           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1699-13



                         CYNTHIA ANN HUDSON, Appellant

                                             v.

                                THE STATE OF TEXAS

                         ON APPELLANT’S & STATE’S
                   PETITIONS FOR DISCRETIONARY REVIEW
                     FROM THE SIXTH COURT OF APPEALS
                               CASS COUNTY

        H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J.,
filed a dissenting opinion.

                                      OPINION

       A jury convicted Appellant of capital murder and assessed her punishment at life

imprisonment without the possibility of parole. Her conviction was affirmed by the Sixth

Court of Appeals after remand from this Court. We granted review to examine the court

of appeals’s holding that Appellant was not entitled to a lesser-included instruction on

manslaughter and, if necessary, to reconsider our jurisprudence on lesser-included
                                                                                            Hudson–2

offenses. However, because we agree with the court of appeals that Appellant was not

entitled to the lesser-included instruction, we will affirm its judgment.

       Appellant was charged with capital murder (intentional murder in the course of

committing or attempting to commit kidnapping) for confining her then thirteen-year-old

adopted son Samuel1 to his room by binding his hands and feet and beating him to death

“with a cord, a mop handle, a broom handle, a rake, a baseball bat, and by withholding

food” from him when she was legally obligated as Samuel’s parent to provide him food.

See T EX. P ENAL C ODE § 19.03(a)(2). Appellant’s defensive theory at trial was that she did

not commit murder or kidnapping, and she accused another one of her adopted children,

Gary, of killing Samuel. At the charge conference, and despite Appellant’s defensive

theory that she had nothing to do with Samuel’s death, Appellant asked for an instruction

on manslaughter based on evidence adduced at trial that Appellant was only disciplining

Samuel, but the discipline went too far (i.e., she recklessly caused Samuel’s death). That

request was denied, although the jury was charged on felonious injury to a child and

intentional murder, and it was given a “benefit of the doubt” instruction.2 The jury

convicted Appellant of capital murder, and she was sentenced to confinement for life

without the possibility of parole. See T EX. C ODE C RIM. P ROC. art. 37.071, § 1.


        1
            We continue to use the pseudonyms used in the court of appeals opinion.
       2
         The “benefit of the doubt” instruction in this case instructed the jury that, if it found that
Appellant was guilty of any of the three offenses, but it had a reasonable doubt as to which
offense Appellant was guilty of, the jury “must resolve that doubt in [Appellant]’s favor and find
her guilty of the lesser-included offense of injury to a child.”
                                                                                        Hudson–3

       On appeal, the Sixth Court of Appeals reversed and remanded after holding that

Appellant was entitled to a lesser-included-offense instruction on manslaughter, and that

she was harmed by its exclusion from the jury charge. See Hudson v. State, 366 S.W.3d

878, 889–92 (Tex. App.—Texarkana 2012) [hereinafter Hudson I], rev’d by, 394 S.W.3d

522 (Tex. Crim. App. 2013) [hereinafter Hudson II]. We subsequently granted the State’s

petition for review and reversed and remanded for the court of appeals to reanalyze, in

light of this Court’s caselaw, whether the Appellant was entitled to the manslaughter

instruction, and if she were, to determine whether she was harmed by the court’s failure to

include the instruction in the charge. See Hudson II, 394 S.W.3d at 525–26 (citing Flores

v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008); Forest v. State, 989 S.W.2d 365,

368 (Tex. Crim. App. 1999); Saunders v. State, 913 S.W.2d 564, 569–74 (Tex. Crim.

App. 1995)). On remand, the court of appeals affirmed the judgment of the trial court that

Appellant was not entitled to an instruction on manslaughter, and as a result, it did not

reach the question of whether Appellant was harmed. See Hudson v. State, 415 S.W.3d

891, 897 (Tex. App.—Texarkana 2013) [hereinafter Hudson III]. Subsequently, we

granted Appellant’s and the State’s petitions for review.3 However, we need not reach the


       3
           We granted the State’s petition on three grounds:

       (1) Is a testifying defendant who disclaims any involvement in the offense and
       blames another entitled to a lesser-included instruction?

       (2) Can circumstantial evidence that is subject to two interpretations be
       “affirmative evidence” of only one of them, thus entitling a defendant to an
       instruction on a lesser-included offense?
                                                                                           Hudson–4

State’s three grounds for review because we overrule Appellant’s first ground for review

and affirm the judgment of the court of appeals that Appellant was not entitled to an

instruction on manslaughter.

                                    F URTHER PROCEEDINGS

       When we reversed the judgment of the court of appeals and remanded this cause

for reconsideration, we asked the court to first consider if possible intermediate

lesser-included offenses existed that might have been supported by the evidence. See

Hudson II, 394 S.W.3d at 525; see also Flores, 245 S.W.3d at 439. Second, we asked the

court, if error was found, to consider the submission of any other lesser-included

intermediate offenses in its harm analysis. Hudson II, 394 S.W.3d at 525–26; see also

Saunders, 913 S.W.3d at 569–74. This Court identified three possible intermediate

offenses: (1) murder based on intent to cause serious bodily injury, (2) felony murder

based on felony kidnapping, and possibly (3) felony murder based on felonious injury to a

child. See Hudson II, 394 S.W.3d at 525.

       The court of appeals examined the offenses suggested by this Court and concluded

that felony murder based on felonious injury to a child satisfied the first prong of the Hall


       (3) Is there any need to review a defendant’s entitlement to a lesser-included
       instruction when the jury was given other lesser options and convicted on the
       greatest offense.

We granted the Appellant’s sole ground for review:

       (1) The court of appeals erred by holding that the trial court did not err by failing
       to submit an instruction on the lesser included offense of manslaughter.
                                                                                       Hudson–5

test because the proof necessary to establish guilt for capital murder as pled in the

indictment would also be sufficient to prove felony murder based on felonious injury to a

child.4 Hudson III, 415 S.W.3d at 896 (concluding that felony murder based on felonious

injury to a child satisfied the Hall test). The court then analyzed whether there was

evidence that, if believed by the jury, negated an element of the charged offense such that

the jury could have found Appellant guilty of felony murder based on felonious injury to a

child. Id. The court of appeals concluded that, if the jury believed that Appellant acted

only recklessly in causing Samuel’s death, that evidence supported a conviction for

manslaughter or felony murder based on felonious injury to a child because the evidence

was clear that Appellant inflicted serious bodily injury—an act clearly dangerous to

human life—on her son, the victim, that resulted in his death.5 Hudson III, 394 S.W.3d at

897. Thus, it concluded that Appellant was not entitled to an instruction on manslaughter

because Appellant could not satisfy the second, “guilty only” prong of the lesser-included

test. Id.

        Justice Carter concurred in the judgment of the court of appeals. Id. at 897 (Carter,

J., concurring). He wrote separately to explain that, based on his research and


        4
      Felony murder is a first-degree felony, while manslaughter is a second-degree felony.
Compare TEX . PENAL CODE § 19.02(c), with TEX . PENAL CODE § 19.04(b).
        5
        TEX . PENAL CODE § 19.02(b)(3) (“A person commits an offense if he: . . . commits or
attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of
the commission or attempt, or in immediate flight from the commission or attempt, he commits
or attempts to commit an act clearly dangerous to human life that causes the death of an
individual.”).
                                                                                           Hudson–6

interpretation of this Court’s caselaw, the “lies between” rule6 is nothing more than an

application of the second, “guilty only” prong of the lesser-included analysis that this

Court has followed for decades. Id. at 898 (citing Sweed v. State, 351 S.W.3d 63, 67 (Tex.

Crim. App. 2011)). We agree with Justice Carter, and we write to explain why.

                                            D ISCUSSION

       Appellant was not entitled to a lesser-included instruction on manslaughter

because the proof upon which she relied was also sufficient to prove another, greater

lesser-included offense of capital murder, felony murder based on felonious injury to a

child.7 See Flores, 245 S.W.3d at 439. Consequently, Appellant cannot prove that she is

guilty of only manslaughter, even if the jury believed that her evidence of recklessness

negated the intentional-murder requirement of capital murder, and the trial court did not

err when it rejected Appellant’s request for the manslaughter instruction. We write

additionally only to clarify the caselaw from this Court, and the case that both parties and


       6
        See Hudson III, 394 S.W.3d at 525 n.12 (quoting Flores, 245 S.W.3d at 439). In Flores,
we stated that “a defendant is not entitled to a jury instruction on a lesser-included offense if the
evidence on which the defendant is relying raises another offense that ‘lies between’ the
requested and charged offenses.” Flores, 245 S.W.3d at 439 (emphasis added).
       7
        See supra note 4. The indictment alleged that Appellant beat the victim (with various
implements) and that she withheld food from the victim. Different methods of committing an
offense that are alleged in the conjunctive in an indictment may generally be alleged in the
disjunctive in the jury charge. See Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014).
But the application paragraph of Appellant’s jury charge contained these allegations in the
conjunctive, requiring the jury to find that Appellant beat the victim and withheld food from the
victim. Because the jury had to find both of these allegations to convict Appellant of capital
murder, we need not address our recent holding that the cause of death that gives rise to a felony
murder conviction cannot be based solely on an omission. See Rodriguez v. State, No. PD-1189-
13, 2014 WL 2808269, at *4 (Tex. Crim. App. June 18, 2014, reh’g granted).
                                                                                     Hudson–7

Justice Carter relied upon.

       In Sweed, the defendant was entitled to a lesser-included instruction despite the

fact that a “lies between” offense existed. In Sweed, the complainant, the head of a

construction crew, was remodeling an apartment complex in Houston, when he noticed

that the appellant, who was not one of his employees, was with his work crew. Sweed,

351 S.W.3d at 64. Later that afternoon, the complainant’s employee told him that the

appellant had stolen a nail gun, and another employee told him that the appellant ran into

a nearby apartment. The complainant and his father saw the appellant leave the apartment

wearing different clothes and walk across the apartment-complex parking lot, where he

began speaking to some other people. At some point, the appellant noticed the

complainant was watching him. Id. The appellant then approached the complainant and

waved a knife at him, and the complainant pretended to have a gun “or something” in his

pocket. The appellant, without saying anything, returned to the apartment from which he

came. The entire episode took between 15 to 30 minutes. Id.

       The State indicted the appellant for aggravated robbery on the theory that, while in

the course of stealing the complainant’s nail gun, the appellant intentionally and

knowingly threatened the complainant (i.e., the construction foreman) and placed him in

fear of imminent bodily injury and death by using a knife. Id. at 65 n.1. At the charge

conference, the appellant requested a lesser-included instruction on theft, and the State

requested a lesser-included instruction on aggravated assault. Both requests were denied.
                                                                                    Hudson–8

On appeal, we held that the appellant was entitled to a lesser-included instruction on theft.

Id. at 68. Referring to the second prong of the lesser-included test, we explained that, “[i]f

‘in the course of committing theft’ could not be proven at trial, then the theft and the

assault were separate events, and Appellant could not be found guilty of robbery or

aggravated robbery.” Id. at 69. We also agree with Judge Johnson’s analysis in her

concurring opinion in Sweed that, had the issue been before this Court, the State’s request

for a lesser-included instruction on aggravated assault should have also been granted

because aggravated assault was a lesser-included offense of aggravated robbery as pled in

that case. Id. at 70 (Johnson, J., concurring, joined by Cochran, J.). In other words, both

lesser-included instructions—theft and aggravated assault—would have been proper to

include in the jury charge, despite the fact that aggravated assault “lies between” theft and

aggravated robbery.

       However, the facts of Appellant’s case are distinguishable from those in Sweed. In

Sweed, if the jury did not believe that the appellant assaulted the complainant in the

course of committing theft, the jury could have convicted him of only the lesser-included

offense of theft. On the other hand, in this case, even if the jury believed the evidence that

Appellant was only reckless in killing her child, that evidence supported two lesser-

included offenses, one of which was a lesser included of capital murder but greater than

manslaughter, felony murder. Therefore, Appellant was not entitled to the requested

instruction on manslaughter. Finally, although Appellant may have been entitled to a
                                                                                           Hudson–9

different lesser-included-offense instruction if she had requested one, such as felony

murder, Appellant made no such request, and that issue is not before us.8

       We affirm the judgment of the court of appeals.

                                                              Hervey, J.

Delivered: December 10, 2014

Publish




       8
         The dissent argues that, because the jury charge did not include language explaining that
felony injury to a child can be committed recklessly or with criminal negligence, Appellant was
entitled to the manslaughter instruction. However, the fact that the specified language was not
included in the jury charge does not lead to the conclusion that Appellant was entitled to the
requested lesser-included manslaughter instruction. If Appellant was unsatisfied with the
definition of injury to a child in the jury charge, Appellant should have objected at trial or raised
the issue on appeal. However, Appellant failed to do either of these things.
