           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1699-13



                         CYNTHIA ANN HUDSON, Appellant

                                             v.

                                THE STATE OF TEXAS

                       ON APPELLANT’S AND STATE’S
                   PETITIONS FOR DISCRETIONARY REVIEW
                     FROM THE SIXTH COURT OF APPEALS
                               CASS COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       The majority concludes that Appellant was not entitled to a lesser-included-offense

instruction on manslaughter because the evidence on which she relies raises the greater

offense of felony murder with the underlying offense of injury to a child. This conclusion

would be correct if one was examining only the Penal Code, where recklessness can be an

element of both manslaughter and felony murder based on injury to a child. T EX. P ENAL

C ODE §§ 19.04, 22.04. However, the jury charge in this case specified that injury to a child
                                                                       Hudson dissent - Page 2

is committed only when a person causes serious bodily injury intentionally or knowingly. It

did not include any language explaining that the offense could also be committed recklessly

or with criminal negligence. Therefore, the jury had no vehicle by which it could convict

Appellant based on a culpable mental state of recklessness, which was raised by the evidence

she presented. This means that if the jury believed that Appellant’s acts were not intended

to kill, but only to punish or discipline, it was not authorized by the application of the jury

charge to find her guilty of recklessly or negligently causing injury to a child. And, because

the jury was not charged on manslaughter, it could not find that she recklessly caused the

death of the child.

       Had the culpable mental states sufficient to commit injury to a child been explained

to the jury properly, I would agree with the majority’s decision. However, they were not, and

therefore, the trial court erred in denying Appellant’s requested instruction on manslaughter,

which would have allowed the jury to give effect to a finding of recklessness. For this reason,

I would remand this case to the court of appeals to evaluate whether Appellant was harmed

by this error. Therefore, I respectfully dissent.

                                                          Meyers, J.

Filed: December 10, 2014

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