Michael A. Allen v. the State of Texas
Opinion
Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
evidence to support his conviction and that the trial court erred in admitting certain evidence, overruling his motion for mistrial, charging the jury incorrectly, and denying his motion for new trial. Finally, Appellant contends he received ineffective assistance of counsel at trial.
We affirm the trial court’s judgment.
Background
Allen married Samantha Strahan in 2016, and they lived together in their RV trailer home. Late at night on April 9, 2020, Samantha and her mother, Brenda, shared several back-and-forth phone calls. A. Mother’s Testimony Samantha’s mother testified that Samantha called her the night of April 9. She was whispering and had locked herself in the bathroom. She “sounded afraid” and she “was scared.” While crying, Samantha told Brenda that she “tried to cuddle up to [Allen] and [] he had kicked her, and she’d gone flying through the door.” Samantha told her mother that her head hurt and she felt like she had broken a rib, but she was “holding [herself] together.” Samantha said she felt “sad” and “trapped.” Brenda wanted to help but did not know how, so she recited a few Bible verses to Samantha. As they were talking, Brenda heard Allen ask, “Who are you talking to?” Samantha responded, “my mama,” and that “seemed to escalate things a little bit.” The call then ended. Brenda wanted to go over immediately, but she was afraid it
would cause a “bigger confrontation.” She testified that she and her husband had been in prior confrontations with Allen about Samantha’s “safety.” Brenda eventually got a text from Samantha that made her believe she could wait until the morning before doing anything else.
The next morning, Brenda texted Samantha, but received no response. Later that morning Brenda received a call from Allen. He told her he had gone out to get food, and when he returned, he found Samantha unconscious. Brenda told Allen to call 9-1-1. She and her husband immediately left to check on Samantha. B. Medical Testimony When EMS arrived, Allen was on his knees near Samantha, who was unconscious. Allen told EMS that Samantha had begun having seizures a year and a half ago, but she was not taking medication. He reported that she had a seizure earlier in the week, but that “this is not how she typically acts after a seizure.” Allen said that Samantha had been vomiting with nausea and diarrhea that week. He explained that bruises visible on Samantha’s body were from a seizure earlier in the week, and others were possibly from when she was drunk.
EMS transported Samantha to a hospital in Tomball, where medical staff observed that she could breathe on her own but was “completely unconscious.” She had “bruising in multiple stages of healing across her body, across her check, on her
back, circumferential bruising on her arms and her ankles, [and] bruising on her hands.”
Laura Dunbar—an emergency room nurse on duty—testified that Samantha’s presentation was not consistent with a seizure. For example, seizure patients usually regain consciousness and show response to pain stimuli. Samantha did neither. When Dunbar spoke to Allen, he admitted that he and Samantha had “an argument” the prior night, but he did not “admit to any abuse.” He reported that Samantha was vomiting and “not feeling right,” so he went to get her food. When he returned, she was unresponsive. Allen reported that his “wife drinks and falls down sometimes” and “has seizures and ‘falls sometimes.’” Dunbar noted that Samantha had a “significant subdural hematoma” that appeared “traumatic in nature.” The injury did not match Allen’s report of falling from seizures or drinking. Dunbar concluded that “[s]uspicion for domestic violence [was] high . . . [and] [l]aw enforcement [was] notified.”
Because of the severity of her injury, Samantha was flown to Conroe Regional Medical Center, where she was treated by Dr. Robert Ellis—a trauma surgeon and chief of surgery. Dr. Ellis noted that Samantha’s CT scan showed a large blood clot around the left side of her brain consistent with “major blunt force trauma.” He opined that the force necessary to create that type of injury was not consistent with a short fall or falling from a couch. The trauma was also not consistent with a fall
from a standing position. It was a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. It would not be a small trauma that developed over time, but a huge trauma “from the moment of injury.” He acknowledged that if a seizure causes a person to fall and hit her head, that can possibly cause a subdural hematoma. But Samantha’s brain injury was not consistent with a seizure causing the initial trauma because convulsions from a seizure are “usually a low-impact kind of injury.” In his twenty-year career as a trauma surgeon, Dr. Ellis had not been called to evaluate an injury caused by a seizure. He conceded that he did not know what caused Samantha’s subdural hematoma or how it happened.
Dr. Ellis called Dr. Cyril Sebastian, a neurosurgeon, to perform emergency surgery on Samantha. Dr. Sebastian removed a portion of Samantha’s skull to relieve the pressure on her brain. Samantha was eventually transferred to a rehabilitation facility and then a long-term care facility, where she died almost three months after her initial injury.
Dr. Kathrynn Pinneri—director of Montgomery County Forensic Services—
testified about Samantha’s autopsy report, which attributed her cause of death to “[c]omplications following blunt force trauma to the head” and described her manner of death as “homicide.” She testified that a subdural hematoma the size of the one observed in Samantha head would be caused by a “fairly significant impact,”
and “not from a minor bumping of the head against a wall, or from a short fall[.]” She also noted that Samantha had “microscopic cirrhosis” of the liver, which was “likely not affecting her at this point in her life.” She noted that when Samantha was first admitted, her liver enzymes were mildly elevated, one of her “clotting factors” was completely normal, and two other clotting factors were “very minimally elevated[.]” She did not think that any of these findings would have caused unusual bleeding or prevented normal clotting. C. The Police Investigation Harris County Sheriff’s Deputy J. Herrera was dispatched with Deputy J.
Decatur to a hospital in Conroe to investigate a “possible domestic violence” case. Deputy Herrera’s encounter with Allen at the hospital was recorded on his body camera and admitted at trial. While they were talking, Allen told police that he and Samantha had argued the night before and Samantha was “sick or had a stomach ailment” the next morning; she was lying on the couch and “mumbling.”
When discussing the event the night before, Allen told police that Samantha had been drinking and that when she drinks she gets “belligerent and verbally abusive.” When Hererra asked Allen whether Samantha had “gotten physical,” he replied, “no,” but “she did throw a cup of something on me,” and that led to the argument. Allen also stated that Samantha was “throwing stuff,” which he had to
clean up. The deputies eventually took Allen out to their car to talk to him where it was more private.
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Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
evidence to support his conviction and that the trial court erred in admitting certain evidence, overruling his motion for mistrial, charging the jury incorrectly, and denying his motion for new trial. Finally, Appellant contends he received ineffective assistance of counsel at trial.
We affirm the trial court’s judgment.
Background
Allen married Samantha Strahan in 2016, and they lived together in their RV trailer home. Late at night on April 9, 2020, Samantha and her mother, Brenda, shared several back-and-forth phone calls. A. Mother’s Testimony Samantha’s mother testified that Samantha called her the night of April 9. She was whispering and had locked herself in the bathroom. She “sounded afraid” and she “was scared.” While crying, Samantha told Brenda that she “tried to cuddle up to [Allen] and [] he had kicked her, and she’d gone flying through the door.” Samantha told her mother that her head hurt and she felt like she had broken a rib, but she was “holding [herself] together.” Samantha said she felt “sad” and “trapped.” Brenda wanted to help but did not know how, so she recited a few Bible verses to Samantha. As they were talking, Brenda heard Allen ask, “Who are you talking to?” Samantha responded, “my mama,” and that “seemed to escalate things a little bit.” The call then ended. Brenda wanted to go over immediately, but she was afraid it
would cause a “bigger confrontation.” She testified that she and her husband had been in prior confrontations with Allen about Samantha’s “safety.” Brenda eventually got a text from Samantha that made her believe she could wait until the morning before doing anything else.
The next morning, Brenda texted Samantha, but received no response. Later that morning Brenda received a call from Allen. He told her he had gone out to get food, and when he returned, he found Samantha unconscious. Brenda told Allen to call 9-1-1. She and her husband immediately left to check on Samantha. B. Medical Testimony When EMS arrived, Allen was on his knees near Samantha, who was unconscious. Allen told EMS that Samantha had begun having seizures a year and a half ago, but she was not taking medication. He reported that she had a seizure earlier in the week, but that “this is not how she typically acts after a seizure.” Allen said that Samantha had been vomiting with nausea and diarrhea that week. He explained that bruises visible on Samantha’s body were from a seizure earlier in the week, and others were possibly from when she was drunk.
EMS transported Samantha to a hospital in Tomball, where medical staff observed that she could breathe on her own but was “completely unconscious.” She had “bruising in multiple stages of healing across her body, across her check, on her
back, circumferential bruising on her arms and her ankles, [and] bruising on her hands.”
Laura Dunbar—an emergency room nurse on duty—testified that Samantha’s presentation was not consistent with a seizure. For example, seizure patients usually regain consciousness and show response to pain stimuli. Samantha did neither. When Dunbar spoke to Allen, he admitted that he and Samantha had “an argument” the prior night, but he did not “admit to any abuse.” He reported that Samantha was vomiting and “not feeling right,” so he went to get her food. When he returned, she was unresponsive. Allen reported that his “wife drinks and falls down sometimes” and “has seizures and ‘falls sometimes.’” Dunbar noted that Samantha had a “significant subdural hematoma” that appeared “traumatic in nature.” The injury did not match Allen’s report of falling from seizures or drinking. Dunbar concluded that “[s]uspicion for domestic violence [was] high . . . [and] [l]aw enforcement [was] notified.”
Because of the severity of her injury, Samantha was flown to Conroe Regional Medical Center, where she was treated by Dr. Robert Ellis—a trauma surgeon and chief of surgery. Dr. Ellis noted that Samantha’s CT scan showed a large blood clot around the left side of her brain consistent with “major blunt force trauma.” He opined that the force necessary to create that type of injury was not consistent with a short fall or falling from a couch. The trauma was also not consistent with a fall
from a standing position. It was a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. It would not be a small trauma that developed over time, but a huge trauma “from the moment of injury.” He acknowledged that if a seizure causes a person to fall and hit her head, that can possibly cause a subdural hematoma. But Samantha’s brain injury was not consistent with a seizure causing the initial trauma because convulsions from a seizure are “usually a low-impact kind of injury.” In his twenty-year career as a trauma surgeon, Dr. Ellis had not been called to evaluate an injury caused by a seizure. He conceded that he did not know what caused Samantha’s subdural hematoma or how it happened.
Dr. Ellis called Dr. Cyril Sebastian, a neurosurgeon, to perform emergency surgery on Samantha. Dr. Sebastian removed a portion of Samantha’s skull to relieve the pressure on her brain. Samantha was eventually transferred to a rehabilitation facility and then a long-term care facility, where she died almost three months after her initial injury.
Dr. Kathrynn Pinneri—director of Montgomery County Forensic Services—
testified about Samantha’s autopsy report, which attributed her cause of death to “[c]omplications following blunt force trauma to the head” and described her manner of death as “homicide.” She testified that a subdural hematoma the size of the one observed in Samantha head would be caused by a “fairly significant impact,”
and “not from a minor bumping of the head against a wall, or from a short fall[.]” She also noted that Samantha had “microscopic cirrhosis” of the liver, which was “likely not affecting her at this point in her life.” She noted that when Samantha was first admitted, her liver enzymes were mildly elevated, one of her “clotting factors” was completely normal, and two other clotting factors were “very minimally elevated[.]” She did not think that any of these findings would have caused unusual bleeding or prevented normal clotting. C. The Police Investigation Harris County Sheriff’s Deputy J. Herrera was dispatched with Deputy J.
Decatur to a hospital in Conroe to investigate a “possible domestic violence” case. Deputy Herrera’s encounter with Allen at the hospital was recorded on his body camera and admitted at trial. While they were talking, Allen told police that he and Samantha had argued the night before and Samantha was “sick or had a stomach ailment” the next morning; she was lying on the couch and “mumbling.”
When discussing the event the night before, Allen told police that Samantha had been drinking and that when she drinks she gets “belligerent and verbally abusive.” When Hererra asked Allen whether Samantha had “gotten physical,” he replied, “no,” but “she did throw a cup of something on me,” and that led to the argument. Allen also stated that Samantha was “throwing stuff,” which he had to
clean up. The deputies eventually took Allen out to their car to talk to him where it was more private.
Deputy Decatur testified about the footage from his body camera. When he moved Allen from inside the hospital to the patrol car, he asked Allen if he understood that he was not under arrest, and Allen responded affirmatively. He did not handcuff Allen because he was not in custody. Deputy Decatur described the encounter as a “consensual interview.” He explained to Allen that he was not under arrest, but he was holding him in the car because it was hard to hear outside. During his conversation with Deputy Decatur, Allen—describing the events of the prior night—stated that he was upset because Samantha had crawled into bed and woken him up. Allen said, “I got her off me. I made her—I made her get off me.” Allen described his actions as “pushing her away.” Allen then “grabbed [Samantha] by both arms” and “shoved her to the couch and made her stay down there.” He then cleaned up water from a humidifier that he noticed Samantha had thrown. Allen told Deputy Decatur that Samantha had a history of seizures and that the bruising on her might have happened when she was drinking about a week before. Sometime during his discussion with Allen, Deputy Decatur decided to return him to the trailer.
D. White—a detective with the Tomball Police Department—escorted Allen back to the trailer during what he described as “a consensual encounter.” When a “relatively new officer” tried to place Allen in handcuffs, Detective White stepped
in and instructed the officer “absolutely not” because Allen was not under arrest. He instructed the officer escorting Allen not to talk to him. Detective White asked Allen to sign a consent-to-search form, and Allen signed.
While inside the trailer, Detective White saw holes punched in the bedroom door, which he took to be a “sign of violence.” He also saw a “head print” in the inside portion of the bedroom leading in the door, which Allen told him was “[f]rom something else.” There was vomit on the floor next to the couch, which had been pulled out into a bed. Also near the couch was an ottoman with a wooden frame that had a strand of long hair hanging from it. Immediately outside the master bedroom was the kitchen countertop. Detective White could tell from the dust on the countertop that several items had been recently moved or knocked over. Although Allen claimed that Samantha had poured limeade on him while he was asleep, no staining or stickiness was found on the bed.
When discussing the fight with Samantha, Allen said that while he was asleep, Samantha cuddled up to him and he “shrugged” her away. She then returned and poured limeade on him. He claimed that he “nudged [Samantha] off the bed” with his feet. Allen said that “she fell out of the bed after being kicked through the doorway.” He did not know where she landed, but “he got out of the bed and then he pushed her down toward the couch.” Allen claimed that Samantha landed on her butt on the ground, next to the wooden-framed ottoman, a table, and a TV stand.
From the position of items in the trailer and Allen’s statement, Detective White concluded that Samantha likely had been kicked off the bed through the door, possibly hitting her head on the countertop, knocking over several items that had been there in the process. When asked how Samantha had hit her head, Allen said it must have been when she was falling out of the bed, but he claimed he did not see it happen. After talking with Allen and seeing the trailer, Detective White concluded he had probable cause to make an arrest. D. The Defense Allen presented two witnesses in his own defense—his mother, Lora Allen, and himself. Lora testified that Allen and Samantha lived with her from August to October 2019. During that time, she saw bruises on Samantha that Samantha said were caused by their dog, Ruger. Lora often smelled alcohol on Samantha’s breath, and she knew that Samantha drank margaritas and wine. Lora eventually kicked the couple out of her home because she could not tolerate Samantha’s outbursts and mood swings. After they moved out, Lora found three boxes of wine and several empty bottles under the bed. Lora testified that Allen was not violent, and Samantha never expressed any concerns about him.
Allen testified on his own behalf. He testified that on the night of the incident, he fell asleep around 10:30 p.m. and Samantha came in and tried to wake him up. He “shrugged” her off by moving her arm. He claimed that Samantha became violent
and “started screaming and cussing” at him. She returned to the bedroom with a limeade and “dumped all of that onto” him. He testified that after Samantha dumped the limeade on him, he was “pissed off” and he yelled at her. He “used [his] legs to push her off [] so that [he] could get out of bed.” He was upset and yelled at her to calm down. When asked why he “kick[ed] her off the bed,” he responded that he “wanted to get out of bed so [that he] could get the drink out of [his] ear and get it off [his] face.” He heard a crash, but he did not see Samantha hit her head on anything. After he got out of bed, Samantha was still acting “aggressive verbally” and hitting him on the chest, so he “pushed her away.” He tried to push her onto the couch, but she stumbled and landed on the floor. He did not see her hit her head on anything. He grabbed her by the arms, “pushed her towards the couch,” and held her there until she “calmed down enough.” He then tossed her phone to her, and he thought he heard her call her mother. While she was on the phone, he started cleaning up.
When asked why he started cleaning at that point, he testified that if he “didn’t clean . . . it was a problem for her, so . . . he just went ahead and cleaned it up.” He cleaned up water from a humidifier that according to Allen, Samantha had thrown across the trailer after he pushed her out of the bed. He then showered while Samantha spoke to her mother on the phone. When Allen got out of the shower, he testified that Samantha was screaming at her mother, and “she hung up on her and
slammed the phone down.” Allen told her he “had enough” and he started to grab his keys to go to his mother’s home, but Samantha grabbed his keys and tossed them, so he just closed the door and went to sleep.
Allen testified that the next morning Samantha apologized, and they both went back to sleep for a while. When Samantha woke up, she complained about shaking, feeling nauseous, and vomiting. She lay down on the couch while Allen stayed in bed. Allen checked on Samantha when he took their dog for a walk, but she did not complain about any injury. He testified that he never hit her at all “[o]ther than accidentally pushing her to where she’d fell on the floor[.]”
Allen testified that around noon, he ordered food from Door Dash thinking that Samantha might be able to keep the food down while she was nauseous. He walked to meet the Door Dash driver, and when he returned Samantha was on the floor. He testified that “it appeared that she was towards the end of a convulsion; her lips were purple, she had foam and vomit at the mouth, but when she calmed down, she wasn’t responsive anymore.” He tried to wake her, and when he could not do so, he called her mother. Allen then called 9-1-1 and EMS responded within minutes. Allen told EMS about Samantha’s previous seizures and low blood sugar, acknowledging that he “speculated a lot about what might be the reason for her seizures.”
Allen also testified about his relationship with Samantha, describing it as “start[ing] off well,” but declining after Samantha lost her job. He testified that the relationship became “toxic,” and that Samantha would throw things at him. He described one occasion when Samantha became “verbally and physically violent” and started throwing things at him. She threw a lap desk at him and then began throwing plates, bowls, and knives. He picked up the lap desk to block the knives and swung it to try to knock a knife from Samantha’s hand. Instead, he hit her on the head “by complete accident.” He rushed her to the hospital, where she got stitches. The jury saw pictures of Samantha’s black eyes and injury from that event. When asked about the holes in the bedroom door, Allen testified that the holes were from another time. He testified that Samantha made the holes, “[s]he would get angry” and “throw [the dog’s toys] at me and they would hit the door, causing holes.” He testified the door was “very hollow.”
Allen also testified that Samantha drank excessively, having boxed wine, beer, or hard liquor every day. He admitted that he, too, had a drinking problem, but at the time of trial, he had been sober for three years. When asked about Samantha’s frequent bruises, Allen testified that “she would black out, she wouldn’t remember a whole lot of things, she would stumble a lot, bumping into anything and everything, and she would wake up later and not remember anything and then go right back to drinking.” He also testified that Samantha had trouble walking their dog because she
was small and the dog was seventy pounds, suggesting that the dog might have caused some of her injuries.
Allen testified that Samantha had seizures and “she would become extremely stiff, her arms would curl up, and at times, she would let out like a loud grunt groan, like her body is letting the air escape.” He went with her to a general practitioner, but they never scheduled any follow-up appointments with a neurologist. He testified that after, Samantha had “multiple” seizures—“seven, eight maybe.”
Allen testified that he and Samantha had approximately a dozen physical fights when they were together, but that she was always the aggressor. He denied punching any holes in their bedroom door and explained that the holes were caused when Samantha threw dog toys at him. E. The Trial and Verdict Allen was tried for aggravated assault by recklessly causing serious bodily injury. The jury found him guilty and assessed his punishment at twelve years in prison. This appeal followed.
Sufficiency of the Evidence In his first two issues, Allen argues that the evidence is legally insufficient to establish that he (1) acted recklessly, and (2) caused Samantha serious bodily injury. We address each argument in turn.
A. Standard of Review and Applicable Law We apply the sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979) to determine whether the evidence is sufficient to support each element of a criminal offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). “[W]e view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895). We consider both direct and circumstantial evidence in our analysis. Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009); see Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor” and “the standard of review on appeal is the same for both direct and circumstantial evidence cases.”) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
In evaluating the sufficiency of the evidence, we defer to the factfinder’s credibility and the weight the factfinder gives to the evidence. Brooks, 323 S.W.3d at 894. This sufficiency standard does not blindly defer to the factfinder’s credibility determinations, as “it allows for some consideration of whether the jury’s credibility determinations were rational in light of the objective evidence.” Walker v. State,
Nos. PD-1429-14, PD-1430-14, 2016 WL 6092523, at *15 (Tex. Crim. App. Oct. 19, 2016) (not designated for publication) (citing Brooks, 323 S.W.3d at 907). We must presume the factfinder resolved any evidentiary conflicts in favor of the verdict and we defer to that resolution. See Jackson, 443 U.S. at 326; see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to guarding against the rare occurrence when a fact finder does not act rationally”) (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). If our review reveals the evidence is insufficient, we must reverse the appellant’s conviction. Costilla v. State, 650 S.W.3d 201, 212 (Tex. App.— Houston [1st Dist.] 2021, no pet.). However, if there are two permissible views of the evidence, “the fact finder’s choice between them cannot be clearly erroneous.” Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
Allen was convicted of aggravated assault by recklessly causing serious bodily injury to Samantha, “by pushing [her] to the ground with his body causing her to hit her head,” or “by kicking [her] to the ground with his body causing her to hit her head,” as alleged in the indictment. Under Texas Penal Code § 22.01(a)(1), a person commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” TEX. PENAL. CODE § 22.01(a)(1). A person commits “aggravated assault” if he either (1) causes serious bodily injury
to another; or (2) uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(1)(2).
The Penal Code defines “serious bodily injury” as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46). A person “acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Id. § 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. B. Evidence of Recklessness In his first issue, Allen points out that aggravated assault causing serious bodily injury is a “result-oriented” offense, and he argues that “[t]he State presented no evidence that [he] was aware of but consciously disregarded a substantial and justifiable risk that the injury would result.”
We agree that bodily-injury assault is a result-oriented offense. See Simms v.
State, 629 S.W.3d 218, 223 (Tex. Crim. App. 2021). We disagree, however, with Allen’s evaluation of the sufficiency of the evidence. To find Allen guilty of
aggravated assault as charged, the jury had to find that he was reckless with respect to the result—Samantha’s serious bodily injury—caused by one of the alleged manner and means—pushing her to the ground with his body causing her to hit her head or kicking her to the ground with his body causing her to hit her head. A person acts recklessly with respect to the result of his conduct “when he is aware of but consciously disregards a substantial and unjustifiable risk” that the result will occur. TEX. PENAL CODE § 6.03(c); see Ramos v. State, 407 S.W.3d 265, 270 (Tex. Crim. App. 2013). “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 defendant’s standpoint. TEX. PENAL CODE § 6.03(c).
“Recklessness requires the defendant to actually foresee the risk involved and consciously decide to ignore it.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). In determining whether a person acted recklessly, “[t]he issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk.” Dillon v. State, 574 S.W.2d 92, 95 (Tex. Crim. App. [Panel Op.] 1978). The mens rea for “reckless” conduct involves conscious risk creation, rather than mere inattentiveness. See Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); see also Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007) (characterizing
recklessness as entailing calculated decision to gamble with other people’s lives). Conscious risk creation may be inferred from the surrounding circumstances. See Couthren v. State, 571 S.W.3d 786, 793 (Tex. Crim. App. 2019) (stating jury may infer reckless driving from evidence); see also Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020) (observing that, absent confession, defendant’s mental state must be inferred from his words and actions).
After reviewing the evidence in the record, we conclude there was sufficient evidence to support the jury’s finding of recklessness. Samantha’s mother testified that Samantha called her the night of April 9 and told her that Allen had “kicked her, and she’d gone flying through the door.” Samantha was crying, and she told her mother that her head hurt and she felt like she’d broken a rib, but she was “holding [herself] together.” Samantha was whispering. Brenda testified that Samantha was “afraid” and had locked herself in the bathroom.
Allen admitted that he used both legs to kick Samantha off their bed with sufficient force to push her off the bed and through the open bedroom door. Although he testified that Samantha did not go “flying” through the adjacent doorway—as Samantha told her mother—there was medical evidence explaining that the force necessary to cause a brain injury like the one Samantha experienced would be the equivalent of a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. The couple’s
trailer home was very small, and the jury saw pictures showing how close the bed was to the kitchen counter just outside the couples’ bedroom door. The jury also saw a wood-trimmed ottoman with a long hair on it near where Allen pushed Samantha to the floor.
At 5’10” and 205 pounds, Allen was almost twice the size of Samantha, who was only 5’1” and 105 pounds. When Allen kicked or pushed Samantha off the bed, Allen was, by his own admission, upset at Samantha for pouring limeade on him. Although he claimed he did not see Samantha hit her head, Allen acknowledged that Samantha could have hit her head when he kicked her out of the bed through the open bedroom door and into the kitchen, but he was not paying attention.
From this evidence, the jury reasonably could have concluded that Allen created and disregarded a conscious risk of serious bodily injury to Samantha by kicking her with enough force to propel her through the open bedroom door and into the nearby kitchen causing her to hit her head, or by pushing her hard enough to fall to the floor causing her to hit her head.2 We overrule Allen’s first issue.
2 The indictment did not require the State to show whether Samantha hit her head on the countertop or the wooden ottoman or something else entirely.
C. Evidence of Causation In his second issue, Allen argues that the evidence is legally insufficient to prove he caused Samantha’s brain injury. Allen acknowledges Dr. Ellis’ testimony that the blunt force trauma to Samantha’s brain was caused by a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. Allen contends, however, that the State presented no evidence to “corroborate” Dr. Ellis’ testimony and points to evidence suggesting that a seizure or cirrhosis of the liver might have caused Samantha’s subdural hematoma.
We begin by noting that the State was not required to “corroborate” its own expert’s testimony. See Hutchins v. State, 360 S.W.2d 534, 527–28 (Tex. Crim. App. 1962) (noting that jury is exclusive judge of facts and credibility and witness testimony need not be corroborated). And the evidence need not exclude all alternative reasonable hypotheses to be legally sufficient. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). Causation is established if the conduct of the defendant is the “but for” cause “operating either alone or concurrently with another cause.” TEX. PENAL CODE § 6.04(a); Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). “But for” causation establishes culpability or criminal responsibility. See Cyr v. State, 665 S.W.3d 551, 557–58 (Tex. Crim. App. 2022). The existence of a causal connection between the defendant’s act and the injury to the complainant is a question for the jury. See Dorsche v. State, 514 S.W.2d 755,
757 (Tex. Crim. App. 1974). Proof of causation is sufficient if the evidence establishes that “but for” the defendant’s conduct, the alleged result would not have occurred. See Lowe v. State, 676 S.W.2d 658, 661 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d). The issue is thus whether there was legally sufficient evidence for the jury to conclude that Allen’s action in either kicking or hitting Samantha caused her to hit her head, which in turn caused the subdural hematoma leading to her death.
The jury heard evidence that Allen kicked Samantha off the bed and through the bedroom door to the kitchen. Samantha told her mother that Allen “kicked her, and she’d gone flying through the door.” Samantha was crying, and she told her mother that her head hurt and she felt like she’d broken a rib. The jury reasonably could have inferred from this testimony that Samantha hit her head when Allen kicked her off the bed. While Allen denied that Samantha had “gone flying” when he kicked her, the jury was free to believe Brenda’s testimony and to disbelieve Allen’s testimony on this point.
Allen conceded that he kicked Samantha with his legs and that she had gone through the open bedroom door when he kicked her. He did not see where she fell, but he heard a crash. He told police that Samantha might have hit her head when she fell. He testified that he shoved Samantha down on the floor near the couch and a wooden-framed ottoman. Although he claimed that Samantha did not hit her head when he pushed her, police later found a long hair on the ottoman.
Expert medical testimony established that the subdural hematoma that led to Samantha’s ultimate death was caused by “[m]ajor blunt force trauma[,] like a person might experience in a car accident, a fall from a great height, or from a baseball-bat injury.” Falling off a bed or couch or falling from a standing position would not have caused the damage seen in Samantha’s brain. The medical experts at trial opined that—while a person having a seizure might fall and hit her head— such a fall would not likely produce the massive bleeding seen in Samantha’s brain.
The jury, as the fact finder, rationally could have concluded that when Allen kicked or shoved Samantha with both his legs, he had done so with enough force to cause a “major deceleration” event, causing Samantha to hit something in the next room like the kitchen countertop or wooden-framed ottoman, and that such a “major deceleration” event led to the subdural hematoma that ultimately led to her death. The jury also could have reasonably inferred from the size difference between Allen and Samantha that Allen’s kick or shove could have caused Samantha to go “flying,” as Samantha described to her mother.
Although Allen’s defense was to suggest that Samantha had a seizure that either directly caused the subdural hematoma or caused her to fall resulting in the subdural hematoma, the jury as the fact finder was entitled to reject this theory of the case and to conclude that Allen’s conduct caused Samantha’s injury.
We overrule Allen’s second issue.
Admission of Evidence about Cause of Death At trial, the State introduced testimony from a forensic pathologist and autopsy records showing that Samantha died by homicide. In issue three, Allen contends that such evidence was erroneously admitted because it was (1) irrelevant and (2) its “probative value was substantially outweighed by the extreme prejudice the evidence carried.” In his fourth and fifth issues, Allen argues that the harm caused by the admission of such evidence was constitutional error denying him a fair trial and that his motion for mistrial arguing the same should have been granted. A. Standard of Review “Questions of relevance should be left largely to a trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion.” Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). The trial court abuses its discretion when its ruling was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). B. Relevancy Only relevant evidence is admissible. See TEX. R. EVID. 402. Relevant evidence is evidence having “any tendency to make a fact more or less probable than it would be without the evidence.” TEX. R. EVID. 401(a). Relevant evidence must
also address a fact that is of consequence in determining the action. TEX. R. EVID. 401(b).
Allen argues that “the cause of death being homicide was not a consequence of fact for the charged offense of aggravated assault” and “had no relevance to how or when the injury occurred months earlier than the autopsy.” Allen argues that, because he was charged with aggravated assault and not murder, the cause of Samantha’s death was irrelevant and “required [him] to defend against an uncharged homicide and the assertion that [Samantha] died at [his] hands.” Essentially, Allen argues that the fact of Samantha’s death was irrelevant because he was charged with aggravated assault, not murder.
Allen’s argument that evidence of death is irrelevant in an aggravated assault case conflates the elements of the offense with the evidentiary method of proving it. To prove aggravated assault in this case, the State was required to prove an assault causing “serious bodily injury.” See TEX. PENAL CODE § 22.02(a)(1). “Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(46) (emphasis added). The statute thus provides multiple alternative methods by which the State may prove the serious bodily injury element, and causing death is one of them.
Establishing that Samantha died by homicide was one of the statutorily approved methods the State could use to prove the element of “serious bodily injury.” Juneau v. State, 49 S.W.3d 387, 391 (Tex. App.—Fort Worth 2000, no pet.) (explaining that in aggravated assault case, “[d]eath is . . . a method of proving serious bodily injury, the aggravating element”) (emphasis in original); see also McQueen v. State, 705 S.W.2d 271, 274 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (“A finding of aggravated assault is therefore warranted if the evidence shows that the defendant committed an assaultive act and caused serious bodily injury (death being within the definition of ‘serious bodily injury’) . . . .”). Because evidence that Samantha died as a result of a homicide directly relates to an element of the offense—serious bodily injury—it addressed a fact that is of consequence in the case. We thus conclude the trial court did not err in admitting the evidence under Rule of Evidence 401. C. Rule 403 Analysis A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX. R. EVID. 403. Probative value refers to the “inherent probative force of an item of evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent’s need for that item of evidence.” Casey v. State, 215 S.W.3d
870, 879 (Tex. Crim. App. 2007). “Unfair prejudice refers to an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one.” Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (internal quotation marks omitted).
As part of his third issue, Allen argues that “any probative value [of the evidence] was outweighed by the extreme prejudice the evidence carried.” Allen cites to Rule 403 in his brief, but he does so only in reciting the “applicable law.” Nowhere in his brief does he attempt to apply the rule, analyze its application to the case, provide authority, or explain how the trial court erroneously applied the balancing test required after a Rule 403 objection has been made. He merely makes a conclusory statement that he suffered “extreme prejudice” because the evidence of death by homicide “painted [him] as a murderer when he was not even charged for the complainant’s death.” Because Allen has not provided this Court with “clear and concise argument for the contentions made” or given this Court “appropriate citations to authorities and to the record,” he waived his contention that the trial court violated Rule 403 by admitting the evidence we have already determined to be relevant. See TEX. R. APP. P. 38.1.
We overrule Allen’s third issue.
Constitutional Error and Denial of Mistrial In his fourth issue, Allen argues that the trial court’s admission of the pathologist’s testimony and the autopsy report was an error of constitutional dimensions that denied him due process and caused him incurable harm. Alternatively, he argues that the admission of the evidence was non-constitutional error that cannot be disregarded because it affected his substantial rights. And in his fifth issue, Allen argues that, because the trial court erred in admitting the pathologist’s testimony and autopsy report, it also erred in denying his motion for mistrial, which was based on the same grounds. Issues four and five are both premised on a finding of error.
“A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Hallman v. State, 721 S.W.3d 307, 313 (Tex. Crim. App. 2025) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)) (emphasis added). It is not error for a trial court to deny a motion for mistrial when the evidence on which the motion is based was properly admitted. See Melton v. State, 508 S.W.2d 104, 106 (Tex. Crim. App. 1974) (holding trial court did not err in refusing to grant mistrial based on admission of evidence properly before jury).
We already held that the trial court properly admitted the challenged evidence.
The trial court thus did not abuse its discretion in denying Allen’s motion for a mistrial on this basis.
For this reason, we overrule Allen’s fourth and fifth issues.
Denial of Defensive Jury-Charge Instructions In issues six through eight, Allen argues that the trial court erred by refusing to submit several requested defensive jury charge instructions. In issue six, Allen argues that he should have received a “voluntary conduct” instruction under Code of Criminal Procedure Article 6.01(a). In issues seven and eight, Allen contends the trial court erred in denying a jury instruction pursuant to Article 38.23 of the Code of Criminal Procedure, arguing there were disputed fact questions over whether (1) his detention was lawful, and (2) his oral statements to police were the product of custodial interrogation. A. Standard of Review and Applicable Law “We review the trial court’s decision not to include a defensive issue in the jury charge for an abuse of discretion.” Bundage v. State, 470 S.W.3d 227, 231 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see also Thomas v. State, No. 10-11- 00250-CR, 2013 WL 2639168, *7 (Tex. App.—Waco June 6, 2013, no pet.) (mem. op., not designated for publication) (applying abuse of discretion standard to denial of Article 38.23(a) instruction in jury charge). When we review a charge for potential
error, we engage in a two-step process. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The standard of review differs depending on whether the defendant made a timely objection at trial. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). If the error was the subject of a timely objection, reversal is required if there is some harm to the defendant resulting from the error. See TEX. CODE CRIM. PROC. art. 36.19; Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020). We first determine if there was error and, if so, we determine if there is some harm to the defendant. Id.
The trial court must provide the jury with “a written charge distinctly setting forth the law applicable to the case.” Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007) (quoting TEX. CODE CRIM. PROC. art. 36.14)). The trial court must instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence in the case. Id. at 208–09. “A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.” Id. at 209. When reviewing a trial court’s ruling denying a requested defensive instruction, we view the evidence in the light most favorable to the defendant’s requested instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
B. Denial of “Accident” Instruction Allen requested an “accident” charge, which provided as follows:
If you find that the assault was the result of a [sic] accident, or an involuntary act, or the conduct of the defendant, you should—or you have reasonable doubt, then you shall acquit him.
Defense counsel explained that he wanted this accident charge because the result of Allen’s actions—Samantha’s death—“[was] not something he caused; it was caused by something other than him.” Defense counsel’s request did not justify his request based on an argument that Allen’s physical actions were involuntary, nor did he request a jury charge specifically on “involuntary conduct” as set forth in Section 6.01(a) of the Texas Penal Code.3 The prosecutor explained that there was no such thing as an “accident”
defense—there was only the “involuntary conduct” defense found in Section 6.01(a). He argued that no evidence raised an “involuntary conduct” defense because the undisputed evidence was that Allen voluntarily pushed or kicked Samantha off the bed. The trial court agreed and refused to submit the requested charge.
3 “A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.” TEX. PENAL CODE § 6.01(a). An instruction under this section is warranted when the accused admits that his own body engaged in the conduct but he denies criminal responsibility because some force external to his body compelled his body to act, or his conduct was produced by a physical reflex, convulsion, or an unconscious hypnotic, or “other nonvolitional impetus.”
See Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).
On appeal, Allen argues—for the first time—that there was evidence raising a “voluntary conduct” instruction under Section 6.01(a). He argues there was evidence “showing that he was asleep and after being startled awake, the complainant was shrugged or kicked off him and fell from the bed” and that his actions “were reflexive after being started awake.” We reject this contention for three reasons.
First, Allen never requested an “involuntary conduct” instruction, nor did he argue that his conduct was “reflexive” or otherwise point to evidence he claimed raised an “involuntary conduct” issue. Instead, he requested an “accident” instruction, arguing that Samantha’s injury and resulting death was caused by something other than his actions. A request for an “accident” instruction is not the equivalent of a request for a “voluntary conduct” instruction. See Rogers, 105 S.W.3d at 639 (holding request for “accident” instruction, without more, insufficient to alert judge that defendant wanted “voluntary conduct” instruction). Because Allen did not request a “voluntary conduct” instruction, he waived his sixth issue. See id. at 640–41 (holding that appellate court erred by applying Almanza standard of review to trial court’s refusal of defensive jury charge instruction appellant never requested).
Second, because Allen never argued to the trial court that his physical actions were involuntary, his objection to the trial court does not comport with his objection
on appeal. He thus did not preserve the issue for appellate review. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The point of error on appeal must comport with the objection made at trial.”).
Last, the trial court properly concluded that there was no evidence raising an involuntary-conduct defense. Section 6.01(a)’s voluntariness “refers only to one’s own physical body movements.” Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013) (quoting Rogers, 105 S.W.3d at 638). A “movement is considered involuntary only if that movement is ‘the nonvolitional result of someone else’s act, [was] set in motion by some independent non-human force, [was] caused by a physical reflex or convulsion, or [was] the product of unconsciousness, hypnosis or other nonvolitional impetus.’” Id. (quoting Rogers, 105 S.W.3d at 638).
At trial, Allen was questioned by the State about whether he was unconscious, drunk, high, or epileptic, or had a convulsion and accidentally kicked Samantha out of the bed. Allen responded that he was not, but he countered that he was “half awake.” He testified that when Samantha tried to “cuddle” with him, he shrugged her off because he wanted to continue sleeping. She left and when she returned, she poured limeade on his head. He admitted that when she did that, he was “awake” and “pissed.” And, at that point, he shoved Samantha out of the bed with his legs. He admitted that he was upset with Samantha and “forcibly shoved her out of the bed.” Allen also admitted to “kicking” Samantha. There is no evidence that Allen
acted reflexively or that his response was “nonvolitional.” See Rogers, 105 S.W.3d at 638. Instead, his defense was that Samantha’s injuries had resulted from a seizure and not from his admittedly volitional act of kicking her out of the bed. Other than claiming that he was “half asleep” before Samantha poured limeade on him, Allen points to no other evidence that his action in kicking her out of the bed was an involuntary act.
Even accepting Allen’s testimony and argument that Samantha’s injuries resulted from a seizure, there was no evidence that Allen did not voluntarily kick Samantha off the bed. Denying that he caused Samantha’s bodily injury is not the same as claiming that his conduct in kicking her was nonvolitional. See Bundage v. State, 470 S.W. 3d 227, 233–34 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that trial court properly refused Article 6.01(a) instruction because defendant’s bare assertion that shooting was “accident” did not raise issue that actions were nonvolitional); Pena v. State, 725 S.W.2d 505, 507 (Tex. App.— Corpus Christi-Edinburg 1987, no pet.) (holding that, even assuming that police officer was injured in fall, there was no evidence that defendant’s act of hitting him with belt was involuntary).
We overrule Allen’s sixth issue.
C. Denial of Instruction under Code of Criminal Procedure Article 38.23 Allen requested a jury instruction under Article 38.23 of the Code of Criminal Procedure, which provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. art. 38.23(a).
In issue seven, Allen argues that the evidence raised a disputed fact question over whether his detention was lawful. And in issue eight, he argues that the evidence raised a disputed fact question over whether his oral statements to police were the product of custodial interrogation. We address these issues together because both turn on whether Allen was entitled to have the jury consider whether he was “in custody.”
Allen argues that “while in the back of the [police] car” he was “always surrounded by officers and did not feel that he could have left.” He “felt confined” because he was in a car with a seatbelt and the police had taken his phone, wallet, keys, and watch. Allen did not “feel he was free to go or leave” without his wallet and keys. But the police told him repeatedly that he was “free to leave.” Allen
contends that “[t]he testimony of the officers, the body-worn camera recordings, and [his] testimony [] showed that the evidence regarding [his] custodial status was affirmatively contested.” In other words, Allen wanted an Article 38.23 instruction so that the jury could consider the “contested issue” of whether he was in custody when he talked to the police.
An accused’s right to the submission of an instruction under Article 38.23(a)
“is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007)). Before a defendant is entitled to submission of a jury instruction under Article 38.23(a), he must establish three requirements: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested, and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. As we held in Mbugua v. State:
The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant request an instruction on a specific historical fact or facts. The jury decides facts: the judge decides the application of the law to those facts. There must be a genuine dispute about a material issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact issue, the legality of the conduct is determined by the trial court alone, as a question of law. In order for there to be a conflict in the evidence that raises a disputed fact issue, there must be some affirmative evidence in the record that puts the existence of that fact in question. Furthermore, if other facts, not in dispute, are sufficient
to support the lawfulness of the challenged conduct, then the disputed fact issue is not material to the ultimate admissibility of the evidence and is not to be submitted to the jury. The disputed issue must be essential to deciding the lawfulness of the challenged conduct.
312 S.W.3d at 669 (internal citations and quotation marks omitted).
There was no disputed fact issue warranting an Article 38.23 jury instruction.
The State and Allen agree on the facts. They agree that Allen was placed in the back seat of the police car and that his phone, wallet, keys, and watch were taken from him. And they agree that Allen was told he was “free to leave.” Allen’s statements, the police statements, and the circumstances under which Allen made his statements are thus not contested—only the legal conclusion to be reached from that evidence is, and that issue is not for the jury to decide.
In Mbugua, the defendant requested an Article 38.23 instruction, arguing that a police officer’s statement to his mother that he could not leave raised an issue of fact regarding whether he was in custody. Id. at 669. We held the trial court had properly denied the requested instruction because “the proposed instruction did not charge the jury with resolving a specific issue of historical fact, but asked it to determine whether [the defendant] was in ‘custody.’” Id. We noted that “[a] jury may not be instructed under article 38.23(a) to determine whether a person is ‘in custody’ because such an instruction requires the jury to resolve an issue of law, not of fact.” Id. at 670 (“The jury decides facts: the judge decides the application of the law to those facts.”).
The same is true here. Because there was no factual dispute for the jury to resolve—the State and Allen are in agreement regarding the circumstances under which his statements were made—an Article 38.23 instruction would have erroneously asked the jury to determine whether Allen was “in custody.” Because that is a legal issue, not a factual one, the trial court properly denied Allen’s requested Article 38.23(a) instruction relating to his detention and statements to police.
We overrule Allen’s seventh and eighth issues.
Failure to Properly Define the Abstract Definition of “Reckless”
In issue nine, Allen argues the trial court erroneously failed to limit the abstract definition of “reckless” in the jury charge to the result of Allen’s conduct, and that he was egregiously harmed by such error. A. Standard of Review and Applicable Law When, as here, a defendant fails to object to jury charge error, we review whether the error resulted in egregious harm. Alkayyali v. State, 713 S.W.3d 780, 789 (Tex. Crim. App. 2025). “An erroneous jury charge is egregiously harmful if it affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). Egregious harm must be based on actual harm rather than a finding of theoretical harm. Id.
Egregious harm is a fact-specific analysis and is a difficult standard to meet.
Id. To determine whether jury charge error resulted in egregious harm we look at the entire record. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). We consider (1) the entirety of the charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the trial record as a whole. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). B. Analysis In the abstract portion of the jury charge, the trial court provided the complete statutory definition of “recklessly” as follows:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. 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 defendant’s standpoint.
(Emphasis added).
The application paragraph limited the application of recklessness to the result of Allen’s conduct by providing as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 10th day of April, 2020, in Harris County, Texas, the defendant, Michael A. Allen, AKA Bryan Allen, did then and there unlawfully and recklessly cause serious bodily injury to Samantha Strahan by pushing Samantha Strahan to the ground with his body causing her to hit her head . . . then you will find the defendant guilty of aggravated assault, as charged in the indictment. (Emphasis added).
There was a separate but identical application paragraph alleging that Allen kicked Samantha.
Allen argues that the trial court should also have limited the “reckless”
definition in the abstract portion of the charge to the result of his conduct. In other words, he argues that the first sentence of the abstract portion of the charge should have read:
A person acts recklessly, or is reckless, with respect to circumstances surrounding the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. (Emphasis added).
Allen argues that the jury instruction, as given, “did not limit the jury to finding [Allen] guilty based solely on the ‘result’ of his alleged conduct. Instead, the jury was erroneously instructed that it could also find [Allen] guilty ‘with respect to the circumstances surrounding his conduct.’”
The State agrees that aggravated assault is a result-oriented offense, and that the trial court should have limited the abstract definition of “reckless” to include only the language relating to the result of Allen’s conduct. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (“If the gravamen of an offense is the result of conduct, the jury charge on culpable mental state should be tailored to the result of conduct and likewise for nature-of-conduct offenses.”). Notwithstanding, the State argues that Allen did not suffer egregious harm.
C. No Egregious Harm To determine whether egregious harm resulted from the trial court’s error, we consider (1) the entire charge, (2) the evidence, (3) counsel’s arguments and any other relevant information to determine whether there was egregious harm. Villarreal, 453 S.W.3d at 433.
1. The Charge As we have stated, only the abstract portion of the charge failed to limit “recklessness” to the result of Allen’s conduct. The application portion of the charge properly instructed the jury to find Allen guilty of aggravated assault only if it found beyond a reasonable doubt that Allen ‘unlawfully and recklessly cause[d] serious bodily injury to Samantha Strahan.” The charge thus made clear that the jury could not convict Allen unless it found beyond a reasonable doubt that he acted recklessly with respect to the result of his conduct. Allen therefore has not shown egregious harm based on the defective charge alone. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (“Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.”); see also Herrera v. State, 526 S.W.3d 800, 806, 808 (Tex. App—Houston [1st Dist.] 2017, pet. ref’d) (holding no egregious harm shown when application paragraph properly limited culpable mental state for result-oriented offense even though abstract paragraph did not); Peterson v. State, 836 S.W.2d 760, 765–66 (Tex. App.—El Paso 1992, pet. ref’d) (concluding
no harm shown from including both conduct-oriented and result-oriented definitions of culpable mental state in abstract paragraph because application paragraph was properly limited to result-oriented definition).
2. The Evidence As detailed in our sufficiency analysis, there was substantial evidence that Allen recklessly caused Samantha serious bodily injury. By his own admission, Allen kicked Samantha out of the bed and through the bedroom door and he heard a crash. He also shoved her to the ground. He was upset and “angry” when he did so because she had poured limeade on his head. Medical testimony and the autopsy reports supported the conclusion that Samantha died from blunt-force trauma that was not likely to have been caused by a seizure causing a fall. Samantha’s mother also testified that Samantha called her the night of the incident and told her Allen had “kicked her, and she’d gone flying through the door.” Samantha was crying and she told her mother that her head hurt and that she felt like she’d broken a rib, but she was “holding [herself] together.” Samantha was whispering. Brenda testified that Samantha was “afraid” and had locked herself in the bathroom.
There was thus substantial evidence that Allen recklessly caused Samantha serious bodily injury, not merely that he acted recklessly.
3. Arguments and Other Factors During closing argument, the prosecutor incorrectly argued that Allen need only intend the assault and not the result. However, Allen’s defense in this case was to contest causation, not intent. He argued that a seizure caused Samantha’s injuries and that he did not cause her injury at all. See Bail v. State, No. 05-99-02129-CR, 2002 WL 57189, *3 (Tex. App.—Dallas Jan. 16, 2002, pet. denied) (mem. op., not designated for publication) (considering defendant’s trial strategy in concluding that failure to limit abstract paragraph to result-oriented culpable mental state did not cause egregious harm). Therefore, any failure to limit the culpable mental state to the result of Allen’s conduct did not go to Allen’s primary defensive theory. Allen’s recklessness in his actions or in causing Samantha’s injury, or both, or neither, would hardly matter if, as he argued, Samantha died due to an unrelated seizure.
Allen thus has not shown that the trial court’s failure to limit the “reckless”
culpable mental state in the abstract portion of the charge to the result of his conduct caused him egregious harm.
We overrule his ninth issue.
Ineffective Assistance of Counsel In issues 10, 11, and 12, Allen contends he received ineffective assistance of counsel. We address each issue below.
A. Applicable Law and Standard of Review The Sixth Amendment of the United States Constitution and the Texas Constitution guarantee a criminal defendant the right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; see Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective assistance of counsel requires objectively reasonable representation, not errorless performance. Strickland v. Washington, 466 U.S. 668, 686 (1984); Lopez, 343 S.W.3d at 142.
To establish that trial counsel provided ineffective assistance, an appellant bears the burden to demonstrate by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant must establish both prongs before an appellate court will find counsel’s representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.”).
To satisfy the first prong, an appellant must show that his trial counsel’s performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. This
requirement can be difficult to meet because there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Under the second prong, an appellant must demonstrate prejudice or “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see Lopez, 343 S.W.3d at 142. A reasonable probability is one sufficient to undermine confidence in the outcome. Lopez, 343 S.W.3d at 142; see also Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (stating reasonable probability is “a probability sufficient to undermine confidence in the outcome, meaning counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”) (internal quotation marks omitted). B. Jury Charge Error In a portion of issue 11, Allen contends that he received ineffective assistance of counsel because his trial counsel failed to object to the definition of recklessness in the abstract portion of the jury charge. For the reasons detailed in our egregious- harm analysis in issue nine, Allen cannot satisfy the second prong of his ineffective assistance claim. See Tottenham v. State, 285 S.W.3d 19, 34 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (concluding that holding of no egregious harm precludes defendant from meeting second prong of Strickland).
We thus overrule the portion of Allen’s issue 11 alleging that counsel was ineffective for failing to object to the jury charge. C. Cumulative Error In issue ten, Allen argues that “[t]he cumulative harm for multiple errors in the jury charge deprived [him] of a fair trial and vitally affected his defensive theory.” Citing Linney v. State, 401 S.W.3d 764, 782 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), he argues that “[a] number of errors, even if harmless when separately considered, may be harmful in their cumulative effect.”
In our analysis, we have not found “multiple errors” in the jury charge. We found one error, which we held did not cause Allen egregious harm. Thus, the “cumulative error doctrine” does not apply.
We overrule issue 10.
D. Guilt-Innocence and Motion for New Trial In issues 11 and 12, Allen argues he received ineffective assistance of counsel during the guilt-innocence phase of trial and that the trial court erroneously overruled his motion for new trial. We address each contention in turn.
The Court of Criminal Appeals repeatedly has stated that trial counsel “should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When
trial counsel has not been provided an opportunity to explain his actions, an appellate court will not find that counsel’s performance was deficient unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Goodspeed, 187 S.W.3d at 392). Thus, when an appellate record is silent as to why trial counsel failed to take certain actions, the appellant “fail[s] to rebut the presumption that trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
1. Denial of motion for new trial In portions of issue 11, Allen argues his trial counsel was ineffective because he failed to investigate and present evidence challenging (1) the cause of Samantha’s death or (2) allegations of domestic violence by Allen. Allen presented these ineffective-assistance claims to the trial court in a motion for new trial, which the trial court overruled. We thus analyze his ineffective-assistance-of-counsel issue as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by TEX. R. APP. P. 21.8(b) (holding appropriate standard of review for ineffective assistance claim brought forth in motion for new trial is abuse of discretion). In such circumstances, we review the Strickland test through an abuse-of-discretion standard. See id. We reverse only if the trial court’s decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Id.
2. Failure to present medical evidence challenging cause of death Allen first contends that trial counsel was ineffective because of his alleged “failure to investigate and present available evidence showing that [Samantha’s] injury could have resulted from causes other than blunt force trauma.” At the motion for new trial hearing, Allen presented medical records from Tomball Medical Clinic showing that on October 8, 2019, several months before the charged incident, she self-reported that she “has had few seizures for past 2 years” which involved “involuntary jerking,” but no biting of her tongue or loss of bowel control. She also self-reported “2 head injuries” caused by “hitting the corner of [a] coffee table.” The same medical note provides, “husband reports this usually happens when she does not eat all day” and gets “shaky.” No further tests were ordered, and no seizure diagnosis was made. Instead, the report includes a diagnosis of anxiety, depression, and psoriasis.
Allen argues that Samantha’s medical records show “a history of seizures, and a fall where [she] hit her head on a coffee table.” He also argues that trial counsel was aware of text messages from Samantha showing “preexisting conditions of seizures, falling, nosebleeds, bruising, and alcoholism.” He contends that “[t]rial counsel’s failure to introduce text messages from [Samantha] and medical records showing serious preexisting conditions to rebut the state’s theory of blunt-force trauma was objectively unreasonable.” He also argues that trial counsel’s “failure to
utilize an expert and present favorable medical evidence could not have served any strategic purpose, was objectively unreasonable, and denied [Allen] effective assistance of counsel.”
To support his assertion that trial counsel was ineffective for failing to use and present favorable medical evidence at trial, Allen introduced an affidavit from Dr. Gavin Britz—Chairman of the Department of Neurosurgery at Houston Methodist Hospital. Dr. Britz stated that he reviewed Samantha’s medical records and autopsy report and noted that he was “informed that in the days leading up to the incident [Samantha] was suffering headaches, nausea and dizziness.” He stated that it was “incorrect that this type of subdural hematoma could only be caused by a significant force or from high impact[.]” Dr. Britz then opined about several other things that could cause such an injury, including “accidental fall,” “liver disease, “spontaneous coagulopathy,” or a subdural hematoma suffered “days before she had the seizure that led to her death.”
Counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In an ineffectiveness case, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment.” Id. Trial counsel also has a duty “to investigate the facts of the case and determine if an expert is necessary to present the
defendant’s case to the jury and, if so, to obtain competent expert assistance.” Ex parte Flores, 387 S.W.3d 626, 636 (Tex. Crim. App. 2012).
At the motion for new trial hearing, trial counsel was asked about his preparation for the medical evidence presented by the State at trial. Trial counsel explained that he had consulted with two doctors—Dr. Paul Radelat and Dr. Lee Ann Grossberg—both pathologists whose practices involve conducting autopsies. In doing so, he considered possible medical explanations other than blunt-force trauma. Dr. Radelat did not think that cirrhosis or liver disease would explain Samantha’s injury. He did, however, indicate to trial counsel that he might be able to testify that an accident could have caused Samantha’s injury. Dr. Radelat died before he could complete a report and was unable to testify at trial.
Trial counsel then consulted Dr. Grossman, with whom he spoke for about three hours. Trial counsel spoke to Dr. Grossman about preparing to cross-examine the State’s medical expert, Dr. Kathryn Pinneri. Trial counsel ultimately decided not to call Dr. Grossman for several reasons; one reason being that—like Dr. Pinerri— Dr. Grossman concluded that Samantha had died as a result of a homicide. When trial counsel was asked whether it would have been beneficial to the defense to have a medical expert explain whether subdural hematomas could be caused by other medical conditions, trial counsel responded, “Yeah, but I couldn’t find anybody to
testify to that. I talked to Dr. Grossberg about that and also Dr. Radelat, and neither one of them could come to that type of conclusion.”
In Ex parte Flores, 387 S.W.3d 626, 636 (Tex. Crim. App. 2012), the court considered the defendant’s claim that his counsel was ineffective for failing to retain a specialist to opine about the complainant’s cause of death, rather than relying on a local medical examiner. The court held that trial counsel was not deficient in his choice of expert, noting that:
Trial counsel’s duty does not extend to obtaining the “best” or most highly qualified (but perhaps pompous, bombastic, or incomprehensible) expert in the nation. Instead, it is to investigate the facts of the case and determine if an expert is necessary to present the defendant’s case to the jury and, if so, to obtain competent expert assistance. As courts in this and other jurisdictions have noted, the proper focus is on counsel’s investigation, not counsel’s choice of a specific expert.
Id.
In Humphrey v. State, 501 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d), the defendant claimed on appeal that trial counsel was ineffective for failing to investigate and independently pursue medical evidence regarding the complainant’s cause of death. Our sister court disagreed, holding that
Counsel’s decision to elicit testimony through cross-examination is presumed to be a strategic decision. “Unless a defendant overcomes the presumption that counsel’s actions were based in sound trial strategy, counsel will generally not be found ineffective.” Proper trial strategy includes cross-examination with an intent to discredit witnesses by pointing out inconsistencies. In his cross-examination, trial counsel confronted [the State’s expert] with the possibility that [the
complainant] could have died as a result of maternal drug use, specifically methamphetamine. [The State’s expert] confirmed that methamphetamine could have infiltrated the placenta and subsequently could have caused the death of [the complainant]. Further, trial counsel elicited testimony from [the State’s expert] that she was not an expert in obstetrics, presumably to call into question [the State’s expert’s]
ability to reach a credible conclusion regarding the cause of the [complainant’s] death. We conclude that trial counsel’s decision to use cross-examination to cast doubt on [the State’s expert’s] conclusion that [the complainant] died from maternal blunt trauma rather than retaining and calling an expert to do the same was strategic. See Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992) (cross-examination of a witness may be constitutionally sufficient strategy even though retaining an expert may assist in development of a cross-examination strategy). Appellant has not overcome the presumption that trial counsel’s decision was based in sound trial strategy.
Id. at 660–61 (some internal citations omitted).
Flores and Humphrey are both relevant and instructive. As Flores makes clear, the issue is not whether trial counsel should have retained a neurosurgeon like Dr. Gavin Britz, as suggested by Allen in his motion for new trial. And, as Humphrey makes clear, it may be sound trial strategy to forgo calling an expert and to instead rely on cross-examination of the State’s expert or the questioning of other witnesses to bring evidence to support a defense. We focus instead on trial counsel’s investigation and whether he was prepared to assist his client’s defense. See Flores, 387 S.W.3d at 636; Humphrey, 501 S.W.3d at 660–61.
The record shows that trial counsel prepared for the medical testimony by consulting two expert witnesses. One died and was unavailable to testify at trial, and he chose not to call the other because he concluded that her testimony would not
have been helpful after she opined that Samantha had died by homicide. Trial counsel was not required to continue searching for a “better” expert who would testify in Allen’s favor.
Trial counsel also advanced Allen’s defense by attacking the credibility and persuasiveness of the State’s expert witnesses. Trial counsel elicited testimony from Dr. Pinneri that she had not conducted the autopsy and had only reviewed Samantha’s medical records and the findings of another pathologist who conducted the autopsy. Trial counsel also elicited information that Dr. Pinneri’s entire testimony was based on things seen by the EMTs and doctors at the hospital when Samantha was initially admitted, and not when Dr. Pinneri examined her body several months later. Perhaps most significantly, trial counsel had Dr. Pinneri admit that she did not know whether Samantha was intoxicated or had a history of seizures at the time she hit her head.
Trial counsel then pursued his alternative-causation theory of the case by cross-examining the State’s witnesses about whether Samantha might have fallen and hit her head due to her alcoholism and intoxication, that she might have suffered an earlier injury when she was pulled down by her dog and hit her head, that she might have had a seizure causing her to fall and hit her head, or that the cirrhosis documented in her autopsy report might have caused an unusual bleeding event.
Trial counsel also called Allen who testified that, although he knocked Samantha off the bed, she did not hit her head and he did not cause her injury.
In light of the foregoing, Allen has not overcome the presumption that trial counsel’s decision to use cross-examination and Allen’s own testimony to present his defense was based in sound trial strategy.
3. Failure to present evidence challenging domestic violence Allen also argues that counsel was ineffective for “fail[ing] to investigate and present available evidence rebutting the State’s theory that [Samantha] was the victim of domestic violence.”
At the motion for new trial hearing, Allen presented testimony from Tanya Lyons—the manager of the trailer park where he and Samantha lived. Lyons testified that she never saw Allen act violently toward anyone and she “[didn’t] believe [Allen was] violent at all.” Allen also presented the unsworn declaration of a neighbor, Susan Starkey, who averred that Samantha had told her about health problems, but Starkey “[did] not know what the diagnosis was.” She said that Samantha “would constantly shake and easily bruise” so Starkey referred her to her own doctor. When Starkey asked Samantha about bruises, she said Samantha “repeatedly denied being abused by [Allen].” Starkey also reported that Samantha was an alcoholic who was “constantly falling down.”
Allen argues that “[d]espite counsel’s knowledge of these witnesses, [trial counsel] made no effort to interview them or subpoena them for trial,” and that they “could have provided testimony regarding the nature of the relationship between [Allen] and [Samantha], which was critical to assist the trier or fact.” Allen argues that ‘[i]t was objectively unreasonable for trial counsel not to seek out, interview, or call these witnesses to advance a viable defense at the guilt-innocence phase of trial, especially since they were identified in the police offense report.”
The trial court, as the sole factfinder at the motion for new trial hearing, is also the “sole judge of witness credibility . . . with respect to both live testimony and affidavits.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). The trial court may credit, discount, or entirely disbelieve affidavits submitted by witnesses that trial counsel did not call, even without cross-examination of the affiants. See Charles, 146 S.W.3d at 213. In the absence of express findings by the trial court, the appellate court presumes that the trial court “made all findings, express and implied, in favor of the prevailing party.” Okonkwo, 398 S.W.3d at 694.
During the guilt-innocence phase of trial, a claim of ineffective assistance predicated on failure to call witnesses requires the appellant to show not only that the witnesses were available, but that “there is a reasonable probability that the factfinder would have had a reasonable doubt as to appellant’s guilt had the witness testified at trial.” Chavez v. State, 712 S.W.3d 166, 177 (Tex. App.—Houston [14th
Dist.] 2024, pet. ref’d). Where a witness’ testimony, even if uncontroverted, does not establish that the uncalled testimony would have directly contradicted the State’s evidence, provided an alibi, or otherwise materially undermined the prosecution’s case, the trial court acts within its discretion in concluding that the appellant has not met this burden. See id. at 181.
Here, it was within the trial court’s prerogative to disbelieve or discount Lyons’ and Starkey’s testimony. As pointed out by trial counsel at the motion for new trial hearing, neither witness had any firsthand knowledge of the events the day of Samantha’s injury. At best, their testimony would have shown that Samantha may or may not have been an alcoholic, may or may not have had health issues, and that neither witness felt that Allen was a violent person. Their testimony, even if uncontradicted, would have done little to advance Allen’s causation defense, that even though he pushed Samantha off the bed and through the bedroom door, Samantha died from unrelated events. Allen thus has not shown that the trial court abused its discretion in denying his motion for new trial because of trial counsel’s failure to call Lyons or Starkey as witnesses during the guilt-innocence stage of trial.
We overrule those portions of issue 11 regarding trial counsel’s failure to investigate and present certain evidence and issue 12 regarding the denial of his motion for new trial.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney. Do not publish. TEX. R. APP. P. 47.2(b).
Michael A. Allen v. the State of Texas (Michael A. Allen v. the State of Texas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.