Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00619-CR
MICHAEL A. ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1790630
MEMORANDUM OPINION
A jury convicted appellant Michael A. Allen of aggravated assault causing
serious bodily injury, a second-degree felony, and assessed his punishment at twelve
years in prison.1 In twelve appellate issues, Appellant contends there was insufficient
1
See TEX. PENAL CODE §§ 22.01 (defining assault), 22.02(a)(1), (b) (defining
aggravated assault and providing punishment as second-degree felony). 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
2
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
3
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
4
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,”
5
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
6
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
7
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.
8
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
9
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
10
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.”
11
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
12
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.
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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,
14
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
15
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
16
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
17
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
18
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.
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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,
20
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.
21
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.
22
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
23
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.
24
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
25
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.
26
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).
27
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
28
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).
29
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).
30
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
31
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
32
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.
33
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
34
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
35
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.”).
36
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.
37
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).
38
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.
39
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
40
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.
41
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.
42
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
43
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 egregiousharm 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).
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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
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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.
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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
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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
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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
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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
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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
51
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.
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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.”
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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
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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.
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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).
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