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Click here for the full text of this decision FACTS:A 3-year-old boy with cerebral palsy named Timothy lived with his mother, Trevina Scott, his brother, Cameron, and Scott’s boyfriend, Bernard Allen. Timothy could not walk or speak, but he could cry and crawl. Scott bathed Timothy the morning of Jan. 2, 2001, and did not notice any bruises on him. Nor did she notice Timothy complaining of not feeling well when she put him to bed at 8 p.m. A cousin of Scott’s noticed Timothy crying softly at 9 p.m., but thought it was because he was trying to have a bowel movement. Timothy Scott and her cousin left the house between 10:10 p.m. and 10:15 p.m., leaving Timothy in Allen’s care, but without first checking on Timothy. In the meantime, at 10:52 p.m., emergency services received a call from Allen, saying Timothy had a cold and was having trouble breathing. Scott arrived home while the paramedics were still there, and Allen told her that Timothy had thrown up “thick white stuff” and then his lips “turned color.” Scott went with Timothy to the hospital. She called Allen from the same room where the medics were working to find out what had happened. Allen told her that Timothy was choking and spitting up, so he gave him some pickle juice in his bottle; then he started turning blue. Scott said she never told anyone to give Timothy pickle juice. Timothy was pronounced dead at 1:57 a.m. on Jan. 3. The attending physician noticed that Timothy had rib fractures, which he found unusual, because of the amount of force it takes to break children’s otherwise pliable ribs. The doctor denied that resuscitation efforts had caused the break, noted that a break in a child’s ribs could lead to tearing in nearby internal organs, and that Timothy had bruising in the area that were consistent with the pattern for someone having been punched with a fist. The autopsy showed that Timothy had a healed rib fracture, recent rib fracture and multiple liver lacerations. The cause of death was determined to be acute massive bleeding due to liver lacerations and an abdominal blunt-force injury. Allen was charged with capital murder. During voir dire for his trial, the prosecutor asked whether the venire members would refuse to convict a person of capital murder when the evidence was circumstantial. Allen’s objection was overruled. Then, during jury argument, the prosecution made much of the defense attorney’s earlier reference to Timothy as “this kid.” The prosecutor said that Timothy was “not a throw-away kid as [defense counsel] [sic] suggests,” and that he was “not garbage.” The prosecutor said he was “disgusted” by the defense counsel, and then went on to speculate that the defense counsel must believe that only people who don’t have jobs should not have children. He characterized the defense counsel’s reference to Timothy as “that kid” as a reference that Timothy did not deserve justice. Defense counsel’s multiple objections to the argument, which he said struck at Allen over his shoulder, were overruled. Allen was convicted and sentenced to life in prison, as the state was not seeking the death penalty. On appeal, Allen challenges the legal and factual sufficiency of the evidence. He complains of the question asked of the venire panel, and he challenges the prosecution’s jury argument. HOLDING:Affirmed. The court first assesses the legal sufficiency of the evidence. Allen complains that the evidence is not sufficient because the grand jury indictment alleges that he struck Timothy with or against an unknown object, but there was no attempt to determine what that object was. Though the court finds that after Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001), may have done away with a requirement for a grand jury to exercise due diligence in establishing an instrumentality of defense, even pre-Gollihar case law provided that, if the evidence at trial fails to establish what instrument or weapon was used, a prima facie showing is made that the instrument or weapon was unknown to the grand jury. “No witness testified with certainty regarding the instrumentality of death. There was no variance, therefore, between the proof at trial and the charging instrument, which alleged death was caused by an instrument unknown to the grand jury.” Turning to the factual sufficiency, the court follows the timeline of events the day of Jan. 2, 2001. The court finds that even under the most favorable light, the timeline shows that Scott was not present at the time Timothy would have suffered the rib-fracturing blow. Although the fact that Timothy had a rib injury that predated Scott’s relationship with Allen does lean in Allen’s favor, the court says it will defer to the jury’s determinations about the credibility of the witnesses. Consequently, the court finds the evidence is factually sufficient. Allen argues that the prosecutor’s voir dire question asked for a commitment, but the court characterizes the question as one that sought to “ferret out” biases against the law that allows conviction based on circumstantial evidence. The court agrees with Allen that the prosecutor’s jury argument was improper. “The prosecutor clearly mischaracterized Appellant’s jury argument, improperly expressed his personal opinion regarding defense counsel’s arguments not objected to, and engaged in improper, unprovoked personal attacks on both defense counsel. Consequently, the trial court’s overruling of Appellant’s objections to the attack on defense counsel during jury argument is error because the argument was not relevant, it injected personal opinion, and it violated the Texas Lawyers Creed.” It was error for the trial court to overrule Allen’s objections, the court finds. Nonetheless, in light of the ample evidence of Allen’s guilt, and in light of the fact that the sentence was automatically ascertained as a matter of law, it is unlikely that the error was not of constitutional proportions. OPINION:Per curiam; Dauphinot, Livingston and Mccoy, JJ. Livingston, J., concurs without opinion. McCoy, J., concurs without opinion.

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