NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS. JONATHAN ANDREW PEAK, Appellant VS. THE STATE OF TEXAS, Appellee

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1 ORAL ARGUMENT REQUESTED NO CR 5th Court of Appeals FILED: 7/18/11 14:00 Lisa Matz, Clerk IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS JONATHAN ANDREW PEAK, Appellant VS. THE STATE OF TEXAS, Appellee On Appeal from the 382 nd Judicial District Court Rockwall County, Texas Honorable Brett Hall, Presiding STATE S BRIEF CRAIG STODDART Assistant Criminal District Attorney Rockwall County, Texas SBN: Ridge Road, Suite 105 Rockwall, Texas (972) FAX (972)

2 SUBJECT INDEX Subject Index i List of Authorities ii Address to the Court Statement of the Case Statement of Facts Issues Presented Summary of Argument Argument and Authority I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THAT SIX BROKEN RIBS, TWO BROKEN WRIST BONES, BROKEN TIBIA AND SUBDURAL HEMATOMA SUSTAINED BY THE TWO MONTH OLD VICTIM IN THIS CASE CONSTITUTES SERIOUS BODILY INJURY II. THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT APPELLANT S REQUEST FOR AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF RECKLESSLY OR WITH CRIMINAL NEGLIGENCE COMMITTING THE OFFENSE OF INJURY TO A CHILD Conclusion and Prayer Certificate of Service Certificate of Compliance i

3 LIST OF AUTHORITIES CASES PAGE Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App.1994) Bittner v. State, 2010 WL (Tex.App.-Austin, NOT DESIGNATED FOR PUBLICATION).. 8 Black v. State, 637 S.W.2d 923 (Tex.Crim.App.1982)... 7 Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978)... 7,11,12 Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim.App.1980) Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App.1999) Gonzales v. State, 852 S.W.2d 102 (Tex.App.-Austin 1993, pet. ref d). 9 Hart v. State, 581 S.W.2d 675 (Tex.Crim.App.1979)... 9 Hedicke v. State, 779 S.W.2d 837, 840 (Tex.Crim.App.1989).. 6 Hernandez v. State, 946 S.W.2d 108, 113 (Tex.App.-El Paso 1997, no pet.). 9 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed.2d 560 (1979) Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000)... 6 Lentz v. State, 689 S.W.2d 305, 310 (Tex.App.-Amarillo 1985, no pet.). 6 Madden v. State, 911 S.W.2d 236, 244 (Tex.App.-Waco 1995, no pet.). 9 Moore v. State, 739 S.W.2d 347, 354 (Tex.Crim.App.1987)... 6,9,11 Nixon v. State, No CR, 2008 WL (Tex.App.-Tyler 2008, no pet, NOT DESIGNATED FOR PUBLICATION) 12 Peek v. State, 2001 WL (Tex.App.-El Paso, NOT DESIGNATED FOR PUBLICATION).. 8 Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993).. 13 Stuhler v. State, 218 S.W.3d 706, 714 (Tex.Crim.App.2007).. 6 ii

4 Taylor v. State, 71 S.W.3d 792, 795 (Tex.App.-Texarkana 2002, pet. ref d). 10 Villareal v. State, 71 S.W.2d 651 (Tex.App.-Corpus Christi 1986, no pet.). 7 Williams v. State, 575 S.W.2d 30, 33 (Tex.Crim.App.1979)... 9 STATUTES TEX.PENAL CODE ANN. 1.07(a)(46) (Vernon Supp.2007).. 6,11,12 TEX.PENAL CODE 6.03 (c) & (d) TEX.PENAL CODE ANN (a)(1), (c)(1), (e) (West Supp. 2010). 6 iii

5 NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS JONATHAN ANDREW PEAK, Appellant VS. THE STATE OF TEXAS, Appellee On Appeal from the 382 nd Judicial District Court Rockwall County, Texas Honorable Brett Hall, Presiding STATE S BRIEF TO THE HONORABLE COURT OF APPEALS: Now comes the State of Texas by and through her Assistant Criminal District Attorney for Rockwall County, Texas, Craig Stoddart, and files this State s Brief. STATEMENT OF THE CASE Appellant was charged by indictment with the first degree felony offense of injury to a child causing serious bodily injury. Appellant pleaded not guilty and the case was tried to a jury. The jury found appellant guilty and assessed punishment at 42 years in the Texas Department of Criminal Justice. [CR at 81]. 1

6 STATEMENT OF FACTS On July 9, 2010, two month old Alexis Peak was brought to Rockwall Pediatrics by her mother, Lori Peak, to address worries about the child s vomiting and lack of appetite. [RR 2, p. 199]. Alexis was seen by nurse practitioner, Beverly Hargrove. When asked about a bruise on the child s face, Lori Peak explained that Alexis injured her eye while being burped by Alexis father, Jonathon Peak. [RR 2, p. 236]. Following her examination of Alexis, nurse practitioner Hargrove immediately referred her to Children s Medical Center of Dallas. [RR 2, p. 240]. In the late evening / early morning hours of July 9-10, 2010, Alexis was seen in the emergency room by Dr. Matthew Cox, a pediatric physician and director of the child abuse program known as REACH (referral and evaluation of at-risk children) at Children s Medical Center. [RR 3, pp. 8-9, 11]. Upon initial examination, Dr. Cox observed a bruise around the child s left eye, and casts on her right arm and right leg (put there by emergency room staff as part of Alexis initial treatment for injuries). [RR 3, p. 14]. After a complete skeletal survey, Alexis was ultimately diagnosed with six broken ribs, a broken radius in her right wrist, a broken ulna in her right wrist, a broken tibia in her right leg, bruising to her face and two subdural hematomas (bleeding around the brain). [RR 3, pp , 34]. A referral was made by Children s Medical Center to Child Protective Services ( CPS ). [RR 3, p. 65]. CPS investigator, Francis Lawson, responded to the referral and proceeded to the hospital to meet with the social worker handling Alexis case and to speak with medical personnel and family members. [RR 3, pp ]. Investigator Lawson spoke with Alexis father, Jonathon Peak, appellant in the instant case. [RR 3, p. 2

7 67]. Mr. Peak explained that Alexis sustained the injury to her eye when, while burping the child, Alexis popped her head up and struck Mr. Peak in the face, giving him a black eye. Mr. Peak gave her a bear hug to stop her from doing it again. [RR 3, pp ]. Investigator Lawson did not notice any corresponding injury to Mr. Peak s face. [RR 3, p. 68]. Following her initial investigation and staffing with her supervisor, Investigator Lawson, suspecting child abuse, determined that Mr. Peak represented a threat to the safety of Alexis and her brother and initiated a safety plan whereby Mr. Peak would have no contact with the children. [RR 3, pp ]. The children were placed into the custody of their maternal grandparents. [RR 3, p. 79]. Lori Peak testified that on July 4, five days before bringing Alexis to Children s Medical Center, she received a text message from her husband, Jonathon Peak: Alexis just beat me up with her head. [RR 2, p. 188]. In the minutes following the message, Lori and Jonathon exchanged several text messages regarding Alexis condition. [RR 2, p. 189]. When she arrived home, Lori asked Jonathon if he had called the doctor. Jonathon responded that he had and that the doctor recommended that they put ice on Alexis injury. [RR 2, p. 193]. Nurse practitioner Hargrove later testified that her office did not receive a call that day from Jonathon Peak. [RR 2, p. 242]. Following the incident on July 4, Alexis continued to be cranky, suffered frequent vomiting and a loss of appetite. When her condition did not improve, Lori Peak brought her to Rockwall Pediatrics on July 9. [RR 2, pp ]. In a recorded statement, appellant provided an explanation for Alexis facial injury that largely matched the explanation he provided to Lori Peak and Investigator Lawson. He stated that, after her bottle, Alexis was fussy and having trouble burping. 3

8 As he was holding her she arched back and struck him in the eye with her eye. He then clutched her tightly against his chest so as not to drop her. [State s Exhibit 13, approx. 9:00]. He denied knowing how Alexis sustained her other injuries. [State s Exhibit 13]. ISSUES PRESENTED I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THAT SIX BROKEN RIBS, TWO BROKEN WRIST BONES, BROKEN TIBIA AND SUBDURAL HEMATOMA SUSTAINED BY THE TWO MONTH OLD VICTIM IN THIS CASE CONSTITUTES SERIOUS BODILY INJURY. II. THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT APPELLANT S REQUEST FOR AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF RECKLESSLY OR WITH CRIMINAL NEGLIGENCE COMMITTING THE OFFENSE OF INJURY TO A CHILD. SUMMARY OF ARGUMENT I. There is sufficient evidence in the record, particularly the expert testimony of Dr. Matthew Cox, for the jury to find that the injuries inflicted by the appellant upon the two month old victim constituted serious bodily injury. Additionally, there is evidence independent from Dr. Cox s testimony, from which the jury could have determined that the injuries sustained resulted in a protracted loss of use of the victim s arm, leg and pulmonary function. The evidence is sufficient to support a finding of serious bodily injury. II. There is no evidence in the record to support that, if guilty, appellant was guilty only of the lesser included offense of recklessly or with criminal negligence causing serious bodily to the victim. Appellant s statement, the evidence upon which he relies to 4

9 support his point, does not raise the issue of mens rea. Rather, the statement is a complete denial that appellant committed any offense whatsoever. As such, the record does not present the scintilla of evidence necessary to require an instruction on a lesser included offense. ARGUMENT AND AUTHORITY I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THAT THE SIX BROKEN RIBS, TWO BROKEN WRIST BONES, BROKEN TIBIA AND TWO SUBDURAL HEMATOMAS SUSTAINED BY THE TWO MONTH OLD VICTIM IN THIS CASE CONSTITUTES SERIOUS BODILY INJURY. In his first point of error, appellant complains that the State s evidence was insufficient to show that the injuries sustained by the two month old victim in this case constituted serious bodily injury as contemplated by Sections 1.07(46) and 22.04(a)(1) of the Texas Penal Code. Contrary to appellant s argument, both the record in the instant case and relevant case law support the State s proof that six broken ribs, two broken wrist bones, a broken tibia and two subdural hematomas are serious bodily injury as defined by the penal code. Appellant s first point should fail. Standard of Review The standard for reviewing legal sufficiency of the evidence is whether, after viewing all of the evidence in the light most favorable to the verdict, a rational fact-finder could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed.2d 560 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). 5

10 Applicable Law A person commits the first degree felony offense of injury to a child when he intentionally or knowingly causes serious bodily to a child fourteen years of age or younger. TEX.PENAL CODE ANN (a)(1), (c)(1), (e) (West Supp. 2010). Serious bodily injury is defined as an injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. TEX.PENAL CODE ANN. 1.07(a)(46) (Vernon Supp.2007). A bodily member may be construed as [a] part or organ of the body; especially a limb or other separate part. Lentz v. State, 689 S.W.2d 305, 310 (Tex.App.-Amarillo 1985, no pet.). The disfiguring or impairing quality of the injury is determined as the injury was inflicted, not taking into account the ameliorative effects of medical treatment. Stuhler v. State, 218 S.W.3d 706, 714 (Tex.Crim.App.2007). Substantial risk of death is not limited to only those cases in which death actually results from an injury or injuries. Moore v. State, 739 S.W.2d 347, 354 (Tex.Crim.App.1987). Serious bodily injury can be established by showing that the victim s wound, if unattended, could cause substantial risk of death, regardless of the prognosis following medical treatment. Hedicke v. State, 779 S.W.2d 837, 840 (Tex.Crim.App.1989). 1. Evidence is Legally Sufficient to Prove that Six Fractured Ribs Constitutes Serious Bodily Injury. In the instant case, Dr. Matthew Cox testified that a child with six rib fractures will have impaired rib function (difficulty with breathing, protection of internal organs) during the time they are healing. [RR 3, p. 23]. Dr. Cox further testified that because of the resulting pain, six rib fractures would cause impairment of the victim s pulmonary mechanics. [RR 3, pp ]. Dr. Cox summarized that rib fractures, such as those 6

11 incurred by the victim in this case, could cause prolonged loss and impairment. [RR 3, p. 39]. Notably, use of the word could by an expert does not render his testimony speculative. Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978). In addition to the other effects of six broken ribs, the injury also increases the risk of infection. [RR 3, p. 39]. Appellant relies on the holding in Villareal v. State, 71 S.W.2d 651 (Tex.App.- Corpus Christi 1986, no pet.), wherein the Corpus Christi Court of Appeals held that two broken ribs were insufficient to constitute serious bodily injury. However, the Court noted that [n]o testimony, expert or non-expert, was offered to show that the victim suffered either substantial risk of death or a serious permanent disfigurement. Id. at 652. In the instant case, Dr. Cox specifically testified that the rib fractures would cause prolonged loss and impairment of rib function. Additionally, in Villareal, the age of the victim was not given, but he was old enough to testify at trial and sustained only two broken ribs. The victim in the instant case was only two months old and suffered six broken ribs. Appellant also likens this case to Black v. State, 637 S.W.2d 923 (Tex.Crim.App.1982), wherein the Court concluded that serious bodily injury did not exist when the complainant sustained a gunshot wound to his thigh. Black is distinguishable from the instant case in that there was no expert testimony offered by the State to show that the wound created a substantial risk of death or that the victim experienced any protracted loss or function of a bodily member. Id. at 926. Here, Dr. Cox testified in detail regarding the seriousness of Alexis injuries, stating specifically 7

12 that the six rib fractures sustained by the infant victim would cause prolonged loss or impairment of rib function and pulmonary mechanics. In contrast to appellant s argument, several courts in this State have found fractured ribs to be serious bodily injury. In Peek v. State, 2001 WL (Tex.App.- El Paso, NOT DESIGNATED FOR PUBLICATION) the Court determined that two fractured ribs sustained by a 4 month old victim were serious bodily injury. The Court relied on the testimony of a Dr. Persaud who stated that fractured ribs would cause pain when the child tried to roll over and could impair the child s breathing. The Court found the evidence of serious bodily injury to be legally sufficient. In the instant case, Dr. Cox provided similar testimony: The fact that the ribs are broken, you know, pain causes you know any kind of movement of the chest will cause pain. So you wouldn t want to move it as much. It would be impairing pulmonary mechanics. [RR 3, pp ]. Also, the rib fractures impair her breathing [RR 3, p. 39]. In Johnson v. State, 2003 WL (Tex.App.-Amarillo, NOT DESIGNATED FOR PUBLICATION), based upon a physician s testimony that injuries were serious bodily injury as defined by statute, the Court held that rug burns, a tender area on the head and fractured ribs constituted serious bodily injury. In the instant case, Dr. Cox testified that he was aware of the legal definition of serious bodily injury and that the injuries sustained by Alexis fit that definition. [RR 3, p. 38]. In Bittner v. State, 2010 WL (Tex.App.-Austin, NOT DESIGNATED FOR PUBLICATION), the Court concluded that six rib fractures on a six week old infant constituted serious bodily injury. Notably, the injuries in Bittner were almost identical to 8

13 those in the instant case and included six broken ribs, skull fracture and a subdural hematoma. Based upon the facts and testimony presented at trial, particularly the testimony of Dr. Matthew Cox, the jury could have easily and properly determined that the six rib fractures sustained by Alexis at the hands of the appellant put her in substantial risk of death or protracted impairment. 2. Evidence is Legally Sufficient to Prove that Fractured Ulna, Radius and Tibia Constitutes Serious Bodily Injury. A protracted impairment exists, and therefore a finding of serious bodily injury is proper, when a bodily member loses normal function. Hernandez v. State, 946 S.W.2d 108, 113 (Tex.App.-El Paso 1997, no pet.) The loss of function need only be protracted, not permanent. Williams v. State, 575 S.W.2d 30, 33 (Tex.Crim.App.1979). The determination of whether or not the loss of function is prolonged enough to surpass the threshold of serious bodily injury must be done on a case by case basis. Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App.1987); Madden v. State, 911 S.W.2d 236, 244 (Tex.App.-Waco 1995, no pet.)[holding that loss of leg use for a month constituted a protracted loss); Gonzales v. State, 852 S.W.2d 102 (Tex.App.-Austin 1993, pet. ref d)[holding that injury suffered by the two month old victim when the defendant impairment of the leg s function and was, thus, serious bodily injury]. In addition to authority addressing specifically the protracted loss of use resulting from a broken bone, courts recognize that when injuries and their effects are obvious from the evidence presented, the fact finder may use common knowledge and everyday experience to draw reasonable inferences regarding the magnitude of the loss or impairment of bodily function. Hart v. State, 581 S.W.2d 675 (Tex.Crim.App.1979) 9

14 [holding that evidence of a wound requiring twenty stitches was sufficient]; Taylor v. State, 71 S.W.3d 792, 795 (Tex.App.-Texarkana 2002, pet. ref d)[holding that evidence of a dislocated toe and its immediate effect were obvious enough for the jury to conclude that the impairment would be prolonged or permanent]. Medical treatment, such as setting a broken bone to prevent disfigurement or impairment, does not make evidence insufficient to establish serious bodily injury. Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim.App.1980)[ holding that evidence was sufficient to support finding of serious bodily injury for a broken nose even though the effects of the injury had been ameliorated by medical treatment]. In the instant case, Dr. Cox testified that Alexis suffered a protracted loss of use of her right arm and right leg for the period of time that they were in cast. [RR 3, pp. 29, 39]. Because of her very young age, the two month old victim in this case was unable to testify to the effects of her injuries. However, it is obvious from the evidence that Alexis suffered a protracted loss of use of the affected extremities while they were in a cast. Dr. Cox testified that the casts themselves were specifically intended to completely immobilize the broken arm and leg to prevent discomfort and promote healing. [RR 3, pp ]. Though there is no evidence of exactly how long Alexis had to wear her casts, even a few weeks would represent a relatively substantial fraction of the two months old victim s life to that point. The jury could have inferred from its own experience, as well as the testimony of Dr. Cox, that Alexis injuries resulted in the protracted impairment of her right arm and right leg. 3. Evidence is Legally Sufficient to Prove that the Subdural Hematomas Inflicted upon the Victim Constitute Serious Bodily Injury. 10

15 Serious bodily has been sustained when the evidence shows that a victim s injuries created a substantial risk of death. TEX.PENAL CODE ANN. 1.07(a)(46). More specifically, if an injury presented an appreciable risk of death, whether treated or not, that risk is substantial enough for a rational trier of fact to conclude that serious bodily has been inflicted. Moore v. State, 739 S.W.2d 347, 354 (Tex.Crim.App.-1987). An expert s testimony and medical opinion may be used by any rational trier of fact to conclude that a victim s injury posed a significant threat to life. Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978). In language that could not be clearer, Dr. Matthew Cox testified that head injuries such as those sustained by Alexis in the case at bar present a substantial risk of death: Prosecutor: Alexis pattern of injury, including the brain, the traumatic brain trauma that she has you are aware of the legal definition of serious bodily injury? Dr. Cox: Yes. Prosecutor: Is it you opinion that that the injuries she sustained fit the definition of serious bodily injury? Dr. Cox: Yes. Prosecutor: And why? Dr. Cox: A couple of different ways. One is with head injuries like this, one in four children that I see with a head injury like Alexis with bleeding around the brain and broken bones, one in four children die. And I consider that a substantial risk of death if 25 percent of the babies with this type of injury die. [RR 3, p. 38]. Contrary to appellant s assertion, Dr. Cox s testimony is neither general nor hypothetical and refers directly to the brain trauma suffered by Alexis in the instant case. In unambiguous terms, Dr. Cox testified that the subdural hematomas suffered by Alexis, combined with her broken bones, put her at a 25 percent risk of dying from her injuries. 11

16 Dr. Cox s opinion was based on his personal expertise and complete medical examination of the victim in this case, including a review of the pertinent medical records, x-rays, CT scans, detailed family history of medical and social conditions, and consultation with the trauma team (including trauma surgeons, orthopedic surgeons, neurosurgeons and ophthalmologists) that treated Alexis. [RR 3, pp ]. From that testimony alone, the jury could have rationally concluded that Alexis suffered serious bodily injury. TEX. PENAL CODE ANN. 1.07(a)(46); Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978). Citing this Court to Nixon v. State, No CR, 2008 WL (Tex.App.-Tyler 2008, no pet, NOT DESIGNATED FOR PUBLICATION) appellant argues that in a separate, albeit similar, case Dr. Cox testified that a subdural hematoma constitutes serious bodily injury when it requires excessive medical care. However, a more accurate interpretation of Dr. Cox s testimony in Nixon is that because of the victim s serious bodily injury (subdural hematoma), he was breathing abnormally and required excessive medical care. Nixon at page 2. In other words, Dr. Cox did not determine that the victim s injuries were serious bodily injury because they required excessive medical treatment. Rather, the victim required excessive medical care because of the seriousness of his injury. Appellant s inference that subdural hematomas are not serious bodily injury unless the victim receives excessive medical treatment is entirely inconsistent with Dr. Cox s testimony and wholly unsupported by the record. Notably, based upon Dr. Cox s testimony, Nixon was found guilty and the case was affirmed by the Twelfth Court of Appeals in Tyler. Just as Dr. Cox s expert opinion provided the 12

17 basis for a valid finding of serious bodily injury in Nixon, so too does it form the basis for the same finding in the instant case. II. THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT APPELLANT S REQUEST FOR AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF RECKLESSLY OR WITH CRIMINAL NEGLIGENCE COMMITTING INJURY TO A CHILD. In his second point, appellant complains that the trial court erred in not granting his request for an instruction on the lesser included offense of recklessly or with criminal negligence committing injury to a child. However, the scintilla of evidence required to support a lesser included offense instruction is not present in the instant record. There is no error in the trial court s decision not to include the requested instruction. Standard of Review In order for a trial court to determine whether it should charge a jury on a lesser offense than the one for which a defendant is indicted, a two prong test is employed: (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 find that if a defendant is guilty, he is guilty only of the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). If more than a scintilla of evidence from any source raises the issue that a defendant is guilty only of the lesser included offense, the instruction must be submitted. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App.1999). Application In the case at bar, the State does not contest that injury to a child committed recklessly or with criminal negligence is a lesser included offense of injury to a child 13

18 committed knowingly or intentionally. The first prong of Rousseau is not in question. However, with regard to the second prong of the Rousseau, the record contains no evidence that appellant was guilty only of the lesser included offense of recklessly or with criminal negligence causing injury to the child victim, Alexis. A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or will occur. TEX.PENAL CODE 6.03(c). A person acts with criminal negligence when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result should occur. TEX.PENAL CODE 6.03(d). Relying upon his recorded statement admitted into evidence as State s Exhibit #13, appellant argues that he was entitled to instructions on the lesser included offenses of reckless injury to a child and criminally negligent injury to a child. In his statement, appellant claimed that on July 4, 2010, Alexis sustained a black eye when, while being burped by appellant following her bottle, she stretched out and lunged forward striking appellant in the eye with her eye. [State s Exhibit #13, 9:31-12:12][See also Appellant s Brief at p. 13]. Appellant explained that following the incident, he clutched her to his chest tightly enough to keep from dropping her. At most, the statement addresses the bruise around the child s eye and possibly injuries to her ribs. The statement does not address the two subdural hematomas, broken tibia, broken radius and broken ulna also sustained by the child, each of which constitute serious bodily injury. Affording even the most generous interpretation to appellant s statement, it is not evidence that he was aware of and ignored a substantial risk that his conduct would cause serious bodily injury to Alexis or that he should have been aware of such a risk. A close 14

19 review of appellant s statement shows it to be entirely silent to the fact that his actions placed Alexis at substantial risk of serious bodily injury. To the contrary, appellant very clearly states that Alexis received a black eye as a result of her own actions. According to appellant s statement, it was Alexis who lunged forward and struck him in the eye with her face. [State s Exhibit #13, at approx. 10:21]. Not only does appellant s statement fail to raise the possibility that he injured Alexis by his own reckless or negligent conduct, it wholly denies that his conduct was the cause of any of her injuries. By denying that he committed any offense, appellant has forfeited any requirement of a lesser included offense instruction. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App.1994)[holding that if a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing that he is guilty of a lesser included offense, then a charge on a lesser included offense is not required]. Beyond even the injury to Alexis eye, the Court is not left to speculate whether appellant denied committing an offense in the instant case. Appellant stated: I don t know what caused them [the injuries]. I have no clue. I have no idea who hit my baby. I have no idea what caused those problems. [State Exhibit #13, approx. 11:20-11:30]. Appellant later asserts: I didn t hurt my child. [State s Exhibit #13, approx. 28:21]. In addition to denying any culpability of his own, appellant attempts to cast blame elsewhere. Based upon Dr. Cox s assessment that the most recent hematoma may have occurred around July 1, appellant intimated that Alexis received at least one of her injuries during a time when she with her maternal grandparents, the Mullins. [State s Exhibit #13, approx. 22:40-22:55]. 15

20 Appellant can point to nothing in the record indicating that if he is guilty, it is only of recklessly or negligently causing serious bodily injury to Alexis. Appellant s statement, and similar statements made to CPS, does not show that he was aware that his conduct placed Alexis at substantial risk of serious bodily injury and that he disregarded that risk. Appellant s statement does not suggest the possibility that the State alleged the wrong mens rea. Appellant s statement is an unequivocal denial that he caused any injury whatsoever to his child, whether intentionally, knowingly, recklessly or with criminal negligence. In the absence of even a scintilla of evidence that appellant committed the alleged offense as a result of a reckless or criminally negligent act, the trial court properly denied his request for a lesser included offense instruction. In the absence of error, a harm analysis is unnecessary. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, there being legal and competent evidence to support the trial court s decision and no evidence suggesting any abuse of discretion and no error appearing in the record of the trial of this case, the State moves this Court to affirm the judgment of the Court below. Respectfully submitted, Craig Stoddart Assistant Criminal District Attorney Rockwall County, Texas SBN: Attorney for the Appellee The State of Texas 16

21 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing State s Brief has been mailed to the Appellant s Attorney of Record, Mr. Greg Gray, 1012 Ridge Road, Rockwall, Texas, on this the day of, Craig Stoddart 17

22 CERTIFICATE OF COMPLIANCE I certify that this submitted CD or attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by attachment; 2. The CD or attachment is labeled with the following information: A. Case Name: Jonathon Andrew Peak v. The State of Texas B. Appellate Case Number: No CR C. Type of Brief: Appellee s Brief D. Party for whom the brief is being submitted: The State of Texas E. The word processing software and version used to prepare the brief: MS Word 3. The CD or attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of the Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or attachment is free of viruses or any other files that would be disruptive to the Court s computer system. The following software, if any, was used to ensure the brief is virus-free: 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. Craig Stoddart Assistant Criminal District Attorney Rockwall County, Texas Date: 18