC lennan County J ail. Bradshaw was in jail from Janu ary 5,
202 0, u nt il trial, September 12 and 13, 2022. The jai l sup e rvisor described Bradshaw’s attit ude
toward incarceration as “nonchalant.” According to the supervisor, Bradshaw acted as tho ugh

10 S tone participated in the interview of Br a ds h aw
. Br adshaw never used C .K. ’s name. Rather, he re ferred t o the infant as “the l i ttle f * cker.” D uring the almost two

- hour i nterview, Bradshaw n ever asked about C .K. ’s condition or well

- being.

11 D escri bing th e reactions of other la w enforcement o ffi c er s wh o saw C.K. at the hospital, Pophann sai d,

“ E verybody who ca me into contact wi t h the child appeared very s hocked and shaken. Multiple grown me n and women with tears in their eyes. Jus t an overall very shocki ng, taken aback reaction .”

12 At the fam i ly ho me, Pophann observed and photographed a chai n lock o n the outside of the door t o t he master bedroom and e vidence that a chain lock had been in s talled then removed on the doo r outside t he children’ s play room. The electricity to the p layroom was al so t ur n e d off at the breaker box

.
13 Solyakova also t estified that Br adshaw never refe r red to C.K. by his name , i nstead calling him “the kid

. ”7

the jail’s rules did not apply to him , and he had to cons ta ntly be mo ved to different pod areas
because he would incite insubordina tion and misbehavior amo n g other inmates.
Dr. Erica Ward , a pediatrician at Mc Lane’s Children’s Hospital , examined C.K. after he

was flown to the hospital in Tem ple. She described C .K. ’s exte nsi v e injuries , which inc luded the following :

• d iffused facial bruising and abrasions;

• b ruising and petechiae on his g ums and upper frenulum;

• b ruising on both shoulder s , with pattern bruising on the left shoulde r; 14

• b ruising of abdomen, right ear, 15 an d bo th eye s ;

• b ilateral subdural hematomas;

• “ Bilateral multiple i ntraretinal hemorrhages ” ; and

• e xhibited “[a]ltered mental statu s ”

– “was not alert and respon sive .”
C.K. ’s injuries were not consistent with those a c hild would incur , even if he had a “big fall

. ” 16
He h ad “ a large abrasion where the skin ha[d] been compr omised on the side of his face , ” which
could possibly have been a b ur n injury. Regardless, that inj ury was uncommon ; it was “clearly
trauma to the fac e” and without any “clear history” for expla nati o n
. Dr . Ward testified that the multiple facial injur ies C.K. exhibited were not “commonly see[n] . . . all throughout the fac e

14 Treatment notes stated that C.K.’s right sh oulder popped with mo vem ent.

15 Dr. Ward said b ruis ing of the ear s w a s “ ver y rare ,” as ears tend to be “very prote cted

. ”

16 Bradshaw initially told law enforcement that C.K. had fallen down the home’s stairs and hit his head on th e tile floor.8

with normal play at [ C.K. ’] age. ” 17 She called C.K. ’s retinal hemorrhages “very seve r e” and “very rare.” By the tim e of trial , C

. K

. was about three years , eight months old a nd nonve rbal. In cognitive testing a year before trial, C.K. exhibited the i ntellectual capability of an eigh t

- month
old. 18 Grandmother testi fied that he could only say “G,” as if trying to sa y “Gi gi,” his

a ffe c ti onate name for her. Af ter C.K. was released from the children’s hospital , the boys stayed with their grandparents. I t took some time for the bo ys to resume eating , and it was difficul t to find things they would eat. Grandmother tes tifie d that C.K. wo u ld only eat cardboard for almost

a year , 19 then was able to eat formula with baby cereal. C.K. was very violent, banging his h ead and biting people. He cried cont inuously and had difficulty s leeping. Bathing the boys was almost impossibl e ; th ey would no t t olerate water on the ir faces or heads. Eventually the grandparents were able to bathe the children by pretending bathing w as swimming.
As explain ed abov e, Grandmot her was allowed to testify over Bradshaw’s objection that

s he tho ught Bra dshaw dese rve d “ whatever the max [imum] punishment” available. Without

17 The treatme nt notes with annot ation s around the diagram of an infant’s bod y i n di c ate “ to tality of facial injuries ove r majority o f surface area.”

18 C.K. was diagn o sed with autis m in July 2022, about two months before trial. The State pre s ented testimony from an occ upational ther apist who wor ked with C.K. for a bout a year, begin nin g a b out two months after his hospi taliz ation i n Ja n uary 202 0

. The therapist testifie d to significant developmental delays C.K. exhibit ed in several categories s uch as gross and fine motor skills and cog nition

. Howe ver, she could not testi fy that , if C .K. su f fered a traumatic br ain injury from Bradshaw’s beatings, that injury caused the d e velopmental delays. She did testify, though, that she had observed “ small improvements, very minor imp rovements, but not a t th e r ate [she] would hav e lik e d to see” an d t

h at she had encountered with other children.

19 G r andmother testified, “He would onl y eat like cardboard. I don’t know why, just cardboard. He loved cardboar d .”9

objection, Mother testified that she wanted “justice” and “the harsh e st pun ish ment” the trial c ourt

co uld assess. 20
B. Analysis The prejudicial effect, here, of allowing Grandmothe r’s op i nion of th e a p p r opriate sentence for Bradshaw, did not affect Bradshaw’s substantial rights

. The record is replete with description s of t h e injuries to C.K. and to J.K. T he injuries to C .K. quite reasonably could have
led to the maximum sentences in coun ts one, tw o , t hr ee, four, and five. While the evidence was
not as exhaustive on the injuries to J.K. , Bradshaw’s cruelty and viol ence tow a rd C.K. co uld
reasonab ly have inf

ormed the trial court’s decision to assess the maximum sente nces for counts
six and seven for the in

juries to J.K. 21

20 The State argues that Mother’s t est imony w as essent ially the same as Grandm other’s, and Bra d sh a w’s fail ure to ob ject to Mother’s testimony cu r ed the erro neous a dmission of Gran d mother’s testimony. However, the cases establish ing that proposition a d dress the admission of factu al evidenc e. E.g. , L an e v. St ate , 151 S.W.3d 188, 19 2

– 9 3 ( Tex. Cri m. A pp
. 2004) ( victim’s out

- of

- court identification o f defendant not ob jected to when ad m itted under medical diagnosis hearsay exception but admitted over exci t ed

- utterance objection); Valle v. State , 109 S.W. 3 d 50 0 , 50 9 (Tex. Crim. App. 2003 ) ( f ailu re to obj e ct second time witness testified he feared for hi s life by ap peari ng to testify agai n st defendant); Rodriguez v. State , 630 S.W.3d 522, 527 (Tex. App.

— Wac o 2021, no pet.) ( failure to ob ject when dete ctive re l a ted a second hearsay st atement that another pe r so n told the detective a suspect was in the house )

. Here, it wa s not a fact that w a s proved by objected

- to and unobjected

- to testimony but , rather , opini o ns as to punishment by two dif ferent witness es. Cf. Anders on v. State , 71 7 S.W.2d 622, 628 (Tex . C r im

. App. 1986) ( “I nadmissible evidence can be ren d ered harmless if other evidence at trial is admitted with out objection and it proves the same fact that t he inadmissible evidence soug ht to prove

. ” ( emphasi s a dded) ) ; Crocker v. St ate , 573 S.W.2d 190, 2 01 ( Te x . Crim. App. [Panel Op.] 197 8 ) (“ [T] he imprope r admission of evidence does not co n stitute reversible error if the same facts are shown by other evidence w h ich is not challenged

. ” (emph asis added) )

. U nder the f ac ts of t his cas e, we will consider the u n o bj e cted

- to testimony of Mother in our harm analys i s.

21 See T EX

. C ODE C RIM

. P ROC

. A N N

. art. 37.07 (a)(1) (Sup p.) ( stating that prior crimina l record, evidence of other ext r aneous crimes or bad acts, i nter ali a , may b e consider ed in setting pu nishment).10

V. Conclusion
We find that none of Bradshaw’s substantial rights were affected by the erroneo us admis sion of Grandmother’s opini on on punis hment

. Because the error w as harmless, we overrule Bradshaw’s point of err or.
W e affirm t he t ri al court’s judgments

.

Jeff Rambin Justice
Date Submitted: May 8, 2023 Date Decided: June 30 , 2023
Do Not Publish