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AFFIRM; Opinion issued January 28, 2011
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-08-01639-CR
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-01156-YK
Before Justices Bridges, FitzGerald, and Fillmore
Opinion By Justice Bridges
        Serena Staglin appeals her capital murder conviction. A jury convicted appellant and the trial court sentenced her to life confinement. In three points of error, appellant argues the trial court erred by withdrawing her guilty plea and setting the case for trial after the trial court accepted a prior plea bargain agreement, she received ineffective assistance of counsel, and the evidence is insufficient to support her conviction. We affirm the trial court's judgment.
        In July 2005, appellant had a baby boy, J.S., who was born ten weeks premature and had cocaine in his system. J.S. was removed from appellant and placed in foster care. After having custody of J.S. for several months, Dorothy Johnson adopted J.S. when he was two years old. J.S. had asthma and was small for his age because he was premature. Although Johnson was told not to return J.S. to appellant while Johnson had custody of J.S., appellant visited J.S. “all the time” after the adoption. Appellant wanted to get to know J.S. better, so Johnson allowed him to visit appellant for two weeks in August 2007.
        On August 29, 2007, John Zaby, a paramedic with the Dallas Fire Department, was dispatched to an address in Dallas where an unconscious child was reported. Upon arriving at the address, Zaby met appellant, who said she found J.S. in the bathtub. Zaby was immediately suspicious because J.S. was unconscious, lying on a table, and wearing a clean dry diaper. Zaby saw no signs of J.S. being wet. Two other fire fighters tried to resuscitate J.S., but Zaby thought J.S. had already died. Appellant commented to Zaby that “she wasn't supposed to have the baby,” and that was a “red flag” to Zaby, who notified the police.
        Paramedic Jose Garza arrived at the scene and saw a fireman carrying J.S., who was limp. The fireman handed J.S. off to Garza, who ran to his ambulance and started his assessment of J.S.'s condition. Garza began CPR on J.S. and discovered “a large amount of oatmeal” in J.S.'s mouth. Garza “scooped [the oatmeal] right out with a finger sweep,” flipped J.S. over, and hit him on the back three or four times to make sure his airway was clear. Garza suctioned oatmeal out of the sides of J.S.'s mouth and placed a tube into J.S.'s trachea. Nothing in the airway obstructed the tube, and Garza saw no obstructions in the light attached to the laryngoscope used to insert the tube. It seemed to Garza that J.S. was dead the whole time he was working on J.S.
        Dr. Ashkan Bidgoli was working in the emergency room when J.S. was brought in. J.S. was deceased when he arrived. Bidgoli removed the tube from J.S.'s airway and replaced it with a bigger tube to protect the airway. It was “very easy” to insert the bigger tube in J.S.'s airway. During Bidgoli's examination he found multiple bruises on J.S.'s body and what looked like a “whipping injury.”         Two police detectives and Eduardo Beal, a Child Protective Services employee, spoke with appellant at the hospital following J.S.'s death. Appellant said she woke at 10:30 a.m. and prepared oatmeal which she and J.S. both ate. J.S. had urinated in his bed, and appellant gave him Tylenol and prepared a bath for him. Appellant placed J.S. in the bathtub and left him for three or four minutes to get some toys. When she came back, she found J.S. unresponsive and thought he had fallen asleep. He was lying back in the bathtub with his back against the bathtub. Appellant took J.S. out of the bathtub and into the bedroom and began resuscitation attempts by blowing into J.S.'s mouth. J.S. was still unresponsive, and appellant took him into the kitchen and called 911. Appellant admitted whipping J.S. as a way of trying to potty train him.
        After visiting appellant's apartment, Beal and the detectives spoke again with appellant and asked her about a broken chair leg at the apartment and bruises under J.S.'s eyes. Appellant said J.S. had rolled off his bed and hit the foot of a desk and rolled and hit a desk chair with his face. Appellant began having labor pains and was later admitted to the hospital. The investigation was postponed until after she gave birth.
        Deputy Chief Medical Examiner Joni McClain performed an autopsy on J.S. and discovered bruises on his head, chest, back, and buttocks resulting from blunt force injury. Inside J.S.'s mouth, McClain found scrapes on the inner portion of his gums indicating J.S. was suffocated. McClain's examination ruled out an asthma attack or drowning as the cause of death, and she found nothing to indicate J.S. died from an accident or natural causes
        In January 2008, appellant was twice interviewed and gave a written statement that she had whipped J.S. on the day he died. Appellant demonstrated how she held J.S. face down with her hand on the back of his head and his face in the bed while she used her leg to pin him down. Appellant said she gave J.S. fifteen “licks” because he had urinated on the floor “over and over again.” In the course of holding J.S. down, appellant split J.S.'s lip open, re-injuring his lip that had been split open previously. Appellant knew that being whipped in this way could make it difficult to breathe because, appellant explained, her mother had sat on her face and she could not breathe.
        Appellant was initially charged with capital murder, and the charge was reduced to recklessly causing serious bodily injury to a child. Appellant entered an open plea of guilty. The trial court accepted appellant's plea, found her guilty, and proceeded to hear evidence pertaining to punishment. Based on the evidence presented, including appellant's testimony, the trial court concluded appellant's innocence had reasonably and fairly been raised, and the evidence of her innocence had not been withdrawn. The trial court sua sponte withdrew appellant's guilty plea, entered a plea of not guilty on her behalf, and set the case for a jury trial. Appellant's counsel stated he did not think the court had “anything that's factual” to justify the decision to withdraw appellant's guilty plea but stated a willingness to “just put this thing before the jury and just see what happens.” Appellant was subsequently re-indicted on a charge of capital murder under a new cause number, and the prior case was dismissed. Following a jury trial, the jury convicted appellant of capital murder. This appeal followed.
        In her first point of error, appellant argues the trial court erred by sua sponte withdrawing her guilty plea and setting the case for a jury trial after the trial court had accepted a plea bargain agreement. Appellant argues that a plea bargain agreement existed because the State reduced the charged offense in the prior case from capital murder to serious bodily injury to a child. However, the record contains no plea bargain agreement, and appellant was specifically admonished by the trial court that “there is no plea bargain agreement in this case.” Appellant stated she understood there was no plea bargain agreement. Thus, appellant's attempt to “enforce” the “plea bargain agreement” is misplaced because there was no such agreement. Further, by agreeing to “put this thing before the jury and just see what happens,” failing to object to the re-indictment, and failing to raise this issue during the subsequent jury trial, appellant has waived this argument. Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004); Castro v. State, 184 S.W.3d 252, 256 (Tex. App.-Amarillo 2005, no pet.). We overrule appellant's first point of error.
        In her second point of error, appellant argues she received ineffective assistance of counsel when her trial counsel failed to pursue his initial objection to the trial court setting the case for a jury trial and did not seek specific performance of the plea bargain agreement. As we have already discussed, there was no plea bargain in the prior case for trial counsel to have sought to enforce. Further, we evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
        The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63. When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Id. In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Id. Here, the record is silent as to why appellant's counsel did not persist in objecting to the trial court's decision to withdraw appellant's guilty plea and set the case for a jury trial. Accordingly, on this record, we conclude appellant has not met her burden to show her counsel provided ineffective assistance. See id. We overrule appellant's second point of error.
        In her third point of error, appellant argues the evidence is factually insufficient to support her conviction. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard.
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 895. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        Appellant complains the evidence is insufficient to show she knowingly caused J.S.'s death. A person acts knowingly with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b) (West 2003). The evidence shows appellant held J.S. down with his face pressed against the bed and whipped him on the day he died. Appellant knew from her own experience that being whipped in this way could make it difficult to breathe. Viewing this evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant knowingly suffocated J.S. by holding him down and whipping him. See Jackson, 443 U.S. 307 at 319; Brooks, 323 S.W.3d at 895. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
                                                          DAVID L. BRIDGES
Do Not Publish
Tex. R. App. P. 47