                               NUMBER 13-08-688-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


BRIAN FELLERS,                                                                  Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                     On appeal from the 36th District Court
                         of San Patricio County, Texas.


                          MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela

       Appellant, Brian Fellers, and a co-defendant, Martha Vasquez, were indicted for the

first-degree felony offense of causing serious bodily injury to a child by omission. See TEX .

PENAL CODE. ANN . § 22.04(a)(1), (e) (Vernon Supp. 2009-2010). The jury convicted him

of the offense and assessed punishment at eighteen years’ imprisonment, plus a $2,000
fine. By three issues, appellant complains of charge error and challenges the legal and

factual sufficiency of the evidence to support his conviction. We affirm.1

                                    I. FACTUAL BACKGROUND

A. State’s Evidence

       Appellant and his ex-wife had two sons, M.F. and J.F. In 2007, he obtained custody

of both children, and he, along with three-year-old M.F., and two-year-old J.F. began living

with his girlfriend, Martha Vasquez, at her parents’ home in Gregory, Texas. In the evening

of November 6, 2007, appellant, Martha, M.F., and J.F. went to Sinton, Texas to return a

lawnmower to appellant’s mother, who testified appellant told her J.F. “had thrown up and

that Martha was cleaning him up and that he wanted to go real quick and go back to go

home.”

       Martha’s sister, Angelica Vasquez, testified that when appellant, Martha, M.F., and

J.F. returned home from Sinton, appellant gave J.F. a bath and that she saw J.F. throw up

water on three occasions that evening–twice in the presence of Martha and appellant.

Angelica stated that J.F. looked “[s]ick” and “sad.”

       When Angelica’s boyfriend, Courtney Greer, arrived at the Vasquez home that

evening, he saw that J.F. “looked a little pale” and “sick.” He saw Martha take J.F. into the

bathroom, where J.F. threw up a “yellowish” substance. Courtney testified that J.F. told

him, “‘My tummy hurts.’” Later, Courtney saw Martha and appellant in their bedroom with

J.F. Courtney testified that J.F. looked pale but “didn’t seem like anything was wrong.”

Courtney testified that he asked J.F. how he felt and that J.F. said “his stomach hurt.”

Courtney testified that appellant and Martha said they would take J.F. to the doctor “in the


       1
        This appeal does not involve Martha Vasquez. Her appeal is before this Court under a separate
cause num ber.
                                                 2
morning if he’s not doing any better.” He also testified that J.F. had a bruise “on his

forehead from when he fell, and one from when he scratched himself.” He said that the

fall occurred on Halloween night. He said that three or four days before J.F. died, J.F.

received a bruise on the back of his legs from sitting in a chair.

       In the early morning of November 7, 2007, Courtney, who spent the night at the

Vasquez home, saw Martha, M.F., and J.F. inside their bedroom. Angelica testified that

about 7:00 a.m. that morning, she saw Martha holding J.F., who was “pale and just limp.”

Martha handed J.F. to Angelica and called both 9-1-1 and appellant, who had gone to

work. Courtney gave J.F. mouth-to-mouth resuscitation, and he testified that when

appellant arrived at the Vasquez home, appellant “took a look at [J.F.] and he asked what

was wrong and we said we didn’t know.”

       At 7:31 a.m., J.F. arrived at the hospital via EMS and was treated there by Dr. Saiad

Mustafa. Medical personnel gave J.F. chest compressions and medications, but Dr.

Mustafa pronounced him dead at 7:46 a.m.

       On the day J.F. died, Karen Diaz, a justice of the peace for San Patricio County,

spoke to appellant at the emergency room. She testified he told her that before he left for

work that morning, he “checked on [J.F.] . . . and that his [J.F.’s] breathing was labored and

that he was breathing real heavy through his nose. . . .”

       Stephanie Pierce, who worked for Bay to Bay Early Childhood Intervention, testified

that the day after J.F. died, she asked Martha about J.F.’s death. She stated that Martha

told her, “[I]t was a regular day until about 6:00 P.M. . . . [J.F.] had eaten fish sticks during

the mealtime and had a corn dog later and she said he just began throwing up. . . . [T]hey

were getting ready for bed and [J.F.] continued to throw up.” Pierce testified that when she

asked Martha why they did not take J.F. to the emergency room, Martha said, “[T]hey didn’t
                                             3
take him because she was afraid that hospital staff would see a bruise on his leg and

report it to C.P.S.” Martha told Pierce that J.F. “kept throwing up until around 11:00 or 12

o’clock and she [Martha] told Brian [appellant] that she didn’t care. ‘I don’t care,’ you know.

‘We need to take him, Brian.’” Martha told Pierce that she fell asleep so they all went to

bed. Pierce said that Martha told her “that earlier in the morning of the 7th of November

around 6:30—6:00 to 6:30 . . . [J.F.] began throwing up again” and that “he went into

convulsions.” When he went into convulsions, “they called 9-1-1 . . . .”

       After J.F. died, appellant provided the police with a recorded statement2 concerning

the events surrounding the death. Appellant stated that on the afternoon of November 6,

2007, Martha called him at work and told him that J.F. had thrown up. That evening, he

gave J.F. a shower and knew that he was throwing up. He said that either Martha or

Angelica gave J.F. some Tylenol. The next morning, he left for work between 5:00 and

5:30. Before he left for work, he said that J.F. was “fine.”

       Dr. Ray Fernandez, the Nueces County Medical Examiner, performed the autopsy

and found numerous bruises and abrasions on the child’s left and right upper forehead, left

eye, left upper eye lid, right cheek, left and right jaws, left eyebrow, right and left upper

arms, left forearm, right and left lower abdomen, right and left lower back, left and right

thighs, right knee, left and right buttocks, lower right hip, left calf, and right and left lower

legs. He testified that “blunt trauma,” not a blood disorder, caused these injuries and that

some of the bruising to the legs and face could have resulted from efforts to save his life.

The internal examination of the abdominal cavity revealed “bleeding just below the

pancreas” and a quarter-inch “tear of the tissue.” The abdominal cavity, which should



       2
           The State introduced appellant’s recorded statem ent into evidence as State’s exhibit 28.
                                                       4
contain no free fluid, contained 275 cc’s of fluid. He stated there was “trauma to the

abdomen, causing the tearing inside the abdomen; causing bleeding inside the abdomen;

causing the fluid and the inflammation to build up in the abdomen.” He stated the cause

of death was “blunt force abdominal injuries.” He said the range of time in which the

abdominal trauma occurred would be anywhere from twelve hours up to two or three days

and that from the time J.F. sustained this blunt-force abdominal trauma, he would have

started exhibiting symptoms such as pain and vomiting. Vomiting and the loss of fluid

inside the abdomen would make J.F. dehydrate and want to drink water. When the

prosecutor asked him whether J.F.’s injuries could have been treated, he said, “I would say

early on, the chances for treatment and survival are good. Later, chances are not good.”

He said the injury that caused J.F.’s death was “serious bodily injury” not consistent with

falling off of a bed or falling onto the handlebars of a tricycle.

       Dr. Nancy Harper, a pediatrician who served as the medical director for the CARE3

Team at Driscoll Children’s Hospital, reviewed photos of J.F.’s body that were taken after

he died. She testified the bruises on both sides of his head “represent[ed] two episodes

of trauma” and did “not appear consistent with accidental injury.” She said the bruising to

the backs of J.F.’s thighs had “[l]inear patterns,” which “are often seen when children get

hit with objects such as belts, looped cords, or other things that would leave a line–like

distribution of bruising.” When asked if this bruising could occur from the child sitting in a

chair, she said, “No. Otherwise we’d have lots of children with that.” However, she said

“it would be possible” for J.F. “[t]o obtain these bruises if he were forced to sit in a chair.”

She said the bruising to his right buttock “appear[ed] patterned,” meaning that “[i]t looks



       3
           This is an acronym for “Child Abuse Resource and Evaluation.”
                                                     5
like it was caused by . . . a tool or a hand.” She said that the bruising to J.F.’s abdomen

is “not what be [sic] normally see with normal childhood play, . . . .” She stated that “[t]he

majority of children with abdominal injuries from bicycles and handlebars are over four

years of age and that handlebar injury to the abdomen would not result in two bruises, one

on either side of the abdomen. Rather, that injury “would result in more of an abdomen

sort of injury towards the center, upper part of the abdomen.” She did not see any sort of

bruising on the center part of J.F.’s abdomen. She said that if J.F. had “been presented

early enough” to the emergency room, he would have been treated for his injuries.

       On cross-examination, Dr. Harper testified that “[t]he majority of children, when they

sustain injuries from resuscitation, have perhaps abrasions, small bruises perhaps to the

chest and face, and around their airway from intubation.” She stated that if she had

evaluated J.F., she would have noted that he had bruising “not consistent with normal

childhood activity and I would have said that it was consistent with physical abuse.” She

said that “the majority of [J.F.’s] bruises are from direct impact and trauma.”

B. Defense Evidence

       Dr. Charles Harvey, a forensic pathologist and the former Galveston County Medical

Examiner, testified J.F. had twenty-three bruises and fourteen abrasions on his body. He

stated that about seventeen of the bruises are similar in size and that “[m]ost of them are

compatible with the sort of patterns that are laid down by gripping fingers.” When defense

counsel asked him, “Is that consistent, in your opinion, with life-sustaining efforts that would

be employed on [J.F.]?”, he said, “In the emergency room and before, yes, sir; it can be.”

He said that the bruises on the back of the thighs were not consistent with recent trauma

and that the bruises on J.F.’s lower abdomen were compatible with recent injury. He said

that his findings with respect to the abdominal bruising were consistent with the findings
                                            6
by Dr. Fernandez. He said that trauma to J.F.’s “buttock area” looked “relatively fresh” and

had “a slight pattern to it. Parallel, linear lines. It could be compatible with a hand.” He

said that when a person has “septic shock” or “sepsis,” a “lesser amount of pressure than

usual” will be needed to create bruising in the skin. He opined that a tricycle or scooter

“could have” caused the trauma to J.F.’s abdomen. He explained that “serious injuries can

occur to kids from a low-energy type injury; that a child falling on handlebars of bicycles .

. . can . . . do significant injury to the inter-abdomen area.”

       Dr. John Glanasnik, a pediatrician who worked at the Student Health Center at the

University of Alabama-Tuscaloosa, testified that some of the bruises on J.F.’s body,

especially on his elbow, forehead, cheeks, and legs, resulted from “purpuric bleeding . . .

into the skin, loss of blood from the vascular system into the skin.” He said that when a

person has an injury to the bowel or an infection in the abdomen, “germs” get in the

bloodstream and produce toxins, which cause “bruise-like bleeding into the skin,” which is

“part of the septic process, or sepsis process.” He said that these “lesions” or bruises

“could have developed” on J.F.’s body over a period of one to three hours. He did not

“think they would have at all been present necessarily the evening before [J.F.’s death].”

He agreed with Dr. Fernandez’s finding that J.F. suffered blunt-force injury to the abdomen.

He opined that J.F. did not comport with the definition of an abused child, stating “[H]e was

well-nourished.” He said that “in my opinion, the unfolding of events is consistent with a

low-energy impact force to the abdomen setting off intestinal injury. . . . I don’t see

anything on that autopsy that allows one to say that this is homicide versus accidental.”

He stated that the weight of a child falling on solid objects can result in significant damage

to the intestines. He opined that some of the bruising on J.F.’s body resulted from “life-

saving techniques.” When defense counsel asked him, “[I]s it unusual for parents to--kid
                                       7
has a tummy ache, for them to give him some medicine and just put them to bed?”, he

said, “No, sir. . . . [I]f a child throws up three or four or five times in the evening, the first

medical assumption is going to be had [sic] a stomach viral flu or had some bad food, . .

. .” He further stated, “I don’t see that, you know, every time a child throws up four times

he’s supposed to go to the emergency room in the middle of the night and be seen by a

pediatrician. I don’t know that that’s the standard of care in the country” and “I don’t see

that when a two-year old throws up three or four or five times in the course of an evening

and says his stomach hurts that that’s necessarily going to be profoundly alarming to most

parents.” He stated that the abdominal injury that led to J.F.’s death could have been

caused by the child falling onto the handlebars of a bicycle or scooter.

       Martha Vasquez’s father, Angel Vasquez, Sr., testified that M.F. and J.F. played with

tricycles. The day before J.F. died, Mr. Vasquez arrived home about 8:30 p.m. and was

told that J.F. had vomited when coming back from Sinton. He testified that J.F. had two

bruises; “one on the lower end of the cheek and one on the buttock area.” He said that

J.F. looked “normal” when he saw him at 9:00 p.m., and he did not think that Martha and

appellant “should have taken him to the doctor then.” He said that J.F. did not “look as

though he needed to be rushed to the hospital[.]” However, when defense counsel asked

him, “So if he’s just vomiting up food and water and had a little tummy ache, do you think

you would have taken him to the doctor that night?”, he said, “Well, I believe so; yes.” Mr.

Vasquez left for work at 6:25 a.m. the following morning, Before he left for work, he saw

J.F. sleeping and testified that “[e]verything looked normal.”

       Rodrigo Rodriguez testified that one evening in early November 2007, he saw

appellant, M.F. and J.F. at a home in Sinton. He saw both children playing. Neither child

looked sick.
                                                8
                                       II. DISCUSSION

A. Serious Bodily Injury to a Child by Omission

       We first address issues two and three wherein appellant contends the evidence is

legally and factually insufficient to support his conviction.

       1. Standard of Review-Legal Sufficiency

       “When conducting a legal sufficiency review, a court must ask whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt’—not whether ‘it believes that the evidence at trial established guilt beyond a

reasonable doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). “In doing so, we

assess all of the evidence ‘in the light most favorable to the prosecution.’” Id. (quoting

Jackson, 443 U.S. at 319). “After giving proper deference to the fact finder’s role, we will

uphold the verdict unless a rational fact finder must have had reasonable doubt as to any

essential element.” Id. at 518.

       Our review of a legal and factual sufficiency challenge should be examined under

the principles of review for a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d

273, 280-81 (Tex. Crim. App. 2008). “‘Such a charge [is] one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s burden

of proof, or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried.’” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997)). The law as authorized by the indictment means the statutory elements of the

charged offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d

394, 404 (Tex. Crim. App. 2000).
                                              9
       The indictment alleged, in relevant part, that appellant:

       intentionally or knowingly, by act or omission, cause[d] serious bodily injury
       to [J.F.], a child 14 years of age or younger, by failing to seek medical
       treatment for the said [J.F.] for blunt force trauma, and . . . [appellant] had a
       legal or statutory duty to act, namely [appellant] was a parent of [J.F.]; . . . .

       a. Applicable Law

       Under the Texas Penal Code, “[a] person commits an offense [of injury to a child]

if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally,

knowingly, or recklessly by omission, causes to a child, . . .: (1) serious bodily injury[.]”

TEX . PENAL CODE ANN . § 22.04(a)(1); Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim.

App. 2006). A child is a person fourteen years of age or younger. TEX . PENAL CODE ANN .

§ 22.04(c)(1). “Serious bodily injury’ means bodily injury that creates a substantial risk of

death or that causes death, . . . .” Id. § 1.07(a)(46).

       “‘[A]ct or omission’ constitute the means of committing the course of conduct

element of injury to a child.” Jefferson, 189 S.W.3d at 312. “Injury to a child by omission

is a ‘result of conduct’ offense.”       Williams v. State, 294 S.W.3d 674, 684 (Tex.

App.–Houston [1st Dist.] 2009, pet. ref’d). “[T]he essential element or focus of the statute

is the result of the defendant’s conduct (in this case, serious bodily injury to a child) and

not the possible combinations of conduct that cause the result.” Jefferson, 189 S.W.3d at

312, see Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985) (stating that

because injury-to-a-child statute does not specify the “nature of conduct,” the conduct is

inconsequential to its commission as long as “the conduct (whatever it may be is voluntary)

and done with the required culpability to effect the result the Legislature has specified”)

(emphasis in original).




                                               10
       The evidence is sufficient to support appellant’s conviction for injury to a child by

omission under section 22.04(a) of the penal code if the State proves either that he

intended to cause the injury through his omission or that he was aware that his omission

was reasonably certain to cause the injury. Johnston v. State, 150 S.W.3d 630, 636 (Tex.

App.–Austin 2004, no pet.); Dusek v. State, 978 S.W.2d 129, 134 (Tex. App.–Austin 1998,

pet. ref’d). A person acts intentionally, or with intent, with respect to a result of his conduct

“when it is his conscious objective or desire to engage in the conduct or cause the result.”

TEX . PENAL CODE ANN . § 6.03(a) (Vernon 2003). “A person acts knowingly, or with

knowledge, with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result.” Id. § 6.03(b). The jury may infer both knowledge

and intent from any facts that tend to prove the existence of these mental states, including

the defendant’s acts, words, or conduct and from the nature of the wounds inflicted on the

victim. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). The requisite culpable

mental state may also be inferred from the surrounding circumstances. Ledesma v. State,

677 S.W.2d 529, 531 (Tex. Crim. App. 1984).

       b. Analysis

       Dr. Fernandez testified there was “trauma to the abdomen, causing the tearing

inside the abdomen; causing bleeding inside the abdomen; causing the fluid and the

inflammation to build up in the abdomen.” When asked if J.F.’s injuries could have been

treated, he stated, “I would say early on, the chances for treatment and survival are good.

Later, chances are not good.” The evidence showed appellant did not seek medical

treatment for J.F. Thus, a rational jury could reasonably conclude that J.F. suffered a

serious bodily injury as a result of appellant’s failure to seek medical treatment for him.



                                               11
       Dr. Fernandez testified “blunt trauma” caused the injuries to J.F.’s body and that

some of the bruising to the legs and face could have resulted from efforts to save his life.

Dr. Nancy Harper testified that if she had evaluated J.F., she would have noted that he had

bruising “not consistent with normal childhood activity and I would have said that it was

consistent with physical abuse.” She stated that “the majority of [J.F.’s] bruises are from

direct impact and trauma.”

       Angelica Vasquez testified that during the evening preceding J.F.’s death, appellant

gave him a bath. Thus, a rational jury could reasonably conclude that by giving J.F. a bath,

appellant would have seen the bruises on his lower abdomen as well as the other bruises

and abrasions on his body. Furthermore, a rational jury could reasonably conclude that

because appellant knew J.F. was throwing up, knew he was sick, knew his stomach hurt,

knew he had the bruises to his lower abdomen and other parts of his body, and knew J.F.

had “labored” breathing and was “breathing real heavy through his nose” the following

morning, appellant would have known that J.F. had suffered some type of blunt-force

trauma to his body.

       The State presented evidence showing appellant knew about and discussed J.F.’s

medical condition with Martha and that they did not take him to the hospital for fear that a

bruise on his body would be discovered. We note that appellant and Martha told Courtney

they would take J.F. to the doctor “in the morning if he’s not doing any better.” When

Stephanie Pierce asked Martha why they did not take J.F. to the emergency room, Martha

told her that “they didn’t take him because she was afraid that hospital staff would see a

bruise on his leg and report it to C.P.S.” Even though this evidence leads to the conclusion

that appellant’s objective in failing to provide medical treatment to J.F. was to avoid

detection rather than to inflict injury upon him, it also shows he was aware of J.F.’s medical

                                             12
condition and the need to take him to a hospital. J.F.’s sickly and sad appearance,

stomach ache, continuous vomiting, extensive bruising to his body, and his labored

breathing on the morning of his death provide ample evidence to support a jury’s

determination that appellant was aware that his failure to provide medical treatment to J.F.

for his blunt-force trauma was reasonably certain to cause serious bodily injury. See

Johnston, 150 S.W.3d at 636 (stating that although evidence leads to the conclusion

defendant’s “objective in failing to provide medical care was to avoid detection rather than

inflict injury upon [the child], it also shows that [defendant] was aware of [the child’s] dire

medical condition and the need to take him to the hospital.”); see Guevara v. State, 152

S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating that “[m]otive is a significant circumstance

indicating guilt.”). Furthermore, appellant made inconsistent statements about the state

of J.F.’s physical condition. In his recorded statement, he told the police that before he left

for work, J.F. was “fine.” However, Judge Diaz testified that when she spoke to him shortly

after J.F.’s death, he told her that before he left for work, he “checked on [J.F.] . . . and that

his [J.F.’s] breathing was labored and that he was breathing real heavy through his nose.

. . .”    Inconsistent statements are probative of wrongful conduct and are also a

circumstance of guilt. Id.

         We conclude that, viewing the evidence in the light most favorable to the verdict, a

rational trier of fact could have found the essential elements of serious bodily injury to a

child by omission beyond a reasonable doubt. Therefore, there is legally sufficient

evidence to support the jury’s verdict that appellant caused serious bodily injury to J.F. by

omission.




                                               13
       2. Standard of Review-Factual Sufficiency

       In a factual-sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Grotti, 273 S.W.3d at 283. Evidence can be deemed factually

insufficient in two ways: (1) “the evidence supporting the conviction is ‘too weak’ to support

the fact finder’s verdict;” or (2) “considering conflicting evidence, the fact finder’s verdict is

‘against the great weight and preponderance of the evidence.’” Laster, 275 S.W.3d at 518

(quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court

of appeals conducts a factual-sufficiency review, it must defer to the jury’s findings. Id.

The court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient

when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factual-

sufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.

       The contrary evidence showed: (1) no one saw either appellant or Martha abuse

J.F.; (2) the bruises on J.F.’s body could have been caused either by techniques used to

save his life or by septic shock; (3) the fact that a young child like J.F. is throwing up and

has a stomach ache does not mean the parents need to take the child to a doctor or

emergency room; (4) J.F.’s abdominal injury could have resulted from a fall on a scooter
                                               14
or tricycle; (5) M.F. and J.F. played with tricycles; (6) on the morning of his death, J.F. was

asleep in the bedroom where appellant and Martha slept; (7) on the morning J.F. died,

appellant went to work and was not present when J.F. became so sick that Martha called

9-1-1, and (8) appellant saw J.F. before leaving for work and saw he was “fine.”

       The record contains conflicting testimony with respect to how J.F. received the many

bruises and abrasions to his body and how he suffered the blunt-force trauma. However,

the existence of contrary evidence is not enough to support a finding of factual

insufficiency. Lee v. State, 186 S.W.3d 649, 655 (Tex. App.–Dallas 2006, pet. ref’d); see

Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). The jury was free to

accept or reject all or any portion of any witness’s testimony. Adelman v. State, 828

S.W.2d 418, 421 (Tex. Crim. App. 1992); see TEX . CODE CRIM . PROC . ANN . art. 38.04

(Vernon 1979); see also Williams, 294 S.W.3d at 684 (stating that “[a]ny conflict in the

testimony concerning the severity, extent, and cause of [the child’s] injuries . . . was for the

jury to resolve.”). As the Goodman court observed, “just as a fact finder . . . is not required

to believe either the Cretan Liar or any one of the boy scouts, so the jury was not required

to credit [alternative] explanations, regardless of how reasonable they may be.” Goodman,

66 S.W.3d at 287.

       Considering all the evidence in a neutral light, we hold that the evidence is not so

weak that the verdict is clearly wrong and manifestly unjust and is, thus, factually sufficient

to support the conviction. See Watson, 204 S.W.3d at 414. Issues two and three are

overruled.

C. Charge Error

       In issue one, appellant contends the trial court erred by failing to sua sponte charge

the jury at the guilt-innocence phase with an instruction limiting the specific culpable mental
                                              15
state to be applied. Appellant’s counsel did not object to the charge.

         We analyze charge error according to the two-step test announced in Almanza v.

State, 686 S.W.2d 157, 171-74 (Tex. Crim. App. 1985) (op. on reh’g). First, we determine

if error exists in the charge. Next, if error exists, we determine whether appellant was

harmed sufficiently to require reversal. Id.

         In McQueen v. State, the court of criminal appeals pointed out that section 6.03 of

the Texas Penal Code delineates three “conduct elements” that may be involved in a

crime:     (1) the nature of the conduct; (2) the result of the conduct; and (3) the

circumstances surrounding the conduct. 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

“Injury to a child by omission is a ‘result of conduct’ offense.” Williams, 294 S.W.3d at 684.

When, as in this case, the offense is a “result of conduct” crime, the abstract portion of the

charge should limit the definitions of “intentionally” or “knowingly” to the “result of conduct”

element. Skillern v. State, 890 S.W.2d 849, 869 (Tex. App.–Austin 1994, pet. ref’d).

         Here, the charge defined the terms “intentionally” and “knowingly” as they related

to the result of the conduct:

               A person acts intentionally, or with intent, with respect to a result of his
         conduct when it is his conscious objective or desire to cause the result.

                A person acts knowingly, or with knowledge, with respect to a result
         of his conduct when he is aware that his conduct is reasonably certain to
         cause the result.

The trial court did not give the full statutory definitions of “intentionally” and “knowingly;”

rather, it focused strictly on “the result of his conduct or causing the result.” See TEX .

PENAL CODE ANN . § 6.03(a), (b).            Because the charge limited the definitions of

“intentionally” and “knowingly” to the specific culpable mental states for a result-oriented

offense, we conclude the charge is not erroneous. Issue one is overruled.
                                                16
                                     III. CONCLUSION

       We affirm the trial court’s judgment.




                                                    ROSE VELA
                                                    Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 24th
day of June, 2010.




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