                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00127-CR
        ______________________________


          COREY DON LOUIS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 336th Judicial District Court
               Fannin County, Texas
               Trial Court No. 22697




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                    OPINION

           This is an appeal by Corey Don Louis of his Fannin County jury conviction for capital

murder in the death of two-year-old Teddy Lawrence.1

           Because there was legally insufficient evidence that Louis intentionally or knowingly

caused the death of the child, we reverse the capital murder conviction and acquit him of that

charge.       Due to jury charge error, we remand the case to the trial court for trial on the

lesser-included offenses included in the jury charge.

I.         Facts of the Case

           The story of the death of the child had its genesis when Teddy and his four-year-old sister,

Beth, rose during the night and made a very big mess in the kitchen of their home, spreading food

(including mustard), dog food, and household chemicals on the floor. This was not the first time

the two children had performed these acts of domestic vandalism.

           The children resided with their mother, Danielle Cuba, and her boyfriend, Louis, the

appellant here. Also living in the house were Louis‟ son, John (fourteen at the time), and Cuba‟s

infant son. At the time of the incident here, Louis‟ six-year-old daughter, Meg, was staying with

them during spring break.

           On the Saturday of Teddy‟s death, Cuba arose quite early in the morning, being the first of

the adults to awake. Upon discovering the mess the children had made during the night, she woke

up Louis and asked him to deal with the children as she commenced cleaning. Although Cuba did
1
    All children‟s names in this opinion have been replaced with pseudonyms.

                                                           2
not say she explicitly told Louis to discipline or beat the children because of their offense, there

seemed to be a tacit understanding to that effect. Thus began what can only be described as a

horrendous and excessive discipline session to punish the two children for their misconduct.

       Louis engaged in three rounds of beatings of the children with a belt, primarily on their

buttocks. First, he whipped the children shortly after he and Cuba awoke. Cuba testified that at

some point, Louis sat down next to her, then said he was not yet tired, and so he got up and

resumed his beatings. Louis then left for work, instructing that the children were to stand up

facing a wall until he returned. However, having apparently forgotten something he expected to

take, Louis returned inside the house to discover that Teddy was not standing and facing the

hallway wall as instructed (the child was lying on the floor and appeared to be asleep). Seeing

that Teddy was not standing against the wall as instructed, Louis whipped Teddy a third time.

According to the testimony of the child, Meg, during this last beating, Louis said, “You should

have been sleep [sic] when you was [sic] making that big mess. Don‟t try to be sleep [sic] now.”

When Louis finally did leave for work, he instructed Cuba to make the children continue standing

and facing the wall until he returned, when he would resume beating them.

       Meg also described some of Louis‟ beatings of the children as “hard” and some as “soft.”

Her description of the beatings corroborated Louis‟ own description of holding the children by an

arm and beating them on their posteriors with a belt. Meg further testified that Louis called them

very coarse names during this time and said, “I‟m [not] going to stop whipping you until I go to



                                                 3
work.” Meg said that Teddy and Beth both had difficulty staying on their feet and kept falling

down.

        After Louis left for work, Teddy continued to be unable to stand. At some point, he hit his

head; there is conflicting evidence on how this happened. Meg said that the boy was crying and

trying to hold on to Cuba‟s leg; in a move to disengage the child, she flung the boy away, causing

him to hit his head “hard.” John, Louis‟ fourteen-year-old son, said that when Cuba whipped

Teddy, the boy fell back and hit his head on a board on the floor. Cuba, for her part, admitted

kicking the child in the head. Meg also said that Cuba held a hot curling iron next to Teddy‟s

skin, but Cuba denied having done this and the medical examiner found no evidence of burns on

Teddy‟s skin.

        Cuba‟s disciplinary acts culminated in tying Teddy‟s wrists to a clothes rod and hanging

the boy in a closet when he was unable to remain standing. Meg said that Teddy‟s feet struggled

to find a stool in the closet and that he kicked about while trying to get his feet on the stool. Cuba

initially denied hanging him so high his feet did not touch the floor, but eventually she conceded

that he might have been in such a position. Cuba maintained that she only left the boy hanging in

the closet for five minutes at most, then let him down and put him to bed and that Teddy was still

breathing when she put him to bed. Cuba also admitted that although Teddy suffered from

asthma and was supposed to receive treatments for the malady twice per day, she had not given

him his medication or treatment the two days prior to the incident date. After Cuba removed



                                                  4
Teddy from the closet, she put the children to bed and laid down herself. Sometime around 8:30

that morning, Cuba awoke and found Teddy stiff in bed––rigor mortis had set in. She called

Louis at work, then called 9-1-1. When emergency medical technicians (EMT) arrived, they

determined that the child was already dead and took his body to the local (Bonham) hospital.

When one EMT heard Cuba say she thought the children may have ingested some “blue stuff,” he

suggested they return to the house for the rest of the children as a precaution against possible

poisoning. By this point, Louis had returned from his job in Sherman back to the house in

Bonham, where he was met by a Bonham police officer, who refused to allow Louis in the house.

         In a video-recorded statement to law enforcement, although Louis first maintained that he

had only spanked the children with his hand, he later admitted during the interview that he had

employed a belt in the beatings. Nevertheless, he was adamant he did not beat the children

sufficiently hard to cause the extensive subcutaneous hemorrhaging suffered by Teddy and the

injuries (later diagnosed as rhabdomyolysis2) presented by Beth‟s wounds.

         At the hospital, Louis told a Child Protective Services (CPS) investigator, “God knows we

didn‟t do nothing [sic] wrong.”             The investigator, Dana Mangess, said she attributed this

statement to a grieving parent. He was heard telling another CPS supervisor there was no foul

play involved and that God does not make mistakes. Later in the day, Louis consented to a search

2
 Pediatrician Matthew Cox, M.D., testified rhabdomyolysis results from injury to muscle cells. In Beth‟s case, she
had soft tissue injuries to her buttocks and back; the injuries resulted in elevated enzyme levels in her muscle cells.
The enzyme levels in Beth‟s muscle cells were four times the normal level. Cox said this condition presented a
substantial risk of death. Medical examiner McClain said that Teddy did not exhibit rhabdomyolysis because he died
too soon; had he lived longer, he likely would have exhibited rhabdomyolysis.

                                                          5
of the home and cooperated with police. Two officers did remark they thought Louis had

exhibited nervousness when they examined a belt found at the residence.3 In the days after the

death, Louis remarked to a co-worker that he had spanked the child and asked the co-worker,

“[Y]ou don‟t think that killed him?”

         CPS investigators and case agents arrived at the hospital. In following the agency‟s

protocol when there has been a child‟s death in a home, they removed the remaining children to

foster care. They discovered that Beth was in significant pain in her buttocks area; due to that

pain, she could not sit, even to use the toilet. When CPS agents transported her to a foster family,

great care had to be taken to allow the child to be able to sit in the car seat. En route to the foster

family in the Dallas/Fort Worth area, the CPS agents were concerned about Beth‟s condition and

stopped at a hospital in the Dallas area, where the child was admitted for treatment and diagnosed

with rhabdomyolysis (severe injury to her muscle cells).

         On the day of the child‟s death, Detective Terry Bee of the Bonham Police Department

viewed the forensic interview given by Meg to CPS investigators. To that point, Bee said he had

3
 The record here is not entirely clear: Cuba testified the belt was broken in the beatings; the crime laboratory forensic
scientist testified the belt she examined was “broken in half. But neither of the police officers who described
searching the home and finding the belt described the belt as broken. There were at least two belts discussed and
admitted at trial, neither of which was included in the appellate record. Adding to the confusion, two belts were
crossed up, either when submitted by Bonham police or when examined at the crime laboratory––when Detective Bee
opened the evidence envelope containing one of the belts, sealed since its examination at the crime laboratory, he
removed a green robe belt, expecting a black robe belt. One or both of these may have been used to hang Teddy in the
closet. The testimony seems to indicate Louis beat the children with a brown leather belt. Although Louis attacked
the competency of the investigation throughout trial, we do not find the details of which belt was used or its condition
especially germane to resolution of this appeal. Louis admitted beating the children with a belt; he claimed to be the
only person who disciplined the children, and which belt caused the injuries to Teddy is not as important as Louis‟
mental status, as will be discussed below.

                                                           6
believed the cause of death was some form of poisoning or accident, based on statements made by

Cuba and Louis and what Bee had seen at the family home. After watching Meg‟s interview, and

based on statements made by her, Bee began to consider that Teddy‟s death could have been

caused by something other than poisoning. The following afternoon (Sunday), Bee received a

telephone call from the medical examiner‟s (M.E.) office. In short, the M.E.‟s report indicated

that Teddy had died from blunt force trauma, including extensive subcutaneous hemorrhaging in

the buttocks and upper thigh regions, among other injuries. Based on this report, Bee changed the

thrust of his investigation to determine whether the death was a homicide.              On Monday,

March 17, 2008, arrest warrants were secured for Louis and Cuba. Louis, not yet having been

arrested, agreed to give a statement to Bee and Texas Ranger Brad Oliver. Sometime, apparently

before this interview, Louis and Cuba made contact with Justice of the Peace Joe Dale, who had

ordered an autopsy. Louis asked Dale whether Dale had ever heard of a spanking killing a child.

         Also on Monday morning, Louis spoke to Bonham Police Officer James Boatman, who

had been present at the Louis home on Saturday morning (the day of death). Louis related to him

that Louis had seen or been informed of a preliminary autopsy report and he asked Boatman if

“foul play” was being considered in regard to Teddy‟s death. At that time, Louis told Boatman

that he “had to spank the child and he felt like deep in his heart he didn‟t do anything wrong at that

time.”




                                                  7
       Shortly after this, Louis (still not under arrest or in custody) agreed to accompany Bee and

Oliver to the Fannin County Sheriff‟s Office for an interview. In the video-recorded interview,

admitted at trial and played for the jury, Bee asked Louis if it was possible that Louis had struck

Teddy harder than he intended. He explained that the significant internal bleeding could not have

been caused by the simple “spanking” or “whopping” Louis claimed to have administered. Louis

nevertheless steadfastly maintained that the blows he administered were insufficient to have

caused the massive injuries and he suggested alternatively that the child could have fallen in the

bathroom. Louis attempted to demonstrate how hard he spanked Teddy and Beth by hitting the

desk in the office where he was being interviewed. Louis said that Beth cried during her

spanking, but Teddy “took it like a champ” and did not cry.

       Joni McClain, deputy chief M.E. from Dallas County, performed an autopsy. McClain

said her opinion on the cause of the child‟s death was “[h]omicidal violence including blunt-force

trauma.”

       “Homicidal violence means the actions of another person caused the death of an

individual.” When asked if she could pinpoint exactly which injury caused Teddy‟s death, she

said, “No, I can‟t just take one of those bruises out. I have to do everything in totality. So it‟s all

of the various bruises combined, because you‟re losing blood into the soft tissue.” She said that

the term “homicidal violence” is used to include the possibility of asphyxia or lack of oxygen;




                                                  8
McClain‟s opinion on cause of death took into consideration the report given her by investigators

that the child had been hung in a closet:

            I‟d had a history that the child was being hung by its wrists in a closet. So, that
            would - - you know, after a while, it gets hard to breathe if you‟re hanging there.
            So, that‟s the reason I went ahead and included that [asphyxia] along with the
            blunt-force injuries. So, that includes homicidal violence. At autopsy, you may
            not see anything with a suffocation or asphyxia. But as you‟re losing blood, blood
            is the thing that carries oxygen to the brain. So, he‟s losing blood, and it‟s harder
            to breathe if you‟re hanging. So, all of that together is the reason I called it
            homicidal violence including blunt-force injuries.

McClain said it was possible that the child could have bled to death from the injuries. In

answering a question about progressive suffocation, McClain said, “[Y]ou see all that blood that‟s

going into the soft tissue. And so, blood is what‟s carrying oxygen. So, you‟re getting less blood

that you can pump around.” Later, the following exchange occurred:

                  Q.       . . . . Is it possible to estimate the amount of blood that was lost in
            [Teddy‟s] buttocks and lower legs ?

                     A.       Just extensive. No, it‟s just all in the other tissue.

                     Q.       You can‟t pull it out of the fat.

                     A.       No.

            Teddy had six injuries to his head: some bruises and some scrapes. There were two

impact points on the head corresponding with a subdural hematoma4 (bleeding between the brain

and the dura, a fibrous covering over the brain, beneath the skull), resulting in a small

amount––2 milliliters––of blood in or on the brain. McClain said there was not supposed to be
4
    McClain explained the structure as, “[Y]ou‟ve got skull, then you‟ve got dura, and then you‟ve got brain.”

                                                            9
blood on the brain. The boy had bruises on his wrists and one bruise on his lower left abdomen.

An unexplained anomaly not explored at trial was that the child had a blood-alcohol content of .06

percent and the vitreous fluid in his eyes contained .08 percent alcohol. No drugs were detected

in the child‟s system. He had bruises and scrapes on his buttocks and on the backs of his legs,

together with similar injuries on his back, all being consistent with having been hit with a belt.

McClain described the pattern marks on Teddy‟s back as “like a railroad track.” There was

extensive hemorrhaging in the buttocks and backs of the legs, along with two small scrapes on the

penis. Although she acknowledged the child could have suffocated by being hung by his wrists, a

situation which could affect his ability to breathe, she would not specifically say whether the final

cause of death was due to asphyxiation or to any particular contusion or injury. Rather, she

looked at the totality of Teddy‟s injuries and concluded all of them, in toto, amounted to homicidal

violence. McClain did say that the extensive hemorrhaging at the buttocks and backs of the legs

was more severe than the brain injury.

II.     Sufficiency of Evidence

        Louis attacks the sufficiency of the evidence in three primary points of error: (1) in point

one, that the evidence is legally insufficient to support the verdict; (2) in point three, that the

evidence is legally insufficient to prove he had the requisite mental state necessary to be found

guilty of capital murder; and finally, (3) in point four, that the evidence is factually insufficient to




                                                  10
support the verdict.5 Because analysis of the sufficiency of the evidence of Louis‟ mens rea is a

necessary part of analyzing the sufficiency of the evidence to support the verdict, we will address

these points together.

         We begin with Louis‟ third point of error, in which he claims the evidence was legally

insufficient to prove he had the requisite mens rea to be convicted of capital murder. In reviewing

the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Brooks, 2010 WL 3894613, at **1, 14.

         Louis was indicted for intentionally or knowingly causing the death of a person who was

under the age of six. TEX. PENAL CODE ANN. § 19.03(a)(8) (Vernon Supp. 2010). “Capital

murder is a result-of-conduct oriented offense; the crime is defined in terms of one‟s objective to

produce, or a substantial certainty of producing, a specified result, i.e. the death of the named

decedent.” Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008) (citations omitted).

Due process requires the State to prove beyond a reasonable doubt every fact necessary to

constitute the offense alleged. Id. (citing In re Winship, 397 U.S. 358, 364 (1970)). Under a


5
 In Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010) (a 4-1-4 decision
with one judge joining the lead opinion with a concurring opinion and another concurring with the lead opinion and
joining that concurrence), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review
established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and the
concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole
standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element
of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 2010 WL 3894613, at
**1, 14. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the
defendant‟s challenge to the factual sufficiency of the evidence.

                                                         11
hypothetically-correct jury charge, the State had the burden to prove that Louis intentionally or

knowingly caused the death of Teddy, a child younger than six, by beating him.6

         No evidence was presented that Louis ever held the intention to kill Teddy. Louis told

police he was spanking the children as punishment for their having made a mess in the house;

Cuba‟s version of events corroborated this. There is nothing in the testimony of the other two

child witnesses (who were likewise present when the beatings took place) to suggest that Louis

was engaged in anything more than disciplining the children, albeit to an excessive, horrific, and

cruel degree. Cf. Yost v. State, 222 S.W.3d 865 (Tex. App.––Houston [14th Dist.] 2007, pet.

ref‟d) (evidence defendant regularly beat victim and made statements that he would kill her).

Even the police, when questioning Louis, seemed of the opinion that Louis was attempting to

discipline the children and did not realize how hard he was hitting them. Detective Bee said that

when he questioned Louis, Bee did not think that Louis intended to cause Teddy‟s death and that

Bee believed the death was accidental.

         A more complex issue in this case is whether there was sufficient evidence to support a

finding that Louis “knowingly” caused Teddy‟s death.

                 (b) A person acts knowingly, or with knowledge, with respect to the nature
         of his conduct or to circumstances surrounding his conduct when he is aware of the
         nature of his conduct or that the circumstances exist. A person acts knowingly, or

6
  We weigh the sufficiency of the evidence by considering elements of the offense as defined by a
hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The
hypothetically-correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase
the State‟s burden of proof or unnecessarily restrict the State‟s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Id.

                                                         12
       with knowledge, with respect to a result of his conduct when he is aware that his
       conduct is reasonably certain to cause the result.

TEX. PENAL CODE ANN. § 6.03 (Vernon 2003). Proof of a culpable mental state is often made by

circumstantial evidence. Dunn v. State, 13 S.W.3d 95, 98–99 (Tex. App.––Texarkana 2000, no

pet.). Proof of knowledge is an inference that may be drawn by the fact-finder both from direct

evidence and from evidence of the circumstances surrounding the act. Dillon v. State, 574

S.W.2d 92, 94–95 (Tex. Crim. App. [Panel Op.] 1978). A jury may infer intent or knowledge

from any facts which tend to prove its existence, including the acts, words, conduct of the accused,

and the method of committing the crime. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).

“Indeed, mental culpability is of such a nature that it generally must be inferred from the

circumstances under which a prohibited act or admission occurs.” Smith v. State, 965 S.W.2d

509, 518 (Tex. Crim. App. 1998); see also Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.

App. 1999) (Meyers, J., concurring). Intent can be inferred from the extent of the injuries to the

victim, the method used to produce the injuries, and the relative size and strength of the parties.

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In a murder case, evidence of a

particularly brutal or ferocious mechanism of death, inflicted upon a helpless victim, can be

controlling upon the issue of intent or knowledge. Id. Additionally, a culpable mental state can

be inferred from the acts, words, and conduct of the accused. Id.

       As with the above discussion on the absence of any evidence Louis intended to kill Teddy,

we find no evidence Louis was aware that his conduct (i.e., spanking––or, more


                                                13
accurately––beating Teddy) was reasonably certain to cause Teddy‟s death. See TEX. PENAL

CODE ANN. § 6.03(b). All of the evidence pointed to Louis and Cuba doing what they did with the

intent to discipline the children, but not attempting to kill them or to engage in conduct they knew

was reasonably certain to kill them. Again, we point to Louis‟ statements to police that he was

disciplining the children and his denials that he hit Teddy with sufficient force or placement to

cause the child‟s injuries. The fact that Louis expressed an intention to resume the “discipline”

when he got home from work indicates that he believed the child would be alive when he returned;

he told Cuba to keep the children facing the wall in the hallway when he left. Cuba testified she

thought Louis‟ “spanking” was what a normal parent would do. She told police Louis “spanked

them like he always do [sic],” indicating that this was, unfortunately, the normal disciplinary

process in the home.

       Obviously, we are aware of our duty to defer to the jury‟s determination of the weight and

credibility to be accorded the witnesses and the evidence; we are further cognizant that evidence of

Louis‟ knowledge could be inferred from his acts and statements. However, this is where we find

the absence of evidence most telling. From the descriptions of the events of that terrifying

morning, it is clear that Louis and Cuba were anything but ideal parents and should not have been

in the position of enjoying the joys and bearing the responsibilities of child-rearing. As sad as it is

to contemplate, we must take note of Cuba‟s statement that during this episode, she believed that

Louis was simply engaging in an act of normal child discipline. Obviously, although the brutality



                                                  14
and severity of the child‟s wounds must be considered, that still does not yield an inference that

Louis was reasonably certain death would result from his conduct.

       We contrast the instant circumstances with those addressed in Duren v. State, 87 S.W.3d

719 (Tex. App.––Texarkana 2002, no pet.). Duren was convicted of capital murder for having

killed a young child who had been left in his charge. Duren gave inconsistent explanations of the

cause of the child‟s injuries and ultimately claimed that he was mimicking a wrestling move and

accidentally threw the child to the ground when he meant to throw the child to a padded chair.

There were no witnesses to the incident. Evidence was presented that Duren had previously

argued with and slapped the child‟s mother, and had a disagreement with her shortly before the

child was injured. There was testimony from medical doctors that the child‟s injuries (which

included blunt force head trauma and injuries along the spine, upper arms, and buttocks) could not

have been sustained in the manner described by Duren. Id. at 724–25.

       In Montgomery v. State, 198 S.W.3d 67, 84 (Tex. App.––Fort Worth 2006, pet. ref‟d), the

Fort Worth court found sufficient evidence to support Montgomery‟s capital murder conviction

where Montgomery gave inconsistent stories about the means by which the child‟s injuries were

sustained. There was evidence the child was injured while in the sole care of Montgomery and,

importantly, a medical doctor testified that the child‟s head injuries were so significant that the

person administering the wounds would have been reasonably certain the injuries would cause

death. Id. at 87. Also taking into consideration Montgomery‟s relative size and strength as a



                                                15
college football player versus the size of the sixteen-month-old victim, the appellate court found

sufficient evidence that Montgomery knew his acts would cause death. Id. at 87–88.

        In contrast, Louis and Cuba both had charge of the children here, and there is evidence that

Cuba continued the abuse of Teddy after Louis left for work. In addition, other than initially lying

about hitting the children with a belt, Louis eventually admitted using the belt but maintained he

did not hit the children with sufficient force to cause the sustained injuries. Cuba testified that she

believed that Louis spanked the children that Saturday morning just as any other “normal parent”

would. When describing that morning‟s events, it was clear from Cuba‟s testimony that the

“discipline” meted out was customary in that household when she said that she told Louis to “get

up and get” the kids while she performed the perfunctory task of cleaning the mess. This, in her

words, “was nothing new.” Louis got his belt, which he did not do if he were not going to whip

the children. This was apparently nothing extraordinary for this household. “To be aware that

his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature

of his conduct.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).

        In sum, there is simply no evidence that Louis knowingly killed Teddy, as “knowingly” is

defined in the Texas Penal Code. We sustain Louis‟ third point of error and render an acquittal

for the crime of capital murder.7


7
 Because the jury was instructed on lesser-included offenses, we would normally at this point proceed to examine
whether the evidence supports judgment on one of those offenses. Herrin v. State, 125 S.W.3d 436, 443–45 (Tex.
Crim. App. 2002). But because we find harmful jury error in the next part of our analysis, we will not consider the
lesser offenses. Rather, we will remand for a new trial.

                                                        16
         The foregoing discussion and conclusion regarding insufficient evidence to support the

verdict for intentionally or knowingly causing Teddy‟s death render moot Louis‟ points of error

claiming more generally of legal and factual insufficiency of the evidence, so we need not address

them.8

III.     Claims of Error in the Jury Charge

         Louis makes two claims of error in the charge to the jury. He first claims the trial court

erred by inclusion of the following instruction in the jury charge: “Intent or knowledge may be

inferred by acts done or words spoken.” Next, he claims the trial court should have granted

Louis‟ request to instruct the jury on the defense of mistake of fact.

         A.      Inferred Intent

         In reference to the language in the charge concerning inferred intent, the Texas Court of

Criminal Appeals has said inclusion of such language is an impermissible comment on the weight

of the evidence and is, therefore, error. Brown v. State, 122 S.W.3d 794, 800–01 (Tex. Crim.

App. 2003). It was observed that the “instruction marginally falls on the wrong side of the

„improper- judicial-comment‟ scale because it is simply unnecessary and fails to clarify the law for

the jury.” Id. at 802. Brown lodged an objection to the inclusion of this language. Applying

the test announced in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on

reh‟g), the Texas Court of Criminal Appeals found the error in the case before it was not calculated


8
As for the claim of factual insufficiency, we would not address that claim in light of the Texas Court of Criminal
Appeals‟ ruling in Brooks, 2010 WL 3894613, at **1, 14. See footnote 5, supra.

                                                       17
to injure the defendant‟s rights, stating that the “instruction is mild, neutral, and an obvious

common-sense proposition.” Brown, 122 S.W.3d at 803.

       Because Louis objected to the charge language, we will reverse if we find harm, taking into

consideration all the evidence, the entire jury charge, and the parties‟ arguments. Arline v. State,

721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 174; Durden v. State, 290

S.W.3d 413, 420 (Tex. App.––Texarkana 2009, no pet.). One must take into account that when

charge error was preserved at trial by a timely and specific objection, that error must have been

“calculated to injure the rights of [the] defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19

(Vernon 2006); Almanza, 686 S.W.2d at 171. In other words, a defendant must have suffered

“some” actual (rather than theoretical) harm from the error. Almanza, 686 S.W.2d at 171. If this

usually relatively benign error were to be taken alone, we might be inclined to find this error “mild,

neutral, and an obvious common-sense proposition.” Brown, 122 S.W.3d at 803. However,

because Louis‟ primary defense relied upon the position that he did not know that his “spankings”

were sufficiently severe to result in the child‟s serious bodily injury or death, we consider this

issue of preserved-charge error conjunctively with Louis‟ point of error complaining of the trial

court‟s denying Louis an instruction on mistake of fact.

       B.      Mistake of Fact

       The trial court denied Louis‟ request for a jury instruction on mistake of fact. “It is a

defense to prosecution that the actor through mistake formed a reasonable belief about a matter of



                                                 18
fact if his mistaken belief negated the kind of culpability required for commission of the offense.”

TEX. PENAL CODE ANN. § 8.02(a) (Vernon 2003). A defendant is entitled to an affirmative

defensive instruction on every issue raised by the evidence regardless of whether the evidence

raising the issue is strong, weak, unimpeached, contradicted, or unbelievable. Muniz v. State, 851

S.W.2d 238, 254 (Tex. Crim. App. 1993). Generally, an instruction on the mistake of fact defense

should be given when evidence raising the issue of whether the actor formed a reasonable belief

about a matter of fact, if his mistaken belief negated the kind of culpability required for the

commission of the offense. Samford v. State, 302 S.W.3d 552, 556 (Tex. App.––Texarkana 2009,

no pet.).

        In Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), the defendant was charged

with intentionally or knowingly causing serious bodily injury to a child, a first-degree felony, and

also with intentionally or knowingly causing bodily injury to a child, a third-degree felony. In

that case, Thompson had beaten a student in his Bible study class with a tree branch, thereby

causing significant injuries. The case hinged on a finding that the doctrine of transferred intent

could apply to transfer of intent from a lesser offense to a greater offense. Thompson‟s intent to

cause bodily injury was found to transfer to his having caused serious bodily injury. Id. at 800.

The Texas Court of Criminal Appeals also stated that mistake of fact could have been raised under

those circumstances and that although Thompson did not request a mistake of fact instruction, he

would have been entitled to such an instruction had he done so. Id. Whether a defendant‟s



                                                19
mistaken belief is reasonable is a matter for the jury or trier of fact to determine. Granger v. State,

3 S.W.3d 36, 38–39 (Tex. Crim. App. 1999).

        In the charge given to Louis‟ jury, the following sentence is repeated eight times (first in

the portion of the charge for capital murder and again on each of the lesser-included offense

charges): “A person is nevertheless criminally responsible for causing a result if the only

difference between what actually occurred and what he desired, contemplated, or risked is that a

different offense was committed.” We construe this as being a transferred intent instruction as

codified in Section 6.04(b)(1) of the Texas Penal Code. TEX. PENAL CODE ANN. § 6.04(b)(1)

(Vernon 2003).

        Thompson is very similar to Louis‟ situation. Like Thompson, Louis‟ defense was that he

intended to discipline the child, an action which would clearly entail bodily injury as defined by

statute. Although at first blush the facts of this case would not seem to support the normal

mistake of fact situation,9 in light of Thompson, we find Louis was entitled to the mistake of fact

instruction––which he requested but was denied at trial. We must reverse if we find “some harm”

to Louis‟ rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza, 686

S.W.2d at 171. As discussed above, we review all the evidence at trial, the charge as a whole, and

the argument of parties.


9
 For example: Granger, 3 S.W.3d at 38 (defendant entitled to mistake of fact instruction where evidence raised
defensive theory he thought car was unoccupied when he fired into it with pistol); Sands v. State, 64 S.W.3d 488, 493
(Tex. App.––Texarkana 2001, no pet.) (defendant entitled to instruction where he testified he thought syringe of
methamphetamine contained vitamin B-12).

                                                         20
       Louis constructed his defense on two main pillars: (1) that Cuba might have killed the

child after he left the house and (2) that he only intended to discipline the children, not to cause the

death of either. In relation to the second of these defenses, as discussed above, Louis admitted to

investigators that he had struck the child as a means of discipline, but maintained he had not struck

the child with sufficient force to produce the resulting injuries. There was testimony from Cuba

that she thought Louis‟ beating constituted normal parental disciplining. Louis made comments

at the hospital such as, “God knows we didn‟t do nothing [sic] wrong” and was tearful. He asked

two people, including Justice of the Peace Dale, whether it was possible for a spanking to result in

a child‟s death. While it is true that some of this conduct or statements could be construed as

suspicious or self-serving, we are concerned here with a review of all the trial evidence in assaying

harm, not in a sufficiency review where we would be looking at the evidence in the light most

favorable to the verdict.

       We also look at the charge as a whole in considering any harm to Louis. As pointed out

above, there was error in instructing the jury it could infer intent from acts or words spoken. We

find this error (which would usually be not harmful) is exacerbated by the erroneous denial of the

mistake of fact instruction. Both errors center upon a major part of Louis‟ defense––that he did

not intend to cause death or serious bodily injury or know that his actions were reasonably certain

to cause those results. The charge also provided for several lesser-included offenses: injury to a

child by intentionally or knowingly causing serious bodily injury; manslaughter; injury to a child



                                                  21
by recklessly causing serious bodily injury; injury to a child by intentionally or knowingly causing

bodily injury; injury to a child by recklessly causing bodily injury; criminally negligent homicide;

and injury to a child by causing bodily injury by criminal negligence. 10 Louis‟ requested

instruction on mistake of fact would have instructed the jury that if it believed Louis “through

mistake formed a reasonable belief that the spanking that he administered to [Teddy] was not to the

extent to cause serious bodily injury or bodily injury or death . . . or, if you have a reasonable doubt

thereof, then you will find the defendant not guilty.”                Louis‟ two-fold defense hinged on

(a) placing the blame for Teddy‟s death on Cuba, and (b) arguing he did not have the requisite

mental status to be held responsible for the child‟s death.

            As regards the parties‟ argument, the State made some brief references to whether the

evidence proved that Louis knew his actions would cause Teddy‟s death. The State argued, “It

wasn‟t in his heart to kill that baby. It wasn‟t. But he was pissed and he took that belt and he

beat that two-year-old . . . .” The State stressed the amount of the beatings and that they took

place over a span of time in more than one session. It further suggested that Louis raced home

from work upon receiving word the child was not breathing in order to hide the belt and other

evidence. The State concluded both sections of its closing arguments by saying that Louis “knew

he went overboard [with the beatings]. He knew he did too much” and that Louis had gone “too

far.” Louis‟ closing argument reiterated his belief that the children were alive and that he

believed them to be relatively well (or at least not at risk of death) when he left them and that the
10
     Louis objected to inclusion of these lesser-included offenses.

                                                             22
responsibility for the serious bodily injury and death lay at Cuba‟s feet. Counsel argued that

Louis‟ conduct, such as racing home and comments made at the hospital, were consistent with an

innocent mind, because when he left home, the children were alive. Defense counsel cited Louis‟

statements, while alone, caught on the video of his second interview, where he prayed that God

would let the police see what really happened, as evidence of his innocent mind.

       In this case, Louis‟ mental state was a hotly contested issue. The failure to instruct the

jury on the defense of mistake of fact was an impediment to Louis‟ ability to present his defense

that he did not have the requisite mens rea to be found guilty and to argue that defense to the jury.

See Palmer v. State, 222 S.W.3d 92, 96 (Tex. App.––Houston [14th Dist.] 2006, no pet.)

(defendant impeached complainant with evidence she had made a false accusation against a third

party; trial court charge erroneously instructed that the jury could only consider the false

accusation if it found the accusation false beyond a reasonable doubt; effectively deprived

defendant of impeachment evidence, resulting in egregious harm); Hinojosa v. State, 744 S.W.2d

319, 322–23 (Tex. App.––Corpus Christi 1988, pet. ref‟d) (where defendant entitled to

self-defense instruction, denial of instruction harmful).

       Reviewing the evidence, the charge, and the arguments of counsel, we cannot say that the

charge errors here did not cause some harm to Louis. “[T]he presence of any harm, regardless of

degree, which results from preserved charging error, is sufficient to require reversal of the

conviction.” Arline, 721 S.W.2d at 351. The jury was effectively denied the opportunity to



                                                 23
consider Louis‟ most potent defense––that he did not know the degree of injury he was inflicting.

While this defense may not seem reasonable to us, resolution of that reasonableness is a matter for

the jury. Granger, 3 S.W.3d at 38–39. Finding that Louis did suffer some harm, we are

compelled to sustain his eighth point of error and remand this case for a new trial.

            There are various lesser-included offenses to the primary charge which involve the

application of Louis‟ mens rea in a greater or lesser degree. It is the province of the jury, after

proper instruction, to determine the reasonableness of Louis‟ mindset when inflicting the damages

to the child.

            There are other issues raised by Louis on appeal (e.g., the presence of an

investigator/witness in the courtroom during a portion of the trial after imposition of “the rule”

pursuant to Rule 614, 11 the alleged lack of corroboration of the testimony of Cuba as an

accomplice, the refusal of the trial court to allow cross-examination of Cuba concerning her sexual

liaison with a jailer while incarcerated after the child‟s death), which do not present reversible

error under the circumstances of this case as it was tried. However, because the matters discussed

above are dispositive of this case, we do not choose to delve deeply into a discussion of them.

            We reverse the conviction of Louis for capital murder and render an acquittal of that

offense. We remand this case to the trial court for a trial of the lesser-included offenses.




11
     TEX. R. EVID. 614.

                                                 24
                                      Bailey C. Moseley
                                      Justice

Date Submitted:   October 6, 2010
Date Decided:     December 15, 2010

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