Affirmed as Modified and Opinion Filed March 4, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00444-CR
BRANDON GORDY, Appellant V. STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F18-00751-T
MEMORANDUM OPINION Before Justices Schenck, Osborne, and Partida-Kipness Opinion by Justice Osborne Brandon Gordy appeals the trial court’s final judgment convicting him of
murder while committing or attempting to commit the felony offense of injury to a
child (felony murder). The jury found Gordy guilty, found that he used or exhibited
a deadly weapon during the commission of the offense, and assessed his punishment
at imprisonment for life. Gordy raises seven issues on appeal arguing: (1) the
evidence is insufficient to support his conviction because it fails to establish his
identity as the perpetrator; (2) the evidence is insufficient to support his conviction
because it fails to establish he committed or attempted to commit an act clearly
dangerous to human life; (3) the trial court erred when it overruled his objection to the admission of extraneous-offense evidence; (4) the trial court erred when it denied
his motions for mistrial; (5) the trial court erred when it overruled his objection to
the jury charge because it included the lesser included offense of felony murder; (6)
the trial court erred when it impliedly sustained the State’s objection to his request
that the jury charge include the mens rea of recklessly in the lesser included offense
of injury to a child; and (7) the trial court erred when it impliedly sustained the
State’s objection to his request for the jury charge to include the defense of
emergency medical care. In a cross-point, the State requests that this Court modify
the trial court’s judgment to accurately reflect the jury found Gordy used or exhibited
a deadly weapon during the offense.
We conclude the evidence is sufficient and the trial court did not err except
by signing a judgment with mistakes in it. The trial court’s final judgment is
affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
D.D., a four-year-old boy, lived in an apartment with his mother, his three-
year-old brother, Gordy who was his mother’s boyfriend, Gordy and his mother’s
six-month-old daughter, and Gordy’s four-year-old son. According to D.D.’s
mother, the boys liked to play together but they were not rough.
On July 14, 2017, at around 6:30 a.m., D.D.’s mother checked on the children
before she left for work. D.D. woke and she told him to go back to sleep. She did
not see any marks or bruises on D.D. before she left for work that morning.
–2– Later that day, at 1:58 p.m., the Dallas Fire Department responded to a 9-1-1
call concerning an unresponsive four-year-old male child. When they arrived at the
apartment, they found two children between one and five years old sitting on the
couch. Gordy was in the bathroom performing cardiopulmonary resuscitation (CPR)
on D.D. There were no other adults in the apartment. D.D. had no pulse and was
not breathing. He was taken to the hospital by ambulance. A neighbor took Gordy
and the other children to the hospital. The neighbor stated that Gordy was devastated
and frantic. While trying to resuscitate D.D., hospital staff observed bruising that
became more and more evident while he was in the emergency room. Also, there
was bright red blood at his rectum. Eventually, medical personnel discontinued their
resuscitation efforts.
While in the pediatric emergency room, Gordy told the charge nurse that he
left D.D. in the shower while he checked on the other children, heard a loud thud,
and returned to find D.D. lying in the bathtub with part of his face in the water and
part of him hanging over the side of the bathtub. Gordy told her that he performed
a sternum rub and CPR as directed by the 9-1-1 operator, when he pressed on D.D.’s
stomach some excrement came out, and D.D. vomited when he was administering
CPR. According to the charge nurse, Gordy was distraught, frantic,
hyperventilating, and screamed at D.D.’s bedside when resuscitation was
discontinued.
–3– Meanwhile, the police found D.D.’s mother, who was returning home from
work, and brought her to the hospital. She arrived after the hospital staff had
discontinued resuscitation efforts. When Gordy tried to grab D.D.’s mother, she
spun around and said, “No, this is your fault. This is your fault. You did this.” The
police separated them to prevent a family violence situation from arising.
Police began investigating D.D.’s death. During the police investigation,
Gordy’s version of events did not change. During an autopsy of D.D.’s body, the
forensic pathologist found: (1) bruises on his forehead, the bridge of his nose, under
his left eye, over his left shoulder, under his neck, under his chin, multiple
overlapping bruises on the back right-side of his scalp as well as to the lower part of
his right lung, diaphragm, stomach, and bowel; (2) an abrasion below his lip;
(3) discoloration, fresh bleeding, and little tears inside his mouth; (4) bleeding
around the right eye; (5) a fractured collarbone and fractures to his “vertebral
bodies”; (6) the right and left lobes of his liver were almost completely transected
and an additional lobe was “pulled off.” The abdominal cavity around D.D.’s liver
was filled with about a third of his total blood volume. The forensic pathologist
stated that the injuries looked acute or fresh, but she could not determine the exact
time they were sustained. She stated that the majority of these injuries were not the
type of injury that could be sustained from rough play, falling, or CPR and she
believed that they were intentionally inflicted. She determined the cause of D.D.’s
–4– death was “multiple blunt force injuries” and more specifically, blood loss from the
liver tear.
Gordy was indicted for capital murder of an individual under ten years of age.
The jury found him guilty of the lesser included offense of murder and assessed his
punishment at imprisonment for life.
II. SUFFICIENCY OF THE EVIDENCE In issues one and two, Gordy argues the evidence is insufficient to support his
conviction because it fails to establish: (1) his identity as the perpetrator; and (2) that
he committed or attempted to commit an act clearly dangerous to human life. He
contends the jury’s verdict was based on “mere theorizing or guessing” because the
evidence showed only that he was distraught and trying to save the victim’s life, his
statement remained unchanged, and D.D.’s injuries could not be timed to a period
when he was in Gordy’s exclusive care. He also maintains the evidence showed
only that he gave D.D. a sternum rub and CPR at the direction of the 9-1-1 operator.
Further, Gordy argues the evidence showed D.D. could have sustained his injuries
through rough play with his siblings, an accidental fall, jumping from a cabinet, or
clutter and sharp objects throughout the house. The State responds that a rational
jury could have found Gordy committed an act clearly dangerous to human life.
A. Standard of Review
Under the Due Process Clause, a criminal conviction must be based on legally
sufficient evidence. Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021).
–5– When reviewing the sufficiency of the evidence, an appellate court considers all of
the evidence in the light most favorable to the verdict to determine whether the jury
was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979); Harrell, 620 S.W.3d at 913–14. Further, an
appellate court is 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
assigned to their testimony. See Jackson, 443 U.S. at 319, 326; Harrell, 620 S.W.3d
at 914. An appellate court will consider all evidence when reviewing the sufficiency
of the evidence, whether direct or circumstantial, properly or improperly admitted,
or submitted by the prosecution or defense. Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016).
B. Applicable Law
Section 19.02 of the Texas Penal Code sets out the different manners and
means of committing the offense of murder. TEX. PENAL CODE ANN. § 19.02. While
not a distinct or separate offense, § 19.02(b)(3) is often referred to as the “felony
murder” statute or rule and provides that a person commits murder if:
[He] commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
PENAL § 19.02(b)(3); see also Christian v. State, 286 S.W.3d 63, 68 (Tex. App.—
Texarkana 2009, pet. ref’d) (noting felony murder is not separate and distinct
–6– offense). Essentially, the State must prove the following: (1) an underlying felony;
(2) an act clearly dangerous to human life; (3) the death of an individual;
(4) causation (the dangerous act causes the death); and (5) a connection between the
underlying felony and the dangerous act (“in the course of and in furtherance of . . .
or in immediate flight from”). Contreras v. State, 312 S.W.3d 566, 583–84 (Tex.
Crim. App. 2010).
The offense of “injury to a child” can qualify as an underlying felony in a
felony murder prosecution. Id. at 584. Section 22.04(a)(1) of the Texas Penal Code
states that “[a] person commits [the offense of injury to a child] if he intentionally,
knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . .
serious bodily injury.” PENAL § 22.04(a)(1).
Direct evidence of the elements of the offense, including the identity of the
perpetrator and culpable mental state, is not required. Hooper v. State, 214 S.W.3d
9, 14 (Tex. Crim. App. 2007). The jury is permitted to make reasonable inferences
from the evidence presented at trial, and circumstantial evidence is as probative as
direct evidence in establishing the guilt of the actor. Id. 14–15. Circumstantial
evidence alone may be sufficient to establish guilt. Id. at 15.
Cases involving injury to or death of a child often depend on circumstantial
evidence because there is rarely direct evidence of exactly how the injuries occurred.
Mercado v. State, No. 05-16-00152-CR, 2016 WL 7473906, at *7 (Tex. App.—
Dallas Dec. 29, 2016, no pet.) (mem. op., not designated for publication); Bearnth
–7– v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). If
an adult defendant has sole access to a child when the child sustains the injuries, the
evidence is sufficient to support a conviction for injury to a child or murder.
Cuadros–Fernandez v. State, 316 S.W.3d 645, 654 (Tex. App.—Dallas 2009, no
pet.).
C. Application of the Law to the Facts Gordy argues the evidence is insufficient to prove his identity as the person
who murdered D.D. The record shows that D.D.’s mother left the apartment before
D.D. was injured and she did not observe any marks or bruises on D.D. before she
left for work that morning. And she left D.D. and her other children in the exclusive
care of Gordy for the 7–8 hours preceding the arrival of the Dallas Fire Department.
As a result, the evidence shows that Gordy was the only adult present at the time
D.D. was injured. Because Gordy was the sole adult with access to D.D. at the time
D.D. sustained his injuries, the evidence is sufficient to support Gordy’s identity as
the offender. See Cuadros–Fernandez, 316 S.W.3d at 654 (concluding evidence
sufficient to support conviction for injury to a child or murder if child dies where
adult defendant had sole access to child when child sustained injury). Further, we
note that the evidence shows that, although the pathologist testified that she could
not provide an exact time for the injuries, she did state that they were “acute,”1
1 The pathologist defined acute as meaning “up to 24 hours of [the] presentation of the symptoms.” –8– “recent,” or “fresh,” approximately 12–36 hours old, caused by “multiple blunt force
injuries” and more specifically, blood loss from the liver tear, and she “would not
expect the child to live more than a few hours with [the blood loss from the liver
tear].”
Also, Gordy maintains the evidence showed only that he was distraught and
trying to save the victim’s life, his statement remained unchanged, and D.D.’s
injuries could not be timed to a period when he was in Gordy’s exclusive care.
However, the record also shows that the forensic pathologist testified in detail about
the extent of D.D.’s injuries, the majority of D.D.’s injuries were not the type of
injury that could be sustained from rough play, falling, or CPR, and she believed that
D.D.’s injuries were intentionally inflicted, not accidental. In particular, she stated
D.D.’s liver injury was the result of a direct blow to his abdomen. Further, although
she could not provide an exact time for the injuries, she did state that they were acute
or recent. Gordy’s challenge to the sufficiency of the evidence relating to whether
he committed or attempted to commit an act clearly dangerous to human life is
actually an attack on the credibility and weight assigned to the evidence by the jury.
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 assigned to their
testimony. See Jackson, 443 U.S. at 319, 326; Harrell, 620 S.W.3d at 914.
–9– After reviewing the evidence, we conclude that a rational jury could have
found the elements of the offense beyond a reasonable doubt. Accordingly, we
conclude the evidence is sufficient to support Gordy’s conviction for felony murder.
Issues one and two are decided against Gordy.
III. EXTRANEOUS-OFFENSE EVIDENCE
In issue three, Gordy argues the trial court erred when it overruled his
objection to the admission of extraneous-offense evidence through the testimony of
the forensic pathologist and the autopsy photographs in violation of Texas Rules of
Evidence 401, 403, and 404.2 He contends that, to prove his identity and intent, the
State offered circumstantial evidence of extraneous injuries to D.D. Gordy argues
the State introduced this evidence to show that his account of events was inconsistent
with D.D.’s injuries even though there were no common characteristics among
D.D.’s extraneous injuries to constitute a signature. Gordy maintains that no specific
intent to commit a felony can be gleaned from any of D.D.’s injuries and there was
little testimony providing a temporal proximity of the various injuries. The State
responds the forensic pathologist who performed the autopsy is entitled to testify
about the manner of death, cause of death, and the number and types of injuries the
victim sustained.
2 Although Gordy generally argues that the testimony of the forensic pathologist and the autopsy photographs were admitted in violation of Rules 401, 403, and 404, his argument focuses on Rule 404(b). However, we liberally construe his argument to pertain to all three rules of evidence. –10– A. Standard of Review
An appellate court reviews a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex.
Crim. App. 2016). A trial court abuses its discretion when its decision falls outside
the zone of reasonable disagreement. Id. at 83. An appellate court will uphold a
trial court’s evidentiary ruling if it was reasonably supported by the evidence and
correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d
336, 344 (Tex. Crim. App. 2009). Further, an appellate court shall give deference
to a trial court when it decides not to exclude extraneous-offense evidence and finds
that the probative value of that evidence is not outweighed by the danger of unfair
prejudice. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Relevant evidence is always admissible unless specifically prohibited. TEX.
R. EVID. 402. Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action. TEX. R. EVID. 401. The number and location
of wounds inflicted are probative of a defendant’s intent to kill and his mental state
at the time of the offense. See Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App.
2002). Additionally, evidence of injury may be probative of the specific
circumstances of the murder and the veracity of a defendant’s statement to police.
See, e.g., Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). Generally,
–11– a photograph is admissible if verbal testimony as to matters depicted in the
photographs is also admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
App. 1997). Therefore, if verbal testimony is relevant, photographs of the same are
also relevant. Id.
A trial court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence. EVID. 403. When undertaking a Rule 403 analysis,
a trial court must balance (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest a decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42
(Tex. Crim. App. 2006). Rule 403 favors admissibility and presumes relevant
evidence is more probative than prejudicial. Rayford v. State, 125 S.W.3d 521, 529
(Tex. Crim. App. 2003).
In determining whether the danger of unfair prejudice substantially outweighs
a photograph’s probative value, a court may consider many factors. Williams v.
–12– State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). These include: (1) the number
of such photographs the proponent offers; (2) their gruesomeness; (3) their level of
detail; (4) their size; (5) whether they are in color or black-and-white; (6) whether
they are close-ups; (7) whether they depict a clothed versus a naked body; (8) the
availability of other means of proof; and (9) other circumstances unique to the
individual case. Id. Autopsy photographs are generally admissible unless they
depict mutilation of the victim caused by the autopsy itself. Id.
Even when evidence is relevant, Texas Rule of Evidence 404(b) prohibits the
admission of evidence of other crimes, wrongs, or acts unless it is relevant to prove
some issue other than the defendant’s criminal character. EVID. 404(b)(1). Such
issues include the following: (1) motive; (2) opportunity; (3) intent; (4) preparation;
(5) plan; (6) knowledge; (7) identity; and (8) absence of mistake or accident. EVID.
404(b). Evidence of other crimes, wrongs, or bad acts may also be admissible to
rebut a defensive theory. See Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App.
2001).
C. Application of the Law to the Facts
The indictment charged Gordy with:
[I]ntentionally and knowingly caus[ing] the death of [D.D.], an individual, hereinafter called deceased, by STRIKING DECEASED WITH AND AGAINST AN UNKNOWN OBJECT, THE EXACT NATURE AND DESCRIPTION OF WHICH ·IS UNKNOWN TO THE GRAND JURY, and the deceased was at the time of the offense under ten years of age.
–13– (Emphasis in orig.) During the trial, Gordy objected on the basis of Rules 401, 403,
and 404(b) to any testimony by the forensic pathologist about “old injuries” to D.D.
arguing they were extraneous offenses. He also objected to the admission of the
autopsy photographs based on his previous objections. The State responded that the
forensic pathologist’s testimony was necessary to rebut Gordy’s claim that D.D. fell
in the bathtub and it was contextual. The State also told the trial court, “I do want
to remain clear that I am not going to go into any previous or prior injuries. Only
the ones that the [forensic pathologist], combined with what the mother says, are
acute.” The trial court admitted the evidence which consisted of: (1) the forensic
pathologist’s testimony about the external and internal injuries she observed on D.D.
during the autopsy and her determination as to the cause and means of D.D.’s death;
and (2) the autopsy photographs.
First, Gordy argues the forensic pathologist’s testimony and the autopsy
photographs were not relevant under Rule 401. The forensic pathologist was entitled
to testify to the manner of death, cause of death, and the number and types of injuries
D.D. sustained. See Long v. State, 823 S.W.2d 259, 274, 275 (Tex. Crim. App.
1991). And because the forensic pathologist’s verbal testimony was relevant, the
autopsy photographs of the same were also relevant. See Williams, 958 S.W.2d at
195.
Accordingly, we conclude the forensic pathologist’s testimony and the
autopsy photographs were relevant to establish the identity of the victim, the manner
–14– and means of death, and the force used, which are certainly facts that are of
consequence to the determination of the alleged offense. See EVID. 401 (defining
relevant evidence as any evidence that has any tendency to make a fact more or less
probable than it would be without the evidence).
Second, Gordy argues the forensic pathologist’s testimony and the autopsy
photographs were more prejudicial than they were probative under Rule 403. He
contends that this evidence “undeniably tilted the jury toward conviction.” The
forensic pathologist’s testimony concerned the intentional nature of D.D.’s injuries,
provided a medical explanation for his death, and established an approximate time
as to when the injuries were inflicted. Also, the trial court admitted over Gordy’s
objection State’s Exhibit Nos. 20–33 and 35, which are autopsy photographs
depicting the injuries to the victim’s body, his partially transected liver, and a
medical manikin. They are displayed in the appellate record as black-and-white
photographs that are approximately 8 inches x 10 inches in size. They do not show
any mutilation of D.D.’s body caused by the autopsy itself. The majority of the
photographs are closeups of D.D.’s face and unclothed upper torso showing the
extent of the injuries he suffered and in State’s Exhibit No. 31, D.D.’s head had been
shaved to show the bruising to his scalp. Further, the autopsy photographs illustrated
the forensic pathologist’s testimony. We conclude the trial court did not abuse its
discretion when it determined the probative value of the forensic pathologist’s
–15– testimony and the autopsy photographs was not outweighed by their prejudicial
effect.
Third, Gordy argues the forensic pathologist’s testimony and the autopsy
photographs were impermissible extraneous-offense evidence under Rule 404(b).
We note that Gordy refers only generally to the forensic pathologist’s testimony and
State’s Exhibit Nos. 20–33 and 35, and he does not specify on appeal the specific
injuries to D.D. that he believes were extraneous or “old injuries.” Rather, he
contends the evidence only shows D.D. was in his exclusive care the 7–8 hours
preceding the 9-1-1 call and the forensic pathologist stated the injuries could have
been 12–36 hours old, so D.D.’s injuries constitute extraneous-offense evidence.
An extraneous offense is any act of misconduct, whether prosecuted or not,
that is not shown in the charging papers. See Manning v. State, 114 S.W.3d 922,
926 (Tex. Crim. App. 2003); Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.
1996). It is an offense beyond or unrelated to the offense for which a defendant is
on trial. Manning, 114 S.W.3d at 926–27; see also Extraneous Offense, BLACK’S
LAW DICTIONARY (11th ed. 2019). In this case, the indictment alleged that Gordy
struck D.D. with or against an unknown object causing his death. The forensic
pathologist testified that the injuries she was describing were “acute,” “recent,” or
“fresh,” approximately 12–36 hours old, and caused by “blunt force” or “force.” She
also stated that in order to transect the liver it would take “much more directed
force.” She determined that the cause of D.D.’s death was “multiple blunt force
–16– injuries” and more specifically, blood loss from the liver tear. We do not see how
the forensic pathologist’s testimony and the accompanying autopsy photographs
relate to extraneous acts or injuries—rather, these are injuries related to the offense
for which Gordy was charged and on trial. As a result, we cannot conclude that the
trial court’s decision to overrule Gordy’s Rule 404(b) objection to this evidence falls
outside the zone of reasonable disagreement.
Finally, with respect to the external bruising and rectal bleeding injuries,
before the forensic pathologist testified, the charge nurse testified that she saw
bruising on D.D.’s body and that more bruising seemed to be appearing on his body
while they were trying to resuscitate him. She also stated that there was bright red
blood at his rectum.3 Further, State’s Exhibits Nos. 4 and 5, which were admitted
into evidence without objection, depict close-ups of D.D.’s face after medical
personnel discontinued resuscitation efforts. The charge nurse also described where
the bruising to his “left side” and along his shoulder could be seen in those photos.
In addition, D.D.’s mother testified without objection that the photograph in State’s
Exhibit No. 20 showed bruises on D.D.’s face and those bruises were not present
when she left for work on the day of his death. She also stated that she did not “do
anything to cause the bruises on [D.D.’s] body.” With respect to State’s Exhibit
Nos. 21–24, 27, and 29–30, they depict external bruising to D.D.’s body. It is well
3 Gordy did object to a portion of the charge nurse’s testimony under Texas Rules of Evidence 702 and 705 on the basis that she was a fact witness, not an expert witness, but he does not complain on appeal about the overruling of this objection. –17– settled that erroneously admitted evidence will not result in reversal if other evidence
that proves the same fact was admitted without objection. See Coble v. State, 330
S.W.3d 253, 282 (Tex. Crim. App. 2010).
We conclude the trial court did not err when it overruled Gordy’s Rule 401,
403, and 404(b) objections to the admission of the forensic pathologist’s testimony
and the autopsy photographs.
Issue three is decided against Gordy.
IV. MOTION FOR MISTRIAL
In issue four, Gordy argues the trial court erred when it denied his motions for
mistrial after the charge nurse and Detective Rico Harris testified to “extraneous
offenses” by repeatedly referring to an ongoing Texas Department of Family and
Protective Services (CPS) investigation, which was the subject of a motion in limine.
He contends that although the trial court sustained his objections and instructed the
jury to disregard, the errors were incurable. The State responds that the trial court’s
limiting instructions were an adequate remedy.
A. Standard of Review An appellate court reviews a trial court’s ruling on a motion for mistrial for
an abuse of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).
A trial court abuses its discretion if its decision is outside the zone of reasonable
disagreement. Id. An appellate court does not substitute its judgment for that of the
trial court but decides whether the trial court’s decision was arbitrary or
–18– unreasonable. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
When reviewing the denial of a motion for mistrial, an appellate court views the
evidence in the light most favorable to the trial court’s ruling, considering only those
arguments before the trial court at the time of the ruling. See Ocon, 284 S.W.3d at
884; Webb, 232 S.W.3d at 112.
B. Applicable Law Although not expressly provided for in the Texas Code of Criminal Procedure,
a mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of
highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884 & n.3. A mistrial
halts trial proceedings when the error is so prejudicial that expenditure of further
time and expense would be wasteful and futile. Id. at 884; Ladd v. State, 3 S.W.3d
547, 567 (Tex. Crim. App.1999). Whether an error requires a mistrial must be
determined by the particular facts of the case. Ocon, 284 S.W.3d at 884. Because
it is a drastic remedy, a mistrial should be granted only when residual prejudice
remains after less drastic alternatives have been explored. Id. at 884–85.
Instructions to the jury are generally considered sufficient to cure improprieties that
occur during trial, and appellate courts generally presume that a jury will follow the
trial judge’s instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.
2009); see also Taylor v. State, No. 02-16-00299-CR, 2017 WL 5894923, at *3 (Tex.
App.—Fort Worth Nov. 30, 2017, pet. ref’d) (mem. op., not designated for
publication) (concluding trial court did not err in denying motion for mistrial because
–19– mere mention of CPS “reason to believe” finding is not grounds for mistrial and
nothing in record suggests jury failed to follow trial court’s instruction to disregard).
C. Application of the Law to the Facts Gordy does not argue that the State asked improper questions. Rather, he
contends that three statements by two witnesses that mentioned CPS warranted a
mistrial because those statements suggested he engaged in an ongoing pattern of
abuse and increased the likelihood that the jury would attribute to him all of the
injuries to which the forensic pathologist testified.4 Specifically, Gordy complains
about the following testimony by the pediatric charge nurse, Diana Flurry-Wilemon:
State: At some point, are detectives called? Flurry-Wilemon: Yes, ma’am.
State: When does that happen? Flurry-Wilemon: That happens also immediately after pronouncement. We have several calls that we make. We make them to the medical examiner and let them know that y’all need to come. We call transplant alliance for any patient that dies in the hospital. Anytime there’s a child death, we call CPS, we call—the child abuse unit generally is called out as well.
Defense Counsel: Judge, again, I object to the witness’ nonresponsive answer. I object to specifically a mention that was ruled on by a motion in limine prior to trial, that that answer violates that motion in limine.
4 As we previously determined, the forensic pathologist testified that the injuries she was describing were “acute,” “recent,” or “fresh” and approximately 12–36 hours old. Contrary to Gordy’s assertion, she did not testify about any old injuries. –20– Court: Okay. Let me just advise the witness, just be sure that you are answering specifically the questions that are being asked. Okay?
Defense Counsel: Judge, is my objection overruled?
Court: Yes. Defense Counsel: Thank you.
State: So the child is there and covered. What happens as far as the medical examiner coming out or the detectives coming out? Tell us what happened in this case.
Flurry-Wilemon: In this case, the initial response was from a detective from the child abuse unit from Dallas Police Department. When I—I also got a very quick response from the Department of Family Services, because there was a CPS case that was ongoing. Defense Counsel: Hold on. Let me lodge my objection. Judge, I object that the witness’ answer violates a motion in limine.
Court: Sustained. Defense Counsel: I would ask the jury to be instructed to disregard the answer by the witness. Court: Let me advise the jurors to please disregard the last statement that you just heard from the witness. Defense Counsel: And we would request a mistrial, Your Honor.
Court: Mistrial is denied.
(Emphasis added.). Also, he complains about the following testimony by Detective
Rico Harris:
State: Do you know how police were notified?
–21– Det. Harris: I believe there were—from my understanding, there probably was some discussion at the hospital that something else might have happened.
State: Now, you weren’t at the hospital—
Det. Harris: Yeah. State: —so you wouldn’t know the discussions. But the hospital—or someone from the hospital notified—
Det. Harris: Yes. They either notified CPS 3:56 PM directly or they might have called our office directly.
State: Either way, at that—
Defense Counsel: Judge, I will object to the nonresponsive comment by the witness. Court: Sustained.
Defense Counsel: I will object that it’s a violation of our motion in limine. Court: Sustained. Defense Counsel: I will ask that the jury be instructed to disregard the comment by the witness. Court: Jury, please disregard the last comment.
Defense Counsel: I would move for a mistrial.
(Emphasis added.)
Two of the complained of statements—one made by the pediatric charge nurse
and the other by the detective—merely reference that the hospital contacted CPS.
Further, the pediatric charge nurse clarified that the hospital contacts CPS anytime
a child dies. The third complained of statement—made by the pediatric charge
–22– nurse—did reference that there was an ongoing CPS investigation. However, she
did not provide any further detail as to whom they were investigating, which child
in the family that investigation pertained to, or the concerns forming the basis of that
investigation. After sustaining two of Gordy’s objections to these references to CPS,
the trial court made two instructions to disregard the references to the CPS. Further,
nothing in the record suggests that the jury failed to follow the trial court’s
instructions to disregard. Accordingly, we conclude the trial court did not err when
it denied Gordy’s motions for mistrial.
Issue four is decided against Gordy.
V. JURY CHARGE ERROR
In issues five, six, and seven, Gordy argues the trial court erred when it
overruled his objection to the jury charge because it included the lesser included
offense of felony murder and impliedly sustained the State’s objection to his requests
that the jury charge include the mens rea of recklessly for the lesser included offense
of injury to a child and the defense of emergency medical care.
A. Standard of Review An appellate court reviews the trial court’s decision to include a lesser
included offense in the jury charge for an abuse of discretion. See Threadgill v.
State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) (concluding trial court did not
abuse discretion when no evidence to support inclusion of lesser included offence).
However, when reviewing a trial court’s decision to exclude or include a defensive
–23– issue in its charge, an appellate court views the evidence in the light most favorable
to the defendant’s requested submission. Jordan v. State, 593 S.W.3d 340, 343 (Tex.
Crim. App. 2020).
B. Lesser Included Offense of Felony Murder In issue five, Gordy argues the trial court erred when it overruled his objection
to the inclusion of the lesser included offense of felony murder in the jury charge
because: (1) a § 19.02(b)(3) felony murder is not a lesser included offense of capital
murder as the statute clearly states that only the culpable mental state of intentionally
or knowingly for murder under § 19.02(a)(1) is included; and (2) allowing a lesser
included offense for felony murder, which has a different culpable mental state,
“expands the offense” charged in the indictment. The State responds that felony
murder is a lesser included offense of capital murder so Gordy had sufficient notice
that he could be convicted of that offense.
1. Applicable Law
If there is sufficient evidence to support a conviction on a lesser included
offense, a trial court may submit the lesser included-offense instruction, even though
the defendant did not request the charge and even over the defendant’s objection.
Castro v. State, No. 05-19-00427-CR, 2020 WL 2847288, at *3 (Tex. App.—Dallas
June 2, 2020, pet. ref’d) (mem. op., not designated for publication).
Section 19.03(a) of the Texas Penal Code describes offenses which—together
with the offense of murder as defined under section 19.02(b)(1)—constitute capital
–24– murder, including when “the person murders an individual under 10 years of age.”
PENAL §§ 19.02(b), 19.03(a)(8). If a jury does not find beyond a reasonable doubt
that a defendant is guilty of capital murder, he may still be convicted of murder or
any other lesser included offense. Id. § 19.03(c).
Section 19.02 of the Texas Penal Code sets out the different manners and
means of committing the offense of murder. PENAL § 19.02. The three methods of
committing murder set forth in the § 19.02 are not distinct and separate offenses.
Smith v. State, 436 S.W.3d 353, 378 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d); Christian, 286 S.W.3d at 68; Gandy v. State, 222 S.W.3d 525, 529 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). Nevertheless, as previously noted,
§ 19.02(b)(3) is often referred to as the “felony murder” statute or rule. See PENAL
§ 19.02(b)(3); Christian, 286 S.W.3d at 68 (noting felony murder is not separate and
distinct offense). In certain circumstances, felony murder can be a lesser included
offense of capital murder. See Threadgill, 146 S.W.3d at 665.
2. Application of the Law to the Facts
During the charge conference, Gordy objected to the inclusion of felony
murder as a lesser included offense, arguing that the culpable mental state for capital
murder under § 19.03(a)(8) does not include the culpable mental state for felony
murder under § 19.02(b)(3) and that the inclusion of felony murder in the charge
improperly expanded the offense charged in the indictment. The charge provided
the following definition for murder: “A person commits the offense of murder if he
–25– intentionally or knowingly causes the death of an individual.” And it provided the
following definition for capital murder: “A person commits the offense of capital
murder if he commits murder, as defined above, and the person murders an
individual under ten years of age.” In addition, the jury charge included another
definition of murder, which related to the lesser included offense of felony murder:
A person commits the offense of felony murder if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in the furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Based on these definitions and their corresponding application paragraphs, Gordy
complains that the jury was permitted to consider that he could have committed
capital murder by committing an act clearly dangerous to human life in the course
of committing a felony, rather than only by intentionally or knowingly causing the
death of D.D. Gordy appears to argue that “felony murder” is a separate and distinct
offense from “murder.”
Although § 19.02(b)(3) is often referred to as the “felony murder” statute or
rule, it is one of three methods of committing “murder” under § 19.02; it is not a
separate and distinct offense. See Christian, 286 S.W.3d at 68. Further, § 19.03(c)
makes clear that “murder” is a lesser included offense of capital murder. PENAL
§ 19.03(c); see Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (“The
elements of felony murder [under Section 19.02(b)(3)] are included within the proof
–26– necessary for capital murder committed in the course of robbery [that is,
§ 19.03(a)(2)].”).
To the extent that Gordy argues the inclusion of the lesser included offense of
felony murder “expands the offense” of capital murder charged in the indictment,
we disagree. Gordy was indicted for intentionally or knowingly causing D.D.’s
death by striking D.D. with and against an unknown object. The jury charge
contained the lesser included offense of felony murder by committing or attempting
to commit the felony offense of injury to a child by intentionally or knowingly
causing serious bodily injury to D.D. and while in the course of or in furtherance of
that offense did commit an act clearly dangerous to human life. Serious bodily injury
means “bodily injury that creates a substantial risk of death or that causes death.”
PENAL § 1.07(a)(46). To prove Gordy intentionally or knowingly caused D.D.’s
death, the State necessarily had to prove Gordy intentionally or knowingly caused
serious bodily injury to D.D. by committing an act clearly dangerous to human life.
We note that we considered a similar argument to Gordy’s in Polk v. State,
No. 05-03-01244-CR, 2004 WL 2802505 (Tex. App.—Dallas Dec. 1, 2004, no pet.)
(not designated for publication). In Polk, the appellant was indicted for capital
murder and convicted of the lesser included offense of murder under § 19.02(b)(2).
Id. at *1. On appeal, the appellant argued that murder under § 19.02(b)(2) is not a
lesser included offense of capital murder and that the jury charge enlarged the
offense charged in the indictment. Id. This Court concluded the trial court did not
–27– err in submitting the charge because murder under § 19.02(b)(2) is a lesser included
offense of capital murder. Id.; see also PENAL § 19.03(c). Also, this Court
concluded that to prove the appellant intentionally and knowingly caused the
victim’s death under § 19.03, the State necessarily had to prove the defendant caused
seriously bodily injury under § 19.02(b)(2), so the appellant’s conviction on the basis
that he intended to cause the victim serious bodily injury and committed an act
clearly dangerous to human life causing the victim’s death was not an enlargement
of the offense of capital murder. Id. at *2.
We conclude the trial court did not err when, in its discretion, it included the
lesser included offense of felony murder in the jury charge. See Polk, 2004 WL
2802505, at *1–2.
Issue five is decided against Gordy.
C. Lesser Included Offense of Injury to a Child In issue six, Gordy argues the trial court erred when it impliedly sustained the
State’s objection to his request that the jury charge include the mens rea of reckless5
in the lesser included offense of injury to a child.6 He maintains the only acts
attributable to him are a sternum rub and CPR. And the evidence showed that he
5 Gordy does not allege the trial court erred when it impliedly sustained the State’s objection to the inclusion of the mens rea of negligently for the lesser included offense of injury to a child. 6 Gordy also claims in a single statement that “the trial court’s denial of [his] request thereby violated his rights under the Sixth, Eighth, and 14th Amendments to the federal constitution and article I, sections 10 and 19 of the Texas Constitution.” However, he provides no case law or further argument in support of this statement, so we do not address it. –28– was distressed. As a result, Gordy contends he could not have been aware that his
alleged actions would be the direct cause of D.D.’s death. Further, Gordy argues he
was harmed by the trial court’s error because a mens rea of recklessly would have
lowered the offense and punishment range to that of a second degree felony. The
State responds that there is not a scintilla of evidence to support that Gordy
recklessly caused the serious bodily injuries that resulted in D.D.’s death. Assuming
without deciding the trial court erred, we consider whether that error was harmful
error.
When presented with an argument that a trial court committed jury charge
error, the reviewing court must conduct a two-step inquiry: (1) Did an error occur?;
and (2) If so, did it cause harm that rises to the level of reversible error? Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm necessary
for reversal depends on whether the defendant preserved the error by objection. Id.
If a defendant preserves error, then he only has to show “some harm” to his rights.
Id. If he fails to object, he must demonstrate “egregious harm.” Id.
An offense is a lesser included offense if: (1) it is established by proof of the
same or less than all the facts required to establish the commission of the offense
charged; (2) it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest suffices to
establish its commission; (3) it differs from the offense charged only in the respect
–29– that a less culpable mental state suffices to establish its commission; or (4) it consists
of an attempt to commit the offense charged or an otherwise included offense. TEX.
CODE CRIM. PROC. ANN. art. 37.09. When error occurs in a jury instruction, not from
the failure to include a lesser included offense but from a defect in the lesser included
instruction that the trial court did submit, and the jury finds the defendant guilty of
the greater offense, the verdict nullifies any possible harm from the defective
instruction on the lesser offense. Saunders v. State, 913 S.W.2d 564, 569 (Tex.
Crim. App. 1995); see also Watson v. State, No. 05-16-00140-CR, 2017 WL
6506313, at *2 (Tex. App.—Dallas Dec. 20, 2017, no pet.) (mem. op., not designated
for publication) (discussing egregious harm).
2. Application of the Law to the Facts During the charge conference, Gordy requested the inclusion of the lesser
included offense of injury to a child under the intentionally, knowingly, recklessly,
or negligently mental states. The State objected to the inclusion of the recklessly
and negligently mental states. Although the trial court did not expressly sustain the
State’s objection, the jury charge provided the following definition of injury to a
child: “A person commits injury to a child if he intentionally or knowingly by act
causes serious bodily injury to a child 14 years of age or younger.” And the
application paragraph stated:
Now, if you unanimously find from the evidence beyond a reasonable doubt that . . . Gordy, did then and there, intentionally or knowingly cause serious bodily injury to [D.D.], a child 14 years of age or younger . . . by striking [D.D.] with or against an unknown object, the –30– exact nature and description of which is unknown to the Grand Jury, then you will find [Gordy] guilty of injury to a child serious bodily injury, as included in the indictment.
Here, the claimed jury-charge error is a defect in the definition and application
paragraph of the lesser included offense of injury to a child. But Gordy was
convicted of the greater offense of felony murder. Accordingly, we conclude that,
even if the trial court erred when it impliedly sustained the State’s objection to the
inclusion of the mens rea of recklessly in the lesser included offense of injury to a
child, Gordy was not harmed by that error. See Saunders, 913 S.W.2d at 569.
Issue seven is decided against Gordy.
D. Defense of Emergency Medical Care In issue seven, Gordy argues the trial court erred when it impliedly sustained
the State’s objection to his request for the jury charge to include the defense of
emergency medical care under § 22.04(k)(2) of the Texas Penal Code. The State
responds that the trial court did not err when it sustained the State’s objection to the
inclusion of that defense because Gordy never admitted any act that caused D.D.’s
injury.
Regardless of the strength or credibility of the evidence, a defendant is entitled
to an instruction on any defensive issue that is raised by the evidence. Jordan, 593
S.W.3d at 343. A defensive issue is raised by the evidence if there is sufficient
evidence to support a rational jury finding as to each element of the defense. Id.
–31– Section 22.04(k) of the Texas Penal Code provides that it is a defense to
prosecution for the offense of injury to a child in § 22.04 that the act or omission
consisted of emergency medical care administered in good faith and with reasonable
care by a person not licensed in the healing arts. PENAL § 22.04(k)(2). The defense
found in subsection (k)(2), concerning emergency medical care administered in good
faith, is commonly referred to as the “Good Samaritan” defense. See Shaw v. State,
243 S.W.3d 647, 658–59 (Tex. Crim. App. 2007). It is a defense of confession and
avoidance. See id. at 659. Confession-and-avoidance defenses do not negate any
element of an offense, including intent; instead, they excuse what would otherwise
constitute criminal conduct. Id. The emergency medical care defense deals with
justifying otherwise-harmful conduct toward a child on the grounds that the conduct
was in the best medical interest of the child. Cornet v. State, 359 S.W.3d 217, 225
(Tex. Crim. App. 2012).
With confession-and-avoidance defenses, a defensive instruction is
appropriate only when the defendant’s defensive evidence essentially admits to
every element of the offense including the culpable mental state but interposes the
justification to excuse the otherwise criminal conduct. Shaw, 243 S.W.3d at 659;
see Juarez v. State, 308 S.W.3d 398, 401–03 (Tex. Crim. App. 2010) (discussing
confession-and-avoidance doctrine with respect to affirmative defenses of necessity,
self-defense, and emergency medical care). The doctrine requires a defendant to
first admit that he engaged in the proscribed conduct by admitting all elements of
–32– the underlying offense, then claim that his commission of the offense is justified
because of other facts. See Shaw, 243 S.W.3d at 659. If the defensive evidence does
no more than attempt to negate an element of the offense, a defendant is not entitled
to a defensive instruction on any defense that is subject to the doctrine of confession
and avoidance. Id.
2. Application of the Law to the Facts During the charge conference, Gordy requested the inclusion of the defense
of emergency medical care. The State objected. Although the trial court did not
expressly sustain the State’s objection, the jury charge did not include the emergency
medical care defense.
Section 22.04(a)(1) of the Texas Penal Code states that “[a] person commits
[the offense of injury to a child] if he intentionally, knowingly, recklessly, or with
criminal negligence by act . . . causes to a child . . . serious bodily injury.” PENAL
§ 22.04(a)(1). The forensic pathologist testified the cause of D.D.’s death was
“multiple blunt force injuries” and, more specifically, blood loss from the liver tear.
She also stated that D.D.’s injuries were not the type of injury that could be sustained
from rough play, falling, or CPR and the tear to D.D.’s liver was the result of a direct
blow to his abdomen. Further, Gordy did not admit to the elements of the offense
of injury to a child or any act that caused the fatal injuries to D.D. and then present
the emergency medical care defense. Rather, Gordy had two defensive theories at
trial: (1) D.D.’s injuries occurred when he fell in the tub and Gordy administered
–33– CPR; and (2) given the time frame provided by the forensic pathologist as to when
D.D.’s injuries were sustained, those injuries occurred before D.D. was in Gordy’s
care. Accordingly, we conclude the trial court did not err when it impliedly sustained
the State’s objection to Gordy’s request for the confession-and-avoidance defense
of emergency medical care because it had no application under Gordy’s defensive
theories and the evidence.
VI. MODIFICATION OF THE JUDGMENT
In a cross point, the State requests that this Court modify the trial court’s
judgment to accurately reflect the jury found Gordy used or exhibited a deadly
weapon during the offense. Further, although neither party raises the issue, we
observe that the final judgment incorrectly states Gordy was convicted of capital
murder of a child under ten years of age, lists the statute for the offense as “19.03 A
8 Penal Code,” and states the degree of the offense as “Capital Offense.”
The jury charge shows that the jury did not find Gordy guilty of capital
murder. Rather, it found him guilty of the lesser included offense of felony murder.
The statute for the offense of capital murder is Texas Penal Code § 19.03 while the
statute for felony murder is § 19.02(b)(3). Compare PENAL § 19.02 (murder) with
PENAL § 19.03 (capital murder). Further, felony murder is a first-degree felony, not
a capital felony. Compare PENAL § 19.02(c) (except as provided under subsection
(d), an offense under this section is a first-degree felony) with PENAL § 19.03(b)
–34– (offense of capital murder is capital felony). Also, the jury answered “yes” to the
special question on whether he used or exhibited a deadly weapon during the
commission of the offense.
An appellate court has the authority to modify an incorrect judgment to make
the record speak the truth when it has the necessary information to do so. See TEX.
R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);
Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en
banc). We conclude the trial court’s final judgment should be modified as follows:
(1) “Offense for which Defendant Convicted: Capitol [sic] Murder Child Under/10 Years” is modified to read “Offense for which Defendant Convicted: Felony Murder”;
(2) “Statute for Offense: 19.03 A 8 Penal Code” is modified to read “Statute for Offense: Penal Code § 19.02(b)(3)”; (3) “Degree of Offense: Capital Felony” is modified to read “Degree of Offense: 1st Degree Felony”; and
(4) “Findings on Deadly Weapon: N/A” is modified to read “Findings on Deadly Weapon: Yes.”
See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at
529–30. As a criminal appeal, this case involves the restriction of a person’s liberty
and is a matter of public concern. See Shumate v State, No. 05-20-00197-CR, 2021
WL 4260768, at *3 (Tex. App.—Dallas Sept. 20, 2021, no pet.). These are not trivial
matters and it is concerning that appellate counsel failed to alert this Court to many
of the errors in the judgment. Although errors occur, the number and nature of the
unaddressed errors in this judgment is concerning. See id.
–35– The State’s cross point is decided in its favor.
VII. CONCLUSION
The evidence is sufficient to support Gordy’s conviction for felony murder
and the trial court did not err except by signing a judgment with mistakes in it.
As modified, the trial court’s final judgment is affirmed.
The trial court is directed to prepare a corrected judgment that reflects the
modifications made in this Court’s opinion and judgment in this case. See Shumate,
2021 WL 426072.
/Leslie Osborne// LESLIE OSBORNE 190444f.u05 JUSTICE
Do Not Publish TEX. R. APP. P. 47
–36– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRANDON GORDY, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-19-00444-CR V. Trial Court Cause No. F18-00751-T. Opinion delivered by Justice STATE OF TEXAS, Appellee Osborne. Justices Schenck and Partida-Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
(1) “Offense for which Defendant Convicted: Capitol [sic] Murder Child Under/10 Years” is modified to read “Offense for which Defendant Convicted: Felony Murder”;
(2) “Statute for Offense: 19.03 A 8 Penal Code” is modified to read “Statute for Offense: Penal Code § 19.02(b)(3)”;
(3) “Degree of Offense: Capital Felony” is modified to read “Degree of Offense: 1st Degree Felony”; and
(4) “Findings on Deadly Weapon: N/A” is modified to read “Findings on Deadly Weapon: Yes.”
As REFORMED, the judgment is AFFIRMED.
We DIRECT the trial court to prepare a corrected judgment that reflects this modification.
Judgment entered this 4th day of March, 2022.
–37–