Wortham v. State

motorcycle, oper- merely sitting on finding giv- that the definition

ating it. A improper

en an restriction on the “understanding of what evidence

jury’s ” logically ‘operating’ could constitute leads charge vitally that the

to the conclusion theory

affected Kirsch’s main defensive signifi-

and made the case for conviction Therefore,

cantly persuasive. more we

find the inclusion of this definition for the “operate”

term constituted some harm.6 point

This of error is sustained.

IV. CONCLUSION judgment the trial court’s

We reverse remand this case for a new trial con- opinion.

sistent with this WORTHAM, Eugene

Ronald

Jr., Appellant, Texas, Appellee. STATE

No. 09-11-00231-CR. Texas, Appeals

Court of

Beaumont.

Submitted March 2012. 9,May

Decided 2012. acknowledge seemingly 6. We odd conclu- other can be Had the conclusion drawn. guilt, convicting jury given sion that while the evidence when not been a definition of term, approved tested an definition of the term we could conclude elected sufficient, definition, "operate,” "operate” a similar use broad definition of which given jury, choosing when to the caused harm to the led to rather than conviction a more might defendant. Based on the rationale of the Tex- restrictive definition that have led to an Appeals, acquittal. as Court of Criminal we find no Houston, for Bradley, appellant.

Dan P. Countiss, Atty., Richard N. Crim. Dist. Coldspring, for state. McKEITHEN, C.J.,

Before HORTON, JJ. GAULTNEY OPINION GAULTNEY, Justice. DAVID Eugene A Ronald Wort- convicted child, ham, Jr. of to a and the trial forty years in court sentenced Wortham challenges the sufficien- prison. Wortham cy support of the evidence to his conviction request and the trial court’s denial his on lesser-included of- instructions supports Because the evidence fenses. jury verdict and the trial court did not err record, denying request on this we the trial judgment affirm the court.

Background lived with C.G. and C.G.’s two-year-old daughter C.B. In March the emergency C.B. was admitted to arrest, in full cardiac had room. She was respiration, pulse, pressure, no or blood an acute unresponsive. and was C.B. had hematoma, ischemia, in- hypoxic subdural hemorrhaging, traventricular and static seizures. She needed an endo- epilepticus help tracheal tube to her breathe. appropriate oxygen testified she blood flow and to the Katherine Wick Detective At the brain. to the dispatched hospital. that C.B. had a hospital, Wick observed that, given Lahoti found C.B.’s subdural her the back of her head and lip, busted hemorrhage, retinal hemorrhages, and swollen, a and she was on breath- ear were bruises, multiple injuries C.B.’s were suspected machine. child abuse. ing Wick “highly concerning for nonaccidental trau- Trooper Christopher State Rich- Texas ma.” on the in Based blood C.B.’s brain Bell, mond, Deputy Jason and Detective eyes and explanation any and no trau- that Darryl LaMott each testified Wort- ma, Lahoti concluded that C.B. suffered sleeping ham claimed had been and C.B. from nonaccidental head trauma. Saraf plastic bag found with a that he later C.B. injuries that testified C.B.’s could be LaMott, to explanation on her face. In his accidently, caused but he no saw evidence the bag that he removed Wortham stated trauma, any of accidental nor did he find then noticed that C.B. was not breath- and indication of a birth defect that could have by tap- revive her ing. attempted He to injuries. caused C.B.’s Boutros did not shaking and her. ping her on the face believe a fall or that birth defect would house and found Wick searched C.G.’s injuries. cause C.B.’s Lahoti testified that items, that contained various plastic bags forty- hematoma within C.B.’s occurred empty plastic bag but did not find an Wick eight finding,” hours of the “CAT scan and lying on the floor. injuries. that someone caused C.B.’s injuries Because suffered to both C.B. Dr. Sunil Kumar Saraf testified that nei- brain, sides of her concluded that Boutros plastic bag a nor suffocation would ther explained had been Saraf C.B. shaken. have a subdural hematoma. Dr. caused baby syndrome that shaken occurs when a Boutros, George radiologist, testified “[y]oung vigorously child is shaken with proba- that there is no reasonable medical rapid acceleration that can cause trau- [ ] bility plastic bag blocking that a C.B.’s ma[,]” hematoma, including a subdural airway injuries. could have caused her He frac- hemorrhaging, long brain and bone that an subdural testified acute hematoma that, he can- although tures. He testified air causes seizures that restrict flow to the in diagnose baby syndrome shaken the explained brain. He that C.B.’s air flow room, say emergency he could not that impaired and she needed an endotra- baby syndrome was not the cause shaken Lahoti, cheal tube to breathe. Dr. Sheela injuries. testified that of C.B.’s Lahoti profes- and an associate a medical doctor baby syndrome include a signs shaken pediatrics, bag sor of testified that a on bleeding in the hemorrhage subdural and bleeding explain C.B.’s face would not here. present ventricles. Both were explained per- in her brain. Lahoti that a explained who has been suffocated does not usu- Saraf that an acute son brain, in an hour of the ally bleeding present have but that would be within person Lahoti that a with injury. the effect on the brain is the same as testified suffered C.B. types injuries suffocation when a child is knocked uncon- such stops breathing. immediately symptoms, scious and Lahoti testi- would show suffocation, seizures, as would level of conscious- fied that she use as decreased nausea, term, ness, disorientation, vomiting, or injuries, did not cause C.B.’s but Saraf, Boutros, difficulty walking. that explained Lahoti also “blood [the injuries created interrupts head” the child’s normal Lahoti testified child’s] breathe, ability which a lack of a substantial of death C.B. causes risk (Tex.Crim.App. impairment loss or protracted created a 2007). organs. jury’s Lahoti bodily give members or deference to the her We have died without believed C.B. would fairly conflicting responsibility to resolve breathing tube and immediate medication. evidence, and to testimony, weigh inferences from basic draw reasonable Soudelier

Social worker Kristen testified (the Hooper, facts. facts to ultimate that she took a statement C.G. mother), S.W.3d at 13. in which C.G. stated child’s injured her mouth the had fallen and C.B. alleged that Wortham The indictment day the offense. C.G. also stated before intentionally knowingly or caused serious easily. that bruises C.G. last saw C.B. C.B., a child fourteen bodily injury to to work. when Wortham drove C.G. C.B. younger, by shaking C.B. years age of or that There is evidence in the record Wort- causing her airflow suffoca- restricting day. that babysitting ham was C.B. C.G. Tex. Code Ann. tion. Penal told that she has never had con- Soudelier 22.04(a)(1) (West Supp.2011).1 § The C.B., of cerns about Wortham’s treatment charge language. tracked this The term any history of domestic and she denied “deprive oxygen by means to of “suffocate” abuse. Wortham’s sister testified that she any means.” Webster’s Third New Inter- has never seen abuse her two Wortham (2002). Dictionary national 2285 Wortham children, children, biological his two failed establish suffo- contends the State to she would feel safe leav- C.B. She testified cation. ing her children with Wortham. Wort- saw ham’s ex-wife testified she never plastic heard evidence that a abuse their two children or C.B.

Wortham bag on face would not have caused C.B.’s injuries injuries her and that her were not Sufficiency the Evidence of accidental. Boutros testified that C.B.’s one, challenges In issue Wortham injuries being resulted from shaken. In sufficiency support the of the evidence to fact, testimony the heard that subdur- injury his 11 to a child. The conviction hemorrhaging, al hematoma and brain Virginia legal-sufficiency Jackson v. stan suffered, signs from which are C.B. only reviewing dard is the standard that a baby syndrome. Doctors ex- shaken determining court apply should whether plained that subdural hematoma C.B.’s support the evidence is sufficient to each caused seizures that restricted the flow of element of a criminal offense that oxygen to the brain. Lahoti blood and required prove beyond State is a rea testified that someone had caused C.B.’s sonable doubt.” Brooks v. 323 injuries forty-eight within hours of the 893, S.W.3d 895 We The doctors testified finding. CAT scan light assess all the evidence in the most person injuries that a with would C.B.’s prosecution favorable to the determine signs of trauma. Ac- immediately show any whether rational trier fact could record, cording to the Wortham was the find the of the crime essential elements only with within person who had been C.B. beyond a reasonable doubt. Jackson v. 318-19, the hours he took her to the emer- 307, before Virginia, 443 U.S. 99 S.Ct. (1979); Hooper gency 61 L.Ed.2d 560 v. room. The doctors testified that 1. Because the amendments to section 22.04 current version of the statute. case, are not material to this we cite to the presents. risk of Goad v. injuries created substantial S.W.3d 446 (Tex.Crim.App.2011). death C.B. For a defen- dant to be entitled to a lesser charge, weight credibility of the judge As anything more than a scintilla of evidence reasonably testimony, could is sufficient. Id. We do not consider the deprived C.B. of believe evidence, credibility of the nor whether it C.B., which oxygen by shaking caused conflicts is controverted or with other evi- ultimately hematoma that led to subdural dence. Id. at 446-47. of airflow to C.B.’s brain and restriction prevented being her from able to breathe A trial court need not instruct a tube. See Hoo

without an endotracheal jury on a lesser-included offense when the Viewing at 13. the evi per, S.W.3d conduct establishing lesser offense is light dence in the most favorable to verdict, not included within the facts required the evidence is sufficient to show beyond prove a reasonable doubt that Wortham the charged Irving offense. committed the offense of to a child. 846 (Tex.Crim.App. Jackson, 318-19, 2005). 443 U.S. at 99 S.Ct. State, In v. Thompson 227 S.W.3d 2781; 13; Hooper, 214 S.W.3d at see also 2006, 153 (Tex.App.-Houston [1st Dist.] 22.04(a)(1). §Ann. Tex. Penal Code We ref'd), pet. the trial court appel denied overrule issue one. request charge lant’s for a on the lesser- recklessly included offense of causing bodi Jury Requested Denial of Instructions ly injury to a child. Id. at 162. The Court two, In issue Wortham chal “[wjhat stated that appellant recog fails to lenges the trial court’s denial of his re recklessly nize ... is that while causing quests jury instructions on the lesser- bodily may a injury to child be a lesser injury included offenses of reckless to a intentionally included offense of and know criminally negligent injury child and to a so, ingly doing [appellant] asking is for a argues jury child. He that the could have lesser included offense instruction based recklessly he or found acted with criminal required on facts not to establish the com negligence, intentionally rather than or charged.” mission of the offense Id. at knowingly. alleged 163. The indictment that Thomp knowingly intentionally son or caused seri

Whether a lesser-ineluded-of- bodily injury by holding ous to R.C. her given fense instruction must be involves a in He argued ap feet hot water. Id. on State, two-step analysis. Sweed v. peal placed that the evidence that he (Tex.Crim.App.2011). The child on the side of the tub and that she first a step requires determination of burned her water feet as the filled the tub “whether the in lesser-included offense is supported charge. a reckless Id. at 163— necessary the proof cluded within to estab 64. The Court held that because the con charged.” lish the offense Id. at 68. In constituting charged duct the offense step, reviewing the second court deter ' from constituting different the conduct if there is some evidence in the mines charge, recklessly of the requested offense permit record that would a ration that, injuring was not a lesser-included ally find if the R.C. guilty, defendant is he intentionally knowingly doing offense of guilty only of the lesser-included of so, required and the court was not reviewing fense. See id. The court con trial, all the evidence at instruct the on recklessness. Id. at siders admitted 846). just (citing Irving, the evidence that the 176 S.W.3d at defendant verdict.” See con- to reach an irrational that the record Wortham contends v. 943 S.W.2d 889-90 bag a was on Arevalo plastic evidence that tains overruled on other unresponsive. (Tex.Crim.App.1997), face and she was by Grey v. grounds stated he LaMott testified Wortham C.B., her. The 649-51 only but to revive shook stopped that the child breath- inference is established that The medical evidence bag on her face. ing a result of the as brain very the child sustained a severe that differ- Essentially, suggests seizure, bleeding, in injury resulting alleged by supported ent conduct' him sub- injury caused the child not to coma. lesser-included mission of instructions on normally and restricted airflow to breathe sup- offenses. But no medical evidence bleeding in the the brain. The child had ports injury, this version of and the State brain, eyes, in various bruis- bleeding attempted to the child suf- prove has not es, injuries. swelling other She had being suffocated fered ear, of the head and to the the back side fact, In the medical evidence estab- bag. is no medical evi- split lip. and a There aby bag was not suffocated lishes C.B. bag that the on her face caused the dence but went into a coma as a result bleed- injury. Wortham did not claim brain in this ing in the brain. We conclude her, violently he shook the child to revive case, Thompson as stopped breathing. and that she then On constituting charged the offense conduct record, rationally could not find this

was different from the conduct constitut- injury resulting in that the brain loss requested charge. the ing the offense of by contact alleged airflow was caused the requirement The first the lesser-in- —that bag alleged with the or an effort to revive proof within cluded offense is included request- the child. To have submitted the necessary establish the offense on ed instructions lesser-included offenses charged not satisfied. —is jury on this record would have invited the id.; to reach an irrational verdict. See see requirement the is Even when first Sweed, also 351 S.W.3d at 68. The trial satisfied, there must be some evidence denying requests. err in the court did not acquit from which a rational could the Appellant’s issue two is overruled. The greater the offense while con defendant of judgment trial court’s is affirmed. him the offense. victing lesser-included AFFIRMED. Sweed, at “The evidence 351 S.W.3d 68. establish the lesser-included offense

must McKEITHEN, Justice, STEVE Chief to the as ‘a valid rational alternative ” dissenting. (quoting Seg offense.’ Id. at 68 charged (Tex. respectfully I a less- undo v. 270 S.W.3d 90-91 dissent. Whether that the should be Crim.App.2008)). enough It is not er-included offense instruction a jury may jury charge depends disbelieve crucial evidence relat included the on offense; ing greater two-part analysis. the there must be Sweed v. 351 First, directly (Tex.Crim.App.2011). to the germane some evidence S.W.3d before an instruction on a it must be determined whether the lesser- lesser offense offense is warranted. included offense is included within the lesser-included Sweed, necessary charged the proof 351 S.W.3d at 68. If the trial court to establish the on a lesser-included offense. Id. at 68. Wortham contends instructed evidence, the record contains evidence that he offense not raised the that C.B., to the shake but not with intent to harm instruction would be “an invitation did committed, may of- offense have been and an request her. His for lesser-included properly requested, stems from same instruction is fense instructions issue indictment, alleged in the jury. conduct as must be submitted to the Id. at 69. i.e., shaking. Irving v. person recklessly A acts when he is According- aware of but consciously disregards a sub- injury criminally to a child and ly, reckless stantial unjustifiable risk that the cir- to a child are established negligent injury cumstances exist or the result will occur. all the of the same or less than by proof 6.03(c) (West § Tex. Penal Code Ann. required to establish the commission facts 2011). A person criminally negligent is injury to a child. knowing of intentional or when he ought to be aware a substantial Ann. art. Tex.Code Crim. Proc. See unjustifiable risk that the circum- (West 37.09(1) 2006); Irving, also see stances exist or will the result occur. Id. Moreover, at 846. these two of- 6.03(d). case, § In either there must be a only offense charged fenses differ from the gross deviation from the standard of care culpable mental respect in the less ordinary person that an would exercise suffices to establish their commis- state under all the circumstances as viewed from See Tex.Code Proc. Ann. art. sion. Crim. (d). 6.03(c), § standpoint. the actor’s Id. 37.09(3) (West 2006). these circum- Under There is more than a scintilla of evi stances, injury I believe that reckless rationally dence from which the could criminally injury child and to a negligent conclude that either reckless to a offenses of inten- child are lesser-included child or criminally negligent injury to a knowing injury to a child. tional child ais valid alternative to the offense of Second, must consid appellate court knowing injury intentional or to a child. er whether there is some evidence Sweed, 351 S.W.3d at 68. Evidence acquit which a rational could the de that Wortham in an attempt shook C.B. while greater fendant of the offense con directly germane revive her to whether victing him of the lesser-included offense. Wortham lacked intent to commit Sweed, at The record must 351 S.W.3d 68. State, charged offense. See Goad v. 354 permit contain evidence that would some 443, S.W.3d 447 that, jury rationally find if the defen question a fact re This evidence raises guilty only he is of the guilty, dant is whether intended to garding Wortham offense. Id. “The evidence lesser-included by shaking harm her or whether he C.B. must establish the lesser-included offense (1) of, consciously was aware but disre ‘a valid rational alternative to the as ” unjustifiable risk garded a substantial and (quoting Segundo offense.’ Id. charged (2) harm, would suffer failed C.B. (Tex.Crim. State, 79, 270 90-91 v. S.W.3d perceive unjustifiable a substantial and App.2008)). “Anything more than a scin suffer harm. See risk that C.B. would evidence is sufficient to entitle a tilla of Sweed, 69; v. Gay 351 S.W.3d at see also charge.” Bignall defendant to a lesser v. 829, (Tex.App.-Fort 833 235 S.W.3d 21, (Tex.Crim.App. 887 S.W.2d ref'd). these cir 1994). pet. Worth Under may be satisfied if This standard cumstances, a rational could find that negates some evidence refutes or other from Wortham’s injuries resulted establishing greater evidence offense thus, and, actions negligent reckless or presented subject or if the evidence is only of a guilty could have been Id. If evidence Wortham interpretations. different any greater offense issue lesser offense and not source raises a defensive knowing injury to a child. an a lesser-included of intentional or or raises issue that Sweed, 69; at also 351 S.W.3d see HUDSON, Cynthia Appellant, Ann 447-49; Goad, Bignall, 354 S.W.3d at 24; S.W.3d at 833. Gay, S.W.2d at jury instructions was entitled to Wortham Texas, Appellee. STATE of reckless on the lesser-included offenses injury to a child. criminally negligent No. 06-11-00028-CR. A to submit a lesser- trial court’s refusal Texas, Appeals Court requested that was included offense Texarkana. by the results in harm raised evidence 15, 2012. Submitted Feb. with the when that failure leaves the either the defendant option sole convict May Decided 2012. acquit him. greater of the offense or to 564, 571

Saunders v. (Tex.Crim.App.1995). The rationale “ ‘some’harm occurs because permitted to fulfill its role as

was dispute factual

factfinder to resolve the the defendant com-

[regarding] whether Id. greater

mitted the or lesser offense.” ease,

In limited to either this

finding guilty greater of the of- injury to a knowing

fense of intentional or greater

child or of the acquitting Wortham

offense. See id. Wortham received a for- sentence,

ty-year which far exceeds the

punishment range for either reckless or

criminally injury to a child. See negligent 12.32, §§ 12.33

Tex. Penal Code Ann. (West

(West 2011), 12.35, 22.04(e), (g) §§ State, 224

Supp.2011); see also Robalin v. 470, 477 (Tex.App.-Houston [1st reasons, pet.). no For these I

Dist.]

believe the trial court’s refusal of Wort- requested

ham’s instructions on lesser-in- in harm. See

cluded offenses resulted

Saunders, I 913 S.W.2d at 571. would issue,

sustain second reverse Wortham’s judgment,

the trial court’s and remand this proceedings

case for further consistent

with opinion. this

Case Details

Case Name: Wortham v. State

Court Name: Court of Appeals of Texas

Date Published: May 9, 2012

Citation: 366 S.W.3d 871

Docket Number: 09-11-00231-CR

Court Abbreviation: Tex. App.