State v. Hradek

THE STATE OF TEXAS, Appellant, v. LINDSEY HRADEK, Appellee.

No. 08-15-00342-CR

Court of Appeals of Texas, Eighth District, El Paso

August 24, 2022

Do Not Publish

Appeal from the 41st Judicial District Court of El Paso County Texas (TC# 20130D00417)

Before Rodriguez, C.J., Palafox, J., and McClure, Senior Judge McClure, Senior Judge (Sitting by Assignment).

OPINION

YVONNE T. RODRIGUEZ, Chief Justice.

The State of Texas charged Lindsey Hradek ("Hradek") with intentionally and knowingly causing serious bodily injury to a child, by omission, following the death of her infant son. Hradek timely moved for a new trial after a jury returned a verdict convicting her of a lesser included offense of reckless injury to a child by omission. Following a hearing, the trial court granted Hradek's motion based on a claim of ineffective assistance of counsel. By interlocutory appeal, the State challenges the trial court's ruling. We reverse the trial court's grant of a new trial and affirm Hradek's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2012, Lindsey Hradek awoke to find her infant son Colton Soto, then nearly three-months old, cold to the touch with the side of his face appearing purple. He was not breathing.

At the time, Hradek lived with Colton's father, Bobby Soto, in an apartment they shared with Bobby Soto's father, Henry Soto. Hradek called 911 and the operator instructed her to start CPR. Paramedics, on arrival, quickly noted physical conditions indicating Colton died some time before Hradek called 911. Hradek was subsequently charged with intentionally and knowingly causing serious bodily injury to a child by omission.

The Trial

Pre-Trial Rulings Assistant Public Defenders David Contreras Nicole Maesse, and Sara Priddy (collectively, "Defense Counsel") represented Hradek in the case. Prior to trial, in a motion in limine, Contreras raised concerns about evidence purporting to establish Hradek was using cocaine prior to her baby's death. The alleged cocaine-use was referred to in: (1) a recorded jail call between Hradek and her mother made in November 2012; (2) a recorded statement Hradek gave to law enforcement; (3) a recorded statement of Bobby Soto; and (4) a CPS test for cocaine the State conceded would be inadmissible.^[1]

Contreras argued Hradek's use of cocaine was an extraneous offense and the State was mistaken on the timeline of her drug use. Further, he argued, Hradek had admitted at most, in a recorded call with her mother, sometime prior to the night Colton died, she used cocaine; however, Hradek did not specifically refer to using cocaine the night the baby died. According to Contreras, the State alleged Hradek intentionally and knowingly, by omission, caused the death of Colton, so cocaine-use was not relevant or connected to the omission alleged since cocaine use is an affirmative act, not an omission. Additionally, the probative value of the cocaine-use would be outweighed by its prejudice.

The State responded the cocaine-use evidence would show Hradek admitted she used cocaine the night her son died. Further, the State disagreed with Contreras's characterization of the offense Hradek was charged with. The State asserted it intended to introduce a statement from Bobby Soto that referred to cocaine use. The State argued the jail call recording between Hradek and her mother corroborated Bobby Soto's statement. Last, the State asserted Hradek called 911 six to seven hours after her baby died, and her cocaine-use was relevant to her culpable mental state.

The trial court listened to audio containing Hradek's statements regarding her cocaine-use. The trial court heard two portions of audio which are not transcribed in our record.^[2] Contreras confirmed he was objecting to the audio recording played for the court under Texas Rule of Evidence 404(b). After listening to the portions, the trial court granted the limine motion. Before deciding on admissibility, the trial court explained it would be necessary to hear more of the context in which the State intended to introduce the evidence at trial.

Next, Defense Counsel argued Bobby Soto's statement lacked relevance to Hradek's charge and its admission would violate her right to confront witnesses. During the trial court's discussion of Bobby Soto's statement, the State revealed it had a drug test taken by Hradek and Bobby Soto which was positive for cocaine. The State acknowledged the drug-test was not admissible in court "because it wasn't the hair test." The trial court instructed the State to approach before mentioning either the jail recording or the statement from Bobby Soto.

Contreras told the court Hradek had been employed as an exotic dancer at a local gentleman's club named "Foxy's," and last danced two nights before the baby's death. Contreras explained Hradek discussed her employment in a recorded interview taken the afternoon of Colton's death, and in another interview after her arrest. Contreras asserted references to Hradek's profession as a dancer could "inflame" the jury or view her in a negative light, especially given the jury was composed of eleven women and one man.

The State responded Hradek's employment established a timeline of the events leading up to Colton's death, and provided context to Hradek's statements she was tired when she put Colton to bed because she worked late the night before. The State asserted Hradek's employment was admissible as "contextual" evidence to demonstrate the circumstances surrounding the offense. See generally Couret v. State, 792 S.W.2d 106, 107-08 (Tex.Crim.App. 1990)(en banc) (recognizing extraneous matters which aid the jury in determining the context of an offense are admissible at trial). The trial court ruled the State could introduce evidence Hradek worked days before Colton's death; however, any mention of the nature of her work, or the place of her employment, would not be admitted. The trial court directed the State to redact all statements from recorded interviews regarding Hradek's employment at "Foxy's," or as a "dancer." Contreras also raised the issue of mentioning Hradek's cocaine-use during opening statements. At this point, the trial court ruled Bobby Soto's statement referring to Hradek's cocaine-use and the cocaine-use statements by Hradek in the jail-call recording between Hradek and her mother would be admitted. The court added, "because the Defense would submit that the use of cocaine happened prior to that date, then that would necessarily have to be admitted in order to ensure the Defense has its full opportunity to provide its rendition of the facts." Contreras asserted, "[U]nder the Fifth and Fourteenth Amendment, due process, okay, we're looking at something where the indictment says my client purposefully ignored her child with the intent to cause it harm. Purposefully." Contreras also alleged there was no connection or nexus between the cocaine-use and the State's indictment because the cocaine-use did not relate to a knowing or intentional omission.

Case in Chief

The State charged Hradek by indictment with intentionally and knowingly, by omission, causing serious bodily injury to her two-and-half-month-old child, by "failing to provide care, protection and control" of the child. The State advanced three primary theories of guilt.

First it contended Colton died while upside down based on the pattern of lividity noted on the top of his head, the right side of his face, and his right arm and leg. The State asserted a pooling of blood gravitates to the lowest part of the body at the time of death. The State's theory was Colton died after he was left strapped to an "overturned" (upside down) car seat found in Hradek's bedroom. The medical examiner, Dr. Juan Contin, testified Colton's confinement in a car seat would be consistent with outward signs of lividity observed on his body.

The defense's expert, Dr. Mark Shuman, a forensic pathologist, testified he disagreed with Dr. Contin's overturned-car-seat theory as the cause of Colton's death. Dr. Shuman critiqued Dr. Contin's failure to examine the car seat, and more importantly, to put Colton in the car seat prior to the autopsy to ascertain whether the pattern of lividity aligned with the width and size of the car-seat straps. Dr. Shuman further testified the straps of the car seat did not fit the pattern of lividity seen in photographs of Colton's body. He further asserted the car seat strap had a very fine weave pattern that was not observed in photographs of Colton's skin. Dr. Shuman described the actual marks as being wider than the car-seat-strap, and it had a pattern appearing more like a folded fabric or elastic. Dr. Shuman added the strap would not wrap all the way around the thigh in the way the marks are presented on Colton's thigh. Based on his examination of records and photographs, Dr. Shuman testified within medical certainty the child did not die from being upside down.

The State's second theory focused on Hradek's alleged failure to monitor Colton's diagnosed sleep apnea condition, and the possibility Hradek slept with Colton in the same bed on the night of his death, either of which could have contributed to his death. The State presented evidence Hradek had discontinued the use of a prescribed sleep apnea monitor for Colton without direction to do so by the prescribing physician. In response, the Defense argued Hradek did not understand how long she needed to keep Colton on the monitor, faulting the prescribing physician in not providing better guidance, and pointing out the physician was unsure what, if anything, his office told her. An employee of the company which provided the sleep apnea monitor testified the physician's office was extremely busy and it...