             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                            NO. AP-76,020



                         MELISSA ELIZABETH LUCIO, Appellant

                                                    v.

                                     THE STATE OF TEXAS

                          ON DIRECT APPEAL
        FROM CAUSE NO. 07-CR-885-B IN THE 138TH DISTRICT COURT
                          CAMERON COUNTY


              K ELLER, P.J., filed a concurring opinion.


        In point of error eleven, appellant claims that she was entitled to a jury instruction on injury

to a child as a lesser-included offense. The second prong of the test for determining when a

defendant is entitled to an instruction on a lesser-included offense is that “some evidence must exist

in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only

of the lesser offense.”1 The cause of death in this case was blunt-force trauma to the head. Although



        1
            Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
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appellant admitted, in her recorded statement, to inflicting numerous other injuries upon the child

in prior instances, she denied hitting the child on the head. Appellant’s theory at trial was that she

had beaten the child in the past, but she had not committed the act that caused the child’s death.

        Appellant points only to the following testimony by a State’s witness in support of her claim

that she meets the “guilty only” prong:

        What she told me, is, she would grab her by the arm. And then she said, she would
        take her down the steps, she would move her around like a rag doll. That was one.
        And the other – other ways that – you know – was striking her in the back of the
        head, or striking her to the body.

This portion of the testimony shows only that appellant was guilty of separate instances of child

abuse that occurred prior to the incident that caused the child’s death. It is the State, not the

defendant, that decides which acts it is seeking a conviction for. A defendant cannot foist upon the

State a crime the State did not intend to prosecute in order to gain an instruction on a lesser-included

offense.2 The instances of abuse cited by appellant are extraneous offenses. As such, these separate

instances of conduct are not lesser-included offenses of the charged offense of capital murder.3

        Even if the record did contain evidence that could be construed as showing that appellant

inflicted the fatal injuries without the requisite culpable mental state for capital murder, she would

not be entitled to a lesser-included offense instruction for the reasons stated by the Court in its

footnote twenty. Because the child died, appellant would be guilty, at least, of felony murder.

        As to point of error four, I agree that the evidence is sufficient to support the jury’s decision



        2
            Bufkin v. State, 207 S.W.3d 779, 781 (Tex. Crim. App. 2006).
        3
         See Campbell v. State, 149 S.W.3d 149, 155 (Tex. Crim. App. 2004) (a distinct criminal
act from the offense charged cannot be a lesser-included offense); id. at 154 n.1 (“an extraneous
offense cannot logically be a lesser-included offense”).
                                                                     LUCIO CONCURRENCE — 3

that there is a probability that appellant would commit criminal acts of violence that would constitute

a continuing threat to society. I would analyze the question somewhat differently from the Court.

        In the Berry case, this Court held that the jury was irrational to conclude that there was a

probability that Kinesha Berry would be a future danger.4 In some ways, Berry’s crime was more

heinous, and her criminal history worse, than appellant’s. Berry did not just suffocate her days-old

baby Malachi. She duct-taped his mouth and arms, put him–alive–into a garbage bag, and threw him

in a dumpster.5 A few years later, she left her infant daughter naked in a ditch fifteen feet off the side

of a road, where she was found by chance, covered in fire-ant bites.6 In spite of citing the correct

standard of review, the Court relied explicitly on evidence put on by the defense in finding the

evidence of future dangerousness insufficient. (E.g., “[Berry’s] expert witnesses opined that she was

depressed and under extreme stress;” “[Berry] murdered one child and abandoned another, but

defense witnesses testified that these two incidents were totally out of character and she was a loving

and caring mother to her other three children.”)7 The Court then concluded, in essence, that it is

irrational to believe that subjecting one’s own baby to suffering and death and trying to kill another

could indicate a character so callous, so lacking in common human feeling and judgment, that it was

likely to manifest itself in criminal acts of violence against others.

        In the present case, appellant’s criminal history is not extensive. I do not consider her

negligence of her other children to be particularly probative of a tendency toward criminal acts of


        4
            Berry v. State, 233 S.W.3d 847, 860-64 (Tex. Crim. App. 2007).
        5
            Id. at 865.
        6
            Id.
        7
            Id. at 861-62.
                                                                  LUCIO CONCURRENCE — 4

violence, but she did indeed treat Mariah brutally. The jury was justified in finding that her abuse

of Mariah indicated that she was dangerous, and not just to her own children. But the jury in Berry

was equally justified in viewing Berry’s horrific and callous treatment of her own children as

evidence of a deficiency of character likely to manifest itself in criminal acts of violence against

others.

          With these comments, I concur in the disposition of points of error four and eleven, and I

otherwise join the Court’s opinion.

Filed: September 14, 2011
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