What are the penalties and definitions for injury to a child charges in Texas?
This question has been addressed in 2 Texas court opinions:
McKissick v. State
COA11 — February 20, 2026
After Johnathan McKissick was convicted of injury to a child, he appealed on the grounds of a 'material variance' because the child's name in the indictment (his birth name) differed from the name proven at trial (his adopted name). The Eleventh Court of Appeals analyzed whether this discrepancy prejudiced the defendant's defense or created a risk of double jeopardy under the Gollihar framework. The court held that the variance was immaterial because the defendant was not surprised by the identity of the victim and his defense was not hindered. Additionally, the court found no violation of discovery mandates under the Michael Morton Act, as the defendant had signed a discovery waiver and could not prove the State intentionally suppressed evidence discovered after the trial.
Litigation Takeaway
“A child's legal name change resulting from an adoption or termination proceeding does not create a 'material variance' that would invalidate a parallel criminal conviction, provided the defendant has notice of the victim's identity and is not prejudiced in their defense.”
Brandon Keith Anderson v. The State of Texas
COA12 — January 30, 2026
In this case, a witness provided surprise testimony during a hearing involving prejudicial information that had not been disclosed during discovery. Although the defendant successfully moved the trial court to disregard the testimony, he did not specifically move for a mistrial. On appeal, the Twelfth Court of Appeals analyzed Texas Rule of Appellate Procedure 33.1(a) and the 'preservation ladder,' which generally requires a party to object, request an instruction to disregard, and move for a mistrial to preserve error. The court held that because the appellant received the exact relief he requested (disregarding the testimony) and failed to seek a mistrial or obtain an adverse ruling, the complaint was waived.
Litigation Takeaway
“Winning a motion to strike or disregard surprise testimony is a 'trap' if the evidence is truly 'incurable.' In Texas courts, if a witness drops a 'bombshell' that poisons the well, you must move for a mistrial and secure an adverse ruling to preserve the issue for appeal. Merely asking the judge to disregard the statement is considered a 'win' at trial that results in a procedural default on appeal, leaving you with no recourse if the judge is ultimately influenced by the excluded evidence.”