      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00685-CR




                                     Jose Ybarra, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-05-900779, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Jose Ybarra guilty of knowingly causing serious bodily injury

to a child and assessed a punishment of fifty years in prison and a $10,000 fine. See Tex. Penal Code

Ann. § 22.04 (West Supp. 2007). Appellant contends that the evidence is factually insufficient to

sustain the guilty verdict. He also challenges the finding that he used a deadly weapon during the

commission of the offense and urges that the trial court should have instructed the jury on the

lesser included offense of reckless injury to a child. We will overrule these contentions and

affirm the conviction.

               On the morning of June 11, 2005, appellant was left in sole custody of his six-week-

old daughter while his wife was at work and his mother was visiting relatives. When his mother

returned home one-and-a-half hours later, appellant was standing on the porch holding his daughter,

who was pale and appeared to be having a seizure. The child was taken to the hospital where she
was found to have a fractured skull and brain trauma. Her arm, leg, collar bone, and several ribs

were also broken. She had retinal and pulmonary hemorrhages. The skull and brain injuries had

been inflicted within hours of the child’s arrival at the hospital, but not all of the injuries were fresh;

there were some healing fractures. The pediatric intensive care physician who treated the child

testified that it was one of the worst shaken baby cases she had ever seen: “She was shaken

repeatedly and I suspect very hard from the sides, enough to break ribs and bruise her lungs. We

know it wasn’t the first time it happened because she had healing rib fractures. I suspect her head

probably bumped against something soft, some other kind of blunt object. This is severe, extreme

shaken baby.” The treating pediatric ophthalmologist testified that the child had “probably the worst

retinal hemorrhages I have seen of someone who lived.” As a result of her injuries, the child is

legally blind, suffers from seizures, and is unlikely to ever walk or talk.

                Appellant concedes that the evidence, when viewed in the light most favorable to the

verdict, is legally sufficient to sustain his conviction. See Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (legal sufficiency standard of review). In his first point of error, however,

appellant argues that when all the evidence is viewed neutrally, the great weight and preponderance

of the evidence shows that he did not knowingly injure his daughter. See Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency standard of review). Appellant

argues that the greater weight of the evidence demonstrates that he recklessly inflicted the injuries.

                Injury to a child is a “result of conduct” offense; that is, the actor’s culpable mental

state must relate to the injury resulting from his conduct rather than to the conduct itself or the

circumstances of that conduct. Alvarado v. State, 704 S.W.2d 36, 38-39 (Tex. Crim. App. 1986)



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(op. on reh’g). A person acts knowingly with respect to a result of his conduct when he is aware that

his conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b) (West 2003).

A person acts recklessly with respect to a result of his conduct when he is aware of but consciously

disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). The trial court

authorized appellant’s conviction if the jury found that he knowingly caused serious bodily injury

to his child by shaking her with his hands or by causing her head to strike an unknown object.

Although the court also instructed the jury on the lesser included offense of negligent serious bodily

injury to a child, the charge did not include an instruction on the lesser included offense of

reckless injury.1

                 Appellant was nineteen years old, and this was his first child. He had learning

disabilities and most of his schooling had been in special education classes. Appellant’s wife

testified that he was a loving and attentive father and had always been eager to help with the baby.

He was, however, inexperienced and uncomfortable caring for the child. She testified that he would

sometimes call for her help even when she took a short shower. The morning in question was the

first time he had cared for the child alone. Appellant’s wife said that she had never seen him show

anger toward the child, but appellant’s mother acknowledged telling detectives that she thought

appellant needed counseling for his anger.

                 Appellant gave several explanations for the child’s injuries. He first said that the

child was injured when a cat had jumped on her. On another occasion, appellant said that the

injuries must have happened when he propped the child up for a photograph and she fell backward.


   1
       This is the subject of appellant’s second point of error.

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Later, in a conversation with his mother and in videotaped statements to the police, appellant said

that the baby had fallen from the couch. This was also the explanation appellant offered in his trial

testimony. He testified that he had placed his daughter on the couch to change her diaper after she

awoke from a nap. While he was throwing away the soiled diaper, he heard a loud sound from the

living room. He found the child lying on the floor, where her head had struck a metal air

conditioning grate. Appellant testified that the baby was unresponsive, so he shook her to awaken

her. Appellant said that he shook the infant more or less continuously for ten to fifteen minutes,

until his mother returned home. Appellant said, “I was shaking her and shaking her and shaking her,

looking at her and crying and hugging her a little bit and going back shaking her and shaking her and

shaking her.” He testified that he would not have shaken the child in this manner if he had known

it would harm her. He said that he had been scared; that he had “snapped” and “blanked out.”

               Appellant admitted that he had consistently denied shaking the child in his interviews

with the police. During one of the videotaped statements, appellant told the detective: “I know I

used, like I said, I used to get frustrated with her, nervous and stuff like that, but coming into my

mind like that, shaking the baby, no. Cause I knew, I know, whenever you shake the baby,

something bad was gonna happen. That something bad could happen when you shake the baby, or

throw her, just like that. And me, my own blood, doing that to my own baby, no.”

               Although there is evidence from which the jury could have concluded that appellant

was a well-meaning, albeit inexperienced and inept, father who did not knowingly injure his

daughter, there is also a significant amount of evidence that appellant understood that his shaking

of the baby was reasonably likely to result in serious bodily injury. In his statement to the officer



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quoted above, appellant acknowledged knowing that “something bad could happen when you shake

the baby.” Moreover, the very enormity of the injuries argues in favor of a finding that appellant

acted knowingly. As one of the doctors testified, the infant had been “[squeezed] very, very hard and

[rocked] back and forth repeatedly. Nothing you would do in play, nothing you would do to wake

a baby up, a horrendous anger force.” It was not manifestly unjust for the jury to agree with the

doctor’s opinion that “a reasonable person would know” that such actions would cause serious bodily

injury. Giving the verdict the deference it is due, we conclude that the jury’s conclusion that

appellant knowingly injured his daughter was not against the great weight and preponderance of the

evidence. Point of error one is overruled.

               In his second point of error, appellant contends that he was egregiously harmed by

the trial court’s jury charge because it did not include an instruction on the lesser included offense

of reckless serious bodily injury to a child. As appellant admits, however, he did not ask for such

an instruction or object to its omission. As a general rule, a defensive issue is not applicable to the

case—and thus its omission from the jury charge is not error—unless the defendant timely requests

the issue or objects to its omission. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); see

also Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000). Even before Posey, the court of

criminal appeals had held that a defendant who fails to request a lesser included offense instruction

may not complain of its absence on appeal. Thomas v. State, 701 S.W.2d 653, 656 (Tex. Crim. App.

1985). Other courts of appeals have reached the same conclusion. See Garza v. State, 974 S.W.2d

251, 257 (Tex. App.—San Antonio 1998, pet. ref’d); Hammond v. State, 942 S.W.2d 703, 709

(Tex. App.—Houston [14th Dist.] 1997, no pet.). It is even possible that appellant’s failure to



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request an instruction on reckless injury to a child was a considered trial strategy. See Ex parte

White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004); Collier v. State, 999 S.W.2d 779, 782

(Tex. Crim. App. 1999). For all of these reasons, point of error two was not preserved for appeal

and is overruled.

               Appellant’s third and fourth points of error are related. In response to a special issue,

the jury found that appellant used a hand as a deadly weapon during the commission of the offense,

and the trial court’s judgment reflects this affirmative finding. See Tex. Code Crim. Proc. Ann. art.

42.12, § 3g(a)(2) (West Supp. 2007). In point of error three, appellant contends that the evidence

does not support this finding because section 3g(a)(2) “is a general statute that cannot apply absent

proof of an additional fact beyond the conduct” necessary for conviction. In point of error four,

appellant contends that the evidence does not support the affirmative finding because the application

of section 3g(a)(2) under the circumstances of this case produces an absurd result that the legislature

could not have intended. In other words, appellant argues that he did not use his hands as a deadly

weapon under a proper construction of section 3g(a)(2).

               Appellant did not object to the submission of the special issue or otherwise advance

these arguments in the trial court. Thus, nothing was preserved for appeal. See Tex. R. App. P. 33.1.

His arguments fail in any case.

               Appellant asserts that section 22.04(a)(1) and article 42.12, section 3g(a)(2) are in pari

materia, that is, they concern the same subject or have the same object or purpose. See In re J.M.R.,

149 S.W.3d 289 (Tex. App.—Austin 2004, no pet.). Statutes that are in pari materia must be

construed together and, if possible, conflicts between the statutes should be harmonized. Id. If there



                                                   6
is an irreconcilable conflict, the specific statute controls over the more general statute. Id. Appellant

argues that sections 22.04(a)(1) and 3g(a)(2) irreconcilably conflict when, as in this case, the actor

uses nothing but his bare hands to inflict a serious bodily injury to a child. He contends that in such

a case, section 22.04(a)(1) must control and a section 3g(a)(2) affirmative finding cannot be added

to the judgment. To hold otherwise, argues appellant, would mean that every serious injury to a

child case would automatically qualify for a deadly weapon finding, which is a result appellant

believes the legislature could not have intended.

                Contrary to appellant’s argument, section 22.04(a)(1) and section 3g(a)(2) are not in

pari materia. The statutes are not found in the same legislative act. The statutes have different

objectives: the former is designed to protect children from serious bodily injury while the latter is

designed to deter the use of a deadly weapon in the commission of any felony offense. The statues

do not require the same proof: section 22.04(a)(1) requires proof that the child suffered a serious

bodily injury, but the defendant need not cause or even intend to cause serious bodily injury in

order to justify a deadly weapon finding pursuant to section 3g(a)(2). See Johnston v. State,

150 S.W.3d 630, 638 (Tex. App.—Austin 2004, no pet.).              The statutes do not have different

penalties: an affirmative finding pursuant to section 3g(a)(2) does not alter the punishment range

applicable to an offense under section 22.04(a)(1). See Martinez v. State, 883 S.W.2d 771, 774

(Tex. App.—Fort Worth 1994, pet. ref’d).2



   2
     Under the applicable statutes as they read at the time of the offense, the affirmative finding in
the judgment will delay appellant’s eligibility for parole, but it will have no effect on his eligibility
for mandatory supervision. See Act of May 8, 2007, 75th Leg., R.S., ch. 165, § 12.01, 1997
Tex. Gen. Laws 327, 425 (amended 2007) (current version at Tex. Gov’t Code Ann. § 508.145(d)
(West Supp. 2007)) (parole); Tex. Gov’t Code Ann. § 508.149(a)(9) (West Supp. 2007)
(mandatory supervision).

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               A deadly weapon includes anything that in the manner of its use or intended use is

capable of causing serious bodily injury or death. Tex. Penal Code Ann. § 1.07(a)(17)(B)

(West Supp. 2007). Under this definition, a person’s hand can be a deadly weapon if it is used in

the requisite manner. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1984). Moreover, the

application of article 42.12, section 3g(a)(2) is not limited to offenses that do not otherwise require

the use of a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995). Thus,

when appellant used his hands to inflict what were unquestionably serious bodily injuries to his

infant daughter, he used his hands as a deadly weapon. An affirmative finding to that effect was

appropriate even though it might have been impossible under the circumstances for appellant to have

caused serious bodily injury to the child without using his hands as a deadly weapon. Points of error

three and four are overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: June 18, 2008

Do Not Publish




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