                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                                   OPINION
                                              No. 04-11-00559-CR

                                                 David BRASSE,
                                                    Appellant

                                                          v.

                                             The STATE of Texas,
                                                   Appellee

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                     Trial Court No. 09-0590-CR
                              Honorable Gary L. Steel, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 5, 2012

REVERSED AND RENDERED

           David Neil Brasse was convicted by a jury of manslaughter for recklessly causing the

death of his eight-year-old daughter, Sarah Brasse, by failing to seek medical treatment. 1 He

raises three points of error on appeal: (1) the evidence was legally insufficient to support his

conviction for manslaughter, (2) the trial court erroneously refused to include a question on

1
  Brasse was charged by indictment with one count of manslaughter and one count, four paragraphs, of injury to a
child. The trial court granted an instructed verdict of not guilty on paragraphs III and IV of injury to a child. The
jury returned a guilty verdict on paragraph II of injury to a child and on manslaughter. The jury returned a verdict of
not guilty on paragraph I of injury to a child. The trial court granted Brasse’s motion for judgment non obstante
veredicto on paragraph II of injury to a child (reckless injury to a child), but denied his motion as to manslaughter.
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mistake of fact in the jury charge, and (3) the trial court erroneously refused to grant his motion

for mistrial after the State’s witness testified in violation of the trial court’s order. We reverse

the trial court’s judgment of conviction for manslaughter and render a judgment of acquittal.

                                          BACKGROUND

       Eight-year-old Sarah Brasse reported to the school nurse complaining of a stomach ache.

After sending Sarah back to class twice, the school nurse called Sarah’s father, David Brasse,

and Sarah’s stepmother, Samantha Amity Britain. Britain picked Sarah up from school and took

her home. Sarah began vomiting that evening and her brother testified he heard her vomit three

times. Brasse left for work very early the next morning. Sarah stayed home from school with

Britain. Sarah continued to vomit during the day and although she drank fluids she did not eat.

Sarah’s brother checked on her when he arrived home from school and covered her with a

blanket. She died shortly thereafter from complications arising from appendicitis. Because the

chronology of events is important in determining the sufficiency of the evidence, a table

referencing the evidence is provided below.


    Date                  Time                                          Event

   2/4/2008   Approximately 8:15 a.m.       Sarah goes to her school nurse with a “tummy ache.” Nurse
                                            sends Sarah back to class.
   2/4/2008   Approximately 9:15 a.m.       Sarah, still not feeling well, returns to nurse’s office. Nurse
                                            sends Sarah back to class.
   2/4/2008   Approximately 10:50 a.m.      Sarah, tearful, returns to the nurse’s office saying that her
                                            tummy hurts and she is not feeling well. The nurse checks her
                                            temperature, listens to her bowel sounds, palpates her
                                            abdomen, and checks her vital signs. The examination is
                                            normal. Because it is Sarah’s third visit and she is crying, the
                                            nurse calls Britain and Brasse to pick Sarah up from school.
   2/4/2008   Approximately 12:00 p.m.      Britain picks Sarah up from school. Sarah is feeling better and
                                            runs to hug Britain.
   2/4/2008   Evening hours                 Sarah vomits for the first time. Brasse is unsure whether Sarah
                                            ate her dinner.
   2/4/2008   Throughout the night          Sarah’s brother hears her vomit three times during the night.
   2/5/2008   4:30 a.m.                     Brasse departs for work, leaving Sarah in Britain’s care.


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  2/5/2008    7:05 a.m.                    Sarah is still not feeling well so Britain keeps her home from
                                           school.
  2/5/2008    Throughout the day           Sarah vomits four to five times, develops diarrhea, and is
                                           unable to eat.
  2/5/2008    Approximately 4:00 p.m.      Sarah’s brother checks on her when he returns home from
                                           school.
  2/5/2008    Approximately 5:00 p.m.      Sarah’s brother takes her water. Sarah says she is cold so he
                                           covers her with a blanket.
  2/5/2008    Approximately 6:00 p.m.      Britain checks on Sarah; Sarah is dead.
  2/5/2008    Between 7:00 p.m. and 8:00   Brasse tells Michelle Garcia, his co-worker, that he believed
              p.m.                         Sarah was sick with a stomach virus that he and Britain had the
                                           week before and he could not understand how she died.

                                        LEGAL SUFFICIENCY

       In his first point of error, Brasse challenges the legal sufficiency of the evidence

supporting his conviction for manslaughter because (1) he was not aware of a substantial and

unjustifiable risk that Sarah would be seriously injured or would die, and (2) his failure to seek

medical treatment was not a gross deviation from the standard of care that an ordinary person

would exercise under all of the circumstances as viewed from his standpoint.

A. Standard of Review

       In reviewing the legal sufficiency of the evidence, we must view “the evidence in the

light most favorable to the prosecution” and determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis omitted); accord Prible v. State, 175 S.W.3d 724, 729–30

(Tex. Crim. App. 2005). Evidence may be insufficient under the Jackson standard when “(1) the

record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the

offense, or (2) the evidence conclusively establishes a reasonable doubt.” Bearnth v. State, 361

S.W.3d 135, 138 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson, 433 U.S. at

314, 320). This standard requires that we defer to the fact-finder’s credibility and weight

determinations and consider only whether the jury reached a rational decision. Brooks v. State,


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323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); see also TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979).

B. Elements of Manslaughter

       A person commits the offense of manslaughter “if he recklessly causes the death of an

individual.” TEX. PENAL CODE ANN. § 19.04 (West 2011). Manslaughter is a result-oriented

offense—the defendant’s culpable mental state must relate to the result of his or her conduct.

Schroeder v. State, 123 S.W.3d 398, 399–401 (Tex. Crim. App. 2003).

C. Recklessness

       “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.” TEX. PENAL CODE

ANN. § 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. “The State cannot be

permitted to submit its case to the jury unless it has offered a prima facie case of a defendant’s

actual, subjective ‘disregard of the risk of a resulting [injury] which . . . rise[s] to the level of a

“gross deviation” from an ordinary standard of conduct.’” Williams v. State, 235 S.W.3d 742,

753 (Tex. Crim. App. 2007) (alterations in original) (quoting Crume v. State, 658 S.W.2d 607,

609 (Tex. Crim. App. 1983)). “[D]etermining 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.’” Id. (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)), superseded

by statute on other grounds, Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.02, 2003 Tex.

Gen. Laws 847, 887). “‘[M]ere lack of foresight, stupidity, irresponsibility, thoughtlessness,



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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)).

D. Analysis

       1. Culpable Mental State

       Because the requisite mental state for manslaughter is criminal recklessness, we review

the record for evidence that Brasse was subjectively aware of a substantial and unjustifiable risk

that Sarah would die without medical treatment.        See TEX. PENAL CODE ANN. § 6.03(c);

Williams, 235 S.W.3d at 752–53. The State argues Brasse should have known his failure to seek

medical treatment for Sarah would create a substantial and unjustifiable risk of her death. This

confuses the requisite mental states of criminal recklessness and criminal negligence. Compare

TEX. PENAL CODE ANN. § 6.03(c) (criminal recklessness), with id. § 6.03(d) (criminal

negligence). Criminal recklessness, the mens rea for the offense of manslaughter requires that

the defendant possess a subjective and actual awareness of a substantial and unjustifiable risk.

See id. §§ 6.03(c), 19.04, 22.04; Williams, 235 S.W.3d at 752–53.         Compared to criminal

recklessness, criminal negligence requires a less culpable mental state—the defendant should

have known or “ought to be aware” of such risk. TEX. PENAL CODE ANN. § 6.03(d); accord

Williams, 235 S.W.3d at 750–51. In our review, we consider the evidence “in the light most

favorable to the prosecution” and determine whether any rational trier of fact could have found

that Brasse was actually and subjectively aware that his failure to seek medical attention for

Sarah created a substantial risk that she would die. See Jackson, 443 U.S. at 319; Williams, 235

S.W.3d at 752–53; see also TEX. PENAL CODE ANN. §§ 6.03(c), 19.04.




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       2. No Evidence Brasse Was Subjectively Aware of a Substantial and Unjustifiable Risk

       The record indicates that when Brasse left for work at 4:30 a.m. on February 5th, he was

aware that Sarah visited the school nurse three times the previous day complaining of a stomach

ache and was sent home from school, and that she vomited before she went to bed. Brasse was

unsure whether Sarah ate dinner that evening. No evidence indicates he knew Sarah vomited

several times during the night of February 4th or that he was apprised of any additional

information about her condition at any point after he left for work at 4:30 a.m. but before her

death on February 5th. The State asks us to infer that Brasse knew Sarah vomited several times

throughout the night because her brother heard her. However, there is nothing in the record that

permits the jury to draw this inference. The State fails to offer any argument as to how a rational

jury could have appropriately concluded that Brasse was aware of the substantial risk of death

based on the evidence presented. Although the jury is permitted to draw appropriate conclusions

and inferences from the evidence, it was not rational for the jury to conclude the requisite

knowledge based on the record before us.

       Reviewing the evidence in the light most favorable to the jury’s verdict, we nevertheless

conclude that the evidence is legally insufficient for the jury to have found that Brasse was

subjectively aware of and consciously disregarded a substantial and unjustifiable risk that Sarah

would die if she did not receive medical treatment. See TEX. PENAL CODE ANN. § 6.03(c);

Williams, 235 S.W.3d at 750, 752–53.

       Because we conclude the evidence is legally insufficient on an essential element of

manslaughter, Brasse’s additional points of error are rendered moot and we need not address

them. See TEX. R. APP. P. 47.1.




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                                          CONCLUSION

       Because there is legally insufficient evidence of criminal recklessness, a rational trier of

fact could not have found beyond a reasonable doubt the essential elements of the offense of

manslaughter. Therefore, the evidence was legally insufficient to support Brasse’s conviction for

manslaughter. We reverse the trial court’s judgment of conviction for manslaughter and render a

judgment of acquittal.


                                                 Rebecca Simmons, Justice

PUBLISH




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