                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 ABEL RIOS,                                                     No. 08-06-00211-CR
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                              210th District Court
                                                 §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                        Appellee.                               (TC # 20040D00922)
                                                 §

                                          OPINION

       This appeal arises from the tragic death of four-year-old Tangie Vargas. Abel Rios appeals

his conviction of injury to a child. Appellant was charged by indictment with one count of capital

murder and one count of murder in the death of Tangie Vargas, a child under six years of age. A jury

found him guilty of the lesser-included offense of injury to a child and assessed punishment at life

imprisonment. The judgment includes an affirmative deadly weapon finding. For the reasons that

follow, we affirm.

                                     FACTUAL SUMMARY

       Janice Garcia Rodriguez met Appellant in El Paso in March of 2003 and they began living

together a month later. Rodriguez had three daughters, four-year-old Tangie, seven-year-old Valerie,

and one-year-old Jayceen. Tangie required constant care because she was born with Cornelia de

Lange Syndrome, also known as Brackman Syndrome In addition to certain physical features,

Cornelia de Lange is characterized by mental retardation and developmental delay as well as and

difficulty in feeding and communicating. Rodriguez had learned to understand Tangie’s non-verbal

sounds and gestures. Tangie was also prone to respiratory infections and required treatment with a
nebulizer and albuterol. She had been hospitalized on multiple occasions. Despite her challenges,

Tangie was a happy child.

        On December 27, 2003, Valerie was staying with her aunt and needed clothes. Rodriguez

left Tangie with Appellant while she dropped off the clothes and stopped by her mother’s house, but

she was gone less than half an hour. Tangie was fine when Rodriguez left. When she returned, she

found Appellant kneeling on the floor with Tangie and holding the nebulizer to her face. Appellant

told her that Tangie was not breathing. Tangie was limp, her eyes were not blinking, and she was

vomiting through her mouth and nose. Rodriguez had seen Tangie when ill and not breathing but

she had never seen her like this. Rodriguez told Appellant to call 911, but he refused and told her

to drive Tangie to the hospital herself so that she would not waste time waiting for the ambulance.

Rodriguez insisted and she spoke with the 911 operator. Appellant wanted to leave the apartment

because he had outstanding warrants but Rodriguez asked him to stay.

        Police units and EMS arrived at the scene. Paramedics Abel Duque and Alex Miranda found

Tangie lying on the floor, not breathing, with her pupils fixed and dilated. Duque was unsuccessful

in establishing an adequate airway but Tangie was sufficiently stabilized for transport to the hospital.

Duque asked what had happened to Tangie but Rodriguez was hysterical and Appellant remained

in a bedroom. If Duque had known that Tangie had suffered blunt trauma, he would have taken her

to Thomason Hospital because it is a level-one trauma center. Instead, they transported her to Del

Sol Medical Center.

        Rodriguez did not remember the details of what happened after the ambulance arrived, but

she recalled riding with Tangie in the ambulance. Appellant remained at home with Jayceen. At the

hospital, the medical staff asked Rodriguez what had happened to Tangie. Because she did not

know, she called Appellant and begged him to come to the hospital and explain what had happened.
When Appellant eventually arrived at Del Sol, he spoke with Officer Jose Martinez of the El Paso

Police Department. Appellant said that he had left Tangie in her bedroom while he was doing the

laundry. When he returned, she was on the floor and having difficulty breathing. Appellant picked

her up and took her into another room where there was a machine which helped her breathe. She

began throwing up and he tapped her on the back and attempted to clear her mouth. At that point,

the child’s mother returned and they called 911.

       Detective Oscar Morales was dispatched to Del Sol because a four-year-old child had

sustained a brain hemorrhage by unknown means. He approached Appellant in the emergency room

and asked whether Appellant would speak to him at the police substation. Appellant agreed and

followed Detective Morales to the substation. Appellant waived his constitutional rights and gave

a voluntary written statement. He said that he found Tangie on the bedroom floor gasping for air.

He took her into the living room because that is where the “vapor machine” was located but she

started vomiting. He tapped her back gently and used his finger to try to remove food from her

mouth but she continued to vomit and gasp for air. When Rodriguez came home, he called 911.

       The CT scan revealed that Tangie had suffered brain hematomas. Her pupils were fixed and

unresponsive and she was placed on a ventilator. Her pediatrician decided to immediately transfer

her to the pediatric intensive care unit at Las Palmas Medical Center. Steroids were administered

to reduce brain swelling and Tangie remained on the ventilator while the doctors waited to see how

much damage she had sustained. A brain flow scan performed at Las Palmas revealed a lack of

blood flow in the brain. An EEG showed a flattening of the waves indicating a lack of electrical

activity in the brain. Three neurologists examined Tangie and performed clinical tests which

indicated the absence of reflexes. These test results indicated that no brain function remained and

Tangie could not survive without artificial life support. On December 30, the doctors informed
Rodriguez that Tangie was brain dead and she decided to disconnect life support. Tangie died some

two hours later.

       Dr. Corinne Stern, the chief medical examiner of El Paso County, performed the autopsy.

When Dr. Stern reflected the scalp, she found two separate areas of subgaleal hemorrhage indicating

two separate impact sites. These injuries are indicative of blunt force injury caused by something

striking the child’s head or having her head struck against an object. Dr. Stern removed the cranial

vault and found a subdural injury. Tangie had bleeding underneath the dura covering the left

occipital lobe.    Further examination showed diffuse subarachnoid hemorrhage covering the

convexities of the brain. Subarachnoid hemorrhage occurs when the small vessels that connect the

pia mater to the brain are torn when the brain moves around in the vault. Dr. Stern examined the

brain further and found a contusion or bruise of the parynchemal. She characterized it as a

contrecoup injury from one of the two impact sites identified on the subgaleal tissue. Dr. Stern

concluded that the cause of death was abusive head injuries caused by striking her head with an

object or striking her head against an object. She added that the abusive head injuries occurred with

shaking. She based the latter conclusion on her examination of the eyes. She found bleeding in both

optic nerve sheaths which is caused exclusively by a shaking-type motion of the head. Through

additional testing, Dr. Stern found retinal hemorrhage on the left side.

       In Dr. Stern’s expert opinion, a hand can be a deadly weapon. A hand can generate enough

force to cause subdural hemorrhage and contusions in the brain from direct impact of the hand or by

knocking the individual down and causing a contrecoup injury. A hand can cause subarachnoid

hemorrhage by generating significant motion of the brain inside of the skull to tear the bridging

veins. In her opinion, these injuries were inflicted upon Tangie Vargas with considerable force and

violence and she could not have survived because her injuries were so severe. Dr. Stern concluded
that the combination of injuries constituted “shaken impact syndrome.”

       Following the autopsy, a warrant was issued for Appellant’s arrest. On December 31, 2003,

Detective Morales went to the residence to execute the arrest warrant. Appellant opened the door

and allowed the detective inside. When Detective Morales noticed the beer and chair set-up,

Appellant explained that he was having a New Year’s Eve party. Detective Morales placed

Appellant under arrest and transported him to the police substation. Detective David Samaniego

interviewed Appellant and obtained another written statement after Appellant waived his

constitutional rights. Detective Samaniego advised Appellant that his prior written statement

claiming that Tangie fell off of the bed was inconsistent with the results of the autopsy. Appellant

then said that Tangie fell or jumped out of his arms and her head might have hit the wooden bed rail.

When Detective Samaniego confronted Appellant with the autopsy finding that there was more than

one impact injury to the brain, he admitted that he had struck her with his hand. In his written

statement, he said that he “went blank” after she hit her head on the bed rail and began crying and

screaming. He did not know what came over him but he remembered hitting her hard on the head

with his hand. He thought he struck her with an open hand but could not remember. After he hit

Tangie, she began to have trouble breathing and he took her into the living room. He tried giving

her a steroid treatment to help her breathe but she began vomiting He admitted lying to the police

officers because he was scared.

       A month or so after Tangie’s death, Appellant wrote Rodriguez a letter in which he admitted

that he had not told her the truth about Tangie. He was carrying Tangie and she fell out of his arms

and hit her head on the bed and the floor. Appellant picked her up and noticed that she looked

“weird.” Appellant reacted by striking her head with his hand and telling her to wake up.

       A grand jury returned a two-count indictment against Appellant. Count I alleged that
Appellant committed capital murder by intentionally and knowingly causing the victim’s death by

striking her dead with his hand. Count II alleged that Appellant committed murder by intentionally

and knowingly committing an act clearly dangerous to human life, to-wit: striking the victim’s head

with his hand. The indictment included an allegation that Appellant used or exhibited a deadly

weapon, namely, his hand.

        The trial court granted Appellant’s motion for an instructed verdict with respect to Count II,

but the court charged the jury on the lesser-included offenses of murder and injury to a child in

connection with Count I. The jury found Appellant guilty of injury to a child and answered the

deadly weapon special issue in the affirmative. The jury assessed punishment at life imprisonment.

                                 LESSER-INCLUDED OFFENSE

        In Issues One and Two, Appellant complains that the trial court erred by submitting injury

to a child to the jury because it is not a lesser-included offense of capital murder and the evidence

does not support its submission. He additionally argues that he was deprived of notice in violation

of the Due Process Clause.

        Appellant requested that the trial court submit, as lesser-included offenses, injury to a child

(intentionally or knowingly causing bodily injury), a second degree felony, and injury to a child

(recklessly causing bodily injury), a state jail felony. The trial court instructed the jury on injury to

a child by recklessly causing serious bodily injury and by recklessly causing bodily injury, and

indicated that it would also instruct the jury on injury to a child by intentionally or knowingly

causing serious bodily injury, a first degree felony. Appellant did not object to the inclusion of the

latter instruction in the charge. Consequently, he waived any error in the improper submission of

this lesser-included offense. Delgado v. State, 235 S.W.3d 244, 250 (Tex.Crim.App. 2007), citing

43 GEORGE E. DIX & ROBERT O. DAWSON , Criminal Practice and Procedure § 36.50 at 202.
        Even if Appellant had preserved the complaints raised in Issues One and Two, they

are without merit. Article 37.09 of the Code of Criminal Procedure provides that an offense is a

lesser-included offense if it is established by proof of the same or less than all the facts required to

establish the commission of the offense charged. TEX .CODE CRIM .PROC.ANN . art. 37.09(1)(Vernon

2006). Article 37.09 satisfies due process and notice requirements because a lesser-included offense

is necessarily included within the greater offense.          Jacob v. State, 892 S.W.2d 905, 907

(Tex.Crim.App. 1995).

        As a general rule, the defendant, seeking to limit his criminal liability, is the party requesting

a charge on the lesser offense pursuant to Article 37.09. Ford v. State, 38 S.W.3d 836, 840

(Tex.App.--Houston [14th Dist.] 2001, pet. ref’d). However, the State is equally entitled to seek a

lesser-included offense instruction when it feels the proof has fallen short of proving the charged

offense. Ford, 38 S.W.3d at 840, citing Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App.

1997). Article 36.14 requires the trial judge to deliver to the jury “a written charge distinctly setting

forth the law applicable to the case.”         Delgado, 235 S.W.3d at 247, quoting TEX .CODE

CRIM .PROC.ANN . art. 36.14 (Vernon 2007). In discharging this duty, the trial court is authorized,

but not required, to sua sponte include a charge on a lesser offense. See Delgado 235 S.W.3d at 249

(stating that it does not inevitably follow from Article 36.14 that the trial court has a sua sponte duty

to instruct the jury on all potential defensive issues, lesser-included offenses, or evidentiary issues).

Thus, a trial court is not restricted to submitting lesser-included offenses only when the defendant

has properly requested them. Ford, 38 S.W.3d at 840; McQueen v. State, 984 S.W.2d 712, 717

(Tex.App.--Texarkana 1998, no pet.). This is true even if the defendant objects to submission of the

instruction. Ford, 38 S.W.3d at 840; McQueen, 984 S.W.2d at 717, citing Humphries v. State, 615

S.W.2d 737, 738 (Tex.Crim.App. [Panel Op.] 1981).
         An instruction on a lesser-included offense is proper when: (1) the lesser-included offense

is included within the proof necessary to establish the offense charged; and (2) there is some

evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he

is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993);

Avila v. State, 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref’d). In addressing the first

prong, we do not consider the evidence that was presented at trial. Hall v. State, 225 S.W.3d 524,

535-36 (Tex.Crim.App. 2007). We instead focus on the statutory elements of capital murder, as

modified by the particular allegations in the indictment, and the elements of first-degree injury to a

child. Id. Appellant was charged with capital murder for intentionally or knowingly causing the

death of an individual under six years of age. See TEX .PENAL CODE ANN . § 19.03(a)(8)(Vernon

Supp. 2008). A person commits the first-degree offense of injury to a child if he intentionally or

knowingly causes serious bodily injury to a child who is fourteen years of age or younger.

TEX .PENAL CODE ANN . § 22.04(a)(1), (c)(1). Appellant argues that injury to a child is not a lesser-

included offense of capital murder because the age element in each offense is different. He

maintains that injury to a child requires more proof than the greater offense because the State must

prove that the child is fourteen years of age or younger whereas capital murder requires proof that

the child is younger than six years of age. We do not view either of these elements as requiring more

proof than the other. By proving that a child is younger than six years of age, the State would also

prove that the child is younger than fourteen years of age. Thus, the age element of injury to a child

is included within the proof of capital murder alleged under Section 19.03(a)(8). Injury to a child

is, therefore, a lesser-included offense of capital murder.1 See Paz v. State, 44 S.W.3d 98, 101


         1
             In Johnson v. State, 234 S.W .3d 43, 54 (Tex.App.--El Paso 2007, no pet.), we stated that injury to a child
is not a lesser-included offense of capital murder. In contrast to the instant case, Johnson involved injury to a child by
omission. That offense is not a lesser included offense of capital murder because it has different elemental requirements.
(Tex.App.--Houston [14th Dist.] 2001, pet. dism’d, untimely filed). For this reason, Appellant’s

rights to due process and notice were satisfied. See Jacob, 892 S.W.2d at 907.

         In addressing the second prong of Rousseau, we consider the evidence presented at trial.

Hall, 225 S.W.3d at 536; Jones v. State, 921 S.W.2d 361, 364 (Tex.App.--Houston [1st Dist.] 1996,

pet. ref’d). The evidence supports the submission of a lesser-included offense where there is more

than a scintilla of evidence that either affirmatively refutes or negates an element of the greater

offense, or the evidence on the issue is subject to two different interpretations, one of which negates

or rebuts an element of the greater. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996);

Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App.--El Paso 1998, pet. ref’d). In determining whether

the second prong has been met, it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense, but rather, there 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 warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003).

         Appellant admitted striking Tangie on the head with his hand and other evidence showed that

this resulted in serious bodily injury and ultimately death. Other evidence supported a conclusion

that Appellant did not intend to cause the child’s death. Immediately after striking Tangie, Appellant

tried to help by giving her a treatment to ease her breathing and by clearing her airway of vomit.

This constitutes more than a scintilla of evidence negating an element of the greater offense. The

trial court did not err by sua sponte submitting the lesser-included offense to the jury. Issues One

and Two are overruled.

                               LEGAL SUFFICIENCY OF THE EVIDENCE


Capital murder requires no special relationship with the victim, while an injury to a child by omission requires the actor
to have a legal or statutory duty to act or to have care, custody, or control of the victim. See T EX .P EN AL C O D E A N N . §
22.04(b)(1), (b)(2).
       Appellant raises three issues challenging the legal sufficiency of the evidence to prove

various issues in this case, and the statutory elements of first-degree injury to a child.

                                          Injury to a Child

       In Issues Three and Four, Appellant challenges the legal sufficiency of the evidence

supporting the jury’s finding that he intentionally or knowingly caused serious bodily injury by

striking Tangie’s head with his hand. The State counters that Appellant is estopped from raising a

legal sufficiency challenge to the elements of injury to a child because he failed to object to the

submission of this lesser-included offense. We agree. If a defendant does not object to the

submission of a lesser-included offense and accepts the benefits of such a charge, he is estopped

from challenging the legal or factual sufficiency of the evidence. State v. Lee, 818 S.W.2d 778, 781

(Tex.Crim.App. 1981)(murder defendant who requested instruction on voluntary manslaughter

estopped from challenging sufficiency of evidence to prove sudden passion arising from adequate

cause), overruled on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); Otting

v. State, 8 S.W.3d 681, 686-87 (Tex.App.--Austin 1999, pet. ref’d untimely filed)(defendant tried

for capital murder but convicted of lesser-included offense of injury to a child was estopped from

contesting the legal and factual sufficiency of the evidence to sustain the conviction); see Bradley

v. State, 688 S.W.2d 847, 853 (Tex.Crim.App. 1985)(defendant who vociferously objected to

inclusion of lesser-included offense was permitted to raise challenge to sufficiency of evidence; court

noted that failure to object to the charge on the ground that the evidence does not support submission

of lesser-included offense would signal acquiescence on the part of the accused who would then be

estopped from complaining on appeal that the evidence failed to establish all the elements of the

lesser included offense), overruled on other grounds, Moore v. State, 969 S.W.2d 4, 10

(Tex.Crim.App. 1998). Issues Three and Four are overruled.
                                       Deadly Weapon Finding

        In Issue Five, Appellant challenges the legal evidence sufficiency of the evidence to prove

that his hand was used as a deadly weapon. In reviewing the legal sufficiency of the evidence to

support a criminal conviction, we must review all the evidence, both State and defense, in the light

most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Lane v. State, 151 S.W.3d 188, 191-92

(Tex.Crim.App. 2004). We do not resolve any conflict of fact or assign credibility to the witnesses,

as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421

(Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our

duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by

viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828

S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.

Matson, 819 S.W.2d at 843.

        A deadly weapon is anything manifestly designed, made, or adapted for the purposes of

inflicting serious bodily injury or anything that, in the manner of its use or intended use, is capable

of causing death or serious bodily injury. TEX .PENAL CODE ANN . § 1.07(a)(17)(A), (B)(Vernon

Supp. 2008). A fist or hand is not a deadly weapon per se, but it can become a deadly weapon in the

manner used depending upon the evidence shown.               Lane v. State, 151 S.W.3d 188, 191

(Tex.Crim.App. 2004); Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983). Therefore, the

hand could become a deadly weapon if in the manner of use, it is capable of causing death or serious

bodily injury. Lane, 151 S.W.3d at 191; Turner, 664 S.W.2d at 90. Any injuries inflicted on the

victim are factors to be considered in determining whether a hand or a foot was used as a deadly
weapon. Lane, 151 S.W.3d at 191; Turner, 664 S.W.2d at 90. To determine whether something is

a deadly weapon, the jury may consider all the surrounding facts. Blain v. State, 647 S.W.2d 293,

294 (Tex.Crim.App. 1983).

         It is undisputed that Tangie suffered brain injuries, more specifically, subdural and

subarachnoid hemorrhage. Dr. Stern found two distinct impact sites and a contrecoup injury caused

by the movement of the brain inside of the skull. Appellant admitted hitting Tangie hard on the head

with his hand. Dr. Stern testified that Tangie’s brain injuries, which caused her death, were caused

by striking her head with an object or by her head striking an object. Dr. Stern, who is familiar with

the legal definition of a deadly weapon, also informed the jury that a hand is a deadly weapon

because it can cause death and serious bodily injury. She specifically noted that a hand can generate

enough force to cause the type of brain injuries seen in Tangie. A hand can cause brain contusions

and subdural hemorrhage by direct impact of the hand to the head or by knocking the individual

down and causing a contrecoup injury. In the same manner, a hand can also generate enough motion

of the brain inside of the skull to tear the small bridging veins and cause subarachnoid hemorrhage.

The foregoing evidence is legally sufficient to support the deadly weapon finding. Issue Five is

overruled. Having overruled each issue presented on appeal, we affirm the judgment of the trial

court.


September 24, 2008
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)
