OPINION
Opinion by
Samantha Amity Britain was convicted by a jury of manslaughter for recklessly causing the death of Sarah Brasse, an eight-year-old child, by failing to seek medical treatment. Britain was also convicted of recklessly causing serious bodily injury to Sarah by failing to seek medical treatment, resulting in Sarah’s death. She raises five points of error on appeal: (1) and (2) the evidence was legally insufficient to support convictions for injury to a child by omission committed recklessly and manslaughter, (3) the trial court erroneously refused to include a question on mistake of fact in the jury charge, (4) the trial court erroneously refused to grant her motion for mistrial after the State’s witness testified in violation of the trial court’s order, and (5) the trial court erroneously overruled her objection to a PowerPoint slide used during voir dire that tainted her right to the presumption of innocence. We reverse the trial court’s judgment of conviction for injury to a child and manslaughter and render a judgment of acquittal on both counts.
Background
Eight-year-old Sarah Brasse reported to the school nurse complaining of a stomach ache. After sending Sarah back to class *246 twice, the school nurse called Sarah’s father, David Brasse, and Sarah’s stepmother, Samantha Britain. Britain picked Sarah up from school and took her home. Sarah began vomiting that evening and her brother testified he heard her vomit three times. 1 The following day, Sarah stayed home from school with Britain. Sarah continued to vomit during the day, and though she drank fluids, she did not eat. Sarah’s brother checked on her when he arrived home from school and covered her with a blanket. She died shortly thereafter from complications arising from appendicitis. Because the chronology of events is important in determining the sufficiency of the evidence, a table referencing the evidence is provided below.
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Legal Sufficiency
in her first and second points of error, Britain challenges the legal sufficiency of the evidence supporting her convictions for reckless injury to a child and manslaughter because (1) she was not aware of a substantial and unjustifiable risk that Sarah would be seriously injured or would die, and (2) her failure to seek medical treatment was not a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances as viewed from her standpoint.
*247 A. Standard of Review
In reviewing the legal sufficiency of the evidence, we must view “the evidence in the light most favorable to the prosecution” and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
B. Elements of Injury to a Child and Manslaughter
We review the elements of injury to a child and manslaughter together because they both require a mental state of recklessness.
See Williams v. State,
1. Injury to a Child
A person commits the offense of injury to a child if the person “intentionally, knowingly, or recklessly by omission,” causes serious bodily injury or death to a child fourteen years of age or younger. Tex. Penal Code Ann. § 22.04 (West 2011). “Injury to a child is a result-oriented offense requiring a mental state that relates not to the specific conduct but to the result of that conduct.”
Williams,
2. Manslaughter
A person commits the offense of manslaughter “if he recklessly causes the death of an individual.” Tex. Penal Code Ann. § 19.04. Manslaughter, like injury to a child, is a result-oriented offense.
See Schroeder,
C.Recklessness
“A person acts recklessly ... when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Tex. Penal Code Ann. § 6.03(c). The risk created “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.
“The State cannot be permitted to submit its case to the jury unless it has offered a
prima facie
case of a defendant’s actual, subjective ‘disregard of the risk of a resulting [injury] which ... rise[s] to the level of a “gross deviation” from an ordinary standard of conduct.’”
Williams,
D. Analysis
1. Culpable Mental State
Criminal recklessness, the mens rea for the offenses of manslaughter and reckless injury to a child, requires that the defendant possess a subjective and actual awareness of a substantial and unjustifiable risk.
See
Tex. Penal Code Ann. §§ 6.03(c), 19.04, 22.04;
Williams,
2. No Evidence Britain Was Subjectively Aware of a Substantial and Unjustifiable Risk
The record indicates Britain was aware of the following on February 5th: Sarah visited the school nurse three times the previous day complaining of a stomach ache and was sent home from school; Sarah vomited before she went to bed; Sarah was still not feeling well in the morning and stayed home from school; Sarah vomited several times throughout the day, had diarrhea, did not want to eat, and felt weak. At the time of her death, Sarah had been vomiting for nearly twenty-four hours. The school nurse testified she would absolutely seek medical treatment for her child if he or she was in the same situation. However, she made no such recommendation to Britain or Brasse. In addition, Dr. Gale Gregory-Laine, the State’s expert and treating emergency room physician on the night of Sarah’s death, testified that a reasonable parent would have taken their child to the emergency room if the child had been vomiting for more than twenty-four hours. However, there is no evidence Sarah was vomiting for more than twenty-four hours or that Britain knew of such a standard. 2
This is a tragic incident, but the record is devoid of evidence that Britain knew there was a substantial risk Sarah would die from symptoms that are common to many childhood ailments and that persist *249 ed for less than twenty-four hours. The State fails to offer any argument as to how a rational jury could have appropriately concluded that Britain was aware of the substantial risk of death based on the evidence presented. Although the jury is permitted to draw appropriate conclusions and inferences from the evidence, it was not rational for the jury to conclude the requisite knowledge based on the record before us.
Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence is legally insufficient for any rational jury to find beyond a reasonable doubt that Britain was subjectively aware of and consciously disregarded a substantial and unjustifiable risk that Sarah would suffer serious bodily injury or die if she did not receive medical treatment.
See
Tex. Penal Code Ann. § 6.03(c);
Jackson,
Conclusion
Because there is legally insufficient evidence of criminal recklessness, a rational trier of fact could not have found beyond a reasonable doubt the essential elements of the offenses of injury to a child and manslaughter. Therefore, the evidence was legally insufficient to support Britain’s convictions. We reverse the trial court’s judgment of conviction for injury to a child and manslaughter and render a judgment of acquittal on both counts.
Notes
. The parties agree that the time between when the vomiting began and when Sarah died was no greater than twenty-four hours,
. Other evidence in the record described the lack of cleanliness in the home, Sarah’s poor dental hygiene, and Britain's comment to the school nurse that Sarah was a drama queen, but this is no evidence of criminal recklessness.