                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00238-CR


                          JASMINE N. FRANCIS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
        Trial Court No. 2012-434,263, Honorable John J. "Trey" McClendon, Presiding

                                  September 12, 2013

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant Jasmine N. Francis was convicted of two counts of injury to a child.

One involved injury through action while the other concerned injury by omission. On

appeal, she questions the legal sufficiency of the evidence underlying each, as well as

the trial court’s refusal to submit to the jury an instruction on a lesser-included offense

and an instruction on the defense of mistake. Whether she was exposed to double

jeopardy is also a contention she broached. We affirm.
       Background

       Appellant gave birth to the child in question. It is undisputed that the child, who

was less than two months old at the time, had suffered a fractured skull. The fracture

was caused by blunt force consisting of more than the child simply falling from a bed or

being bumped against a hard object.              It also manifested itself in the form of

displacement of the fractured bones within the skull; that is, the break was not simply

linear. Rather, portions of the bone were displaced, and the child’s head (where the

displacement occurred) felt “mushy” like overripe fruit, according to one witness. The

fracture also resulted in the child experiencing strokes, permanent brain damage, and

partial paralysis.

       When the child was eventually seen by medical personnel, they noted that the

trauma was not “acute,” that is, of recent origin. Apparently, it occurred some five days

earlier. And, one physician opined that had the child’s delivery to the hospital not been

delayed, the permanent damage she suffered could have been reduced.

       Of further note is the evidence illustrating that appellant was not the person who

took the infant to the hospital, but rather the infant’s grandmother, Sheila. The latter

had visited appellant’s home the preceding weekend and observed that the child’s head

was cone-like. She broached the matter with appellant and informed her that the infant

needed medical care. Appellant responded by saying that her mother planned to take

them to secure such care that day. Yet, this representation proved false, as did the

ensuing utterance made by appellant to Sheila the following Wednesday. On that date,

appellant told Sheila that a doctor had seen the infant when no physician actually did.

Two days later, Sheila opted to take the infant to the hospital herself.



                                             2
      Though the cause of the trauma was deduced (i.e., blunt force), the specific

manner in which it was inflicted remained unknown. Appellant initially explained that

she “bumped” the child’s head against a wall. Then she uttered that 1) she had tripped

over power cords lying on the floor while holding the baby, or 2) the infant somehow fell

against a table, or 3) the child hit her head against a concrete wall. Yet, none of those

incidents could have been sufficient to cause the extensive trauma actually suffered,

according to expert witnesses. Finally, appellant also denied knowing of the injuries or

their seriousness, despite other witnesses describing the obvious nature of the trauma.

      Issue 1 – Sufficiency of the Evidence, Count 1

      In her first issue, appellant argues that the evidence is insufficient to show that

she intentionally or knowingly caused serious bodily injury to her five-week-old

daughter. We overrule the issue.

      The pertinent standard of review is discussed in Brooks v. State, 323 S.W.3d 893

(Tex. Crim. App. 2010) and need not be further developed here. Next, to garner a

conviction, the State was obligated to prove that appellant intentionally and knowingly

caused serious bodily injury to her child. TEX. PENAL CODE ANN. § 22.02(a)(1) (West

Supp. 2012). One acts intentionally with regard to that mens rea when he has the

conscious objective or desire to cause the result. Id. § 6.03(a) (West 2011). To prove

that the actor knowingly caused the injury, it must be shown that she was aware that her

conduct was reasonably certain to cause the result.        Id. § 6.03(b).   Each of the

foregoing categories of mens rea may be illustrated through circumstantial evidence,

and such circumstantial evidence may come in the form of the actor’s conduct, Moore v.

State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998), or the extent of injuries suffered, the



                                           3
method used to produce them, and the relative size and strength of the parties involved.

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

      As previously mentioned, appellant represented that she did not know of the

injuries or their extent. Yet, other evidence of record illustrated that the trauma to the

infant’s head was readily observable. Indeed, others not only saw it but directed her to

seek medical treatment for it. Instead of heeding that advice, she lied about the baby

having seen a doctor. And, when eventually asked about how the injuries occurred,

appellant uttered contradictory stories.   This evidence of deceit or evasion can be

considered by a factfinder as consciousness of guilt. Couchman v. State, 3 S.W.3d

155, 163-64 (Tex. App.–Fort Worth 1999, pet. ref’d) (stating that effort to deceive or

change one’s story can be considered indicative of consciousness of guilt).      To it, we

add the expert testimony indicating that the force exerted to cause the injuries had to be

greater than that emanating from a bump, or falling against furniture, or the like.

Instead, it had to be “violent” or “significant” or “major.” That is, appellant had to have

exerted a force greater than the one she described (via her differing explanations) as

having been exerted to cause the damage found. Given the quantum of force that had

to have been forthcoming from appellant to cause the injuries to her infant, the extent of

those injuries, appellant’s hesitance to take and deceptions about taking the infant to

garner medical care, and the differing stories about how the injuries occurred, rational

jurors could infer beyond reasonable doubt that appellant either had the conscious

desire to cause the injuries or was aware that her conduct was reasonably certain to

cause them.




                                            4
       Issue 2 – Lesser-Included Offense – Count 2

       In her second issue, appellant argues that the trial court should have submitted

an instruction on the lesser-included offense of recklessly causing serious bodily injury

by failing to obtain medical care for her daughter. We overrule the issue.

       A crime may be a lesser-included offense if it differs from the charged offense

only in the respect that a less culpable mental state suffices to establish its commission.

The less culpable mental state involved here is recklessly causing serious bodily injury,

as opposed to intentionally or knowingly causing such injury. See TEX. CODE CRIM.

PROC. ANN. art. § 37.09(3) (West 2006).      Next, the mens rea of reckless is defined as

being aware of but consciously disregarding a substantial and unjustifiable risk that the

result will occur.    TEX. PENAL CODE ANN. § 6.03(c) (West 2011).            The evidence

purportedly entitling appellant to the instruction at issue was that indicating the child

revealed no signs of injury. Yet, if the infant revealed no signs of injury, then it cannot

logically be said that appellant could have been aware of any injury subject to being

disregarded. In other words, one cannot consciously choose to disregard a matter

about which she knew nothing. So, the evidence allegedly entitling her to the lesser

instruction actually did not.

       Issue 3 – Mistake of Fact – Count 2

       Next, appellant claims she was entitled to an instruction on mistake of fact. The

fact about which she was purportedly mistaken involved knowledge of the infant’s

trauma. We overrule the issue.

       Mistake may be a defense to prosecution. Id. § 8.02(a) (West 2011). However,

the trial court has no duty to sua sponte instruct the jury on unrequested defensive



                                             5
issues, such as mistake of fact. Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App.

1998) (involving a mistake of fact instruction that the defendant did not request). Here,

appellant did not request the instruction at issue; thus, she waived her complaint about

not receiving one. Mays v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010), cert.

denied, ___ U.S. ___, 131 S.Ct. 1606, 179 L.Ed.2d 506 (2011) (also involving the

defense of mistake of fact).

      Issue 4 – Double Jeopardy

      Appellant next contends that she was subjected to double jeopardy when

indicted and tried for both causing serious bodily injury by act or omission. We overrule

the issue.

      It is true that the State charged appellant with and tried her for both causing

serious bodily injury to her daughter by striking her with or against an object and by

omitting to seek medical care for the child. Similarly true is that our Court of Criminal

Appeals held, in Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007) “that the

Legislature intended that serious bodily injury committed against the same victim at the

same time should be considered the same offense for purposes of the double-jeopardy

prohibition against multiple punishments regardless of whether that injury to that victim

resulted from the actor’s act, his omission, or by a combination of his act and omission.”

Id. at 748. In so concluding, however, it distinguished the circumstances before it from

those in another of its opinions, that is, Luna v. State, 493 S.W.2d 854 (Tex. Crim. App.

1973). According to the court, Luna stood for the proposition that a defendant could

lawfully be convicted for “two violations of the same statutory provision on the same

day, so long as the State can prove that two separate and discrete incidents occurred



                                            6
on that day comprising two violations . . . .” Id. at 748-49. This then lead the court to

opine:

         Had the appellant [in Villanueva] continued to prevent Legg from taking
         G.V. to the hospital on the morning of July 30th, when G.V.’s condition was
         obviously deteriorating and it was apparent that he might suffer further
         serious bodily injury absent medical intervention, we think that the
         principle in Luna could well apply.             Under those hypothetical
         circumstances, it could reasonably be said that the failure to seek
         treatment for G.V.’s apparent injuries resulted in a separate and discrete,
         or at least incrementally greater, injury for which the appellant could also
         be held criminally accountable without violating double jeopardy. But here
         we can point to no omission that caused any injury beyond that which the
         appellant had caused by his act.

Id. at 749.

         Combining the above references from Villanueva, we are led to conclude that a

defendant is not ipso facto exposed to double jeopardy simply because he is charged

with causing serious bodily injury to a child by an act and by omission. Where the act

caused an initial injury and that injury was made greater by later denying the child

medical treatment, two discrete offenses may indeed exist permitting their prosecution

without hindrance from the double jeopardy prohibitions. And, that is what the evidence

illustrated here.

         Appellant caused the infant to suffer serious bodily injury by striking the baby with

or against a blunt object. Then she opted to forego medical treatment for the child not

only on the day of the initial injury but also on the ensuing days. Moreover, expert

testimony indicated that appellant’s decision to forego medical treatment for her child

over those ensuing days caused or theoretically caused greater trauma to the child.

The permanent damage suffered would not have been as great had appellant not

ignored Sheila’s repeated admonishments to take the baby to the hospital for the rather



                                               7
apparent and ongoing injury to the child’s skull. So, we have before us evidence of

discrete conduct causing discrete injuries subject to prosecution without hindrance by

double jeopardy.

       Issue 5 – Sufficiency of the Evidence – Count 2

       Appellant finally challenges the sufficiency of the evidence supporting the jury’s

determination that she caused serious bodily injury to the child by failing to obtain

medical care. We overrule the issue. In doing so, we cite the evidence detailed through

this opinion. It disclosed both injury caused by appellant’s act and further injury caused

by the failure to subject the infant to medical attention, or at least a rational factfinder

could have so interpreted it beyond a reasonable doubt.

       Accordingly, the judgments are affirmed.



                                          Brian Quinn
                                          Chief Justice

Do not publish.




                                             8
