Opinion issued November 19, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00435-CR
                           ———————————
                   CATLIN WAYNE BRISCOE, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 89th District Court*
                          Wichita County, Texas
                       Trial Court Case No. 58,221-C




*
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred this appeal from the Court of Appeals for the Second District of Texas
     to this Court. See Misc. Docket No. 18-9049, Transfer of Cases from Courts of
     Appeals (Tex. Mar. 27, 2018); see also TEX. GOV’T CODE § 73.001 (authorizing
     transfer of cases). We are unaware of any conflict between precedent of that court
     and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
                           MEMORANDUM OPINION

      Catlin Wayne Briscoe was indicted for felony murder for causing the death

of a 19-month-old child while committing a felony. See TEX. PENAL CODE

§ 19.02(b)(3). The jury convicted Briscoe of recklessly causing serious injury to a

child and assessed his punishment at 14 years’ imprisonment. See id. § 22.04(a)(1).

In one issue, Briscoe argues that the trial court erred in including reckless bodily

injury to a child as a lesser-included offense in the jury charge.

      We affirm.

                                      Background

      Briscoe lived with his girlfriend and her 19-month-old child in Wichita

Falls. While home alone with the toddler in August 2014, Briscoe called 911

because the child was unresponsive. Emergency personnel performed CPR, and the

toddler was taken to the hospital. Though she was resuscitated, she died a few days

later. Briscoe claimed that he gave her a bath and was drying her off when she

went limp and her eyes rolled back in her head. The autopsy results showed that

she had a five-inch skull fracture.

      Briscoe was indicted for felony murder, specifically committing or

attempting to commit an act clearly dangerous to human life—striking the victim

with or against a hard or soft object or surface—while committing or attempting to

commit the felony of injury to a child. Outside the presence of the jury, defense


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counsel told the court that Briscoe wished to request a reckless serious bodily

injury to a child charge (“the reckless charge”). Later the trial court informed

Briscoe that the court was “having trouble finding evidence to support a reckless

act” and suggested he develop such evidence if he wanted the reckless charge

submitted to the jury. After the parties rested and closed, the trial court held a

charge conference, and the State agreed to allow the reckless charge. The court

instructed the jury to consider whether Briscoe committed felony murder based on

an intentional or knowing felony, and if they found he did not, then consider

whether he committed the reckless charge. The court informed Briscoe, “You don’t

get to request a lesser included because the State’s requested the one that you

wanted and it’s in there, so . . . .” Briscoe did not object to the charge.

      The verdict form submitted to the jury allowed the jury (1) to convict

Briscoe of felony murder for causing the death of the child by striking her with a

hard or soft object while committing the felony of intentional or knowing injury to

a child, (2) to convict him of recklessly causing serious bodily injury to a child, or

(3) to find him not guilty. The jury found Briscoe guilty of reckless injury to a

child. He appealed.

                                      Discussion

      Briscoe argues that the trial court reversibly erred by including the reckless

charge as a lesser-included offense to the indicted offense of felony murder. The


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State responds that Briscoe is estopped from complaining about the charge on

appeal because he invited the alleged error. We affirm.

A.    Standard of Review and Applicable Law

      In analyzing a jury charge issue, our first duty is to determine whether error

exists. Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003)). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30. If error

exists to which no objection was lodged, we reverse only if the error was so

egregious and created such harm that appellant was denied a fair trial. Id.

      The invited error doctrine estops a party from making an appellate error of

an action it induced. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App.

1999); Franks v. State, 961 S.W.2d 253, 255 (Tex. App.—Houston [1st Dist.]

1997, pet. ref’d) (holding appellant may not act as “moving factor” creating error

at trial and then raise that error on appeal). “It is a long-standing rule that a

defendant may not request a charge and when that charge is given as requested,

complain on appeal of any error. Error, if any, was invited.” Livingston v. State,

739 S.W.2d 311, 341 (Tex. Crim. App. 1987) (citations omitted); see also

Willeford v. State, 72 S.W.3d 820, 823–24 (Tex. App.—Fort Worth 2002, pet.




                                          4
ref’d) (concluding appellant could not complain on appeal of charge error

stemming from instructions he requested).

B.    Analysis

      Even if Briscoe invited the court to charge him with the reckless charge, we

find no error in the jury charge.

      A person commits the offense of felony murder if, in the course of

committing a felony other than manslaughter, he commits an act clearly dangerous

to human life that causes the death of an individual. TEX. PENAL CODE

§ 19.02(b)(3). In other words, felony murder is a murder committed in the course

of committing a felony. See Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim.

App. 2014) (quoting Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App.

1999)). A person commits the offense of injury to a child if he “intentionally,

knowingly, recklessly, or with criminal negligence, by act or intentionally,

knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily

injury; (2) serious mental deficiency, impairment or injury; or (3) bodily injury.”

TEX. PENAL CODE § 22.04(a). An offense is a lesser-included offense when it

differs from the offense charged only in the respect that a less culpable mental state

suffices to establish its commission. TEX. CODE CRIM. PROC. art. 37.09(3).

      The indictment charged Briscoe with committing an act clearly dangerous to

human life that caused the death of the 19-month-old child while in the course of


                                          5
committing “injury to a child.” The indictment did not specify a required mental

state for the underlying felony. But the jury charge was more specific. It specified

that in order to find Briscoe guilty of murder, the jury must find that he committed

intentional or knowing injury to a child. The court’s charge read:

      Now, if you find from the evidence, beyond a reasonable doubt that
      on or about the 20th day of August, 2014, in Wichita County, Texas,
      the defendant Catlin Wayne Briscoe did then and there commit an act
      or attempt to commit an act, clearly dangerous to human life, to wit:
      by striking [the child] with or against a hard or soft object or surface,
      that caused the death of [the child], and the defendant was then and
      there in the course of and in the furtherance of the commission or
      attempted commission of a felony, to wit: Intentional or Knowing
      Injury to a Child, then you will find the defendant guilty of Murder as
      alleged in the indictment.

      If you do not so believe, or if you have a reasonable doubt thereof
      then you will find the Defendant not guilty of murder and next
      consider, if the defendant is guilty of the lessor [sic] included offense
      of Reckless Injury to a Child—Serious Bodily Injury.

(emphasis added).

      Briscoe argues that the jury charge is erroneous because by including the

reckless charge, it included a lesser-included offense of manslaughter, which by

statute cannot be the predicate felony for felony murder. See TEX. PENAL CODE

§ 19.02(b)(3). We disagree. The Court of Criminal Appeals recently held that

injury to a child is not a lesser-included offense of manslaughter for the purposes

of the felony murder statute, and here, the charge permitted the jury to convict

Briscoe of felony murder only based on an intentional or knowing underlying


                                         6
felony. See Fraser v. State, — S.W.3d —, 2019 WL 4308659, at *1 (Tex. Crim.

App. Sep. 11, 2019) reh’g denied (Oct. 30, 2019).

      The charge instructed the jury to consider whether Briscoe was guilty of

murder that occurred while he committed an intentional or knowing injury to a

child. It did not authorize a felony murder conviction based on a reckless act. We

hold that the jury charge was not erroneous. Tottenham, 285 S.W.3d at 30.

      We overrule Briscoe’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Peter Kelly
                                               Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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