In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00035-CR ___________________________
SABRINA HO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F23-1412-462
Before Sudderth, C.J.; Bassel and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
Appellant Sabrina Ho’s boyfriend (Boyfriend) physically abused and ultimately
murdered her seven-year-old son (Son).1 A jury found not only that Ho was a party
to Boyfriend’s actions but also that she failed to protect Son or seek medical attention
for him. It convicted her of capital murder, four counts of injury to a child by action,
and two counts of injury to a child by omission. See Tex. Penal Code Ann.
§§ 19.03(a)(8), 22.04(a)(1), (a)(3).
Ho appeals, arguing that (1) the trial court abused its discretion by refusing to
strike two veniremen for cause; (2) the jury charge erroneously included omission-
based theories of criminal liability for her action-based offenses; and (3) the
allegations underlying her capital murder conviction overlapped with those for two of
her other convictions, thereby punishing her multiple times for the same offense in
violation of her double jeopardy rights. None of these challenges have merit; we will
affirm.
I. Background
Boyfriend’s abuse and murder of Son is undisputed, but Ho denied
responsibility for Boyfriend’s actions and for Son’s injuries and death. After she was
indicted for seven offenses—one count of capital murder, four counts of injury to a
1 Boyfriend pleaded guilty to capital murder and was sentenced to confinement for life without the possibility of parole.
2 child by action, and two counts of injury to a child by omission2—her case proceeded
to a jury trial.
A. Voir Dire
During voir dire, Ho raised concerns regarding several veniremen, including
Jurors 2 and 52.
Ho’s concern regarding Juror 2 stemmed from his conflicting answers to
questions related to the punishment range for murder. When asked by the State if he
could consider the full range for murder, Juror 2 stated that he could, but when Ho’s
counsel asked him a variation of the same question later, he stated that he could not
consider assessing the minimum five-year sentence for the offense of murder. After
the parties finished their voir dire presentations and the trial court began identifying
veniremen it needed to individually question for clarification, Ho added Juror 2’s
name to the list based on his “vacillating.”
During Juror 2’s individual questioning, he acknowledged his contradictory
answers but clarified that, “if it’s what the law states,” he could consider the full range
For Ho’s four counts of injury to a child by action, her indictment alleged 2
three counts of intentionally or knowingly causing Son bodily injury and a fourth count of intentionally or knowingly causing Son serious bodily injury. See Tex. Penal Code Ann. § 22.04(a)(1), (a)(3), (e), (f). Similarly, for Ho’s two counts of injury to a child by omission, her indictment alleged one count of intentionally or knowingly causing Son bodily injury and a second count of intentionally or knowingly causing Son serious bodily injury. See id. § 22.04(a)(1), (a)(3), (b), (e), (f).
3 of punishment for murder and “render an opinion accordingly.” The trial court sua
sponte ruled that “Number 2 is staying.”
As for Juror 52, she answered “no” to a series of questions from Ho’s counsel
regarding the State’s burden to prove an unknown object.3 Specifically, Ho’s counsel
asked each venireman to confirm that “the [State] ha[s] to prove it’s an unknown
object” rather than an identifiable object and “[i]f they prove anything else, that it
happened any other way, [the defendant]’s entitled to a verdict of not guilty.” This
question confused quite a few veniremen,4 and it elicited multiple objections from the
State, prompting the trial court to urge Ho’s counsel to “just ask about the elements
of the offense.” But Ho’s counsel pressed on, seeking a “yes” or “no” from each
venireman, and he repeatedly rephrased the question as he went. By the time Ho’s
counsel came to Juror 52—who was near the end of the 60-member panel—neither
the legal requirements nor the precise iteration of the question was clear.
Nonetheless, Juror 52 responded “[n]o” to the general line of inquiry.
So, as with Juror 2, when the trial court began listing the veniremen it intended
to individually question, Ho’s counsel requested that Juror 52 be added to the list.
Initially, Ho’s counsel explained the need for such individual questioning without
reference to the unknown-object issue, instead pointing to statements that Juror 52
3 Some of the counts in Ho’s indictment alternatively alleged that Boyfriend struck Son with his hand or caused Son’s face or body to strike an unknown object. 4 Multiple jurors asked, “How do you prove an unknown?”
4 had made regarding her father’s law practice and experience with the police.5 But just
before Juror 52 was brought in for individual questioning, Ho’s counsel described his
concern as relating to “punishment and elements.” Counsel did not explain these
shorthand phrases, but from what followed, the trial court appears to have
understood “elements” as a reference to the court’s individual questioning of a
previous venireman regarding “the element answer where the unknown object was
involved.”
Thus, the trial court raised Ho’s three referenced topics with Juror 52: her
father’s law practice, punishment, and the unknown-object issue. When the court
turned to the last of these topics, it noted that its question “was on elements,” it
commented that “everybody kind of got off on the unknown object,” and it clarified
the law for Juror 52. After such clarification, Juror 52 confirmed that she understood
that “if the[ prosecutors] c[ould]n’t prove what they’ve alleged, then the[ defense was]
entitled to have the [d]efendant found not guilty.” Ho gave no indication that the trial
court had misunderstood her reference to “elements,” nor did she request any
additional questioning of Juror 52. And soon thereafter, the trial court ruled that the
“challenge to Juror Number 52 [wa]s denied.”
Consequently, Ho proceeded to use preemptory challenges to remove Jurors 2
and 52, she exhausted her remaining preemptory strikes, she requested additional
5 Ho noted that Juror 52 had stated that she had “helped [her] dad at [a] law office in California, and [they] thought the cop was planting evidence.”
5 preemptory strikes to compensate, and when her request was denied, she identified
two other objectionable venireman whom she would have struck had Jurors 2 and 52
been removed for cause. See Hudson v. State, 620 S.W.3d 726, 729–30 (Tex. Crim.
App. 2021) (listing steps required to demonstrate harm from denied challenge for
cause, including “us[ing] a peremptory challenge on the complained-of
member[,] . . . exhaust[ing] all remaining peremptory challenges,” requesting “an
additional strike . . . to make up for the one that was wrongly denied,” and
“identify[ing] on the record the objectionable juror whom [s]he would have removed
with the additional strike”).
B. Jury Charge
Once the jury was selected, it heard evidence for almost two weeks before
receiving the jury charge. In the charge, each of Ho’s action-based offenses—capital
murder and four counts of action-based injury to a child—authorized her conviction
as a party to Boyfriend’s actions. And in each instance, one of the submitted theories
of party liability was premised on Ho’s legal duty to intervene.6
For the four counts of action-based injury to a child, the jury was authorized to
convict Ho if it found that she, “having a legal duty to prevent the commission of the
offense and acting with intent to promote or assist its commission, failed to make a
reasonable effort to prevent [Boyfriend] from intentionally or knowingly causing
The charge included other theories of party liability as well, but those theories 6
are not relevant to the issues presented on appeal.
6 bodily injury [or serious bodily injury, depending on the count] to [Son].” And for
capital murder, the jury was authorized to convict if it found that Ho, “having a legal
duty to prevent the commission of the offense and acting with intent to promote or
assist its commission, failed to make a reasonable effort to prevent [Boyfriend] from
intentionally or knowingly causing the death of [Son].”
C. Verdict and Judgment
The jury found Ho guilty of all seven offenses, and after hearing punishment
evidence, it assessed the maximum fine and term of confinement for Ho’s crimes. See
Tex. Penal Code Ann. §§ 19.03(a)(8), 22.04(a)(1), (a)(3). The trial court entered
judgment accordingly, sentencing Ho to confinement for life without the possibility of
parole.7 See id. §§ 12.31(a)(2), (b)(2), 12.32, 12.34.
II. Discussion
Ho raises three appellate complaints: (1) the trial court’s denial of her
challenges to Jurors 2 and 52; (2) the jury charge’s inclusion of duty-based theories of
7 One of Ho’s crimes was a capital felony, see id. § 19.03(a)(8), (b); two were first-degree felonies, see id. § 22.04(a)(1), (e); and the remaining four were third-degree felonies, see id.§ 22.04(a)(3), (f). Ho received an automatic life sentence for the capital felony, see id. § 12.31(a)(2), (b)(2); and the jury assessed her punishment at life in prison and a $10,000 fine for each of the first-degree felonies, see id. § 12.32; and ten years in prison and a $10,000 fine for each of the third-degree felonies, see id. § 12.34.
7 liability for her action-based offenses; and (3) the violation of her double jeopardy
rights.8
A. Challenges for Cause
First, Ho complains of the trial court’s denial of her challenges for cause to
1. Standard of Review
A venireman is challengeable for cause if he has a bias against the law that
would substantially impair his ability to carry out his duties in accordance with his
oath and the court’s instructions. Hudson, 620 S.W.3d at 731; Comeaux v. State, 445
S.W.3d 745, 749 (Tex. Crim. App. 2014). Before a trial court grants such a challenge,
the venireman must be shown to have understood the law but be unable or unwilling
to follow it. Comeaux, 445 S.W.3d at 749; Minze v. State, No. 02-15-00352-CR, 2016
WL 4474352, at *2 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (mem. op., not
designated for publication).
We review the trial court’s denial of a challenge for cause for an abuse of
discretion. Hudson, 620 S.W.3d at 731. Because the trial court “is best placed to judge
a venire[man’s] demeanor and tone of voice,” the court is afforded “considerable
deference”—particularly when a venireman’s “answers are vacillating” or equivocal.
Id.; Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010); Moore v. State, No. 02-
Ho structures her three complaints as five issues, but we have grouped and 8
reordered those issues for organizational purposes.
8 23-00152-CR, 2025 WL 353068, at *2 (Tex. App.—Fort Worth Jan. 30, 2025, no pet.)
(mem. op., not designated for publication); Minze, 2016 WL 4474352, at *2–3.
If a venireman demonstrates bias but the trial court refuses to remove him for
cause, then the error is harmful if it wrongfully deprives the defendant of a
peremptory strike. Hudson, 620 S.W.3d at 729 (explaining that “[h]arm from the
erroneous denial of a defense challenge for cause focuses on whether a peremptory
challenge was wrongfully taken from the defendant” (quoting Newbury v. State, 135
S.W.3d 22, 30 (Tex. Crim. App. 2004))); Comeaux, 445 S.W.3d at 749–50. To prove
such harm, the defendant must, among other things, have clearly and specifically
challenged the venireman in the trial court.9 Hudson, 620 S.W.3d at 729–30 (noting
that these steps have “sometimes [been] called necessary for preservation [but] are
really to show harm”); Comeaux, 445 S.W.3d at 749–50.
2. Juror 2
Regarding Juror 2, Ho argues that, because he stated at one point that he could
not consider giving the minimum five-year sentence for murder, he was biased as a
matter of law, and the trial court should have excluded him for cause. See Cardenas v.
State, 325 S.W.3d 179, 185 (Tex. Crim. App. 2010) (“A juror who states that he cannot
consider the minimum punishment for a particular statutory offense is subject to a
9 In addition, the defendant must use a peremptory strike on the complained-of venireman, exhaust all remaining peremptory strikes, ask for an additional strike, and identify the objectionable venireman whom she would have removed with the additional strike. Hudson, 620 S.W.3d at 729–30.
9 challenge for cause.”). But even if we assume that Ho adequately raised this challenge
for cause in the trial court,10 Juror 2 did not unequivocally demonstrate bias; he gave
contradictory responses.
Indeed, Ho’s trial counsel, when he identified Juror 2 for individual
questioning, acknowledged that Juror 2 had “vacillat[ed]” in his responses to whether
he could consider the full punishment range for murder. And when Juror 2 was
individually questioned on the topic and the law was explained to him, he confirmed
that, “if it’s [i.e., the full punishment range of five years to life is] what the law states
then . . . I will render an opinion accordingly.” When, as here, a venireman’s answers
are vacillating or equivocal, we must defer to the trial court’s evaluation of that
venireman. See Hudson, 620 S.W.3d at 734 (holding trial court did not abuse discretion
by denying challenge for cause and explaining that, “[a]t most, [the challenged
venireman’s] answers were vacillating or contradictory[, and i]n such circumstances,
we defer to the trial court’s decision”); Minze, 2016 WL 4474352, at *3 (holding trial
Arguably, Ho did not raise any clear or specific challenges for cause at all. 10
While the record contains rulings after each venireman’s individual questioning—e.g., that “Number 2 is staying” and that the “challenge to Juror Number 52 is denied”— these rulings do not appear to be in response to any challenges for cause. Ho implies that she raised her challenges by identifying veniremen for individual questioning, but the record does not indicate that her request that the veniremen be added to a callback list included a challenge for cause, much less a clear and specific one. And although Ho attempted to lodge objections to Jurors 2 and 52 after their individual questioning had concluded, she was interrupted with a ruling before she could finish vocalizing the nature of or basis for her objections. So when, at the end of voir dire, Ho referenced her “two . . . challenges for cause [having been] denied on 2 and 52,” no such challenges had been recorded.
10 court did not abuse discretion by denying challenge for cause and explaining that
because prospective juror’s “answers were equivocal, we defer to the trial court’s
decision”). After applying the proper deference, we hold that the trial court was
within its discretion to deny Ho’s challenge to Juror 2.
3. Juror 52
As for Juror 52, Ho claims on appeal that she “unequivocally stated she may
not require proof beyond a reasonable doubt.” But even if we assume that Juror 52
made such a statement, Ho cannot show harm because she did not clearly and
specifically make this challenge before the trial court.
During voir dire, Ho expressed concern regarding three of Juror 52’s
responses: Juror 52’s discussion of her work at her father’s law practice; her
punishment response; and her “elements,” i.e., unknown-object, response. At no
point did Ho claim that Juror 52 could not uphold the beyond-a-reasonable-doubt
standard.
And to the extent that Ho now claims her “elements” concern was a reference
to the beyond-a-reasonable-doubt standard, such cryptic shorthand was insufficiently
clear or specific to alert the trial court to that fact. See Tex. R. App. P. 33.1(a)(1). The
trial court individually questioned Juror 52 on each of Ho’s areas of concern, and as
Ho acknowledges, Juror 52 “was not asked about her requirement of proof beyond a
reasonable doubt.” The absence of questions on this topic reflects Ho’s failure to
make the trial court aware of it. Thus, even if we assume that Juror 52 was
11 challengeable for cause on this basis, because Ho did not raise it in a clear and specific
objection, she cannot show that it resulted in the wrongful denial of a preemptory
challenge. See Hudson, 620 S.W.3d at 729–30 (clarifying that “[h]arm from the
erroneous denial of a defense challenge for cause focuses on whether a peremptory
challenge was wrongfully taken from the defendant” (quoting Newbury, 135 S.W.3d at
30)).
Thus, we overrule Ho’s two issues regarding her challenges for cause.
In her next two issues, Ho argues that the jury charge erroneously included
unindicted duty-based theories of liability for her five action-based offenses.11
According to Ho, because the duty-based theories of liability involved her failures to
act, they were pure crimes of omission, which were distinct from the action-based
offenses charged in the indictment. Ho thus reasons that the jury charge authorized
her conviction for distinct, unindicted crimes of omission. And, she continues, this
was particularly problematic when it came to capital murder because the statutory
Ho does not dispute that, as Son’s mother, she owed him a legal duty. See 11
Tex. Fam. Code Ann. § 151.001(a)(2) (codifying parent’s “duty of care, control, [and] protection . . . of [her] child”); Botello v. State, Nos. 02-18-00362-CR, 02-18-00363-CR, 2019 WL 5608243, at *17 (Tex. App.—Fort Worth Oct. 31, 2019, no pet.) (mem. op., not designated for publication) (recognizing that “a mother has legal obligations, among others, to protect her children and to provide them with medical care”).
12 definition of the offense requires an act rather than an omission.12 But as the State
points out, Ho confuses a duty-based theory of party liability with a distinct, pure
crime of omission.
Under a duty-based theory of party liability, “[a] person is criminally
responsible for an offense committed by the conduct of another if . . . having a legal
duty to prevent commission of the offense and acting with intent to promote or assist
its commission, [s]he fails to make a reasonable effort to prevent commission of the
offense.” Tex. Penal Code Ann. § 7.02(a)(3). In such instances, because the
underlying offense is “committed by the conduct of another,” it is generally—as
here—action-based. Id. Put differently, the proscribed result is causally linked to the
conduct of the other rather than to the party’s “fail[ure] to make a reasonable effort.”
Id.; cf. Cyr v. State, 665 S.W.3d 551, 565 n.6 (Tex. Crim. App. 2022) (Yeary, J.,
dissenting) (distinguishing between “criminal responsibility by concurrent cause
involving [a crime of] omission [and] criminal responsibility as a party” to another
person’s crime by explaining that “criminal responsibility as a party . . . does not
implicate ‘another cause’ for a proscribed result”).
In this way, duty-based party liability is in contrast to a pure crime of omission,
such as injuring a child by omission. A person injures a child by omission if she
12 Ho reads more into the charge’s duty-based language as well, arguing that, because the charge authorized her conviction for capital murder based on a failure to act, it implicitly authorized such conviction based on a mens rea of recklessness. But the duty-based language in the charge makes no mention of recklessness.
13 “intentionally, knowingly, or recklessly by omission, causes to a child . . . bodily
injury” when she “ha[s] a legal or statutory duty to act.” Tex. Penal Code Ann.
§ 22.04(a), (b)(1). This crime need not involve any “conduct of another,” and it
requires a causative link between the defendant’s “failure to act” and the child’s injury.
Id. §§ 1.07(34), 7.02(a)(3); cf. Cyr, 665 S.W.3d at 565 n.6 (Yeary, J., dissenting) (noting
that a pure crime of omission, in contrast to party responsibility, “regards [the]
‘omission’ as a ‘cause’ of the proscribed result”).
Here, the jury charge authorized Ho’s conviction for each of the four counts of
action-based injury to a child if Ho, “having a legal duty to prevent the commission of
the offense and acting with intent to promote or assist its commission, failed to make
a reasonable effort to prevent [Boyfriend] from . . . causing bodily injury [or serious
bodily injury] to [Son].” This tracked the statutory language for duty-based party
liability, making Ho responsible for Boyfriend’s action-based crimes and for the
injuries he caused to Son. See Tex. Penal Code Ann. § 7.02(a)(3) (holding a person
criminally responsible for another’s conduct if “having a legal duty to prevent
commission of the offense and acting with intent to promote or assist its commission,
[s]he fails to make a reasonable effort to prevent commission of the offense”). The
same was true for the capital murder portion of the jury charge; it tracked the
statutory language for duty-based party liability by authorizing Ho’s conviction if she,
“having a legal duty to prevent the [murder] and acting with intent to promote or
14 assist its commission, failed to make a reasonable effort to prevent [Boyfriend]
from . . . causing the death of [Son].” See id.
Contrary to Ho’s contentions, then, the jury charge did not authorize her
conviction for unindicted crimes of omission, nor did it allege capital murder by
omission. Cf. Botello, 2019 WL 5608243, at *17–19 (holding evidence sufficient to
support mother’s capital murder conviction under legal-duty theory of party liability).
Rather, it authorized her conviction as a party to Boyfriend’s action-based crimes.
And when “the evidence supports a charge on the law of parties”—something Ho
does not dispute—“the [trial] court may charge on the law of parties even [if] there is
no such allegation in the indictment.” Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim.
App. 1978); see Marable v. State, 85 S.W.3d 287 & n.2 (Tex. Crim. App. 2002)
(describing rule as “well-settled” and collecting cases).
We overrule Ho’s complaints regarding the charge’s inclusion of duty-based
theories of party liability.
C. Double Jeopardy
In her final issue, Ho argues that the allegations underlying two of her
convictions for action-based injury to a child overlap with those underlying her
conviction for capital murder. Thus, she reasons, the convictions punish her multiple
times for the same offense in violation of Texas’s Double Jeopardy Clause. See Tex.
15 Const. art. I, § 14 (“No person, for the same offence, shall be twice put in jeopardy of
life or liberty . . . .”).13
But even assuming the alleged overlap exists,14 it does not violate the Double
Jeopardy Clause. While the Double Jeopardy Clause protects a defendant from
multiple punishments for the same offense, see id., it “is not violated if the legislature
intended to authorize multiple punishments.” Thetford v. State, No. 02-18-00488-CR,
2021 WL 278913, at *12 (Tex. App.—Fort Worth Jan. 28, 2021) (mem. op., not
designated for publication), rev’d in part on other grounds, No. PD-0258-21, 2021 WL
2674484 (Tex. Crim. App. June 30, 2021) (not designated for publication); see
Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007) (clarifying that “[t]he
ultimate inquiry is simply whether the [l]egislature intended that the defendant suffer
more than one punishment”). And the legislature did so here.
The Penal Code provision criminalizing injury to a child states that “[a] person
who is subject to prosecution under both this section [i.e., for injury to a child] and
“Conceptually, the state and federal constitutional [double jeopardy] 13
provisions are identical.” Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990) (noting as much in multiple-punishments context); see Lopez v. State, 80 S.W.3d 624, 627 (Tex. App.—Fort Worth 2002) (similar), aff’d, 108 S.W.3d 293 (Tex. Crim. App. 2003); see also Ex parte Mitchell, 977 S.W.2d 575, 580–81 (Tex. Crim. App. 1997) (citing Phillips and recognizing same in multiple-prosecutions context). Therefore, although Ho relies solely on the Texas Constitution for her double jeopardy complaint, we reference case law applying the federal double jeopardy provision as well.
The State denies the alleged overlap, arguing that the three relevant offenses 14
are based on different injuries.
16 another section of th[e Penal C]ode may be prosecuted under either or both sections.”
Tex. Penal Code Ann. § 22.04(h). “This statute has been cited by the Court of
Criminal Appeals as an example of the legislature ‘plainly express[ing] its intention
that an accused should suffer multiple punishments for the same offense.’” Thetford,
2021 WL 278913, at *12 (quoting Littrell v. State, 271 S.W.3d 273, 278 (Tex. Crim.
App. 2008)). Thus, even if Ho’s convictions for action-based injury to a child punish
her for the same offense as her capital murder conviction, the overlap does not violate
Texas’s Double Jeopardy Clause. See id. (overruling double jeopardy challenge to
convictions for attempted murder and injury to a child); Desormeaux v. State, 362
S.W.3d 233, 236–37 (Tex. App.—Beaumont 2012, no pet.) (overruling double
jeopardy challenge to convictions for capital murder and injury to a child).
We overrule this issue.
III. Conclusion
Having overruled all of Ho’s issues, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: April 24, 2025