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As of: April 28, 2025 1:23 PM Z

Contreras v. State
Court of Appeals of Texas, Eighth District, El Paso
March 28, 2025, Decided
No. 08-23-00210-CR and 08-23-00211-CR

Reporter
2025 Tex. App. LEXIS 2121 *
defendant's omission caused the child to suffer
SONNY CONTRERAS, Appellant, v. THE STATE OF
a separate or greater injury than the child's
TEXAS, Appellee.
initial injuries.
Notice: PLEASE CONSULT THE TEXAS RULES OF
Material Facts
APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.

Prior History: [*1] Appeal from the 109th District Court • The defendant, Contreras, was charged with
of Winkler County, Texas. (TC# DC23-6091 and DC23- felony murder and injury to a child by omission
6101). in the death of his 7-month-old son, K.C, the
victim.
Core Terms • K.C. suffered life-threatening injuries on March 1,
2020, while in Contreras's sole care, and died
injuries, injury to a child, grand jury, omission, juror, two days later from abusive head trauma.
felony murder, indictment, guilt, trial court, phone, brain,
• Medical evidence showed K.C. suffered subdural
felony, murder, symptomatic, choking, serious bodily
hemorrhaging, brain swelling, retinal
injury, questions, baby, dangerous to human life,
hemorrhaging, and spinal injuries consistent
testing, underlying felony, blood, contends, trauma,
with violent shaking or blunt force trauma.
hemorrhaging, interview, symptoms, clothes, knowingly,
recalled • Contreras provided inconsistent statements about
how K.C. was injured and delayed calling 911
Case Summary for approximately 10 minutes after K.C. became
symptomatic.

Overview Controlling Law

Key Legal Holdings

• Tex. Penal Code Ann. § 19.02(b)(3)(Felony

• The jury charge properly instructed that injury to a Murder).
child could be the underlying felony in the • Tex. Penal Code Ann. § 22.04(Injury to a Child).
felony murder charge.
• Defendant was the person responsible for inflicting Court Rationale
the injuries on the victim that resulted in his
death. Therefore, legally sufficient evidence For the jury charge: the State's theory of guilt that
supported defendant's conviction of felony defendant committed affirmative acts (inflicting blunt
murder. force trauma to the victim's head or shaking him) that
constituted injury to a child and were also clearly
• Legally insufficient evidence supported dangerous to human life, resulting in the victim's death,
defendant's conviction for injury to a child by was not listed as an exclusion under the statute.
omission. based on failure to seek medical
treatment, the State must prove that the For felony murder conviction: circumstantial evidence,
 Page 2 of 26
2025 Tex. App. LEXIS 2121, *1

including defendant's sole access to the victim when the commission or attempt, or in immediate flight from
symptoms appeared, inconsistent statements, and the commission or attempt, he commits or attempts to
evidence of concealment, was legally sufficient for the commit an act clearly dangerous to human life that
jury to conclude defendant caused the victim's fatal causes the death of an individual. To establish guilt, the
injuries. State must prove (1) an underlying felony, (2) an act
clearly dangerous to human life, (3) the death of an
For injury to child by omission acquittal: Since the jury individual, (4) causation (the dangerous act causes the
found defendant's acts caused the victim's death, the death), and (5) a connection between the underlying
State could not prove defendant's delay in seeking felony and the dangerous act (in the course of and in
treatment caused a separate or greater injury than furtherance of or in immediate flight from).
death itself. None of the State's medical witnesses
testified that the victim suffered any injury due to the
delay in seeking treatment beyond that which Criminal Law & Procedure > Criminal
defendant's actions caused, nor did they testify to the Offenses > Lesser Included Offenses > Crimes
possibility that the victim could have been saved had he Against Persons
received treatment sooner.
Criminal Law & Procedure > ... > Murder > Felony
Outcome Murder > Elements
Procedural Outcome
Criminal Law & Procedure > Criminal
The Court of Appeals affirmed Contreras's conviction for Offenses > Lesser Included Offenses > Homicide
felony murder but reversed and rendered a judgment of
acquittal on the injury to a child by omission charge. Criminal Law & Procedure > ... > Children &
Minors > Child Abuse > Elements
LexisNexis® Headnotes
Criminal Law & Procedure > ... > Homicide,
Manslaughter & Murder > Voluntary
Manslaughter > Elements

HN3[ ] Lesser Included Offenses, Crimes Against

Criminal Law & Procedure > Appeals > Reversible Persons
Error > Jury Instructions
Under the plain language of the felony murder statute,
HN1[ ] Reversible Error, Jury Instructions Tex. Penal Code Ann. § 19.02(b)(3), any felony can
serve as the underlying felony except manslaughter and
A jury-charge-claim analysis involves two steps: first, lesser-included offenses of manslaughter, if the victim's
the appellate court determines whether the charge is death occurred during the commission of that felony.
erroneous. If it is, then the court must decide whether Injury to a child is not a lesser-included offense of
the appellant was harmed by the erroneous charge. manslaughter. Because injury to a child is not listed as
an exclusion in the felony murder statute, it can serve as
the underlying felony for felony murder if the child's
Criminal Law & Procedure > ... > Murder > Felony death occurred as a result of the acts constituting injury
Murder > Elements to a child.

Criminal Law & Procedure > Trials > Burdens of

Proof > Prosecution Criminal Law & Procedure > ... > Children &
Minors > Child Abuse > Elements
HN2[ ] Felony Murder, Elements
Criminal Law & Procedure > ... > Murder > Felony
The felony murder statute, Tex. Penal Code Ann. § Murder > Elements
19.02(b)(3), provides that a person commits murder if
he commits or attempts to commit a felony, other than HN4[ ] Child Abuse, Elements
manslaughter, and in the course of and in furtherance of
 Page 3 of 26
2025 Tex. App. LEXIS 2121, *1

In a felony murder prosecution, the same acts alleged to commission of the offense and may rely on actions of
constitute the underlying felony offense of injury to a the defendant which show an understanding and
child may be used to support the allegation that the common design to do the prohibited act. Each fact need
defendant engaged in acts clearly dangerous to human not point directly and independently to the guilt of the
life. appellant, as long as the cumulative effect of all the
incriminating facts are sufficient to support the
conviction.
Criminal Law & Procedure > Trials > Motions for
Acquittal
Criminal Law & Procedure > ... > Standards of
Evidence > Weight & Sufficiency Review > Deferential Review > Credibility &
Demeanor Determinations
HN5[ ] Trials, Motions for Acquittal
Evidence > Inferences & Presumptions > Inferences
Challenges to the legal sufficiency of the evidence do
not necessarily need to be raised in a motion for Criminal Law & Procedure > Juries &
directed verdict; the appellate court must always Jurors > Province of Court & Jury > Credibility of
address those challenges even if not raised in the trial Witnesses
court.
Evidence > Weight & Sufficiency

Criminal Law & Procedure > Trials > Motions for Criminal Law & Procedure > Juries &
Acquittal Jurors > Province of Court & Jury > Weight of
Evidence
Evidence > Admissibility > Circumstantial & Direct
Evidence HN7[ ] Deferential Review, Credibility & Demeanor
Determinations
Criminal Law & Procedure > ... > Standards of
Review > Substantial Evidence > Sufficiency of The factfinder is the sole judge of weight and credibility
Evidence of the evidence. An appellate court defers to the trier of
fact to resolve conflicts in testimony, to weigh the
Evidence > Types of Evidence > Circumstantial evidence, and to draw reasonable inferences from basic
Evidence facts to ultimate facts. The fact-finder is responsible for
judging the credibility of witnesses and may find credible
Evidence > Weight & Sufficiency all, some, or none of the testimony that the witnesses
give. An appellate court does not re-weigh evidence or
HN6[ ] Trials, Motions for Acquittal substitute its judgment for that of the factfinder. When
the record supports conflicting inferences, a reviewing
A trial court's ruling on a motion for directed verdict is court must presume that the factfinder resolved the
reviewed as a challenge to the legal sufficiency of the conflicts in favor of the prosecution and defer to that
evidence. In reviewing the legal sufficiency of the determination.
evidence to support a criminal conviction, an appellate
court reviews the evidence in the record in the light most
favorable to the verdict to determine whether any Criminal Law & Procedure > Trials > Burdens of
rational trier of fact could have found the essential Proof > Prosecution
elements of the offense beyond a reasonable doubt. On
appeal, the same standard of review is used for both Evidence > Inferences & Presumptions > Inferences
circumstantial and direct evidence cases. Circumstantial
evidence is as probative as direct evidence in Criminal Law & Procedure > ... > Standards of
establishing the guilt of an actor, and circumstantial Review > Substantial Evidence > Sufficiency of
evidence alone can be sufficient to establish guilt. In Evidence
conducting a legal sufficiency review, an appellate court
looks at events occurring before, during and after the HN8[ ] Burdens of Proof, Prosecution
 Page 4 of 26
2025 Tex. App. LEXIS 2121, *1

For the evidence to be sufficient, the State need not HN10[ ] Witnesses, Credibility
disprove all reasonable alternative hypotheses that are
inconsistent with the defendant's guilt. The appellate A jury is free to determine the credibility of a witness's
court therefore does not consider whether possible testimony, and the jury may believe a witness's
alternative explanations could support a finding that the testimony even if it may be considered self-serving.
defendant was not guilty; instead, the court's only focus
is on whether the inferences necessary to establish guilt
are reasonable based upon the cumulative force of all of Criminal Law & Procedure > ... > Children &
the evidence when considered in the light most Minors > Child Abuse > Elements
favorable to the verdict.
Evidence > Types of Evidence > Circumstantial
Evidence
Criminal Law & Procedure > ... > Children &
Minors > Child Abuse > Elements HN11[ ] Child Abuse, Elements

Evidence > Inferences & Presumptions > Inferences Proving the cause of a child's injury or death often
depends on circumstantial evidence because there is
Criminal Law & Procedure > ... > Murder > Felony rarely direct evidence of exactly how the child's injuries
Murder > Elements occurred. When a child is injured in the absence of any
witnesses, the critical issue often comes down to timing
Criminal Law & Procedure > ... > Acts & Mental and who had access to the child at the time of the
States > Mens Rea > Recklessness injuries. Texas case law is replete with holdings that
when an adult defendant has had sole access to a child
Criminal Law & Procedure > Trials > Burdens of at the time its injuries are sustained, the evidence is
Proof > Prosecution sufficient to support a conviction for injury to a child, or
murder if the child dies.
HN9[ ] Child Abuse, Elements

Felony murder is an unintentional murder committed in

Evidence > Relevance > Relevant Evidence
the course of committing a felony, the State must prove
the elements of the underlying felony, including the HN12[ ] Relevance, Relevant Evidence
culpable mental state; but as to the resulting murder, no
culpable mental state is required. Injury to a child is a Attempts to conceal a crime are generally probative of
result-oriented offense requiring a mental state that guilt. Attempts to conceal incriminating evidence are
relates not to the specific conduct but to the result of probative of wrongful conduct and are also
that conduct. A person commits injury to a child if he circumstances of guilt.
intentionally, knowingly, recklessly, or with criminal
negligence by act causes to a child (1) serious bodily
injury; (2) serious mental deficiency, impairment, or
Criminal Law & Procedure > ... > Resisting
injury; or (3) bodily injury. Tex. Penal Code Ann. §
Arrest > Fleeing & Eluding > Consciousness of Guilt
22.04(a). A child, for the purposes of this offense, is a
person 14 years old or younger. § 22.04(c)(1). The
HN13[ ] Fleeing & Eluding, Consciousness of Guilt
culpable mental state may be inferred from the acts of
the accused or the surrounding circumstances, which Inconsistencies in a defendant's story can provide
include words and conduct. evidentiary support for a conviction. False statements
made by a defendant to cover up a crime evince a
consciousness of guilt and may support a finding of
Criminal Law & guilt.
Procedure > Trials > Witnesses > Credibility

Criminal Law & Procedure > Juries &

Criminal Law & Procedure > ... > Assault &
Jurors > Province of Court & Jury > Credibility of
Battery > Aggravated Offenses > Elements
Witnesses
 Page 5 of 26
2025 Tex. App. LEXIS 2121, *1

HN14[ ] Aggravated Offenses, Elements zone of reasonable disagreement.

Serious bodily injury is defined as bodily injury that

creates a substantial risk of death or that causes death, Criminal Law & Procedure > ... > Challenges for
serious disfigurement, or protracted loss or impairment Cause > Bias & Impartiality > Actual & Implied Bias
of the function of any bodily member or organ.
Criminal Law & Procedure > ... > Impaneling Grand
Juries > Selection of Jurors > Juror Qualifications
Criminal Law & Procedure > ... > Children &
Minors > Child Abuse > Elements Criminal Law &
Procedure > ... > Procedures > Return of
HN15[ ] Child Abuse, Elements Indictments > Refusal to Indict

To support a conviction for injury to a child by omission, Criminal Law & Procedure > ... > Challenges for
it is not enough for the State to present evidence that Cause > Appellate Review > Preservation for
the defendant failed to provide medical care for a Review
serious bodily injury. The State must prove that the child
suffered serious bodily injury because the defendant Criminal Law & Procedure > ... > Grand
failed to provide medical care. A defendant cannot be Juries > Secrecy > Participants
convicted of causing serious bodily injury to a child by
omission for failing to seek medical treatment for a HN17[ ] Bias & Impartiality, Actual & Implied Bias
child's injuries unless the State establishes that the
omission caused the child to suffer a serious bodily Tex. Code Crim. Proc. Ann. art. 35.16(a)(7) provides
injury above and beyond the child's initial injuries. A that a party may make a challenge for cause to a juror
conviction for injury to a child causing serious bodily by alleging some fact that renders the juror incapable or
injury by omission for failing to seek timely medical unfit to serve on the jury. art. 35.16(a). Several
treatment for an injured child requires evidence that the challenges may be made by either party, including a
failure to seek medical treatment created a substantial challenge because the juror served on the grand jury
risk of death above and beyond that resulting from the that found the indictment in the defendant's case. art.
initial injuries. Stated otherwise, the delay in treatment 35.16(a)(7). The statute makes sitting on a grand jury a
must have caused a separate injury, even if the cause for challenge due to the fear that a person who
separate injury was a worsening of the child's condition. served on the grand jury that returned the indictment
may have formed an opinion in the case that was
adverse to the appellant. If properly and timely raised, a
juror who previously served on a grand jury should be
Criminal Law & Procedure > Appeals > Standards of
excused.
Review > Abuse of Discretion

Criminal Law & Procedure > ... > Standards of

Review > Abuse of Discretion > New Trial Criminal Law & Procedure > ... > Impaneling Grand
Juries > Selection of Jurors > Juror Qualifications
Criminal Law & Procedure > Postconviction
Proceedings > Motions for New Trial Criminal Law & Procedure > ... > Challenges for
Cause > Appellate Review > Preservation for
HN16[ ] Standards of Review, Abuse of Discretion Review

An appellate court reviews a trial court's denial of a HN18[ ] Selection of Jurors, Juror Qualifications
motion for new trial for an abuse of discretion, viewing
the evidence in the light most favorable to the ruling and While serving on the grand jury that indicted the
reversing only if no reasonable view of the record could defendant provides ground for a party to challenge the
support the ruling. In determining whether the trial court juror, it is not an absolute disqualification from sitting on
abused its discretion, an appellate court must not a petit jury. Therefore, defense counsel is required to
substitute its own judgment for that of the trial court, and question the panel regarding whether they previously
it must uphold the trial court's ruling if it is within the served on a grand jury—and in particular whether they
 Page 6 of 26
2025 Tex. App. LEXIS 2121, *1

served on the grand jury that indicted the defendant—or by omission in the death of his seven-month-old son.1
the defendant will forfeit his right to later challenge the The jury sentenced Contreras to 42 years' confinement
juror's service. for felony murder, with injury to a child by act as the
predicate felony, and 30 years' confinement for injury to
a child by omission. The trial court ordered the
Criminal Law & Procedure > Juries & sentences to run concurrently. We affirm the judgment
Jurors > Challenges for Cause > Determinations of conviction for felony murder, but because we
conclude the evidence is legally insufficient to support
HN19[ ] Challenges for Cause, Determinations Contreras's conviction for injury to a child by omission,
we reverse and render a judgment of acquittal as to that
It is counsel's obligation to exercise due diligence in offense.
questioning the panel regarding any grounds for
challenging a potential juror for cause or grounds that
might reflect on their impartiality. Asking general I. FACTUAL AND PROCEDURAL BACKGROUND
questions regarding the panel's familiarity with the
The victim in this case, K.C., was born on July 11, 2019,
defendant or the case is insufficient to satisfy due
in Carlsbad, New Mexico to Contreras [*2] and his
diligence in discovering whether a juror previously
then-girlfriend, Samantha Lulaks (Samantha). K.C.
served on a grand jury in the defendant's case.
suffered life-threatening injuries on March 1, 2020, and
died two days later at a trauma center in Lubbock,
Texas from what medical personnel diagnosed as
Criminal Law & Procedure > Juries & Jurors > Voir abusive head trauma.
Dire > Questions to Venire Panel
Contreras was originally indicted by a grand jury in 2020
HN20[ ] Voir Dire, Questions to Venire Panel for reckless injury to a child. He was later reindicted in
2021 and again in 2023 for felony murder. The 2023
Counsel is obligated to ask the venirepersons specific indictment, for which he stood trial, alleged that on or
questions regarding the various statutory grounds about March 1, 2020, he
relevant to whether they may be disqualified or
challenged for cause. The jury panel does not know the committed or attempted to commit the felony
statutory challenges for cause, and thus, the offense of injury to a child, by intentionally,
prospective jurors likely do not know what the parties knowingly, recklessly, or with criminal negligence,
are trying to determine during voir dire when they are causing serious bodily injury to [K.C.] a child
asked only general questions about their familiarity with younger than 14 years of age, by striking the head
a case. of [K.C.] with a blunt object, by causing the head of
[K.C.] to strike a blunt object, or by causing the
Counsel: For The State of Texas, Criminal - State of rapid acceleration and deceleration of the head of
Texas (08-23-00210-CR, 08-23-00211-CR): Hon. [K.C.], and while in the course of and in furtherance
Joshua Somers, Hon. Matthew Ottoway. of the commission of said felony offense [Appellant]
For Sonny Contreras, Criminal - Appellant (08-23- committed or attempted to commit an act clearly
00210-CR, 08-23-00211-CR): Hon. Jeep Darnell, Hon. dangerous to human life, to-wit: striking the head of
Jim Darnell, Hon. Cris Estrada. [K.C.] with a blunt object, causing the head of [K.C.]
to strike a blunt object, or causing the rapid
Judges: Before Salas Mendoza, C.J. Palafox and Soto, acceleration [*3] and deceleration of the head of
JJ. [K.C.] which caused the death of an individual,

Opinion by: LISA J. SOTO

Opinion 1 Today, we issue two opinions stemming from the single trial
in which Contreras was tried on both counts. The present
opinion is an appeal of the felony murder conviction in cause
A jury found Appellant Sonny Contreras guilty of one number DC23-6091 and the companion opinion is an appeal
count of felony murder and one count of injury to a child of the injury-to-a-child-by-omission conviction in cause number
DC23-6101.
 Page 7 of 26
2025 Tex. App. LEXIS 2121, *3

namely [K.C.].2 exam and his heart was normal. K.C. had a temperature
of 100.2 and nasal congestion. He tested negative for
In a separate 2023 indictment, Contreras was charged any signs of infection and was discharged with a viral
with one count of "knowingly, by omission, caus[ing] syndrome diagnosis and instructions to receive Tylenol,
serious bodily injury to [K.C.] a child 14 years of age or ibuprofen, and Pedialyte. The next day after work,
younger, by failing to seek medical care for [K.C.] in a Samantha observed that K.C. had a hurt lip. Appellant
timely manner, and [Contreras] as a parent of [K.C.] had told her K.C. had hit himself with a toy.
a legal duty to act pursuant to Section 151.001 of the
Texas Family Code." Shortly thereafter, on February 15, 2020, Samantha's
mother (Lisa) came to visit the family. Lisa testified that
she had visited the family in Carlsbad after K.C.'s birth
A. Events leading up to March 1, 2020 and video-chatted with Samantha and K.C. on a regular
basis. She described K.C. as a "very chill" baby but
At trial, Samantha testified that she and Contreras met observed that he seemed fussy during her visit that
while they were working at a Pilot store in Carlsbad, week. When Samantha picked her up at the Midland
New Mexico. At some point, Contreras was terminated airport, Lisa recalled, Samantha told her K.C. had
from his position and Samantha was promoted and diarrhea and had been vomiting. They decided to take
transferred to another Pilot store in Kermit, Texas. The K.C. to a Midland hospital where he again tested
three moved into a four-bedroom trailer in a Pilot negative for any signs of infection and was diagnosed
employee complex in Kermit the weekend of February with a viral syndrome. He had a normal neurological
7, 2020. Contreras was responsible for watching K.C. examination, was "alert [*5] and responsive," and had
while Samantha worked. no detected heart murmurs. A chest x-ray confirmed his
heart was normal. After providing him with a sodium
Samantha described K.C. as a healthy and normal chloride IV, K.C. was discharged with instructions to
infant.3 The State provided records of his various well- receive Tylenol and Pedialyte, and follow up with his
baby medical visits demonstrating K.C. had no primary care physician or return to the emergency room
significant health issues, including his six-month if his symptoms worsened.
checkup, one month before his death.
During her week-long visit, Lisa noted that K.C. was
Samantha recalled that K.C. appeared to be normal the attached to Samantha but seemed afraid of Contreras
weekend they moved to [*4] Kermit, but shortly and clung to Lisa when Contreras approached. She was
thereafter, K.C. was fussy, had a fever, and was concerned about K.C.'s lip injury but believed
vomiting. She took him to Winkler Memorial Hospital on Contreras's explanation. While she was there, Lisa
February 12, 2020, where he had a normal neurological explained, K.C. got four teeth, which could have
accounted for why he was not feeling well. Samantha
said that after Lisa left on February 22, K.C. continued
2 The 2023 indictment also charged Contreras with two other to improve.
offenses, Injury to a Child (reckless) and Injury to a Child
(intentional/knowing). The State later dismissed those two Two days before K.C. was injured, Samantha recalled,
charges prior to trial. Contreras was upset and began to accuse her of
3 K.C.'s medical records indicate that at birth, he had three cheating because she was not answering her phone
issues, including head "molding," a heart murmur, and a while at work. Text messages Samantha provided from
condition called "cephalohematoma," which was described as Contreras that day while she was working stated:
"a collection of blood and fluid in the scalp or under the scalp • Plz don't cheat on me.
between the skull and the surface of the skin" that occurs • Who is he, Sami? Obviously fixing your attention
when the baby's head is "smooshed" in the birth canal. on someone else.
Medical testimony established, however, that these conditions • What if something happened to [K.C.] and I kept
were all normal in newborns and that all of the conditions had
calling you but you wouldn't answer my calls huh
resolved well before K.C.'s death. The State presented the
dont you care
medical records from K.C.'s well checkups, which indicated he
no longer suffered from molding and his pediatrician no longer
The [*6] next day (Saturday, February 28) Samantha
heard any heart murmurs. In addition, the medical examiner
was off work and the family went shopping in Midland.
who conducted K.C.'s autopsy pointed out that K.C.'s heart
K.C. was not vomiting, did not have a fever, was holding
was harvested for donation, which would not have been the
case if the heart had any congenital defects. food down, and generally seemed fine, other than being
 Page 8 of 26
2025 Tex. App. LEXIS 2121, *6

a "little tired." [K.C.] you liar!!!"

• "Why the fuck wouldn't you answer cuz you were
with a guy I hate you"
B. Events of March 1, 2020 • "[K.C.] is dying and that's all you care about"

Contreras was already at the hospital when Samantha

(1) Samantha's testimony arrived. He informed her that K.C. had been choking
and they were intubating him. However, she later
Samantha testified that she was off work on Sunday, learned from hospital staff that nothing had been
March 1, 2020, and woke up at 8:00 or 8:30, along with blocking his airway, so he could not have been choking.
K.C., who had been sleeping next to her. While Samantha was able to see K.C. before he was airlifted
Contreras was still sleeping, she took K.C. into the to University [*8] Medical Center (UMC) in Lubbock,
guest room, fed him around 8:30 or 9:00, turned on and she observed him unresponsive. Samantha and
Sesame Street, and FaceTimed with Lisa.4 Contreras drove to Lubbock. Upon arriving, the UMC
doctors were performing tests and had determined
When Contreras woke up, Samantha told him she was K.C.'s injuries were trauma related. Samantha testified
going shopping and left K.C. in the guestroom propped that while they were at the hospital in Lubbock,
up on a "boppy pillow" at either 11:00 or 11:30 a.m.5 Contreras claimed K.C. hurt himself in his bouncer,
According to Samantha, K.C. was not crying when she which she thought sounded "crazy." At that point,
left, and nothing was wrong with him. The State
Samantha began to suspect Contreras was responsible
presented a video and still shots from Samantha's
for K.C.'s injuries. At trial, she expressly denied she did
shopping trip, indicating that she entered the store at
anything to harm her child.
11:22, checked out at 12:31, and left the store at 12:33.

Samantha testified, and her phone records confirm, that

(2) First responders' testimony
she tried to call Contreras at 11:48 a.m. during the
shopping trip, but he did not respond. She placed her Contreras's phone records indicate that he
phone in the hoodie she was wearing. unsuccessfully tried to call Samantha on her cell phone
Unbeknownst [*7] to her, Contreras had been trying to beginning at 12:16 p.m., and called 911 three minutes
call, but because her phone was on vibrate, she did not later, at 12:19 p.m. In his 911 call, which was played for
answer. A call log the State introduced showed that the jury, Contreras reported his baby was "not
Contreras began calling Samantha at 12:16 p.m., with breathing" and he had been trying to perform CPR.
eight missed calls through 12:33 p.m. Contreras also
began texting Samantha at 12:22, stating: "[K.C.] is
dying. Hurry up. I called 91w [sic]." Unaware of the text, (a) Winkler County Sheriff Deputy Rebekka Cogburn
she continued shopping. While checking out, she heard
her phone vibrate and immediately called Contreras Rebekka Cogburn, a deputy from the Winkler County
back, whereupon a deputy came on the line, told her Sheriff's Office, was first to respond. She testified that
that her son was at the hospital, and asked her to meet she received the 911 call at 12:25 and was at the
them there. housing complex with lights and sirens at 12:27.6

Contreras sent her the following text messages, starting When she arrived, an EMS vehicle was in the parking
at 12:33 and ending at 12:36: lot trying to locate the residence. [*9] 7 No one came out
• "Sami where are you" of the residence at first, but eventually Contreras
• "Your cheating on me and you don't care about emerged waving his arms. Upon entering the residence,
she found K.C. laying on his back on a sofa with his
eyes closed. He was "chilled," his "lips were blue," and
4 Lisatestified at trial that while they were FaceTiming, K.C. he had "lost color" and was "very pale." Although
appeared "a little cranky," but she did not find it unusual as he Contreras later informed Cogburn that K.C. had been
had just woken up. K.C. seemed "responsive" to her, and she
did not believe anything was wrong with him at the time.
6 Cogburn's dashcam video was also played for the jury.
5 The record contains a photo of one of K.C.'s "boppy pillows,"
which is a u-shaped pillow that can be used for nursing and 7 Itappears that Appellant provided the wrong pod number
bottle-feeding infants. See https://www.boppy.com. during his 911 call.
 Page 9 of 26
2025 Tex. App. LEXIS 2121, *9

choking while bottle-feeding, she neither observed a Appellant's residence at 12:31 and performed
bottle anywhere nor anything in K.C.'s airway. She continuous CPR on K.C. during the transport, arriving at
observed no signs of vomit on the couch where K.C. the Winkler County Memorial Hospital at 12:34 p.m.
was laying or on his clothes. After EMS took K.C. in the ambulance, Cogburn
transported Contreras to the hospital in her unit. While
Cogburn performed CPR until paramedic Fred Meyers in the unit, she testified, Contreras was eventually able
entered the residence and took over. While K.C. was to contact K.C.'s mother, but because he was cursing
being treated by Meyers, according to Cogburn, and yelling at her, she took the phone from him to brief
Contreras was "cussing" as he was unsuccessfully her and advise her to meet them at the hospital.
trying to call K.C.'s mother.
At the hospital, Contreras provided a written statement
to Cogburn and her partner, Spence, again claiming
(b) Winkler County Paramedic Fred Myers K.C. had been choking, but adding that he believed K.C.
had suffered a seizure and a small amount of milk came
Meyers, a nationally registered EMT and licensed out of his mouth and nose while he was performing
paramedic employed by Winkler County EMS, testified CPR. Cogburn read Contreras's statement to the jury:
that he received the call that an infant was not breathing
at 12:24 p.m. and arrived onsite at 12:29. He and his On the 1 day of March 2020, at or about 12:16,
partner had trouble locating the residence, and although a.m. [sic], I was feeding him like usual with his
they arrived with lights and sirens, Contreras did not bottle. We usually put 8 ounces of water and mix it
come out for a few minutes. with oatmeal for babies. Sometimes we put a little
bit of chocolate milk. I was [*12] next to him
Meyers recalled that when he first entered the watching TV and he started choking. I got scared
residence, Cogburn [*10] was performing CPR on K.C. so turned him around and started to pat him on
and he immediately took over. K.C. did not have any back holding my hand under stomach and he
obvious signs of trauma, but he described him as started . . . like what it seemed to be a seizure. I
"pulseless and apneic" (not breathing). Meyers also carried him to couch laid him flat. I put my finger in
recalled K.C. was "cold to the touch," "pale," and "very between his teeth so he wouldn't bite his tongue
cyanotic," with blueness of the lips, nail beds, and eye and he would breathe slow and big for a little bit but
area, which he explained indicated a person "not been without any function. I pressed down -- down on his
breathing for a while" and was "becoming hypoxic" due stomach a little and milk came out of his mouth and
to a low concentration of oxygen in their blood. He nose. So I got scared and called the police --
explained it is difficult to estimate how long it might take looked like he stopped breathing. So I gave him
to become cyanotic but noted that it could be "minutes." CPR and I was doing that milk kept coming out his
mouth -- out his nose twice he would breathe one
At the scene, Meyers and his partner spoke with
or twice, so I didn't stop while two cops got there.
Contreras, who relayed that K.C. had been choking.
They made the following written report:
Father of patient informs EMS that his baby had
(3) Treatment at Winkler County Hospital
been congested for a couple of days. While feeding
his son milk and oatmeal, he observed what the Bryan Bautista, an emergency room nurse, was the first
father claimed as the baby choking. The father person to triage K.C. at the hospital on March 1.
noted the patient going unresponsive, and that's Bautista testified that he also saw K.C. in the
when he called 911. emergency room during his February 12 visit, recalling
the baby suffered from nonlife threatening viral-type
Meyers, however, testified that he did not see any
symptoms and he performed a neurological examination
indication of choking, and the "child had a very clear
of the baby, which yielded a Glasgow Coma score of
airway." Meyers did not see "any indication of food in
15—the highest possible score—meaning he was
the child's mouth or airway or on his clothes," which
neurologically sound and had no signs [*13] of trauma.
struck him as odd, [*11] as food typically comes out if a
However, when he encountered K.C. in the emergency
patient has cardiac arrest. He opined that K.C. did not
room on March 1, K.C. had a Glasgow Coma score of
have any food in his stomach at the time.
3—the lowest possible score. Bautista observed K.C.
Meyers recalled that he and his partner departed "lifeless and nonresponsive" and "darkish blue." K.C.'s
pupils were fixed and dilated with no reaction to light.
 Page 10 of 26
2025 Tex. App. LEXIS 2121, *13

Bautista recalled K.C.'s temperature was significantly

low, at 91.3 degrees Fahrenheit, on arrival. Bautista C. Treatment at UMC and testimony from the UMC
placed a nasogastric tube through K.C.'s nose into his physicians
stomach, observing processed blood in his stomach
where he "ingested blood," which he explained was At UMC, K.C. was seen by both Kasemsri, who
consistent with internal injuries. practices pediatric intensive care, and Dr. Usiakimi
Igbaseimokumo, a board-certified specialist in pediatric
An emergency room physician was able to intubate the neurosurgery specializing in treating traumatic brain
baby and found no sign of airway obstruction. They injuries in children. [*16] Igbaseimokumo testified that
were able to stabilize K.C. They stopped CPR upon he reviewed K.C.'s brain scans and found them
achieving "spontaneous circulation." However, they "alarming," showing swelling and hemorrhaging in the
were still required to continue with "manual bag valve brain, with K.C.'s brain appearing to be dying (i.e., losing
ventilation" to maintain his breathing, as they did not gray and white matter and becoming "dark and
have a "machine." mushlike") due to the lack of oxygen to the brain
(hypoxia) and lack of blood flow (ischemia). He
attempted to relieve the pressure on K.C.'s brain by
(4) Contreras's statements at UMC draining the fluid, but K.C. remained unresponsive.
According to Igbaseimokumo, the blood in his brain was
Because Winkler County was unable to provide K.C. the fresh, indicating an acute and severe injury, requiring "a
necessary level of care, at 2:08 p.m. he was airlifted to hard, high, severe force" to inflict.
the pediatric intensive care unit at University Medical
Center in Lubbock. Both he and Kasemsri agreed that, based on their
review of CT scans and MRI imaging, K.C. suffered
One of K.C.'s treating physicians, Dr. Thivakorn from subdural and subarachnoid brain hemorrhages,
Kasemsri, testified that [*14] upon admission to UMC, hemorrhaging of the ligaments of the spine, and retinal
he and his staff received a patient history from K.C.'s hemorrhaging, all of which they opined was consistent
"caretaker." The narrative they recorded indicated that with the rapid acceleration and deceleration of the head
Contreras was no longer claiming that K.C. had been and neck, commonly referred to as "shaken baby
choking, but claimed for the first time K.C. had vomited.8 syndrome." Kasemsri explained that when a baby is
Subsequently during a patient consultation on March 2 shaken, which he described as an "acceleration-
or 3, 2020, Contreras provided an additional narrative, deceleration mechanism," the "brain is sloshing in [the
this time claiming K.C. suffered a seizure but omitting baby's] head," and given the size of an infant's head in
any reference to K.C. having choked or vomited.9 relation to his body, the neck and spine [*17] also have
a chance of being injured, which was the case with K.C.
8 The
Thus, he believed that although K.C.'s injuries could
narrative stated:
have been caused by a combination of shaking and
7mo previously healthy with URI x 2 weeks who went to bed blunt force trauma, given K.C.'s neck and spinal injuries,
well last night and woke up normally. Mother fed him and he blunt force trauma alone could not have caused them. In
took the feed as usual. She placed him on infant Boppy pillow addition, Igbaseimokumo explained that choking would
in front of the TV and left him with father to go to the grocery not likely cause the type of brain, spinal, or retinal
store~11:00. Subsequently, his father saw him whining and
hemorrhaging that K.C. suffered; instead, these
thought he was hungry and fed him again. Father picked him
hemorrhaging events as well as the swelling in K.C.'s
up to burp him and he began to vomit and went limp. His eyes
rolled back and he went limp. Father tried to splash water on
him without response. He was gasping some and had began thought he was gassy." It was then the father noticed the
[sic] to have cyanosis around his lips. Father began rescue patient "start to seize and his eyes started rolling to the back of
breathing [until paramedics arrived]. his head and he went limp." The father states that he then
9 The narrative stated: placed his finger in the infants mouth to prevent him from
choking "and he bit down really hard." The father then noticed
Father states that patient has "been sick" for the last 3 weeks the child to be "limp and turn blue." He then placed him on the
and has been more fussy/spitting up more [*15] than usual. couch where he started to perform rescue breaths where the
He was in his usual state of health on 3/1/2020 until his noon child "would turn pink then blue again, so I kept giving him
time feed. Father states he placed him sitting up in his boppy CPR and called [Samantha] when he didn't keep breathing."
pillow on the ground when he noticed the patient gagging. He He states that this incident started at noon and he called
then picked up the infant and started to burp him because "I [Samantha] at 12:33 p.m. and then [called] EMS.
 Page 11 of 26
2025 Tex. App. LEXIS 2121, *17

brain were injuries associated with "shaking" a child. the more common way that we see those" types of
injuries occur, noting there was no skull fracture of any
Dr. Patti Patterson, a UMC physician board certified in kind.
general pediatrics and child abuse pediatrics, did not
treat K.C. but testified at trial that she reviewed K.C.'s Greenberg submitted her findings at a formal
medical records. Based on the constellation of injuries, conference with a group of doctors called a "critical case
she concluded K.C. suffered from "inflicted trauma," review." The consensus from the review was that K.C.'s
which could have been caused by blunt force trauma, death was a homicide and that he died as the result of
"shaking," or both. In particular, Patterson found it head and neck injuries, as documented in Greenberg's
significant that K.C. had ligament injuries in his neck, autopsy report.
which was consistent with rapid acceleration and
deceleration of the head.
E. Testimony regarding the timing of K.C.'s injuries
On March 3, 2020, two days after his admission to
UMC, K.C. was declared brain dead. He was removed At trial, Appellant argued that K.C.'s injuries did not
from life support that afternoon, and [*18] his organs necessarily occur when he had sole access to the child
were harvested for donation. and that they could have occurred before Samantha left
that morning. Although at trial, the medical [*20]
witnesses agreed K.C's injuries resulted from abusive
D. Autopsy results head trauma, they did not all agree on when the trauma
occurred or when an individual in K.C.'s situation would
Dr. Tasha Greenberg, the Deputy Chief Medical have become symptomatic. Due to the fresh blood in
Examiner for the Tarrant County Medical Examiner's K.C.'s brain, Igbaseimokumo testified, the "injury that
Office, performed an autopsy. Based on K.C.'s medical caused that blood to occur was within hours . . . to days
records and her autopsy findings, Greenberg of the impact or of the original injury." Given K.C.'s
determined K.C. suffered from head and neck injuries, severe brain deterioration on admission, he believed the
and the cause of death was homicide. She observed "no injuries likely occurred at least six to 24 hours before he
congenital anomalies" or "birth defects" contributing to was admitted. He acknowledged, however, that
K.C.'s death. Greenberg observed that K.C.'s organs depending on the severity of the injury, K.C. could have
had been harvested for transplant, including his heart, become symptomatic in a much shorter time span.
which ruled out any heart abnormalities. Greenberg
further observed "normal occipital skull development Disagreeing with Igbaseimokumo, Patterson opined that
with no fractures." She ordered genetic testing and children with the type of injuries K.C. suffered "almost
found no "clinically significant variants in those genes" always become immediately symptomatic"; they will
that could have contributed to his injuries. display symptoms such as seizures, very often stop
breathing, and may suffer from "acute decompensation."
Greenberg noted evidence of swelling inside K.C.'s She believed this does not take "hours" to occur, rather
brain, a subdural hemorrhage of the brain (or blood in it occurs "very, very quick[ly]." Patterson confirmed,
the subdural space in the brain), hemorrhaging in the however, her inability to pinpoint with certainty exactly
spinal cord and cervical nerve root, a subarachnoid when K.C.'s injuries occurred.
hemorrhage of the brain, and retinal hemorrhaging.
Greenberg ruled out the possibility that K.C.'s injuries Acknowledging that "opinions vary between doctors,"
resulted from choking, as one would not expect to see Kasemsri agreed with Patterson [*21] that depending
such hemorrhaging from a choking incident. [*19] She on the severity of a child's injuries, the child could
also ruled out an aneurysm, a stroke, and that K.C.'s display symptoms such as having fixed and dilated
prior health issues in the weeks leading up to his death pupils almost "instantaneous[ly]." Kasemsri believed
could have caused his symptoms, opining that his that an infant with K.C.'s injuries would appear
illness and subsequent recovery and behavior "does not "moribund," or near death, and would not be acting
fit with the level of these injuries that ultimately led to "normally" after the injuries were sustained.
[his] death." According to Greenberg, the only remaining
possibilities were blunt force trauma to the head, rapid Finally, Greenberg opined that K.C. would have become
acceleration and deceleration of the head or neck symptomatic "at or very near the time of the injuries,"
(violent shaking), or a combination of the two. She i.e., "immediate[ly]." Had K.C. been injured earlier in the
indicated that, of the two, "shaking as a mechanism is morning, she opined, he would not have been "acting
 Page 12 of 26
2025 Tex. App. LEXIS 2121, *21

normally" and would not have been able to take a bottle, In the second portion of the interview, after K.C. had
watch television, or "interact[] on a FaceTime call." She passed away, Contreras changed his statements
explained that in cases of a significant head injury that regarding Samantha, and began to broach the idea that
ultimately leads to death, there can be a variety of Samantha might have been responsible for K.C.'s
symptoms, such as the immediate loss of injuries, asserting for the first time that Samantha had
consciousness, vomiting, and seizures, all of which "anger issues" and seemed to become more easily
"could present . . . very rapidly." She noted that a frustrated with K.C. since they moved to Kermit.
significant loss of temperature, such as K.C.'s, could However, he acknowledged that he never saw
occur in less than an hour in a case of severe injuries. Samantha physically discipline or harm K.C.

When asked if Samantha could have done something to

F. The CPS interview K.C., Contreras said he "didn't know" but she was the
only other person who had watched K.C. since they
Medical personnel at UMC contacted Child Protective moved to Kermit, and all he knew was he "didn't do it."
Services (CPS) after examining K.C. In a recorded Contreras also said he had [*24] been told by the UMC
interview, which was played for the jury, two CPS doctors that K.C.'s injuries could have occurred up to
investigators, [*22] Luis Ojeda and Lillian Peña, three days before he became symptomatic, and he
interviewed Contreras at the hospital on March 3, 2020. therefore questioned whether K.C. could have been
The interview is in two parts, as it was interrupted when injured before Samantha left for the store that morning,
Contreras left after he received a text saying they were claiming she left in a hurry and was abrupt while K.C.
taking K.C. off life support. It resumed 40 minutes later was fussy and crying that morning. When the
upon his return. investigators posited that it was either Samantha or him
who hurt K.C., he acknowledged that it could have been
In the first part of the interview, Contreras maintained Samantha, claiming he would never have hurt K.C.
that neither he nor Samantha had ever been physically However, when the investigators informed Contreras of
abusive toward K.C., describing K.C. as a "healthy," the doctors' belief that K.C. suffered a brain bleed from
"good," and "very happy" baby. Although K.C. seemed being shaken, Contreras stated for the first time that
fine the day before, he reported that K.C. seemed to be after K.C. went limp, he did "shake him to see if he
"fussy" and "really sick" when Samantha left for the would respond."
store the morning of March 1. Believing he might be
hungry, Contreras gave K.C. a four-ounce bottle of During the second portion of the interview, Contreras
"Similac, oatmeal and a little bit of chocolate milk," a reported for the first time that his phone battery was
combination he frequently gave K.C. dead when K.C. first became symptomatic and that he
had to charge it before he could call Samantha and/or
According to Contreras, K.C. started to vomit and his 911. Contreras estimated that K.C. stopped breathing
stomach felt "bloated," so Contreras started to burp him. around 12:00 or 12:10 p.m. and that he did CPR for ten
He then reported that K.C. began to "tense up," and he minutes while his phone was charging and while he was
believed K.C. was having "a seizure" and bit down on attempting to call Samantha, before he called 911.
his tongue. Contreras said he put his finger in K.C.'s
mouth to prevent him from biting his tongue off, and
while holding him, K.C. went "limp" and stopped G. Winkler County Sheriff's Office's
breathing. investigation [*25]

Sharing his phone log [*23] with the investigators, On March 2, 2020, the Winkler County Sheriff's Office
Contreras explained that he immediately tried to call opened a criminal investigation after being informed that
Samantha, thinking she could come home and take K.C.'s injuries may have been caused by "shaken baby
them to the hospital, as she had their only car. But when syndrome." The chief investigator, Deputy Leon Stroud,
she did not answer, he called 911. Contreras reported went to Samantha and Contreras's residence on the
that he also began performing CPR to try to revive K.C., evening of March 3 after returning from Lubbock
and while K.C. initially responded, he then "all of a following K.C.'s passing. When they arrived, Samantha
sudden . . . started turning blue." According to and her mother, Lisa, were there. He interviewed both of
Contreras, the ambulance arrived shortly thereafter, and
he ran outside to greet the paramedics who took over
K.C.'s care.
 Page 13 of 26
2025 Tex. App. LEXIS 2121, *25

them.10 needed to be charged before he could call for help when

K.C. became symptomatic. Breeding gave the phone to
Because Samantha had already told Contreras he Keri Kagawa, a criminal intelligence analyst with the
needed to move out, Contreras arrived shortly thereafter Texas Attorney General's Office, who testified that
to collect his belongings. He told the deputy he intended based on the "device event history," Contreras's phone
to stay with his brother in Orla, Texas. According to was never powered off on March 1, 2020. He provided a
Stroud, Contreras did not seem upset like the other comprehensive phone log of the various events that
family members. He told Stroud he was collecting his occurred that morning, beginning at 11:36 a.m., noting
video games so he would not be "bored" at his brother's that although there was "passive activity" on the phone
house. Concerned about Contreras leaving town, Stroud during that time with incoming messages, 12:16 p.m.
asked him to come to the station for an interview. He was the first "user-directed" activity. This user-directed
agreed. The deputy acknowledged he did not "secure" activity consisted of a series of calls to Samantha
the residence before leaving. followed by a 911 call at 12:19 p.m. and subsequent text
messages to Samantha.

(1) Winkler County Sheriff's Office's interview Breeding acknowledged that he did not obtain
Samantha's phone for testing, explaining that she
During the recorded interview, which was played for the allowed him to view her messages and call log and he
jury, Contreras reported a similar series of March 1st determined her phone "was of no evidentiary value." In
events as he had relayed to the CPS addition, Cogburn explained that Samantha was not
investigators. [*26] He again reported that K.C. was considered a suspect at the time because Contreras
crying when Samantha left for the store and appeared had been home alone with K.C. when he became
"sick" and "cranky." Contreras said that while attempting symptomatic, and she believed [*28] the medical
to give K.C. a bottle, K.C. threw up, then while burping evidence demonstrated that his symptoms would have
him, K.C. had a "seizure," went limp, and stopped manifested immediately after he was injured. But
breathing. When Stroud asked Contreras if he thought Cogburn did obtain video footage from the store where
K.C. had been choking (as Contreras had originally Samantha had been shopping to verify the timeline
reported), Contreras did not respond. Instead, he stated: during which she claimed to be away from the home.
"Well, he had a seizure." Contreras repeated his claim
that he could not call for help immediately because his
phone battery had died and that he had to charge it (3) Search of the family residence
before calling. He said he called Samantha first about
ten times before he called 911. According to Contreras, On March 4, 2020, Cogburn and Stroud returned to the
he was performing CPR the entire time. He again residence to conduct a search and take photographs.
repeated that he shook K.C. "a little" to try to revive him. Cogburn testified that she looked for but was unable to
find the bottle Contreras claimed he had been using to
Contreras denied harming K.C., and when confronted feed K.C. when the baby began choking. She also
with Stroud's statement that it had to have been him or collected the clothes K.C. was wearing when he was
Samantha, Contreras said he did not want to think it transported to the hospital, which included a red onesie
was Samantha because he loves her, but she did have with a Nike emblem and white socks. She sent them to
a "bad temper." Contreras maintained that he "never a crime lab in El Paso for testing.
gets angry."

(4) Initial DNA testing of K.C.'s clothing

(2) Testing of Contreras's cell phone
Jessica Gonzales-Peña, an employee of the Texas
Texas Ranger Phillip Breeding became involved in the Department of Public Safety Crime Laboratory in El
case shortly thereafter. At Breeding's request, [*27] Paso testified that she received the red onesie and
Contreras provided his cell phone for the purpose of white socks in an evidence bag on September 19, 2020.
determining whether his phone had been dead and Gonzales-Peña reported that the items tested
"presumptive positive" for the presence of blood, and
10 Stroud she forwarded them to Christine Ceniceros, a DNA
reported that when he first arrived at the residence,
Samantha's mother believed he was there because she had analyst at the crime lab, for testing.
choked Contreras when they were at the hospital in Lubbock.
 Page 14 of 26
2025 Tex. App. LEXIS 2121, *28

Ceniceros [*29] testified that she received the above-

described items for testing and obtained a blood card H. Contreras's defense
from K.C. and buccal swabs from both parents.
Ceniceros concluded that the red onesie and the socks Contreras did not call any witnesses at trial. During
had a DNA mixture belonging to K.C. and another opening arguments and cross-examination of various
individual. She excluded the possibility that the other witnesses, defense counsel focused on other possible
individual's DNA belonged to Samantha, and causes for K.C.'s injuries, including his illness in the
established that it was 93% more likely to be weeks before his death.13 During closing argument,
Contreras's DNA than another unrelated unknown however, defense counsel conceded that "[n]obody is
individual. disputing that there is abusive head trauma" and "[t]hat's
what the evidence shows." But he argued there was
insufficient evidence to establish Contreras inflicted
(5) Collection of additional clothing and further DNA the [*31] injuries. He conceded that Contreras was
testing alone with K.C. when he became symptomatic, but he
pointed to Igbaseimokumo's testimony that he believed
Although K.C. was wearing the red onesie when he was K.C.'s injury occurred "6 hours to 12 to 24" before he
transported to the hospital, at some point, Samantha became symptomatic—meaning that it could have
recalled that K.C. had been wearing a gray onesie with occurred before Contreras was alone with him. Defense
black trim which also bore a Nike emblem when she left counsel argued that although he was not accusing
for the store on March 1. Unbeknownst to Samantha, Samantha of murdering her son, the evidence
the gray onesie was in a laundry hamper in K.C.'s room, demonstrated she was alone with K.C. during the
along with a black tank top belonging to Contreras. "window" of time when the injury could have occurred.
Because she was emotionally unable to sort through And he maintained that the State had not presented any
K.C.'s things following his death, approximately six evidence to exclude the possibility that she, rather than
months later when she decided to move to Ohio, her Contreras, caused K.C.'s injuries.
father and stepmother came from Carlsbad to pack up
K.C.'s things, including the clothing in the hamper. Tricia Defense counsel also argued the State did not meet its
Soals, Samantha's stepmother, testified that, at burden of establishing that Contreras was guilty of
Samantha's [*30] request, she did not wash any of the knowingly causing injury to K.C. by omission based on
dirty clothes in the hamper. In March 2023, she was his delay in calling for medical assistance after K.C.
asked to provide the items from the hamper to law became symptomatic. He conceded that there was
enforcement. "plenty of evidence" showing Contreras did delay in
calling for help but argued that, at most, the delay was
Cogburn testified that she collected the items from "reckless."
Soals at her home in Carlsbad and sent them to the
crime lab in El Paso for DNA testing.11 Gonzales-Peña
testified that she tested the gray onesie in May 2023, I. Jury charge and verdict
but it was negative for blood stains. However, the black
tank top was positive for possible blood stains in four The trial court instructed the jury on three lesser-
spots.12 Ceniceros conducted DNA testing on the stains included offenses to the felony murder charge,
and determined that two belonged solely to K.C. and the explaining that if the jury did not find Contreras [*32]
other two had DNA from both K.C. and Contreras. She guilty of felony murder, it could find him guilty of the
excluded Samantha as a contributor to any of the four lesser-included offenses of injury to a child, by causing
stains.
13 At trial, defense counsel also questioned the medical
witnesses about a finding in a pathologist report that K.C. had
11 When
an amino acid that was consistent with being a carrier of
she conducted her initial investigation into K.C.'s
"Canavan disease," a rare genetic disease that affects the
injuries, Stroud testified, she was not aware that K.C. had
brain's white matter and causes severe complications and
been wearing a different onesie before Samantha left for the
early death. However, both Greenberg and Patterson testified
store.
that they did not find any evidence that K.C. suffered from
12 Gonzales-Peña was also given two other socks, a blanket, Canavan disease, and that his injuries and symptoms were
and a boppy pillow cover that Soals had retrieved from the not consistent with a finding that he died as a result of that
residence, which all tested negative for any blood stains. disease.
 Page 15 of 26
2025 Tex. App. LEXIS 2121, *32

K.C.'s injuries either (1) intentionally or knowingly, (2) because it improperly allowed the State to use the same
recklessly, or (3) with criminal negligence. The court acts that constituted injury to a child to establish he
also instructed the jury that although Contreras was committed an act clearly dangerous to human life that
charged with injury to a child by omission committed resulted in K.C.'s death in the commission of that
knowingly, it could find him guilty of the lesser-included offense to support his felony murder conviction.
offense of injury to a child by omission committed
recklessly.
A. Standard of review
The jury found Contreras guilty of felony murder as
charged in the indictment, as well as committing injury HN1[ ] "A jury-charge-claim analysis involves two
to a child by omission (knowingly). The jury sentenced steps: First, we determine whether the charge is
him to 42 years for felony murder and 30 years for injury erroneous. If it is, then we must decide whether the
to a child by omission. The trial court ordered the appellant was harmed by the erroneous charge."
sentences to run concurrently. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App.
2022) (citing Wooten v. State, 400 S.W.3d 601, 606
Contreras filed a motion for new trial, contending there (Tex. Crim. App. 2013); Ngo v. State, 175 S.W.3d 738,
was insufficient evidence to support the jury's verdict 744 (Tex. Crim. App. 2005) (en banc)). Here, we find
and he was denied his right to a fair trial because after that there was no error in the jury charge. Therefore, we
trial one of the jurors revealed he served on the grand need not conduct a harm analysis.
jury that initially indicted Contreras in 2020 on reckless
injury to a child. Following an evidentiary hearing at
which the juror testified, the trial court denied the B. The jury charge correctly stated the law on felony
motion. Appellant appeals from both judgments [*33] of murder
conviction.
HN2[ ] The felony murder statute provides that a
person commits murder if he
II. ISSUES ON APPEAL
commits or attempts to commit a felony, other than
On appeal, Appellant raises five issues, contending: (1) manslaughter, and in the course of and in
the trial court erred in denying his motion for a directed furtherance of the commission or attempt, or in
verdict on the felony murder charge because the immediate flight from the commission or attempt, he
evidence was legally insufficient to support that charge; commits or attempts to commit an act clearly
(2) the trial court erred in instructing the jury that it could dangerous to human life that causes the death of
use the offense of injury to a child as the underlying an individual.
felony in a felony murder case; (3) the trial court erred in
denying his motion for a directed verdict on the injury-to- Contreras v. State, 312 S.W.3d 566, 583 (Tex. Crim.
a-child-by-omission charge because the evidence was App. 2010) (quoting Tex. Penal Code Ann. §
legally insufficient to support that charge; (4) the trial 19.02(b)(3)). To establish guilt, "the State must prove (1)
court erred in failing to grant a new trial based on the an underlying felony, (2) an act clearly dangerous to
allegation that a petit juror had also served on a grand human life, [*35] (3) the death of an individual, (4)
jury that had previously indicted Appellant; and (5) his causation (the dangerous act causes the death), and (5)
attorney violated his Sixth Amendment right to assert his a connection between the underlying felony and the
innocence during closing argument by conceding his dangerous act ('in the course of and in furtherance of . .
guilt to injury to a child by omission. . or in immediate flight from')." Id. at 583-84.

In the indictment, the State charged felony murder,

III. INJURY TO A CHILD MAY SERVE AS THE UNDERLYING using injury to a child as the underlying felony, alleging
FELONY IN FELONY MURDER Contreras committed that offense by either inflicting
blunt force trauma to K.C.'s head or shaking K.C. The
We first address Contreras's Issue Two, in which he State further alleged that, in the commission of injury to
contends the jury charge on the felony murder count a child, Contreras committed an act clearly dangerous
was in error for two related reasons: because it to human life, using those same acts, i.e., that he either
improperly instructed that injury to a child by act could inflicted blunt force trauma to K.C.'s head or shook K.C.,
be the [*34] underlying felony in felony murder and resulting in his death. The trial court instructed the jury
 Page 16 of 26
2025 Tex. App. LEXIS 2121, *35

according to the indictment: to human life" that resulted in K.C.'s death. And, he
contends, the jury charge erroneously failed to instruct
Now, if you find from the evidence beyond a the jury that the State was required to prove he
reasonable doubt that on or about the 1st day of committed a separate act that was clearly dangerous to
March, 2020, in Winkler County, Texas, [Contreras] human life to support felony murder. Contreras's
did then and there commit or attempt to commit the argument runs afoul of well-established Texas law.
felony offense of Injury to a Child, by intentionally, HN4[ ] The Texas Court of Criminal Appeals has
knowingly, recklessly, or with criminal negligence, expressly held that in a felony murder prosecution, the
causing serious bodily injury to [K.C.], a child same acts alleged to constitute [*38] the underlying
younger than 14 years of age, by striking the head felony offense of injury to a child may be used to
of [K.C.] with a blunt [*36] object, by causing the support the allegation that the defendant engaged in
head of [K.C.] to strike a blunt object, or by causing acts clearly dangerous to human life. See Johnson, 4
the rapid acceleration or deceleration of the head of S.W.3d at 254-58 (recognizing that "a defendant may be
[K.C.], and while in the course of and in furtherance convicted of the offense of felony murder when the
of the commission of said felony offense underlying felony is injury to a child and the acts that
[Contreras] committed or attempted to commit an constitute that offense are the same acts that constitute
act clearly dangerous to human life; to wit, striking 'an act clearly dangerous to human life'").
the head of [K.C.] with a blunt object, causing the
head of K.C.] to strike a blunt object, or causing the Urging us to reach a different result, Contreras relies on
rapid acceleration and deceleration of the head of Rodriguez, 454 S.W.3d at 507. Rodriguez, however, is
[K.C.] which caused the death of an individual; inapposite, as it involved a situation in which the State
namely, [K.C.], then you will find [Contreras] guilty attempted to use an "omission," rather than an "act," to
of Felony Murder as charged in the indictment, and establish the defendant's guilt of felony murder. There,
you do not need to consider whether [Contreras] is the defendant was charged with felony murder in the
guilty of the lesser included offenses. death of her seven-week-old baby who died from
malnutrition and dehydration, using the offense of injury
Without citing legal authority, Contreras first maintains to a child as the underlying felony offense. Id. at 505.
the jury charge was in error because injury to a child The court noted that although injury to a child may be
cannot be the predicate felony in a felony murder case. committed by either an act or an omission, "the felony
As the State points out, his argument is contrary to well- murder statute makes clear that an 'act clearly
established Texas law. HN3[ ] "[U]nder the plain dangerous to human life' must be the cause of the death
language" of the felony murder statute, "any felony can of the victim." Id. (citing Tex. Penal Code Ann. §§
serve as the underlying felony" except manslaughter 19.02(b)(3), 22.04(a)). The State never alleged the
and lesser-included offenses of manslaughter, if the defendant committed any acts that were clearly
victim's death occurred during the commission [*37] of dangerous to human [*39] life, nor was there any
that felony. See Johnson v. State, 4 S.W.3d 254, 255 evidence that she committed any such affirmative acts.
(Tex. Crim. App. 1999). Injury to a child is not a lesser- Id. The court therefore held that this element of the
included offense of manslaughter. Id. at 258. Because offense of felony murder was not met. Id. at 507-08.
injury to a child is not listed as an exclusion in the felony
murder statute, it "can serve as the underlying felony for In contrast, here the State's theory of guilt was that
felony murder" if the child's death occurred as a result of Contreras committed affirmative acts (inflicting blunt
the acts constituting injury to a child. See Rodriguez v. force trauma to K.C.'s head or shaking him) that
State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014), on constituted injury to a child and were also clearly
reh'g (Feb. 25, 2015) ("It is established that an injury to dangerous to human life, resulting in K.C.'s death. The
a child offense may serve as the underlying crime in a jury was properly instructed that if it found that he
felony murder prosecution.") (citing Johnson, 4 S.W.3d committed one of those acts, it could find him guilty of
at 258; Contreras, 312 S.W.3d at 583-84). felony murder.

Contreras argues that even if the State was entitled to Contreras's Issue Two is overruled.
use injury to a child as the predicate felony underlying
the felony murder charge, it was not entitled to rely on
the same alleged acts to establish both the predicate IV. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
felony and that he engaged in an act "clearly dangerous FELONY MURDER
 Page 17 of 26
2025 Tex. App. LEXIS 2121, *39

Having concluded that the trial court properly instructed State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Thus,
the jury on the elements of felony murder, we turn to "[c]ircumstantial evidence is as probative as direct
Contreras's first issue on appeal in which he argues the evidence in establishing the guilt of an actor, and
trial court erred by not granting his motion for directed circumstantial [*41] evidence alone can be sufficient to
verdict because the State's evidence was legally establish guilt." Clayton v. State, 235 S.W.3d 772, 778
insufficient for the jury to find him guilty of felony (Tex. Crim. App. 2007) (quoting Hooper, 214 S.W.3d at
murder. Contreras contends the State presented 13).
insufficient evidence to establish that he was the one
who caused K.C.'s injuries and to rule out the possibility In conducting our review, we "look at 'events occurring
that Samantha was the responsible person. before, during and after the commission of the offense
According [*40] to Contreras, the jury would have had and may rely on actions of the defendant which show an
to speculate to conclude that he, rather than Samantha, understanding and common design to do the prohibited
caused K.C.'s injuries, and he maintains that his act.'" Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
judgment of conviction for felony murder should App. 2004) (quoting Cordova v. State, 698 S.W.2d 107,
therefore be reversed.14 111 (Tex. Crim. App. 1985) (en banc)). "Each fact need
not point directly and independently to the guilt of the
appellant, as long as the cumulative effect of all the
A. Standard of review and applicable law incriminating facts are sufficient to support the
conviction." Id.
HN6[ ] We review a trial court's ruling on a motion for
directed verdict as a challenge to the legal sufficiency of HN7[ ] The factfinder is the sole judge of weight and
the evidence. See Canales v. State, 98 S.W.3d 690, credibility of the evidence. Isassi v. State, 330 S.W.3d
693 (Tex. Crim. App. 2003) (treating defendant's 633, 638 (Tex. Crim. App. 2010). We therefore defer to
argument that the trial court erred by denying his motion the trier of fact to "resolve conflicts in testimony, to
for a directed verdict as a challenge to the legal weigh the evidence, and to draw reasonable inferences
sufficiency of the evidence). In reviewing the legal from basic facts to ultimate facts." Hooper, 214 S.W.3d
sufficiency of the evidence to support a criminal 9, 13; see also Nisbett v. State, 552 S.W.3d 244, 262
conviction, we review the evidence in the record in the (Tex. Crim. App. 2018). "The fact-finder is responsible
light most favorable to the verdict to determine whether for judging the credibility of witnesses and may find
any rational trier of fact could have found the essential credible all, some, or none of the testimony that the
elements of the offense beyond a reasonable doubt. witnesses give." Romano v. State, 610 S.W.3d 30, 34
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. (Tex. Crim. App. 2020) (citing State v. Ross, 32 S.W.3d
2781, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 853, 857 (Tex. Crim. App. 2000) (en banc)). We do not
323 S.W.3d 893, 912 (Tex. Crim. App. 2010) re-weigh evidence or substitute our judgment for that of
(establishing legal sufficiency under Jackson v. Virginia the factfinder. Williams v. State, 235 S.W.3d 742, 750
as the only standard for review of the evidence). "On (Tex. Crim. App. 2007). Thus, "[w]hen the record
appeal, the same standard of review is used for both supports conflicting inferences, a reviewing court must
circumstantial and direct evidence cases." Hooper v. 'presume that the factfinder resolved the conflicts in
favor of the prosecution' and [*42] defer to that
determination." Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012) (citing Jackson, 443 U.S. at
14 In his motion for directed verdict, Contreras did not argue 326).
there was insufficient evidence to support the jury's verdict
because of the State's alleged failure to sufficiently identify him
HN8[ ] "For the evidence to be sufficient, the State
as the person who caused K.C.'s injuries and/or its failure to
need not disprove all reasonable alternative hypotheses
exclude Samantha as the guilty party. HN5[ ] However,
that are inconsistent with the defendant's guilt." Id.; see
because we treat Contreras's argument as a challenge to the
sufficiency of the evidence, it was not necessary for him to also David v. State, 663 S.W.3d 673, 678 (Tex. Crim.
raise this argument in his motion; we are required to "always App. 2022) (the evidence need not negate every
address challenges to the [legal] sufficiency of the evidence" conceivable alternative to a defendant's guilt to be
even if not raised in the trial court. See generally Rankin v. sufficient). We therefore do not consider whether
State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) "possible alternative explanations" could support a
(recognizing that "[a] claim regarding sufficiency of the finding that the defendant was not guilty; instead, our
evidence need not be preserved for review at the trial level only focus is on "whether the inferences necessary to
and is not waived by the failure to do so").
 Page 18 of 26
2025 Tex. App. LEXIS 2121, *42

establish guilt are reasonable based upon the not rule out the possibility that Samantha caused K.C.'s
cumulative force of all of the evidence when considered injuries and ultimate demise. But as the witnesses
in the light most favorable to the verdict." Wise, 364 explained in their testimony, it was not their role to
S.W.3d at 903 (citing Hooper, 214 S.W.3d at 13). determine who caused K.C.'s injuries; the treating
physicians were there to try to save K.C.'s life, while the
medical examiner was tasked with determining how
B. Applicable law K.C. died. Accordingly, their failure to identify the
perpetrator does not render the evidence legally
HN9[ ] Because "[f]elony murder is an unintentional insufficient.
murder committed in the course of committing a felony,"
Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. Contreras also claims the only evidence presented at
App. 2004) (en banc), the State must prove the trial that Samantha did not cause K.C.'s injuries came
elements of the underlying felony (including the culpable from her own self-serving testimony. Given its self-
mental state); but as to the resulting murder, no serving nature, he contends, her testimony had "no
culpable mental state is required. Lomax v. State, 233 evidentiary value."15 Contreras then concludes that
S.W.3d 302, 306-07 (Tex. Crim. App. 2007). "Injury to a because there was no other direct evidence to exclude
child is a result-oriented offense requiring a mental state Samantha as the guilty party, the State failed to meet its
that relates not to the specific conduct but to the result burden of proving beyond a reasonable doubt that he
of that conduct." Williams v. State, 235 S.W.3d 742, 750 was guilty of causing K.C.'s injuries. There are several
(Tex. Crim. App. 2007). A person commits injury to a problems with this argument.
child in scenarios such as the one before us "if he [*43]
intentionally, knowingly, recklessly, or with criminal Though Contreras contends Samantha's testimony
negligence[] by act . . . causes to a child . . . (1) serious
bodily injury; (2) serious mental deficiency, impairment,
15 Contreras also argues Samantha's testimony was "tainted"
or injury; or (3) bodily injury." Tex. Penal Code Ann. §
22.04(a). A child, for the purposes of this offense, is a because Cogburn shared a copy of Contreras's written
person 14 years old or younger. Id. § 22.04(c)(1). The statement before she made her own statement to the
culpable mental state may be inferred from the acts of investigators, which he complains was improper. At trial, his
attorney criticized law enforcement's investigation, also
the accused or the surrounding circumstances, which
faulting them for not considering Samantha as a possible
include words and conduct. Ledesma v. State, 677
suspect, for failing to collect her cell phone, and for failing to
S.W.2d 529, 531 (Tex. Crim. App. 1984).
collect other evidence from the family's residence in a timely
manner. It was the jury's role to consider these alleged
deficiencies in law enforcement's investigation in determining
C. Analysis whether the State met its burden of proving Contreras's guilt.
Our role is limited to determining whether the State presented
Although during trial Contreras initially sought to raise sufficient evidence to support the jury's finding of guilt; we
an inference that K.C.'s injuries resulted from therefore do not review the "sufficiency of the police
preexisting conditions, he appears to concede on investigation" or speculate about what evidence law
appeal, as his attorney did during closing argument, that enforcement might have uncovered had it conducted the
K.C.'s injuries resulted from some form of trauma to investigation differently. See Badger v. State, No. 02-18-
K.C.'s head. The argument before us focuses solely on 00475-CR, 2019 Tex. App. LEXIS 9037, 2019 WL 5089761, at
whether the State presented legally sufficient evidence *5 (Tex. App.—Fort Worth Oct. 10, 2019, pet. ref'd) (mem. op.,
to support the jury's finding that Contreras was the one not designated for publication) (citing Delbrey v. State, Nos.
who inflicted the trauma on K.C. Stated otherwise, he 05-18-00790-CR, 05-18-00791-CR, 2019 Tex. App. LEXIS
7022, 2019 WL 3773851, at *4 (Tex. App.—Dallas Aug. 12,
questions whether the State presented sufficient
2019, no pet.) (mem. op., not designated for publication) ("Our
evidence to exclude Samantha as the one who
review concerns the sufficiency of the evidence presented at
committed the acts responsible for K.C.'s injuries.
trial . . . rather than the sufficiency of the police investigation,
and we do not speculate about evidence the State did not
In making this argument, Contreras finds it significant
present.")); see also Merritt v. State, 368 S.W.3d 516, 526
that his attorney asked each of the medical witnesses at
(Tex. Crim. App. 2012) (concluding that appellate court
trial whether [*44] they could determine if K.C.'s injuries "improperly used a 'divide and conquer' approach, separating
were caused by a male or a female, and they each piece of evidence offered to support Appellant's
unanimously responded in the negative. Contreras conviction, followed by speculation on the evidence State did
further points to Greenberg's testimony that she could not present").
 Page 19 of 26
2025 Tex. App. LEXIS 2121, *44

had [*45] no "evidentiary value," he cites no authority El Paso 2000, pet. ref'd). While Contreras does not deny
for that proposition. And the law in this context holds he had sole access to K.C. when he became
otherwise. HN10[ ] A jury is free to determine the symptomatic, he highlights that Samantha was
credibility of a witness's testimony, and the jury may admittedly alone with the child the same morning from
therefore believe a witness's testimony even if it may be the time she and K.C. woke up at 8:00 until she left for
considered "self-serving." See Jackson v. State, No. 03- the store at 11:00—approximately an hour before K.C.'s
18-00417-CR, 2020 Tex. App. LEXIS 3772, 2020 WL symptoms appeared. And because Igbaseimokumo
2203306, at *3 (Tex. App.—Austin May 6, 2020, pet. testified at trial that, based on the extent of deterioration
ref'd) (mem. op., not designated for publication) in K.C.'s brain, he believed K.C.'s [*47] injuries
(rejecting appellant's claim that the jury could not rely on occurred "6 hours to 12 to 24" before he became
a witness's testimony given its "self-serving" nature, as it symptomatic, K.C. could have been injured earlier that
was within the jury's exclusive province to determine the morning while in Samantha's care. However, as set forth
witness's credibility); see also Steele v. State, No. 01- above, the three other medical experts who testified at
06-00714-CR, 2007 Tex. App. LEXIS 10051, 2007 WL trial disagreed with Igbaseimokumo's opinion. They
4465583, at *3 (Tex. App.—Houston [1st Dist.] Dec. 20, believed that a child with the type of injuries K.C.
2007, pet. ref'd) (mem. op., not designated for suffered would have become symptomatic almost
publication) (rejecting appellant's claim that witness's immediately after he was injured. Accordingly, the jurors
"self-serving" testimony was outweighed by his and were free to discount Igbaseimokumo's conflicting
other witness's testimony, as it was within the jury's testimony and instead give credence to the other
province to determine who to believe). physicians' testimony whose timeline supported the
State's theory that K.C.'s injuries occurred while
Additionally, the record contains ample other Contreras had sole access to the child, and we are
circumstantial evidence upon which the jury could rely in required to assume the jurors did just that. See Tena,
inferring that Contreras caused K.C.'s injuries. See 2017 Tex. App. LEXIS 7137, 2017 WL 3224961, at *7
Weaver v. State, No. 02-10-00333-CR, 2011 Tex. App. (recognizing that where there was conflicting medical
LEXIS 7569, 2011 WL 4345292, at *7-8 (Tex. App.— evidence regarding the timing of the child-victim's
Fort Worth Sept. 15, 2011, pet. ref'd) (mem. op., not injuries, "[t]he jury was free to, and we must assume
designated for publication) (rejecting appellant's they did, discount the conflicting medical testimony that
argument that there was legally insufficient evidence to Appellant emphasizes to break the State's timeline").
support his conviction because there was no "direct Given the medical testimony regarding the timeline of
evidence" proving that he was the "guilty party" where K.C.'s injuries, a rational trier of fact could have
the State presented ample circumstantial [*46] concluded that K.C. was injured while he was in
evidence to support an inference that he committed the Contreras's sole care. Id.; see also Cardenas, 2022 Tex.
offense). HN11[ ] Proving the cause of a child's injury App. LEXIS 2881, 2022 WL 1284540, at *5-6
or death "often depends on circumstantial evidence (upholding [*48] guilty verdict of injury of a child where
because 'there is rarely direct evidence of exactly how medical testimony regarding the timeline of child's
the child's injuries occurred.'" See Cardenas v. State, injuries supported a finding that defendant had sole
No. 08-20-00053-CR, 2022 Tex. App. LEXIS 2881, access to the child at the time of the injuries and
2022 WL 1284540, at *4 (Tex. App.—El Paso Apr. 29, contradicted his theory that another individual was
2022, no pet.) (not designated for publication) (citing responsible for causing the injuries); Gutierrez v. State,
Williams v. State, 294 S.W.3d 674, 683 (Tex. App.— No. 05-07-01330-CR, 2009 Tex. App. LEXIS 3296,
Houston [1st Dist.] 2009, pet. ref'd)). Thus, as Contreras 2009 WL 1335154, at *3 (Tex. App.—Dallas May 14,
acknowledges, when a child is injured in the absence of 2009, pet. ref'd) (not designated for publication)
any witnesses, the critical issue often comes down to (recognizing that where the jury heard medical evidence
timing and who had access to the child at the time of the that, given the severity of the child's injuries, his
injuries. symptoms would have immediately followed the injury,
jury could infer defendant's guilt since he had sole
Significant to our sufficiency review, "Texas case law is access to the child at the time the child became
replete with holdings that when an adult defendant has symptomatic).
had sole access to a child at the time its injuries are
sustained, the evidence is sufficient to support a Moreover, as the State notes, the jury could have
conviction for injury to a child, or murder if the child inferred Contreras's guilt based on the circumstantial
dies." Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.— evidence of his actions both before and after K.C. was
 Page 20 of 26
2025 Tex. App. LEXIS 2121, *48

injured. The week before K.C.'s injuries, Contreras sent HN13[ ] "[I]nconsistencies in a defendant's story can
Samantha a text message accusing her of cheating provide evidentiary support for a conviction." Nisbett,
because she was not answer with the State that this 552 S.W.3d at 266; see also Kemmerer v. State, 113
supplies a motive for his actions in injuring K.C. And S.W.3d 513, 515 (Tex. App.—Houston [1st Dist.] 2003,
although motive is not an element of a crime, when the pet. ref'd) (recognizing that jury could consider
evidence suggests a defendant had both a motive and defendant's improbable explanation for how child was
the opportunity to commit a crime, these can be injured and his "changing versions" for how the injury
"circumstances indicative of guilt." Temple v. State, 390 occurred as evidence of guilt); Gutierrez, 2009 Tex.
S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Clayton App. LEXIS 3296, 2009 WL 1335154, at *3 (recognizing
v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007) that "[i]nconsistencies between a defendant's version of
(recognizing that while [*49] motive is not an element of events and the medical evidence concerning how an
murder, "it may be a circumstance that is indicative of injury [*51] must have been inflicted can also be
guilt")). circumstantial evidence of guilt"). As well, false
statements made by a defendant to cover up his crime
The evidence also suggests that before calling 911, evince a consciousness of guilt and may support a
Appellant changed K.C.'s clothes and his own shirt, finding of guilt. See King v. State, 29 S.W.3d 556, 565
which was later found to have blood stains on it (Tex. Crim. App. 2000) (en banc) (recognizing that a
matching K.C.'s DNA, and placed the clothing items in a defendant's conduct in making false statements shows a
laundry hamper in K.C.'s room. From that, the jury could consciousness of guilt and may be considered as
have inferred that K.C. bled onto Contreras's shirt after circumstantial evidence of guilt); see also Ziegler v.
he was injured and that Contreras changed his clothes, State, No. 08-09-00188-CR, 2011 Tex. App. LEXIS
placing the soiled shirt in the hamper in an attempt to 1679, 2011 WL 810060, at *8 (Tex. App.—El Paso Mar.
conceal his crime. HN12[ ] It is well-established that 9, 2011, no pet.) (not designated for publication)
attempts to conceal a crime are generally probative of (recognizing that a defendant's conduct in lying to law
guilt. See Guevara, 152 S.W.3d at 50 (recognizing that enforcement reflects a consciousness of guilt, which
"[a]ttempts to conceal incriminating evidence . . . are may be considered as circumstantial evidence of guilt);
probative of wrongful conduct and are also see also Torres v. State, 794 S.W.2d 596, 598 (Tex.
circumstances of guilt"); see also Tezino v. State, 765 App.—Austin 1990, no pet.) (recognizing that
S.W.2d 482, 485 (Tex. App.—Houston [1st Dist.] 1988, defendant's conduct after crime indicating
pet. ref'd) ("Concealment of pertinent evidence supports consciousness of guilt is "one of the strongest kinds of
an inference of guilty knowledge by the appellant as to evidence of guilt").
such evidence.").
Accordingly, we conclude that the cumulative force of
In addition, in the hours and days after K.C. was injured, the evidence, when viewed in the light most favorable to
Contreras provided inconsistent and improbable stories the verdict, was legally sufficient to allow the jury to
regarding K.C.'s symptoms and injuries. First, Contreras determine that Contreras was the person responsible for
told the first responders that K.C. had been choking. inflicting the injuries on K.C. that resulted in his death.
Then, after medical personnel determined K.C. had no The trial court therefore did not err in denying
obstruction [*50] in his airway and no food in his Contreras's motion for a directed verdict on the felony
stomach, Contreras changed his story to claim that K.C. murder offense.
had a seizure. Although Contreras informed the UMC
physicians and CPS investigators that K.C. had vomited Appellant's Issue One is overruled.
while he was bottle-feeding him, he did not mention this
in any of his other statements. Moreover, when Cogburn
responded to the 911 call, she did not see any evidence V. THE EVIDENCE WAS NOT [*52] LEGALLY SUFFICIENT TO
of vomit on K.C.'s clothes or on the couch where K.C. SUPPORT INJURY TO A CHILD BY OMISSION
was laying, nor did she observe a bottle in the room.
In Issue Three, Contreras contends the trial court erred
Finally, although Contreras initially claimed he
in denying his motion for a directed verdict, which he
immediately tried to call for help when K.C. became
maintains was made on the ground that the evidence
symptomatic, he later changed his story and stated his
was insufficient to support a finding of guilt on injury to a
cell phone died and he had to wait to call for assistance
child by omission. Although we find nothing in the record
until he could charge it—a statement that was later
to suggest that Contreras made a directed verdict on
found to be false based on forensic testing of his phone.
this basis, we treat this issue as a challenge to the legal
 Page 21 of 26
2025 Tex. App. LEXIS 2121, *52

sufficiency of the evidence.16 because the defendant failed to provide medical care"
(emphasis in original). See Johnson v. State, Nos. 13-
As set forth above, Contreras was charged by 15-00461-CR, 13-15-00462-CR, 2017 Tex. App. LEXIS
indictment with "knowingly, by omission, caus[ing] 9769, 2017 WL 4684177, at *5 (Tex. App.—Corpus
serious bodily injury to [K.C.] . . . by failing to seek Christi Oct. 19, 2017, pet. ref'd) (mem. op., not
medical care for [K.C.] in a timely manner, and designated for publication) (citing Dusek v. State, 978
[Contreras] as a parent of [K.C.] had a legal duty to act S.W.2d 129, 133 (Tex. App.-Austin 1998, pet. ref'd));
pursuant to Section 151.001 of the Texas Family Code." see also Payton v. State, 106 S.W.3d 326, 329 (Tex.
Contreras does not deny a legal duty to act based on App.—Fort Worth 2003, pet. ref'd) (recognizing same).
being K.C.'s father; however, he contends the State Thus, a defendant cannot be convicted of causing
failed to present legally sufficient evidence to establish serious bodily injury to a child by omission for failing to
that his approximate ten-minute delay in calling for seek medical treatment for a child's injuries unless the
assistance created a greater risk of serious bodily injury State establishes that the omission caused the child to
to K.C. than K.C. already faced as the result of his suffer a serious bodily injury "above and beyond" the
injuries, as necessary to support his conviction for injury child's initial injuries. See Desormeaux v. State, 362
to a child by omission. Because the State [*53] proved S.W.3d 233, 241 (Tex. App.—Beaumont 2012, no pet.)
and the jury found that Contreras caused K.C.'s death (citing Johnston, 150 S.W.3d at 637) (holding that a
by his affirmative acts of injuring the child, the State did conviction for injury to a child causing serious bodily
not establish that K.C. suffered a separate injury or any injury by omission for failing to seek timely medical
greater harm as the result of Contreras's delay in treatment for an injured child requires evidence that the
seeking medical treatment for those same fatal injuries. "failure to seek medical treatment created a substantial
risk of death above and beyond that resulting from the
initial injuries"). Stated otherwise, the delay in treatment
A. Standard of review and applicable law must have "caused a separate injury, even if the
separate injury was a worsening of the child's
We apply the same Jackson v. Virginia standard of
condition." Cyr v. State, 665 S.W.3d 551, 561 (Tex.
review set forth above for determining whether there
Crim. App. 2022) (citing Dusek, 978 S.W.2d at 133
was legally sufficient evidence to support a finding that
(holding that evidence was insufficient to sustain
Contreras was guilty of injury to a child by omission
defendant's conviction for injury to a child by omission
based on his delay in calling for medical assistance.
based on defendant's delay in obtaining [*55] medical
treatment for his son's broken leg where there was no
HN14[ ] As it relates to Contreras's case, Texas Penal
evidence the delay aggravated the seriousness of the
Code § 22.04 provides, "[a] person commits an offense
child's injury or hindered his recovery)); see also
if he . . . intentionally, knowingly, or recklessly by
Johnson, 2017 Tex. App. LEXIS 9769, 2017 WL
omission, causes to a child . . . serious bodily injury[.]"
4684177, at *4 (recognizing that a defendant could not
Tex. Penal Code Ann. § 22.04(a)(1). In turn, serious
be held criminally responsible for failing to seek medical
bodily injury is defined as "bodily injury that creates a
care for child's underlying injury unless the failure to
substantial risk of death or that causes death, serious
seek care resulted in a "separate and discrete, or at
disfigurement, or protracted loss or impairment of the
least incrementally greater" injury to the child);
function of any bodily member or organ." Johnston v.
Villanueva v. State, 227 S.W.3d 744, 748 (Tex. Crim.
State, 150 S.W.3d 630, 638 (Tex. App.—Austin 2004,
App. 2007) (recognizing, within the context of a double
no pet.) (citing Tex. Penal Code Ann. § 1.07(a)(46)).
jeopardy analysis, that a defendant may only be held
criminally responsible for both causing a child's injury
HN15[ ] To support a conviction for injury to a child by
and failing to seek medical care for the same injury if the
omission, it is not enough for the State to present
failure to seek care resulted in a "separate and discrete,
evidence that the defendant "failed to provide medical
or at least incrementally greater" injury to the child than
care for a serious [*54] bodily injury"; instead, the State
the one for which the defendant had already been held
must "prove that the child suffered serious bodily injury
criminally responsible).

16 See generally Rankin, 46 S.W.3d at 901 (recognizing that B. Analysis

"[a] claim regarding sufficiency of the evidence need not be
preserved for review at the trial level and is not waived by the In arguing it presented sufficient evidence to support
failure to do so").
 Page 22 of 26
2025 Tex. App. LEXIS 2121, *55

Contreras's conviction for injury to a child by omission, was no evidence to support a finding that the child
the State contends the record clearly establishes that suffered greater injury due to the delay); Cf. Payton, 106
Contreras knew K.C. needed urgent medical care yet S.W.3d at 330 (finding sufficient evidence to uphold a
admittedly delayed calling 911.17 The State appears to defendant's conviction for injury to a child by omission
be arguing that this fact alone constitutes sufficient where medical witness testified that it was possible the
evidence from which [*56] a jury could have found child victim would have survived if he had received
Contreras guilty of injury to a child by omission based medical care in a timely manner); Francis v. State, No.
on his failure to timely seek medical treatment for K.C. 07-12-00238-CR, 2013 Tex. App. LEXIS 11659, 2013
However, the State also has the burden of establishing WL 5043014, at *4 (Tex. App.—Amarillo Sept. 12, 2013,
that Contreras's delay caused K.C. to suffer a separate pet. ref'd) (mem. op., not designated for publication)
or greater injury than he already suffered as the result of (upholding defendant's conviction for injury to a child by
his initial injuries.18 omission [*57] where expert testimony indicated that
the defendant's decision to forego medical treatment for
None of the State's medical witnesses testified that K.C. her child over the course of several days "caused or
suffered any injury due to the delay in seeking treatment theoretically caused greater trauma to the child").
beyond that which Contreras's actions caused him, nor Instead, they testified in general terms that when a child
did they testify to the possibility that K.C. could have has stopped breathing or is otherwise exhibiting
been saved had he received treatment sooner. See symptoms of a brain injury, obtaining prompt medical
Johnson, 2017 Tex. App. LEXIS 9769, 2017 WL care is a significant factor in the child's survivability.
4684177 at *4-5 & n.5 (defendant could not be
convicted of injury to a child by omission for delay in Even if this generalized medical testimony could support
seeking treatment for her child's neck injury where there an inference that Contreras's delay in seeking treatment
for K.C. resulted in a greater risk of harm, the State's
argument suffers from a more fundamental problem. As
17 Contreras,by his own admission, waited approximately ten set forth above, the State charged Contreras with felony
minutes after K.C. became symptomatic and stopped murder, using injury to a child by his acts as the
breathing before calling for help. Because K.C. had severe predicate felony, alleging he committed acts that were
symptoms and was not breathing when the medical clearly dangerous to human life, including "causing the
responders arrived, the medical witnesses testified, his urgent rapid acceleration and deceleration" of K.C.'s head,
need for medical treatment would have been evident.
which caused K.C.'s death. At the same time, the State
18 The
charged Contreras in a separate indictment with injury
State cites two cases for the proposition that a jury may
to a child by omission, alleging his delay in seeking
rely solely on evidence that a defendant failed to seek medical
care for a child in his care after observing the child in a quickly treatment for K.C.'s injuries caused him "serious bodily
deteriorating state in finding him guilty of injury to a child by injury." Thus, oddly, the charging document alleged
omission; but as Appellant points out, in both cases, there was Contreras's [*58] affirmative acts resulted in K.C.'s
evidence from which a jury could have inferred that the death, while Contreras's omission resulted in K.C.'s
defendant's delay in seeking treatment for the injuries created serious bodily injury. In finding him guilty of felony
a greater risk of injury or death to the child. See, e.g., Payton, murder, the jury necessarily found that Contreras's acts
106 S.W.3d at 330 (finding sufficient evidence to support a caused K.C.'s death. Given the jury's finding, we
conviction for injury to a child by omission where the evidence conclude that the State did not, and could not, meet its
demonstrated that the defendant, who had emergency medical burden to establish that Contreras's omission—his delay
training, observed his grandson suffering from visible signs of
in seeking medical treatment for K.C.—caused K.C. to
physical distress but nevertheless delayed seeking treatment,
suffer a separate or greater injury than death.19
where one of the child's treating physicians stated it was
possible the child would have survived if he had received
medical care shortly after the injury occurred); Desormeaux,
362 S.W.3d at 241 (affirming defendant's conviction for capital 19 We also recognize the possibility that Contreras's
murder and injury to a child by omission where there was convictions for both injury to a child by his acts as the
evidence that defendant observed his infant son in a state of predicate felony in felony murder and his conviction for injury
obvious physical distress and was informed by his son's to a child by omission due to his failure to seek timely medical
stepmother that the child was in need of immediate treatment could arguably constitute a double jeopardy
emergency medical attention yet failed to seek any treatment violation. See Johnson v. State, Nos. 13-15-00461-CR, 13-15-
for the child, who passed away as the result of his injuries, 00462-CR, 2017 Tex. App. LEXIS 9769, 2017 WL 4684177, at
creating an inference that the delay increased the child's risk *4 (Tex. App.—Corpus Christi Oct. 19, 2017, pet. ref'd) (mem.
of death). op., not designated for publication) (recognizing that when "a
 Page 23 of 26
2025 Tex. App. LEXIS 2121, *58

Accordingly, we agree with Contreras that the State did they had so served. After the jury returned its verdict
not present legally sufficient evidence from which the and assessed punishment, however, the trial court
jury could have found him guilty of the offense of injury informed the prosecutor and defense counsel that while
to a child by omission. speaking with the jury following the verdict, juror D.
Dempsey disclosed having served on a grand jury that
Contreras's Issue Three is sustained.20 previously indicted Contreras. Contreras then filed a
motion for new trial based on Dempsey's failure to
disclose his prior grand jury service, citing to the trial
VI. THE TRIAL COURT DID NOT ERR IN DENYING court's discretion to grant a new trial in the "interest of
APPELLANT'S MOTION FOR NEW TRIAL justice" to protect a citizen "against the illegal or
oppressive verdicts of prejudiced, careless, or ignorant
In Issue Five, Contreras contends the trial court erred in
juries."21 See State v. Gonzalez, 855 S.W.2d 692, 694
denying his motion for new trial, which he filed after
(Tex. Crim. App. 1993) (en banc) (recognizing that "[t]he
learning that one of the jurors served on a grand jury
discretion of the District Court, in granting new trials, is
that initially indicted him in 2020 for reckless injury to a
almost the only protection to the citizen against the
child. According to Contreras, the juror's failure to
illegal or oppressive verdicts of prejudiced, careless, or
disclose that fact prevented Contreras from being able
ignorant juries, and we think the District Court should
to challenge the juror for cause, and he was therefore
never hesitate to use that discretion whenever the
deprived of his right to [*59] a fair and impartial trial.
ends [*60] of justice have not been attained by those
verdicts").
A. Background The trial court held a hearing on the motion, at which
Dempsey testified, acknowledging he served on a grand
During voir dire, neither party asked the venirepersons if
jury empaneled in 2020 that handed up the first
they had previously served on the grand jury that had
indictment in Contreras's case for reckless injury to a
indicted Contreras, or if they had served on any grand
child. He averred, however, that he did not make the
jury for that matter, and none of them volunteered that
connection between his prior grand jury service and
Contreras's case until Thursday evening—the day
parent shakes a baby (affirmative act) and then fails to seek before deliberations—when he realized Contreras's
medical care after shaking the baby (omission)—causing a
name sounded familiar. He maintained that he did not
single injury (shaken-baby syndrome)," the defendant cannot
realize he was required to disclose the information to
be convicted of both offenses) (citing Villanueva v. State, 227
anyone prior to deliberations.22
S.W.3d 744, 748 (Tex. Crim. App. 2007) (holding that the
double jeopardy prohibition against multiple punishments
Dempsey testified that, although he recalled Contreras's
precludes punishing a defendant for both his act in shaking
name as a person the grand jury indicted, he did not
baby and his omission in failing to seek medical help where
only one injury occurred)); see also Almaguer v. State, 492 recall any information regarding Contreras's case or the
S.W.3d 338, 346 (Tex. App.—Corpus Christi 2014, pet. ref'd) nature of the evidence the State presented given that
(accepting State's concession that defendant could not be much time had passed and grand jury heard "a lot of
convicted of both murder in her son's death caused by blunt different cases" that year (even though he
force abdominal trauma and the offense of injury to a child by acknowledged that this may have been the only case
omission for her failure to seek prompt medical attention for the grand jury heard that year involving a death).
her son's injuries); Ramirez v. State, No. 11-15-00239-CR, Dempsey further testified that he did not disclose his
2018 Tex. App. LEXIS 1085, 2018 WL 827148, at *5-6 (Tex. grand jury service to the other jurors during their
App.—Eastland Feb. 8, 2018, pet. ref'd) (mem. op., not deliberations or share any other information with them
designated for publication) (recognizing that a defendant may
regarding his [*61] grand jury service. Finally, he
not be convicted of both injury to a child by inflicting fatal
testified that he based his verdict solely on the evidence
injuries and the offense of injury to a child by omission based
on the defendant's failure to seek medical treatment for the
child for those same injuries) (citing Villanueva, 227 S.W.3d at 21 Appellantalso argued in his motion that he was entitled to a
748).
new trial on the ground that the verdict was contrary to the
20 Because
evidence.
we sustain Contreras's third issue, we need not
reach his fourth issue in which he contends his trial counsel 22 Dempsey testified that in retrospect, he recognized that he
violated his Sixth Amendment right to maintain his innocence "probably should have" disclosed the information prior to
on the offense of injury to a child by omission. deliberations.
 Page 24 of 26
2025 Tex. App. LEXIS 2121, *61

and the witnesses' testimony presented during trial. favorable to the ruling and reversing only if no
reasonable view of the record could support the ruling.
Following his testimony, defense counsel argued Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App.
Dempsey was required to disclose that he had served 2017). In determining whether the trial court abused its
on the grand jury, and had he done so prior to discretion, an appellate court must not substitute its own
deliberations, he could have challenged Dempsey for judgment for that of the trial court, and it must uphold
cause and the trial court could have seated one of the the trial court's ruling if it is within the zone of
two alternate jurors to deliberate in his place.23 The reasonable disagreement. Id. (citing Riley v. State, 378
State, however, argued Dempsey was not required to S.W.3d 453, 457 (Tex. Crim. App. 2012); Webb v. State,
disclose his prior grand jury service absent being asked 232 S.W.3d 109, 112 (Tex. Crim. App. 2007)).
questions regarding the same during voir dire. The State
found it significant that Dempsey only served on the
2020 grand jury that indicted Contreras for reckless C. Applicable law
injury to a child, which was later dismissed, and
Dempsey did not serve on the 2023 grand jury that HN17[ ] Texas Code of Criminal Procedure Article
indicted him on the charges for which he stood trial. 35.16(a)(7) provides that a party may make a challenge
Finally, the State argued Contreras failed to establish for cause to a juror by "alleging some fact which renders
that Dempsey harbored any bias against him due to his the juror incapable or unfit to serve on the jury." Tex.
prior grand jury service, given Dempsey's testimony that Code Crim. Proc. Ann. art. 35.16(a). Several challenges
he did not recall the evidence he heard in that may be made by either party, to include a challenge
proceeding and was not influenced by his prior grand because "the juror served on the grand jury which found
jury service in reaching his verdict. the indictment" in the defendant's case. Id. art.
35.16(a)(7). "The statute makes sitting on a grand jury a
After taking the motion [*62] under advisement, the trial cause for challenge due to the fear that a person who
court denied the motion, making express findings of fact served on the grand jury which returned the indictment
and conclusions of law. First, the trial court found may have formed an opinion in the case that was
Dempsey's testimony credible that (1) he did not realize adverse to the appellant." Webb, 232 S.W.3d at 113. If
he had served on the grand jury that indicted Appellant properly and timely raised, a juror who previously
for reckless injury to a child until approximately the served on a grand jury should be excused. See, e.g.,
punishment stage of trial, (2) he did not recall any of the Graham v. State, 258 S.W.3d 201, 204 (Tex. App.—
evidence presented to the grand jury on that indictment, Waco 2008, no pet.) ("It is error for a trial court to
(3) he did not share with the jurors his involvement with overrule a challenge for cause to a panelist [*64] who
the grand jury until the judge "talked with the jurors after was a member of the grand jury that returned the
their service had ended," (4) his "prior grand jury service indictment being tried") (citing Wolfe v. State, 147 Tex.
did not influence any of his petit jury decisions," and he Crim. 62, 178 S.W.2d 274, 279 (Tex. Crim. App. 1944)
was not biased against Appellant, and (5) "he based (holding that trial court should have sustained defense
them solely on the evidence heard at trial." The court counsel's challenge for cause against juror who served
further found that Dempsey did not intentionally withhold on the grand jury which found the indictment)).
his grand jury service from the parties during voir dire,
as the parties failed to ask the panel any questions HN18[ ] While serving on the grand jury that indicted
about their prior grand jury service. The court concluded the defendant provides a ground for a party to challenge
that Contreras forfeited his right to challenge Dempsey the juror, it "is not an absolute disqualification" from
for cause due to his failure to ask any such questions. sitting on a petit jury. See Webb, 232 S.W.3d at 112;
see also Graham, 258 S.W.3d at 204 (recognizing that
serving on a grand jury is not an absolute
B. Standard of review disqualification). Therefore, defense counsel is required
to question the panel regarding whether they previously
HN16[ ] An appellate court reviews a trial court's served on a grand jury—and in particular whether they
denial of a motion for new trial [*63] for an abuse of served on the grand jury that indicted the defendant—or
discretion, viewing the evidence in the light most the defendant will forfeit his right to later challenge the
juror's service. Webb, 232 S.W.3d at 112 (recognizing
that a "challenge for cause is forfeited if not made"); Self
23 The record reflects that there were two alternate jurors v. State, 39 Tex. Crim. 455, 47 S.W. 26, 28-29 (Tex.
available to deliberate.
 Page 25 of 26
2025 Tex. App. LEXIS 2121, *64

Crim. App. 1898) (holding that having failed to question question regarding "familiarity about the case" and no
juror about his service on a grand jury, defendant one responded, he was not required to ask more
cannot be heard to complain of his service for the first specific questions about whether any of them had
time on appeal); Graham, 258 S.W.3d at 204 served on the grand jury that indicted him. Webb, 232
(recognizing that "[t]he failure to question a juror about S.W.3d at 113. The court disagreed, holding that HN20[
whether the juror was a member of the grand jury that ] counsel is obligated to ask the venirepersons
returned the indictment constitutes a waiver [*65] of the specific questions regarding the various statutory
right to thereafter complain that the juror was grounds relevant to whether they may be disqualified or
disqualified on that basis"); see also Mitchell v. State, challenged for cause. Id. In imposing this requirement,
116 Tex. Crim. 65, 27 S.W.2d 800, 800 (Tex. Crim. App. the court recognized that "[t]he jury panel does not know
1930) (recognizing same). the statutory challenges for cause and thus the
prospective jurors likely do not know what the parties
are trying to determine during voir dire" when they are
D. Appellant forfeited his right to challenge asked only general questions about their familiarity with
Dempsey a case. Id. (citing Self, 47 S.W. at 26 (holding that
merely asking the prospective jurors if they had "formed
Contreras seeks to blame Dempsey for failing to an opinion in the case" was insufficient to preserve error
disclose his prior grand jury service, noting that the on the issue of whether the juror should have been
prosecutor asked the panel during voir dire whether they excused for cause for his prior service on the grand
knew Contreras or had heard anything about the case.24 jury)). The court therefore concluded that because
Contreras contends these questions were sufficient to defense counsel "did not ask [*67] specific enough
alert Dempsey that he was required to disclose his prior questions to determine whether anyone on the panel
grand jury service. had served on the grand jury that indicted him," he
"forfeited the right to complain that the juror should have
HN19[ ] As explained above, it is counsel's obligation
been excused." Id.
to exercise due diligence in questioning the panel
regarding any grounds for challenging a potential juror
Similarly, our sister court held that defense counsel
for cause or grounds that might reflect on their
forfeited his right to challenge a juror for cause based on
impartiality. See Armstrong v. State, 897 S.W.2d 361,
her prior service on the grand jury where the panel was
363-64 (Tex. Crim. App. 1995) (en banc) (recognizing
only asked if anyone knew the defendant. Graham, 258
defense "counsel's obligation to ask questions
S.W.3d at 204-05. As the court recognized, "this was
calculated to bring out that information which might be
insufficient to satisfy the requirement that counsel must
said to indicate a juror's inability to be impartial and
expressly inquire whether anyone had served on a
truthful"). As the State points out, it is well-established
grand jury, or the grand jury at issue." Id. at 205 (citing
that asking general questions regarding the panel's
Webb, 232 S.W.3d at 112; Hawkins v. State, 135
familiarity with the defendant or his case is insufficient to
S.W.3d 72, 76-77 (Tex. Crim. App. 2004) (en banc)).
satisfy due diligence in discovering whether a juror
previously served on a grand jury in the defendant's Here, too, we conclude that general questions regarding
case. [*66] whether the venirepersons knew Contreras or had
heard of his case were insufficient to satisfy defense
The Court of Criminal Appeals examined this principle at
counsel's obligation to exercise due diligence in
length in Webb. There, the defendant argued that
questioning the panel members about their prior grand
because his attorney asked the panel a general
jury service. Contreras therefore forfeited his right to
later complain that Dempsey should have been excused
24 The for cause on this basis.25
prosecutor asked the venirepersons: "Anyone here
know Sonny Contreras? You know the Defendant? Does that
apply to anybody?" The question did not receive any apparent
response. The prosecutor also asked the panel if "anyone 25 Even if Contreras had not forfeited his claim that Dempsey
here [had] heard anything in the community about this case? should have been excused from serving as a juror, Contreras
Anyone here heard of this?" One person responded that they did not establish that he was deprived of his right to a fair and
knew of the case from working as a jailer and was later impartial trial as the result of Dempsey's prior grand jury
excused from the panel by agreement of the parties. Defense service. In Webb, the Court of Criminal Appeals recognized
counsel did not ask any additional questions regarding the that the danger of allowing an individual who served on the
jury's familiarity with Contreras or his case. grand jury that indicted the defendant to sit on a trial jury
 Page 26 of 26
2025 Tex. App. LEXIS 2121, *67

Appellant's Issue Five is overruled.

VII. CONCLUSION

We affirm Contreras's conviction for felony murder. We

reverse Contreras's conviction for injury to a child by
omission and render a [*68] judgment of acquittal on
that offense.

LISA J. SOTO, Justice

March 28, 2025

Before Salas Mendoza, C.J. Palafox and Soto, JJ.

(Do Not Publish)

End of Document

stems in part from the possibility that they "may have seen
evidence that was inadmissible at trial, and may have formed
a bias against the defendant prior to the beginning of the trial."
Webb v. State, 232 S.W.3d 109, 114 (Tex. Crim. App. 2007).
Here, Dempsey did not serve on the same grand jury that
indicted Contreras on the current offense, and, more
importantly, he testified that he did not recall any of the
evidence presented at the grand jury; he did not tell the other
jurors about his grand jury service; and his verdict was based
solely on the evidence presented at trial. In denying Contreras
a new trial, the court expressly found Dempsey's testimony to
be credible and that he did not harbor a bias against Contreras
due to his prior service on the grand jury. Accordingly, the trial
court was free to conclude that Dempsey's service on the
grand jury did not deprive Contreras of his right to a fair and
impartial trial. Id. at 114 (upholding trial court's finding that
defendant was not deprived of his right to a fair and impartial
jury where juror who previously sat on the same grand jury
that indicted the defendant testified she did not remember any
facts or evidence that may have been presented to the grand
jury and she was not biased against him).