Wortham v. State

• Decision Date: 30 October 2013
• Docket Number: No. PD–0765–12.,PD–0765–12.
• Citation: 412 S.W.3d 552
• Parties: Ronald Eugene WORTHAM, Jr., Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

412 S.W.3d 552

Ronald Eugene WORTHAM, Jr., Appellant

v.The STATE of Texas.

No. PD–0765–12.

Court of Criminal Appeals of Texas.

Oct. 30, 2013.

Dan P. Bradley, Houston, TX, for Appellant.

Richard N. Countiss, Coldspring, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

KEASLER, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, COCHRAN, and ALCALA, J.J., joined.

Ronald Wortham was convicted of injury to a child. The Ninth Court of Appeals affirmed the judgment, holding that the trial judge did not err in denying Wortham's request for a jury instruction on the lesser-included offenses of reckless and criminally negligent injury to a child.¹ Because the court of appeals misapplied the two-part analysis used to determine the availability of lesser-included offense instructions, we reverse its judgment.

BACKGROUND

Ronald Wortham lived with C.G. and C.G.'s two-year-old daughter, C.B. On March 10, 2010, Wortham brought C.B. to the emergency room at a hospital in Cleveland, Texas. C.B. was in cardiac arrest, had no respiration, pulse, or blood pressure, and was in a deep coma. Doctors managed to restore C.B.'s breathing, but a CAT scan revealed that she had an acute subdural hematoma, hypoxic ischemia, and intraventricular hemorrhaging. Wortham did not dispute that he had been alone with C.B. during the period of time in which the injuries occurred. He was arrested and charged with injury to a child, a first-degree felony.² The indictment alleged that Wortham, “on or about the 10th day of March, 2010, ... did then and there intentionally and knowingly cause serious bodily injury to [C.B.], a child 14 years of age or younger, by shaking said [C.B.] and restricting her airflow causing suffocation.”

At trial, Texas State Trooper Christopher Richmond, Deputy Jason Bell, and Detective Darryl LaMott each testified regarding Wortham's explanation about how C.B.'s injuries had occurred. According to Wortham, C.B. had been sleeping. When Wortham went to check on her, he discovered that she had a plastic bag on her face and that she was not breathing. Wortham then decided to take C.B. to the hospital. Detective LaMott's testimony went further: he related that Wortham said that when Wortham removed the bag from C.B.'s face, he tapped her and shook her in an attempt to revive her. Only when this was unsuccessful did Wortham take C.B. to the hospital.

Multiple witnesses for the State testified that C.B.'s injuries were indicative of non-accidental trauma. Dr. Sunil Kumar Saraf, the emergency-room doctor who initially treated C.B., testified that a subdural hematoma could not be caused by suffocation, either by a plastic bag covering the face or otherwise. Dr. George Boutros, a radiologist, also agreed that C.B.'s injuries could not have been caused by a plastic bag blocking her airway. Finally, Dr. Sheela Lahoti, a professor of pediatrics, testified that the blood found in C.B.'s brain could not have been caused by suffocation. All three doctors indicated that C.B.'s injuries were consistent with shaken baby syndrome, which occurs when a child is shaken vigorously with rapid acceleration.

At the charge conference, Wortham's trial counsel requested a jury instruction on the lesser-included offenses of reckless injury to a child and criminally negligent injury to a child. The trial judge denied Wortham's requests as to both recklessness and criminal negligence. Subsequently, the jury returned a verdict of guilty and assessed a punishment of forty years' imprisonment.

Wortham appealed, arguing that the judge erred in denying his request for a lesser-included offense instruction. Specifically, he stated that he had been entitled to the lesser-included offense instruction because the evidence indicated that while he had shaken C.B., he had done so in an attempt to revive her.³ The Ninth Court of Appeals upheld the decision of the trial court, stating that a judge need not instruct a jury on a lesser-included offense when the conduct establishing the lesser offense is not included within the facts required to prove the charged offense.⁴ The court of appeals also concluded that based on the facts of the record, no rational jury could have found that Wortham recklessly or negligently caused injury to C.B. ⁵ We granted review to determine whether the court of appeals erred when it upheld the judge's denial of Wortham's requested lesser-included offenses charge.

LESSER–INCLUDED OFFENSE INSTRUCTION

Hall v. State sets forth the two-part analysis used to determine whether a defendant is entitled to a jury instruction on a lesser-included offense.⁶ Using the “cognate pleadings” approach, an appellate court must first consider whether the offense contained in the requested instruction is a lesser-included offense of the charged offense.⁷ If it is, the court must then determine whether the evidence admitted at trial supports the instruction.⁸

We now turn to the first step in the analysis: whether the offense contained in the requested instruction is a lesser-included offense of the charged offense. Whether an offense is a lesser-included offense is governed by Code of Criminal Procedure Article 37.09, which reads in pertinent part:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; [or]

....

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.... ⁹

This is a question of law. “[W]e do not consider the evidence that was presented at trial. Instead, we consider only the statutory elements of [the offense] as they were modified by the particular allegations of the indictment.... We then compare them with the elements of the [requested] lesser offense....” ¹⁰ Thus, an offense is a lesser-included offense if the indictment alleges all the elements of the lesser-included offense, or if the indictment alleges elements plus facts from which all the elements of the lesser-included offense may be deduced.¹¹

In this case, the indictment against Wortham for injury to a child contained the following elements:

(1) Wortham

(2) intentionally or knowingly

(3) caused serious bodily injury

(4) to a child 14 years of age or younger

(5) by shaking and restricting her airflow, causing suffocation.

An individual may commit the offense of injury to a child either by act or by omission.¹² However, for the purposes of this analysis, an appellate court must consider only the elements of the offense as they were modified by the particular allegations of the indictment.¹³ Here, the indictment did not charge Wortham with injury to a child by omission. Therefore, we compare the elements of the offense as modified by the indictment to the elements of reckless and criminally negligent injury to a child by committing an act—not by omission—as follows:

(1) a person commits an offense if he

(2) recklessly or with criminal negligence by act

(3) causes serious bodily injury

(4) to a child.¹⁴

Because the indictment alleges all of the elements of the requested lesser-included offenses, reckless and criminally negligent injury to a child by act are lesser-included offenses of intentional and knowing injury to a child by act. Furthermore, Article 37.09(3) states that a lesser-included offense differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.¹⁵ “Reckless” and “criminal negligence” are less culpable mental states than “intentional” and “knowing.” ¹⁶ Thus, by definition, reckless and criminally negligent injury to a child by act are lesser-included offenses of knowing or intentional injury to a child by act.¹⁷

The court of appeals held that Wortham was not entitled to his requested jury instruction because “[a] trial court need not instruct a jury on a lesser-included offense when the conduct establishing the lesser offense is not included within the facts required to prove the charged offense.” ¹⁸ The court of appeals pointed out that Wortham's theory of the case was that C.B. was suffocated by a bag and that Wortham shook her in an attempt to revive her, while the State's evidence established that C.B. was not suffocated by a bag, but went into a coma as a result of being shaken. ¹⁹ Thus, in the court of appeals' view, the conduct constituting the offense charged was different from that constituting the offense of the requested instruction.

In determining that reckless and criminally negligent injury to a child were not valid lesser-included offenses in this case, the court of appeals relied on Thompson v. State.²⁰ In Thompson, the trial judge denied a request for an instruction on the lesser-included offense of reckless bodily injury to a child, because the appellant's theory of the case was different from the elements alleged in the indictment.²¹ The indictment in Thompson alleged that appellant had intentionally or knowingly caused bodily injury to a child by holding her feet in hot water.²² However, the appellant argued that he was entitled to a reckless injury to a child instruction because evidence had been presented indicating that appellant had placed the child on the side of the tub and that she burned her feet as the water filled the tub.²³ The court in Thompson held that because the conduct supporting a charge of recklessness did not match the conduct alleged in the indictment—specifically, that appellant had held the child's feet under the hot water rather than allowing the child's feet to become burned as the water rose—recklessly injuring the child was not a lesser-included offense of intentionally or knowingly doing so, and thus the court was not required to give the instruction.²⁴

There are several reasons why the court of appeals' reliance on Thompson in this case is misplaced. First, the facts of Thompson are...