           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. PD-1189-13



                       NILDA ILIANA RODRIGUEZ, Appellant

                                              v.

                                 THE STATE OF TEXAS

                  ON APPELLANT’S MOTION FOR REHEARING
                    FROM THE THIRD COURT OF APPEALS
                             BELL COUNTY

              M EYERS, J., delivered the opinion of the unanimous Court.

                                       OPINION

       We granted Appellant’s motion for rehearing in order to clarify our order that the trial

court reform Appellant’s conviction from felony murder to injury of a child and conduct a

new punishment hearing based on the reformed conviction. Appellant argues that remanding

the case for an entirely new trial, rather than reforming the conviction and conducting a new

punishment hearing, is the proper disposition. We agree.

       Appellant was charged with felony murder with injury to a child as the underlying
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offense. We determined that the evidence was insufficient to support the felony murder

conviction, but that the jury necessarily found her guilty of the lesser-included offense of

injury to a child. However, the indictment stated that she “did then and there intentionally,

knowingly, recklessly and with criminal negligence commit and attempt to commit a felony,

namely injury to a child.” The application paragraph of the jury charge included each of these

mental states in the disjunctive, and the court defined each one. Then, when Appellant was

convicted, the jury entered a general verdict. Therefore, there is no way to know whether the

jury found that Appellant acted intentionally, knowingly, recklessly, or with criminal

negligence in the starvation of her child. This is significant because the injury to a child

offense contains varying penalties based on the culpable mental state of the defendant, and

without a determination on mental state, the jury will have no guidance on the applicable

punishment range. T EX. P ENAL C ODE § 22.04(e)-(g). Therefore, simply reforming

Appellant’s conviction is not a workable resolution in this case.

       In Thornton v. State, we held that:

        [I]n deciding whether to reform the judgment to reflect a conviction for a
        lesser-included offense, that court must answer two questions: 1) in the course
        of convicting the appellant of the greater offense, must the jury have
        necessarily found every element necessary to convict the appellant for the
        lesser-included offense; and 2) conducting an evidentiary sufficiency analysis
        as though the appellant had been convicted of the lesser-included offense at
        trial, is there sufficient evidence to support a conviction for that offense? If the
        answer to either of these questions is no, the court of appeals is not authorized
        to reform the judgment. But if the answers to both are yes, the court is
        authorized--indeed required--to avoid the “unjust” result of an outright
        acquittal by reforming the judgment to reflect a conviction for the lesser-
        included offense.
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425 S.W.3d 289, 300 (Tex. Crim. App. 2014) (footnote omitted). In deciding Thornton,

however, we did not consider the situation in this case, where there are multiple lesser-

included offenses that the court of appeals could reform the appellant’s conviction to. We

made clear in Thornton that reformation is necessary where the jury found every element of

the lesser-included offense and the evidence was sufficient to support a conviction on that

offense in order to avoid an unjust acquittal. However, we did not intend for mandatory

reformation to extend to circumstances where there are multiple lesser-included offenses that

meet the criteria for reformation, or where we have no way to determine which degree of the

lesser-included offense the jury found the appellant guilty of, as in Appellant’s case.

Therefore, we are remanding Appellant’s case to the trial court for a new trial.1

       The judgment of the court of appeals is reversed, and the case is remanded to the trial

court for a new trial on the lesser-included offense of injury to a child by omission.




Delivered: February 25, 2015

Publish




       1
         Because it is not an offense to cause injury to a child by omission with criminal
negligence, it will have to be shown that Appellant acted intentionally, knowingly, or recklessly
in the death of her child. TEX . PENAL CODE § 22.04(a).
