Michael A. Allen v. the State of Texas

Opinion issued August 31, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00619-CR ——————————— MICHAEL A. ALLEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1790630 MEMORANDUM OPINION A jury convicted appellant Michael A. Allen of aggravated assault causing serious bodily injury, a second-degree felony, and assessed his punishment at twelve years in prison.1 In twelve appellate issues, Appellant contends there was insufficient 1 See TEX. PENAL CODE §§ 22.01 (defining assault), 22.02(a)(1), (b) (defining aggravated assault and providing punishment as second-degree felony). evidence to support his conviction and that the trial court erred in admitting certain evidence, overruling his motion for mistrial, charging the jury incorrectly, and denying his motion for new trial. Finally, Appellant contends he received ineffective assistance of counsel at trial. We affirm the trial court’s judgment. Background Allen married Samantha Strahan in 2016, and they lived together in their RV trailer home. Late at night on April 9, 2020, Samantha and her mother, Brenda, shared several back-and-forth phone calls. A. Mother’s Testimony Samantha’s mother testified that Samantha called her the night of April 9. She was whispering and had locked herself in the bathroom. She “sounded afraid” and she “was scared.” While crying, Samantha told Brenda that she “tried to cuddle up to [Allen] and [] he had kicked her, and she’d gone flying through the door.” Samantha told her mother that her head hurt and she felt like she had broken a rib, but she was “holding [herself] together.” Samantha said she felt “sad” and “trapped.” Brenda wanted to help but did not know how, so she recited a few Bible verses to Samantha. As they were talking, Brenda heard Allen ask, “Who are you talking to?” Samantha responded, “my mama,” and that “seemed to escalate things a little bit.” The call then ended. Brenda wanted to go over immediately, but she was afraid it 2 would cause a “bigger confrontation.” She testified that she and her husband had been in prior confrontations with Allen about Samantha’s “safety.” Brenda eventually got a text from Samantha that made her believe she could wait until the morning before doing anything else. The next morning, Brenda texted Samantha, but received no response. Later that morning Brenda received a call from Allen. He told her he had gone out to get food, and when he returned, he found Samantha unconscious. Brenda told Allen to call 9-1-1. She and her husband immediately left to check on Samantha. B. Medical Testimony When EMS arrived, Allen was on his knees near Samantha, who was unconscious. Allen told EMS that Samantha had begun having seizures a year and a half ago, but she was not taking medication. He reported that she had a seizure earlier in the week, but that “this is not how she typically acts after a seizure.” Allen said that Samantha had been vomiting with nausea and diarrhea that week. He explained that bruises visible on Samantha’s body were from a seizure earlier in the week, and others were possibly from when she was drunk. EMS transported Samantha to a hospital in Tomball, where medical staff observed that she could breathe on her own but was “completely unconscious.” She had “bruising in multiple stages of healing across her body, across her check, on her 3 back, circumferential bruising on her arms and her ankles, [and] bruising on her hands.” Laura Dunbar—an emergency room nurse on duty—testified that Samantha’s presentation was not consistent with a seizure. For example, seizure patients usually regain consciousness and show response to pain stimuli. Samantha did neither. When Dunbar spoke to Allen, he admitted that he and Samantha had “an argument” the prior night, but he did not “admit to any abuse.” He reported that Samantha was vomiting and “not feeling right,” so he went to get her food. When he returned, she was unresponsive. Allen reported that his “wife drinks and falls down sometimes” and “has seizures and ‘falls sometimes.’” Dunbar noted that Samantha had a “significant subdural hematoma” that appeared “traumatic in nature.” The injury did not match Allen’s report of falling from seizures or drinking. Dunbar concluded that “[s]uspicion for domestic violence [was] high . . . [and] [l]aw enforcement [was] notified.” Because of the severity of her injury, Samantha was flown to Conroe Regional Medical Center, where she was treated by Dr. Robert Ellis—a trauma surgeon and chief of surgery. Dr. Ellis noted that Samantha’s CT scan showed a large blood clot around the left side of her brain consistent with “major blunt force trauma.” He opined that the force necessary to create that type of injury was not consistent with a short fall or falling from a couch. The trauma was also not consistent with a fall 4 from a standing position. It was a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. It would not be a small trauma that developed over time, but a huge trauma “from the moment of injury.” He acknowledged that if a seizure causes a person to fall and hit her head, that can possibly cause a subdural hematoma. But Samantha’s brain injury was not consistent with a seizure causing the initial trauma because convulsions from a seizure are “usually a low-impact kind of injury.” In his twenty-year career as a trauma surgeon, Dr. Ellis had not been called to evaluate an injury caused by a seizure. He conceded that he did not know what caused Samantha’s subdural hematoma or how it happened. Dr. Ellis called Dr. Cyril Sebastian, a neurosurgeon, to perform emergency surgery on Samantha. Dr. Sebastian removed a portion of Samantha’s skull to relieve the pressure on her brain. Samantha was eventually transferred to a rehabilitation facility and then a long-term care facility, where she died almost three months after her initial injury. Dr. Kathrynn Pinneri—director of Montgomery County Forensic Services— testified about Samantha’s autopsy report, which attributed her cause of death to “[c]omplications following blunt force trauma to the head” and described her manner of death as “homicide.” She testified that a subdural hematoma the size of the one observed in Samantha head would be caused by a “fairly significant impact,” 5 and “not from a minor bumping of the head against a wall, or from a short fall[.]” She also noted that Samantha had “microscopic cirrhosis” of the liver, which was “likely not affecting her at this point in her life.” She noted that when Samantha was first admitted, her liver enzymes were mildly elevated, one of her “clotting factors” was completely normal, and two other clotting factors were “very minimally elevated[.]” She did not think that any of these findings would have caused unusual bleeding or prevented normal clotting. C. The Police Investigation Harris County Sheriff’s Deputy J. Herrera was dispatched with Deputy J. Decatur to a hospital in Conroe to investigate a “possible domestic violence” case. Deputy Herrera’s encounter with Allen at the hospital was recorded on his body camera and admitted at trial. While they were talking, Allen told police that he and Samantha had argued the night before and Samantha was “sick or had a stomach ailment” the next morning; she was lying on the couch and “mumbling.” When discussing the event the night before, Allen told police that Samantha had been drinking and that when she drinks she gets “belligerent and verbally abusive.” When Hererra asked Allen whether Samantha had “gotten physical,” he replied, “no,” but “she did throw a cup of something on me,” and that led to the argument. Allen also stated that Samantha was “throwing stuff,” which he had to 6 clean up. The deputies eventually took Allen out to their car to talk to him where it was more private. Deputy Decatur testified about the footage from his body camera. When he moved Allen from inside the hospital to the patrol car, he asked Allen if he understood that he was not under arrest, and Allen responded affirmatively. He did not handcuff Allen because he was not in custody. Deputy Decatur described the encounter as a “consensual interview.” He explained to Allen that he was not under arrest, but he was holding him in the car because it was hard to hear outside. During his conversation with Deputy Decatur, Allen—describing the events of the prior night—stated that he was upset because Samantha had crawled into bed and woken him up. Allen said, “I got her off me. I made her—I made her get off me.” Allen described his actions as “pushing her away.” Allen then “grabbed [Samantha] by both arms” and “shoved her to the couch and made her stay down there.” He then cleaned up water from a humidifier that he noticed Samantha had thrown. Allen told Deputy Decatur that Samantha had a history of seizures and that the bruising on her might have happened when she was drinking about a week before. Sometime during his discussion with Allen, Deputy Decatur decided to return him to the trailer. D. White—a detective with the Tomball Police Department—escorted Allen back to the trailer during what he described as “a consensual encounter.” When a “relatively new officer” tried to place Allen in handcuffs, Detective White stepped 7 in and instructed the officer “absolutely not” because Allen was not under arrest. He instructed the officer escorting Allen not to talk to him. Detective White asked Allen to sign a consent-to-search form, and Allen signed. While inside the trailer, Detective White saw holes punched in the bedroom door, which he took to be a “sign of violence.” He also saw a “head print” in the inside portion of the bedroom leading in the door, which Allen told him was “[f]rom something else.” There was vomit on the floor next to the couch, which had been pulled out into a bed. Also near the couch was an ottoman with a wooden frame that had a strand of long hair hanging from it. Immediately outside the master bedroom was the kitchen countertop. Detective White could tell from the dust on the countertop that several items had been recently moved or knocked over. Although Allen claimed that Samantha had poured limeade on him while he was asleep, no staining or stickiness was found on the bed. When discussing the fight with Samantha, Allen said that while he was asleep, Samantha cuddled up to him and he “shrugged” her away. She then returned and poured limeade on him. He claimed that he “nudged [Samantha] off the bed” with his feet. Allen said that “she fell out of the bed after being kicked through the doorway.” He did not know where she landed, but “he got out of the bed and then he pushed her down toward the couch.” Allen claimed that Samantha landed on her butt on the ground, next to the wooden-framed ottoman, a table, and a TV stand. 8  From the position of items in the trailer and Allen’s statement, Detective White concluded that Samantha likely had been kicked off the bed through the door, possibly hitting her head on the countertop, knocking over several items that had been there in the process. When asked how Samantha had hit her head, Allen said it must have been when she was falling out of the bed, but he claimed he did not see it happen. After talking with Allen and seeing the trailer, Detective White concluded he had probable cause to make an arrest. D. The Defense Allen presented two witnesses in his own defense—his mother, Lora Allen, and himself. Lora testified that Allen and Samantha lived with her from August to October 2019. During that time, she saw bruises on Samantha that Samantha said were caused by their dog, Ruger. Lora often smelled alcohol on Samantha’s breath, and she knew that Samantha drank margaritas and wine. Lora eventually kicked the couple out of her home because she could not tolerate Samantha’s outbursts and mood swings. After they moved out, Lora found three boxes of wine and several empty bottles under the bed. Lora testified that Allen was not violent, and Samantha never expressed any concerns about him. Allen testified on his own behalf. He testified that on the night of the incident, he fell asleep around 10:30 p.m. and Samantha came in and tried to wake him up. He “shrugged” her off by moving her arm. He claimed that Samantha became violent 9 and “started screaming and cussing” at him. She returned to the bedroom with a limeade and “dumped all of that onto” him. He testified that after Samantha dumped the limeade on him, he was “pissed off” and he yelled at her. He “used [his] legs to push her off [] so that [he] could get out of bed.” He was upset and yelled at her to calm down. When asked why he “kick[ed] her off the bed,” he responded that he “wanted to get out of bed so [that he] could get the drink out of [his] ear and get it off [his] face.” He heard a crash, but he did not see Samantha hit her head on anything. After he got out of bed, Samantha was still acting “aggressive verbally” and hitting him on the chest, so he “pushed her away.” He tried to push her onto the couch, but she stumbled and landed on the floor. He did not see her hit her head on anything. He grabbed her by the arms, “pushed her towards the couch,” and held her there until she “calmed down enough.” He then tossed her phone to her, and he thought he heard her call her mother. While she was on the phone, he started cleaning up. When asked why he started cleaning at that point, he testified that if he “didn’t clean . . . it was a problem for her, so . . . he just went ahead and cleaned it up.” He cleaned up water from a humidifier that according to Allen, Samantha had thrown across the trailer after he pushed her out of the bed. He then showered while Samantha spoke to her mother on the phone. When Allen got out of the shower, he testified that Samantha was screaming at her mother, and “she hung up on her and 10 slammed the phone down.” Allen told her he “had enough” and he started to grab his keys to go to his mother’s home, but Samantha grabbed his keys and tossed them, so he just closed the door and went to sleep. Allen testified that the next morning Samantha apologized, and they both went back to sleep for a while. When Samantha woke up, she complained about shaking, feeling nauseous, and vomiting. She lay down on the couch while Allen stayed in bed. Allen checked on Samantha when he took their dog for a walk, but she did not complain about any injury. He testified that he never hit her at all “[o]ther than accidentally pushing her to where she’d fell on the floor[.]” Allen testified that around noon, he ordered food from Door Dash thinking that Samantha might be able to keep the food down while she was nauseous. He walked to meet the Door Dash driver, and when he returned Samantha was on the floor. He testified that “it appeared that she was towards the end of a convulsion; her lips were purple, she had foam and vomit at the mouth, but when she calmed down, she wasn’t responsive anymore.” He tried to wake her, and when he could not do so, he called her mother. Allen then called 9-1-1 and EMS responded within minutes. Allen told EMS about Samantha’s previous seizures and low blood sugar, acknowledging that he “speculated a lot about what might be the reason for her seizures.” 11  Allen also testified about his relationship with Samantha, describing it as “start[ing] off well,” but declining after Samantha lost her job. He testified that the relationship became “toxic,” and that Samantha would throw things at him. He described one occasion when Samantha became “verbally and physically violent” and started throwing things at him. She threw a lap desk at him and then began throwing plates, bowls, and knives. He picked up the lap desk to block the knives and swung it to try to knock a knife from Samantha’s hand. Instead, he hit her on the head “by complete accident.” He rushed her to the hospital, where she got stitches. The jury saw pictures of Samantha’s black eyes and injury from that event. When asked about the holes in the bedroom door, Allen testified that the holes were from another time. He testified that Samantha made the holes, “[s]he would get angry” and “throw [the dog’s toys] at me and they would hit the door, causing holes.” He testified the door was “very hollow.” Allen also testified that Samantha drank excessively, having boxed wine, beer, or hard liquor every day. He admitted that he, too, had a drinking problem, but at the time of trial, he had been sober for three years. When asked about Samantha’s frequent bruises, Allen testified that “she would black out, she wouldn’t remember a whole lot of things, she would stumble a lot, bumping into anything and everything, and she would wake up later and not remember anything and then go right back to drinking.” He also testified that Samantha had trouble walking their dog because she 12 was small and the dog was seventy pounds, suggesting that the dog might have caused some of her injuries. Allen testified that Samantha had seizures and “she would become extremely stiff, her arms would curl up, and at times, she would let out like a loud grunt groan, like her body is letting the air escape.” He went with her to a general practitioner, but they never scheduled any follow-up appointments with a neurologist. He testified that after, Samantha had “multiple” seizures—“seven, eight maybe.” Allen testified that he and Samantha had approximately a dozen physical fights when they were together, but that she was always the aggressor. He denied punching any holes in their bedroom door and explained that the holes were caused when Samantha threw dog toys at him. E. The Trial and Verdict Allen was tried for aggravated assault by recklessly causing serious bodily injury. The jury found him guilty and assessed his punishment at twelve years in prison. This appeal followed. Sufficiency of the Evidence In his first two issues, Allen argues that the evidence is legally insufficient to establish that he (1) acted recklessly, and (2) caused Samantha serious bodily injury. We address each argument in turn. 13 A. Standard of Review and Applicable Law We apply the sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979) to determine whether the evidence is sufficient to support each element of a criminal offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). “[W]e view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895). We consider both direct and circumstantial evidence in our analysis. Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009); see Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor” and “the standard of review on appeal is the same for both direct and circumstantial evidence cases.”) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). In evaluating the sufficiency of the evidence, we defer to the factfinder’s credibility and the weight the factfinder gives to the evidence. Brooks, 323 S.W.3d at 894. This sufficiency standard does not blindly defer to the factfinder’s credibility determinations, as “it allows for some consideration of whether the jury’s credibility determinations were rational in light of the objective evidence.” Walker v. State, 14 Nos. PD-1429-14, PD-1430-14, 2016 WL 6092523, at *15 (Tex. Crim. App. Oct. 19, 2016) (not designated for publication) (citing Brooks, 323 S.W.3d at 907). We must presume the factfinder resolved any evidentiary conflicts in favor of the verdict and we defer to that resolution. See Jackson, 443 U.S. at 326; see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to guarding against the rare occurrence when a fact finder does not act rationally”) (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). If our review reveals the evidence is insufficient, we must reverse the appellant’s conviction. Costilla v. State, 650 S.W.3d 201, 212 (Tex. App.— Houston [1st Dist.] 2021, no pet.). However, if there are two permissible views of the evidence, “the fact finder’s choice between them cannot be clearly erroneous.” Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006). Allen was convicted of aggravated assault by recklessly causing serious bodily injury to Samantha, “by pushing [her] to the ground with his body causing her to hit her head,” or “by kicking [her] to the ground with his body causing her to hit her head,” as alleged in the indictment. Under Texas Penal Code § 22.01(a)(1), a person commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” TEX. PENAL. CODE § 22.01(a)(1). A person commits “aggravated assault” if he either (1) causes serious bodily injury 15 to another; or (2) uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(1)(2). The Penal Code defines “serious bodily injury” as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46). A person “acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Id. § 6.03(c). “The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id. B. Evidence of Recklessness In his first issue, Allen points out that aggravated assault causing serious bodily injury is a “result-oriented” offense, and he argues that “[t]he State presented no evidence that [he] was aware of but consciously disregarded a substantial and justifiable risk that the injury would result.” We agree that bodily-injury assault is a result-oriented offense. See Simms v. State, 629 S.W.3d 218, 223 (Tex. Crim. App. 2021). We disagree, however, with Allen’s evaluation of the sufficiency of the evidence. To find Allen guilty of 16 aggravated assault as charged, the jury had to find that he was reckless with respect to the result—Samantha’s serious bodily injury—caused by one of the alleged manner and means—pushing her to the ground with his body causing her to hit her head or kicking her to the ground with his body causing her to hit her head. A person acts recklessly with respect to the result of his conduct “when he is aware of but consciously disregards a substantial and unjustifiable risk” that the result will occur. TEX. PENAL CODE § 6.03(c); see Ramos v. State, 407 S.W.3d 265, 270 (Tex. Crim. App. 2013). “The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances,” as viewed from the defendant’s standpoint. TEX. PENAL CODE § 6.03(c). “Recklessness requires the defendant to actually foresee the risk involved and consciously decide to ignore it.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). In determining whether a person acted recklessly, “[t]he issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk.” Dillon v. State, 574 S.W.2d 92, 95 (Tex. Crim. App. [Panel Op.] 1978). The mens rea for “reckless” conduct involves conscious risk creation, rather than mere inattentiveness. See Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); see also Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007) (characterizing 17 recklessness as entailing calculated decision to gamble with other people’s lives). Conscious risk creation may be inferred from the surrounding circumstances. See Couthren v. State, 571 S.W.3d 786, 793 (Tex. Crim. App. 2019) (stating jury may infer reckless driving from evidence); see also Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020) (observing that, absent confession, defendant’s mental state must be inferred from his words and actions). After reviewing the evidence in the record, we conclude there was sufficient evidence to support the jury’s finding of recklessness. Samantha’s mother testified that Samantha called her the night of April 9 and told her that Allen had “kicked her, and she’d gone flying through the door.” Samantha was crying, and she told her mother that her head hurt and she felt like she’d broken a rib, but she was “holding [herself] together.” Samantha was whispering. Brenda testified that Samantha was “afraid” and had locked herself in the bathroom. Allen admitted that he used both legs to kick Samantha off their bed with sufficient force to push her off the bed and through the open bedroom door. Although he testified that Samantha did not go “flying” through the adjacent doorway—as Samantha told her mother—there was medical evidence explaining that the force necessary to cause a brain injury like the one Samantha experienced would be the equivalent of a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. The couple’s 18 trailer home was very small, and the jury saw pictures showing how close the bed was to the kitchen counter just outside the couples’ bedroom door. The jury also saw a wood-trimmed ottoman with a long hair on it near where Allen pushed Samantha to the floor. At 5’10” and 205 pounds, Allen was almost twice the size of Samantha, who was only 5’1” and 105 pounds. When Allen kicked or pushed Samantha off the bed, Allen was, by his own admission, upset at Samantha for pouring limeade on him. Although he claimed he did not see Samantha hit her head, Allen acknowledged that Samantha could have hit her head when he kicked her out of the bed through the open bedroom door and into the kitchen, but he was not paying attention. From this evidence, the jury reasonably could have concluded that Allen created and disregarded a conscious risk of serious bodily injury to Samantha by kicking her with enough force to propel her through the open bedroom door and into the nearby kitchen causing her to hit her head, or by pushing her hard enough to fall to the floor causing her to hit her head.2 We overrule Allen’s first issue. 2 The indictment did not require the State to show whether Samantha hit her head on the countertop or the wooden ottoman or something else entirely. 19 C. Evidence of Causation In his second issue, Allen argues that the evidence is legally insufficient to prove he caused Samantha’s brain injury. Allen acknowledges Dr. Ellis’ testimony that the blunt force trauma to Samantha’s brain was caused by a “major deceleration” event like those seen in a high-speed car accident, a fall from “a couple of stories,” or a baseball-bat injury. Allen contends, however, that the State presented no evidence to “corroborate” Dr. Ellis’ testimony and points to evidence suggesting that a seizure or cirrhosis of the liver might have caused Samantha’s subdural hematoma. We begin by noting that the State was not required to “corroborate” its own expert’s testimony. See Hutchins v. State, 360 S.W.2d 534, 527–28 (Tex. Crim. App. 1962) (noting that jury is exclusive judge of facts and credibility and witness testimony need not be corroborated). And the evidence need not exclude all alternative reasonable hypotheses to be legally sufficient. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). Causation is established if the conduct of the defendant is the “but for” cause “operating either alone or concurrently with another cause.” TEX. PENAL CODE § 6.04(a); Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). “But for” causation establishes culpability or criminal responsibility. See Cyr v. State, 665 S.W.3d 551, 557–58 (Tex. Crim. App. 2022). The existence of a causal connection between the defendant’s act and the injury to the complainant is a question for the jury. See Dorsche v. State, 514 S.W.2d 755, 20 757 (Tex. Crim. App. 1974). Proof of causation is sufficient if the evidence establishes that “but for” the defendant’s conduct, the alleged result would not have occurred. See Lowe v. State, 676 S.W.2d 658, 661 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d). The issue is thus whether there was legally sufficient evidence for the jury to conclude that Allen’s action in either kicking or hitting Samantha caused her to hit her head, which in turn caused the subdural hematoma leading to her death. The jury heard evidence that Allen kicked Samantha off the bed and through the bedroom door to the kitchen. Samantha told her mother that Allen “kicked her, and she’d gone flying through the door.” Samantha was crying, and she told her mother that her head hurt and she felt like she’d broken a rib. The jury reasonably could have inferred from this testimony that Samantha hit her head when Allen kicked her off the bed. While Allen denied that Samantha had “gone flying” when he kicked her, the jury was free to believe Brenda’s testimony and to disbelieve Allen’s testimony on this point. Allen conceded that he kicked Samantha with his legs and that she had gone through the open bedroom door when he kicked her. He did not see where she fell, but he heard a crash. He told police that Samantha might have hit her head when she fell. He testified that he shoved Samantha down on the floor near the couch and a wooden-framed ottoman. Although he claimed that Samantha did not hit her head when he pushed her, police later found a long hair on the ottoman. 21  Expert medical testimony established that the subdural hematoma that led to Samantha’s ultimate death was caused by “[m]ajor blunt force trauma[,] like a person might experience in a car accident, a fall from a great height, or from a baseball-bat injury.” Falling off a bed or couch or falling from a standing position would not have caused the damage seen in Samantha’s brain. The medical experts at trial opined that—while a person having a seizure might fall and hit her head— such a fall would not likely produce the massive bleeding seen in Samantha’s brain. The jury, as the fact finder, rationally could have concluded that when Allen kicked or shoved Samantha with both his legs, he had done so with enough force to cause a “major deceleration” event, causing Samantha to hit something in the next room like the kitchen countertop or wooden-framed ottoman, and that such a “major deceleration” event led to the subdural hematoma that ultimately led to her death. The jury also could have reasonably inferred from the size difference between Allen and Samantha that Allen’s kick or shove could have caused Samantha to go “flying,” as Samantha described to her mother. Although Allen’s defense was to suggest that Samantha had a seizure that either directly caused the subdural hematoma or caused her to fall resulting in the subdural hematoma, the jury as the fact finder was entitled to reject this theory of the case and to conclude that Allen’s conduct caused Samantha’s injury. We overrule Allen’s second issue. 22  Admission of Evidence about Cause of Death At trial, the State introduced testimony from a forensic pathologist and autopsy records showing that Samantha died by homicide. In issue three, Allen contends that such evidence was erroneously admitted because it was (1) irrelevant and (2) its “probative value was substantially outweighed by the extreme prejudice the evidence carried.” In his fourth and fifth issues, Allen argues that the harm caused by the admission of such evidence was constitutional error denying him a fair trial and that his motion for mistrial arguing the same should have been granted. A. Standard of Review “Questions of relevance should be left largely to a trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion.” Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). The trial court abuses its discretion when its ruling was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). B. Relevancy Only relevant evidence is admissible. See TEX. R. EVID. 402. Relevant evidence is evidence having “any tendency to make a fact more or less probable than it would be without the evidence.” TEX. R. EVID. 401(a). Relevant evidence must 23 also address a fact that is of consequence in determining the action. TEX. R. EVID. 401(b). Allen argues that “the cause of death being homicide was not a consequence of fact for the charged offense of aggravated assault” and “had no relevance to how or when the injury occurred months earlier than the autopsy.” Allen argues that, because he was charged with aggravated assault and not murder, the cause of Samantha’s death was irrelevant and “required [him] to defend against an uncharged homicide and the assertion that [Samantha] died at [his] hands.” Essentially, Allen argues that the fact of Samantha’s death was irrelevant because he was charged with aggravated assault, not murder. Allen’s argument that evidence of death is irrelevant in an aggravated assault case conflates the elements of the offense with the evidentiary method of proving it. To prove aggravated assault in this case, the State was required to prove an assault causing “serious bodily injury.” See TEX. PENAL CODE § 22.02(a)(1). “Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(46) (emphasis added). The statute thus provides multiple alternative methods by which the State may prove the serious bodily injury element, and causing death is one of them. 24  Establishing that Samantha died by homicide was one of the statutorily approved methods the State could use to prove the element of “serious bodily injury.” Juneau v. State, 49 S.W.3d 387, 391 (Tex. App.—Fort Worth 2000, no pet.) (explaining that in aggravated assault case, “[d]eath is . . . a method of proving serious bodily injury, the aggravating element”) (emphasis in original); see also McQueen v. State, 705 S.W.2d 271, 274 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (“A finding of aggravated assault is therefore warranted if the evidence shows that the defendant committed an assaultive act and caused serious bodily injury (death being within the definition of ‘serious bodily injury’) . . . .”). Because evidence that Samantha died as a result of a homicide directly relates to an element of the offense—serious bodily injury—it addressed a fact that is of consequence in the case. We thus conclude the trial court did not err in admitting the evidence under Rule of Evidence 401. C. Rule 403 Analysis A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX. R. EVID. 403. Probative value refers to the “inherent probative force of an item of evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent’s need for that item of evidence.” Casey v. State, 215 S.W.3d 25 870, 879 (Tex. Crim. App. 2007). “Unfair prejudice refers to an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one.” Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (internal quotation marks omitted). As part of his third issue, Allen argues that “any probative value [of the evidence] was outweighed by the extreme prejudice the evidence carried.” Allen cites to Rule 403 in his brief, but he does so only in reciting the “applicable law.” Nowhere in his brief does he attempt to apply the rule, analyze its application to the case, provide authority, or explain how the trial court erroneously applied the balancing test required after a Rule 403 objection has been made. He merely makes a conclusory statement that he suffered “extreme prejudice” because the evidence of death by homicide “painted [him] as a murderer when he was not even charged for the complainant’s death.” Because Allen has not provided this Court with “clear and concise argument for the contentions made” or given this Court “appropriate citations to authorities and to the record,” he waived his contention that the trial court violated Rule 403 by admitting the evidence we have already determined to be relevant. See TEX. R. APP. P. 38.1. We overrule Allen’s third issue. 26  Constitutional Error and Denial of Mi