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ORIGIN^

COURT OF CRIMINAL APPEALS

FEB 05 2015

IN THE FIFTH COURT OF APPEALS DF TEXAS

Abel Acosfca, Clerk

Dallas, Texas

TINA MARIE ALBERSON, Case No: F11-59105, 05-13-0021

vs. Petitioners Request for PDR Review

of Appellate Decision

The State Of Texas Appellate

Noted November 2014

i

Introduction

RLFO IN

COURT OF CRIMINAL APPEALS

FEB O6 20;5

Abel Acosta, Clerk

On November 6, 2014, this court entered an order denying

Tina Marie Alberson TDC #1 B35471 , Appeal F11-59105, 05-13-0021. By

Counsel 3. Daniel Oliphant petitioner requests a Petition for

Discretionary Review.

II

:.Argument

Petitioner'incorporates by reference the argument in her response

to Respondents answer and her objection to report and recommendations

as the ruling of court.

Ground I Legally insufficient to prove appellant recklessly caused

Bodily injury.

Ground II Allowing admission of autopsy photo, which emotionally

Swayed the jury.

Ground III Failure to include lesser included charge of Criminal

Negligence.

Petitioner asked to be heard on each claim not under exhausting

observance of law. Rather, Petitioner need only show that the petition

contains an issue.

1. That is debatable among jurist reason.

2. That a court order could !resolve in a different manner.

3. That ia adequate to deserve encouragement to proceed further.

P9.1
4. That is not squarley forclosed by statute, rule, or authoritive

court decision or it is not lacking any factual basis in the record.

Petitioner meets all these standards.

I. Insufficient evidence to prove charge: the only evidence came from

Mr. Michael R. James who changed his testimony three seperate times

claiming fear of prosicution. Mr. M. James received twenty years to turns

states evidence against petitioner. Only physical evidence was a series

of inconsistant witness statements. Petitioner was convicted on M. Janes

testimony, not on actual evidence. THis would also include circumstantial

evidence of actual eye witnesses evidence, Not hearsay nor testimony from

a protected co-defendant. Comments, pre-conceived ideas, opinions or

speculation of three seperate doctors who could not determine passible

dehydraytion at first sight is not evidence.

II. Allowing autopsy photo of a child to sway an emotional jury:

This is a blatant ineffective counsel claim with appellate attorney

did not address. Where trial core attorney did not object to.

III. Failure to include lessor included charge of criminal negligence:

abuse of discretion, for the judge to disregard adequate instructions to

jury holding that the harmless error analysis is appropriate when the judge

told the jury it could return a guilty verdict based on either of two theories

one of which was illegal, and the jury did not say which theory was used to

obtain a guilty verdict is an abuse of discretion.

P9.2
MEMORANDUM OF LAW

Smith vs. Robbins 528 US. 259-272 120Sct 746-753, 145 LED 756-757(2000)

US. vs. Gomez-Perez 215 F3d 315-320

Anders vs. California 386 US 73B-744 87 SET 1396-4000, 18 LED 2d 493-498

Salazar vs. State 38 Swd 141(2001)

Vernons Ann. Texas cc Part 37.0712 (b) (1)

Rules of Appellate Proceedure, rule 381 (H)

Sneed 670 SW 2d @ 267

Lewis vs. State 911 SLd 2d 1 , 7 ( 1995 )

Rojos vs. State 986 SU 2d 241-249 (1998)

Burdine vs. State 719 SU 2d 309 (1986)

Reese vs. State 33 SW 3d 238-241 (2000)

In Rojas and Santellan the main concern was that the jury maight

attribute certain injuries caused by the autopsy to the appellant.

pg.3
III. Conclusion

The court should therefore grant a Discretionary Review on these claims for reasons stated, to all

portions of each claim raised.

Pg-4

Dated this Of OL day day of of KAx he^te>f-vxaTU20Dg

Respectfully Submitted

/ma rft* PUb&rtx?o
CERTIFICATE OF SERVICE

I certify that I sent a copy of Petitioner Request for Discretionary Review and Proposal order by

First Class mail to:

Court ofCriminal Appeals

P.O. Box 12308

Austin, Texas 78711

^ Va2 ?flL \}J)hQA^OX^

Pg-5
Affirmed and Opinion Filed November 6, 2014

In The

GLaurt of Appeals

Jfiftlj Btatnct of QJexas at Ballas

No. 05-13-00121-CR

TINA MARIE ALBERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F-1159105-W

MEMORANDUM OPINION

Before Justices Bridges, Francis, and Myers

Opinion by Justice Francis

A jury convicted Tina Marie Alberson of recklessly causing serious bodily injury to her

ten-year-old stepson by failing to provide adequate hydration. After finding one enhancement

paragraph true, the jury assessed punishment at eighty-five years in prison and a $10,000 fine. In

three issues, appellant challenges the legal sufficiency of the evidence to support her conviction

and the trial court's rulings to admit an autopsy photograph and to deny her request for a lesserincluded offense. For the reasons set out below, we affirm.

Evidence showed the summer of 2011 was one of the hottest on record in the Dallas area

with more than seventy days of 100-plustemperatures. On July 1, ten-year-old Jonathan James

and his twin brother, Joseph, went to stay for the month with their father and stepmother,
Michael James and appellant. According to Jonathan's mother, Jonathan did not want to go

because he thought he would be in trouble the entire time.

The. central air conditioning in the house did not work, and the house was cooled by

window units and fans. By all accounts, the house was hot. On the night of July 25, Jonathan

was rushed to Charlton Methodist Hospital by ambulance after collapsing at home. According to

Dr. David Bryant, a staff emergency medicine physician, Jonathan was unresponsive, had a high

body temperature, and initially did not have a pulse. Bryant said there were no signs of external

trauma to Jonathan's body and it became apparent Jonathan had probably sustained a heatrelated injury. An ultrasound revealed there was no urine in his bladder. A Foley catheter was

inserted directly into Jonathan's bladder to "drain off whatever might have been there," but no

urine was produced, indicating Jonathan was "markedly dehydrated." Lab testing showed

Jonathan's white blood cell count was twice the normal limit, indicating he was in "severe

distress." In addition, Jonathan had high levels of creatine, indicating he was in renal failure, and

a high level of potassium, or hyperkalemia. Bryant said Jonathan had a "severe electrolyte

derangement" and multiple organs were shutting down. His heart stopped several times.

Despite efforts to resuscitate and stabilize Jonathan, he was pronounced dead. Dr. Bryant's

primary diagnosis was acute cardiopulmonary arrest, followed by hyperkalemia, acute renal

failure, and DIC. (He explained that in DIC, every cell in the body begins to bleed out.)

Dr. Jeffrey Barnard, chief medical examiner for Dallas County, performed Jonathan's

autopsy and determined he died of dehydration. He observed no significant trauma to the body,

internally or externally, and no sign of disease. He did note Jonathan's lips were chapped and

swollen, which is seen in dehydration. Elevated levels of sodium and chloride in the vitreous

fluids, as well as correlating hospital laboratory results, confirmed Jonathan was dehydrated.

Barnard said the dehydration was caused by an absence of water and, because of the creatine
level in Jonathan's body, he did not believe it was an "acute event" that occurred "just on the

day that he collapsed." Rather, he said Jonathan became dehydrated over several days,

"certainly more than one or two." Some of the signs that would have manifested were thirst,

chapped and dried lips, sunken eyes, no tears or urination, and confusion and weakness.

Dr. Matthew Cox is board certified in child abuse pediatrics and was asked by

investigators to review Jonathan's medical records and autopsy report. After reviewing those

records, he likewise concluded Jonathan had suffered "long-standing dehydration over days."

Cox explained the lab results showed high levels of sodium, potassium, and chloride in

Jonathan's blood. He said Jonathan's sodium level was the highest he had seen in over 200

patients. He believed this developed "over the course of days" and was "not something that

could have happened as quickly." In addition, Jonathan's creatine level was more than five

times normal, which he said indicated Jonathan's kidney had been progressively failing over a

period of about four days. He also noted records showed no urine in the child's bladder.

Detective Stephen David went to the hospital that night. After speaking with family

members, David had James and appellant, as Jonathan's caregivers at the time of his death, write

out statements. He also obtained consent to search the house. David arrived at the house at

about 4 a.m. and said it was "hot." He noted the central air was not working, and only a window

unit in the master bedroom appeared to work. In the kitchen-dining room area, David noticed

two Xs, one on the floor and the other on a large window inches away. He later learned that as

punishment, appellant made Jonathan stand on the X and look out the window and tell her how

many birds landed on a shed in the backyard. Photographs of the interior of the house, and in

particular the Xs on the floor and kitchen window, were admitted as evidence at trial.

Detective Kimberly Mayfield, who worked in the child abuse unit, assisted in the

investigation. She was present when Joseph was interviewed by a counselor at the Children's

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Advocacy Center. She was alerted when Joseph immediately said "people weren't telling the

truth about what happened." After the interview, she had appellant and James come in. By then,

she knew Jonathan's sodium levels were elevated but did not have a cause of death. She also

knew the central air was not working in the house, so heat was a "big concern." She talked to

James and appellant separately for several hours. Afterwards, she collected Jonathan's medical

records and consulted Dr. Cox. In late August, she received the preliminary results of the

autopsy and, based on that, had both appellant and James arrested. After the arrests, she

interviewed both again. She acknowledged James's story changed from the first to second

interview. Video recordings of both interviews with appellant were admitted into evidence.

Evidence at trial focused on the events in the household for several days prior to

Jonathan's death. James, who was also indicted for injury to a child and faced a life sentence,

waived his Fifth Amendment right and testified without the benefit of a plea bargain. James and

the twins' mother were divorced, and he and appellant had been together for eight years. Her

son, B.J., who was about two years older than the twins, lived with them. James had standard

visitation with his sons, and the boys came to stay with them during the month ofJuly.

James was blind in one eye and legally blind in the other and was diabetic. That summer,

a nurse came to the house each day to treat a diabetic ulcer on his foot. He also needed hip

replacement surgery and used crutches and a wheelchair to get around. He was ill and in chronic

pain, so he said he stayed in bed most days while appellant took care of the household and the

children.

One of the rules of the house was that the boys could drink only one glass of water with

their meals. To get another glass, they had to eat their food. If they did not finish their meal,

they were not allowed more water until the dishes were cleared from the table. But, he stressed,
the rule lasted only until dinner was over. Also, the boys were not allowed to eat or drink in their

bedroom.

According to James, he was generally in charge of his boys' discipline, but appellant was

allowed to put them in time-out or take away their privileges, such as watching television or

playing video games. Over the years, the boys had become "too fidgety" during regular time

out, so at a friend's suggestion they had begun having the boys "stand on a tack," meaning they

had the boys stand and reach for a tack placed on a wall above their heads. That summer, James

said Jonathan had been "getting in trouble" for having food in his room, breaking other people's

things, and messing with B.J.'s guitar. Evidence suggested appellant had been denying Jonathan

water as punishment when he got into trouble.

Jonathan died on a Monday. On the Saturday before his death, James noticed Jonathan

was "more lethargic than usual," but said Jonathan was a bit overweight and not as active as the

other two boys. That day, the family went to a birthday party for the boys' grandmother. At the

party, Jonathan ate a little cakeand drank sodas. At onepoint, he told James he did notfeel well.

James said appellant was aware of the conversation. James said they did not leave because

Jonathan did not seem "that bad." After the party, he said he talked to appellant about calling the

doctor if Jonathan did not start feeling better, and appellant said she would make an appointment

on Monday. But on Monday, she told James the doctor had no appointments until later in the

week.

On Sunday, Jonathan came into the bedroom while the nurse was changing James's

bandage. Jonathan told James he was thirsty, and James handed him one of his water bottles.

Appellant, who was also in the room, "made" James take the bottle away, saying it was not a

good idea for Jonathan to drink after him since he had been sick. James told Jonathan to get a

drink from the kitchen. When Jonathan walked out of the room, appellant followed him. James
did not believe Jonathan had enough time to get a drink and believed appellant followed him to

keep him from getting a drink. At that point, James said he realized appellant was not letting

Jonathan have water and told her she needed to make sure he had something to drink. That same

day, he told Jonathan if he was not allowed to drink, he should go to the bathroom-and shut the

door to "prevent more problems" with appellant-and drink from the sink.

After the nurse left, Jonathan stayed in the bedroom with James because appellant, who

was bipolar, did not want to "deal" with the child. James explained appellant went through

periods where she would have "issues" with one person more than others. For the previous five

days, he said Jonathan had been on appellant's "radar" and it was "especially strong" that

Sunday. While in the room, Jonathan again said he was not feeling well.

On Monday, James knew Jonathan had been put in "another time-out" by appellant. At

about 7:30 p.m., appellant brought James his food. While he was eating, Joseph ran in the

bedroom and told him Jonathan had "dumped" a glass of cold water over himself. James thought

appellant would "have a fit." Instead, she "came running" into bedroom to assure him

everything was "okay" and that Jonathan was "just hot."

After dinner, appellant sent B.J. and Joseph outside to play. After they went out, James

saw appellant "baby walking" Jonathan into the bathroom. She was bent over with her arms

underneath his arms, and he could not see whether Jonathan's eyes were open or closed. James

asked Jonathan if he was okay, and either Jonathan or appellant said "yeah." Appellant turned

on the water in the bathroom and kept checking in on Jonathan. Then she came into the

bedroom, told James Jonathan's eyes had rolled back into his head, and told him to call 9-1-1.

Michael grabbed the phone while rushing to the bathroom. Jonathan was sitting in the bathtub,

unconscious, with his shorts on; he was not breathing.
Jonathan was transported to the hospital by ambulance, and the family followed. As they

were leaving the house, James noticed the X on the kitchen floor and asked appellant if that is

where she had Jonathan standing in time-out. The X was inches from a big open window.

Appellant said yes. James was bothered by her answer because, he said, "not once, not ever" in

the eight years of giving "time-out punishments" had they ever made one of the children stand in

front of a window "when it's 106 degrees outside in a hot kitchen with food being prepared and

the air conditioner not working." In the car, he told appellant he would never forgive her if

something happened to his son.

James admitted telling the police in his first interview that it was his idea to put an X on

the floor, but he said he was only trying to "cover" for appellant because he was dependent on

her. He said he was aware she was restricting Jonathan's water intake on Sunday and Monday,

he just did not realize the extent to which she was doing it. He never explicitly heard her tell

Jonathan not to drink water. After he was arrested, James saw a photograph of Jonathan at the

Saturday birthday party. In the photograph, Jonathan had "sunken eyes" that James said he had

not seen at the time.

James also testified that for several years, Jonathan had a "problem with licking his lips"

and around his mouth, which would cause severe chapping. The pediatrician told them it was a

sign of dehydration, although James believed it "was more of a nervous type thing." As soon as

he would see Jonathan licking his lips, James would discourage him and tell him to drink some

water. During his July visit, James said Jonathan started licking his lips again but "seemed like

he was doing it less."

Joseph testified his brother was in trouble "a lot" in the days before he died, more than

either he or appellant's son, B.J. Jonathan would get "whooped" with a belt or paddle or was

made to reach for a tack or hold a bag of potatoes overhis head. Appellant also sent him to time-

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out in the boys' bedroom, which was hot because the window unit was not working. When

Jonathan was in trouble, appellant did not allow him to have water. Once or twice, he saw

Jonathan drinking from the bathroom faucet. When appellant saw him, she told Jonathan to get

out ofthe bathroom.

On the night before he died, Jonathan was in trouble, and appellant made him sleep in the

boys' bedroom with no air conditioning. The next morning, Joseph woke up, and Jonathan was

sitting in his time-out "spot" on the living room floor. Appellant would not allow him to lean

back. Later that day, he and B.J. went to play outside in the water, but Jonathan was in trouble

again and was standing on an X on the kitchen floor. As he was coming back into the house,

appellant called for B.J. to help her. Joseph looked in the bathroom and saw Jonathan, in wet

clothes, sitting in the bathtub. He said Jonathan looked "exhausted" and "burned up." On the

way to the hospital, he heard his father tell appellant he would never forgive her, to which

appellant replied, "[H]ow is this my fault."

Joseph testified appellant deprived Jonathan of water for two or three days during time

outs, but he admitted he did not tell the police when they initially talked to him at the hospital.

When Jonathan was not in time-out, Joseph said he could have water. Finally, Joseph said that

on the day he died, Jonathan's skin "looked darker" and "burned." He was concerned but was

"scared" to "do anything," such as use the phone or get help from a neighbor, because appellant

might see him.

In contrast to James and Joseph's accounts of what went on in the home in the days

before Jonathan died, the defense presented the testimony of B.J. and appellant. B.J. testified he

never heard his mother deny water to any one of them when they were in trouble. Water was

"free" and was available at any time. He also said he saw Jonathan with a cup of water in his

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hand on day before and the day he died. B.J. said Jonathan did not seem different: He noticed

Jonathan's lips were chapped, but said "he always pretty much had chapped lips."

On the night Jonathan died, B.J. made him a peanut butter and jelly sandwich and went

outside with Joseph. He did not remember Jonathan standing on an X in the kitchen. A couple

of minutes later, his mother called for his help. He went inside and saw Jonathan passed out on

the floor. B.J. said he helped his mother lift Jonathan into the bathtub while James called 9-1-1.

B.J. said they sprinkled Jonathan with cold water. Jonathan opened his eyes momentarily, but

then fell back asleep. B.J. got him out of the tub, and he and his mother performed CPR.

B.J. did not recall telling the counselor at the Children's Advocacy Center that Jonathan

was getting in trouble a lot around the time he died or that he had to stand on a tack or stand on

an X. Instead, he said it was Joseph who was getting in trouble. He also said he did not

remember telling the prosecutor that Jonathan was in trouble for three or four days before he

died. He also did not remember telling the prosecutor that appellant sent Jonathan to the boys'

bedroom without any air conditioning for two or three hours as punishment and sent B.J. in to

check on him.

Appellant testified that when she picked up the twins on July 1, Jonathan's lips were not

chapped. In the first week, however, he started his "nervous habit" of licking his lips and she

told him to drink water. She said she "didn't see it again" for a couple of weeks.

As did other witnesses, she remembered the heat that summer. The house was cooled by

window units and fans. The house was "uncomfortable" but not to the point where they were

"sweating constantly." Because ofthe heat, she said the boys played inside, and she gave them

ice cream and Popsicles to keep them cooled down. She also covered the windows to "make

sure the sun wasn't coming in" and had the boys stay up later at night and sleep later in the

morning so that theywould "sleepthrough part of the heat."

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Appellant said she and James's home was "more structured" than the twins' home with

their mother, so there was an adjustment period when the boys stayed with them. She used time

out as the main form of discipline, which included "standing on the tack" to keep them from

"fidgeting and turning around." That summer, she said Joseph, not Jonathan, was getting in

trouble more.

According to appellant, Jonathan wet the bed twice in the week before he died-"Tuesday,

Wednesday, Wednesday, Thursday." She did not punish him and said she tried to hide it from

the other boys so they would not make fun of him. She did, however, begin "limiting" his water

at night. She told police she would not allow him to have anything to drink after 9 or 10 p.m.;

she testified at trial she cut back liquids for about thirty to forty-five minutes before bedtime and

since they did not go to bed until 2 or 3 in the morning, it was much later when she limited his

intake. When asked if the boys restricted their own fluid intake, she said it was "possible." She

also said the boys were "old enough" that if they were thirsty, they would drink, and she did not

feel she "had to hover over a ten-year-old 24 hours a day to make sure he was drinking fluids."

Appellant said in the last week, she placed Jonathan in time-out five or six times-once on

Friday and the other times on Sunday and Monday. The time-outs on Sunday involved sitting in

time-out, standing on the tack, and taking away his video games. When Jonathan was in time

out, she said he wanted water and she allowed him to have some the first time. He did not sit

back down and said he "needed more water." When he did it again, she believed he was "just

trying to get out of time-out" and told him he had to finish histime-out first. Aftertime-out, she

said he got water.

Jonathan was placed in time-out twice on Monday. The first time, he sat in time-out for

about fifteen minutes. The second time, at about 6:30 to 6:45 p.m., appellant had Jonathan stand

on the X in the kitchen for about thirty minutes while she was cooking dinner. She said that it

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f; y

was James's idea to put the X on the floor. Appellant explained that Jonathan started out sitting

and watching TV and then he had to stand on the tack. Ultimately, she "gave him a bag that had

two small potatoes in it" and told him to hold it over his head. When he did not do that, she told

James, and he told her to put the tape on the floor. She "lost track of time" while Jonathan was

standing on the X.

Appellant testified she did not see any signs that Jonathan was in trouble from a health

standpoint. She said Jonathan was "always quiet" and "didn't do a lot." She said it was

"nothing" for him to sit all day. Although the detective suggested she should have recognized he

was lethargic, appellant said Jonathan was not "acting any differently" than he did "every other

day of his life," so "what signs are there to see?" She testified that if she "had any idea" that

"something else was going on," she would have taken him to the emergency room. When

showed the pre-autopsy photographs depicting Jonathan's chapped and swollen lips, she said his

lips did not look like that when he was taken to the hospital. She denied knowing Jonathan was

not feeling well on Saturday and said James lied when he testified that he told her to make a

doctor's appointment. She admitted telling Jonathan not to drink from James's water bottle

because James had been sick.

On cross-examination, appellant acknowledged she told the detective, in her first

interview, that Jonathan was "drinking five, six, seven" cups of water in four or five hours. She

also said she understood it was "medically impossible," given that Jonathan had no urine in his

bladder. She then explained she "saw him with the cups of water" and saw him "drinking some

of it" but did not know "if he drank all of it."

Appellant acknowledged telling the detective she began restricting Jonathan's water on

"Tuesday, Wednesday" at 9 or 10 p.m. She also said she did not allow the boys to take water

into their bedroom and did not allow Jonathan to drink water at the dinner table when he was not

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eating; she also knew Jonathan was not eating on Sunday and Monday. Appellant admitted

telling the detective that Jonathan was "a little terror" at the end of the month and was in time

out Friday, Saturday, and Sunday, although she said James told her Jonathan was in trouble on

Friday. As for the bag of potatoes she required Jonathan to hold while in time-out on Monday,

she acknowledged telling the detective it was a five-pound bag of Russet potatoes, but explained

at trial the bag had only two potatoes in it. She also said she "may have" told the detective that

Jonathan wanted to sleep in the bedroom with no air conditioning, and she allowed him to but

had B.J. check on him.

Finally, appellant said she was aware a person could not go for days without water. She

also knew that if it was 104 degrees outside and was hot inside a non-air conditioned house, the

people inside the house needed to stay hydrated. If water was restricted under such conditions,

she knew there could be problems. She acknowledged times when Jonathan asked for water and

she would not let him have any, such as when he was in time-out, when he was drinking from his

father's water bottle, and when he was drinking from the bathroom faucet. She also said that

when someone in her household needed water, "they went and got it." She conceded that

"something possibly can happen" when a person does not have adequate water, such as heat

stroke or heat exhaustion.

In the indictment, appellant was charged with intentionally and knowingly causing

serious bodily injury to Jonathan by two omissions: failing to seekprompt medical attention and

failing to provide adequate hydration. The indictment also alleged she had a legal and statutory

duty to act and had assumed care, custody, and control ofJonathan. See Tex. Penal Code Ann.

§ 22.04(b)(1), (2). On the first day of trial, the trial court granted the State's motion to strike

from the indictment the culpable mental state of "intentionally" and the allegation of failing to

seek prompt medical attention. Thus, the only conduct before the jury was the allegation of

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failing to provide adequate hydration. After hearing the evidence, the jury convicted appellant of

the lesser-included offense of reckless injury to a child.

In her first issue, appellant contends the evidence is legally insufficient to show she

recklessly caused serious bodily injury to Jonathan. She contends the medical experts explained

it took several days of water restriction to "have the results they observed" in Jonathan, and no

witness testified she did not allow him to have water for several days. At most, she argues, she

restricted Jonathan's water intake for "small periods oftimeouts."

In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, when analyzing the sufficiency

of the evidence, we "determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most favorable to

the verdict." Id. Direct and circumstantial evidence are treated equally. Id

A person commits the offense of reckless injury to a child if the person recklessly, by

omission, causes a child serious bodily injury, and the person has a legal or statutory duty to act

or has assumed care, custody, or control of the child. TEX. Penal CODE ANN. § 22.04(a)(1),

(b)(1), (2) (West Supp. 2013). "Child" means a person 14 years of age or younger. Id. §

22.04(c)(1). "Serious bodily injury" means bodily injury that creates a substantial risk of death

or that causes death ..." Tex. Penal Code Ann. § 1.07(46) (West Supp. 2013).

Injury to a child is a result-oriented offense requiring a mental state thatrelates notto the

specific conduct but to the result of that conduct. Williams v. State, 235 S.W.3d 742, 750 (Tex.

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Crim. App. 2007). A person acts recklessly, or is reckless, 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. Tex. Penal Code Ann. § 6.03(c) (West 2011). The risk created "must be of such a

nature and degree that its disregard constitutes a gross deviation from the standard of care that an

ordinary person would exercise under all the circumstances as viewed from the actor's

standpoint." Id. Whether an omission involves a substantial and unjustifiable risk "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 753 (quoting

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)). In short, "[a]t the heart of

reckless conduct is conscious disregard of the risk created by the actor's conduct[.]" Id. at 751

(quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)). Regardless of how

serious the consequences may be, mere lack of foresight, stupidity, irresponsibility,

thoughtlessness, and ordinary carelessness do not suffice to constitute criminal recklessness. Id.

at 751.

Considering the evidence in the light most favorable to the verdict, it showed the

following. Jonathan's lips were swollenand chapped and his eyes sunken in from dehydration, a

condition that did not happen overnight. When he arrived at the hospital, multiple organs were

failing, including his kidneys, and his bladder had no urine. The medical examiner testified he

died of dehydration, which did not occur over the course of one day, but over multiple days.

Further, the undisputed evidence was appellant had acted as Jonathan's caregiver thatJuly.

On the days leading up to Jonathan's death, appellant, by her own admission, restricted

his water when he was in timeout, at the dinner table, and at night. Further, the evidence showed

Jonathan was in trouble "a lot." His punishment included (1) standing on a spot while reaching

over his head for a tack, (2)standing on an X in front of a big openwindow in the kitchen when

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the temperature was over 100 degrees, and (3) standing with a five-pound sack of potatoes over

his head. At other times, he was sent to his bedroom, which was not air conditioned, and was

made to sleep there one night.

By Saturday, Jonathan was not feeling well and told his father; appellant was aware of

the conversation. That day, his father noticed Jonathan seemed lethargic, and told appellant she

needed to call the doctor's office if he was not feeling better. The next day, Jonathan again said

he did not feel well and his father realized for the first time appellant was denying him water.

That night, appellant made Jonathan sleep in his bedroom without air conditioning and no water.

On the day he died, appellant stood Jonathan in a hot kitchen, in front of an open window, with

the temperature at 104, first holding a sack of potatoes over his head and then standing on the X.

Not long after, Jonathan collapsed.

Given the visible signs of dehydration and his medical condition upon arrival at the

hospital, the jury could have believed appellant disregarded the signs and, in fact, escalated his

condition when she had made him sleep in a non-air conditioned bedroom, after denying him

water, and forced him to stand in front of an open window as punishment when the temperature

exceeded 100 degrees. Although appellant claimed Jonathan could have all the water he wanted,

except when he was in timeout, the jury did not have to believe her testimony. Nor did they have

to believe her testimony that Jonathan's lips were not swollen and chapped when emergency

medical personnel transported him to the hospital. Rather, the jury could have believed the

testimony of Dr. Cox, who said the people around Jonathan would have seen the child's thirst,

his chapped and dried lips, sunken eyes, confusion, lack of tears, and lack of urination.

Considering all the evidence in the light most favorable to the verdict, we conclude a reasonable

jury could have found beyond a reasonable doubt that appellant recklessly caused serious bodily

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injury to Jonathan by failing to provide him with adequate hydration. We therefore overrule the

first issue.

In her second issue, appellant argues the trial court erred by admitting an autopsy

photograph she contends was "gruesome" and "prejudicial," in violation of Texas Rule of

Evidence 403.

The admission of a photograph over an objection is within the sound discretion of the

trial court. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Generally, a

photograph is relevant if verbal testimony concerning the matter depicted in the photograph is

relevant. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Rule 403 favors the

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Id. But, otherwise relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. Id. In determining whether

the probative value of a photograph is substantially outweighed by the danger of unfair

prejudice, a court may consider several factors, including "the number of exhibits offered, their

gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they

are close-up, whether the body depicted is clothed or naked, the availability of other means of

proof, and other circumstances unique to the individual case." Williams v. State, 301 S.W.3d

675, 690 (Tex. Crim. App. 2009).

Two photographs of the child, after death, were admitted into evidence. Exhibit 3 is the

autopsy identification photograph and is not at issue. Exhibit 12 is at issue and is a pre-autopsy,

close-up photograph of Jonathan's face showing the condition of his lips. The record does not

reflect whetherthe photograph shownto the jury was in color or its size. The copy in our record

is black and white and is about 8" x 10." Dr. Barnard, the medical examiner, testified the

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photograph would aid him in the presentation of his opinion and used the photograph in his

testimony to show the jury Jonathan's swollen and chapped lips.

Dr. Barnard testified that during the autopsy, he did not observe any external or internal

injuries that would account for Jonathan's death. He noted Jonathan's chapped and swollen lips,

which he said was not "in and of itself definitive of a specific cause of death." But, he said

chapped lips are seen in dehydration, and later information with regard to the high sodium level,

as well as other findings from fluids removed during the autopsy, "corresponded with that."

Ultimately, he found Jonathan had dehydration caused by an absence of water and, based on

investigative information, that Jonathan's water was restricted.

To obtain a conviction, the State had to prove appellant either knowingly or recklessly

caused serious bodily injury to Jonathan by failing to provide adequate hydration. The

photograph was evidence that Jonathan presented at the hospital with obvious, external signs of

severe dehydration and was probative of the question of appellant's culpability. As testified to

by Dr. Barnard, Jonathan's lips showed "more of a crusting older lesion" that was notthe result

of attempts by medical personnel to save his life. A jury could have believed, from looking at

the photograph, that appellant would have seen this visible sign of dehydration and concluded

she had the requisite culpable mental state to have committed the offense.

Finally, the photograph is not particularly gruesome and simply portrays the condition of

his lips. But any gruesomeness can be attributed to the subject matter it depicts -the death of a

ten-year-old boy by dehydration-and is no more gruesome than one would expect in this sort of

crime. SeeGallo, 239 S.W.3d at 763. Underthe circumstances, we conclude the probative value

of the photograph is not substantially outweighed by the danger of unfair prejudice. The trial

court's decision to admit this evidence was within the zone of reasonable disagreement and was

not an abuse of discretion. We overrule the second issue.

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In her third issue, appellant argues the trial court reversibly erred by denying her request

for a jury instruction on criminally negligent injury to a child, which she contends is a lesserincluded offense of recklessly causing injury to a child.

Appellant was charged with causing serious bodily injury to a child by omission,

specifically by failing to provide Jonathan with adequate hydration. Under section 22.04 of the

Texas Penal Code, a person commits an offense if she "intentionally, knowingly, recklessly, or

with criminal negligence, by act" causes serious bodily injury to a child. TEX. PENAL CODE Ann.

§ 22.04(a)(1) (emphasis added). But if the offense involves an omission, rather than an act, a

person commits an offense only if she intentionally, knowingly, or recklessly causes serious

bodily injury to a child. See id. Negligence is not one of the culpable mental states for injury to

a child by omission. See id. Consequently, an individual who, with criminal negligence, causes

serious bodily injury to a child by omission, commits no offense. Rankin v. State, 41 S.W.3d

335, 348 (Tex. App.—Fort Worth 2001, pet. ref d).

Because criminally negligent injury to a child by omission is not a criminal offense under

our law, appellant was not entitled to her requested charge as a lesser included offense and the

trial court did not err in refusing her instruction. We overrule the third issue.

We affirm the trial court's judgment.

Do Not Publish

Tex. R. App. P. 47

130121F.U05

/Molly Francis/

MOLLY FRANCIS

JUSTICE

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Court of Appeals

iFtftlj district of tttexaa at Dallas

JUDGMENT

TINA MARIE ALBERSON, Appellant

No. 05-13-00121-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District

Court, Dallas County, Texas

Trial Court Cause No. F-1159105-W.

Opinion delivered by Justice Francis;

Justices Bridges and Myers participating.

Based on the Court's opinion ofthis date, the judgment ofthe trial court is AFFIRMED.

Judgment entered November 6, 2014

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