### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00086- CR

Jose Lopez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 200 9-2 61, H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The appellant, J ose L opez, was indicted for intentionally and knowing ly causing seri o u s b o d i l y injury to a child by striking him with a vase. See Tex. Penal Code § 22.04(a) (1) (ser ious bodily injury to a child), (e) (off ense under Subs ection (a) (1) is first-deg ree felony when conduct is committed intentionally or knowing ly ). A jury found L opez g uilty and sentenc ed him to
ten y ear s in prison. I n three issues, L opez arg ues that (1) the evidenc e is insufficient to support the jury ’s verdic t of g uilt, (2) the trial court did not have authority to enter a judgme nt for the first-deg ree felo n y of serious bodily injury to a child beca use of err ors i n the charg e and the verdict form, and (3) the trial court then err ed by char g ing the jury for the r ang e of punishment applicable to a firstdeg ree felony . We will affirm the c onviction.BACK GR OUND J .S., a six -y ear -old boy , and his g randmother , Maria Sanc hez, wer e visiting L opez, Sanchez’s boy friend, for a few day s at L opez’s home in L ockhar t in ear ly J uly 2009. J .S. and 1 Sanchez lived in San Antonio at that time. Sanchez testified that on the evening of J uly 6, she and
L opez arg ued, and during the arg ument, L opez picked up a tequila b o t t l e b eing used as a vase,

curse d, and threw the bottle at J .S., who was ly ing on the floor near by

. The tequila bottle hit J .S. in the mouth. J .S. beg an cry ing and scre aming , and his mouth was bleeding profuse ly

. Sanchez took J .S. into the bathroom to run water over his mouth. She put a towel over his mouth and took him back to the be droom, but the bleeding did not stop.

Sanchez testified that she was unable to leave the house with J .S. to g et medical help that night beca

use L opez, who had been drinki n g, h ad l ai n acr oss the threshold of the room and passed out, preve nting her from opening the bedroom door to leave the room. I n addition, Sanchez, who i s an undocumented i mmigra nt, testified t hat L opez had tol d her that if she called the pol ice, he was g oing to c all immigra tion a nd have her de ported. Sanchez, who did not have a car , left the next day with J .S. to g et help. She walked until she found a churc h with a thrift store inside. Two
women, who wer e strang ers to Sanchez, drove her and J .S. to San Antonio beca use Sanchez wanted to take him to a hospital in the city wher e they

lived. J. S. w a s h o s p it a li ze d f

o r th r e e d a y s . D r . V iv ia

n Ca r li n , o n e o f J. S. ’ s tr e a

ti n g p h y s ic ia

n s
at the hospital, te stified that afte r J .S. a rrived at the hospital on the night of J uly 7, he immediately

rec eived intravenous antibiotics and fluids. A forensic nurse examiner, Edwar d Russell, testified

Sanchez is raising J .S. as her son. He r daug hter is J .S.’s biologica l mother. 1 2that shortly befor e 1:00 a .m. on J uly 8, he conducte d a fore nsic medical exam on J .S., whic h is the

hospital’s standard proce dure in case s involving phy sical abuse. As p ar t o f the fore nsic exam, Russell interviewe d J .S. separ ately from Sanchez, conducte d a full phy sical exam, and documented J .S.’s injuries both in writing and with photogr aphs. He also interviewe d Sanchez. Russell provided the information he c ollected to both the eme rg ency room phy sician and the fore nsic phy sician. Dr. Nanc y Kellog g , who is board- ce rtified in pediatric s and child abuse, revie wed Russell’s repor

t and the photogr aphs of J .S.’s injuries. As medical direc tor of the preve ntive-nurse
prog ram at the hospital, Dr. Kellog g reg ularly revie ws the information collecte d by the fore nsic

nurses during their patient exams to deter mine the likelihood that the documented injuries are rela ted
to child abuse. She testified that she h as re v i ew ed t housands of case s and she has testified many times as an expert witness on child abuse. Dr. Kellog g testified that two of J .S.’s bottom teeth had been knocked out of his g um, and he had multipl e cuts and abra sions on his upper lip. One of J .S.’s lower teeth had become jammed so far up into his upper lip that it was only visible when the lip was

x -ra y ed. Dr. Ke llogg opined that J .S.’s injury was “ an abusive inflicted injury and it was seve re.” Dr. Kellog g testified that J .S.’s injury was not consistent with a normal childhood fall at that ag e nor

was it the ty

pe of injury

she would expect to se e from an object falling off a shelf the heig ht of the

one in L opez’s room, even acc ounting for the weig ht of the tequila bottle if it was filled with water and flower s. I n her medical opinion, more forc e was require d to inflict J .S.’s injury —the bottle had to have be en “thr own har d.”

Dr. Carlin testified that J .S. had plastic surg ery t o remove the tooth and close the larg est lace ration on his lip. J .S. ha s scar ring at the surg ery site, and it is possible the functionality

3of his perma nent teeth will be impaired. Dr. Kellog g testified that scar ring that rema ined afte r a y ear and a half would not heal itself. Sanchez testified that J .S.’s g ums continue to hurt, he has constant heada ches, and he is fre quently afr aid. Both Dr. Carli n an d Dr. Kellog g opined that J .S.’s injury constitutes “ser ious bodily injury ” as de fined by

the Penal C ode. See Tex. Penal C ode § 1.07(46) (d efining “ser ious bodily injury ” as “bodily injury that cre ates a substantial risk of dea t h o r t h at

cause s death, serious perma nent disfigur ement, or protrac ted loss or impairment of the function of
any bodily member or

org an”)

. Russell had contac ted the L ockhar t Police Depa

rtment to notify them of the possible crime. The serg eant who took the call contac ted the San Antonio Police Depa rtment and asked for assistance with obtaining statements and e v id e n c e . A Sa n A n to n io Police Depa

rtment detec tive went
to the hospital and took photogr aphs and collecte d the tequil a b o t t l e, which Sanchez had broug ht with her. A differ ent police office r, Onofre Serna, went to the hospital to speak with Sanchez. He observe d J .S.’s injuries and wrote up a re port, which wa s sent to the L ockhar t Poli ce D epar

tment. A L ockhar

t Police Depa

rtment detec tive, Mike Nichols, investiga ted the case . After he located Sanchez, he set up a fore nsic interview for J .S. at a child-advoc acy cente r in San Marc os. Detec tive Nichols testified that it is the D e p a r tm e nt’s proce dure to use a fore nsic interviewe r any time that it is nece ssary to interview a child for a case . The fore nsic intervi ewe r, Melissa Rodrigue z, conducte d an interview with J.S. in Spanish. During the interview, J .S. told her about how he had been injured. Nichols interviewe d Sanchez on the s ame day

. Ba sed on those interviews, Nichols obtained a w arr ant for L opez’s arr est for the first-deg ree felony of ser ious bodily

injury to a child.
L opez was arr ested afte r he repor ted to the district cler

k’s office

. He came to the office to deny that

4he was t h e p er s o n named in the war rant, but he eventua lly admitted to the police that he was the
person na med.
L opez was indicted for “intentionally and knowing ly , by act, caus[ing] serious bodily injury to [J .S.] , a child

. . . b y t h en and there st riking the [ child] with

. . . a vase.” The jury found
L opez guilty

and sente nced him to ten y ear s in prison.

DISCUSSIO N
Sufficiency of

evide nce to support conviction I n his fi rst issue, L opez arg ues that the evidenc e is insufficient to support the conviction, asser

ting that the J

. S .’s testimony about the incident was inconsistent, and this inconsistency means that there is only so m e evidenc e to support the conviction, not sufficie nt evidenc e. L opez contends that beca use J .S. testified that he was injured when the tequila bottle fell

on him and also testified that L opez threw the bottle at hi m , t h e j u ry ’s fi nding of g uilt is not a rational finding

.

Due p ro cess require s the State to prove bey ond a rea sonable doubt ever y element of the crime char g ed. Jack son v. Virgini a , 443 U.S. 307, 316 (1979); see also Brooks v. State , 3 2 3 S

. W

. 3 d 893, 912 (Tex. Crim. App. 2010) (dete rmining that Jack son standard “is the o n l y standard that a revie wing co u rt should apply ” when examining sufficie ncy of evidenc e). When considering the sufficie ncy of the evidenc e, we view all the evidenc e in the light most favor able to the verdic t to deter

mine whether “any rational trier of fac t c ould ha ve found the essential elements of the crime bey ond a rea sonable doubt.” Jack son , 4 4 3 U.S. at 319; Brooks , 323 S.W .3d at 899.

5Under this standard, it is the jury ’s duty “to resolve conflicts in the testimony , to weig h the evidenc e,

and to draw rea sonable inferenc es from basic facts t o ultimate fac ts,” and we assume that the jury did so in a manner that supports the verdic t. Jack son , 443 U.S. at 319; Laster v. State , 275 S.W .3d 512, 522 (Tex. Crim. App. 2009). Whe n an aly zing sufficie ncy , we then “dete rmine whether the

nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e whe n viewed in the lig ht most favorable to the verdic t.” Hooper v. State , 214 S.W .3d 9, 16-17 (Te x . Crim. App. 2007).

We assess both direc t and circ umstantial evidenc e under this same standard. Laster , 275 S.W .3d at 517-18. We must defe r to the jury ’s deter mination of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Brooks , 323 S.W .3d at 899. We presume that the fac tfinder resolved any conflicting infere nces supported by the rec ord in favor of the prosec ution and there fore defe r to tha t de termination. Clayton v

. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). “Our role on appea l is restric ted to g uarding ag ainst the rar e occur renc e when a fac tfinder does not act rationally [; ] . . . . we will uphold the verdict unless a rational fac tfinder must have had reasonable doubt as to any

essential ele ment.” Laster , 275 S.W .3d at 517-18.
I n a sufficie ncy revie w, the essential elements of the off en s e ar e those of a hy pothetically corr ect jury char g e for the case —one that acc urate ly sets out the law and adequately descr ibes the offe nse for which the defe ndant was tried without incre asing the St at e’ s b u rd en of proof or restric ting the State’s theories of liability

. Hooper , 214 S.W .3d at 14. To find L opez g uilty of serious b o d i l y i n

j u ry t o a child, the jury must have deter mined bey ond a rea sonable doubt that
L opez intentionally or knowi n gl y , b y ac t , cause d serious bodily injury to the child, J .S. See Tex.

6Penal Code § 22.04(a )(1)

. I n this case, the only element that L opez contends wa s not proved by a

rea sonable doubt is whether he committed the ac t—i.e., threw the tequila bottle—at J .S. L o p ez focuses on a portion of J .S.’s testimony in which J .S. ag ree d with defen s e counsel when counsel asked if he was injured when the bottle fel l fr o m the shelf and struck him i n t h e mouth. Def

ense counsel had previously attempted to establish whether J .S. reme mber ed his interview with Rodrigue z by asking J .S. whether he re membere d talking to any one, especially “a lady ,” about what happene d on the night he was injured. J .S. testified that he did not reme mber talking to any one about the events of that night other than his mother, but defe nse counsel continued asking J .S. about whether he reme mbere d telling the lady about particu l ar d et ails of that night. The full portion of the testimony relied on by L opez to show inconsistency in J .S.’s testimony rea ds as follows:
Q. Okay . [J .S.] , wer e y ou ly ing on the floor? A. Yes. Q. And did the bottle fall off the shelf a

bove the TV ? A. Yes. Q. And did it strike y ou in y our mouth? A. Yes. Q. And did that injure y ou? A. Yes. Q. Okay . And y ou’ve te stified that someone thre w this bottl e at y ou? A. Yes.

7Q. That didn’t happe n, did it?

A. No. Q. Okay . Somebody told y ou to say

that, didn’t they ? A. No. Q. Then why

did y ou say

that someone thre w this bottl e at y ou? A. Yes, somebody

did. Q. Huh? Ex cuse me ? A. Somebody

throw the bottle at me. THE C OURT: “Somebody threw the bottle at m e”? I s that what y ou said, sir? THE WI TNESS: (Nods affir matively .)

Def ense counsel further tried to establish that the bottle ac ci d en t al l y fell instead of being thrown with this series of follow-up que stions:
Q. (B y [defense counsel]) I s what y ou’re say ing, that the bottle fell off the shelf above the TV and hit y ou in the mouth while y ou wer e ly ing on the floor? A. Yes. Q. And did that happen w hen [L opez] was re aching for the r emote? A. Yes – I

mean, no. Q. Okay . I know – is it y es or is it no, [J .S.] ? A. No. Q. Okay . Do y ou reme mber telling someone that that’s w hat happe ned?

8A. No.

Q. Okay . And did y ou tell someone that that’s wha t happene d? A. No.

I n a later portion of J .S.’s testimony , defe nse counsel revisited the subject of whether the bottle had been thr own at J.S .:
Q. (B y [defense counsel]) Do y ou reme mber telling someone that the bottle was thrown at y ou like this (indicating) ? A. Uh-uh. Q. You neve r told any one that? A. Not that way

.

. . . . Q. L ike that (indica

ting) ? A. Uh-huh. Q. Kind of like a f

ootball, rig ht? And when the bottle was thrown, do y ou reme mber how it struck y ou? A. Yes. Q. And how wa s that? A. L ike an a

rrow. Q. Ex cuse me ? A. I don’t know. Q. You don’t know? So y ou don’t know how it hit y ou?

9A. I know how it hit me.

Q. Okay . How did it hit y ou? A. Har d.

L opez arg ues on appea l tha t the inconsistency in J.S.’s testimony rende rs the jury ’s finding in this case not rational. He equate s this case to the hy pothetical of a convenien ce -s tore robber y that the cour

t of criminal appe als used in Brooks to illus trate the proper application of the Jack son sufficie ncy

standard . See B rooks , 323 S.W .3d at 906-07. I n the cour t’s hy pothetical, the
store cler k at trial identifies A as the robber , but a proper ly authentica t ed s u rv eil lance videotape clea rly shows that B committed the robber y . Id. at 907. The court explained that while it was within the jury ’s prer og ative to believe the store cler k and disreg ard the video, the jury ’s finding of g uilt is
not a ra tional finding w hen all the evidenc e is consider ed. Id. After examining the entire rec ord in this case , we conclude that the jury could have rationally resolved the asser ted inconsistency in J .S.’s testimony in favor of the g uilty verdic t. The

asser ted inconsistency here does not rise to the level of the discrepa ncy betwee n t he ey ewitness testimony and the videotape descr ibed in the hy pothetical in Brooks

. I n this cas e, t wo fa ctors provide a rational explanation f or J .S.’s both ag ree ing with counsel that the bottle fell off the shelf and hit him in the m outh and testi fy ing tha t the bottle was thrown a t him and hit him hard: (1) he is a child, and (2) Eng lish is not his first lang uag e. J .S. was six y ear s old at the time of his injury and

seven y ear s old at the time of trial. J .S.’s first lang uag e is Spanish. Although his E n g lish was proficient enoug h to allow him to testify in Eng lish at trial, Rodrigue z testified that she conducts fore nsic interviews in the lang uag e that the child is most comforta ble with, and she interviewe d J .S.

10in Spanish. Rodrigue z testified that choosing the lang uag e that the ch i ld is most comforta ble speaking fac ilitates compre hension, espec ially with y oung er children, who tend to think in their first lang uag e much more easily than in the ir second lang uag e. She also testified that Spanish can be a very literal lang uag e to Eng lish speaker s. The jury could have rationally conclude d that there was noth i n g i nconsistent from a native-Spanish-spe aking child’s point of view about ag ree ing with counsel that the bottle fell from the shelf and hit him and also explaining that the bottle was thrown
at him. The bottle had been on the shelf befor e it hit J .S. The differ ence betwee n the bottle falling (which implies an unintentional acc ident) and being thrown (an intentional act) may not have been as cle ar to J.S . as it is to a native-Eng lish-speaking adult.

Fur thermore , unlike the Brooks hy pothetical, there is additional evidenc e in this case that the jury could have rationally relied up o n in rea ching its g uilty verdic t. First and fore most, Sanchez’s testimony alone provides a rational basis for the jury ’s g uilty verdic t

. I n addition, the testimony of the fore nsic interviewe r and the doctors who revie wed J .S.’s case also supports the verdic t. Rodrigue z testified that more than 200 interviews are conducte d eac h y ear at t h e ch i l d

advoca cy cente r, and abuse is ruled out in most case s. Only a very small perc entag e of case s actua lly become open case s, and an even smalle r n u m b er o f case s actua lly g o to trial as criminal case s. Rodrigue z testified that she is trained to look for signs of chil d re n being coac hed into making an alleg ation and that one sign of c oaching is a child who sticks to a ver y basic statement and cannot provide details in response to follow-up questions. She testified t h at J .S. was able to provide sufficie nt details about how his injury occur red an d t h at h e was visibly sad when he talked about wh at h appene d to him. Dr. Carlin testified that the diag nosis of J .S.’s injury as non-ac cid en t al
trauma is a diag nosis that is g iven if the medical history and phy sical exam are c onsistent with the

11descr iption provided by the patient and the patient’s pare nt of how the injury occur red. Dr. Kellog g ,

a child-abuse expert, opined that the injury was an abusive one and that it was the result of the bottle being thrown wit h forc e, not falling from a shelf. There fore , viewing all the evidence in the l ight most fa vorable to the verdic t, w e find that the evidenc e is suf ficient to suppor

t L opez’s conviction for se rious bodily

injury to a child. We overr

ule L opez’s first issue.

Trial court’s au thori ty to enter judgm ent

I n his second issue, L opez contends that the trial court had no authority to enter a judgme nt for the first-deg ree felony of serious bodily injury to a child beca use of err ors in the char g e and the verdic t form. After the State and the defe nse rested and closed, the trial court rea d the jury char g e aloud to the jury

. The application para g raph in the char g e stated that if the jury believed from the evidenc e bey ond a re asonable doubt that on J uly 6, 2009, L opez

did then and there intentionally and knowing ly , by act, cause bodily injury to [J .S.] , a child then and there y oung er than 15 y ears o f age, by then and there striking the said [J .S.] with an object, to-w it, a vase, y ou will f ind [L opez] g uilty of the offe nse of injury to a child as a lleg ed in the indictment, and so say by y our ver dict.
(Emphasis added.) The S tate approac hed the bench immediately afte r t he trial court h ad fi n i s h ed

rea ding the char g e (before beg inning its closing arg ument) t o inform t h e t ri al court that there was

a cler ical err or in the char g e beca use the word “ser ious” had been omitted befor e “bodily injury ” in the application para g raph. The trial court asked if there was any objection to the corr ection. Def ense counsel did not object, and the trial court immediately added the word “ser ious” to the char g e. The jury had the c orre cted ve rsion of the c harg e for its deliberations.

12After the jury beg an delibera ting, the jury fore man sent the trial court a note stating:

“The verdic t of the jury document on the last pag e ref ers to ‘injury t o a ch i ld.’ Should it rea d ‘ser ious bodily injury ’ as is initialed on pag e 3[? ]” When the judge informed counsel about the jury

corr espondenc e, he explained tha t he had r esponded to the jury on the same sheet of paper , “‘Y es,

see corr ection,’” and had “ini t i al ed an d inserted, by way of a car [e] t, serious bodily injury in the verdic t, Count 1.” He asked counsel for both sides whether they objected to either his (1) corr ecting the verdic t form or (2) sending the corr ecte d form back to the jury instead of bring ing them out and

rea ding it to them. Neither side objecte d. When the jury returne d with a unanimous verdic t, the trial judge beg an to re ad the verdic t and rea liz ed that ra t h er than inserting the words “ser ious bodily ” befor e the word “injury ” as he intended whe n corr ecting the ver dict form, he had only inserted the word “ser ious.” During a bench confe renc e on the rec ord, the trial court asked counsel if there was any confusion or if they wanted him to send the jury panel back in. Neither side had a problem with the verdic t as it

was rec eived, and defe nse counsel agre ed that the verdic t was understood by him to be “ser ious bodily injury .” After the confe renc e, the trial court continued rea ding the verdic t in open court and

rea d the verdic t to be that L opez was g uilty of “‘se rious bodily injury as alleg ed in the indictment.’” The trial court asked the jury to raise their hands if this was t h ei r verdic t. The jury complied. Neither side reque sted that the jury be polled. The trial court further asked the jury fore man whether it was the jury ’s understanding “that this was serious bodily injury , even though the Court failed to put ‘bodily ’ in there in the verdict form.” The foreman ag ree d that the j ury understood it s verdic t to be g uilty of ser ious bodily injury

. The trial court noted that no objection was made and the jury verdic t was re ceive d.

13The trial court had an additional confe renc e with counsel on the rec ord afte r the

verdic t was rec eived, but befor e the jury was char g ed on punishment, to discuss whether any further written corr ection neede d to be made to the jury verdic t sheet. Both sides ag ree d with the court that nothing further neede d to be done beca use the verdic t form stated “as alleg ed in the indictment,” and the indictment included the words “ser ious bodily injury ” to a child. The judgme nt states that L opez

was c onvicted of the first-deg ree felony offe nse of injury

to a child.
L opez ar gu es o n appea l that the jury did not rec eive a verdic t form authorizing a verdic t for the first-deg ree felony of injury to a child by causing serious bodily injury

. He contends 2 that “[a]bsent a jury verdic t of serious bodily injury , the only offe nse authorized by the verdic t is that of injury to a child by causing bodily injury ,” which is a third-deg ree felony

. See Tex. Pena l Code § 22.04(a) (1)- (3) (listing offe nses for causing serious bodily injury ; serious ment al defic iency , impairment, or injury ; or b o d i l y i n jury ). There fore , L opez asser ts, the trial court did not have authority to enter a differ ent judg ment than the one c alled for by the jury ’s ver dict.
I n this case , the trial court did not rec eive a particula r verdic t from the jury and then
enter a differ ent judgme nt tha n was called for by the verdic t, a s L opez c ontends. I nstead, afte r the trial court had corr ecte d a cler ical err or in t h e char g e befor e the jury beg an delibera tions, the jury itself rea liz ed during its delibera tions that the offe nse descr ibed in the verdic t form was inconsistent

L opez arg ues in his opening brief that the jury was not proper ly char g ed in addition to not 2 being provided with a verdic t form authorizing a verdic t for the first-deg ree felony offe nse of causing serious bodily injury to a child. I n his reply brief, L opez clar ifies that he is not complaining of err or in the jury char g e; his challeng e on appea l is only to the trial court’s jurisdiction and authority to enter a judg ment for a

n offe nse diffe rent fr om the judgme nt called f or by the ver dict. 14with the offense described in the c h ar ge an d corr esponded with the t rial court to find out whether

the verdic t form should be worde d the same as the char g e. The trial court answe red t h e jury aff irmatively , but inadver

tently made a cler ical err or whe n co rr ec t i ng the form, as evidenc ed by the judge ’s descr iption to counsel of the corr ection that he thought he had made t o t h e fo rm. As

soon as the jury returne d and the judge rea liz ed his err or, he confe rre d with counsel for both sides, who ag ree d that there was no confusion and that the jury did not need to be sent back in. The trial court rea d the offe nse descr ibed in the verdic t as he had instructed the jury it should be written (i.e., “ser ious bodily injury ”) and informed the jury of his mistake. The jurors confirme d that they intended their ve rdict to be that L opez was g uilty of ser ious bodily

injury to a child.

“ A v e r d ic t mu s t b e c e r

ta in , c o n s is te n t, a

n d d e f i n i t e . I t ma y n o t b e c o n d it io n a l, q

u a li f ie d , specula tive, inconclusive, or ambig uous.” Ree se v. State , 773 S.W .2d 314, 317 (Tex. Crim. App. 1989). I t is the trial judge ’s duty to reje ct an insufficient , u n re s ponsive, incomplete, or informal verdic t, call the jury ’s attention to the problem, and have the problem corr ecte d either with the jury ’s
consent or by sending them out to rec onsider the verdic t. Tex. Code Crim. Proc. art. 37.10(a) ; Ree se , 773 S.W .2d at 317. That is prec isely what the trial judge d i d h er e. T h e trial judge discussed the mistake and its corr ection in open court with the members of the jury

. L opez did not object to either the trial court’s first attempt to corr ect the verdic t form based on the jury corr espondenc e or the trial court’s second corr ection of the verdic t f orm in ope n court afte r the judge ’s rea liz ation that he had omitted the word “bodily ” in his first corr ection attempt; nor did L o p ez ev er reque st a jury poll. See Ree se , 773 S.W .2d at 318. We hold that the trial court did not err by calling the jury ’s attention to the cler ical er

ror in the ve rdict and c orre cting the problem with the jury ’s conse nt. See id.

15Fur thermore , the trial court’s decision not to write the word “bodily ” on the verdic t form afte r orall y co rr ec t i n g the verdic t with the jury ’s consent in open court does not rende r the ju d g me n t e n te r e d b y th e c o u r t d if f e r e n t f r o m th a t c a ll e d f o r b y th e v e r d ic t. I t is tr

u e , a s L o p e z a s s e r

ts , 3 that a verdic t must be in writing and must be ag ree d upon by all members of the jury

. See Tex. Code Crim. Proc. arts. 37.01 (“A ‘ver dict’ is a written decla ration by a jury of its decision of the issue

s u bmitted to it in the case .”), 37.04 (providing that afte r jury ag ree s upon verdic t, verdic t is read aloud i n court, and if it is in proper f orm, no juror dis sents from it , and neither party reque sts jury poll, verdic t must be enter ed). But it is also true that “[v] erdic ts should rec eive a liberal rathe r than

a strict construction, and if the finding of the jury can be rea sonably asce rtained, from whateve r

source , the verdic t should be held valid.” Ainsworth v. State , 517 S.W .2d 274, 277 (Tex. Crim. App. 1975) (ex amining jury char g e when deter mining jury ’s i ntentio n ). He re, the corr ecte d char g e did
not authorize a conviction for a lesser included offe nse, and there fore it is unre asonable to infer that the jury intended to find L opez g uilty of bodily injury to a child when the court did not char g e it to consider this offe nse. See id. I n addition, when the verdic t ref ers to the indictment, as it does 4

T h e w r it te n v e r d ic t s ta

te s , “ We , th e ju

r y , f in d th e D e f

e n d a n t, JO SE L O PE Z , A L SO K N O WN 3 AS PEDRO L OPEZ , g uilty of the offe nse of serious injury to a Child, as alleg ed in the indictment.” The wor d “ser ious” is handwritten a nd inserted with a car et befor e the wor d “injury ” and initialed by the trial judg e. L opez arg ues, based on his alleg ation that t h e j u ry d i d not return a verdic t of serious 4 bodily injury , that the o nly offe nse authoriz ed by the verdict is that of i njury to a child by causing bodily injury

. We note that the word inadver tently omitted from the verdic t form by the trial court was the w ord “bodily ,” not the wor d “ser ious.” There are two offe nses involving “ serious injury ” established in Penal C ode S ectio n 22.04(a) —serious bodi ly injury and serious mental i njury

. See Tex. Penal Code § 22.04(a) (1)- (3) (listing offe nses for causing serious bodily injury ; serious mental defic iency , impairment, or injury ; or bodily injury). For all the rea sons discussed, we conclude that it is re asonable to c onclude that the jury intended to f ind L opez g uilty

of ser ious bodily

injury , not serious mental injury

. 16in this case , we must rea d both the i n d i ct m en t an d the char g e to deter mine the jury ’s intent. See Lewis v. Stat e , 482 S.W .2d 177, 179 (Tex. Crim. Ap p . 1 9 7 2 ). The indi ctment allege d that L opez had “intentionally and knowing ly , by act, cause [d] serious bodily injury to [J .S.] , a child

. . . .” We conclude that when the verdic t is rea d toge ther with the indictment and the corr ecte d jury char g e, it is rea sonable to conclude that the jury intended to find L opez g uilty of the first-deg ree felony of injury to a child by causing serious bodily injury , as alleg ed. See id. Consequently , we hold that the trial court did not enter a judgme nt differ ent from that called for by the verdic t, and thus, L opez has shown no err or by

the trial cour

t. We overrule L opez’s second issue.
I n his third issue, L opez asser ts that the trial court err ed by char g ing the jury for the
rang e of punishment a

pplicable to a first-deg ree felony , based on his c ontention tha t the trial court lacke d authority to enter a judgme nt for the first-deg ree felony of serious bodily injury

. Be cause we have conclude d that the trial court did no t l ac k au thority to enter the judgme nt for a first-deg ree felony , we also conclude that the trial court did not err by ch ar gi n g t h e j u ry for the rang e of punishment applicable to a first-deg ree felony . We overrule L opez’s third issue.

CONCLUSION Having deter

mined that the evidenc e is sufficie nt to support L opez’s conviction and that the trial court did not err by enter ing a j u d gm en t for the first-deg ree felony of serious bodily injury or cha rg ing the jury

on the ra ng e of punishment f

or a first-deg ree felony , we a ffirm the tria l court’s judg ment.

17__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: Aug ust 15, 2013 Do Not Publish

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