Opinion filed July 24, 2014




                                     In The


        Eleventh Court of Appeals
                                  ____________

                              No. 11-12-00180-CR
                                  ____________

                     JOSE RAMON GARCIA, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 441st District Court
                             Midland County, Texas
                         Trial Court Cause No. CR39189

                      MEMORANDUM OPINION
       The jury convicted Jose Ramon Garcia of the offense of recklessly causing
serious bodily injury to a child.    Appellant pleaded true to the enhancement
allegation, and the jury assessed punishment at confinement for twelve years. The
trial court sentenced him accordingly.    Appellant’s only issue on appeal is a
challenge to the sufficiency of the evidence. We affirm.
         Diana Aguirre and Appellant began dating in February 2011, and a few
months later, Aguirre, her four children, and Appellant moved in together. R.W.
was six years old, and he had three younger sisters.        Appellant watched the
children at night while Aguirre worked.        One evening in July, Aguirre saw
Appellant wrestling with R.W., and she told him, “Don’t do that. He is a little boy.
He doesn’t like to wrestle. He has three sisters. Don’t do it anymore.” Appellant
told Aguirre, “You have him spoiled. He needs to become a little boy.” When
Aguirre said that R.W. had been around only girls and did not have a father,
Appellant said, “He needs to learn.” Appellant was 5'10" and weighed about 240
pounds. When Aguirre saw Appellant wrestling with R.W. after telling him to
stop, she “grabbed [her] kids and said [she] was leaving.” But when Appellant
apologized and promised not to do it again, Aguirre decided to stay.
         On a Monday night in September, the girls were asleep and R.W. was awake
but in bed when Aguirre left for work around 9:30 p.m. Then R.W. and Appellant
began wrestling. R.W. said that he was lying facedown on the bed when Appellant
put his knee on the back of R.W.’s thigh and pulled R.W.’s foot until his thigh
bone “popped.” Appellant immediately called an ambulance, and then he called
Aguirre and admitted that he was wrestling with R.W. when his leg popped. R.W.
was taken by ambulance to Midland Memorial Hospital, and Aguirre met them
there.
         Aguirre told Midland Police Officer Sonya Campbell that nothing seemed
“weird” about Appellant’s story because wrestling was a common occurrence in
their home. R.W. told Officer Campbell that he and Appellant wrestled “on a
regular basis,” and when asked if they stopped wrestling when R.W. said to stop,
R.W. said no and stated that “he normally had to cry” before Appellant would stop.
R.W. also said that Appellant told him not to tell Aguirre about the wrestling.



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      Dr. Scott Choi was the treating physician in the emergency room, and he
testified that R.W. suffered a “complete spiral midshaft fracture.” R.W.’s leg was
in traction to reduce the pain while he waited for surgery, where doctors repaired
the broken bone using nuts, bolts, and a metal plate. Once Dr. Choi told her about
R.W.’s injuries, Officer Campbell notified CPS and called Detective Rosie
Rodriguez, who investigated crimes against persons for the Midland Police
Department. After talking to Officer Campbell, Aguirre, and Dr. Choi, Detective
Rodriguez had officers take Appellant to the police station for questioning.
      Appellant told police that he played and wrestled with all four kids regularly.
Appellant said that he was surprised that R.W. was injured this time because he
was applying the same pressure that he usually applied when wrestling. Appellant
said that R.W. was on his back and that Appellant was using his forearm to push
R.W.’s foot toward the opposite shoulder when he heard R.W.’s leg pop. When
asked about R.W.’s other bruises, Appellant said that the bruises on his legs were
from Appellant picking up R.W. by his thighs and holding him upside down. R.W.
also had bruises on his arms, and Appellant said that he had put his knee on R.W.
to hold him down. Appellant also admitted to biting R.W. But Appellant let the
children bite him too. He said that one of the children was the strongest and the
tough one because she did not cry but that another of the children was tough too.
Appellant believed that R.W. was tough sometimes but that he was emotionally
weak. Appellant wanted to make R.W. “rough and tough” to handle bullies at
school.   Appellant was arrested and charged with intentionally or knowingly
causing serious bodily injury to R.W. by breaking his leg.          The jury found
Appellant guilty of the lesser included offense of recklessly causing serious bodily
injury to a child, and this appeal followed.
      In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence to support the jury’s verdict that he recklessly caused serious bodily

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injury to R.W. According to Appellant, it was not reckless to engage in “horse
play.”
         We review the sufficiency of the evidence under the standard set forth in
Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); and Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we examine the evidence
in the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
         A person commits the offense of injury to a child, as charged in this case, if
he recklessly causes serious bodily injury to a child who is fourteen years old or
younger. TEX. PENAL CODE ANN. § 22.04(a)(1), (c)(1) (West Supp. 2013). Injury
to a child is a result-oriented offense. Alvarado v. State, 704 S.W.2d 36, 39 (Tex.
Crim. App. 1985). A person acts recklessly with respect to the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the result will occur. TEX. PENAL CODE ANN. § 6.03(c)
(West 2011). Mental culpability must be inferred from the circumstances, and it
may be inferred from the extent of the injury and relative size of the parties.
Kelley v. State, 187 S.W.3d 761, 763 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); see also Moore v. State, 969 S.W.2d 4, 16 n.5 (Tex. Crim. App. 1998)
(Keller, J., concurring and dissenting) (“The extent of a victim’s injuries is, of
course, a reflection of the strength of a defendant’s attack, and therefore, does
involve the defendant’s conduct.”); Encina v. State, 471 S.W.2d 384, 387 (Tex.
Crim. App. 1971) (comparing an adult to the size of a child to conclude that “[a]ny
violent assault on such a baby may be reasonably expected to cause death”).

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      Recklessness involves “conscious disregard of the risk created by the actor’s
conduct.” Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). “A
person responsible for such ‘conscious risk creation’ that results in serious bodily
injury to a child is ‘criminally responsible if the result would not have occurred but
for his conduct . . . .’” Williams v. State, 235 S.W.3d 742, 755 (Tex. Crim. App.
2007) (quoting TEX. PENAL CODE ANN. § 6.04(a) (West 2011)). To assess the
evidence of recklessness, courts must examine the conduct of the accused to
determine whether:
      (1) the alleged act or omission, viewed objectively at the time of its
          commission, created a “substantial and unjustifiable” risk of the
          type of harm that occurred;

      (2) that risk was of such a magnitude that disregard of it constituted a
           gross deviation from the standard of care that a reasonable person
           would have exercised in the same situation (i.e., it involved an
           “extreme degree of risk, considering the probability and
           magnitude of the potential harm to others”)[;]

      (3) the defendant was consciously aware of that “substantial and
          unjustifiable” risk at the time of the conduct; and

      (4) the defendant consciously disregarded that risk.

Id. at 755–56 (footnote omitted). To determine whether conduct involved “an
extreme degree of risk,” we must look at the conduct itself rather than the harm
that resulted. Id. at 753.
      Appellant characterizes the conduct as “horse play” that accidentally
resulted in a fracture because children have soft bones. According to the State,
Appellant “pinned the child and pulled his leg until it ‘popped.’” While we assess
recklessness by considering the conduct rather than the result, the extent of R.W.’s
injuries show that Appellant’s conduct was more than mere horseplay with an
extreme result.     See Kelley, 187 S.W.3d at 764 (“In determining whether

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appellant’s conduct was reckless, the jury was entitled to consider the extent of the
baby’s injuries, the relative size of a three-month-old baby compared to appellant,
and the expert testimony that a severe trauma was the cause of the baby’s
injuries.”).
       Dr. Choi testified that R.W. had a “complete spiral midshaft fracture” and
that his leg was “completely broken and out of place.” A spiral fracture can occur
when force is applied to the bone in a twisting motion, and Dr. Choi testified that a
spiral femur fracture is a common football injury that occurs when a player is
“going one direction and the tackler is grabbing the other direction.” The same
type of injury resulted from a 240-pound man wrestling with a six-year-old child.
R.W.’s leg was placed in traction to reduce the pain while he awaited surgery
where doctors used nuts, bolts, and a metal plate to repair the bone. Without the
surgery, R.W. would have never walked again. R.W. spent three days in the
hospital, was in a body cast from his chest to his toes for six weeks, and then
required the use of a walker for two weeks. This record reveals conduct that is
beyond mere horseplay.
       To determine whether an act “involves extreme risk or peril 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.”
Williams, 235 S.W.3d at 765. “‘Extreme risk is a function of both the magnitude
and the probability of the anticipated injury[,] . . . the “extreme risk” prong is not
satisfied by a remote possibility of injury or even a high probability of minor harm,
but rather “the likelihood of serious injury[.]”’” Id. (alteration in original) (quoting
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).
       To support his contention that wrestling with R.W. was not reckless conduct,
Appellant argues that he told police exactly what happened and was not trying to
cover up his actions. This evidence shows Appellant’s subjective belief that this

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was not reckless conduct. Whether Appellant’s actions involved an “extreme
degree of risk,” however, depends on whether a reasonable person would engage in
the conduct under the circumstances.      See id.    To assess whether conduct is
reasonable under the circumstances, we must consider the circumstances that, from
Appellant’s viewpoint, existed at the time.
      In the past, Appellant bit R.W.’s fingers and toes and twisted his arms and
legs until the child cried, and Appellant believed that R.W. was “spoiled” from
being raised by his mother and three sisters and “need[ed] to learn.” R.W. was six
years old and weighed about thirty-eight pounds. Appellant weighed 240 lbs.
Aguirre had told Appellant not to wrestle with R.W. Appellant told R.W. not to
tell Aguirre about the wrestling. R.W. said that Appellant placed him facedown on
the bed, put his knee on the back of R.W.’s thigh, and pulled on R.W.’s foot until
his leg “popped.” Appellant said that R.W. was on his back and that Appellant
used his forearm to push R.W.’s foot toward his opposite shoulder until it
“popped.” Doctors found a bite mark and bruising on R.W.’s chest and arms.
When wrestling on prior occasions, Appellant twisted R.W.’s arms behind his
back, twisted his legs, and bit the child’s fingers and toes. R.W. testified that he
“normally had to cry” before Appellant would stop.
      Viewing the evidence in the light most favorable to the verdict and
considering the facts objectively under these particular circumstances, the evidence
supports a finding that Appellant was aware of but consciously disregarded a
substantial and unjustifiable risk that the result would occur and that Appellant’s
actions involved “an extreme degree of risk” because of the probability that this
type of harm would result. See id. at 769. We must conclude that a rational jury
could have found beyond a reasonable doubt that Appellant recklessly caused
bodily injury to R.W. and that the evidence is sufficient to sustain Appellant’s
conviction. Appellant’s sole issue is overruled.

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      We affirm the judgment of the trial court.



                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


July 24, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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