Affirmed and Memorandum Opinion filed April 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00070-CR

INIUBONG EBONG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1374974

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

A jury convicted appellant Iniubong Ebong of felony murder1and assessed 

his punishment at 40 years’ imprisonment. Appellant contends that the trial court

committed reversible error by (1) overruling his Batson challenge2and; (2) failing 

to instruct the jury on the lesser-included offense of injury to a child.

3

 We affirm.

 

1

See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2011).

2

See Batson v. Kentucky, 476 U.S. 79 (1986).

3

See Tex. Penal Code Ann. § 22.04(a) (Vernon Supp. 2014).
2

BACKGROUND

Appellant and Laquisha Downs Ebong were the parents of five-month-old 

Indya Ebong. Appellant visited Laquisha, Indya, and Laquisha’s five-year-old 

daughter on November 25, 2010, for Thanksgiving, and then stayed overnight.

Laquisha fed Indya early in the morning on November 26, 2010, and left for 

work. Appellant stayed at Laquisha’s apartment to watch Indya and Laquisha’s

older daughter. Appellant and Laquisha communicated by text messages 

throughout the day. Around 4:15 p.m., appellant sent Laquisha several text 

messages stating that something might be wrong with Indya and that Indya needed 

to go to the hospital.

Laquisha returned home around 5:20 p.m. She saw appellant lying on her

couch with Indya on his chest. Laquisha picked up Indya. Indya was not moving 

or breathing. Laquisha attempted to perform CPR on Indya for about 10 seconds 

by pressing on Indya’s chest with two fingers and blowing into Indya’s mouth. 

Indya remained unresponsive. Appellant drove Indya, Laquisha, and Laquisha’s

older daughter to the hospital. They arrived approximately five minutes later.

Laquisha handed Indya to nurse Michelle Lee Dissinger upon arrival. 

Dissinger testified that Indya felt very stiff. Dissinger rushed Indya to the 

emergency room and called the medical team to begin life support measures. 

Indya’s clothes were cut off; Dissinger saw that Indya’s stomach was distended

and showed several circular bruises. Indya was ashen. The baby was pronounced 

dead at 6:00 p.m.

The State indicted appellant for felony murder. The indictment alleged that 

appellant committed the felony offense of injury to a child “by intentionally, 

knowingly, recklessly[,] and with criminal negligence causing bodily injury to 
3

Indya Ebong,” and “while in the course of and furtherance of the commission of 

and attempt to commit said offense did commit and attempt to commit an act 

clearly dangerous to human life.” The State alleged, in four alternative pleading 

paragraphs, that appellant committed the offense of injury to a child and committed 

an act clearly dangerous to human life by (1) “striking [Indya] with his hand;” (2) 

“causing [Indya’s] abdomen to strike a blunt object;” (3) “striking [Indya’s] 

abdomen with an unknown object;” and (4) “causing [Indya’s] abdomen to strike 

an unknown object.”

Appellant argued at trial that the State could not prove his guilt beyond a

reasonable doubt. He argued that the State’s evidence only placed him with Indya 

on the day of her death and did not prove that his actions caused her death.

The State played a recording of a police interrogation of appellant at trial. 

Appellant stated to police that he accidently dropped Indya onto the floor while he 

was holding her on November 26, 2010. Appellant stated that, after Indya fell to 

the floor, she cried. Appellant stated that he “patted” Indya to get her to stop 

crying and that he “accident[ly] . . . . patted her too hard.”

Dissinger testified that Indya’s body temperature was 92.3 degrees 

Fahrenheit when she was brought to the hospital and that normal human body 

temperature is 98.6 degrees Fahrenheit. Dissinger opined that Indya had been dead 

for “a little while” when Laquisha first handed her Indya because Indya was stiff. 

Indya’s stiffness indicated to Dissinger that rigor mortis had set in. Dissinger 

explained that rigor mortis can set in between 30 minutes to four hours after death.

Dissinger testified that the bruising pattern on Indya’s stomach indicated that 

Indya’s bruises were caused by someone’s hand. Dissinger explained that the 

color of Indya’s bruises indicated that they were recent. Dissinger opined that 

Indya had suffered her bruises while she was still alive.
4

Dissinger stated that she had seen cases of extreme damage to an 

individual’s liver. She testified that extreme damage to an individual’s liver is 

generally caused by a severe direct blow, by a motor vehicle accident, or by a fall 

from a height greater than 20 feet. She stated that extreme damage to an 

individual’s liver could not be caused by a fall from someone’s arms.

Dr. Morna Gonsoulin has been an assistant medical examiner at the Harris 

County Institute of Forensic Science since 2000. She performed the autopsy on 

Indya’s body. Dr. Gonsoulin testified that, during the autopsy, she observed 

Indya’s liver to be extensively damaged. It was torn with several tissue pieces 

wholly separated from the organ. Dr. Gonsoulin opined that Indya’s liver damage 

was the result of significant blunt force trauma to the abdomen. Dr. Gonsoulin

further opined that a great deal of force would have been required to cause Indya’s 

liver damage. Dr. Gonsoulin stated that the force required to cause Indya’s liver

damage could have been produced by a car accident or by a very high fall from a 

balcony or bridge. Dr. Gonsoulin stated that the force required to cause Indya’s 

liver damage could not have been produced by a fall from standing height.

Dr. Gonsoulin also testified that Indya’s right adrenal gland was distended 

and filled with blood; Indya’s esophagus was traumatically dissected from its 

connective tissue attachment; Indya’s pancreas and small intestine showed 

hemorrhages; Indya’s lungs displayed bubbles of blood and small hemorrhages;

and Indya’s ribs were fractured in several places. Dr. Gonsoulin opined that the 

cause of Indya’s death was blunt force injuries of the abdomen and chest and that 

the manner of Indya’s death was homicide. Dr. Gonsoulin further opined that 

Indya’s injuries were not consistent with a fall from the arms of a standing adult, 

even if Indya had landed on an object such as a toy. Dr. Gonsoulin stated that 

Indya’s injuries were not consistent with an improper CPR attempt performed with 
5

two fingers. Dr. Gonsoulin stated that Indya’s injuries were consistent with an 

individual punching Indya’s abdomen with a fist or hand as hard as the individual 

could. Dr. Gonsoulin further opined that striking a five-month-old infant in her 

abdomen, or causing the infant’s abdomen to strike a blunt or unknown object, is 

an act clearly dangerous to human life.

The jury also heard testimony from Dr. Sharon Derrick, who has been a 

forensic anthropologist with the Harris County Institute for Forensic Sciences since 

2006. She performed a pediatric skeletal examination of Indya’s body after the 

autopsy. Dr. Derrick observed 24 rib fractures on Indya’s body. Dr. Derrick 

testified that the characteristics of the fractures indicated that the fractures had 

been made near the time of Indya’s death. Dr. Derrick opined that the fractures 

were consistent with blunt force trauma and were not consistent with a fall from a 

height of five or six feet or a fall off a couch or a bed.

The jury found appellant guilty and assessed his punishment at 40 years’ 

imprisonment. Appellant timely appealed.

ANALYSIS

I. Batson Challenge

Appellant is African American. Before the trial court impanelled the jury, 

appellant made a Batson challenge to the State’s use of a peremptory strike on 

venire member number six, who was the only African-American venire member

remaining on the venire after several dozen members were excused for cause or by

agreement of the parties. See Batson v. Kentucky, 476 U.S. 79 (1986). The trial 

court denied appellant’s challenge. In his first issue, appellant contends that the 

trial court erred by failing to determine that the State struck venire member number

six on the basis of race in violation of “the Equal Protection Clause of the Fifth 
6

Amendment to the [United States] Constitution” and Texas Code of Criminal 

Procedure article 35.261. We analyze appellant’s issue under the framework 

established in Batson.

4

A. Standard of Review and Applicable Law

In Batson, the United States Supreme Court held that the Equal Protection 

Clause of the Fourteenth Amendment to the United States Constitution forbids the 

State from exercising its peremptory strikes based solely on the race of a potential 

juror. Batson, 476 U.S. at 89; Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. 

App. 2012); Jones v. State, 431 S.W.3d 149, 154 (Tex. App.—Houston [14th Dist.] 

2013, pet. ref’d); see U.S. Const. amend. XIV, § 1. Even a single impermissible 

strike for a racially motivated reason invalidates the jury-selection process and 

requires a new trial. Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Jones, 431 

S.W.3d at 154.

A Batson challenge consists of three steps. Nieto, 365 S.W.3d at 675. First, 

the defendant must make a prima facie showing of racial discrimination in the 

State’s use of a peremptory strike. Id. If the defendant does so, then the State 

must articulate a race-neutral explanation for its strike. Id. The race-neutral 

explanation does not have to be “persuasive, or even plausible.” Purkett v. Elem, 

514 U.S. 765, 768 (1995). Rather, “the issue is the facial validity of the [State]’s 

explanation. Unless a discriminatory intent is inherent in the [State]’s explanation, 

 

4

The Texas Legislature adopted the Batson analysis in Texas Code of Criminal 

Procedure article 35.261. See Tex. Code of Crim. Proc. Ann. art. 35.261 (Vernon 2006); Nieto v. 

State, 365 S.W.3d 673, 676 n.2 (Tex. Crim. App. 2012). The United States Supreme Court 

decided Batson on the basis of the Equal Protection Clause of the Fourteenth Amendment to the 

United States Constitution. See Batson, 476 U.S. at 79; Jones v. State, 431 S.W.3d 149, 154 

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); see also U.S. Const. amend. XIV, § 1. 

Appellant makes a single reference to the Fifth Amendment, but he cites no authority and offers 

no explanation for this reference. To the extent appellant asserts a Fifth Amendment argument, 

we find appellant has waived the complaint by failing to brief it. See Tex. R. App. P. 38.1(i).
7

the reason offered will be deemed race neutral.” Id. (quoting Hernandez v. New 

York, 500 U.S. 352, 360 (1991) (plurality opinion)). Third, the trial court must 

determine if the defendant has proved purposeful discrimination by a 

preponderance of the evidence. Blackman v. State, 414 S.W.3d 757, 764 (Tex. 

Crim. App. 2013); Nieto, 365 S.W.3d at 675.

We review a trial court’s ruling on a Batson challenge for clear error 

focusing on the genuineness of the asserted non-racial motive for the strike, rather 

than the reasonableness. Nieto, 365 S.W.3d at 676. We should consider the entire 

voir dire record in assessing the trial court’s determination, and we are not limited 

to arguments or considerations that the parties specifically called to the trial court’s 

attention so long as those arguments or considerations are manifestly grounded in 

the appellate record. Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 

2008). We give great deference to the trial court’s ruling on the issue of 

discriminatory intent because a finding regarding intentional discrimination largely 

turns on the trial court’s evaluation of the demeanor and credibility of the attorney 

who exercised the peremptory challenge. Hernandez v. New York, 500 U.S. 352, 

364-65 (1991) (plurality opinion); Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. 

App. 1993). Additionally, race-neutral reasons for peremptory challenges often 

invoke a juror’s demeanor, making the trial court’s firsthand observations of even 

greater importance. Snyder, 552 U.S. at 477. We will not disturb the trial court’s 

ruling unless we are left with a definite and firm conviction that a mistake has been 

committed. Hernandez, 500 U.S. at 369.

B. Discussion

The parties do not dispute that appellant made a prima facie showing based 

on the State’s use of a peremptory strike on venire member number six. The trial 

court questioned the State on its motive for exercising the strike in the following 
8

exchange:

THE COURT: Why did you strike —

[THE STATE’S COUNSEL 1]: No. 6. Sorry. No. 6, to your voir 

dire, Judge, she — you were speaking about who do you expect to be 

witnesses on a case, and she brought up: I expect a neighbor to be a 

witness. She agreed with bias, as you were speaking to her, as far as 

to police officers. When you were talking, she was shaking her head 

yes, but she didn’t speak up later. And she also agrees with this is a 

big deal and a felony and a huge thing to the defendant, so . . .

[APPELLANT’S COUNSEL 1]: Judge, may I speak?

THE COURT: Sure. Okay.

[APPELLANT’S COUNSEL 1]: If I recall, your question was: Who 

could testify, not who’s required to testify in that case. And she did 

say neighbor or other relatives who may have been present at the 

scene.

THE COURT: I said the second part, but she did say the first part.

[THE STATE’S COUNSEL 1]: And no other juror made the

statements that she made like Juror 6 did.

THE COURT: Is that all you’ve got? That doesn’t sound like —

[THE STATE’S COUNSEL 2]: Can I explain?

THE COURT: Sure.

[THE STATE’S COUNSEL 2]: Okay. She brought up — you were 

talking about what kind of evidence and she brought up neighbors. 

And to me, that is — in a child abuse case, she would expect there to 

be independent witnesses. And in this case, all we have are he’s in

love with his baby. There aren’t any other — there are no neighbors, 

there’s no friends. There’s nobody in that apartment other than the

two of them. And that was her — she came up with that. That gives 

us a lot of concern that she is going to expect someone to be able to 

say what happened in that apartment that day. And all we have is 

what he told the police later and the injuries to the baby. That’s why I 
9

was concerned about the neighbors, because she came up with it like 

some sort of expectation.

THE COURT: I mean, the lady in the back that came up with the 

EMS and first responders and stuff like that —

[THE STATE’S COUNSEL 2]: I don’t know which one that is.

THE COURT: I don’t know which one it was, either.

[THE STATE’S COUNSEL 2]: So, I mean, a lot of these people are 

struck for cause at this point in time.

THE COURT: She was the social worker.

[THE STATE’S COUNSEL 1]: We struck her.

[THE STATE’S COUNSEL 2]: Well, we did strike her, because she 

was the one that started going off on the whole bias thing and kind of 

got a little whacky, but I don’t remember that. I was —

[THE STATE’S COUNSEL 1]: That was —

[THE STATE’S COUNSEL 2]: She was a nurse and later she 

volunteered for social working.

THE COURT: Well, I know there were others struck —

[THE STATE’S COUNSEL 2]: Yes, we struck both of them, so —

[APPELLANT’S COUNSEL 2]: Your Honor, if I may —

[THE STATE’S COUNSEL 2]: And it was a race-neutral reason. 

That was it.

[APPELLANT’S COUNSEL 2]: If I may. The prosecutor then

followed up and asked CSI questions or what else anybody else would 

require. Juror No. 6 got silent. I mean, she in no way said that she 

would require neighbors or require any other testimony. My 

interactions with her, your interactions with her, the prosecutor’s

interactions with her, she has been probably the most neutral, fair, and 

impartial person I’ve seen. She’s had plenty an opportunity to 
10

disqualify herself and she’s been —

[THE STATE’S COUNSEL 2]: You talked to her a lot about the 

three-year-old and that she doesn’t discipline and — you know, I just 

— she talked about the discipline of the three-year-old and her 

stepson and it’s not her job, it’s her husband’s job. A lot of this just 

gave us cause for concern. And the neighbor thing was the main 

thing.

THE COURT: Motion denied.

Appellant argues that the State offered two explanations for its peremptory strike 

of venire member number six that are not supported by the record.

First, the State expressed concern that venire member number six was biased 

against police officers because she shook her head affirmatively when the trial 

court questioned her regarding bias. Appellant argues that the record shows that

venire member number six explained why she shook her head and thus cleared any 

misconception that she was biased against police officers.

We have reviewed the voir dire record. The record does not contradict the 

State’s explanation for exercising its peremptory strike on venire member number 

six because she shook her head in response to the trial court’s questioning 

regarding bias against police officers. Appellant cites to a section of the voir dire 

record in which venire member number six explained why she shook her head in 

response to the State’s question about whether she could convict appellant if he 

were proven guilty. This section of the voir dire record is not the same section as 

the trial court’s questioning regarding bias against police officers. The record 

shows that the trial court explained bias and asked row by row whether any venire 

member was biased against police officers. Venire member number six did not 

state on the record whether she was biased, and the record does not indicate 

whether she shook her head. Appellant’s counsel did not contest the State’s 
11

assertion that venire member number six shook her head affirmatively when 

arguing his Batson challenge to the trial court.

The trial court was in the best position to determine whether the State’s 

explanation for its strike based on venire member number six’s asserted affirmative

head shake was genuine. See United States v. Williams, 264 F.3d 561, 572 (5th 

Cir. 2001) (Batson inquiry is “quintessentially a question of fact which turns 

heavily on demeanor and other issues not discernable from a cold record, such that 

deference to the trial court is highly warranted.”). On this record, we defer to the 

trial court’s determination that the State offered a genuine, race-neutral explanation 

for its strike based on venire member number six’s asserted affirmative head shake 

during questioning regarding bias against police officers. See Nieto, 365 S.W.3d at

680 (“The State’s description of [venire member’s] demeanor is considered proved 

on the record because [a]ppellant’s counsel did not rebut the observation.”); 

Watkins, 245 S.W.3d at 447 (“Whether the opponent satisfies his burden of 

persuasion to show that the proponent’s facially race-neutral explanation for his 

strike is pre-textual, not genuine, is a question of fact for the trial court to resolve 

in the first instance.”).

Second, the State explained that its strike was motivated by its concern that 

venire member number six expected testimony from a neighbor at the guiltinnocence phase of trial. Appellant asserts: “A search of the entire voir dire 

examination conducted by the court and the attorneys fails to confirm any such 

statement by this [venire member].”

We have reviewed the record. The record does not clearly indicate that 

venire member number six stated that she expected a neighbor to testify. Instead, 

venire member responses are recorded on the record without any indication of 

which member gave the response.
12

The trial court asked the venire members who they thought might testify 

during the guilt-innocence phase of trial. The record shows the following

response: “VENIREPERSON: I mean, I would probably think maybe a neighbor 

could have witnessed a crime.” Twenty pages later, the record shows this 

statement by the trial court: “And, again, we talked about a circumstance where 

the only witness to whatever happened happened, if it did happen, is the defendant. 

Because, you know, there’s not always somebody in the house, [venire member 

number six],

5

like you talked about, or a neighbor.” Appellant’s counsel stated, 

when he argued his Batson challenge after completion of voir dire: “If I recall, 

[the trial court’s] question was: Who could testify, not who’s required to testify in 

that case. And [venire member number six] did say neighbor or other relatives 

who may have been present at the scene.”

The trial court record is unclear as to what, if anything, venire member 

number six stated regarding her expectation that a neighbor might testify at trial. 

At a minimum, the record shows that appellant’s counsel agreed that venire 

member number six stated that a neighbor or other relative could testify at trial. 

We defer to the trial court’s determination that the State offered a genuine, raceneutral motive for its strike based on venire member number six’s alleged 

testimony regarding her expectation that a neighbor might testify at trial because 

the trial court’s determination is not clearly erroneous. See Nieto, 365 S.W.3d at

680; Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (the Batson

clearly-erroneous standard is a “highly deferential standard because the trial court 

is in the best position to determine whether a prosecutor’s facially race-neutral 

explanation for a peremptory strike is genuinely race-neutral.”).

 

5

The trial court referred to venire member number six by name at this point.
13

Appellant does not challenge the State’s final argument that it struck venire 

member number six based on her statement during voir dire that her husband 

disciplined their three-year-old stepson. Appellant has the ultimate burden of 

persuasion to establish by a preponderance of the evidence that the State’s 

peremptory strike was the product of purposeful discrimination. See Watkins, 245 

S.W.3d at 447. We determine that appellant has not established that the State’s 

ostensibly race-neutral motive for its strike based on venire member number six’s 

statement regarding the discipline of her stepson was a pretext for race-based 

discrimination. See id.

Finally, appellant asserts that the State did not explore its alleged concerns 

through specific questions addressed to venire member number six. While specific 

questions may have reinforced the trial court’s finding of a genuine race-neutral 

motive for the State’s strike, the strike is not proved to be racially motivated in the 

absence of such questions. See Nieto, 365 S.W.3d at 678 (upholding trial court’s 

Batson determination despite the lack of individual questioning where the State 

explained that it struck a venire member because that member shared the same last 

name as a known criminal family and the venire member allegedly glared at the 

prosecutor).

We hold that the trial court did not clearly err in finding that the State’s 

explanations for exercising its peremptory strike on venire member number six 

were genuine and, accordingly, concluding that appellant failed to meet his burden 

to establish by a preponderance of the evidence that the State purposefully 

discriminated on the basis of race when exercising a peremptory strike. See 

Blackman, 414 S.W.3d at 771. We overrule appellant’s first issue.

II. Jury Instruction

In his second issue, appellant contends that the trial court erred by failing to 
14

instruct the jury on the lesser-included offense of injury to a child.

A. Standard of Review and Applicable Law

We apply a two-step test to determine whether appellant was entitled to an 

instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d 377, 

382-83 (Tex. Crim. App. 2012). The first step is a question of law, in which we 

compare the elements alleged in the indictment with the elements of the lesser 

offense to determine “if the proof necessary to establish the charged offense also 

includes the lesser offense.” Id. at 382. Texas Code of Criminal Procedure article 

37.09, entitled “Lesser included offense,” states that 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;

(2) it differs from the offense charged only in the respect that a less 

serious injury or risk of injury to the same person, property, or public 

interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less 

culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an 

otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

The second step requires us to determine if there is some evidence in the 

record that would permit a rational jury to find that, if the appellant is guilty, he is 

guilty only of the lesser offense. Cavazos, 382 S.W.3d at 383; see also Hall v. 

State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (“[T]he evidence must 

establish the lesser-included offense as a valid, rational alternative to the charged 

offense.”) (internal quotations omitted). A defendant is entitled to an instruction 

on a lesser-included offense “if some evidence from any source raises a fact issue 
15

on whether he is guilty of only the lesser [offense], regardless of whether the 

evidence is weak, impeached, or contradicted.” Cavazos, 382 S.W.3d at 383. 

“Although this threshold showing is low, it is not enough that the jury may 

disbelieve crucial evidence pertaining to the greater offense, but rather, there must 

be some evidence directly germane to the lesser-included offense for the finder of 

fact to consider before an instruction on a lesser-included offense is warranted.” 

Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (internal quotations 

omitted). The standard may be satisfied “if some evidence refutes or negates other 

evidence establishing the greater offense or if the evidence presented is subject to 

different interpretations.” Id.; see Hall, 225 S.W.3d at 536 (“[A]nything more than 

a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.”).

B. Discussion

The parties do not dispute the first step of the test to determine whether 

appellant was entitled to an instruction on the offense of injury to a child as a 

lesser-included offense of felony murder. Therefore, we assume without deciding 

that the first step was satisfied and proceed to the second step. See Sweed, 351 

S.W.3d at 68 & n.4 (assuming without deciding that the first step was satisfied 

because the State did not assert failure to satisfy the first step as a ground for 

appellate review); cf. Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim. App. 

2010) (“The offense of ‘injury to a child’ can qualify as an underlying felony in a 

felony murder prosecution.”); Martin v. State, 246 S.W.3d 246, 265 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (“Injury to a child is a lesser included offense 

of capital murder.”).

A person commits a felony murder if he commits or attempts to commit a 

felony, other than manslaughter, and in the course of and in furtherance of the 

commission or attempt, he commits or attempts to commit an act clearly dangerous 
16

to human life that causes the death of an individual. Tex. Penal Code Ann. § 

19.02(b)(3) (Vernon 2011). A person commits the felony offense of injury to a 

child if he intentionally, knowingly, recklessly, or with criminal negligence by act 

or omission causes serious bodily injury or injury to a child. Id. § 22.04(a) 

(Vernon Supp. 2014); see id. § 22.04(e), (f), (g) (Vernon Supp. 2014) (the offense 

of injury to a child is a felony).

The second step requires us to consider whether there is any affirmative 

evidence from which a rational jury could have found that, if appellant was guilty, 

he was guilty only of the lesser-included offense of injury to a child, and not the 

greater offense of felony murder. See Cavazos, 382 S.W.3d at 383; Hall, 225 

S.W.3d at 536. Appellant argues that his statements to police provide such 

evidence.

At the guilt-innocence phase of trial, the State played a recording, made on 

November 27, 2010, of a police interrogation of appellant. Appellant stated to 

police during his interrogation that he accidently dropped Indya onto the floor 

while he was holding her on November 26, 2010. Appellant stated that he raised

Indya up to the height of his chin, and that Indya slipped from his grip accidently. 

Appellant stated that Indya may have fallen onto a hard plastic toy lying on the 

carpet. The interviewing detective told appellant that Indya’s injuries were not 

consistent with a fall from an adult’s arms. He encouraged appellant to be more

forthcoming. Appellant stated in response that Indya cried after she fell to the 

floor. Appellant stated that he “patted her butt” and “shook her a little bit.” He

explained that he was trying to get Indya to stop crying. Appellant stated: “It was 

an accident . . . . I patted her too hard . . . . I ended up spanking her accidently . . . 

. On the abdomen. Accidently. Just that one time.”
17

Appellant argues that his interview statements provide sufficient evidence to

warrant a jury instruction on the lesser-included offense of injury to a child. 

Appellant stated during his interview that Indya fell out of his hands accidently. 

He argues that, although he claimed this fall was an accident, a jury could have 

considered the fall to be the result of appellant’s reckless or negligent conduct and, 

therefore, he was entitled to a jury instruction on the offense of injury to a child. 

Appellant does not argue on appeal that the fall was an accident, as he stated in his 

interview.

We reject appellant’s argument. The record does not provide evidence that 

Indya’s fall was the result of appellant’s reckless or negligent conduct; the record

provides evidence only that Indya’s fall was the result of an accident. If a jury 

attributed Indya’s injuries to an accidental fall, then the jury would find appellant 

to be not guilty of both felony murder and injury to a child. See Tex. Penal Code 

Ann. § 19.03(b)(3); id. § 22.04(a) (a person commits the offense of injury to a 

child if he intentionally, knowingly, recklessly, or with criminal negligence causes 

serious bodily injury or injury to a child); see also Williams v. State, 294 S.W.3d 

674, 681 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“Appellant’s testimony 

that she did not commit any offense cannot support a lesser-included offense 

instruction . . . . Appellant’s evidence, if believed by the jurors, would have 

supported only an acquittal.”). Therefore, appellant’s statement is not germane to 

the lesser-included offense of injury to a child because, if believed, it tends to show 

that appellant is innocent of any offense. See Sweed, 351 S.W.3d at 68; Bignall v. 

State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (“If a defendant either presents 

evidence that he committed no offense or presents no evidence, and there is no 

evidence otherwise showing he is guilty only of a lesser included offense, then a 

charge on a lesser included offense is not required.”) (emphasis removed).
18

Even if appellant’s statement could be interpreted to provide more than a 

scintilla of evidence of his reckless or negligent conduct causing Indya’s fall, the 

evidence would not permit a rational jury to find appellant guilty of only the lesserincluded offense of injury to a child, and not the greater offense of felony murder. 

Felony murder does not require a culpable mental state. See Tex. Penal Code Ann. 

§ 19.03(b)(3); Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim. App. 1999) (“The 

felony murder rule dispenses with the necessity of proving mens rea accompanying 

the homicide itself; the underlying felony supplies the culpable mental state.”). 

Evidence of appellant’s reckless or negligent conduct supports his felony murder 

conviction. See Contreras, 312 S.W.3d at 583-85 (upholding guilty verdict for 

felony murder based on the underlying felony offense of injury to a child because 

the jury was unanimous at least as to defendant’s culpable mental state of criminal 

negligence for the offense of injury to a child).6

We hold that the evidence is insufficient to permit a rational jury to find that 

appellant is guilty only of the lesser-included offense of injury to a child, and not 

the greater offense of felony murder. Therefore, the trial court did not err in 

denying appellant’s request for a jury instruction on the offense of injury to a child. 

See Cavazos, 382 S.W.3d at 382-383. We overrule appellant’s second issue.

 

6 Appellant also argues that his interview statements provide evidence that he “meant 

[his] actions [of striking Indya], but never intended the actual result.” Appellant’s interview 

statements regarding his striking of Indya do not support an instruction on the lesser-included 

offense of injury to a child because, regardless of whether appellant’s statements tend to show 

that his actions were intentional, knowing, reckless, or negligent, his statements support his 

conviction for the greater offense of felony murder. See Tex. Penal Code Ann. §§ 19.03(b)(3),

22.04(a); Contreras, 312 S.W.3d at 583-85; Johnson, 4 S.W.3d at 255.
19

CONCLUSION

Having overruled appellant’s two issues, we affirm the trial court’s 

judgment.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).