                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                          No. 04-18-00513-CR

                                          Anna Linda GARZA,
                                               Appellant

                                                  v.

                                          The STATE of Texas,
                                                Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CR10615
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: August 14, 2019

REVERSED AND RENDERED

           Appellant Anna Linda Garza was convicted by a jury of recklessly causing bodily injury

to a child. The jury assessed punishment at one year confinement and a fine of $5,000. On appeal,

Garza claims the evidence is legally insufficient to support her conviction. We agree, so we reverse

her conviction and render a judgment of acquittal.
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                                                      BACKGROUND

           Garza is Z.G.’s 1 adoptive mother. When Z.G. was nine, he repeatedly experimented with

fire and lighters despite Garza’s efforts to curb that behavior. On January 31, 2017, Z.G. set two

Kleenex boxes on fire and threw them in a neighbor’s backyard. The smoke was so bad that they

called the fire department. Afterwards, Garza stressed to Z.G. that he should not play with fire

and arranged for him to receive professional counseling. A few days later, Z.G. repeated the

behavior while Garza was away from the home. When she returned, she warned Z.G. again about

the consequences of playing with fire, this time by turning on and off a lighter. When Z.G. got up

to leave the room, the top of the unlit lighter touched the bottom of his chin, leaving a burn the

size of a pencil eraser. Z.G.’s teacher noticed the burn and sent Z.G. to the nurse, who reported

the injury to the authorities.

           The State charged Garza with two counts of causing injury to a child. Under the first count,

the State alleged that Garza intentionally or knowingly caused bodily injury to Z.G., and under the

second count, the State alleged that Garza caused the injury recklessly. The jury found Garza

guilty of recklessly causing injury to Z.G. Garza then appealed, arguing the evidence is insufficient

to support her conviction because she was not aware of a substantial and unjustifiable risk that

Z.G. would be injured.

                                              Sufficiency of the Evidence

           “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.” Brasse v. State, 392. S.W.3d 239,

242 (Tex. App.—San Antonio 2012, no pet.). Evidence may be insufficient under this standard



1
    To protect the identity of the minor child, we refer to the child by his initials. TEX. R. APP. P. 9.10.


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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.” Id.

(quoting Bearnth v. State, 361 S.W.3d 135, 138 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d)).

This standard requires us to defer to the fact-finder’s credibility and weight determinations and

consider only whether the jury reached a rational decision. Id.

                                Injury to a Child and Recklessness

       A person commits the offense of injury to a child if she intentionally, knowingly,

recklessly, or with criminal negligence, by act or omission, causes a child bodily injury. TEX.

PENAL CODE ANN. § 22.04. A person acts recklessly when she 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 must be such 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 must offer a prima facie case of a defendant’s actual,

subjective disregard of the risk of a resulting injury which rises to the level of a “gross deviation.”

Williams v. State, 235 S.W.3d 742, 753 (Tex. Crim. App. 2007). Whether an act involves a

substantial and unjustifiable risk requires us to examine the situation from the defendant’s

viewpoint at the time it occurred without viewing the matter in hindsight. Id. “[M]ere lack of

foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the

consequences may happen to be,” do not rise to the level of criminal recklessness. Id. at 751.

                                             Application

       Here, we review the record for evidence that Garza was subjectively aware of a substantial

and unjustifiable risk that Z.G. would be injured if she demonstrated the dangers of fire by holding

the recently lit lighter so close to his face. See id. at 753. The State admits that the lighter was




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unlit when it touched Z.G.’s chin. It argues, however, that Garza should have foreseen that holding

the unlit lighter so close to Z.G.’s face would have resulted in injury.

        We disagree because this confuses the requisite mental state of criminal recklessness with

criminal negligence. Compare TEX. PENAL CODE § 6.03(c) (providing the mental state for criminal

recklessness), with id. § 6.03(d) (providing the mental state for criminal negligence). Unlike

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

should have known or “ought to be aware” of such risk. See id. § 6.03(d); Williams, 235 S.W.3d

at 750–51. Because the requisite mental state for injury to a child is criminal recklessness, we

review the record for evidence that Garza was actually and subjectively aware of a substantial and

unjustifiable risk that holding the unlit lighter in front of Z.G.’s face would cause him injury. See

TEX. PENAL CODE §§ 6.03(c); 22.04; Williams, 235 S.W.3d at 752–53.

        Here, the record indicates Garza was aware of the following on the date in question: (1)

Z.G. had burned two Kleenex boxes several days prior; (2) her previous attempts to educate Z.G.

about the risks of playing with fire had not deterred him from repeating the behavior; (3) Z.G. was

playing with a lighter while in a room with his siblings on that day; and (4) she had turned the

lighter on and then off at some point during a discussion with Z.G. about the dangers of playing

with fire.

        There is no evidence that Garza subjectively knew there was a substantial risk that holding

an unlit lighter would cause injury to Z.G. See Britain v. State, 392 S.W.3d 244, 247–48 (Tex.

App.—San Antonio 2012, pet. granted) (holding evidence insufficient to support conviction for

reckless injury to child because evidence failed to show that defendant was subjectively aware of

risk), aff’d, 412 S.W.3d 518 (Tex. Crim. App. 2013); see also Brasse, 392 S.W.3d at 243 (same).

Garza denied holding the lighter, when lit, closer than two feet from Z.G.’s face. It is undisputed

the lighter was unlit when it touched Z.G.’s face. The State fails to offer any argument as to how


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a rational jury could have appropriately concluded that Garza was subjectively aware of the

substantial risk of injury to Z.G. based on this evidence. Even when reviewing evidence in the

light most favorable to the jury’s verdict, the record contains no evidence that would allow a

rational jury to find beyond a reasonable doubt that Garza was subjectively aware of and

consciously disregarded a substantial and unjustifiable risk that Z.G. would suffer bodily injury by

her actions. See, e.g., Jackson, 443 U.S. at 319.

                                          CONCLUSION

       Because there is legally insufficient evidence of criminal recklessness, we hold the

evidence is legally insufficient to support Garza’s conviction. We reverse the trial court’s

judgment of conviction for injury to a child and render a judgment of acquittal.

                                                    Beth Watkins, Justice

DO NOT PUBLISH




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