             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                     NO. PD-0765-12



                   RONALD EUGENE WORTHAM, JR., Appellant

                                             v.

                                THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE NINTH COURT OF APPEALS
                          SAN JACINTO COUNTY

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

                                      OPINION

       Ronald Wortham was convicted of injury to a child. The Ninth Court of Appeals

affirmed the judgment, holding that the trial judge did not err in denying Wortham’s request

for a jury instruction on the lesser-included offenses of reckless and criminally negligent

injury to a child.1 Because the court of appeals misapplied the two-part analysis used to



       1
           Wortham v. State, 366 S.W.3d 871, 875–76 (Tex. App.—Beaumont 2012).
                                                                             WORTHAM—2

determine the availability of lesser-included offense instructions, we reverse its judgment.

                                      BACKGROUND

       Ronald Wortham lived with C.G. and C.G.’s two-year-old daughter, C.B. On March

10, 2010, Wortham brought C.B. to the emergency room at a hospital in Cleveland, Texas.

C.B. was in cardiac arrest, had no respiration, pulse, or blood pressure, and was in a deep

coma. Doctors managed to restore C.B.’s breathing, but a CAT scan revealed that she had

an acute subdural hematoma, hypoxic ischemia, and intraventricular hemorrhaging.

Wortham did not dispute that he had been alone with C.B. during the period of time in which

the injuries occurred. He was arrested and charged with injury to a child, a first-degree

felony.2 The indictment alleged that Wortham, “on or about the 10th day of March, 2010,

. . . did then and there intentionally and knowingly cause serious bodily injury to [C.B.], a

child 14 years of age or younger, by shaking said [C.B.] and restricting her airflow causing

suffocation.”

       At trial, Texas State Trooper Christopher Richmond, Deputy Jason Bell, and Detective

Darryl LaMott each testified regarding Wortham’s explanation about how C.B.’s injuries had

occurred. According to Wortham, C.B. had been sleeping. When Wortham went to check

on her, he discovered that she had a plastic bag on her face and that she was not breathing.

Wortham then decided to take C.B. to the hospital. Detective LaMott’s testimony went

further: he related that Wortham said that when Wortham removed the bag from C.B.’s face,



       2
           See T EX. P ENAL C ODE § 22.04(a), (e) (West 2012).
                                                                             WORTHAM—3

he tapped her and shook her in an attempt to revive her. Only when this was unsuccessful

did Wortham take C.B. to the hospital.

       Multiple witnesses for the State testified that C.B.’s injuries were indicative of non-

accidental trauma. Dr. Sunil Kumar Saraf, the emergency-room doctor who initially treated

C.B., testified that a subdural hematoma could not be caused by suffocation, either by a

plastic bag covering the face or otherwise. Dr. George Boutros, a radiologist, also agreed

that C.B.’s injuries could not have been caused by a plastic bag blocking her airway. Finally,

Dr. Sheela Lahoti, a professor of pediatrics, testified that the blood found in C.B.’s brain

could not have been caused by suffocation. All three doctors indicated that C.B.’s injuries

were consistent with shaken baby syndrome, which occurs when a child is shaken vigorously

with rapid acceleration.

       At the charge conference, Wortham’s trial counsel requested a jury instruction on the

lesser-included offenses of reckless injury to a child and criminally negligent injury to a

child. The trial judge denied Wortham’s requests as to both recklessness and criminal

negligence. Subsequently, the jury returned a verdict of guilty and assessed a punishment

of forty years’ imprisonment.

       Wortham appealed, arguing that the judge erred in denying his request for a lesser-

included offense instruction. Specifically, he stated that he had been entitled to the lesser-

included offense instruction because the evidence indicated that while he had shaken C.B.,
                                                                              WORTHAM—4

he had done so in an attempt to revive her.3 The Ninth Court of Appeals upheld the decision

of the trial court, stating that a judge need not instruct a jury on a lesser-included offense

when the conduct establishing the lesser offense is not included within the facts required to

prove the charged offense.4 The court of appeals also concluded that based on the facts of

the record, no rational jury could have found that Wortham recklessly or negligently caused

injury to C.B.5 We granted review to determine whether the court of appeals erred when it

upheld the judge’s denial of Wortham’s requested lesser-included offenses charge.

                        LESSER-INCLUDED OFFENSE INSTRUCTION

          Hall v. State sets forth the two-part analysis used to determine whether a defendant

is entitled to a jury instruction on a lesser-included offense.6 Using the “cognate pleadings”

approach, an appellate court must first consider whether the offense contained in the

requested instruction is a lesser-included offense of the charged offense.7 If it is, the court

must then determine whether the evidence admitted at trial supports the instruction.8




          3
              See Wortham, 366 S.W.3d at 876.
          4
              Id. at 875.
          5
              Id. at 876.
          6
              Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007).
          7
              Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at
535.
          8
              Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Rice, 333 S.W.3d
at 144.
                                                                                WORTHAM—5

       We now turn to the first step in the analysis: whether the offense contained in the

requested instruction is a lesser-included offense of the charged offense. Whether an offense

is a lesser-included offense is governed by Code of Criminal Procedure Article 37.09, which

reads in pertinent part:

                 An offense is a lesser included offense if:

              (1) it is established by proof of the same or less than all the facts
       required to establish the commission of the offense charged; [or]

                 ....

             (3) it differs from the offense charged only in the respect that a less
       culpable mental state suffices to establish its commission . . . .9

       This is a question of law. “[W]e do not consider the evidence that was presented at

trial. Instead, we consider only the statutory elements of [the offense] as they were modified

by the particular allegations of the indictment . . . . We then compare them with the elements

of the [requested] lesser offense . . . .”10 Thus, an offense is a lesser-included offense if the

indictment alleges all the elements of the lesser-included offense, or if the indictment alleges

elements plus facts from which all the elements of the lesser-included offense may be

deduced.11

       In this case, the indictment against Wortham for injury to a child contained the


       9
            T EX. C ODE C RIM. P ROC. art. 37.09 (West 2012).
       10
            Hall, 225 S.W.3d at 536.
       11
        Rice, 333 S.W.3d at 144; Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim.
App. 2009) (op. on reh’g).
                                                                            WORTHAM—6

following elements:

       (1) Wortham

       (2) intentionally or knowingly

       (3) caused serious bodily injury

       (4) to a child 14 years of age or younger

       (5) by shaking and restricting her airflow, causing suffocation.

       An individual may commit the offense of injury to a child either by act or by

omission.12 However, for the purposes of this analysis, an appellate court must consider only

the elements of the offense as they were modified by the particular allegations of the

indictment.13 Here, the indictment did not charge Wortham with injury to a child by

omission. Therefore, we compare the elements of the offense as modified by the indictment

to the elements of reckless and criminally negligent injury to a child by committing an

act—not by omission—as follows:

       (1) a person commits an offense if he

       (2) recklessly or with criminal negligence by act

       (3) causes serious bodily injury

       (4) to a child.14



       12
            See T EX. P ENAL C ODE § 22.04(a) (West 2012).
       13
            See Hall, 225 S.W.3d at 536.
       14
            See T EX. P ENAL C ODE § 22.04(a)(1) (West 2012).
                                                                              WORTHAM—7

       Because the indictment alleges all of the elements of the requested lesser-included

offenses, reckless and criminally negligent injury to a child by act are lesser-included

offenses of intentional and knowing injury to a child by act. Furthermore, Article 37.09(3)

states that a lesser-included offense differs from the offense charged only in the respect that

a less culpable mental state suffices to establish its commission.15 “Reckless” and “criminal

negligence” are less culpable mental states than “intentional” and “knowing.” 16 Thus, by

definition, reckless and criminally negligent injury to a child by act are lesser-included

offenses of knowing or intentional injury to a child by act.17

       The court of appeals held that Wortham was not entitled to his requested jury

instruction because “[a] trial court need not instruct a jury on a lesser-included offense when

the conduct establishing the lesser offense is not included within the facts required to prove

the charged offense.”18 The court of appeals pointed out that Wortham’s theory of the case

was that C.B. was suffocated by a bag and that Wortham shook her in an attempt to revive

her, while the State’s evidence established that C.B. was not suffocated by a bag, but went




       15
            T EX. C ODE C RIM. P ROC. art. 37.09(3) (West 2012).
       16
            See T EX. P ENAL C ODE § 6.02(d) (West 2012).
       17
        See Hicks v. State, 372 S.W.3d 649, 653 (Tex. Crim. App. 2012); Gay v. State,
235 S.W.3d 829, 831–32 (Tex. App.—Fort Worth 2007, pet. ref’d); Thompson v. State,
227 S.W.3d 153, 163 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Brunson v. State,
764 S.W.2d 888, 892 (Tex. App.—Austin 1989, pet. ref’d).
       18
            Wortham, 366 S.W.3d at 875.
                                                                               WORTHAM—8

into a coma as a result of being shaken.19 Thus, in the court of appeals’ view, the conduct

constituting the offense charged was different from that constituting the offense of the

requested instruction.

          In determining that reckless and criminally negligent injury to a child were not valid

lesser-included offenses in this case, the court of appeals relied on Thompson v. State.20 In

Thompson, the trial judge denied a request for an instruction on the lesser-included offense

of reckless bodily injury to a child, because the appellant’s theory of the case was different

from the elements alleged in the indictment.21 The indictment in Thompson alleged that

appellant had intentionally or knowingly caused bodily injury to a child by holding her feet

in hot water.22 However, the appellant argued that he was entitled to a reckless injury to a

child instruction because evidence had been presented indicating that appellant had placed

the child on the side of the tub and that she burned her feet as the water filled the tub.23 The

court in Thompson held that because the conduct supporting a charge of recklessness did not

match the conduct alleged in the indictment—specifically, that appellant had held the child’s

feet under the hot water rather than allowing the child’s feet to become burned as the water


          19
               Id. at 875–76.
          20
               Thompson v. State, 227 S.W.3d 153 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).
          21
               Id. at 163.
          22
               Id.
          23
               Id. at 163–64.
                                                                                WORTHAM—9

rose—recklessly injuring the child was not a lesser-included offense of intentionally or

knowingly doing so, and thus the court was not required to give the instruction.24

       There are several reasons why the court of appeals’ reliance on Thompson in this case

is misplaced. First, the facts of Thompson are distinguishable. In Thompson, as stated above,

the conduct alleged by the indictment and the appellant’s theory of the case were completely

different.25    In this case, however, both the indictment and Wortham allege identical

conduct—that Wortham shook C.B. While it is true that Wortham’s theory of the case is that

he shook C.B. in an attempt to revive her and thus recklessly or negligently inflicted injuries,

the fact remains that the conduct is the same. Even applying the Thompson reasoning,

reckless or negligent injury to a child would constitute a lesser-included offense of knowing

or intentional injury to a child in this case because the conduct establishing the lesser offense

is included within the facts required to prove the charged offense.

       Additionally, the reasoning in Thompson, and, by extension, in the court of appeals’

decision in this case, conflicts with this Court’s clarification of the law of lesser-included-

offense instructions as set forth in Hall v. State and its progeny. As stated above, Hall

dictates that when determining whether a requested charge constitutes a lesser-included

offense, an appellate court should not consider the evidence presented at trial.26            In



       24
            Id. at 164.
       25
            See id. at 163–64.
       26
            Hall, 225 S.W.3d at 535, 536.
                                                                               WORTHAM—10

Thompson, however, the court considered the evidence presented at trial when it concluded

that reckless injury to a child was not a lesser-included offense of intentional or knowing

injury to a child.27 Likewise, in this case, the court of appeals considered the evidence at trial

when it determined that reckless or criminally negligent injury to a child was not a lesser-

included offense of intentional or knowing injury to a child. The court’s analysis is replete

with references to what Wortham “contended” or “suggested,” and what various witnesses

testified to.28 Nowhere in the court’s majority opinion is a comparison of the elements of the

indictment to the elements of the requested lesser-included offense as required by the

cognate-pleadings approach.29

       The evidence presented at trial remains an important part of a judge’s decision on

whether to present a requested instruction to the jury. But such evidence comes into play

only in the second prong of the test. Thus the court of appeals’ analysis of whether the

conduct underlying the requested lesser-included instruction is included in the proof

necessary to establish the offense charged was misplaced—the court analyzed this issue

under the first prong of the test rather than the second. Such an analysis is best addressed

when determining whether the evidence presented at trial is sufficient to support the lesser-


       27
          Thompson, 227 S.W.3d at 163–164 (holding that because the evidence as
presented by appellant did not match the conduct constituting the offense charged, the
appellant was not entitled to the lesser included offense charge).
       28
            Wortham, 366 S.W.3d at 876.
       29
         But see id. at 876–77 (Dissenting opinion addressing the cognate pleadings test
and the applicability of Article 37.09) (McKeithen, J., dissenting).
                                                                               WORTHAM—11

included offense at all. In outlining what should be determined in the second prong of the

test, we stated that, among other things, a defendant is entitled to an instruction on a lesser-

included offense only “where the proof for the offense charged includes the proof necessary

to establish the lesser included offense . . . .”30 However, in this case, the conduct underlying

the requested lesser-included instruction is included in the proof necessary to establish the

offense charged. Both the indictment and Wortham allege that C.B.’s injuries were caused

by the same conduct—shaking. Thus the court of appeals’ determination that the conduct

constituting the offense charged was different than the conduct constituting the offense of

the requested charge was in error.

       We now turn to the second step in the analysis: whether the evidence presented at trial

supports the lesser-included offense instruction.31 The purpose of this second step is to

ensure that the lesser-included offense is a “valid, rational alternative” to the charged

offense.32 “[T]here must be some evidence directly germane to the lesser-included offense

for the finder of fact to consider before an instruction on a lesser-included offense is




       30
        Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.
App. 1994)).
       31
            Goad, 354 S.W.3d at 446.
       32
         Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997) (overruled on
other grounds).

                                                                                              11
                                                                               WORTHAM—12

warranted.”33 Anything more than a scintilla of evidence entitles the defendant to the lesser

charge.34 We may not consider the credibility of the evidence; even weak or contradicted

evidence may rise to a level that a rational jury could find a defendant guilty of only a lesser-

included offense.35 However, such evidence cannot be mere speculation—it must consist of

affirmative evidence that both raises the lesser-included offense and rebuts or negates an

element of the greater offense.36

       The court of appeals held that because the medical evidence presented at trial

overwhelmingly indicated that C.B.’s injuries were not caused by a plastic bag or Wortham’s

attempts to revive the child, no rational jury could have found Wortham guilty of only a

lesser-included offense.37 Likewise, the State in its brief argues that because the medical

witnesses were unanimous in stating that shaken baby syndrome is not a condition that can

be caused accidentally, and because Wortham did not present medical testimony explaining

how his reckless or negligent actions could have caused the injuries, he cannot point to “more

than a scintilla of evidence” required to meet the second prong of the test.




       33
        Goad, 354 S.W.3d at 446 (citing Hampton v. State, 109 S.W.3d 437, 441 (Tex.
Crim. App. 2003)).
       34
            Id. at 446; Bignall, 887 S.W.2d at 23.
       35
         Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); Goad, 354
S.W.3d at 447, 448.
       36
            Cavazos, 382 S.W.3d at 385.
       37
            Wortham, 366 S.W.3d at 876.
                                                                               WORTHAM—13

       The court of appeals’ and the State’s reliance on the overwhelming medical evidence

presented in this case is in error. If a defendant can point to more than a scintilla of evidence

supporting the lesser-included offense instruction—even evidence that is controverted or

weak—he is entitled to the instruction. Here, Wortham has presented such evidence. The

testimony of Detective LaMott contained Wortham’s assertion that Wortham had shaken

C.B. in an attempt to revive her. Wortham’s assertion, if true, would negate the “intentional”

or “knowing” elements of the charged offense.

       The court of appeals erred when it determined from the evidence presented in the case

that the medical evidence overwhelmed Wortham’s explanation of the cause of C.B.’s

injuries, instead of determining whether more than a scintilla of evidence supported

Wortham’s request for a jury instruction on the lesser-included offenses. Because Wortham

was able to point to evidence negating an element of the charged offense and raising reckless

or criminally negligent injury to a child as a valid, rational alternative, Wortham was entitled

to the requested instruction.

                                       CONCLUSION

       Based on the elements of the offense as modified by the indictment in this case,

reckless and criminally negligent injury to a child by act are lesser-included offenses of

knowing or intentional injury to a child by act. Likewise, evidence was presented at trial that

entitled Wortham to the requested lesser-included offense instruction. We therefore reverse

the judgment of the Ninth Court of Appeals and remand the case to that court to conduct a
                              WORTHAM—14

harm analysis.




Delivered: October 30, 2013

PUBLISH
