OPINION
The State of Texas charged Nelson Armando Paz (appellant) with capital murder for intentionally or knowingly murdering a child under the age of six years old. A jury found appellant guilty of capital murder as charged in the indictment and assessed punishment at life in the Institutional Division of the Texas Department of Criminal Justice. Appellant complains on appeal that the trial court committed reversible error in failing to charge the jury on the lesser included offenses of criminally negligence homicide and injury to a child. We affirm.
FACTUAL BACKGROUND
On February 7, 1999, Ruth Muniz left her home to go to her mother’s house. Her youngest dаughter, V.C. (the complainant in this case) was tired and cranky when her mother was leaving, so Ms. Mun-iz decided to leave 18 month old V.C. in the care of appellant, who was her live-in boyfriend. Other than remarking thаt V.C. was cranky and tired, Ms. Muniz characterized V.C.’s health and behavior that day as normal. After arriving at her mother’s house, Ms. Muniz called appellant to check on V.C., concerned that she might still be crаnky and crying. Appellant told her that V.C. was in bed and sleeping, and had been since she left. Approximately 15 minutes later, appellant called Ms. Muniz and frantically told her that V.C. was not *100 breathing and her bоdy was limp. Ms. Muniz immediately rushed home in the car.
As she arrived at home, a fire truck was coming on to the scene. V.C. was found on the floor of the living room, unconscious, not breathing, and without a pulse. Apрellant claimed that he did not know what happened. However, after Ms. Mun-iz brought a plastic bag out of the bedroom, that had been lying on the bed where appellant said V.C. was sleeping, he оffered an explanation that perhaps she suffocated in the bag. As she was being transported to Ben Taub Hospital, the paramedics were able to get V.C.’s pulse back. Dr. Poehling, the treating physician in the emergency room, was of the opinion that, because paramedics were able to revive V.C., V.C.’s heart had stopped only a short time before the paramedics had arrived. Within 30 minutes of her arrival at the hospital, V.C. was pronounced dead.
A post-death examination and the autopsy revealed that V.C. died as a result of a blunt-force head injury, and nоt from suffocation. These examinations revealed recent signs of sexual abuse, a history of sexual abuse, fingerprint size bruises on V.C.’s chest and back, bruises to the left and right of V.C.’s chin, massive hemorrhaging in thе brain, and a large fracture on the skull.
DISCUSSION AND HOLDINGS
In his sole point of error, appellant contends that the trial court erred in failing to charge the jury on the lesser included offenses of criminally negligent homicide and injury to a child.
In order for a trial court to determine whether it should charge a jury on a lesser offense than the one for which the defendant is indicted, the trial court employs a two-рrong test: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist that would allow a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense.
Rousseau v. State, 855
S.W.2d 666, 672 (Tex.Crim.App.1993). In making this determination, we must review all the evidence admitted at trial.
Enriquez v. State,
The court of criminal appeals has explained that the rationale behind the second prong of the test, “prеserves the integrity of the jury as the factfinder by ensuring that the jury is instructed as to a lesser included offense only when that offense constitutes a valid, rational alternative to the charged offense.”
Arevalo v. State,
I. Criminally Negligent Homicide
Appellant did not request that the jury be charged on criminally negligent homicide at trial. As a result, appellant did not preserve error for our review on criminally negligent homicide, and we will not consider aрpellant’s point of error with respect to that issue.
Kinnamon v. State,
*101
II. Injury to a Child
Appellant was charged with capital murder for intentionally or knowingly сausing the death of an individual under six years of age. A person commits the offense of injury, to a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, causes serious bodily injury tо a child. Tex.Pen.Code Ann. § 22.04(a)(1) (Vernon Supp.2000). Serious bodily injury is defined in the penal code as, “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or рrotracted loss or impairment of the function of any bodily member or organ.” Tex.Pen.Code Ann. § 1 .07(46) (Vernon 1994).
The first prong of the test is satisfied. Injury to a child is a lesser included offense of capital murder. TexCode Crim. Proc.Ann. art. 37.09 (Vernon 1981);
Otting v. State,
In supрort of the second prong of the test, appellant argued at trial and on appeal that there was evidence showing that the deadly blow could have been recklessly-rather thаn intentionally-inflicted. He points to testimony by Dr. Moore, the pathologist, who stated that V.C., at the very least, suffered from “serious bodily injury” that led to her death and that she did not know whether the conduct causing V.C.’s death was intentional or reckless. 1 As we explain below, this testimony was insufficient to allow a jury to rationally find that if appellant were guilty, he was guilty only of acting recklessly.
Dr. Shook, an expert in this trial who examined Dr. Moorе’s autopsy report, stated that a child who had V.C.’s injuries would “lapse instantaneously” into a coma, and that this is “very clearly a lethal injury.” When asked how much force it would take to cause an injury of this nature, Dr. Shook replied, “Children who are in motor vehicle crashes, high-impact motor vehicle crashes may sustain an injury this severe, but it would be unusual. Even if one is propelled out of the window going 60 milеs an hour, you may not get a head injury quite this severe. This is an extremely high-impact injury_it is not consistent with having fallen in an unintentional way.” Dr. Shook concluded her testimony by stating that, “this [impact] would have caused аn immediate coma in this child and very shortly thereafter be followed by respiratory arrest.”
After a review of the evidence in this case, we find no evidence that would warrant a charge on the lesser included offense of injury to a child.
Ross v. State,
In conclusion, the tеstimony appellant relies on to argue that he was entitled to a lesser included offense charge of injury to a child was no evidence at all. As such, it did not warrant a charge. Accordingly, wе find that the trial court did not err in refusing to charge the jury on the lesser included offense of injury to a child. The decision of the trial court is affirmed.
Notes
. On appeal, appellant also pointed to other testimony to argue that the issue of recklessness was raised, however, this particular argument was not raised at trial and is waived. TEX. R.APP.P. 33.1(a)(1);
Dixon v. State, 2
S.W.3d 263, 273 (Tex.Crim.App.1998) (citing
Broxton v. State,
. In the realm of lesser included offenses, this case is unusual because we havе no direct evidence to show how and under what circumstances the blow was inflicted. Typically, when a lesser included offense is requested and given, direct evidence exists that the defendant did or did not act in a certain way.
See e.g. Wesbrook v. State,