                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 PATRICIA WORKMAN,                                              No. 08-07-00299-CR
                                                §
                        Appellant,                                  Appeal from
                                                §
 v.                                                              168th District Court
                                                §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                §
                        Appellee.                               (TC # 20060D03130)
                                                §


                                          OPINION

       Patricia Workman was indicted on two counts of injury to a child and convicted of one count.

She was sentenced to twenty-eight years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. For the reasons that follow, we affirm.

                                 FACTUAL BACKGROUND

       At approximately 12 a.m. on January 9, 2005, Appellant took her daughter, Erika Estrada,

to the emergency room at Thomason Memorial Hospital. Erika was having a seizure and was

immediately brought in for examination and treatment. Dr. Patty Crocker examined the child and

observed tonic-clonic movement, a jerky muscular movement typically associated with seizures. Her

eyes were also rolled back in her head. The seizure stopped shortly after she was given treatment.

       According to Dr. Crocker, Appellant appeared to be upset and crying when she arrived.

Appellant complained that Erika had a fever and had been vomiting all day and the seizures started

that evening. After the seizure was treated and the situation was calmer, Dr. Crocker believed

Appellant was not forthcoming with, and did not volunteer, information about her child. Dr. Crocker
found this behavior to be unusual. Typically, mothers tend to want to give as much information as

possible, down to how many diaper changes and bottles they’ve had.

        Dr. Crocker performed further examinations and found Erika covered in bruises of various

stages of healing. This suggests that the bruises were inflicted at different times. Erika was also a

very small child and underweight. Dr. Crocker thought her to be in the four to six month age range

and was surprised when she realized the child was already a year old. Dr. Crocker also noticed that

Erika was not interactive. She demonstrated a flat affect in which she stayed still, did not smile, coo,

babble, or move around at all. In Dr. Crocker’s experience, this is very unusual for a one year old.

Dr. Crocker suspected more serious issues than just an acute episode of a seizure, fever, and

vomiting.

        Dr. Crocker ordered a chest X-ray to locate the source of the fever and then later ordered a

CAT scan of the head. After reviewing the X-rays a second time, Dr. Crocker noticed Erika’s left

arm was fractured. The fracture was in the process of healing, indicating the arm was broken more

than a couple of weeks earlier. Erika was unable to use or move the arm. Crocker opined that the

arm was broken by somebody grabbing it with considerable force and snapping it. Erika also had

fractured ribs and bilateral hip dislocations. The CAT scan showed bleeds in the brain. Using an

ophthalmoscope, Dr. Crocker could see retinal hemorrhages in the back of Erika’s eyes. According

to Dr. Crocker, retinal hemorrhages are very rare in babies. She concluded that Erika was an abused

child and contacted the hospital’s pediatric department to treat her.

        Dr. Brett Henderson, a neurosurgeon, was consulted on Erika’s treatment. Dr. Henderson

described retinal hemorrhages, which can be caused by a violent shaking of the baby. Erika suffered

from subdural hematomas, which resulted in a build-up of fluid and pressure in the brain. Erika also

suffered from brain atrophy, or shrinkage, which is a loss of brain tissue due to trauma from an
earlier injury. She ad suffered at least two brain injuries. In Dr. Henderson’s opinion, these were

acceleration-deceleration injuries caused by the brain moving back and forth inside the skull and

hitting the inside of the skull. Specifically, he opined that Erika’s injuries were the result of violent

shaking, consistent with somebody grabbing her from the back and violently shaking her back and

forth. Dr. Henderson believed these injuries were the result of child abuse.

        Child Protective Services investigator Jose Martin del Campo was already present at the

hospital on another case when doctors informed him of Erika’s situation. Del Campo observed the

multiple injuries on Erika’s body and suspected she was the victim of child abuse. Del Campo then

flagged down police officers who were at the hospital and reported his suspicions. El Paso Police

Officers Jorge Garcia and Wade White examined Erika after speaking with del Campo and

Dr. Crocker. Garcia and White observed that Erika was unconscious, twitching slightly, and had

fingerprint bruises on her torso from where someone had possibly squeezed or shaken her. Appellant

was in the room with the officers, but she would not make eye contact with them. When the officers

questioned her, she told them she believed the markings on Erika’s torso were a rash. She did not

know about the broken arm, but if there were an injury, her four-year-old son had probably caused

it. Appellant also advised the officers that she had not seen the father of the children in two months,

that she lived alone with her three children, and that she did not have a boyfriend at the time. The

officers did not believe Appellant’s story matched Erika’s injuries and suspected that Erika was the

victim of abuse. They referred the case to the Crimes Against Children (CAC) unit of the police

department.

        CAC Detective Link Brown and his partner Detective Morales responded to the hospital and

met with Officer White, Investigator del Campo and the attending physicians. The doctors pointed

out the various visible injuries on Erika’s body to Detective Brown. Detective Brown then met with
Appellant and asked her to accompany him to the Child Advocacy Center. Appellant agreed to go

and give a written statement. In that statement, Appellant explained that she had been raising her

three children by herself for three years and that Erika was difficult to care for. About two months

prior to this incident, Erika started waking up in the middle of the night and would not stop crying.

Appellant could not get any sleep and became very upset and frustrated. Finally, about one month

earlier, Appellant “just exploded” and grabbed Erika and “shook her real hard for about five seconds

and then threw her back on the bed from about two feet.” Appellant then described a second

incident, approximately two weeks prior where she became upset and grabbed Erika real hard by her

left arm to pick her up. Appellant said that she knew now that she must have broken Erika’s arm

during this incident.

        Appellant then went on to describe the events that lead to the trip to the hospital. Erika was

vomiting and Appellant thought she might be choking. Erika’s arm and head went limp and

Appellant then picked her up with her hands under her arms and started to shake her real hard to try

and get her to react. She did not do this out of anger, but was trying to wake Erika up. Appellant

then called a friend, Melissa Martinez, who drove Appellant and Erika to the hospital. En route,

Erika began having a seizure. Appellant concluded her statement by admitting that she knew Erika’s

injuries were a result of her grabbing Erika and shaking her, but she did it out of frustration rather

than anger. Appellant would explode or lose her temper out of frustration, but she “never intended

for it to go this far.”

        After taking Appellant’s statement, the Detective Brown examined Appellant’s other

children, two-year-old Derrik and four-year-old Erik. Detective Brown did not see any signs of

abuse or injury on either child. Detective Brown then received permission from Appellant to search

her apartment.      Appellant accompanied Detective Brown during the search. The detective
questioned Appellant regarding folded male clothing he noticed in the apartment. Appellant then

admitted that a man named Alfonso Sanchez had been “staying” with her for at least the past two

weeks. Appellant later told Detective Brown that Sanchez was her boyfriend and had been living

in her house for approximately eight months. Detective Brown did not consider Sanchez to be a

suspect since Appellant had already confessed to injuring Erika and little Erik had told investigator

del Campo that he wasn’t afraid of Sanchez. Detective Brown obtained an arrest warrant for

Appellant.

       The defense theory at trial pointed to Alfonso Sanchez as the person who shook Erika and

caused her injuries. Appellant introduced testimony from her father, Jesse Workman, her mother,

Manuela Workman, and investigator del Campo. She also testified on her own behalf and repudiated

most of her written statement. She specifically denied shaking Erika or any of her children. The jury

found Appellant guilty of causing serious bodily injury to a Erika by grabbing or shaking her about

the body, but found her not guilty of causing serious bodily injury by grabbing her arm. This appeal

follows.

                                    EVIDENTIARY ERROR

       In Point of Error One, Appellant complains of the trial court’s refusal to allow defense

witnesses to describe Sanchez’s violent history and his behavior toward Appellant’s children. She

claims that this evidence was relevant and the trial court deprived her of the opportunity to present

a defense.

                                        Standard of Review

       A trial court’s ruling on the admission or exclusion of evidence is reviewed under an abuse

of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006); Burden v.

State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). An abuse of discretion exists when the trial
court’s decision is so clearly wrong that it lies outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990); Zuliani v. State, 97 S.W.3d 589,

595 (Tex.Crim.App. 2003). The trial court abuses its discretion if its decision or action is arbitrary,

unreasonable, and made without reference to any guiding rules or principles. Montgomery, 810

S.W.2d at 380.

                                      The Witnesses’ Testimony

       Prior to the start of evidence, the prosecutor urged a motion in limine requesting that the

defense approach the bench before eliciting testimony regarding any alternative suspects. The trial

court granted the motion.

       Jesse Workman testified that he lived with Appellant during 2002, 2003, and 2004. While

Appellant was working, he took care of the three children, all of whom were healthy. Appellant quit

her job when Sanchez moved in approximately one year before this incident. Jesse moved out and

Appellant stayed at home to care for the children. He continued to visit three to four times a week

in the months leading up to this incident and he noticed that the children did not seem as active as

before. They “looked kind of sad, kind of scared, sad.” Erika was usually asleep. In the weeks just

before the incident, Jesse noticed that Erika had a fever and told Appellant to take her to the doctor.

Jesse also noticed that Appellant had lost weight, looked depressed, and appeared to have been

crying each time he visited.

       On voir dire examination out of the presence of the jury, Jesse testified that on one occasion,

he walked into Appellant’s house and witnessed Sanchez holding two-year-old Derrik by his ankles

and spinning him around. Jesse told Sanchez to put him down. Sanchez responded that he was just

playing, but Derrik was terrified. Derrik ran to Jesse, crying and trembling. The State objected that

the testimony was irrelevant and that it was inadmissible character-conformity evidence. The court
sustained the objection.

        The defense then informed the court that it wanted to elicit testimony from Manuela

regarding Sanchez’s alleged abuse of Appellant. The State once again objected that this was

improper character-conformity evidence. On voir dire examination out of the jury’s presence,

Manuela noted changes in Appellant’s physical appearance. She had bruises on two separate

occasions. Manuela asked Appellant whether Sanchez was hitting her but Appellant denied it. She

did ask Manuela to look at her nose, and Manuela thought it looked a little different. Appellant also

began to shy away from her family. The State once again objected. The court sustained the

objection and excluded this testimony, but allowed Manuela to testify that Appellant never physically

disciplined her children and was a peaceful person.

        When Appellant took the stand, she explained that she initially lied to Detective Brown about

living alone with her children because she knew Sanchez had Derrik and she was afraid Derrik might

be in danger. She was home that night with her three children, Sanchez, Sanchez’s sister Melissa,

Melissa’s boyfriend, and one of Sanchez’s nephews. Erika was asleep in her bedroom upstairs, and

everyone else was downstairs. Sanchez went upstairs, and Appellant heard a stomp on the floor. She

thought Erika had fallen out of bed, and when she ran upstairs she saw Sanchez coming out of

Erika’s bedroom. Appellant checked on Erika, but the child was not reacting. Appellant shook

Erika to get a reaction, but not in such a way that would hurt her. Erika still did not react. Appellant

called to Sanchez to see if he knew what was wrong, but Sanchez would not come back upstairs.

Appellant then took Erika to the hospital.

        Appellant claimed she had first noticed that Erika was not quite right a few months before

this incident, but she had not seen anything to make her believe that Erika was severely injured. She

categorically denied ever shaking Erika violently. She also claimed that she did not know how
Erika’s arm was broken and repudiated the statement in her written confession. When asked if she

knew who injured Erika, Appellant responded that she guessed it was Sanchez, because he was the

only one who could have done it. She had become suspicious of Sanchez and confronted him about

her suspicions because Derrik was afraid of him. Sanchez never admitted anything, and she never

told anyone else about her suspicions because she was afraid of him. When asked why she was

afraid, Appellant responded that he would hit her three or four times a week. The defense attempted

to introduce two photographs of Appellant, one of them revealing a broken nose. The defense

wanted to ask who broke her nose, but the court ruled that the evidence was irrelevant as to who hurt

the child. Defense counsel then suggested that Appellant would testify she believed Sanchez hurt

Erika. When the trial court indicated there had to be some basis for that belief, counsel withdrew

the photographs.

       During Investigator del Campo’s testimony, the defense began to question him about

Appellant changing her story from admitting causing Erika’s injuries to blaming Sanchez. The State

objected based on relevancy and hearsay grounds. On voir dire examination out of the jury’s

presence, del Campo testified that during his follow-up investigation, Appellant told him that she

was innocent, but was afraid to say anything to the police about Sanchez. Del Campo was suspicious

of Sanchez and researched the man’s criminal history. The court sustained the State’s objection.

On voir dire examination out of the jury’s presence, del Campo identified his CPS report where he

noted there was reason to believe Sanchez might have abused the children. This was based upon

Appellant’s statement that Sanchez lived in the house; he had been violent towards Appellant in the

past; his criminal record included violent behavior; and del Campo’s belief that Sanchez saw Erika’s

injuries but failed to report it to authorities. The State objected and the court disallowed the

testimony.
                                       Alternative Perpetrator

       A defendant must have an opportunity to put on a meaningful defense. Gilmore v. Taylor,

508 U.S. 333, 343, 113 S.Ct. 2112, 2118, 124 L.Ed.2d 306 (1993). Persons accused of crimes are

guaranteed a meaningful opportunity to present a complete defense by the Sixth and Fourteenth

Amendments to the United States Constitution. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct.

2142, 90 L.Ed.2d 636 (1986). The right to present a defense includes the right to attempt to establish

innocence by showing that someone else committed the crime. See Wiley v. State, 74 S.W.3d 399,

405-06 (Tex.Crim.App. 2002), cert. denied, 537 U.S 949, 123 S.Ct. 415, 154 L.Ed.2d 294 (2002).

Alternative perpetrator evidence may be admitted to establish a defendant’s innocence by showing

that someone else committed the crime. Wiley, 74 S.W.3d at 406. But the defendant still must show

that this proffered evidence is sufficient, on its own or in combination with other evidence in the

record, to show a nexus between the crime charged and the alleged “alternative perpetrator.” Id.

Although it is unclear exactly how much evidence is necessary to sufficiently prove a nexus between

the offense and allegedly guilty third party, Texas jurisprudence is clear that evidence of third party

guilt is inadmissible if it is mere speculation that another person may have committed the offense.

Id. at 406-08. Such speculative blaming intensifies the grave risk of jury confusion, and it invites

the jury to render its findings based on emotion or prejudice. Id.

        Under the Texas Rules of Evidence, the trial court follows a two-step process in determining

whether evidence is admissible. See Montgomery, 810 S.W.2d at 375-76. First, the trial court must

decide whether the evidence is relevant. Id. at 375. Relevant evidence is defined as evidence

“having any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” TEX .R.EVID .

401.
       Second, the trial court must determine if the evidence should be excluded because of some

other provision, whether constitutional, statutory, or evidentiary. See Montgomery, 810 S.W.2d at

376, citing TEX .R.EVID . 402). A defendant’s right to present relevant evidence is not unlimited, but

rather subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct.

1261, 1264, 140 L.Ed.2d 413 (1998). Under Rule 403 of the Texas Rules of Evidence, relevant

evidence may be excluded if its probative value is substantially outweighed by a number of

counter-factors, including the danger of confusion of the issues. TEX .R.EVID . 403. For relevant

evidence to be excluded under Rule 403, the opponent must show that its negative attributes

substantially outweigh any probative value. Montgomery, 810 S.W.2d at 377. Rule 403 favors

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007). Under

Texas Rules of Evidence Rule 404(a) and 404(b) relevant evidence may also be excluded. Rule

404(a) provides that evidence of a person’s character or a character trait is not admissible for the

purpose of proving action in conformity therewith on a particular occasion. Rule 404(b) states that

evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order

to show action in conformity therewith. It may be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

TEX .R.EVID . 404.

       In Wiley v. State, the defendant argued the that the trial court denied him his constitutional

right to present a defense when it excluded portions of his sworn statement to an insurance

investigator and testimony by a witness that a different person might have had some involvement

in committing the arson for which he was convicted. 74 S.W.3d at 401. He argued that he should

have been allowed to present evidence that a known fire-starter was thrown out of the restaurant a
few days prior to the fire and was standing across the street as the restaurant burned. Id. at 405.

Essentially, Wiley attempted to present an “alternate perpetrator” theory. Id. at 406. But the court

found that he did not meet his burden of showing a nexus between the crime charged and the alleged

alternative perpetrator. Id. at 406. The court found the evidence both “meager and speculative.”

Id. Even assuming that the evidence had some marginal relevance, it could not survive the balancing

test under Rule 403. Id. at 407. Because the evidence was highly speculative, the probative value

was slight. Id. Instead, the evidence created a threat of “confusion of the issues,” and “unfair

prejudice.” Id. The court found that the trial judge did not abuse its discretion in excluding the

alternative perpetrator testimony under Rule 403. Id. at 408.

       We have recently addressed this issue in Contreras v. State, No. 08-06-00205-CR, 2009 WL

50601, at 7 (Tex.App.--El Paso, Jan. 8, 2009, pet. granted)(not designated for publication). There,

the defendant was charged with killing a child while babysitting. He attempted to present evidence

of the child’s mother’s alleged violent conduct to support his defensive theory that the mother

actually killed the child. Contreras, 2009 WL 50601, at 5-8. We held that although the evidence

may have shown that the mother verbally and physically abused her children in the past, it provided

no evidence on its own or in combination with other evidence connecting the mother to the killing

of the child. Id. at 8. Because the defendant failed to establish the required nexus between the

mother’s alleged prior violence and the killing of the child, the excluded evidence was neither

relevant nor admissible to support the alternative-perpetrator defense. Id.

                                             Analysis

       We find no abuse of discretion in the exclusion of this testimony. The trial court may well

have determined that the testimony was inadmissible under either Rule 404(b) or Rule 403. Even

if it were relevant to show Sanchez abused Appellant, the evidence cannot be used to infer that
Sanchez abused Erika in this particular instance. The testimony was not sufficient, on its own or in

combination with other evidence in the record, to show a nexus between the crime charged and

Sanchez. See Wiley, 74 S.W.3d at 406. Without the required nexus, the evidence did not support

Appellant’s alternative perpetrator defense. It amounted only to improper character conformity

evidence, inadmissible under Rule 404(b). See TEX .R.EVID . 404(b).

       The trial court could have also found the evidence to be inadmissible under Rule 403. Since

there was no direct evidence that Sanchez ever abused Erika or caused Erika’s injuries in this case,

the testimony concerning his involvement was highly speculative. The testimony merely invited the

jury to speculate that Sanchez might have committed the offense, and such invited speculation

“intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on

emotion or prejudice,” rather than on hard evidence. See Wiley, 74 S.W.3d at 407. In this instance,

the trial court could have found that the probative value of the evidence was minimal and

outweighed by the possible prejudicial effect of the evidence. See TEX .R.EVID . 403. We overrule

Point of Error One.

                                LESSER INCLUDED OFFENSE

       In Point of Error Two, Appellant argues that the trial court erred when it refused to charge

the jury on the culpable mental state of recklessness.

                                        Standard of Review

       A trial court’s decision to submit or deny an instruction on a lesser-included offense is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.

2004). A two-pronged test, often referred to as the Aguilar/Rousseau test, has been implemented to

determine whether a charge on a lesser-included offense should be given. McKinney v. State, 207

S.W.3d 366, 370 (Tex.Crim.App. 2006); Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002),
Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005). The first step is to determine whether

the offense is a lesser-included offense of the offense charged. Id. The second prong then requires

an evaluation to determine whether some evidence exists that would permit a jury to rationally find

that, if the defendant is guilty, he is guilty only of the lesser offense. Mathis, 67 S.W.3d at 925. In

other words, the evidence must establish the lesser-included offense as a valid, rational alternative

to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). If facts are

elicited during trial that raise an issue of the lesser-included offense, and the charge is properly

requested, then a charge must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App.

1993)(op. on reh’g.).

                                          Applicable Facts

       Appellant was charged with injury to a child by intentionally or knowingly causing serious

bodily injury to Erika by grabbing or shaking her. At the close of evidence, Appellant requested a

charge on the lesser-included offense of injury to a child by recklessly causing serious bodily injury.

Defense counsel argued that the lesser-included offense was raised by Appellant’s written statement.

In her statement, Appellant described two specific instances where she shook Erika:

       I am a single mother of three children and I have been raising my kids by myself for
       about three years. The father of my children has not helped me since we separated
       and he rarely visits them. Lately my daughter has been very difficult to take care of
       as she is always crying.

       At the same time I’ve been getting a lot of problems from my family. My father and
       mother are separated and my father, Jesse Workman, Jr., will come to my apartment
       and tell me things about my younger brother using drugs. I feel that my dad is in
       some way blaming me. I am by myself with my kids and have nothing to do with
       these problems, but I become upset and frustrated. When I get like this and my
       daughter is hard to take care of, I become angry out of frustration.

       Erika had always been good about sleeping the entire nights, and about two months
       ago she started waking up in the middle of the night. I would have to get up with her
       because she would start crying and wouldn’t stop. I would never get any sleep
myself. When the morning came and Erika would finally sleep, my other kids would
be up by then and I would want to go to sleep but couldn’t, because I would have to
take care of them.

About a month ago in the evening, maybe 5:00 or 6:00 p.m., I just exploded. Erika
was in my bed and she just wouldn’t stop crying. I picked her up with both my hands
under her arms and shook her real hard for about five seconds and then threw her
back on the bed from about two feet. When I get upset like that, I ignore her for
awhile and just start crying. I will then pick her up and take care of her after about
10 minutes when I calm down.

                                      *****

Yesterday, Saturday, at about 7:00 p.m., Erika threw up and she acted as if she was
going to throw up again because saliva was coming out of her mouth. I had her
laying on top of my legs as I was sitting down and started pressing on her stomach
with my fingers and hands. I thought she might be choking and I wanted her to throw
up again. After this, her arms and head went limp and I picked her up with my hands
under her arms and started to shake her real hard to try and get her to react. I wasn’t
shaking her out of anger, but I wanted her to react and wake up. I shook her for about
five seconds and her eyes then rolled back into her head. I tried putting my fingers
in her mouth because I thought she was still choking.

                                      *****

I know that Erika’s injuries are a result of me grabbing her and shaking her, but I
didn’t do this out of anger. I did this out of frustration when she wouldn’t stop
crying, wouldn’t go to sleep, and I couldn’t get any sleep because I had other kids to
take care of. I was also very frustrated because of other family problems. My dad
was always coming over and asking me why my mom left him, and now my brothers
didn’t call him any more or have anything to do with him. Everything got to be too
much for me. I couldn’t handle it. I would explode or lose my temper when I took
care of Erika and my other kids.

This is all that I can remember about what happened to Erika, and nothing like this
had ever happened to my other kids. I am very sorry about what has happened, and
I never intended for it to go this far. When I would get like this I would leave Erika
on the bed for a while and ignore her to try and calm down. After a while I would
grab her, hold her, and just start crying out of frustration.

                               Culpable Mental State

Section 6.03 of the Penal Code defines the culpable mental state of intentionally as follows:

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

Knowingly is defined as follows:

        A person acts knowingly, or with knowledge, with respect to the nature of his
        conduct or to circumstances surrounding his conduct when he is aware of the nature
        of his conduct or that the circumstances exist. 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.

Recklessly is defined as follows:

        A person acts recklessly, or is reckless, with respect to circumstances surrounding his
        conduct or the result of his conduct when he is aware of but consciously disregards
        a substantial and unjustifiable risk that the circumstances exist or the result will
        occur. 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.

TEX .PENAL CODE ANN . § 6.03(a)-(c)(Vernon 2003). “[A]t the heart of reckless conduct is conscious

disregard of the risk created by the actor’s conduct [.]” Williams v. State, 235 S.W.3d 742, 751

(Tex.Crim.App. 2007), quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975).

“Recklessness requires the defendant to actually foresee the risk involved and to consciously decide

to ignore it.” Id. Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, or ordinary

carelessness, regardless of the severity of the consequences, do not suffice to constitute recklessness.

See Williams, 235 S.W.3d at 751. Recklessness requires the defendant to actually foresee the risk

involved and to consciously decide to ignore it. Id. Such a “devil may care” or “not giving a damn”

attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of

criminal negligence, which assesses blame for the failure to foresee the risk that an objectively

reasonable person would have foreseen. Id. at 751-52. “Those who are subjectively aware of a

significant danger to life and choose, without justification, to engage in actions (or in some cases

inactions) that threaten to bring about that danger have made a calculated decision to gamble with
other people’s lives.” Id. at 752, quoting James Gobert, Searching for Coherence in the Law of

Involuntary Manslaughter: The English Experience, 6 Crim.L.F. 435, 454 (1995). This combination

of an awareness of the magnitude of the risk and the conscious disregard for consequences is crucial.

Williams, 235 S.W.3d at 752-53. “It is callous disregard of risk, and not awareness vel non of risk,

however, which is critical.” Id. at 753, quoting Gobert, supra note 23 at 461. And, of course,

determining whether an act or omission involves a substantial and 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. Williams, 235 S.W.3d at 753.

       Culpable mental state is generally proven by circumstantial evidence. Lopez v. State, 630

S.W.2d 936, 942 (Tex.Crim.App. 1982); Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978);

Bowden v. State, 166 S.W.3d 466, 476 (Tex.App.--Fort Worth 2005, pet. ref’d). To determine

culpability for an offense, a jury is entitled to consider events before, during, and after the

commission of the offense. Mouton v. State, 923 S.W.2d 219, 223 (Tex.App.--Houston [14th Dist.]

1996, no pet.). Culpability may be inferred from the acts, words, and conduct of the accused,

including inconsistent statements made by the accused, the extent of the injury to the victim, and the

relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.

1995); Kelley v. State, 187 S.W.3d 761, 763 (Tex.App.--Houston [14th Dist.] 2006, pet. ref’d);

Bowden, 166 S.W.3d at 476 (holding that jury entitled to consider inconsistent statements as proof

of guilt in prosecution for reckless injury to a child). In determining recklessness, “whether one is

aware of a requisite risk or simply should be aware of it, is a conclusion to be drawn through

inference from all the circumstances by the trier of fact.” Dillon, 574 S.W.2d at 94.

                                              Analysis

       The Penal Code provides that a person commits the offense of injury to a child by
“intentionally, knowingly, recklessly, or with criminal negligence . . . caus[ing] a child . . .

(1) serious bodily injury.” TEX .PENAL CODE ANN . § 22.04(a)(Vernon 2003). Section 22.04(e)

provides that an offense under subsection (a)(1) “is a felony of the first degree when the conduct is

committed intentionally or knowingly,” but it is a felony of the second degree “[w]hen the conduct

is engaged in recklessly.” Id. § 22.04(e).

        Here, the facts required to prove the lesser offense are the same as or less than those required

to prove the offense charged in the indictment; the offenses differ by statute only in their differing

mental states. See Gay v. State, 235 S.W.3d 829, 832 (Tex.App.--Fort Worth 2007, pet. ref’d);

Moore v. State, 154 S.W.3d 703, 711 (Tex.App.--Fort Worth 2004, pet. ref’d)(holding that because

the offense of serious bodily injury encompasses all culpable mental states, criminally negligent

infliction of serious bodily injury is a lesser included offense of knowing infliction of serious bodily

injury). Thus, recklessly causing serious bodily injury to a child is a lesser included offense of

intentionally or knowingly causing serious bodily injury to a child. See TEX .CODE CRIM .PROC.ANN .

art. 37.09(3)(Vernon 2006)(an offense is a lesser-included offense of a charged offense if it differs

from the offense charged only in the respect that a less culpable mental state suffices to establish its

commission).

        Turning to the second prong of the analysis, we must determine whether some evidence

exists in the record that would establish the lesser-included offense as a valid, rational alternative

to the charged offense. We conclude that Appellant’s statements that she shook Erika out of

frustration and not out of anger and that she “never intended for it to go this far” do not raise the

culpable mental state of recklessness because they do not show that she was actually aware at the

time she engaged in the conduct that shaking the child could cause serious bodily injury or that she

consciously disregarded that risk. Likewise, her statement that she shook Erika to revive her does
not suggest that she was aware of, contemplated, and consciously disregarded the risk that her

conduct could cause serious bodily injury to the child. Because we find that nothing in the record

raised an issue as to recklessness, the trial court did not abuse its discretion. We overrule Point of

Error Two.

                              PROSECUTORIAL MISCONDUCT

        In Point of Error Three, Appellant complains that the trial court erred when it failed to

declare a mistrial after the prosecutor cursed her in front of the jury at the conclusion of his

argument.

                                          Applicable Facts

        The State concluded its closing argument during the guilt/innocence stage by stating, “I hope

you find her guilty. I hope she rots in hell. Thank you.” Defense counsel objected to this line. The

trial court implicitly sustained the objection and told the jury to disregard the remark. The jury then

retired to the jury room for deliberations. Appellant did not request a mistrial.

        To preserve error involving prosecutorial misconduct, the defendant must (1) make a timely

and specific objection; (2) request an instruction that the jury disregard the matter improperly placed

before the jury; and (3) move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.

1993). Salcido v. State, No. 08-04-00346-CR, 2006 WL 1132865 (Tex.App.--El Paso, Apr. 27,

2006, no pet.)(not designated for publication). However, this sequence is not essential to preserve

complaints for appellate review. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004), citing

Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992). The essential requirement is a timely,

specific request that the trial court refuses. Young, 137 S.W.3d at 69, citing TEX .R.APP .P. 33.1(a).

        The State argues that because Appellant never requested a mistrial and received from the trial

court all of the relief she requested, namely, an implicit sustaining of her objection to the complained
of jury argument and an express instruction for the jury to disregard the comment, she failed to

pursue her objection to an adverse ruling. As such, the State argues that Appellant forfeited her right

to complain about the comment on appeal. We agree. We overrule Point of Error Three and affirm

the judgment of the trial court.


January 13, 2010
                                                       ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Gomez, Judge
Gomez, Judge, sitting by assignment

(Do Not Publish)
