Justin Hopper v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00191-CR

Justin Hopper,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
272nd District Court of Brazos County, Texas
Judge John L. Brick, presiding
Trial Court Cause No. 20-04042-CRF-272

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

A jury found Appellant, Justin Hopper, guilty of the felony offense of

injury to a child causing serious bodily injury. The jury assessed his

punishment at confinement for life. The trial court sentenced Hopper

accordingly. This appeal ensued. In four issues, Hopper argues that the

evidence was insufficient to support his conviction and that he received

ineffective assistance from his trial counsel. We will affirm.
A. Background Facts

On October 27, 2020, Daniel Green and Brady Young, paramedics with

the Bryan Fire Department, responded to a call of a six-year-old in cardiac

arrest at Hopper’s residence. Hopper lived at the residence with his fiancée,

Jessica Bundren, his six-year-old twin daughters, A.B. and P.B., and

Bundren’s adult son, Dylan. Hopper told the paramedics that A.B. had fallen

down the stairs twenty minutes prior. The paramedics found A.B. lying flat on

her back in the middle of the room with her arms at her sides. Green noticed

significant facial bruising, including “raccoon eyes” which is consistent with

basilar or skull fracture. The paramedics assessed A.B. and determined that

she was already deceased and that life-saving measures would be futile. They

also observed several bruises that appeared to be in various stages of healing

and that A.B.’s body was cold to the touch, which was inconsistent with

Hopper’s claim that she had been alive twenty minutes before paramedics

arrived. The paramedics did not believe that A.B.’s injuries were consistent

with falling down the stairs.

Multiple officers and detectives from Bryan Police Department arrived

on scene. One officer spoke with P.B., who was complaining of pain and stated

she had been hit by a paddle by her dad. A search warrant was obtained and

officers found a heavy wooden paddle in one of the bedrooms. DNA analysis of

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the paddle determined that A.B. was a possible contributor to a stain on the

body of the paddle and that Hopper, Bundren, and A.B. were possible

contributors to a DNA profile from the handle of the paddle. A belt was also

located in the bedroom where A.B.’s body was found, and rivets on the belt

were consistent with marks on A.B.’s skin.

Dr. Lucas Wieck, a medical examiner with the Travis County Medical

Examiner’s Office, conducted an autopsy on A.B.’s body. Dr. Wieck observed

and documented extensive injuries to A.B.’s entire body, including:

• fourteen abrasions and bruises to A.B.’s face, many of which were

commingled and overlapping, indicating multiple impacts to her face,

• injuries near her ears and eyes, including bleeding around her eyes,

• blunt trauma injuries to the front, back, and sides of her scalp and

bleeding within the outer and inner membranes that surrounded her

brain,

• bruising on the left side and back of her neck,

• multiple abrasions and bruises on the front and back of her torso, her

arms, and her legs,

• numerous areas of bleeding on her chest, abdomen, and back; and

• bleeding within her colon.

Hopper v. State Page 3
Dr. Wieck concluded that A.B.’s cause of death was blunt trauma and manner

of death was homicide. He also concluded that she died as a result of all of her

injuries, rather than a single blow. Dr. Wieck was unable to precisely date

A.B.’s injuries, but he noted evidence of inflammation in some of her injuries,

consistent with healing.

Hopper and Bundren were both charged with injury to a child causing

serious bodily injury. Bundren was tried prior to Hopper and was found guilty.

B. Sufficiency of the Evidence

In his first three issues, Hopper challenges the sufficiency of the evidence

to support his conviction and the deadly weapon finding.

1. Standard of Review

The Court of Criminal Appeals has defined our standard of review of

a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence in
the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017). This standard requires the appellate court
to defer “to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a
sufficiency review must not engage in a “divide and conquer”

Hopper v. State Page 4
strategy but must consider the cumulative force of all the evidence.
Villa, 514 S.W.3d at 232. Although juries may not speculate about
the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S.
at 319); see also Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and
we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). This is because the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to “the elements
of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the
defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The “law as authorized by the
indictment” includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).

Hopper v. State Page 5
2. Issues One and Two

Hopper’s first and second issues address the sufficiency of the evidence

supporting different theories under which the jury could have found him guilty

of the offense of injury to a child, so we will address these issues together.

In his first issue, Hopper argues that the evidence is insufficient to

support his conviction for injury to a child by intentionally or knowingly

causing serious bodily injury to A.B., a child of 14 years of age or younger.

Hopper states that there is insufficient evidence to support the State’s theory

that Hopper, as a principal, caused serious bodily injury to A.B. with the

paddle. Specifically, Hopper argues that besides inference from Bundren’s

testimony in her own criminal trial facing the same charges as Hopper, there

is no direct evidence tying Hopper to the paddle on October 27, 2020. However,

direct evidence is not the only evidence a jury may consider. Direct evidence

and circumstantial evidence are equally probative, and circumstantial

evidence alone may be sufficient to uphold a conviction so long as the

cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Ramsey, 473 S.W.3d at 809; Hooper, 214 S.W.3d at 13.

Additionally, although juries may not speculate about the meaning of facts or

evidence, juries are permitted to draw any reasonable inferences from the facts

so long as each inference is supported by the evidence presented at trial. Cary,

Hopper v. State Page 6
507 S.W.3d at 757; see also Hooper, 214 S.W.3d at 16–17. Additionally, Hopper

argues that the evidence is insufficient to convict him as a party. Specifically,

he focuses on the text messages between Bundren and Hopper and states that

the messages do not show that Hopper was encouraging, promoting, or aiding

Bundren in her abuse of A.B. In his second issue, Hopper argues that the

evidence is insufficient to support Hopper’s conviction for injury to a child by

omission by failing to protect A.B., a child of 14 years of age or younger, from

injury from another or by failing to seek prompt medical treatment for her

injuries.

The indictment and jury instructions set forth six different alternate

theories of guilt, specifically that Hopper, either acting alone or as a party,

intentionally or knowingly: (1) caused serious bodily injury to A.B. by striking

her with his hand; (2) caused serious bodily injury to A.B. by striking her with

a belt; (3) caused serious bodily injury to A.B. by striking her with a hard object;

(4) caused serious bodily injury to A.B. by causing her to strike a hard object;

(5) by omission, caused serious bodily injury to A.B. by failing to protect her

from injury from another when he had a statutory or legal duty to act; (6) by

omission, caused serious bodily injury to A.B. by failing to seek prompt medical

treatment for her injuries when he had a statutory or legal duty to act. “[W]hen

multiple theories are submitted to the jury, the evidence is sufficient to support

Hopper v. State Page 7
a conviction so long as the evidence is sufficient to support conviction for one

of the theories submitted to the jury.” Guevara v. State, 152 S.W.3d 45, 52

(Tex. Crim. App. 2004) (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.

Crim. App. 1991)).

The record contains evidence from which a jury could have reasonably

inferred that Hopper had knowledge of and encouraged Bundren’s actions

leading to and surrounding the injury and ultimate death of A.B. To determine

whether an individual is a party to an offense, the reviewing court may look to

events before, during, and after the commission of the offense. Gross v. State,

380 S.W.3d 181, 186 (Tex. Crim. App. 2012). There must be sufficient evidence

of an understanding and common design to commit the offense. Guevara v.

State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The State introduced text

messages back and forth between Bundren and Hopper in the weeks leading

up to A.B.’s death. In many of the text messages, Bundren describes her

frustrations with P.B. and A.B., usually about the children not eating quickly

enough or urinating or defecating on the floor. Bundren also tells Hopper what

she is doing to punish the children, including striking the children and

withholding food. Hopper’s responses include apologizing to Bundren, telling

her to “stay calm” or “stay strong” or to “keep up the good work.” On September

15, 2020, Dylan texted Hopper to tell him that Bundren was going “overboard”

Hopper v. State Page 8
on P.B., and Hopper responded that P.B. was “askin [sic] for it.” During one

exchange between Bundren and Hopper from October 8, 2020, Bundren said

“It is what it is. They are testing me again. I have to stay consistent. If they

like getting swats until their bottoms are purple then so be it.” and “[A.B.] is

on a roll today – not doing what she is told. She just got another spanking.”

Hopper responded by saying, “Yeah fuck them rite [sic] now.” On October 20,

2020, Bundren sent a photo of one of the girls with a text saying “look who just

got a spanking for crying instead of eating,” to which Hopper responded, “I’m

so tired of there [sic] shit.” Later that day, Bundren told Hopper that Dylan

got angry that Bundren was spanking Arianna, and Hopper asked, “did you

tell him to shut up.” On October 21, 2020 and October 23, 2020, Hopper tells

Bundren to tell the children he will spank them when he gets home for not

listening to Bundren. On October 24, 2020, Hopper sent Bundren a photo of a

paddle and stated he had just made it. Bundren responded by saying “That’s

nice! Although I hate that we have to use it. I wish they would just straighten

up and follow the rules.” P.B. testified that Bundren would spank her and A.B.

with a belt.

The record also contains evidence from which a jury could have

reasonably concluded that Hopper’s own actions lead to the injury and ultimate

death of A.B. In her testimony during her own trial, which was read into the

Hopper v. State Page 9
record during Hopper’s trial, Bundren claimed that on October 27, 2020,

Hopper arrived at the residence at lunchtime, took A.B. to her bedroom, closed

the door, and when he came out, handed Bundren the paddle, said he had to

go to work and told Bundren to check A.B. for urine. Ring doorbell footage

shows Hopper got to the residence at about 2:00 pm and left at approximately

2:42 pm. Hopper reentered the residence at 2:43 pm and left at 2:55 pm. The

record shows that after Hopper left, he and Bundren exchanged messages

about the children, including one around 3:00 pm that A.B. had defecated in

her underwear. At about 4:50 pm, Bundren texted Hopper that while being

spanked, A.B. kept rolling on her back and defecating on the bed and floor.

Hopper told Bundren to put her in the shower and he would deal with her when

he got off work. Bundren also said that A.B. kept falling and hitting her head,

that Bundren put A.B. in the shower twice but took her out so she wouldn’t get

too cold, and that Bundren put A.B. on the floor with clothes but she “is just

lying there.” Hopper told Bundren to put A.B. on the toilet if she couldn’t stop

defecating. Around 5:10 pm, Bundren texted saying that A.B. “is fine just

needs a nap” and that Bundren tried to give A.B. ibuprofen, but A.B. spit it

out. The Ring doorbell footage shows Hopper arrived back to the residence at

5:20 pm. P.B. told officers on scene that Hopper had used the paddle to strike

her and testified at trial that Hopper spanked both her and A.B. with the

Hopper v. State Page 10
paddle. Dr. Evan Matshes, a forensic pathologist, testified that the paddle

found on scene was consistent with causing many of the injuries on A.B.’s body.

Weighing all of the evidence and testimony presented, a rational jury

could have inferred that that Hopper, as a principal actor, caused serious

bodily injury to A.B. by striking her with the paddle. A rational jury could also

have found that Hopper acted as a party to Bundren’s actions that caused

serious bodily injury to A.B.

Considering the foregoing evidence viewed in light most favorable to the

verdict, we conclude that the evidence supports the jury’s reasonable finding

that Hopper caused serious bodily injury to A.B., either as a principal or a

party. Since the evidence is sufficient to support Hopper’s conviction under

theories that he acted as a principal or as a party to the commission of the

offense, we need not address whether the evidence was sufficient under the

theories of guilt by omission. See Guevara, 152 S.W.3d at 52. Accordingly, we

overrule Hopper’s first and second issue.

3. Issue Three

In his third issue, Hopper argues that the evidence is legally insufficient

to support the deadly weapon finding for injury to a child by omission by the

failure to promptly seek medical treatment and failure to intervene to protect

A.B. from harm by another. As outlined above, there were multiple theories

Hopper v. State Page 11
on which the jury could have convicted Hopper both by commission, as a

principal actor or a party to the offense, or by omission. Hopper only argues

that there was insufficient evidence of a deadly weapon finding under the

theories of omission, but he does not argue sufficiency to support the deadly

weapon finding under the theories of commission. An appellate court will

refrain from conducting a sufficiency of the evidence review when the

defendant fails to attack all theories of conviction submitted alternatively to

the jury. See Kitchens, 823 S.W.2d 259. Accordingly, we overrule Hopper’s

third issue.

C. Ineffective Assistance of Counsel

In his fourth issue, Hopper argues that trial counsel provided ineffective

assistance of counsel at the pretrial and trial stages with no plausible trial

strategy.

1. Authority

The Sixth Amendment to the United States Constitution, and section ten

of Article 1 of the Texas Constitution, guarantee individuals the right to

assistance of counsel in a criminal prosecution. Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). The right to counsel necessarily requires the right

to effective assistance, not just the mere presence of a lawyer. Id. However,

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the right does not provide a right to errorless counsel, but rather to objectively

reasonable representation. Id.

To prevail on a claim of ineffective assistance of counsel, an appellant

must meet the two-pronged test established by the U.S. Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 55–56 (Tex. Crim. App.

1986) (adopting the two-pronged test set forth in Strickland). An appellant

must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the defense such

that there is a reasonable probability that the result of the proceeding would

have been different. Lopez, 343 S.W.3d at 142; Hernandez, 726 S.W.2d at 55.

In assessing effective assistance of counsel, we must review the totality of the

representation and the circumstances of each case without the benefit of

hindsight. Lopez, 342 S.W.3d at 142–43. While a single error will not typically

result in a finding of ineffective assistance of counsel, an egregious error may

satisfy the Strickland prongs on its own. Id. at 143.

2. Analysis

Hopper argues that his trial counsel was ineffective for several reasons,

specifically: (1) in his response to a juror fainting and failing to inquire

whether the attending paramedic was the State’s witness, Daniel Green, a

Hopper v. State Page 13
paramedic for the Bryan Fire Department; (2) by failing to request a Rule 705

hearing as to Green’s qualifications; (3) by failing to request a Rule 705 hearing

as to the reliability of Matshes’s opinions; (4) by failing to object to Liza Dyess’s

testimony under Rules 702 and 403; (5) by filing “Ake Motions” publicly rather

than under seal; (6) by admitting and reading from Bundren’s testimony; (7)

by failing to object to certain sections of the charge; and (8) by failing to request

a hearing on the State’s request that P.B. be allowed to testify via closed circuit

television.

Appellate review of trial counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable

and professional assistance. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.

App. 2007). If counsel’s reasons for his conduct do not appear in the record and

there is at least the possibility that the conduct could have been grounded in

legitimate trial strategy, we will defer to counsel’s decisions and deny relief on

an ineffective assistance claim on direct appeal. Id. Ineffective assistance of

counsel claims are not built on retrospective speculation; they must “be firmly

founded in the record.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002). That record must itself affirmatively demonstrate the alleged

ineffectiveness. Id. Here, counsel’s reasons for his actions or intentions do not

Hopper v. State Page 14
appear in the record, and his conduct could have been part of a reasonable trial

strategy. Without more, we must defer to counsel’s decisions and deny relief.

Therefore, we overrule Hopper’s fourth issue.

D. Conclusion

Having overruled Hopper’s four issues, we affirm the judgment of the

trial court.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: May 28, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
CRPM

Hopper v. State Page 15