Modify and Affirmed as Modified and Opinion Filed this 15th day of August, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00831-CR
CHRISTINA MARIE WILSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-27627-Q
MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Lewis Opinion by Justice Francis After a bench trial, Christina Marie Wilson was found guilty of injury to a child and was
sentenced to five years in prison, probated for five years. In three issues, appellant complains
about the sufficiency of the evidence, trial court bias, and the sentencing procedure. In a fourth
issue, she seeks to modify the judgment to reflect there was no plea bargain agreement. We
sustain the fourth issue but conclude the remaining three are without merit. We modify the trial
court’s judgment and affirm as modified.
K.B. is appellant’s son. At the time of the incident, he was fourteen years old and lived
with appellant, his maternal grandmother, and his two younger brothers. K.B. came home one
evening, and appellant was intoxicated. K.B. said when his mother is drunk, she is “really
aggressive” but “not violent” and “mostly cusses us.” When appellant said she wanted to have another drink, both he and his grandmother tried to talk her out of it. When appellant persisted,
K.B.’s grandmother hid the bottle of rum, and K.B. hid appellant’s car keys. Appellant left the
house anyway. When she returned, she drank another drink and things “just went up a notch.”
K.B. testified appellant grabbed him by the arms and tried to push him out of the house.
K.B. removed his mother’s hands from his body and pleaded with her to “please stop.” His
grandmother came into the room and stood between them. K.B. said he sat down on the couch,
and appellant “launched” at him. K.B. said he pinned appellant down to restrain her, and
appellant bit him on his chest. When he tried to get away from appellant, she tried to tackle him,
and K.B. put her in a “choke hold” to calm her down. Appellant scratched his neck and grabbed
his testicles and squeezed. K.B. ultimately was able to restrain appellant, and once she calmed
down, he let her go and she went to her room.
K.B. said it “hurt really bad” when appellant scratched his neck. He said the
confrontation started because he did not want appellant to drink. When the police arrived, he
told them what happened, showed the officers his injuries, and his mother was arrested.
On cross-examination, he testified appellant scratched him and grabbed his testicles while
trying to break free from the “choke hold.” The trial court asked K.B. a series of questions about
the choke hold, and he explained he had appellant in a “head lock” and was not “squeezing that
hard.” While in the head lock, K.B. said appellant continued talking and was not having trouble
breathing. He demonstrated for the court how he held mother with his arm around the back of
her neck, not the front. K.B. said his mother is “unpredictable” when she is drinking, which is
why he thought he needed to restrain her. In the past, she had threatened him with an axe.
K.B.’s grandmother, Sherri Lynn Sleffel, testified her daughter has a drinking problem.
When intoxicated, she said appellant is “verbally violent” but never remembers her actions later.
2 On the night of the incident, she said appellant was drunk. When K.B. came home, Sleffel told
him not to confront appellant and to “just leave it alone.” When appellant decided she wanted
another drink, Sleffel hid the rum. Appellant became “very upset” and accused her of stealing.
Appellant said she was going to get more alcohol, and K.B. begged his mother not to leave.
Appellant left and when she returned, she had incense, not alcohol.
At first, appellant went to her room. But then she came out, yelling, “This is my house, I
am the mom, you are not a grown man, I know you think you are, but you . . . are nothing but a
little boy.” Sleffel said K.B. felt emasculated and told Sleffel that if his mother came near him,
he was “going to do something.” When appellant approached K.B., he stood up with his arms by
his side and his fists clinched. Appellant stepped in closer and “buck[ed] up” to K.B. in a
“threatening manner,” and Sleffel said K.B. grabbed her and put her in a choke hold. K.B. told
Sleffel to call the police, and she did. Sleffel said K.B. was hollering for appellant to “go to
sleep,” and appellant was crying and flailing her arms and legs. Appellant then “just went limp,”
and after a few seconds, K.B. released her. Appellant got up from the floor and sat on the couch.
Sleffel said when the police arrived, they spoke only to K.B. She denied confirming
K.B.’s version of what happened to the police and said she believed K.B. “exaggerated” the
events to the police. She also testified she believed her daughter was having trouble breathing
when K.B. had her in the choke hold. Sleffel believed K.B. was trying to “choke her to the point
where she would pass out,” but she did not believe he was trying to hurt appellant.
Officer Charles A. Allen Jr. testified he and his partner responded to the call. Appellant
was intoxicated. Allen said he talked to K.B., saw the scratches on his neck and the bite mark on
his chest, and contrary to Sleffel’s testimony, said he confirmed K.B.’s story with Sleffel. Based
3 on K.B. and Sleffel’s statements and the “actual marks” on K.B., he arrested appellant.
Photographs of K.B.’s injuries were admitted into evidence.
Appellant testified she was defending herself from K.B. when she injured him. She
admitted she was intoxicated at the time and remembered only “bits and pieces” of the
altercation. According to appellant, after K.B. hid her keys, she walked to the corner store.
Instead of buying alcohol as she intended, she bought incense. When she got home, she went
into her room but was “festering” about K.B. telling her not to drink. So, she came out of her
room to confront K.B. because he did not respect that she was the “boss.” As a “scare tactic,”
she said she tried to throw him out of the house. As she was pushing him out, he turned and
grabbed her, “whipped” her around, and put her in a choke hold. Appellant admitted biting and
scratching K.B. and grabbing his testicles, but she said she did so only because she could not
breathe. She believed the force she used was necessary to stop him from choking her.
In her first issue, she contends the evidence is legally insufficient to support her
conviction because the evidence established self-defense. Specifically, she argues the evidence
established K.B. placed her in a choke hold, forcing her to injure K.B. because she could not
breathe.
In assessing the sufficiency of the evidence, we review all the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The trial court, as the trier of fact in a bench trial, is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony. Goodwin v. State, 376 S.W.3d 259, 264
(Tex. App.—Austin 2012, pet. ref’d). Therefore, we presume the court resolved any conflicting
inferences and issues of credibility in favor of the judgment. Id. When a person challenges the
4 legal sufficiency of the evidence supporting a fact-finder’s rejection of self-defense, we do not
look “to whether the State presented evidence which refuted appellant’s self-defense testimony,
but rather we determine whether after viewing all the evidence in the light most favorable to the
prosecution, any rational trier of fact would have found the essential elements” of the offense
“beyond a reasonable doubt and also would have found against appellant on the self-defense
issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.
1991).
A person commits the offense of injury to a child if she “intentionally, [or] knowingly, . .
. by act . . . causes to a child . . . bodily injury. See TEX. PENAL CODE ANN. § 22.04(a)(3) (West
Supp. 2012). A person is justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to protect the actor against the
other’s use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a) (West 2011).
The defendant has the initial burden of producing evidence to raise self-defense; the State
then has the final burden of persuasion to disprove it. Saxton, 804 S.W.2d at 913–14. The State
is not obligated to offer evidence refuting a claim of self-defense; rather, the State is required to
prove its case beyond a reasonable doubt. Id. When a fact finder determines the defendant is
guilty, there is an implicit finding against the defensive theory. Zuliani v. State, 97 S.W.3d 589,
594 (Tex. Crim. App. 2003).
Here, the indictment alleged appellant intentionally and knowingly caused bodily injury
to K.B., a child 14 years of age or younger, by striking and scratching K.B. with appellant’s hand
and fingernails, by biting K.B. with appellant’s mouth, and by squeezing K.B.’s genitals with
appellant’s hand.
5 Appellant argues any injury she caused to K.B. was done “in an effort to ward off his
attack of her.” Although she admitted scratching and biting K.B. and grabbing his genitals, she
claimed she did so because K.B. had her in a choke hold and she could not breathe. She argues
the force she used was immediately necessary to stop K.B. from choking her and directs us to
evidence she was having difficulty breathing.
The evidence in this case shows appellant was drunk and became angered when her son
did not want her to continue drinking. Appellant attacked the child, and K.B. responded by first
pinning her down (and she bit him) and then putting her in a head lock to restrain her (and she
scratched him and squeezed his genitals). He explained he had his arm around the back of her
neck, not the front, and said appellant was not having trouble breathing and continued to talk.
Although appellant and her mother (K.B.’s grandmother) provided a different version of what
happened during the fight, the trial court was entitled to believe K.B. After viewing all the
evidence in the light most favorable to the prosecution, we conclude any rational trier of fact
would have found the essential elements of injury to a child and the same rational trier of fact
would have found against appellant on her self-defense claim. We overrule the first issue.
In her second issue, appellant complains her right to due process was violated by “the
trial judge’s clear and apparent bias against her during the trial, as evidenced by the judge’s
determination of guilt almost immediately after trial began.” Appellant complains about the
following specific instances:
(1) At the beginning of the proceedings, the prosecutor advised the judge the State had
made a plea-bargain offer to reduce the offense to misdemeanor assault, and the judge
responded, “Why are you reducing it to a misdemeanor assault?” (Appellant did not accept the
offer.)
6 (2) As the prosecutor began her questioning of K.B. about the specific incident, the trial
judge interjected and asked K.B., “Did your mother assault you, hit you, strike you . . . scratch
you, bite you? Did she do that to you back in December?” K.B. responded, “She bit me and she
scratched me, yeah.” The judge replied, “Okay. All righty.” The prosecutor then continued her
questioning.
(3) During the defense’s cross-examination of K.B., the trial judge intervened and asked
specific questions about the choke hold and whether K.B. knew what a choke hold was. She had
him demonstrate how he held his mother during the incident and asked whether she continued to
talk while in the hold and whether she had difficulty breathing.
(4) When K.B. testified his mother previously threatened him with an axe, and the
prosecutor asked what appellant was saying as she followed him with the axe, the trial judge
interjected, “She wasn’t - - she wasn’t thinking that she needed to chop some wood right then
and there?” K.B. responded, “Right” and the trial court directed the prosecutor to “[a]sk your
next question.”
(5) During recross-examination, defense asked K.B. if he was asking the judge to find
appellant not guilty “because she was just trying to get you off her when she scratched you and
bit you and . . . grabbed you; is that right?” The trial court interrupted and told defense counsel
not to ask that question: “We’re having a trial. Your client made a decision to have a trial, and
we’re having a trial. I don’t care what he thinks. . . .It’s not his decision to make.”
(6) Defense counsel then returned to questions regarding the choke hold, and the trial
court said, “No. I’ve already heard that question and answer a million times.” A few questions
later, defense counsel asked K.B. if he was “going to put her to sleep by just holding her under
7 your arm,” and K.B. said he was not trying to put his mother to sleep. When defense counsel
asked why he told her to go to sleep, the judge intervened:
[TRIAL JUDGE]: You know what? This isn’t helping your case any. You want to set up a self-defense claim because the child of a drunkard is trying to keep his mommy from driving drunk. This what I’m thinking now. Now I understand you’re trying to impeach him, but he has answered these questions already. I didn’t have her in a choke hold. I’ve seen his demonstration. It wasn’t a choke hold. She could speak, breathe at the same time. I know you’re trying to set up self-defense. I understand that, but these questions have already been asked and answered.
[DEFEENSE COUNSEL]: I just wanted to be clear, Judge.
[TRIAL JUDGE]: Okay. Oh, it’s very clear to me what happened. It’s very clear to me. And unless you have anything else to impeach him with, you know, I’ll wait to hear your witnesses.
[DEFENSE COUNSEL]: No more questions.
[TRIAL JUDGE]: And if you want to - - if something is unclear and you want to call him back, then you’re free to do so.
(7) When the prosecutor questioned appellant’s mother, the trial judge interjected to ask a
series of questions concerning K.B., his reputation for truthfulness, appellant’s drinking habits,
and K.B.’s relationship with his mother. Later, when the prosecutor cross-examined appellant,
the judge asked a series of questions about appellant’s actions that night and later asked other
questions, which appellant characterizes on appeal as “badger[ing].”
(8) During the prosecutor’s closing argument, the trial judge observed that the “person
that’s the least believable was the Defendant. She was so drunk.” (This comment came after the
prosecutor argued the grandmother was “trying to sugar-coat” appellant’s actions, and the trial
judge differed, saying “I just think people see different things. It was probably kind of crazy.”)
(9) After finding appellant guilty and before hearing punishment evidence, the court said
all witnesses could return to the courtroom, adding “since they were forced to be here, they
might as well see what’s going on.”
8 (10) Finally, during appellant’s punishment testimony, the judge asked if appellant knew
there were photographs of K.B.’s injuries, and appellant said, “I knew after I got out, yeah.” The
trial court then asked, “Why would you make your own son come and testify against you? Why
would you do that? Why would you put him through this trial?” Defense counsel then
interjected that appellant knew she would lose her job if convicted and, after he spoke with K.B.,
he believed it was “clearly self-defense” and the decision to go to trial was “more my decision
than hers[.]” After the trial court ascertained that appellant knew she “had the option to just take
a misdemeanor” and “be on a misdemeanor probation,” the trial court told appellant, “And you
decided you didn’t want to do that because you didn’t want to lose your job and because you
thought you were not guilty?” Appellant said she believed she acted in self-defense, adding she
would never physically injure her child. The trial court responded, “But it - - you never stopped
to think, well, you know, my brain was floating in alcohol; I probably don’t remember very well
what happened; maybe my son is being truthful? That - - that never occurred to you?”
Appellant said she didn’t know. The trial judge continued with several more questions about
appellant’s alcoholism.
Appellant argues the above instances demonstrate (1) the judge determined appellant’s
guilt “long before” hearing all of the evidence; (2) the judge’s premature determination resulted
in her “closing her eyes and ears to actual evidence; and (3) the judge’s comments “reveal an
excessive and unwarranted level of hostility toward a remorseful and recovering alcoholic with
no prior felonies.” We cannot agree.
The parties have a right to a fair trial. Dockstader v. State, 233 S.W.3d 98, 108 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). One of the most fundamental components of a fair
9 trial is a neutral and detached judge. Id. A judge should not act as an advocate or adversary for
any party. Id.
When an appellant claims judicial bias, we review the record to see if it shows the
judge’s bias denied him due process of law. Armstrong v. State, No. 05-10-01245-CR, 2011 WL
6188608, at *5 (Tex. App.—Dallas Dec. 14, 2011, no pet.) (not designated for publication). The
terms “bias” and “prejudice” do not encompass all unfavorable rulings towards an individual, but
instead must “connote a favorable or unfavorable disposition or opinion that is somehow
wrongful or inappropriate, either because it is undeserved, or because is rests upon knowledge
that the subject ought not to possess . . . or because it is excessive in degree.” Abdygapparova v.
State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d) (citing Liteky v. United
States, 510 U.S. 540, 550 (1994)). Judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a
bias or partiality challenge. Dockstader, 233 S.W.3d at 108. And, a “judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune.” Garcia v. State, 246 S.W.3d 121, 147 (Tex.
App.—San Antonio 2007, pet. ref’d) (quoting Liteky, 510 U.S. at 556).
Having reviewed the entire record in this case, we cannot conclude it supports appellant’s
assertion that she was denied due process because of judicial bias. Initially, we note this was a
bench trial, so there are no concerns that the judge in some way influenced a jury. The record
shows the trial judge was more actively involved in questioning witnesses, but it appears more
times than not she was managing the flow of the trial and did not want to hear redundant
testimony or needlessly prolong the trial. That she identified the critical issue early on—whether
appellant’s conduct was justified—and focused on it does not reflect partiality on the judge’s part
10 nor does the fact that she found K.B. to be a credible witness early on. While some of the trial
judge’s comments may well show she was critical or disapproving of appellant, “expressions of
impatience, dissatisfaction, annoyance, and even anger” in the ordinary conduct of court
administration does not establish bias. See Liteky, 510 U.S. at 555‒56 (discussing bias in context
of recusal).
In addition, appellant cites to places in the record where the trial judge “retorted,”
“sarcastically” asked a question, “badgered” appellant, or “blurted out” a comment. However,
tone and demeanor are not apparent from a cold record. Armstrong v. State, No. 05-10-01245-
CR, 2011 WL 6188608, at *6.
Finally, we note appellant relies on Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex.
App.—San Antonio 2007, pet. ref’d) to support her argument. In Abdygapparova, the trial court
engaged in several instances of ex parte communications with the State, including passing notes
during voir dire. 243 S.W.3d at 198, 206–07. In addition to the ex parte communications, the
court of appeals concluded the record as a whole demonstrated a bias toward Abdygapparova,
specifically noting the admission of damaging evidence that clearly should not have been
admitted and its concern the trial court did not allow an interpreter. Id. at 199–204. Appellant
argues that, as in Abdygapparova, the trial judge’s actions here “infected the entire trial process,
robbing [appellant] of her basic protections and undermining the ability of the criminal trial to
reliably serve its function as a vehicle for the determination of guilt or innocence.” We cannot
agree. Nothing in this case approaches the bias demonstrated in Abdygapparova. The trial judge
here was not exchanging ex parte communications with the State nor did she make
recommendations to the State about the presentation of its case. See id. at 209. We overrule the
second issue.
11 In her third issue, appellant contends the trial court erred in failing to pronounce her
sentence and afford her the right of allocution. See TEX. CODE CRIM. PROC. ANN. art. 42.03, §
1(a) (West Supp. 2012) (stating sentence shall be pronounced in defendant’s presence); TEX.
CODE CRIM. PROC. ANN. art. 42.07 (West 2006) (stating trial court should ask defendant if there
is any reason sentence should not be pronounced against him). The State responds that appellant
waived any error by failing to object. We agree with the State.
At the conclusion of the evidence in the punishment phase, the trial court stated it was
setting punishment at five years in prison, suspending imposition of the sentence, and placing
appellant on probation for five years. The trial court ordered a CATS evaluation and advised
appellant she had thirty days to file an appeal.
Appellant contends the trial court did not pronounce sentence in this case; it just assessed
punishment. Further, she complains the trial court did not ask if there was any reason why
sentence should not be pronounced, denying her the opportunity to plead for mercy. Appellant
recognizes she failed to object to any error, but she asks this Court to consider here argument in
the interest of justice. We decline her invitation.
Texas Rule of Appellate Procedure 33.1 requires a complaining party to make a timely,
specific objection to preserve error for appellate review. See TEX. R. APP. P. 33.1. Because
appellant failed to object that she was denied her right to the pronouncement of sentencing or her
right to allocution, we conclude she has waived any error. See Tenon v. State, 563 S.W.2d 622,
623–24 (Tex. Crim. App. 1978) (holding appellant failed to preserve his argument regarding
allocution by failing to object in trial court). We overrule appellant’s third issue.
In her fourth issue, appellant asks the Court to reform the judgment to correctly reflect
that there was no plea bargain agreement and she pleaded not guilty. This Court has the
12 authority to correct a judgment of the court below to make the record “speak the truth” when we
have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d).
Here, the judgment states that the “Terms of the Plea Bargain” are “5 YEARS TDC /
PROBATED FOR 5 YEARS” and that the “Plea to Offense” is “GUILTY.” The reporter’s
record shows otherwise. Because we have the necessary information and documents to do so,
we modify the trial court’s judgment to reflect there was no plea bargain agreement and that
appellant pleaded not guilty.
We affirm the judgment as modified.
/Molly Francis/ MOLLY FRANCIS JUSTICE
Do Not Publish TEX. R. APP. P. 47 120831F.U05
13 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CHRISTINA MARIE WILSON, Appellant On Appeal from the 204th Judicial District Court, Dallas County, Texas No. 05-12-00831-CR V. Trial Court Cause No. F11-27627-Q. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices FitzGerald and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect Not Guilty under “Plea to Offense” and None under “Terms of Plea Bargain.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 15th day of August, 2013.