Opinion filed September 17, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00061-CR
                                    __________

                     LACI RENA WRIGHT, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                               Taylor County, Texas
                          Trial Court Cause No. 24602A


                                   OPINION
      Laci Rena Wright appeals her jury convictions for two counts of injury to a
child by omission.     The trial court assessed Appellant’s punishment on each
conviction at confinement for a term of five years in the Institutional Division of the
Texas Department of Criminal Justice, with the sentences to be served concurrently.
However, the trial court suspended the imposition of the confinement portion of
Appellant’s sentences and placed her on community supervision for a term of eight
years. In two issues on appeal, Appellant challenges the sufficiency of the evidence
to support her convictions. We reverse and render judgments of acquittal.
                                 Background Facts
      Appellant’s boyfriend, Daniel Crippen, sexually assaulted Appellant’s four-
year-old daughter, B.R., in the early morning hours of November 11, 2009.
Appellant’s convictions arise from her conduct in response to the sexual assault. In
her written statement to the police, Appellant stated that Crippen awoke her at
approximately 2:00 a.m. to report that he had just come home from work and that he
had found B.R. sitting on her bed screaming and crying. According to Appellant,
Crippen told her that “all [B.R.] would say was, ‘He poked me.’” Appellant’s
account of her response to Crippen’s report is as follows:
              I went into [B.R.’s] bedroom and she was sitting on the middle
      of her bed holding her crotch. I didn’t even ask [B.R.] what happened
      before she started telling me that a man poked her. [B.R.] said the man
      had his hand on her mouth and she was crying. She said he came in her
      bedroom and held her down so she couldn’t move her arms and he had
      his hand on her mouth. [B.R.] said she tried to ask him to please stop
      but he wouldn’t move his hand. [B.R.] said the man said, “No, I ain’t
      gonna stop.” [B.R.] then started describing the man without me ever
      asking her to. [B.R.] said the man’s hand was dirty and it smelled nasty.
      She also described his hand as being hairy. She described him as
      having a deep voice. [B.R.] said he stuck his hand inside her panties
      and twisted it. She pointed her index finger and made a twisting motion
      with her hand as she was describing this. [B.R.] said the man snuck out
      of the house and ran home because he knew [Crippen] and I were there.
      I started questioning [B.R.] more about the man’s description and she
      said that the man had long hair. She said she felt his leg on her leg and
      he had long pants on. [B.R.] also described the man as wearing a white
      hat with a giraffe on it. [B.R.] also said that the man had long finger
      nails.

            I asked [B.R.] to let me see her bottom where the man had poked
      her. [B.R.] lifted her nightgown (which is actually a white slip) and I
      saw the blood on her crotch on the outside of her panties. I had her lay

                                         2
        back and I looked inside her panties and saw the blood. I asked
        [Crippen] if he had done this to her and he said no. I asked [Crippen]
        if he had seen anyone leaving the house and he said no. [Crippen] said
        he made a bacon sandwich out of the leftover bacon I had made the
        previous night (before I went to bed) when he heard [B.R.] crying.

               I went and got some toilet paper to remove the blood so I could
        see better. I then saw that [B.R.’s] skin under her vagina was a purple
        red color and there was a chunk of skin missing. She said it hurt her
        when I touched her there to clean the area. I went to my bedroom to
        get my phone, my camera, and my cigarettes. That’s when I saw that
        it was 2:15 A.M. I then went back into [B.R.’s] room because she was
        yelling for me. [B.R.] said her bottom was hurting so I told her to let
        me look so I could take pictures. As I was looking at it, I touched it so
        I could see better. [B.R.] said it hurt when I touched her and she asked
        me to be careful. I photographed [B.R.’s] vaginal area, her panties, and
        the sheets where there were a few small marks of blood. I also used the
        video camera feature on my digital camera to video [B.R.] telling what
        had happened. No one told [B.R.] what to say before I videotaped her.
        [B.R.] asked me to get some medicine and put it on her like what I put
        on myself when I hurt down there. [B.R.] had seen me put medicine on
        myself before and she had asked what it was. I told her it was big girl
        medicine that big girls use when it hurts down there. I went and got my
        Vagisil and put some on her after she asked me to. I also put different
        panties on [B.R.].1

        Despite her four-year-old daughter’s alleged report of being sexually
assaulted in her bedroom by a stranger, Appellant did not call the police and she did
not transport her daughter to the hospital to be examined and treated for her injuries.
After conducting her own examination of her daughter’s injuries and taking
photographs of them, Appellant put B.R. back to bed and “went to the living room
and smoked a cigarette.”




        1
         At the time she gave her statement to the police, Appellant was not aware that Crippen had given
a written statement to the effect that he was the person that injured B.R.

                                                   3
      Appellant then went back to bed until 6:45 a.m. when she received a call from
her mother “to make sure I was up so I could get the boys ready for school.”
Appellant did not report the incident involving B.R. to her mother during the phone
call. While taking B.R.’s two brothers to school, Appellant texted an Abilene police
officer that she had dated in high school and asked him, “How do I go about making
a report about suspected child molestation?” Appellant indicated that the officer
responded, “Need 2 go 2 hospital.” Appellant did not follow the officer’s advice.
Instead, she took B.R. to daycare after first going to the Eskimo Hut to get a drink.
      Candice South worked at the daycare that B.R. attended. She was in charge
of B.R.’s class. On the morning of November 11, Appellant brought B.R. to the
daycare. South testified that Appellant seemed to be “very distraught and upset.” In
South’s presence, Appellant told B.R. not to “talk about it” and that Appellant was
going to tell “Ms. Candice what happened.” South then stated that Appellant told
her as follows:
             [Appellant] told me that the day before had been the day from
      hell and that one of her boys was sick to his stomach and that the other
      one -- she had been having trouble getting him to sleep at night, so she
      was up trying to get him to sleep. And when she finally got one of them
      to sleep, she checked on the other two and they were asleep and that
      she had gone to bed. Then she said about 2:30 her boyfriend woke her
      up and said that [B.R.] was hysterical and crying and upset and he
      couldn’t get her to calm down.
             ....

             That she got up out of bed and went into [B.R.’s] room and that
      there was blood on [B.R.’s] underwear, her night gown and on her
      sheets. And she asked [B.R.] what happened and [B.R.] had told her
      that a man had come in with a mask on his face and put his hands in her
      underwear and hurt her.
Appellant also advised South that was she was going to try to make a doctor’s
appointment for B.R.

                                          4
       After Appellant left the daycare, B.R. asked South to accompany her to the
bathroom. South testified that this was an unusual request from B.R. B.R. reported
to South that she was bleeding and that her stomach was hurting. South then
observed blood in B.R.’s underwear. South reported her observations to the director
of the daycare, Sandy Grisham. South and Grisham reported the matter to CPS and
the police. South and Grisham subsequently transported B.R. to the emergency
room at Hendrick Medical Center based on the request of the responding police
officer.
       Hospital personnel were unable to examine B.R. until Appellant was located
so that she could provide consent for the examination. Grisham and South testified
that they made numerous attempts to contact Appellant by telephone. Appellant
arrived at the hospital after approximately two hours. Upon her arrival at the
hospital, Appellant gave consent for B.R. to be examined by a sexual assault nurse
examiner (SANE).
       Susie Butz is the SANE that examined B.R. at Hendrick. Butz testified to the
account that B.R. gave to her about a man putting his fingers inside of her. Butz
examined B.R.’s vagina as a part of her examination. She observed a complete
transection of B.R.’s hymen that was still oozing blood. She also observed that the
skin in her vagina was “purple, red and there were chunks of skin missing.” Butz
additionally observed a tear of the posterior fourchette of the vagina. Butz attributed
these injuries to be caused by “some sort of blunt force trauma.” Butz testified that
B.R. “probably would [have] a scar there” after it healed. She also testified that it
was a very painful injury to B.R.
       When asked on cross-examination if she gave B.R. any medical treatment,
Butz replied, “Not really.” She elaborated upon her response by stating that B.R.
was supposed to follow up with her pediatrician and that she explained to Appellant
the importance of having B.R. do sitz baths. Butz later clarified that sitz baths were
                                          5
“pretty much” the only treatment that could have been given along with Tylenol for
pain relief.
        Detective Erin Bennett of the Abilene Police Department arrived at the
hospital at 11:24 a.m. She testified that Appellant arrived at the hospital at 12:05
p.m. Detective Bennett remained with Appellant for six and one-half hours after
Appellant executed the authorization for B.R. to be examined at the hospital. After
conferring with Appellant at the hospital for thirty to forty minutes, Detective
Bennett asked Appellant to meet her at the Law Enforcement Center so that
Appellant could be further interviewed there and for B.R. to undergo a forensic
interview. Detective Bennett eventually obtained Appellant’s written statement at
the end of the day. Detective Bennett arrested Appellant at that time for failure to
report child abuse. See TEX. FAM. CODE ANN. § 261.109(a) (West 2014). One month
later, Officers made the decision to charge Appellant with injury to a child by
omission based on problems that B.R. subsequently developed.
        Detective Stacy Cisneros led the investigation of Crippen for assaulting B.R.
His work on the case included a search of the couple’s home on the day of the
offense. He located a spiral notebook in the bedroom that Crippen and Appellant
shared.    The notebook contained a handwritten account of what purportedly
transpired with B.R. Crippen told Detective Cisneros that both he and Appellant
prepared the handwritten note. Detective Cisneros obtained a written statement from
Crippen. In his written statement, Crippen stated that, in picking up B.R., his “hand
slipped and went inside [B.R.’s] vagina.” He also indicated in his statement that he
had not told the truth “right away.” Crippen subsequently pleaded not guilty to the
aggravated sexual assault of B.R. A jury convicted him of the offense on May 19,
2011.
        Appellant did not have custody of B.R. at any time after November 11, 2009.
Appellant’s mother, Sherri Morgan, assumed custody of B.R. and B.R.’s brothers
                                          6
that night after Appellant was arrested. Morgan testified that B.R. was not the same
immediately after the incident. B.R. had nightmares and experienced bleeding for
several days. Morgan kept B.R. out of daycare until November 16, at which time
the bleeding had stopped. She also sought counseling for B.R. at this time.
        B.R. was hospitalized on November 22, 2009. The admission records indicate
that she was hospitalized with the chief complaint of vomiting that began two days
earlier.2 Morgan testified that CPS arranged for Appellant to speak with her children
by telephone on November 19. Morgan stated that the call upset B.R. and that her
stomach began hurting her the next morning. B.R. remained hospitalized until
November 27. The discharge summary for the hospital admission indicated that
B.R. was discharged with a diagnosis of “[v]omiting and gastritis” and “[a]bdominal
pain.” On July 8, 2010, B.R.’s pediatrician prepared a letter addressed “To Whom
it May Concern” that provided as follows regarding the hospital admission:
        On 11/22/2009 [B.R.] was hospitalized at Hendrick Medical Center for
        persistent vomiting. She had an extensive work-up which ruled out
        infections or anatomic cause. Final diagnosis was gastritis. While we
        cannot be certain, it is highly likely probable that her gastritis was
        secondary to the stress of her sexual assault.3
        Monica Reid worked as an intern counselor at the Regional Crime Victim’s
Crisis Center in November 2009 in pursuit of her certification as a licensed
professional counselor. She subsequently obtained her license in October 2010.
Reid saw B.R. as a patient for the first time on November 16 and continued to see
her off and on for three years. She initially diagnosed B.R. with acute stress disorder.




        2
        The admission records also indicated that B.R. was seen by her pediatrician on November 12 as a
follow-up to her evaluation in the emergency room by Butz.

        Morgan testified that B.R.’s pediatrician prepared the letter at her request in support of paperwork
        3

she submitted to “Crime Victim’s Compensation.”

                                                     7
Reid subsequently diagnosed B.R. with post traumatic stress disorder (PTSD) after
she continued to suffer acute stress disorder for longer than four weeks.
      In describing B.R.’s history, Reid stated that Appellant’s response to the
sexual assault was “kind of bizarre” and that there was a delay in “responsive
medical help.” She also indicated that there was “a lot of confusion” with B.R.
“about who the perpetrator was.” Reid opined that both Crippen and Appellant
caused B.R.’s PTSD and that she continued to suffer from PTSD at the time of trial.
With respect to Appellant’s individual responsibility for B.R.’s PTSD, Reid testified
that she believed that Appellant contributed to it. Reid indicated that Appellant
could have significantly alleviated some of the problems that B.R. suffered “if she
had been a nurturing mom.” Reid provided the following testimony in this regard:
             Q. Is it important in your opinion as a professional that a person
      that has acute stress disorder she has someone immediately there to love
      and care for her?

             A. Profoundly important. We know that the key factor in how
      kids might -- how if they’re going to have a post traumatic stress or how
      they’re going to recover from the traumatic event is how the primary
      caregiver or the kind of response they have from the nurturing adults
      around them. They take ques [sic] on how to make meaning of the
      situation and definitely need a lot of nurturing and support.

             Q. So if they get none, does that have a profound affect [sic] on
      the severity of this disorder?

             A. Yes. It raises the risk factors of developing PTSD drastically.
      It could exacerbate their perception of that. Like I say, it’s coming from
      experience, it’s not just how they perceive it. So everything
      surrounding that adds to that whole trauma experience for them.

           Q. Is that one of the reasons you formed an opinion as to what
      [Appellant] did to her daughter?

             A. Yes.

                                          8
             Q. Did you ever form an opinion as to whether [Appellant]
      intentionally or knowingly caused mental injury to her daughter[?]

           A. Not in those legal terms, but I did think about her state of
      mind. I think of her mental state of mind in the response of what was
      happening with her daughter.

             Q. In your professional world, could she have alleviated some of
      the problems her daughter now suffers from if she had been a nurturing
      mom?

             A. I believe she could have yes, significantly.
                                       Analysis
      We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
                                          9
prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. We are responsible for ensuring “that the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged.”
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
        Appellant was indicted for two counts of injury to a child by omission. See
TEX. PENAL CODE ANN. § 22.04 (West Supp. 2014). Count One alleged that
Appellant caused “serious bodily injury” to B.R. by omission by failing to provide
medical treatment to B.R.             See id. § 22.04(a)(1).          Count One contained two
paragraphs alleging different culpable mental states. The first paragraph alleged that
Appellant “intentionally and knowingly” caused serious bodily injury by omission.
The second paragraph alleged that Appellant “recklessly” caused serious bodily
injury by omission. Count Two alleged that Appellant caused “serious mental
impairment and injury” to B.R. by omission by failing to provide medical treatment
to B.R. See id. § 22.04(a)(2). Count Two also contained two paragraphs with the
first paragraph alleging the culpable mental states of “intentionally and knowingly”
and the second paragraph alleging the culpable mental state of “recklessly.”4
        The trial court submitted both counts alleged in the indictment with each of
the alleged culpable mental states to the jury. The jury found that Appellant
recklessly caused serious bodily injury under Section 22.04(a)(1) as alleged in Count
One, paragraph two of the indictment.                    The jury also found that Appellant
intentionally or knowingly caused serious mental impairment or injury under
Section 22.04(a)(2) as alleged in Count Two, paragraph one. “Injury to a child is a
result-oriented offense requiring a mental state that relates not to the specific conduct
but to the result of that conduct.” Williams, 235 S.W.3d at 750 (citing Alvarado v.

        4
        Under Section 22.04(e), an offense under subsection (a)(1) or (2) is a felony of the first degree
when the conduct is committed intentionally or knowingly. PENAL § 22.04(a)(1), (a)(2), (e). An offense
under subsection (a)(1) or (2) is a felony of the second degree when the conduct is engaged in recklessly.
Id.

                                                   10
State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985)). The State has the burden to prove
that the defendant caused a child’s serious bodily injury with the requisite criminal
intent. Id.
      In her first issue, Appellant challenges the sufficiency of the evidence to
support her conviction under Count One for recklessly causing serious bodily injury
to B.R. She focuses her evidentiary challenge to the sufficiency of the evidence on
the proposition that she “recklessly caused some additional and identifiable serious
bodily injury” to B.R. by not getting her prompt medical treatment. Appellant
contends that the jury’s finding as to this element was not rational based upon the
evidence presented at trial. We agree.
      The existence or nonexistence of a causal connection is a question for the
jury’s determination. Fountain v. State, 401 S.W.3d 344, 358–60 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d); see Dorsche v. State, 514 S.W.2d 755, 757
(Tex. Crim. App. 1974). Count One of the indictment alleged that Appellant caused
serious bodily injury by omission by failing to provide medical treatment to B.R.
after an injury that caused bleeding to her female sexual organ. “Serious bodily
injury” means bodily 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. PENAL § 1.07(a)(46). The State asserts
that B.R. suffered serious bodily injury based upon the scarring that Butz testified
that B.R. will have as a result of the sexual assault. The State asserts in its brief that
Appellant’s acts of inspecting B.R.’s injury and photographing it “could have
reasonably caused more physical injury to B.R.” (emphasis added). In an attempt
to tie these matters together, the State additionally contends that, “[b]ecause Butz
could not say with certainty that appellant did not further injure B.R., the resulting
scarring can be partially attributed to appellant’s actions.”


                                           11
        Even if one assumes that B.R.’s scarring constitutes serious bodily injury,5 the
evidence that Appellant caused the scarring is not sufficient. Under the Penal Code,
“[a] person is criminally responsible if the result would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of the
actor clearly insufficient.” PENAL § 6.04(a) (West 2011). “But for” causation, as
referred to in Section 6.04(a), must be established between an accused’s conduct and
the resulting harm. See Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App.
1986). When concurrent causes are present, the “but for” requirement is satisfied
when either (1) the accused’s conduct is sufficient by itself to have caused the harm
or (2) the accused’s conduct coupled with another cause is sufficient to have caused
the harm. Id. If an additional cause—other than an accused’s conduct—is clearly
sufficient by itself to produce the result and if the accused’s conduct by itself is
clearly insufficient, then the accused cannot be convicted. Id.
        The State’s case against Appellant is one involving concurrent causes. It is
undisputed that Crippen’s aggravated sexual assault of B.R. was the initial, primary
cause of B.R.’s injuries. In this regard, Crippen’s sexual assault was a heinous act
that no doubt caused a significant, traumatic injury to B.R. Crippen’s sexual assault
was obviously sufficient by itself to produce the result in the form of the physical
injuries and mental injuries that B.R. suffered. Appellant’s criminal culpability for
injury to a child by omission under both counts hinges on her response to Crippen’s
acts.



        5
         Simply that an injury causes scarring is not sufficient, on its own, to establish serious permanent
disfigurement. Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref’d);
Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.). A reviewing court must find
more than mere scarring alone; instead, it must find in the record evidence of “some significant cosmetic
deformity” in order to conclude that the evidence of serious bodily injury was sufficient. Sizemore, 387
S.W.3d at 828 (quoting Hernandez, 946 S.W.2d at 113) (internal quotation marks omitted).

                                                    12
      The facts in this appeal are similar to other cases in Texas involving charges
of injury to a child by omission based upon a failure to provide medical care. An
analysis of some of these cases is instructive to the issues in this appeal. The
defendant in Dusek v. State was convicted of intentionally or knowingly causing
serious bodily injury to a child by omission by, among other things, failing to provide
prompt medical treatment for the child’s broken leg. 978 S.W.2d 129, 133 (Tex.
App.—Austin 1998, pet. ref’d). The court noted in its analysis that the child’s
broken leg was a serious bodily injury. Id. The court further noted, however, that
injury to a child is a “result of conduct” offense. Id. (citing Alvarado, 704 S.W.2d
at 39). Accordingly, under Section 22.04, it was not sufficient for the State to prove
that the defendant failed to provide medical care for a serious bodily injury. Id.
Instead, it was necessary to prove that the child suffered serious bodily injury
because the defendant failed to provide medical care. Id. In determining that the
evidence was insufficient to support a conviction for failing to provide medical
treatment, the Dusek court noted that there was no evidence that any omission on the
defendant’s part aggravated the seriousness of the injury. Id.
      In Payton v. State, the defendant was convicted of recklessly causing serious
bodily injury to his eighteen-month-old grandson by failing to obtain reasonable
medical care for him. 106 S.W.3d 326, 327–28 (Tex. App.—Fort Worth 2003, pet.
ref’d). The defendant observed his grandson crying in the hallway and lying in the
floor at approximately 8:30 a.m. Id. at 328. He noticed that the child was having
difficulty holding a bottle and that his feet were cold. Id. He called a friend that was
a nurse who arrived at his house in approximately fifteen minutes. Id. The friend
determined that the child needed emergency medical attention because he was
nonresponsive and had possibly aspirated. Id. The emergency medical personnel
and physicians that subsequently treated the child determined that the child had
bruises all over his body and suffered from internal bleeding. Id. The child died a
                                          13
short time later. Id. A physician testified that the child’s injuries would have
occurred between ten to twelve hours before his death and that the child would have
been showing symptoms from his injuries. Id. at 329.
      The defendant in Payton challenged the sufficiency of the evidence to
establish that he caused serious bodily injury by failing to seek reasonable medical
care. Id. Citing Dusek, the court held that, under Section 22.04, it is not sufficient
for the State to prove that the defendant failed to provide medical care for a serious
bodily injury. Id. “Instead, it is necessary to prove that [the child] suffered serious
bodily injury because [the defendant] failed to provide him medical care.” Id. The
court determined that the evidence was sufficient with regard to causation because
there was evidence that the child might have lived had the defendant called for
emergency care earlier. Id. at 330.
      Thus, under Section 22.04, it was not sufficient for the State to prove that
Appellant failed to provide medical treatment for a serious bodily injury. See
Payton, 106 S.W.3d at 329; Dusek, 978 S.W.2d at 133. Instead, it was necessary to
prove that B.R. suffered serious bodily injury because Appellant failed to provide
her with medical treatment. See Payton, 106 S.W.3d at 329; Dusek, 978 S.W.2d at
133. The State alleged in the indictment that Appellant committed injury to a child
by omission by failing to provide medical treatment to B.R. after an injury. In the
context of the allegation alleged in the indictment, the evidence did not show that
any delay in medical treatment attributable to Appellant caused B.R. any additional
physical injuries because no medical treatment was given to B.R. when Butz
examined her at the hospital.




                                          14
        The State expanded its theory of the case at trial by asserting that Appellant’s
actions in examining and photographing B.R. contributed to B.R.’s injuries.6 The
State continues this argument on appeal. However, there is no evidence that
anything Appellant did or did not do aggravated the seriousness of the physical
injuries inflicted by Crippen. At best, the evidence does nothing more than suggest
that Appellant “could have reasonably caused more physical injury to B.R.” as noted
by the State in its brief. “While juries are permitted to draw multiple reasonable
inferences as long as each inference is supported by the evidence presented at trial,
‘juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions.’” Winfrey, 393 S.W.3d at 771
(quoting Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)). “[A]n
inference is a conclusion reached by considering other facts and deducing a logical
consequence from them,” while “[s]peculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented.” Hooper, 214 S.W.3d at 16.
“A conclusion reached by speculation . . . is not sufficiently based on facts or
evidence to support a finding beyond a reasonable doubt.” Id. The conclusion that
Appellant caused B.R. to suffer a serious bodily injury or that she might have


        6
         Modern legal theory and the Texas Penal Code recognizes a conceptual distinction between an
“act” and an “omission.” Hill v. State, 913 S.W.2d 581, 589–90 (Tex. Crim. App. 1996). As noted by the
court in Hill:

        Our Penal Code provides that a person commits an offense only if he commits an act or an
        omission. TEX. PENAL CODE ANN. § 6.01(a). An “act” is defined as “a bodily movement,
        whether voluntary or involuntary, and includes speech.” TEX. PENAL CODE ANN.
        § 1.07(a)(1). By contrast, an “omission” is defined as a “failure to act.” TEX. PENAL CODE
        ANN. § 1.07(a)(34). Clearly, the two are antithetical concepts: while an “act” encompasses
        an affirmative action on the part of a person, an omission encompasses a forbearance of
        action. Typically, an offense committed by omission involves a failure of the defendant to
        perform an affirmative action when he has a legal duty to do so. See generally,
        Billingslea v. State, 780 S.W.2d 271, 271–277 (Tex. Crim. App. 1989).
Id. Despite the legal distinction between an act and an omission, the jury does not have to agree
unanimously that a defendant caused an injury by act or by omission to convict a person of injury to a child
under Section 22.04. Jefferson v. State, 189 S.W.3d 305, 306 (Tex. Crim. App. 2006).

                                                    15
aggravated B.R.’s injuries is a conclusion reached by speculation. As such, it is not
sufficiently based on facts or evidence to support a finding beyond a reasonable
doubt. See id. We sustain Appellant’s first issue.
      In her second issue, Appellant challenges the sufficiency of the evidence
supporting the jury’s finding that she intentionally or knowingly caused serious
mental impairment or injury. As noted previously, the offense of injury to a child is
a result-oriented offense requiring a mental state that relates not to the specific
conduct but to the result of that conduct. Williams, 235 S.W.3d at 750. A person
acts intentionally with respect to a result of his conduct when it is his conscious
objective or desire to cause the result. PENAL § 6.03(a). A person acts knowingly
with respect to a result of his conduct when he is aware his conduct is reasonably
likely to cause the result. Id. § 6.03(b). Therefore, the State had to prove that
Appellant intentionally or knowingly caused the resulting mental injuries to B.R.
See Johnston v. State, 150 S.W.3d 630, 634 (Tex. App.—Austin 2004, no pet.). “The
formulated distinction between intentional and knowing, as to results, is thus
between desiring the result and being reasonably certain that it will occur.” Id. at
635 (quoting Dusek, 978 S.W.2d at 134). When the State charges a defendant with
conduct by omission, proof that the defendant knowingly caused the result requires
evidence that the defendant had a reasonably certain awareness that the injury would
have been prevented had the defendant performed the act that was omitted.
Patterson v. State, 46 S.W.3d 294, 302 (Tex. App.—Fort Worth 2001, no pet.). The
jury may infer both intent and knowledge 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 injury inflicted on the victim. Hart v. State, 89 S.W.3d
61, 64 (Tex. Crim. App. 2002).
      Appellant contends that there is no evidence upon which a rational jury could
conclude that she intentionally or knowingly caused B.R. to suffer serious mental
                                         16
impairment or injury. She supports this contention in large part upon Reid’s
response to the following question: “Did you ever form an opinion as to whether
[Appellant] intentionally or knowingly caused mental injury to her daughter?” Reid
began her response with: “Not in those legal terms.” The State argues that “Reid
testified that the outcome of the trauma could have been significantly different had
appellant acted on B.R.’s medical needs and trauma” (emphasis added). In support
of this proposition, the State cites a publication from the U.S. Department of
Veterans Affairs’ “National Center for PTSD” pertaining to “child sexual abuse,”
which states: “Children can recover from sexual abuse and go on to live good lives.
The best predictor of recovery is support and love from their main caregiver.”
      Even in the light most favorable to the State, our review of the record leads us
to conclude that the record is devoid of evidence that Appellant failed to act because
she desired B.R. to suffer serious mental impairment or serious mental injury.
Further, we conclude that there is no evidence in the record that Appellant was aware
that her failure to act was reasonably certain to cause B.R. serious mental impairment
or injury or that B.R.’s PTSD would have been prevented had she provided such
care. Moreover, there is insufficient evidence to the effect that, if Appellant had
provided medical care for B.R., the medical care would have prevented B.R. from
suffering PTSD in light of the sexual assault committed by Crippen.
      As was the case with Count One pertaining to serious bodily injury, the State
also alleged in the indictment that Appellant caused mental injury to a child by
omission by failing to provide medical treatment for B.R. after an injury. The same
analysis is applicable to Count Two; the evidence did not show that any delay in
medical treatment attributable to Appellant caused B.R. any additional mental
injuries because no medical treatment was given to B.R. when Butz examined her at
the hospital. At trial and on appeal, the State expands its contention to assert that
Appellant is guilty of injury to a child by omission by failing to provide a “nurturing
                                          17
environment” for B.R. The State additionally contends that Appellant engaged in
this conduct intentionally and knowingly.
      There is no doubt that the vast majority of parents in Appellant’s position
would have acted in a very different manner than she did. Despite the absurdity of
her conduct, there is no evidence that Appellant undertook this course of conduct
with the conscious objective or desire to cause B.R. to suffer serious mental
impairment or injury or that she was aware that her conduct was reasonably likely
to cause serious mental impairment or injury. See PENAL § 6.03(a), (b). While the
National Center for PTSD declares the proposition that “[t]he best predictor of
recovery [for victims of child sexual abuse] is support and love from their main
caregiver,” there is no evidence that this fact was known by Appellant or the public
at large. Additionally, the evidence that Appellant’s acts and omissions caused B.R.
serious mental impairment or injury is also insufficient. Based upon the evidence
offered at trial, the conclusion that Appellant’s conduct caused mental injury over
and above that caused by Crippen’s aggravated sexual assault is a matter of
conjecture and speculation.     See Hooper, 214 S.W.3d at 15–16.         We sustain
Appellant’s second issue.
      We must now determine the appropriate disposition in this case. In Bowen v.
State, the Texas Court of Criminal Appeals determined that there are instances when
a court of appeals may modify a judgment and render a judgment of conviction for
a lesser included offense when the court of appeals has found the evidence
insufficient to support an appellant’s conviction for a greater-inclusive offense. 374
S.W.3d 427, 432 (Tex. Crim. App. 2012). This step may be taken even if the lesser
included offense was not submitted to the jury. Id. In Thornton v. State, the court
subsequently clarified the holding in Bowen as follows:
      [A]fter a court of appeals has found the evidence insufficient to support
      an appellant’s conviction for a greater-inclusive offense, in deciding

                                         18
      whether to reform the judgment to reflect a conviction for a lesser-
      included offense, that court must answer two questions: 1) in the course
      of convicting the appellant of the greater offense, must the jury have
      necessarily found every element necessary to convict the appellant for
      the lesser-included offense; and 2) conducting an evidentiary
      sufficiency analysis as though the appellant had been convicted of the
      lesser-included offense at trial, is there sufficient evidence to support a
      conviction for that offense? If the answer to either of these questions
      is no, the court of appeals is not authorized to reform the judgment. But
      if the answers to both are yes, the court is authorized—indeed
      required—to avoid the “unjust” result of an outright acquittal by
      reforming the judgment to reflect a conviction for the lesser-included
      offense.
425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014) (footnote omitted).
      With respect to Count One pertaining to Appellant’s conviction for recklessly
causing serious bodily injury by omission to B.R., her conduct in recklessly causing
nonserious bodily injury by omission would be a lesser included offense. See PENAL
§ 22.04(a)(3), (f). However, the lack of evidence that she caused any physical injury
to B.R. by omission precludes us from determining that the evidence is sufficient to
support a conviction for the lesser included offense.
      As for Count Two pertaining to Appellant’s conviction for intentionally or
knowingly causing serious mental impairment and injury, committing the offense
with the culpable mental state of recklessness would be a lesser included offense.
See id. § 22.04(a)(2), (e). “A person acts recklessly . . . when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances
exist or the result will occur.” Id. § 6.03(c). The risk created “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. Recklessness requires the defendant to actually
foresee the risk involved and to consciously decide to ignore it. Williams, 235
S.W.3d at 751. Determining whether an act or omission involves a substantial and
                                          19
unjustifiable risk requires an examination of the events and circumstances from the
viewpoint of the defendant at the time the events occurred, without viewing the
matter in hindsight. Id. at 753. “[M]ere lack of foresight, stupidity, irresponsibility,
thoughtlessness, ordinary carelessness, however serious the consequences may
happen to be,” does not rise to the level of criminal recklessness. Id. at 751 (quoting
People v. Carlson, 26 N.Y.S.2d 1003, 1005 (N.Y. Cnty. Ct. 1941)) (internal
quotation marks omitted).
      Even viewing the evidence in the light most favorable to the State, the
evidence was insufficient for a rational jury to find beyond a reasonable doubt that
Appellant was subjectively aware of and consciously disregarded a substantial and
unjustifiable risk that B.R. would suffer serious mental impairment and injury as a
result of her conduct. The lack of subjective awareness at the time of her conduct
precludes a finding that the evidence is sufficient to support a conviction for the
lesser included offense based on recklessness.
                                   This Court’s Ruling
      We reverse the trial court’s judgments of conviction and render judgments of
acquittal on both counts.




                                                      JOHN M. BAILEY
                                                      JUSTICE


September 17, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



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