Court of Appeals Tenth Appellate District of Texas
10-24-00191-CR
Justin Hopper, Appellant
v.
The State of Texas, Appellee
On appeal from the 272nd District Court of Brazos County, Texas Judge John L. Brick, presiding Trial Court Cause No. 20-04042-CRF-272
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Appellant, Justin Hopper, guilty of the felony offense of
injury to a child causing serious bodily injury. The jury assessed his
punishment at confinement for life. The trial court sentenced Hopper
accordingly. This appeal ensued. In four issues, Hopper argues that the
evidence was insufficient to support his conviction and that he received
ineffective assistance from his trial counsel. We will affirm. A. Background Facts
On October 27, 2020, Daniel Green and Brady Young, paramedics with
the Bryan Fire Department, responded to a call of a six-year-old in cardiac
arrest at Hopper’s residence. Hopper lived at the residence with his fiancée,
Jessica Bundren, his six-year-old twin daughters, A.B. and P.B., and
Bundren’s adult son, Dylan. Hopper told the paramedics that A.B. had fallen
down the stairs twenty minutes prior. The paramedics found A.B. lying flat on
her back in the middle of the room with her arms at her sides. Green noticed
significant facial bruising, including “raccoon eyes” which is consistent with
basilar or skull fracture. The paramedics assessed A.B. and determined that
she was already deceased and that life-saving measures would be futile. They
also observed several bruises that appeared to be in various stages of healing
and that A.B.’s body was cold to the touch, which was inconsistent with
Hopper’s claim that she had been alive twenty minutes before paramedics
arrived. The paramedics did not believe that A.B.’s injuries were consistent
with falling down the stairs.
Multiple officers and detectives from Bryan Police Department arrived
on scene. One officer spoke with P.B., who was complaining of pain and stated
she had been hit by a paddle by her dad. A search warrant was obtained and
officers found a heavy wooden paddle in one of the bedrooms. DNA analysis of
Hopper v. State Page 2 the paddle determined that A.B. was a possible contributor to a stain on the
body of the paddle and that Hopper, Bundren, and A.B. were possible
contributors to a DNA profile from the handle of the paddle. A belt was also
located in the bedroom where A.B.’s body was found, and rivets on the belt
were consistent with marks on A.B.’s skin.
Dr. Lucas Wieck, a medical examiner with the Travis County Medical
Examiner’s Office, conducted an autopsy on A.B.’s body. Dr. Wieck observed
and documented extensive injuries to A.B.’s entire body, including:
• fourteen abrasions and bruises to A.B.’s face, many of which were
commingled and overlapping, indicating multiple impacts to her face,
• injuries near her ears and eyes, including bleeding around her eyes,
• blunt trauma injuries to the front, back, and sides of her scalp and
bleeding within the outer and inner membranes that surrounded her
brain,
• bruising on the left side and back of her neck,
• multiple abrasions and bruises on the front and back of her torso, her
arms, and her legs,
• numerous areas of bleeding on her chest, abdomen, and back; and
• bleeding within her colon.
Hopper v. State Page 3 Dr. Wieck concluded that A.B.’s cause of death was blunt trauma and manner
of death was homicide. He also concluded that she died as a result of all of her
injuries, rather than a single blow. Dr. Wieck was unable to precisely date
A.B.’s injuries, but he noted evidence of inflammation in some of her injuries,
consistent with healing.
Hopper and Bundren were both charged with injury to a child causing
serious bodily injury. Bundren was tried prior to Hopper and was found guilty.
B. Sufficiency of the Evidence
In his first three issues, Hopper challenges the sufficiency of the evidence
to support his conviction and the deadly weapon finding.
1. Standard of Review
The Court of Criminal Appeals has defined our standard of review of
a sufficiency issue 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”
Hopper v. State Page 4 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, 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).
Hopper v. State Page 5 2. Issues One and Two
Hopper’s first and second issues address the sufficiency of the evidence
supporting different theories under which the jury could have found him guilty
of the offense of injury to a child, so we will address these issues together.
In his first issue, Hopper argues that the evidence is insufficient to
support his conviction for injury to a child by intentionally or knowingly
causing serious bodily injury to A.B., a child of 14 years of age or younger.
Hopper states that there is insufficient evidence to support the State’s theory
that Hopper, as a principal, caused serious bodily injury to A.B. with the
paddle. Specifically, Hopper argues that besides inference from Bundren’s
testimony in her own criminal trial facing the same charges as Hopper, there
is no direct evidence tying Hopper to the paddle on October 27, 2020. However,
direct evidence is not the only evidence a jury may consider. 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, 473 S.W.3d at 809; Hooper, 214 S.W.3d at 13.
Additionally, 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,
Hopper v. State Page 6 507 S.W.3d at 757; see also Hooper, 214 S.W.3d at 16–17. Additionally, Hopper
argues that the evidence is insufficient to convict him as a party. Specifically,
he focuses on the text messages between Bundren and Hopper and states that
the messages do not show that Hopper was encouraging, promoting, or aiding
Bundren in her abuse of A.B. In his second issue, Hopper argues that the
evidence is insufficient to support Hopper’s conviction for injury to a child by
omission by failing to protect A.B., a child of 14 years of age or younger, from
injury from another or by failing to seek prompt medical treatment for her
injuries.
The indictment and jury instructions set forth six different alternate
theories of guilt, specifically that Hopper, either acting alone or as a party,
intentionally or knowingly: (1) caused serious bodily injury to A.B. by striking
her with his hand; (2) caused serious bodily injury to A.B. by striking her with
a belt; (3) caused serious bodily injury to A.B. by striking her with a hard object;
(4) caused serious bodily injury to A.B. by causing her to strike a hard object;
(5) by omission, caused serious bodily injury to A.B. by failing to protect her
from injury from another when he had a statutory or legal duty to act; (6) by
omission, caused serious bodily injury to A.B. by failing to seek prompt medical
treatment for her injuries when he had a statutory or legal duty to act. “[W]hen
multiple theories are submitted to the jury, the evidence is sufficient to support
Hopper v. State Page 7 a conviction so long as the evidence is sufficient to support conviction for one
of the theories submitted to the jury.” Guevara v. State, 152 S.W.3d 45, 52
(Tex. Crim. App. 2004) (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.
Crim. App. 1991)).
The record contains evidence from which a jury could have reasonably
inferred that Hopper had knowledge of and encouraged Bundren’s actions
leading to and surrounding the injury and ultimate death of A.B. To determine
whether an individual is a party to an offense, the reviewing court may look to
events before, during, and after the commission of the offense. Gross v. State,
380 S.W.3d 181, 186 (Tex. Crim. App. 2012). There must be sufficient evidence
of an understanding and common design to commit the offense. Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The State introduced text
messages back and forth between Bundren and Hopper in the weeks leading
up to A.B.’s death. In many of the text messages, Bundren describes her
frustrations with P.B. and A.B., usually about the children not eating quickly
enough or urinating or defecating on the floor. Bundren also tells Hopper what
she is doing to punish the children, including striking the children and
withholding food. Hopper’s responses include apologizing to Bundren, telling
her to “stay calm” or “stay strong” or to “keep up the good work.” On September
15, 2020, Dylan texted Hopper to tell him that Bundren was going “overboard”
Hopper v. State Page 8 on P.B., and Hopper responded that P.B. was “askin [sic] for it.” During one
exchange between Bundren and Hopper from October 8, 2020, Bundren said
“It is what it is. They are testing me again. I have to stay consistent. If they
like getting swats until their bottoms are purple then so be it.” and “[A.B.] is
on a roll today – not doing what she is told. She just got another spanking.”
Hopper responded by saying, “Yeah fuck them rite [sic] now.” On October 20,
2020, Bundren sent a photo of one of the girls with a text saying “look who just
got a spanking for crying instead of eating,” to which Hopper responded, “I’m
so tired of there [sic] shit.” Later that day, Bundren told Hopper that Dylan
got angry that Bundren was spanking Arianna, and Hopper asked, “did you
tell him to shut up.” On October 21, 2020 and October 23, 2020, Hopper tells
Bundren to tell the children he will spank them when he gets home for not
listening to Bundren. On October 24, 2020, Hopper sent Bundren a photo of a
paddle and stated he had just made it. Bundren responded by saying “That’s
nice! Although I hate that we have to use it. I wish they would just straighten
up and follow the rules.” P.B. testified that Bundren would spank her and A.B.
with a belt.
The record also contains evidence from which a jury could have
reasonably concluded that Hopper’s own actions lead to the injury and ultimate
death of A.B. In her testimony during her own trial, which was read into the
Hopper v. State Page 9 record during Hopper’s trial, Bundren claimed that on October 27, 2020,
Hopper arrived at the residence at lunchtime, took A.B. to her bedroom, closed
the door, and when he came out, handed Bundren the paddle, said he had to
go to work and told Bundren to check A.B. for urine. Ring doorbell footage
shows Hopper got to the residence at about 2:00 pm and left at approximately
2:42 pm. Hopper reentered the residence at 2:43 pm and left at 2:55 pm. The
record shows that after Hopper left, he and Bundren exchanged messages
about the children, including one around 3:00 pm that A.B. had defecated in
her underwear. At about 4:50 pm, Bundren texted Hopper that while being
spanked, A.B. kept rolling on her back and defecating on the bed and floor.
Hopper told Bundren to put her in the shower and he would deal with her when
he got off work. Bundren also said that A.B. kept falling and hitting her head,
that Bundren put A.B. in the shower twice but took her out so she wouldn’t get
too cold, and that Bundren put A.B. on the floor with clothes but she “is just
lying there.” Hopper told Bundren to put A.B. on the toilet if she couldn’t stop
defecating. Around 5:10 pm, Bundren texted saying that A.B. “is fine just
needs a nap” and that Bundren tried to give A.B. ibuprofen, but A.B. spit it
out. The Ring doorbell footage shows Hopper arrived back to the residence at
5:20 pm. P.B. told officers on scene that Hopper had used the paddle to strike
her and testified at trial that Hopper spanked both her and A.B. with the
Hopper v. State Page 10 paddle. Dr. Evan Matshes, a forensic pathologist, testified that the paddle
found on scene was consistent with causing many of the injuries on A.B.’s body.
Weighing all of the evidence and testimony presented, a rational jury
could have inferred that that Hopper, as a principal actor, caused serious
bodily injury to A.B. by striking her with the paddle. A rational jury could also
have found that Hopper acted as a party to Bundren’s actions that caused
serious bodily injury to A.B.
Considering the foregoing evidence viewed in light most favorable to the
verdict, we conclude that the evidence supports the jury’s reasonable finding
that Hopper caused serious bodily injury to A.B., either as a principal or a
party. Since the evidence is sufficient to support Hopper’s conviction under
theories that he acted as a principal or as a party to the commission of the
offense, we need not address whether the evidence was sufficient under the
theories of guilt by omission. See Guevara, 152 S.W.3d at 52. Accordingly, we
overrule Hopper’s first and second issue.
3. Issue Three
In his third issue, Hopper argues that the evidence is legally insufficient
to support the deadly weapon finding for injury to a child by omission by the
failure to promptly seek medical treatment and failure to intervene to protect
A.B. from harm by another. As outlined above, there were multiple theories
Hopper v. State Page 11 on which the jury could have convicted Hopper both by commission, as a
principal actor or a party to the offense, or by omission. Hopper only argues
that there was insufficient evidence of a deadly weapon finding under the
theories of omission, but he does not argue sufficiency to support the deadly
weapon finding under the theories of commission. An appellate court will
refrain from conducting a sufficiency of the evidence review when the
defendant fails to attack all theories of conviction submitted alternatively to
the jury. See Kitchens, 823 S.W.2d 259. Accordingly, we overrule Hopper’s
third issue.
C. Ineffective Assistance of Counsel
In his fourth issue, Hopper argues that trial counsel provided ineffective
assistance of counsel at the pretrial and trial stages with no plausible trial
strategy.
1. Authority
The Sixth Amendment to the United States Constitution, and section ten
of Article 1 of the Texas Constitution, guarantee individuals the right to
assistance of counsel in a criminal prosecution. Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011). The right to counsel necessarily requires the right
to effective assistance, not just the mere presence of a lawyer. Id. However,
Hopper v. State Page 12 the right does not provide a right to errorless counsel, but rather to objectively
reasonable representation. Id.
To prevail on a claim of ineffective assistance of counsel, an appellant
must meet the two-pronged test established by the U.S. Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 55–56 (Tex. Crim. App.
1986) (adopting the two-pronged test set forth in Strickland). An appellant
must show that (1) counsel’s representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense such
that there is a reasonable probability that the result of the proceeding would
have been different. Lopez, 343 S.W.3d at 142; Hernandez, 726 S.W.2d at 55.
In assessing effective assistance of counsel, we must review the totality of the
representation and the circumstances of each case without the benefit of
hindsight. Lopez, 342 S.W.3d at 142–43. While a single error will not typically
result in a finding of ineffective assistance of counsel, an egregious error may
satisfy the Strickland prongs on its own. Id. at 143.
2. Analysis
Hopper argues that his trial counsel was ineffective for several reasons,
specifically: (1) in his response to a juror fainting and failing to inquire
whether the attending paramedic was the State’s witness, Daniel Green, a
Hopper v. State Page 13 paramedic for the Bryan Fire Department; (2) by failing to request a Rule 705
hearing as to Green’s qualifications; (3) by failing to request a Rule 705 hearing
as to the reliability of Matshes’s opinions; (4) by failing to object to Liza Dyess’s
testimony under Rules 702 and 403; (5) by filing “Ake Motions” publicly rather
than under seal; (6) by admitting and reading from Bundren’s testimony; (7)
by failing to object to certain sections of the charge; and (8) by failing to request
a hearing on the State’s request that P.B. be allowed to testify via closed circuit
television.
Appellate review of trial counsel’s representation is highly deferential
and presumes that counsel’s actions fell within the wide range of reasonable
and professional assistance. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.
App. 2007). If counsel’s reasons for his conduct do not appear in the record and
there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy, we will defer to counsel’s decisions and deny relief on
an ineffective assistance claim on direct appeal. Id. Ineffective assistance of
counsel claims are not built on retrospective speculation; they must “be firmly
founded in the record.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.
2002). That record must itself affirmatively demonstrate the alleged
ineffectiveness. Id. Here, counsel’s reasons for his actions or intentions do not
Hopper v. State Page 14 appear in the record, and his conduct could have been part of a reasonable trial
strategy. Without more, we must defer to counsel’s decisions and deny relief.
Therefore, we overrule Hopper’s fourth issue.
D. Conclusion
Having overruled Hopper’s four issues, we affirm the judgment of the
trial court.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: May 28, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CRPM
Hopper v. State Page 15