                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                           ______________________

                             NO. 09-11-00231-CR
                           ______________________

              RONALD EUGENE WORTHAM JR., Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 258th District Court
                      San Jacinto County, Texas
                        Trial Cause No. 10313
__________________________________________________________________

                         MEMORANDUM OPINION

      Ronald Eugene Wortham Jr. was indicted for injury to a child, C.B.

Wortham lived with C.G. and C.G.’s daughter, C.B. In March 2010, C.B. was

admitted to the emergency room in full cardiac arrest, unresponsive, and with no

respiration, pulse, or blood pressure. C.B. had an acute subdural hematoma,

hypoxic ischemia, intraventricular hemorrhaging, and static epilepticus seizures,

and needed an endotracheal tube.



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      Deputy Jason Bell and Detective Darryl Lamott each testified that Wortham

claimed that C.B was sleeping and he later found her with a plastic bag on her face.

Wortham told Lamott that he removed the bag and noticed that C.B. was not

breathing, so he attempted to rouse her by tapping on her face and shaking her.

Detective Katherine Wick testified that she suspected child abuse. Wick searched

C.G.’s house, but found no empty plastic bags on the floor.

      Dr. Sunil Kumar Saraf testified that neither a plastic bag nor suffocation

would have caused a subdural hematoma. Saraf testified that a child would have an

external mark if grabbed by the neck and shaken. Radiologist George Boutros

testified that there is no reasonable medical probability that a plastic bag blocking

C.B.’s airway caused her injuries. He testified that an acute subdural hematoma

causes seizures that restrict air flow to the brain and that C.B.’s air flow was

impaired. Dr. Sheela Lahoti testified that a bag on C.B.’s face did not explain the

bleeding in her brain. Lahoti explained that a suffocated person does not usually

have bleeding in the brain, but that the effect on the brain is the same as

suffocation when a child is knocked unconscious and stops breathing. Lahoti

testified that suffocation did not cause C.B.’s injuries, but Lahoti explained that

blood in a child’s head interrupts the child’s normal ability to breathe, which

causes a lack of appropriate blood flow and oxygen to the brain. Lahoti, Suraf, and

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Boutros did not believe that C.B.’s injuries resulted from accidental trauma. Lahoti

explained that accidental trauma would involve subdural bleeding and a skull

fracture, but there were no associated fractures in this case. Lahoti testified that

someone caused C.B.’s injuries.

      Boutros believed that C.B. had been shaken. Saraf explained that shaken

baby syndrome occurs when a “[y]oung child is shaken vigorously with rapid

acceleration that can cause [] trauma[,]” such as subdural hematoma, brain

hemorrhaging, and long bone fractures. Lahoti testified that signs of shaken baby

syndrome include a subdural hemorrhage and bleeding in the ventricles. Saraf,

Boutros, and Lahoti testified that C.B.’s injuries created a substantial risk of death

to C.B. and created a protracted loss or impairment to her organs. Lahoti believed

C.B. would have died without a breathing tube and immediate medication.

      At the conclusion of trial, the jury convicted Wortham of injury to a child,

and the trial court sentenced Wortham to forty years in prison. Wortham appealed,

challenging the sufficiency of the evidence to support his conviction and the trial

court’s denial of his request for jury instructions on the lesser-included offenses of

reckless injury to a child and criminally negligent injury to a child. Wortham v.

State, 366 S.W.3d 871, 872, 875-76 (Tex. App.—Beaumont 2012), rev’d, 412




                                          3
S.W.3d 552 (Tex. Crim. App. 2013). On original submission, we found the

evidence sufficient to support Wortham’s conviction and concluded that:

      [A] jury could not rationally find that the brain injury resulting in loss
      of airflow was caused by the alleged contact with the bag or an
      alleged effort to revive the child. To have submitted the requested
      instructions on lesser-included offenses on this record would have
      invited the jury to reach an irrational verdict.

Id. at 876.

      The Court of Criminal Appeals reversed our decision that Wortham was not

entitled to jury instructions on lesser-included offenses. Wortham v. State, 412

S.W.3d 552, 553 (Tex. Crim. App. 2013). The Court found that reckless injury to a

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

of injury to a child by act. Id. at 555. The Court explained that both Wortham

himself and the indictment alleged that Wortham shook C.B. Id. at 557.

Additionally, the Court stated that Wortham presented more than a scintilla of

evidence supporting the lesser-included offense instructions, as Wortham’s

assertion that he shook C.B. in an attempt to revive her, if true, would negate the

“intentional” or “knowing” elements of the charged offense. Id. at 558. Finding

that Wortham was entitled to the instructions on lesser-included offenses, the Court

of Criminal Appeals remanded the case to this Court for a harm analysis. Id. We




                                          4
reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.

      A trial court’s refusal to submit a lesser-included offense that was requested

and raised by the evidence results in harm when that failure leaves the jury with the

sole option to either convict the defendant of the greater offense or to acquit him.

Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995); Bridges v. State,

389 S.W.3d 508, 512-13 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The

rationale is that “‘some’ harm occurs because the jury was not permitted to fulfill

its role as factfinder to resolve the factual dispute whether the defendant committed

the greater or lesser offense.” Saunders, 913 S.W.2d at 571. Harm also exists when

the penalty imposed for the charged offense exceeds the potential penalty for the

lesser-included offense. Bridges, 389 S.W.3d at 512.

      In this case, the jury was limited to either finding Wortham guilty of the

greater offense of intentional or knowing injury to a child or acquitting him. See

Saunders, 913 S.W.2d at 571. Wortham received a forty-year sentence, which far

exceeds the punishment range for either reckless or criminally negligent injury to a

child. See Tex. Penal Code Ann. §§ 12.32, 12.33, 12.35, 22.04(e), (g) (West 2011

& Supp. 2013); see also Bridges, 389 S.W.3d at 512; Robalin v. State, 224 S.W.3d

470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Under these

                                         5
circumstances, the trial court’s refusal of Wortham’s requested instructions on the

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

injury to a child resulted in harm. See Saunders, 913 S.W.2d at 571; see also

Bridges, 389 S.W.3d at 512-13. We reverse the trial court’s judgment and remand

the case for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.



                                              ______________________________
                                                    STEVE MCKEITHEN
                                                         Chief Justice

Submitted on December 23, 2013
Opinion Delivered February 19, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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