Opinion filed June 23, 2011




                                               In The


   Eleventh Court of Appeals
                                            __________

                                      No. 11-09-00240-CR
                                          __________

                   CHARLES RANDAL YARBROUGH, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court

                                      Coleman County, Texas

                                   Trial Court Cause No. 1880


                              MEMORANDUM OPINION

       Charles Randal Yarbrough, appellant, was indicted on one count of capital murder and
one count of murder in the death of a fourteen-month-old child who had been placed in foster
care with appellant and his wife. A jury convicted appellant of the lesser included offense of
injury to a child. Because the convicting jury was unable to reach an agreement as to
punishment, a second jury assessed punishment at confinement for twenty years. We affirm.
       In his sole issue on appeal, appellant argues that the trial court improperly instructed the
jury with respect to the lesser included offense of injury to a child because the trial court failed to
give an instruction allowing the jury to convict appellant of injury to a child by causing bodily
injury (as opposed to serious bodily injury).1 The record reflects that the trial court gave
instructions to the jury on the lesser included offenses of intentionally and knowingly causing
serious bodily injury to a child and recklessly causing serious bodily injury to a child. However,
the trial court did not give instructions on the lesser included offenses of intentionally and
knowingly or recklessly causing (non-serious) bodily injury to a child. Appellant asserts that he
was entitled to have the jury instructed on these issues because there was evidence that he merely
hit the child on the back in an attempt to dislodge an object stuck in her throat. Because the
record contains no trial objection or request by appellant with respect to an instruction on non-
serious bodily injury, appellant’s argument on appeal is that the instructions that were given were
erroneous and reviewable for egregious error under Almanza v. State, 686 S.W.2d 157 (Tex.
Crim. App. 1985).
         Among other definitions, the trial court included abstract definitions of serious bodily
injury and bodily injury in the charge. The trial court instructed the jury in one of the application
paragraphs as follows:
                 Now, if you find from the evidence beyond a reasonable doubt that . . . the
         Defendant . . . did then and there, intentionally or knowingly cause serious bodily
         injury to . . . , a child, by causing blunt force trauma to the head of . . . , by a
         manner and means unknown, then you will find the defendant guilty of
         intentionally or knowingly causing Injury to a Child, a lesser included offense.

The next application paragraph was identical except that “intentionally or knowingly” was
replaced by “recklessly.” We cannot hold that the instructions as given were erroneous merely
because they did not permit the jury to find appellant guilty of causing non-serious bodily injury
to a child. The instructions that were given by the trial court were proper and tracked the
appropriate statutory language.
         The trial court need not have included an instruction on causing non-serious bodily injury
to the child because that offense is a separate, lesser included offense and is not the same offense
as causing serious bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04 (Vernon 2011)



         1
           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.” TEX. PENAL CODE
ANN. § 1.07(a)(46) (Vernon 2011). Bodily injury means “physical pain, illness, or any impairment of physical condition.” Id.
§ 1.07(a)(8).


                                                             2
(injury to a child);2 TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006) (lesser included
offenses). Appellant should have objected or requested an instruction on the lesser included
offense of injury to a child by causing bodily injury. Because he did not, he waived that issue for
review.
          The failure to either object to the omission of or request a charge on a lesser included
offense waives any error on appeal. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App.
1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.
1994). The trial court has an absolute sua sponte duty to prepare a jury charge that accurately
sets out the law applicable to the specific offense charged, but it does not have a similar sua
sponte duty to instruct the jury on all potential defensive issues, lesser included offenses, or
evidentiary issues. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Such issues
frequently depend upon trial strategy and tactics and are generally left to the defendant and his
trial counsel. Id. If neither side requests a lesser included instruction, the trial court need not
submit one. Id. at 250.
          Moreover, we note that, even if he had requested an instruction on the lesser offense of
injury to a child by causing bodily injury, appellant would not have been entitled to such an
instruction as that offense was not a lesser included offense under the circumstances in this case.
See Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005) (defendant not entitled to instruction
on lesser included offense that is based on facts not required to establish the commission of the


          2
              Section 22.04 provides in relevant part:

                    (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal
          negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly
          individual, or disabled individual:

                                (1) serious bodily injury;

                                (2) serious mental deficiency, impairment, or injury; or

                                (3) bodily injury.

                      . . . .

                   (e) An offense under Subsection (a)(1) or (2) . . . is a felony of the first degree when the conduct is
          committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a felony of
          the second degree.

                     (f) An offense under Subsection (a)(3) . . . is a felony of the third degree when the conduct is
          committed intentionally or knowingly. . . . When the conduct is engaged in recklessly, the offense is a state
          jail felony.


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offense as charged in the indictment); see also Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App.
2001). If, as alleged in the indictment, appellant caused blunt force trauma to the child’s head
(which was the cause of death), then appellant did not merely cause bodily injury. Appellant’s
sole issue is overruled.
         The judgment of the trial court is affirmed.




                                                                                  JIM R. WRIGHT
                                                                                  CHIEF JUSTICE


June 23, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill, J.4




         3
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         4
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                  4
