IN THE TENTH COURT OF APPEALS
No. 10-23-00021-CR
JUANA MARQUEZ, Appellant v.
THE STATE OF TEXAS, Appellee
From the County Court at Law Navarro County, Texas Trial Court No. C41633-CR
MEMORANDUM OPINION
Juana Marquez appeals from a conviction for the offense of manslaughter.1 TEX.
PENAL CODE § 19.04. Marquez complains that the evidence was insufficient for the jury
to have found that she recklessly caused the death of the child and that the trial court
1 Marquez was tried for murder and injury to a child. The State abandoned the injury to a child charge shortly before the end of the trial. Marquez was found guilty of the lesser-included offense of manslaughter. abused its discretion in the admission of evidence relating to bruising on the child's
siblings and that Marquez had hit the child's six-year-old brother. Because we find no
reversible error, we affirm the judgment of the trial court.
SUFFICIENCY OF THE EVIDENCE
In her first issue, Marquez complains that the evidence was insufficient for the jury
to have found that she recklessly caused the death of Amberly, 2 a four-year-old child, by
either causing boiling water to make contact with her skin or by administering Tramadol
to the child. The Court of Criminal Appeals has expressed our standard of review of
sufficiency issues as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
2 Amberly was Marquez's paramour's child. Amberly's older brother and next youngest brother were also Marquez's paramour's children. The three siblings had been placed in the home by CPS in Arizona. Marquez's paramour was working out of state when Amberly died. The youngest child in the home was the child of Marquez and her paramour. Marquez v. State Page 2 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Marquez was indicted and tried for the offense of murder but was convicted of the
lesser-included offense of manslaughter. A person commits manslaughter "if [s]he
recklessly causes the death of an individual." TEX. PENAL CODE § 19.04. For purposes of
manslaughter, one "acts recklessly, or is reckless, with respect to . . . the result of h[er]
conduct when [s]he is aware of but consciously disregards a substantial and unjustifiable
risk that . . . the result will occur." TEX. PENAL CODE § 6.03(c).
Marquez v. State Page 3 FACTS
Marquez called 9-1-1 to report that she had discovered that Amberly, her
paramour's four-year-old child, was deceased. Marquez told the dispatcher that the child
was not waking up or breathing and that the child had dumped boiling water on herself
the night before. Law enforcement arrived at the residence after some confusion as to the
address and discovered Amberly's body wrapped in a blanket with significant burns on
her upper body. An autopsy established that Amberly had died from the untreated burns
as well as from Tramadol which was found in her system. The burns covered 45 percent
of Amberly's body but were limited to her upper body, including her face, scalp, ears,
chest, upper arms, upper to mid-back, hands, and fingers.
During the immediate investigation, Marquez was questioned about what had
happened. Marquez told an officer that she had four children, including Amberly, in her
care at the time of the injury. Marquez stated that around 8:30 p.m., she was in the
bathroom giving a bath to the two younger children, ages 3 and 1, when she heard
Amberly screaming in the kitchen. When Marquez ran to check on Amberly, she
contended that she found that Amberly had pulled a pot of boiling water off the stove
and poured it onto her head and upper body. Marquez had put the pot on the stove to
boil in order to cook a pot of beans. Marquez told the officer that there was no cleanup
required because all of the water went onto Amberly, not on the floor. Marquez stated
that she put Amberly in the tub to try and cool her off, then dried her and applied aloe
Marquez v. State Page 4 vera and Noxzema to the burns. Marquez gave milk to Amberly because she was thirsty
and put her in Marquez's bed at 10:00-10:30 p.m. Marquez told the officer that Amberly
had gotten up sometime during the night and left the bedroom, but Marquez did not
check on her during the night. Marquez stated that she went to bed around 11:00 and got
up when the youngest child woke her and she discovered Amberly at that time. Marquez
told the officer that she did not seek medical attention for Amberly the night she was
injured because Marquez had the other children in the home.
The investigating officers checked the stove and the floor around it for signs that
water had been spilled but did not find any evidence that there had been a spill recently
based on the grease and debris on the stove and the dust under the stove which were
undisturbed. There was also no indication that the gown that Amberly had been wearing
had gotten wet.
Experts for both the State and the defense conducted multiple demonstrations
attempting to establish the cause of the burns to Amberly. Amberly was 42 inches tall
and weighed 30 pounds when she died.
Other medical experts for the State and defense gave their opinions as to how the
burns could have happened. The autopsy examiner ruled that the cause of death was
homicide due to the failure to seek medical care and the ingestion of Tramadol, a drug
which is not indicated for use in children in the United States and had not been prescribed
to Amberly. However, the autopsy stated that the burn injuries were accidental because
Marquez v. State Page 5 the burns were consistent with the story as presented to the autopsy examiner. A second
expert for the State, a medical director at Parkland Hospital in Dallas, opined that it
would have been very difficult for Amberly to pick up the pot and pour water over her
entire head because her head was 2-3" taller than the stove and she likely would have
burned her hands trying to pick up the pot. That expert testified that the injuries were
more likely caused while Amberly was in the bathtub because there were no burns on
her lower extremities as would be expected if water was poured in the manner Marquez
claimed.
Amberly's older brother, who was six at the time of her death and nine at the time
of trial, discovered Amberly's body the next morning. He testified that he was in the
house the night that Amberly was injured and heard her crying. He testified that he tried
to find her and looked throughout the house everywhere except the bathroom. He gave
some different explanations of what had happened, such as Amberly turning the hot
water on in the bathtub. He had told someone that there was water on the floor in the
kitchen, but he denied that at trial. He also testified that Marquez was mean to him and
his siblings, and he tried to protect them from Marquez when they were put in time out.
Time out was not sitting in a corner, according to Amberly's brother, but involved getting
hit.
A CPS worker testified that she was concerned because of various bruises, scars,
and marks on the children, and photographs were admitted into evidence of Amberly's
Marquez v. State Page 6 siblings. Amberly's older brother testified that a bruise on a photograph taken on his
right thigh was from Marquez hitting him. He had also told his adoptive mother that
Marquez hit him when he was in trouble.
During her case-in-chief, Marquez attempted to establish that Amberly's older
brother had a reputation for being untruthful and that Marquez was a good caregiver to
the children and other children.
ANALYSIS
In order to find Marquez guilty of the lesser-included offense manslaughter as
charged in the indictment, the jury was required to find that Marquez caused Amberly's
death by either causing a hot liquid to contact Amberly's body or administering a toxic
dose of Tramadol to Amberly and that it was done recklessly. There was competing
evidence presented regarding how Amberly was burned and as to how the Tramadol
found in Amberly's system might or might not have been a toxic dose.
Marquez further argues that the evidence was insufficient for the jury to have
found that she recklessly caused Amberly's death when the jury had rejected the greater
offense of murder. To find Marquez guilty of murder, the jury was required to find that
Marquez intended to cause serious bodily injury to Amberly, defined in the jury charge
as "the person's conscious objective or desire to cause the serious bodily injury to
another," which caused Amberly's death. The jury found Marquez not guilty of murder,
and next was required to consider the offense of manslaughter.
Marquez v. State Page 7 In order for the jury to find that Marquez was guilty of manslaughter, the evidence
must be sufficient to prove that Marquez recklessly caused Amberly's death. TEX. PENAL
CODE § 19.04; Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013). A person acts
recklessly when she is aware of but consciously disregards a substantial and unjustifiable
risk. TEX. PENAL CODE § 6.03(c). The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the actor's standpoint. Id.
Manslaughter is a result-oriented offense: the mental state must relate to the results of
Marquez's alleged actions. Britain, 412 S.W.3d at 520.
Direct evidence of the requisite culpable mental state is not required. Herrera v.
State, 526 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (citing Hart v.
State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)). Mens rea is almost always proven through
circumstantial evidence. Id. A jury may infer intent from the acts, words, and conduct of
the accused, as well as from the extent of the injuries and the relative size and strength of
the parties. Id.
We disagree with Marquez's assertion that, with the quantum of evidence
presented to it, the jury could not have determined that Marquez poured the water onto
Amberly while in the bathtub without the specific intent to cause her serious bodily injury
but in a manner that was reckless. Marquez's actions and inaction after Amberly was
injured by the water supports the jury's finding of recklessness. These actions included
Marquez v. State Page 8 giving Amberly Tramadol, a prescription medication that was not prescribed to Amberly
or indicated for use in children in the United States which was determined to be a factor
in Amberly's death, instead of seeking medical attention for what was testified to as likely
very painful injuries. The jury could reasonably have determined that Marquez did not
intend to cause Amberly serious bodily injury but recklessly did so. In summary, there
were theories or scenarios presented to the jury that would support a verdict of Marquez
having recklessly caused Amberly's death. It was the jury's unenviable task to sort
through the evidence and determine whether the cause of Amberly's death was the
intentional, reckless, or criminally negligent conduct of Marquez, and the jury
determined that Marquez recklessly caused Amberly's death.
Consistent with the applicable standard of review, we have reviewed the evidence
in the light most favorable to the jury's verdict. Irrespective of the competing
interpretations of the evidence offered by Marquez, and giving the appropriate deference
to the jury's determinations, we hold that the record before us contains sufficient evidence
from which a rational jury could have logically inferred and found beyond a reasonable
doubt that Marquez recklessly caused Amberly's death. We overrule Marquez's first
issue.
ADMISSION OF EVIDENCE
In her second issue, Marquez complains that the trial court abused its discretion
in the admission of evidence relating to alleged injury to the other children in Marquez’s
Marquez v. State Page 9 home because it was not relevant, not admissible as extraneous conduct, and its probative
value was substantially outweighed by unfair prejudice.
STANDARD OF REVIEW
We review a trial court's admission or exclusion of evidence for an abuse of
discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court's
decision will be upheld as long as it was within the "zone of reasonable disagreement."
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). We will not reverse a trial
court's evidentiary ruling, even if the trial court's reasoning is flawed, if it is correct on
any theory of law that finds support in the record and is applicable to the case. Henley v.
State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016).
RELEVANCE
Marquez complains that evidence of various scratches and bruises on the other
children in the home that were admitted through photographs and testimony as signs of
Marquez's abusive behavior toward the children was not relevant pursuant to Rule 401
of the Rules of Evidence. In the single paragraph in the appellant's brief relating
specifically to Rule 401, Marquez does not cite to any authority to support her contention
and only includes an unsupported, slightly mischaracterized paraphrase of part of Rule
401 ("Under Rule 401, evidence is admissible if it tends to prove or disprove an essential
element.").
An appellant's brief "must contain a clear and concise argument for the contentions
Marquez v. State Page 10 made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i).
Further, an issue on appeal is waived if the appellant's brief does not adequately brief
that issue by presenting supporting arguments, substantive analysis, and citation to
authorities and the record. See id.; Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App.
2011); see also Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) ("We will not
make [defendant]'s arguments for him . . . ."). Marquez's complaints as to Rule 401 are
inadequately briefed and therefore, waived.
PROBATIVE VALUE
Marquez also complains that the evidence should not have been admissible
pursuant to Rule 403 of the Rules of Evidence. In support of this issue, Marquez includes
two sentences in her brief and a brief quote from a case relating to the standard of review
on this issue. Marquez's complaints as to Rule 403 are likewise inadequately briefed and
therefore, waived. See TEX. R. APP. P. 38.1(i).
EXTRANEOUS CONDUCT
Marquez further complains that the evidence was not admissible pursuant to Rule
of Evidence 404(b) because it was merely evidence of her alleged character for bad acts. 3
Rule 404(b) precludes the admission of evidence of a crime, wrong, or act solely to prove
a person's character to show that he acted in conformity with that character on a
3 Marquez does not separate out complaints specifically as to any one claim of injury to the other children but argues them in total; therefore, we will address this issue in the same manner. Marquez v. State Page 11 particular occasion. TEX. R. EVID. 404(b)(1). Rule 404(b)(2) allows for such evidence to be
admitted for other purposes, "such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2).
The purposes listed in Rule 404(b)(2) "are neither mutually exclusive nor
collectively exhaustive." De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
Indeed, extraneous evidence may also be introduced to rebut a defensive theory. Robbins
v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002); Richardson v. State, 328 S.W.3d 61, 71
(Tex. App.—Fort Worth 2010, pet. ref'd) (per curiam). Thus, while Rule 404(b) limits
character evidence, it is nevertheless a rule of inclusion. De La Paz, 279 S.W.3d at 343.
A CPS investigator testified to bruises and scratches observed on Amberly's older
brother and younger brother shortly after Amberly's death and photographs of the
alleged injuries were admitted into evidence. Photos of Amberly also showed bruises on
her back. Amberly's older brother told the CPS investigator that one of the bruises on his
leg shown in a photograph was where Marquez had hit him. He also told her and
testified at trial that the children were disciplined by going to "time out" which meant
getting hit for him and Amberly and that Marquez was "mean" to the children. At the
time of the introduction of the evidence, the State was attempting to prove two offenses,
murder and injury to a child. The State voluntarily abandoned the injury to a child charge
near the end of the trial.
At trial, the State argued that the evidence showed lack of accident. The injury to
Marquez v. State Page 12 a child charge as indicted required the State to prove that Marquez, acting as a parent,
had failed to supervise Amberly which resulted in her injuries or that Marquez failed to
seek medical care for Amberly. The murder charge required the State to prove that
Marquez intentionally caused serious bodily injury to Amberly. The admission of
evidence relating to the treatment of the other children in the home by Marquez was
admissible to show a lack of accident relating to the injury to a child charge in the manner
in which Amberly was alleged to have been injured at the time the evidence was
admitted. We overrule Marquez's second issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 11, 2024 Do not publish [CRPM]
Marquez v. State Page 13