                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                OPINION
                                         No. 04-11-00561-CR

                                     Samantha Amity BRITAIN,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                  From the 274th Judicial District Court, Guadalupe County, Texas
                                   Trial Court No. 09-0751-CR
                             Honorable Gary L. Steel, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 5, 2012

REVERSED AND RENDERED

           Samantha Amity Britain was convicted by a jury of manslaughter for recklessly causing

the death of Sarah Brasse, an eight-year-old child, by failing to seek medical treatment. Britain

was also convicted of recklessly causing serious bodily injury to Sarah by failing to seek medical

treatment, resulting in Sarah’s death. She raises five points of error on appeal: (1) and (2) the

evidence was legally insufficient to support convictions for injury to a child by omission

committed recklessly and manslaughter, (3) the trial court erroneously refused to include a

question on mistake of fact in the jury charge, (4) the trial court erroneously refused to grant her
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motion for mistrial after the State’s witness testified in violation of the trial court’s order, and (5)

the trial court erroneously overruled her objection to a PowerPoint slide used during voir dire

that tainted her right to the presumption of innocence. We reverse the trial court’s judgment of

conviction for injury to a child and manslaughter and render a judgment of acquittal on both

counts.

                                               BACKGROUND

          Eight-year-old Sarah Brasse reported to the school nurse complaining of a stomach ache.

After sending Sarah back to class twice, the school nurse called Sarah’s father, David Brasse,

and Sarah’s stepmother, Samantha Britain. Britain picked Sarah up from school and took her

home. Sarah began vomiting that evening and her brother testified he heard her vomit three

times. 1 The following day, Sarah stayed home from school with Britain. Sarah continued to

vomit during the day, and though she drank fluids, she did not eat. Sarah’s brother checked on

her when he arrived home from school and covered her with a blanket. She died shortly

thereafter from complications arising from appendicitis. Because the chronology of events is

important in determining the sufficiency of the evidence, a table referencing the evidence is

provided below.

     Date                   Time                                             Event

    2/4/2008    Approximately 8:15 a.m.          Sarah goes to her school nurse with a “tummy ache.” Nurse
                                                 sends Sarah back to class.
    2/4/2008    Approximately 9:15 a.m.          Sarah, still not feeling well, returns to nurse’s office. Nurse
                                                 sends Sarah back to class.
    2/4/2008    Approximately 10:50 a.m.         Sarah, tearful, returns to the nurse’s office saying that her
                                                 tummy hurts and she is not feeling well. The nurse checks her
                                                 temperature, listens to her bowel sounds, palpates her
                                                 abdomen, and checks her vital signs. The examination is
                                                 normal. Because it is Sarah’s third visit and she is crying, the
                                                 nurse calls Britain and Brasse to pick Sarah up from school.


1
  The parties agree that the time between when the vomiting began and when Sarah died was no greater than twenty-
four hours.

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  2/4/2008   Approximately 12:00 p.m.      Britain picks Sarah up from school. Sarah is feeling better and
                                           runs to hug Britain.
  2/4/2008   Evening hours                 Sarah vomits for the first time. Brasse is unsure whether Sarah
                                           ate her dinner.
  2/4/2008   Throughout the night          Sarah’s brother hears her vomit three times during the night.
  2/5/2008   4:30 a.m.                     Brasse departs for work, leaving Sarah in Britain’s care.
  2/5/2008   7:05 a.m.                     Sarah is still not feeling well so Britain keeps her home from
                                           school.
  2/5/2008   Throughout the day            Sarah vomits four to five times, develops diarrhea, and is
                                           unable to eat.
  2/5/2008   Approximately 4:00 p.m.       Sarah’s brother checks on her when he returns home from
                                           school.
  2/5/2008   Approximately 5:00 p.m.       Sarah’s brother takes her water. Sarah says she is cold so he
                                           covers her with a blanket.
  2/5/2008   Approximately 6:00 p.m.       Britain checks on Sarah; Sarah is dead.

                                        LEGAL SUFFICIENCY

       In her first and second points of error, Britain challenges the legal sufficiency of the

evidence supporting her convictions for reckless injury to a child and manslaughter because (1)

she was not aware of a substantial and unjustifiable risk that Sarah would be seriously injured or

would die, and (2) her failure to seek medical treatment was not a gross deviation from the

standard of care that an ordinary person would exercise under all of the circumstances as viewed

from her standpoint.

A. Standard of Review

       In reviewing the legal sufficiency of the evidence, we must view “the evidence in the

light most favorable to the prosecution” and determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis omitted); accord Prible v. State, 175 S.W.3d 724, 729–30

(Tex. Crim. App. 2005). Evidence may be insufficient under the Jackson standard when “(1) the

record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the

offense, or (2) the evidence conclusively establishes a reasonable doubt.” Bearnth v. State, 361

S.W.3d 135, 138 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson, 433 U.S. at

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314, 320). This standard requires that we defer to the fact-finder’s credibility and weight

determinations and consider only whether the jury reached a rational decision. Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); see also TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979).

B. Elements of Injury to a Child and Manslaughter

       We review the elements of injury to a child and manslaughter together because they both

require a mental state of recklessness. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007) (injury to a child); Schroeder v. State, 123 S.W.3d 398, 399–401 (Tex. Crim. App.

2003) (manslaughter).

       1. Injury to a Child

       A person commits the offense of injury to a child if the person “intentionally, knowingly,

or recklessly by omission,” causes serious bodily injury or death to a child fourteen years of age

or younger. TEX. PENAL CODE ANN. § 22.04 (West 2011). “Injury to a child is a result-oriented

offense requiring a mental state that relates not to the specific conduct but to the result of that

conduct.” Williams, 235 S.W.3d at 750.

       2. Manslaughter

       A person commits the offense of manslaughter “if he recklessly causes the death of an

individual.” TEX. PENAL CODE ANN. § 19.04. Manslaughter, like injury to a child, is a result-

oriented offense. See Schroeder, 123 S.W.3d at 400–01; Williams, 235 S.W.3d at 750. The

defendant’s culpable mental state must relate to the result of his or her conduct. Schroeder, 123

S.W.3d at 400.




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C. Recklessness

       “A person acts recklessly . . . when he is aware of but consciously disregards a substantial

and unjustifiable risk that the circumstances exist or the result will occur.” TEX. PENAL CODE

ANN. § 6.03(c).    The risk created “must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would exercise

under all the circumstances as viewed from the actor’s standpoint.” Id. “The State cannot be

permitted to submit its case to the jury unless it has offered a prima facie case of a defendant’s

actual, subjective ‘disregard of the risk of a resulting [injury] which . . . rise[s] to the level of a

“gross deviation” from an ordinary standard of conduct.’”            Williams, 235 S.W.3d at 753

(alterations in original) (quoting Crume v. State, 658 S.W.2d 607, 609 (Tex. Crim. App. 1983)).

“[D]etermining whether an act or omission involves a substantial and unjustifiable risk ‘requires

an examination of the events and circumstances from the viewpoint of the defendant at the time

the events occurred, without viewing the matter in hindsight.’” Id. (quoting Transp. Ins. Co. v.

Moriel, 879 S.W.2d 10, 23 (Tex. 1994), superseded by statute on other grounds, Act of June 2,

2003, 78th Leg., R.S., ch. 204, § 13.02, 2003 Tex. Gen. Laws 847, 887). “‘[M]ere lack of

foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the

consequences may happen to be,’” does not rise to the level of criminal recklessness. Id. at 751

(quoting People v. Carlson, 26 N.Y.S.2d 1003, 1005 (N.Y. Cnty. Ct. 1941)).

D. Analysis

       1. Culpable Mental State

       Criminal recklessness, the mens rea for the offenses of manslaughter and reckless injury

to a child, requires that the defendant possess a subjective and actual awareness of a substantial

and unjustifiable risk. See TEX. PENAL CODE ANN. §§ 6.03(c), 19.04, 22.04; Williams, 235



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S.W.3d at 752–53. The State argues Britain should have known her failure to seek medical

treatment for Sarah would create a substantial and unjustifiable risk of her death. This confuses

the requisite mental states of criminal recklessness and criminal negligence. Compare TEX.

PENAL CODE ANN. § 6.03(c) (criminal recklessness), with id. § 6.03(d) (criminal negligence).

Compared to criminal recklessness, criminal negligence requires a less culpable mental state—

the defendant should have known or “ought to be aware” of such risk. See id. § 6.03(d); accord

Williams, 235 S.W.3d at 750–51. Because the requisite mental state for manslaughter and injury

to a child is criminal recklessness, we review the record for evidence that Britain was actually

and subjectively aware of a substantial and unjustifiable risk that Sarah would die without

medical treatment. See TEX. PENAL CODE ANN. §§ 6.03(c), 19.04, 22.04; Williams, 235 S.W.3d

at 752–53. We must determine whether, based on the record, any rational jury could have come

to such a conclusion. See Jackson, 443 U.S. at 319.

       2. No Evidence Britain Was Subjectively Aware of a Substantial and Unjustifiable Risk

       The record indicates Britain was aware of the following on February 5th: Sarah visited

the school nurse three times the previous day complaining of a stomach ache and was sent home

from school; Sarah vomited before she went to bed; Sarah was still not feeling well in the

morning and stayed home from school; Sarah vomited several times throughout the day, had

diarrhea, did not want to eat, and felt weak. At the time of her death, Sarah had been vomiting

for nearly twenty-four hours. The school nurse testified she would absolutely seek medical

treatment for her child if he or she was in the same situation. However, she made no such

recommendation to Britain or Brasse. In addition, Dr. Gale Gregory-Laine, the State’s expert

and treating emergency room physician on the night of Sarah’s death, testified that a reasonable

parent would have taken their child to the emergency room if the child had been vomiting for



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more than twenty-four hours. However, there is no evidence Sarah was vomiting for more than

twenty-four hours or that Britain knew of such a standard. 2

        This is a tragic incident, but the record is devoid of evidence that Britain knew there was

a substantial risk Sarah would die from symptoms that are common to many childhood ailments

and that persisted for less than twenty-four hours. The State fails to offer any argument as to

how a rational jury could have appropriately concluded that Britain was aware of the substantial

risk of death based on the evidence presented.               Although the jury is permitted to draw

appropriate conclusions and inferences from the evidence, it was not rational for the jury to

conclude the requisite knowledge based on the record before us.

        Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that

the evidence is legally insufficient for any rational jury to find beyond a reasonable doubt that

Britain was subjectively aware of and consciously disregarded a substantial and unjustifiable risk

that Sarah would suffer serious bodily injury or die if she did not receive medical treatment. See

TEX. PENAL CODE ANN. § 6.03(c); Jackson, 443 U.S. at 319; Williams, 235 S.W.3d at 753.

Accordingly, we sustain Britain’s first two points of error and do not address her additional

points. See TEX. R. APP. P. 47.1.

                                               CONCLUSION

        Because there is legally insufficient evidence of criminal recklessness, a rational trier of

fact could not have found beyond a reasonable doubt the essential elements of the offenses of

injury to a child and manslaughter. Therefore, the evidence was legally insufficient to support




2
  Other evidence in the record described the lack of cleanliness in the home, Sarah’s poor dental hygiene, and
Britain’s comment to the school nurse that Sarah was a drama queen, but this is no evidence of criminal
recklessness.

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Britain’s convictions. We reverse the trial court’s judgment of conviction for injury to a child

and manslaughter and render a judgment of acquittal on both counts.


                                                Rebecca Simmons, Justice

PUBLISH




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