Opinion filed March 18, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-08-00242-CR
                                        __________

                        RUDOLPHO LEE ROCHA, Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                           On Appeal from the 106th District Court

                                     Gaines County, Texas

                                Trial Court Cause No. 08-3832


                            MEMORANDUM OPINION
       The jury convicted Rudolpho Lee Rocha of injury to a child and assessed his punishment
at ten years confinement and a $10,000 fine. We affirm.
                                       I. Background Facts
       It is undisputed that Rocha threw a baby walker and hit his daughter C.R. in the head. The
dispute involved Rocha’s intent: did he intentionally hit C.R. or was this an unfortunate accident?
       Rocha was outside playing with his children. It was cold and windy and it was starting to get
dark, so Rocha told the kids to come inside the house. As they were doing so, the wind caught the
glass door and it hit the air conditioner. Rocha grabbed the door with one hand. His youngest
daughter, M.R., was crawling on the floor trying to go back outside, and he blocked her with his foot.
He had M.R.’s walker in his other hand. He then noticed C.R. picking up M.R. C.R. has a medical
condition called hydrocephalus and Dandy-Walker syndrome. This condition makes her acutely
susceptible to injury from a head trauma. It also impacts her balance, and she started teeter-tottering.
Rocha was concerned that she would fall and hit her head on the coffee table or that M.R. would hit
the doorway with her head. He tossed the walker to the side. Rocha claimed that C.R. moved as he
was tossing the walker and that he accidently hit her in the head.
       Rocha’s ex-wife, Samantha Barron, described the incident differently. On the day of the
incident, they were still married and she was in the kitchen. Rocha had been mad at C.R. that day
and was yelling at her. Barron heard the children come inside and then she heard a thud. Barron
went into the living room. Rocha’s two older children were on one couch crying. M.R. was on the
floor, and C.R. was on the other couch crying and holding her head. The baby walker was upside
down beside her. Barron asked Rocha what happened, and he answered that C.R. was “f-----g
stupid.” Barron took C.R. to the bathroom. She noticed that C.R. was bleeding from a head wound,
and Rocha took her to the hospital.
       C.R.’s second grade teacher, Peggy Shirley, asked Rocha about the head injury when he
brought C.R. to school. Rocha told Shirley that they were throwing something in the dumpster and
that C.R. got hit in the head. Shirley asked C.R. if that was what happened, and C.R. answered no,
that her father threw something at her.
       Out of concern, Shirley asked Kelly Chiles, C.R.’s school counselor, to follow up. C.R. told
Chiles that her father tried to hit her with the walker while she was holding her baby sister. C.R. said
she “ducked her [sister] down so she wouldn’t get hit.” Chiles reported the incident to CPS.
                                            II. Discussion
       Rocha’s sole complaint is that the trial court erred when it failed to include his requested
submission on the lesser included offense of reckless injury to a child. In determining whether

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Rocha is entitled to a charge on a lesser-included offense, we must consider all of the evidence
introduced at trial. Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim. App. 2009). We employ
the two-pronged Aguilar-Rousseau test in our review. Hall v. State, 158 S.W.3d 470, 473 (Tex.
Crim. App. 2005) (referring to Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985), and
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). First, the lesser included offense
must be included within the proof necessary to establish the offense charged; second, there must be
some evidence that if the defendant is guilty, he is only guilty of the lesser included offense. Young,
238 S.W.3d at 875-76. We do not consider the credibility of the evidence and whether it conflicts
with other evidence in determining whether an instruction on a lesser included offense should be
given. Id.
       The State charged Rocha with intentionally or knowingly causing his daughter bodily harm.
The State agrees that reckless injury to a child is a lesser included offense. The State contends,
however, that Rocha has not satisfied the second prong of the Aguilar-Rousseau test because there
was no evidence permitting a jury to rationally find that Rocha was only guilty of being reckless.
       The Penal Code provides that a person acts recklessly when he is aware of, but consciously
disregards, a substantial and unjustifiable risk that the circumstances exist or that the result will
occur. TEX. PENAL CODE ANN. § 6.03 (Vernon 2003). The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the actor’s standpoint. Id.
       If there was sufficient evidence to justify the requested instruction, it came through Rocha’s
testimony. He admitted throwing the walker, but claimed that he was trying to get rid of it so that he
could grab M.R. before she or C.R. was hurt. Rocha claimed that he threw the walker to the side and
that C.R. was only injured because she moved as he was tossing it. This testimony does not establish
that, if Rocha is guilty of something, it is only reckless conduct; the evidence does not show that he
consciously disregarded a substantial and unjustifiable risk. Instead, if Rocha’s testimony is
believed, it establishes that he was not guilty of any criminal misconduct. The trial court did not err
by denying Rocha’s requested instruction, and his issue is overruled.



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                                               III. Holding
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


March 18, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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