Affirmed as Modified and Opinion Filed April 17, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01586-CR

SYLVIA ROMERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6

Dallas County, Texas

Trial Court Cause No. F-01-16575-X

OPINION

Before Justices Lang and Brown1

Opinion by Justice Lang

Sylvia Romero appeals the trial court’s judgment convicting her of injury to a child. The 

jury found Romero guilty and assessed her punishment at life imprisonment and a $10,000 fine. 

Romero raises two issues on appeal arguing: (1) the evidence is legally insufficient to support 

her conviction; and (2) she suffered egregious harm when the trial court included an instruction 

in the jury charge that authorized the jury to convict her of injury to a child under an incorrect 

definition of the culpable mental state. The State raises one issue on cross-appeal arguing the 

judgment should be modified to reflect the correct statute for the offense.

We conclude the evidence is sufficient to support Romero’s conviction. Also, we 

conclude that, even though the trial court included an instruction in the jury charge that 

 1 The Hon. Kerry P. FitzGerald was on the panel and participated at the submission of this case. Due to his retirement from this Court on 

December 31, 2014, he did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1 (a), (b).
–2–

authorized the jury to convict Romero of injury to a child if they found that she intentionally 

“engage[d] in the conduct,” Romero has not shown that she suffered egregious harm. Further, 

we conclude the judgment lists an incorrect statute for the offense and fails to list that Romero 

used a deadly weapon, and modify the judgment accordingly. The trial court’s judgment is 

affirmed as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

M.I. was born in Mexico and her mother abandoned her approximately three months after 

she was born. Afterward, M.I.’s father, Silvio Iniesta, relocated to the United States where he 

met and married Romero. Iniesta and Romero also had a child together, A.K. The children were 

approximately one year apart in age. Iniesta worked as a long-haul truck driver and was away 

from home most of the time while Romero cared for the children.

Alexamari Villareal, Iniesto’s sister, visited Romero “at least two times a week.” 

Villareal observed that Romero did not treat the children equally. Villareal believed Romero 

showed a preference for A.K., and was stricter with and yelled at M.I. Although Villareal did 

not see Romero physically abuse M.I., she did see Romero treat M.I. roughly. Villareal saw M.I. 

cry a lot, observed that M.I. was unhappy and sad, and knew that M.I.’s arm was always in pain.

On May 18, 2001, M.I. was taken to the emergency room. Medical imaging revealed an 

uncommon fracture of M.I.’s humerus bone at the shoulder joint. Also, the imaging revealed 

that the fracture was several weeks old based on the degree of healing.

On September 9, 2001, Villareal picked her daughter up from Romero’s apartment. M.I., 

who was two years old at the time, grabbed her shoes and wanted to leave with Villareal. 

Villareal told Romero to tell M.I. “to get ready and go to [Villareal’s] house,” but Romero said, 

“No.” M.I. started crying. Approximately fifteen minutes after Villareal left Romero’s 
–3–

apartment, she received a “missed call” from Romero. Later, when Villareal saw the missed call, 

she tried to return Romero’s call, but there was no answer.

Meanwhile, on September 9, 2001, Romero called 9-1-1, reporting to the dispatcher that 

M.I. had fallen off of a couch while jumping and hit her head. When the emergency medical 

technicians (EMTs) arrived at Romero’s apartment, they saw Romero and A.K., and found M.I. 

lying on the dining room floor carpet. M.I. was unresponsive, had a “blown pupil,” and her body 

was posturing, which is an abnormal motor function. These signs were indicative of a brain 

injury, so the EMTs immediately took M.I. in the ambulance to the hospital where a medical 

team was waiting for her.

Pamela Okada, M.D., was waiting for M.I. when she arrived at the hospital and was the 

first emergency room physician to examine her. Dr. Okada was informed that M.I. had fallen off 

the couch on either the carpet or “a chimney” and the step-mother had stated she was not in the 

room when it happened. Dr. Okada found that M.I. was nonresponsive, i.e., she had no eye 

movement and did not open her eyes spontaneously, and she made no verbal response, spoke no 

words, and did not cry. She also found that M.I.’s arms were posturing, which is a serious 

abnormal motor function that shows the body is unable to follow commands. In addition, Dr. 

Okada found that M.I. had a “blown pupil” or a pupil that is dilated large, which is indicative of 

brain swelling or something pushing on the brain. Dr. Okada ordered CAT Scans and blood 

tests. The imaging revealed a large skull fracture and subdural hematoma, a serious brain injury, 

and that her pancreas was lacerated or torn into two pieces. As a result, M.I. was intubated, i.e., 

a breathing tube was put into M.I.’s lungs, and provided oxygen.

Dale Swift, M.D., a pediatric neurosurgeon, operated on M.I. Dr. Swift found fresh 

subdural and epidural hematomas and one long segmented skull fracture that appeared to be a 

couple of weeks old based on the degree of healing. To alleviate the bleeding and swelling, Dr. 
–4–

Swift performed a craniotomy, cutting open M.I.’s scalp, drilling a hole in her skull, and 

removing a large window of bone. Then, M.I. was placed in a pentobarbital coma.

At the hospital, Romero told JoAnne Marchant of Child Protective Services (CPS) that 

she was in the bathroom when she heard a child scream, “Mamma,” and the sound of a fall. 

Romero stated that she believed A.K. had fallen, but instead found M.I. lying on her back by the 

fireplace and unconscious. Romero stated that M.I. was in the habit of playing on and jumping 

from the rocking chair to the fireplace and she believed the rocking chair had fallen over. Also, 

Romero explained that M.I. broke her arm when she fell off of the bed while playing with a 

cousin who had wrapped M.I. in a bed sheet. Romero and Marchant drew a diagram of the scene 

and Romero provided a handwritten affidavit in Spanish, which was translated into English as 

follows:

Silvia Romero affirms that [M.I.] was playing with her daughter and was in the 

bathroom when I suddenly heard a scream. I thought that the child [A.K.] had 

fallen, but it wasn’t so.

I found [M.I.] tossed in the middle of the chimney. I picked her up and wet her 

head with water. And she wasn’t breathing very well but her aunt [Villareal] had 

just left and I called [Villareal] on her cellular and she didn’t answer.

Then[,] I dialed 911 and then they tended to the child and they asked me where 

she had fallen from and I told them from the couch. That is, the rocking chair. I 

wasn’t asked anything else, nothing else, and I am at the clinic.

That night, CPS removed A.K. from Romero’s home. Then, CPS proceeded to terminate 

Romero’s parental rights to A.K. After M.I. was released from the hospital, she went through a 

series of foster homes for approximately a year before she returned to Mexico.

On September 13, 2001, during an interview with the Carrollton police, Romero made a 

second, voluntary statement to Detectives Vick Humphrey and Jose Flores. The statement was 

provided in Spanish and was translated into English as follows:
–5–

This Sunday [I] was in my apartment with my daughters, [M.I.], [A.K.,] and 

[Villareal’s daughter]. Around 4:00 p.m., my sister-in-law came to my apartment

too.

So then we ate and stayed for about five minutes and [Villareal] took [Villareal’s 

daughter]. My daughters and I were watching television. My daughter was 

playing with the control.

So then I told her, “Calm down, because if you don’t, I’m going to spank you.” 

And she wouldn’t calm down.

I got really annoyed and grabbed my girl’s arm and I pushed her hard on the chair 

and the chair went backwards and she hit her head on the floor.

She did not react and I took her to the bathroom and I wet her head and she didn’t 

react and I gave her moth-to-mouth resuscitation and nothing.

And then I called 911. That was when they came and tended to her and I went 

with them. I am sorry about what happened. I am torn because this was an 

accident and I am so regretful and it hurt me a lot.

Romero was arrested in September 2001, indicted for the offense of injury to a child, and 

released on bond in March 2002. After being released on bond, Romero fled to Mexico. The 

case was called for trial on December 9, 2002, but Romero failed to appear and answer. On 

December 11, 2002, Dallas County Criminal District Court No. 4 signed a judgment nisi against 

Romero. Romero lived in Mexico for approximately three years before moving to North 

Carolina with her siblings. Romero was re-arrested in September 2011.

In September 2013, Romero was tried before a jury. During the trial, Villareal testified 

that at the time of trial, M.I. was fifteen years old and living in Mexico with Iniesta. Villareal 

also stated that M.I. is unable to talk or feed herself, walks with difficulty, can move only one 

hand and one eye, and wears a diaper. Dr. Okada, Dr. Swift, and Mathew Cox, M.D., a 

pediatrician who reviewed M.I.’s medical files, provided medical testimony regarding the nature 

and extent of M.I.’s injuries during the trial. Romero testified in her own defense and denied 

harming M.I., stating that she was not in the room at the time of M.I.’s injury and did not know 
–6–

how M.I.’s injuries occurred. The jury found Romero guilty of injury to child. After a hearing 

on punishment, the jury assessed Romero’s punishment at life imprisonment and a $10,000 fine.

II. SUFFICIENCY OF THE EVIDENCE

In issue one, Romero argues the evidence is insufficient to support her conviction. 

Romero contends there is no evidence she intended to cause the injuries resulting from her 

actions. In the alternative, she argues the evidence shows only that she was guilty of the lesser 

included offense of recklessly causing the injury. The State responds that the overwhelming 

evidence allowed a rational jury to find Romero guilty of intentionally or knowingly causing 

serious bodily injury to a child.

A. Standard of Review

When reviewing the sufficiency of the evidence, an appellate court considers all of the 

evidence in the light most favorable to the verdict to determine whether the jury was rationally 

justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–

19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to 

determine whether any rational juror could have found the essential elements of the offense 

beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An 

appellate court is required to defer to the jury’s credibility and weight determinations because the 

jury is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. 

See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All 

evidence, whether properly or improperly admitted, will be considered when reviewing the 

sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart 

v. Nelson, 488 U.S. 33, 41–42 (1988); Jackson, 443 U.S. at 319.
–7–

B. Applicable Law

Section 22.04(a)(1) of the Texas Penal Code states that “[a] person commits [the offense 

of injury to a child] if he intentionally, knowingly, recklessly, or with criminal negligence, by act 

. . . causes to a child . . . serious bodily injury.” TEX. PENAL CODE ANN. § 22.04(a)(1) (West 

Supp. 2014). A person acts intentionally with respect to a result of his conduct when it is his 

conscious objective or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). 

A person acts knowingly with respect to a result of his conduct when he is aware his conduct is 

reasonably likely to cause the result. TEX. PENAL CODE ANN. § 6.03(b). 

The culpable mental state is generally proven by circumstantial evidence. Lopez v. State, 

630 S.W.2d 936, 942 (Tex. Crim. App. [Panel Op.] 1982); Dillon v. State, 574 S.W.2d 92, 94 

(Tex. Crim. App. [Panel Op.] 1978). To determine culpability for an offense, a jury is entitled to 

consider events before, during, and after the commission of the offense. Guevara v. State, 152 

S.W.3d 45, 49 (Tex. Crim. App. 2004); Barron v. State, 566 S.W.2d 929, 931 (Tex. Crim. App.

[Panel Op.] 1982). Proof of a culpable mental state may be inferred from any facts tending to 

prove its existence, including the acts, words, and conduct of the accused. Hart v. State, 89 

S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the extent of the injuries, 

and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. 

Crim. App. 1995) (citing Lindsey v. State, 501 S.W.2d 647, 648 (Tex. Crim. App. 1973)). 

Attempts to conceal incriminating evidence, inconsistent statements, and implausible 

explanations are probative of wrongful conduct and also circumstances of guilt. Guevara, 152 

S.W.3d at 50. Also, Texas law has long recognized that evidence of a defendant’s flight or 

escape is a circumstance from which an inference of guilt may be drawn. See e.g., Bigby v. 

State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State, 876 S.W.2d 877, 903 (Tex. 

Crim. App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); Cantrell v. 
–8–

State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752 

(Tex. Crim. App. 1982); McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980).

C. Application of the Law to the Facts

The record shows that M.I. suffered serious bodily injury. The EMTs and Dr. Okada 

found that M.I. was nonresponsive, posturing, and had a “blown pupil.” Medical imaging 

revealed that M.I. had a large skull fracture and subdural hematoma, and her pancreas was 

lacerated or torn into two pieces. Dr. Swift performed a craniotomy and found that M.I. had 

fresh subdural and epidural hematomas and one long segmented skull fracture that appeared to 

be a couple of weeks old based on the degree of healing. As a result of her injuries, M.I. had to 

be placed in a pentobarbital coma. Further, Villareal testified that, at the time of trial, M.I. was 

fifteen years old, and as a result of her injuries, M.I. remains unable to talk or feed herself, walks 

with difficulty, is unable to move one hand and one eye, and wears a diaper. The jury could infer 

that Romero intentionally or knowingly injured M.I. from the extent of M.I.’s injuries. See

Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from extent of injuries).

The record shows Villareal left Romero’s apartment approximately fifteen minutes before 

M.I. was injured. As a result, Romero and A.K. were the only persons present in the apartment 

at the time M.I. was injured. M.I. was two years old and A.K. was one year old. The evidence 

of M.I.’s age and size compared with that of Romero, who the jury was able to see in court, is a 

circumstance from which the jury could infer that Romero intentionally or knowingly injured 

M.I. See Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from relative size and 

strength of parties).

When asked about M.I.’s injuries, Romero gave inconsistent statements. First, she told 

the 9-1-1 dispatcher that M.I. had fallen off of a couch while jumping and hit her head. Then, 

she told CPS that while she was in the bathroom, she heard a child scream and found M.I. lying 
–9–

on her back by the fireplace and unconscious. Romero stated that she believed while M.I. was 

playing on and jumping from the rocking chair to the fireplace, the rocking chair had fallen over. 

Next, Romero gave police a voluntary written statement admitting that she pushed M.I. At trial, 

Romero claimed that she was not in the room when M.I. was injured. 

In addition, Dr. Okada and Dr. Swift, the treating physicians, and Dr. Cox, the medical 

expert at trial, testified that in their opinions M.I.’s injuries were not consistent with Romero’s 

explanation and were the result of non-accidental trauma. Dr. Swift testified that, in his opinion, 

based on the types of injuries sustained a person would have known that they were going to 

cause bodily injury to the child. Dr. Cox testified that his review of M.I.’s medical file showed 

there has been more than one episode of trauma to M.I., which are not explained by the history 

that was provided by Romero, indicating that her injuries were inflicted and the result of child 

abuse. Also, Dr. Cox stated that “based on the type of injuries, it would be obvious to the person 

there that what happened would be injurious.” Dr. Cox stated that M.I.’s injuries required “high 

force.” Romero’s inconsistent statements to the 9-1-1 dispatcher, CPS workers, and the police, 

and implausible explanations for M.I.’s injuries are circumstances from which the jury could 

infer Romero’s consciousness of guilt. See Guevara, 152 S.W.3d at 50 (inconsistent statements 

and implausible explanations are circumstances of guilt).

Romero was arrested in September 2001, indicted for the offense of injury to a child, and 

released on bond in March 2002. Romero testified that, although she does not speak English and 

the judge did not speak Spanish, she understood the trial judge to say, during her March 26, 2002 

hearing, that she could just go home and never had to return to court. After that hearing, 

Villareal picked Romero up from the jail and Romero stayed with her for approximately four 

months. Then, Romero stated that she went to Mexico because her husband’s father died, her 

husband was supporting her, she did not work, and she was pregnant. However, Villareal 
–10–

testified that, when Romero left Villareal’s home for Mexico, Villareal asked Romero “how she 

gets free from jail,” and Romero told her “she got a call and the Judge tell her just go home.” 

Romero stated she lived in Mexico for three years before moving to North Carolina with her 

siblings. Romero was re-arrested nine years later in September 2011. The evidence of Romero’s 

flight from prosecution is a circumstance from which the jury could infer Romero’s 

consciousness of guilt. See e.g., Bigby, 892 S.W.2d at 883; Burks, 876 S.W.2d at 903; Cantrell, 

731 S.W.2d at 92; Foster, 779 S.W.2d at 859; Rumbaugh, 629 S.W.2d at 752; McWherter, 607 

S.W.2d at 535.

Reviewing all of the evidence in the light most favorable to the jury=s verdict, we 

conclude a rational jury could have found that Romero intentionally or knowingly caused injury 

to M.I., a child. See Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 899. Issue one is 

decided against Romero.

III. JURY CHARGE ERROR

In issue two, Romero argues that she suffered egregious harm when the trial court 

included an instruction in the jury charge that authorized the jury to convict her of injury to a 

child if they found that she “intentionally” engaged in the conduct. She claims that the trial court 

incorrectly defined “intentionally” and that error was egregious because the jury could have 

found her guilty of intentionally engaging in the alleged conduct based upon that incorrect 

definition. Romero concedes that the portion of the jury charge containing the definitions of 

knowingly and recklessly were correct. Finally, Romero acknowledges that no objection was 

raised at trial respecting the definition of “intentionally.”

The State “agrees [] that the definition of ‘intentionally’ should not have included the 

phrase ‘engage in the conduct or.’” However, the State argues that Romero did not suffer 

egregious harm because the application paragraphs show the trial court correctly limited the 
–11–

culpable mental states to the result of Romero’s conduct. Also, the State contends that the jury 

returned a general verdict of guilty of “intentionally or knowingly causing serious bodily injury 

as charged in the indictment,” so the jury could have found that Romero knowingly caused

bodily injury to M.I.

A. Egregious Harm

Article 36.19 of the Texas Code of Criminal Procedure establishes the standard for 

reversal on appeal when the requirements of article 36.14, which relates to the charge of the 

court, have been disregarded: “the judgment shall not be reversed unless the error appearing 

from the record was calculated to injure the rights of [the] defendant, or unless it appears from 

the record that the defendant has not had a fair and impartial trial.” TEX. CODE CRIM. PROC.

ANN. art. art. 36.19 (West 2006). Under Almanza, jury charge error requires reversal of the 

judgment when the defendant has properly objected to the charge and the appellate court finds 

“some harm” to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 

When the defendant fails to object or states that he has no objection to the jury charge, an 

appellate court will not reverse for jury charge error unless the record shows “egregious harm” to 

the defendant. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).

Egregious harm is a difficult standard to prove and such a determination must be done on 

a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Hutch v. 

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The actual degree of harm must be assayed 

in light of: (1) the entire jury charge; (2) the state of the evidence; (3) the argument of counsel;

and (4) any other relevant information revealed by the record of the trial as a whole. Allen v. 

State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. Errors which 

result in egregious harm are those that affect the very basis of the case, deprive the defendant of 
–12–

a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and 

significantly more persuasive. E.g., Taylor, 332 S.W.3d at 490.

B. Application of the Law to the Facts

First, we examine the entire jury charge. See Allen, 253 S.W.3d at 264; Almanza, 686 

S.W.2d at 171. Section 22.04(a)(1) of the Texas Penal Code states that “[a] person commits [the 

offense of injury to a child] if he intentionally, knowingly, recklessly, or with criminal 

negligence, by act . . . causes to a child . . . serious bodily injury.” TEX. PENAL CODE ANN. §

22.04(a)(1). The definition portion of the jury charge states,

A person acts intentionally, or with intent, with respect to [] a result of his 

conduct when it is his conscious objective or desire to engage in the conduct or

cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his 

conduct when he is aware that his conduct is reasonably certain to cause the 

result.

(Emphasis added). The application paragraphs of the jury charge state:

Now if you find from the evidence beyond a reasonable doubt that on or about the 

9th day of September, 2001, in Dallas County, Texas, the defendant, Silvia Romero, 

did then and there knowingly or intentionally cause serious bodily injury to [M.I.], a 

child fourteen years of age or younger, hereinafter called complainant, by throwing or 

pushing complainant into a chair with her hands, a deadly weapon, or causing 

complainant to strike the floor, a deadly weapon, or a fireplace, a deadly weapon, or 

an object, a deadly weapon, the exact nature and description of which is unknown to 

the Grand Jurors, and unknowable to the Grand Jurors;

Or if you find from the evidence beyond a reasonable doubt that the defendant did 

unlawfully then and there knowingly cause serious bodily injury to [M.I.], a child 

fourteen years of age or younger, hereinafter called complainant, by striking the 

complainant against a floor, a deadly weapon, or by striking complainant against a 

fireplace hearth, a deadly weapon, or by striking complainant with and against an 

object, a deadly weapon, the exact nature and description of which is unknown to the 

Grand Jurors, and unknowable to the Grand Jurors, then you will find the defendant 

guilty of knowingly or intentionally causing serious bodily injury to a child as 

charged in the indictment.
–13–

The definition and application portions of the jury charge also included the lesser included 

offense of recklessly causing injury to a child. Neither the State nor Romero objected to the trial 

court’s charge.

The application portion of the trial court’s jury charge alleged three theories by which the 

jury could have found Romero guilty. Although the portion of the jury charge defining 

“intentionally” includes the phrase “engage in the conduct or,” the application paragraph limited 

the offense to “intentionally cause serious bodily injury.”

Second, we review the state of the evidence. See Allen, 253 S.W.3d at 264; Almanza, 686 

S.W.2d at 171. The evidence adduced at trial showed that M.I. suffered serious bodily injury, 

was only two years old at the time of her injuries, Romero and A.K., who was one year old, were 

the only others present in the apartment when M.I. was injured, Romero gave inconsistent 

statements and implausible explanations relating to M.I.’s injuries, and Romero absconded, 

fleeing prosecution for nine years.

Third, we review the argument of counsel. See Allen, 253 S.W.3d at 264; Almanza, 686 

S.W.2d at 171. In the first part of the State’s closing argument, the State argued

What we know beyond all doubt from what you heard from the evidence is that 

this was an intentional act. Every doctor who treated this baby told you this was 

an intentional act. . . . 

This was an intentional act. . . .

I told you that you could look at everything to determine whether a person acted 

intentionally, before, during, after. . . .

The doctors told you that this was an intentional act. The brain, the fractures, all 

the bruising that they saw, this was an intentional violent act, and [Romero] knew, 

because that’s why she fled the country, leaving everything behind.

However, during defense counsel’s closing argument, he referred to the court’s charge, stating, 

in part, the jury had to decide “whether this is intentional, that is, [Romero] intended that this 

result occur.” Then, during the second part of the State’s closing argument, the State argued, in 
–14–

part, “Actually, your job is going to be easy. We know it was an intentional act. We know it 

was her.”

We consider the totality of the circumstances as well as the fact that, although the State 

argued Romero intended the act, the State did not argue or suggest that the jury did not have to 

find that Romero intended to cause the result. Further, it was Romero’s defensive theory that she 

was not present in the room when M.I. was injured and that M.I.’s injury was the result of an 

accident.

Finally, we consider any other information revealed by the record of the trial as a whole. 

See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. The record shows the indictment

alleged Romero “intentionally and knowingly cause[d] serious bodily injury to [M.I.].” Romero 

concedes that the portion of the jury charge containing the definition of knowingly was correct. 

Further, the jury’s verdict states the jury found Romero “guilty of intentionally or knowingly 

causing serious bodily injury to child as charged in the indictment.” Accordingly, the jury could 

have found that Romero knowingly caused serious bodily injury to M.I.

Even though the trial court included an instruction in the jury charge that authorized the 

jury to convict Romero of injury to a child if they found that she intentionally “engage[d] in the 

conduct,” we conclude that Romero has not shown that the error resulted in egregious harm. 

Issue two is decided against Romero.

IV. MODIFICATION OF THE JUDGMENT

In its sole issue on cross-appeal, the State argues the judgment should be modified to 

reflect the correct statute for the offense. The State argues the trial court’s judgment incorrectly 

lists the statute for the offense as section 22.01 of the Texas Penal Code.

Romero was indicted for the offense of injury to a child. Section 22.04(a)(1) of the Texas 

Penal Code states that “[a] person commits [the offense of injury to a child] if he intentionally, 
–15–

knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . . serious bodily 

injury.” TEX. PENAL CODE ANN. § 22.04(a)(1). The jury charge reflects that the jury found 

Romero “guilty of intentionally or knowingly causing serious bodily injury to a child as charged 

in the indictment.” The trial court’s judgment states that Romero was convicted of the offense of 

“Injury to a Child Serious Bodily Injury.” However, the trial court’s judgment also lists the 

statute for the offense as “22.01 Penal Code.” Section 22.01 of the Texas Penal Code defines the 

offense of assault. TEX. PENAL CODE ANN. § 22.01 (West Supp. 2014). 

An appellate court has the authority to modify an incorrect judgment to make the record 

speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b); 

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we conclude the trial 

court’s judgment should be modified to reflect the correct statute for the offense, which is section 

22.04 of the Texas Penal Code. Issue one of the State’s cross-appeal is decided in favor of the 

State.

Also, although neither party raises the issue, we observe the judgment states that the

deadly weapon finding was “N/A.” However, the indictment alleged Romero:

unlawfully then and there intentionally and knowingly cause[d] serious bodily 

injury to [M.I.], a child 14 years of age or younger, hereinafter called 

complainant, by throwing and pushing complainant into a chair with her 

hands, a deadly weapon, and causing complainant to strike the floor, a 

deadly weapon, and a fireplace, a deadly weapon, and object, a deadly 

weapon, the extant nature and description of which is unknown to the Grand 

Jurors, and unknowable to the Grand Jurors.

and did unlawfully then and there knowingly cause[d] serious bodily injury to 

[M.I.], a child 14 years of age or younger, hereinafter called complaint, by 

striking the complainant against a floor, a deadly weapon, and by striking 

complainant against a fireplace hearth, a deadly weapon, and by striking 

complainant with an against an object, a deadly weapon, the exact nature and 

description of which is unknown to the Grand Jurors, and unknowable to the 

Grand Jurors.
–16–

(Emphasis added). Also, the jury charge “instructed that a deadly weapon is a firearm, or 

anything manifestly designed, made, or adapted for the purpose of inflicted death or serious 

bodily injury, or anything that in the manner of its use or intended use is capable of causing 

death or serious bodily injury.” The application paragraphs also referred to the use of a deadly 

weapon. The jury found Romero guilty as charged in the indictment. See Crumpton v. State, 

301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (jury’s verdict was finding that defendant used 

deadly weapon as verdict expressly found defendant guilty of the offense “as included in the 

indictment” and indictment expressly alleged defendant committed offense with “a deadly 

weapon). Accordingly, we conclude the trial court’s judgment should be modified to state that 

the jury found Romero used a “deadly weapon, not a firearm.” See TEX. R. APP. P. 43.2(b); 

Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30 (appellate court has authority to 

sua sponte modify incorrect judgment to make record speak the truth when it has necessary 

information to do so).

V. CONCLUSION

The evidence is sufficient to support Romero’s conviction. Also, even though the trial 

court included an instruction in the jury charge that authorized the jury to convict Romero of 

injury to a child if they found that she intentionally “engage[d] in the conduct,” Romero has not 

shown that she suffered egregious harm. Further, the judgment lists an incorrect statute for the 

offense and fails to list that Romero used a deadly weapon.
–17–

The trial court’s judgment is affirmed as modified.

Do Not Publish

TEX. R. APP. P. 47

131586F.U05

/ Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
–18–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

SYLVIA ROMERO, Appellant

No. 05-13-01586-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 6, Dallas County, Texas

Trial Court Cause No. F-01-16575-X.

Opinion delivered by Justice Lang. Justice 

Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows:

(1) The portion of the trial court's judgment that states "Statute for Offense: 22.01 

Penal Code" is modified to state "Statute for Offense: 22.04 Penal Code”; and

(2) The portion of the trial court’s judgment that states “Findings on Deadly 

Weapon: N/A” is modified to state “Findings on Deadly Weapon: Deadly 

Weapon, Not a Firearm.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 17th day of April, 2015.