Page 35 - TPA Journal November December 2023

in fact possess a penalty group one substance. harm. TEX. PENAL CODE § 6.04. Because we
Based on the record, the trial court has deter- find concurrent causation was not raised by the
mined that Applicant’s conviction violated due evidence presented at trial under Texas Penal
process and his guilty plea was involuntary. The Code § 22.04(a) and § 6.04(a), we reverse the
lab report established that Applicant possessed a judgment of the Eleventh Court of Appeals and
penalty group two controlled substance. affirm the judgment of the trial court.
Therefore, Applicant is entitled to relief. The trial
court’s findings of fact and conclusions of law On June 29, 2013, while Appellant was in the
are supported by the record. kitchen of the family home in Denver City,
Appellant’s husband Justin Cyr began to “choke”
Relief is granted. The judgment in cause and shout expletives at J.D in the living room. The
number 139438601010 in the 339th District couple’s older child, E.P., who was five years old
Court of Harris County is set aside. We remand at the time, testified at trial that Appellant subse-
this case to the trial court for further proceedings. quently entered the living room and instructed
Justin to “stop hurting the baby.” Later that night
Ex Parte OHLEMACHER, Tex. Crim. and into the early morning, Appellant noticed J.D.
App., No. WR-93,821-01, February 1, 2023. was experiencing seizure-like symptoms and

called Justin’s mother who was a retired nurse.
Justin’s mother advised Appellant to give J.D.
EVIDENCE & ELEMENTS - injury to child Tylenol and monitor the child. Appellant followed
by omission. that advice. The next day, J.D. began to experience
seizure-like symptoms again and the couple decid-
In late June 2013, Appellant and her husband, ed to take the child to Covenant Hospital in
Justin Cyr, took their fourmonth-old child, J.D., to Lubbock, rather than their local hospital just six
the emergency room in Lubbock. Upon their miles away. J.D. continued to experience the same
arrival, medical staff quickly discovered J.D. was symptoms throughout the hourlong drive to
suffering from life-threatening brain hemorrhag- Lubbock. Although Appellant and Justin original-
ing. Physicians were able to save J.D.’s life, but ly told investigators they drove to Lubbock
the bleeding resulted in permanent physical and because Justin distrusted physicians in Denver
cognitive dysfunction. The cause of the child’s City, later testimony from Appellant’s mother
injuries is uncontroverted; J.D. was violently revealed the decision to drive to Lubbock was
assaulted by her father Justin Cyr. Justin was con- made to avoid Child Protective Services (CPS).
victed separately for injury to a child and sen- When Appellant, Justin, and J.D. arrived at the
tenced to life imprisonment. His conviction is not hospital in Lubbock, medical personnel quickly
at issue. realized the child’s injuries resulted from non-
accidental abuse. The hospital contacted CPS and
Appellant was indicted, convicted, and sentenced
CPS coordinated its investigation with the
to fifteen years’ imprisonment for reckless injury Lubbock Police Department.
to a child by omission. The State sought its gener-
al verdict under two theories: (1) Appellant failed Appellant and Justin were approached by Chief
to protect J.D. from Justin, or (2) Appellant failed Deputy Patrick Kissick at the hospital and asked
to seek reasonable medical care despite her duty to about the circumstances of J.D.’s injury. Both
act as J.D.’s parent. We granted discretionary responded that the child began to experience the
review to decide whether Appellant was entitled to seizure-like symptoms after a “hard bowel move-
a jury instruction under Texas Penal Code § ment.” Neither Appellant nor Justin notified
6.04(a)’s concurrent causation provision for acts Deputy Kissick of the abuse, prior accidents, falls,
“clearly insufficient” to cause the proscribed or the “popping sound” the child made when she

Nov/Dec 2023 www.texaspoliceassociation.com • (512) 458-3140 31