                 NUMBER 13-10-00396-CR

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG

ALMA LINDA VILLARREAL,                                  Appellant,

                               v.

THE STATE OF TEXAS,                                      Appellee.


             On appeal from the 117th District Court
                   of Nueces County, Texas.


                 MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Vela
           Memorandum Opinion by Justice Rose Vela
        Appellant, Alma Linda Villarreal, was indicted1 along with co-defendants, Vanessa

Zuniga and Yolanda Zuniga, for the first-degree felony offense of injury to a child. See

TEX. PENAL CODE ANN. § 22.04(a), (e) (West Supp. 2011). The three were tried together,

and a jury found appellant guilty and assessed her punishment at thirty years'

imprisonment. By two issues, appellant argues the trial court: (1) abused its discretion

by failing to instruct the jury on the lesser-included offense of reckless injury to a child;

and (2) erred by charging the jury regarding the nature of her conduct as well as the result

of her conduct. We affirm.

                                        I. FACTUAL BACKGROUND

A. State's Evidence

        This case involves the near-starvation death of three-year-old I.V., who lived with

appellant, his biological mother, her girlfriend, Vanessa Zuniga 2, and Vanessa's mother,

Yolanda Zuniga. On the afternoon of February 27, 2009, Jose Zuniga, arrived at I.V.'s

home and saw appellant crying while Yolanda called an ambulance. Rather than wait for

an ambulance, Jose rushed I.V. to Spohn Hospital South emergency room, where I.V.

stopped breathing. Amalia Tinoco, M.D., resuscitated him and discovered his blood

sugar was 3, which is extremely low. After infusing him with glucose, his blood sugar

rose to 79, a normal level.                She testified I.V. was dying and looked severely

        1
           Paragraph one of the indictment alleged, in relevant part, that appellant on or about February 27,
2009, "intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15
years of age, by failing to provide adequate nutrition and/or nourishment to [I.V.], and ALMA VILLARREAL
had a legal and/or statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ."
Paragraph two of the indictment alleged, in relevant part, that appellant on or about February 27, 2009,
"intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15 years
of age, by failing to provide adequate medical care to [I.V.] and ALMA VILLARREAL had a legal and/or
statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ."
        2
            Vanessa Zuniga's appeal is still pending with this Court.
                                                       2
malnourished and dehydrated. She stated in "a few more minutes his heart would

probably have stopped completely, . . . ." Even though appellant told Dr. Tinoco I.V. ate

a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard to believe that he ate at

11:00 a.m. and by 1:30 p.m., his blood sugar was 3. Dr. Tinoco blamed malnutrition as

the cause of his low blood sugar. After treating I.V., she transferred him to Driscoll

Children's Hospital.

        I.V. arrived at Driscoll in "serious condition." He had "exposure of every bony

prominence", "very visible ribs", and "no body fat." His treating pediatrician, Dr. Rivera, 3

testified he "looked like he was malnourished." Appellant told him I.V. was always

hungry and always ate a lot but never gained any weight. However, Dr. Rivera testified

this account was inconsistent with I.V.'s condition and stated that "usually when

somebody is always hungry, it usually kind of steers you away from something that is

primarily going on with his, . . . stomach or intestinal tract." He said, "[I]f you ingest

normal calories or excess calories a child should be thriving." When the prosecutor

asked Dr. Rivera, "[W]ere tests performed on [I.V.] to see if there was an organic reason

for him being that way?," he said, "Yes, there were numerous tests . . . but all those tests

were basically normal."

        About 4:00 p.m. that day, Nancy Harper, M.D., a board certified specialist in child

abuse pediatrics, examined I.V. She described him as a "frail, frail appearing child, like a

skeleton lying on the bed." She stated his "belly was like all scaphoid, it was sunk down

and with the degree of starvation, malnutrition I was seeing." When she asked I.V. if he


        3
          When the prosecutor called Dr. Rivera as a witness, she did not state Dr. Rivera's first name. Dr.
Rivera did not state his first name when he testified.
                                                     3
had eaten anything that day or the day before, he said, "No." He told her he was unable

to walk or run. She interviewed appellant, who told her I.V. had eaten plenty of food.

Dr. Harper testified this "history was not consistent with what we saw, . . . . If he had

been able to eat that many calories in the days leading up to when he came in, he would

not have developed life-threatening refeeding syndrome when we started to feed him."

She testified he "had extreme starvation from deprivation of food."

        Later that day, appellant went to the police station and gave a video-taped

statement 4 to Detective Tanya Flores.             In this statement, she indicated that in the

morning of February 27, 2009, I.V. had eaten three eggs with ketchup, a slice of bread,

and a glass of milk.

        Belinda Loera, a social worker at Driscoll Children's Hospital, testified that on

December 1, 2008, she met with appellant and I.V. at the hospital. Appellant was

concerned because I.V. had lost weight, and appellant explained to Loera she "noticed

some changes in his [I.V.'s] eating behaviors going on about ten months." Even though

appellant told Loera that I.V. "hoarded his food", "would eat everything around him", "ate

out of the trash can", and "ate more than his older sisters, who were 10 and 12", appellant

could not identify his favorite food and did not know his feeding schedule or his sleeping

patterns.    Appellant told her Vanessa was I.V.'s primary caregiver.                    Regarding the

events of February 27, 2009, appellant told Loera I.V. had breakfast that morning and

usually ate three scrambled eggs, ketchup, a slice of toast and a glass of milk. Around

eleven or twelve, she passed by I.V.'s room and found him unresponsive, limp, and barely


        4
          During the State's case-in-chief, the trial court admitted the videotape into evidence as State's
exhibit 2. The prosecutor played the tape to the jury.
                                                    4
breathing.   Appellant told Loera, "she [appellant], Vanessa, and Yolanda were

caretakers at that point." Loera testified this "was a change compared to my assessment

before." When the prosecutor asked Loera, "So she said that all three of them took care

of him [I.V.] now, rather than just Vanessa?," she said, "Yes."

      Appellant's oldest daughter, A.G.G., who lived with I.V., noticed I.V. was getting

"skinny" and "was always laying down." She testified he did not get to eat every day and

said Vanessa was the one who would not let him have food. She stated there were times

when Vanessa would make her eat in front of I.V. and would not let him have any food.

Sometimes Vanessa would deprive him of food for one meal, an entire day, or more than

one day. When the prosecutor asked A.G.G. what appellant would do when Vanessa

would not let I.V. eat, she said, "She wouldn't be there, or at work, or doing something

else downstairs." When asked if appellant would feed I.V., she said, "We were the ones

that fed him." By "We" she meant herself, her younger sister, and Vanessa.

      On cross-examination, defense counsel asked A.G.G. about a birthday party

which occurred about two weeks before I.V. was rushed to the hospital ER. A.G.G.

recalled I.V. attended the party and was "real skinny" and had "real loose skin." She

testified he was "always hungry" and "always in his room laying down under the covers."

She said appellant would go to work early in the morning and return home by lunch time.

When defense counsel asked A.G.G., "Do you think that Vanessa at any time tried to

keep him [I.V.] from having food?," she said, "Sometimes."

      Appellant's second oldest daughter, A.G., who also lived with I.V., replied, "Yes, I

think" when asked if appellant knew "that Vanessa wouldn't give [I.V.] food?" She said


                                            5
that when appellant "would take Vanessa out, she [appellant] would call for my grandma

Yoli [Yolanda Zuniga] to give him food." When the prosecutor asked her, "But Were [sic]

there days that [I.V.] still didn't get to eat in the whole day?," she said, "Yes." According

to A.G., Yolanda only gave I.V. food when Vanessa was gone and Vanessa "sometimes"

got mad when people gave I.V. food. She said Vanessa would spank I.V. with a belt, hit

him with her hand, and spit on him.

       On cross-examination, when defense counsel asked A.G., "Do you know why he

[I.V.] was skinny?," she said, "Because Vanessa starved him." A.G. testified that at

night, I.V. ate food out of the garbage can.

B. Defense Evidence

       Vanessa's cousin, Rosa Ramirez, visited appellant's home numerous times. She

noticed I.V. was always skinny and his ribs were visible. She told appellant I.V. looked

skinny. Vanessa's niece, Samantha, testified she never saw anyone prevent I.V. from

eating, and she never saw appellant act mean towards him.

       Vanessa's sister, Lisa Ramirez, testified that when she went to Vanessa's house,

she never saw anyone denying I.V. food or liquids. However, she saw him "being

extremely skinny." She stated appellant "always worried about why he was so skinny. . .

. [A]nd that's why she had took him to the doctor, because he would eat all the time and

then his stomach would get real hard."

       Vanessa's cousin, Jessica Marquez, testified that every time she saw I.V., he was

eating. She never saw anyone mistreating him but said he was "real skinny."




                                               6
       Vanessa's cousin, Sylvia Marquez, testified that when she saw I.V., he was "thin."

However, she did not think anything was wrong with him and never saw anyone deny him

food or water. She said Vanessa and appellant took responsibility for making sure the

kids were dressed and fed.

       Appellant's sister, Amy Valdez, testified appellant never abused the children and

never kept them from eating.        Rebecca Andrade, who used to baby sit appellant's

children, testified none of appellant's children ever told her they were being abused by

anyone. However, she testified I.V. looked "very skinny."

       Yolanda Zuniga testified that in December 2008, appellant took I.V. to Driscoll

Children's Hospital because appellant was concerned about him being thin. After his

discharge, appellant told her, "'They said it was just failure to thrive'" and "'there is nothing

wrong with him.'" She stated appellant "told me that they had told her just to follow up in

a couple of days." When the prosecutor asked Yolanda, "Did you ever ask [appellant],

'Why didn't you take him back, . . . ?,'" Yolanda answered affirmatively and said appellant

"would say she was going to set up an appointment for him." When asked, "And did she

set up an appointment for him?," she said, "I guess not." During January and February

2009, I.V. continued to be very thin, and Yolanda told appellant about his condition.

Yolanda claimed to have fed I.V. during this two-month period and never saw anyone

deny him food. She told the police she, Vanessa, and appellant took charge of taking

care of the children and that typically Vanessa fed them. Yolanda said the last few days

before I.V. was taken to Spohn Hospital, "he . . . look[ed] like he is starved." She told

appellant that "[I.V.] is very skinny. Take him to the doctor."


                                               7
       Vanessa Zuniga testified she never abused I.V. When asked about the events

leading up to I.V.'s hospitalization in December 2008, she said, "He [I.V.] started losing

too much weight and we were worried about him so she [appellant] . . . and my mom

[Yolanda] took him to the hospital . . . and that's when they told her that he looked like he

was starving. . . ." After I.V. was discharged, appellant told Vanessa "he had to come

see the doctor again in a couple of days." According to Vanessa, appellant did not bring

I.V. back to the doctor as requested. Vanessa said she never withheld food from I.V. and

stated, "I did not starve [I.V.]. He was always fed either by me, by his mother, by my

mother, by friends, . . . . He was not starved."

       Appellant testified she took I.V. to Driscoll Children's Hospital in December 2008

because "I saw he was losing weight." While at Driscoll, I.V. was examined by Jennifer

Davis, M.D., who told appellant, "'Oh, my God. He looks like he is starving.'" In reply,

appellant told Dr. Davis, "'Yes, he does.'" She told Dr. Davis that even though "'he eats a

lot.,'" "he is not gaining no weight, . . . ." Dr. Davis admitted I.V. into the hospital, where

he stayed for about four days. Appellant testified that while I.V. was in the hospital, he

was examined by Dr. Flores, who told her I.V. "could be stressing over something. . . .

[S]omething in his head, he could be jealous because I had had a baby, because he

wasn't the baby no more." When I.V. was discharged, no one gave appellant any

instructions.

       She stated in February 2009, she took I.V. to the Spohn Hospital ER. When

defense counsel asked her if she "at any time had anything to do with [I.V.] collapsing

prior to going to Spohn?," she said, "No" and stated she never told Dr. Tinoco I.V. ate a


                                              8
hamburger the day he arrived at the ER. When defense counsel asked her, "Did you

intentionally or knowingly keep [I.V.] from receiving nutrition and food?," she said, "No I

did not." When asked, "Did you intentionally, knowingly, and by omission not try to seek

medical attention for your son?," she said, "No." When asked why she did not call the

doctor between the time I.V. was discharged in December 2008 and taken to the ER in

February 2009, she said, "[H]e was fine. He had none of those symptoms. He was fine.

He was himself. . . . I did what they told me to do, take him home, do what you've been

doing; that's what I did." However, when asked, "Do you feel that whatever happened to

[I.V.] is your responsibility?," she said, "He is my son; yes."

       On cross-examination, appellant testified the reason she did not take I.V. to the

doctor on February 26, 2009 was because I.V. "didn't want to go. He don't like doctors."

She also said, "[H]e was fine." However, when the prosecutor asked her, "Is that your

job as a parent, to do what your children need, regardless of whether or not they like it?,"

she said, "Yes, it is."

                                       II. DISCUSSION

A. Lesser Included Offense Instruction

       By her first issue, appellant contends the trial court abused its discretion by failing

to instruct the jury on the lesser-included offense of reckless injury to a child.

       1. Applicable Law

       "Determining whether a defendant is entitled to a lesser-included-offense

instruction requires a two-part analysis." Goad v. State, 354 S.W.3d 443, 446 (Tex.

Crim. App. 2011) (citing Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)).


                                              9
"We first consider whether the offense contained in the requested instruction is a

lesser-included offense of the charged offense." Id. (citing Rice v. State, 333 S.W.3d

140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535). "If so, we must decide

whether the admitted evidence supports the instruction." Id. (citing Rice, 333 S.W.3d at

144). Reckless injury to a child is a lesser-included offense of intentional or knowing

injury to a child. Torres v. State, 979 S.W.2d 668, 670 n.2 (Tex. App.—San Antonio

1998, no pet.); Downing v. State, 761 S.W.2d 881, 883 (Tex. App.—Fort Worth 1988, no

pet.).

         "The evidence supports an instruction on a lesser-included offense if it permits a

rational jury to find the defendant guilty only of the lesser-included offense." Goad, 354

S.W.3d at 446 (citing Rice, 333 S.W.3d at 145). "'[T]here 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.'" Id. (quoting Hampton v. State,

109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). "We consider all of the evidence admitted

at trial, not just the evidence presented by the defendant." Id. (citing Rousseau v. State,

855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). "The evidence must establish that the

lesser-included offense is a valid, rational alternative to the charged offense." Id. (citing

Rice, 333 S.W.3d at 145). "'Anything more than a scintilla of evidence is sufficient to

entitle a defendant to a lesser charge.'" Id. (quoting Bignall v. State, 887 S.W.2d 21, 23

(Tex. Crim. App. 1994)). "However, we may not consider '[t]he credibility of the evidence

and whether it conflicts with other evidence or is controverted.'" Id. at 446–47 (quoting

Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1992)).


                                             10
        2. Analysis

        Concerning the offense of injury to a child, the penal code provides, in relevant

part:

        (a) A person commits an offense if he intentionally, knowingly, recklessly, or
        with criminal negligence, by act or intentionally, knowingly, or recklessly by
        omission, causes to a child, . . .:

               (1) serious bodily injury;

               (2) serious mental deficiency, impairment, or injury; or

               (3) bodily injury.

TEX. PENAL CODE ANN. § 22.04(a)(1)–(3). Section 6.03 of the penal code defines the

culpable mental states relevant to this case as follows:

        (a) A person acts intentionally, or with intent, with respect to the nature of
        his conduct or to a result of his conduct when it is his conscious objective or
        desire to engage in the conduct or cause the result.

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

        (c) A person acts recklessly, or is reckless, with respect to circumstances
        surrounding his conduct or the result of his conduct when he is aware of but
        consciously disregards a substantial and unjustifiable risk that the
        circumstances exist or the result will occur. The risk 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. § 6.03(a)–(c) (West 2003).

        In Williams v. State, the Fort Worth Court of Appeals interpreted the distinction

between the culpable mental state of "recklessness" and the culpable mental states of


                                              11
"intentional" and "knowing" as follows:

               Recklessness, defined in Subsection (c), differs markedly from
       intentional and knowing. Recklessness is conscious risk creation; the
       reckless person does not desire that the risk occur nor is he even
       reasonably certain that it will occur; he does perceive it, however, and if the
       risk is substantial, he disregards it, and his disregard is plainly unjustifiable,
       then he is criminally responsible for whatever harm his recklessness
       produced.

              Many examples of recklessness come to mind. Driving while
       intoxicated, speeding through a school zone when children line the sides of
       the street, plinking at beer cans in a lake while water skiers go by in the
       center of the lake, chasing a traffic violator through a residential area at 100
       miles an hour. In all of these examples the fact-finder would infer that the
       actor perceived the risk—of running down a child, of shooting a skier, of
       smashing into a parked car—and that he consciously disregarded it.

Williams v. State, 704 S.W.2d 156, 158 (Tex. App.—Fort Worth 1986, no pet.) (citation

omitted).

       The evidence in this case established appellant is the biological mother of I.V., the

injured three-year-old child. She was responsible for caring for the child. In December

2008, she took him to Driscoll Children's Hospital, where he was admitted. Even though

I.V. was thin, he was sufficiently healthy for hospital staff to eventually discharge him to

appellant's care. Thereafter, I.V. remained skinny, and the evidence showed appellant

knew he was skinny. While living with appellant, I.V. nearly died from malnutrition and

dehydration. The evidence does not show appellant took I.V. to the doctor after his

December 2008 discharge from Driscoll Children's Hospital. When he arrived at Spohn

Hospital South on February 27, 2009, he had stopped breathing. Even though appellant

told Dr. Tinoco I.V. ate a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard

to believe he ate at 11:00 a.m. and his blood sugar was 3 by 1:30 p.m. Dr. Tinoco


                                              12
blamed malnutrition as the cause of his low blood sugar.

       Appellant testified the reason she did not take I.V. to the doctor on February 26,

2009 was because he "didn't want to go. He don't like doctors." She also stated, "[H]e

was fine." However, on February 27, 2009, I.V. told Dr. Harper he had not eaten that day

or the day before. When he was brought to Driscoll Children's Hospital on February 27,

2009, Dr. Harper described him as a "frail, frail appearing child, like a skeleton lying on the

bed." The evidence does not show appellant had a visual impairment which kept her

from seeing I.V.'s physical condition. I.V. could not have looked "fine" on February 26,

2009 when the next day he looked "like a skeleton lying on the bed."

       We do not find conduct of this nature to be of a similar character with the examples

cited by the Williams court as examples of recklessness. All of the cited examples are

acts which create a risk of harm but are not necessarily harmful in and of themselves.

The omissions committed by appellant were of a different character in that her conduct

was directly harmful to the child. The evidence showed it was appellant's intention to

cause serious bodily injury to I.V. No evidence exists that if appellant is guilty, she is

guilty only of the lesser-included offense of recklessly causing bodily injury to a child.

Therefore, we hold the trial court did not err by failing to instruct the jury on the

lesser-included offense of recklessly causing serious bodily injury to a child. Issue one is

overruled.

B. Culpable Mental State

       In her second issue, appellant contends the trial court erred in charging the jury

with respect to the nature of her conduct as well as the result of her conduct.


                                              13
       1. Standard of Review for Charge Error

       "[A]n appellate court's first duty in evaluating a jury charge issue is to determine

whether error exists. Then, if error is found, the appellate court should analyze that error

for harm." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in the

case before us, "no proper objection was made at trial and the accused must claim that

the error was 'fundamental,' he will obtain a reversal only if the error is so egregious and

created such harm that he 'has not had a fair and impartial trial'—in short 'egregious

harm.'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

       2. The Court's Instruction

       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 v. State, 235 S.W.3d

242, 750 (Tex. Crim. App. 2007). In the case before us, appellant was charged with

intentionally or knowingly engaging in conduct that caused serious bodily injury to a child

younger than fifteen years of age. Without objection, the trial court instructed the jury

with the full text of the language set forth in section 6.03(a) of the Texas Penal Code: "A

person acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the conduct

or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (emphasis added). Because

injury to a child is a result-oriented crime, the definition of "intentionally" submitted to the

jury should have focused exclusively on the result of the conduct.




                                              14
       3. Harm Analysis

       Having determined the trial court erred by failing to properly instruct the jury, we

examine the record to determine whether appellant was egregiously harmed. Almanza,

686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be "assayed

in light of the entire jury charge, the state of the evidence, including the contested issues

and weight of the probative evidence, the argument of counsel, and any other relevant

information revealed by the record of the trial as a whole." Id.; see Ngo v. State, 175

S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). "Jury-charge error is egregiously harmful

if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App.

2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). We engage

in this assessment to illuminate the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174. In addition, egregious harm is a difficult standard to meet

and must be determined on a case-by-case basis. See Hutch, 922 S.W.2d at 171.

       In the present case, the application paragraph specific to appellant charged the

jury to find her guilty only if she "intentionally or knowingly by omission cause[d] serious

bodily injury to [I.V.], . . . ." When the facts, as applied to the law in the application

paragraph, point the jury to the appropriate portion of the definitions, no harm results from

the trial court's failure to limit the definition of culpable mental states in the abstract portion

of the charge. Hughes v. State, 897 S.W.2d 285, 296–97 (Tex. Crim. App. 1994); see

also Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Patrick v. State, 906

S.W.2d 481, 492–493 (Tex. Crim. App. 1995). In the present case, the application


                                                15
paragraph applicable to appellant did correctly limit the jury's consideration to a

result-oriented offense in which she intentionally or knowingly caused serious bodily

injury.

          In addition, during guilt-innocence closing argument, appellant's defense counsel

argued that the evidence failed to show appellant did anything to intentionally or

knowingly hurt I.V. and alluded to the State's theory that appellant deprived her son of

food.     Accordingly, both the application paragraph and defense counsel's argument

steered the jury to the correct mental state for a result-oriented offense.

          Finally, appellant's theory of defense throughout the trial, and as explained in final

argument, was that her son's weight loss was not caused by appellant's failure to feed or

care for him, but by other medical conditions, including diabetes and sickle cell anemia.

Accordingly, even if the jury had been confused about the necessary mental state and

thought that it could find appellant guilty if she intentionally or knowingly starved I.V., but

without the intent to cause serious bodily injury, that was not the theory of defense and,

realistically, would not have helped appellant. A child like I.V., who is nearly starved to

death, is a seriously injured child and it strains common sense to believe a jury would

have found appellant intended not to feed or care for the child but failed to find she

thereby intended to, or knew that it would, cause him serious bodily injury.5 Issue two is

overruled.




          5
         "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss of impairment of the function of any bodily
member of organ." TEX. PENAL CODE ANN. § 1.07(a)(46) (West 2011).
                                                    16
                                     III. CONCLUSION

       We affirm the trial court's judgment.




                                                    ROSE VELA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of April, 2012.




                                               17
