NUMBER 13-10-00396-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ALMA LINDA VILLARREAL, Appellant,

v.

THE STATE OF TEXAS, Appellee. 

 

On appeal from the 117th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Justice Rose Vela 
2

Appellant, Alma Linda Villarreal, was indicted1along with co-defendants, Vanessa 

Zuniga and Yolanda Zuniga, for the first-degree felony offense of injury to a child. See

TEX. PENAL CODE ANN. § 22.04(a), (e) (West Supp. 2011). The three were tried together, 

and a jury found appellant guilty and assessed her punishment at thirty years' 

imprisonment. By two issues, appellant argues the trial court: (1) abused its discretion 

by failing to instruct the jury on the lesser-included offense of reckless injury to a child; 

and (2) erred by charging the jury regarding the nature of her conduct as well as the result 

of her conduct. We affirm.

I. FACTUAL BACKGROUND

A. State's Evidence

This case involves the near-starvation death of three-year-old I.V., who lived with 

appellant, his biological mother, her girlfriend, Vanessa Zuniga2, and Vanessa's mother,

Yolanda Zuniga. On the afternoon of February 27, 2009, Jose Zuniga, arrived at I.V.'s 

home and saw appellant crying while Yolanda called an ambulance. Rather than wait for 

an ambulance, Jose rushed I.V. to Spohn Hospital South emergency room, where I.V. 

stopped breathing. Amalia Tinoco, M.D., resuscitated him and discovered his blood 

sugar was 3, which is extremely low. After infusing him with glucose, his blood sugar 

rose to 79, a normal level. She testified I.V. was dying and looked severely 

 

1

Paragraph one of the indictment alleged, in relevant part, that appellant on or about February 27, 

2009, "intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15 

years of age, by failing to provide adequate nutrition and/or nourishment to [I.V.], and ALMA VILLARREAL 

had a legal and/or statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ." 

Paragraph two of the indictment alleged, in relevant part, that appellant on or about February 27, 2009, 

"intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15 years 

of age, by failing to provide adequate medical care to [I.V.] and ALMA VILLARREAL had a legal and/or 

statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ." 

2

Vanessa Zuniga's appeal is still pending with this Court.
3

malnourished and dehydrated. She stated in "a few more minutes his heart would 

probably have stopped completely, . . . ." Even though appellant told Dr. Tinoco I.V. ate 

a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard to believe that he ate at 

11:00 a.m. and by 1:30 p.m., his blood sugar was 3. Dr. Tinoco blamed malnutrition as 

the cause of his low blood sugar. After treating I.V., she transferred him to Driscoll 

Children's Hospital.

I.V. arrived at Driscoll in "serious condition." He had "exposure of every bony 

prominence", "very visible ribs", and "no body fat." His treating pediatrician, Dr. Rivera,3

testified he "looked like he was malnourished." Appellant told him I.V. was always 

hungry and always ate a lot but never gained any weight. However, Dr. Rivera testified 

this account was inconsistent with I.V.'s condition and stated that "usually when 

somebody is always hungry, it usually kind of steers you away from something that is 

primarily going on with his, . . . stomach or intestinal tract." He said, "[I]f you ingest 

normal calories or excess calories a child should be thriving." When the prosecutor 

asked Dr. Rivera, "[W]ere tests performed on [I.V.] to see if there was an organic reason 

for him being that way?," he said, "Yes, there were numerous tests . . . but all those tests 

were basically normal."

About 4:00 p.m. that day, Nancy Harper, M.D., a board certified specialist in child 

abuse pediatrics, examined I.V. She described him as a "frail, frail appearing child, like a 

skeleton lying on the bed." She stated his "belly was like all scaphoid, it was sunk down 

and with the degree of starvation, malnutrition I was seeing." When she asked I.V. if he 

 

3 When the prosecutor called Dr. Rivera as a witness, she did not state Dr. Rivera's first name. Dr. 

Rivera did not state his first name when he testified.
4

had eaten anything that day or the day before, he said, "No." He told her he was unable 

to walk or run. She interviewed appellant, who told her I.V. had eaten plenty of food. 

Dr. Harper testified this "history was not consistent with what we saw, . . . . If he had 

been able to eat that many calories in the days leading up to when he came in, he would 

not have developed life-threatening refeeding syndrome when we started to feed him." 

She testified he "had extreme starvation from deprivation of food." 

Later that day, appellant went to the police station and gave a video-taped 

statement4to Detective Tanya Flores. In this statement, she indicated that in the 

morning of February 27, 2009, I.V. had eaten three eggs with ketchup, a slice of bread,

and a glass of milk. 

Belinda Loera, a social worker at Driscoll Children's Hospital, testified that on 

December 1, 2008, she met with appellant and I.V. at the hospital. Appellant was 

concerned because I.V. had lost weight, and appellant explained to Loera she "noticed 

some changes in his [I.V.'s] eating behaviors going on about ten months." Even though 

appellant told Loera that I.V. "hoarded his food", "would eat everything around him", "ate 

out of the trash can", and "ate more than his older sisters, who were 10 and 12", appellant 

could not identify his favorite food and did not know his feeding schedule or his sleeping 

patterns. Appellant told her Vanessa was I.V.'s primary caregiver. Regarding the 

events of February 27, 2009, appellant told Loera I.V. had breakfast that morning and 

usually ate three scrambled eggs, ketchup, a slice of toast and a glass of milk. Around 

eleven or twelve, she passed by I.V.'s room and found him unresponsive, limp, and barely 

 

4 During the State's case-in-chief, the trial court admitted the videotape into evidence as State's 

exhibit 2. The prosecutor played the tape to the jury.
5

breathing. Appellant told Loera, "she [appellant], Vanessa, and Yolanda were 

caretakers at that point." Loera testified this "was a change compared to my assessment 

before." When the prosecutor asked Loera, "So she said that all three of them took care 

of him [I.V.] now, rather than just Vanessa?," she said, "Yes."

Appellant's oldest daughter, A.G.G., who lived with I.V., noticed I.V. was getting 

"skinny" and "was always laying down." She testified he did not get to eat every day and 

said Vanessa was the one who would not let him have food. She stated there were times 

when Vanessa would make her eat in front of I.V. and would not let him have any food. 

Sometimes Vanessa would deprive him of food for one meal, an entire day, or more than 

one day. When the prosecutor asked A.G.G. what appellant would do when Vanessa 

would not let I.V. eat, she said, "She wouldn't be there, or at work, or doing something 

else downstairs." When asked if appellant would feed I.V., she said, "We were the ones 

that fed him." By "We" she meant herself, her younger sister, and Vanessa. 

On cross-examination, defense counsel asked A.G.G. about a birthday party 

which occurred about two weeks before I.V. was rushed to the hospital ER. A.G.G. 

recalled I.V. attended the party and was "real skinny" and had "real loose skin." She 

testified he was "always hungry" and "always in his room laying down under the covers." 

She said appellant would go to work early in the morning and return home by lunch time. 

When defense counsel asked A.G.G., "Do you think that Vanessa at any time tried to 

keep him [I.V.] from having food?," she said, "Sometimes."

Appellant's second oldest daughter, A.G., who also lived with I.V., replied, "Yes, I 

think" when asked if appellant knew "that Vanessa wouldn't give [I.V.] food?" She said 
6

that when appellant "would take Vanessa out, she [appellant] would call for my grandma 

Yoli [Yolanda Zuniga] to give him food." When the prosecutor asked her, "But Were [sic] 

there days that [I.V.] still didn't get to eat in the whole day?," she said, "Yes." According 

to A.G., Yolanda only gave I.V. food when Vanessa was gone and Vanessa "sometimes" 

got mad when people gave I.V. food. She said Vanessa would spank I.V. with a belt, hit 

him with her hand, and spit on him.

On cross-examination, when defense counsel asked A.G., "Do you know why he 

[I.V.] was skinny?," she said, "Because Vanessa starved him." A.G. testified that at 

night, I.V. ate food out of the garbage can.

B. Defense Evidence

Vanessa's cousin, Rosa Ramirez, visited appellant's home numerous times. She 

noticed I.V. was always skinny and his ribs were visible. She told appellant I.V. looked 

skinny. Vanessa's niece, Samantha, testified she never saw anyone prevent I.V. from 

eating, and she never saw appellant act mean towards him.

Vanessa's sister, Lisa Ramirez, testified that when she went to Vanessa's house, 

she never saw anyone denying I.V. food or liquids. However, she saw him "being 

extremely skinny." She stated appellant "always worried about why he was so skinny. . . 

. [A]nd that's why she had took him to the doctor, because he would eat all the time and 

then his stomach would get real hard." 

Vanessa's cousin, Jessica Marquez, testified that every time she saw I.V., he was 

eating. She never saw anyone mistreating him but said he was "real skinny."
7

Vanessa's cousin, Sylvia Marquez, testified that when she saw I.V., he was "thin." 

However, she did not think anything was wrong with him and never saw anyone deny him 

food or water. She said Vanessa and appellant took responsibility for making sure the 

kids were dressed and fed.

Appellant's sister, Amy Valdez, testified appellant never abused the children and 

never kept them from eating. Rebecca Andrade, who used to baby sit appellant's 

children, testified none of appellant's children ever told her they were being abused by 

anyone. However, she testified I.V. looked "very skinny."

Yolanda Zuniga testified that in December 2008, appellant took I.V. to Driscoll 

Children's Hospital because appellant was concerned about him being thin. After his 

discharge, appellant told her, "'They said it was just failure to thrive'" and "'there is nothing 

wrong with him.'" She stated appellant "told me that they had told her just to follow up in 

a couple of days." When the prosecutor asked Yolanda, "Did you ever ask [appellant], 

'Why didn't you take him back, . . . ?,'" Yolanda answered affirmatively and said appellant 

"would say she was going to set up an appointment for him." When asked, "And did she 

set up an appointment for him?," she said, "I guess not." During January and February 

2009, I.V. continued to be very thin, and Yolanda told appellant about his condition. 

Yolanda claimed to have fed I.V. during this two-month period and never saw anyone 

deny him food. She told the police she, Vanessa, and appellant took charge of taking 

care of the children and that typically Vanessa fed them. Yolanda said the last few days 

before I.V. was taken to Spohn Hospital, "he . . . look[ed] like he is starved." She told 

appellant that "[I.V.] is very skinny. Take him to the doctor."
8

Vanessa Zuniga testified she never abused I.V. When asked about the events 

leading up to I.V.'s hospitalization in December 2008, she said, "He [I.V.] started losing 

too much weight and we were worried about him so she [appellant] . . . and my mom 

[Yolanda] took him to the hospital . . . and that's when they told her that he looked like he 

was starving. . . ." After I.V. was discharged, appellant told Vanessa "he had to come 

see the doctor again in a couple of days." According to Vanessa, appellant did not bring 

I.V. back to the doctor as requested. Vanessa said she never withheld food from I.V. and 

stated, "I did not starve [I.V.]. He was always fed either by me, by his mother, by my 

mother, by friends, . . . . He was not starved."

Appellant testified she took I.V. to Driscoll Children's Hospital in December 2008 

because "I saw he was losing weight." While at Driscoll, I.V. was examined by Jennifer 

Davis, M.D., who told appellant, "'Oh, my God. He looks like he is starving.'" In reply, 

appellant told Dr. Davis, "'Yes, he does.'" She told Dr. Davis that even though "'he eats a 

lot.,'" "he is not gaining no weight, . . . ." Dr. Davis admitted I.V. into the hospital, where 

he stayed for about four days. Appellant testified that while I.V. was in the hospital, he 

was examined by Dr. Flores, who told her I.V. "could be stressing over something. . . . 

[S]omething in his head, he could be jealous because I had had a baby, because he 

wasn't the baby no more." When I.V. was discharged, no one gave appellant any 

instructions. 

She stated in February 2009, she took I.V. to the Spohn Hospital ER. When 

defense counsel asked her if she "at any time had anything to do with [I.V.] collapsing 

prior to going to Spohn?," she said, "No" and stated she never told Dr. Tinoco I.V. ate a 
9

hamburger the day he arrived at the ER. When defense counsel asked her, "Did you 

intentionally or knowingly keep [I.V.] from receiving nutrition and food?," she said, "No I 

did not." When asked, "Did you intentionally, knowingly, and by omission not try to seek 

medical attention for your son?," she said, "No." When asked why she did not call the 

doctor between the time I.V. was discharged in December 2008 and taken to the ER in 

February 2009, she said, "[H]e was fine. He had none of those symptoms. He was fine. 

He was himself. . . . I did what they told me to do, take him home, do what you've been 

doing; that's what I did." However, when asked, "Do you feel that whatever happened to 

[I.V.] is your responsibility?," she said, "He is my son; yes."

On cross-examination, appellant testified the reason she did not take I.V. to the 

doctor on February 26, 2009 was because I.V. "didn't want to go. He don't like doctors." 

She also said, "[H]e was fine." However, when the prosecutor asked her, "Is that your 

job as a parent, to do what your children need, regardless of whether or not they like it?," 

she said, "Yes, it is."

II. DISCUSSION

A. Lesser Included Offense Instruction

By her first issue, appellant contends the trial court abused its discretion by failing 

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

1. Applicable Law

"Determining whether a defendant is entitled to a lesser-included-offense 

instruction requires a two-part analysis." Goad v. State, 354 S.W.3d 443, 446 (Tex. 

Crim. App. 2011) (citing Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). 
10

"We first consider whether the offense contained in the requested instruction is a 

lesser-included offense of the charged offense." Id. (citing Rice v. State, 333 S.W.3d 

140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535). "If so, we must decide 

whether the admitted evidence supports the instruction." Id. (citing Rice, 333 S.W.3d at 

144). Reckless injury to a child is a lesser-included offense of intentional or knowing 

injury to a child. Torres v. State, 979 S.W.2d 668, 670 n.2 (Tex. App.—San Antonio 

1998, no pet.); Downing v. State, 761 S.W.2d 881, 883 (Tex. App.—Fort Worth 1988, no 

pet.).

"The evidence supports an instruction on a lesser-included offense if it permits a 

rational jury to find the defendant guilty only of the lesser-included offense." Goad, 354 

S.W.3d at 446 (citing Rice, 333 S.W.3d at 145). "'[T]here 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.'" Id. (quoting Hampton v. State, 

109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). "We consider all of the evidence admitted 

at trial, not just the evidence presented by the defendant." Id. (citing Rousseau v. State, 

855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). "The evidence must establish that the 

lesser-included offense is a valid, rational alternative to the charged offense." Id. (citing 

Rice, 333 S.W.3d at 145). "'Anything more than a scintilla of evidence is sufficient to 

entitle a defendant to a lesser charge.'" Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 

(Tex. Crim. App. 1994)). "However, we may not consider '[t]he credibility of the evidence 

and whether it conflicts with other evidence or is controverted.'" Id. at 446–47 (quoting 

Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1992)).
11

2. Analysis

Concerning the offense of injury to a child, the penal code provides, in relevant 

part:

(a) A person commits an offense if he intentionally, knowingly, recklessly, or 

with criminal negligence, by act or intentionally, knowingly, or recklessly by 

omission, causes to a child, . . .:

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or injury; or

(3) bodily injury.

TEX. PENAL CODE ANN. § 22.04(a)(1)–(3). Section 6.03 of the penal code defines the 

culpable mental states relevant to this case as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of 

his conduct or to a result of his conduct when it is his conscious objective or 

desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of 

his conduct or to circumstances surrounding his conduct when he is aware 

of the nature of his conduct or that the circumstances exist. 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.

(c) A person acts recklessly, or is reckless, with respect to circumstances 

surrounding his conduct or the result of his conduct when he is aware of but 

consciously disregards a substantial and unjustifiable risk that the 

circumstances exist or the result will occur. The risk 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. § 6.03(a)–(c) (West 2003).

In Williams v. State, the Fort Worth Court of Appeals interpreted the distinction 

between the culpable mental state of "recklessness" and the culpable mental states of 
12

"intentional" and "knowing" as follows:

Recklessness, defined in Subsection (c), differs markedly from 

intentional and knowing. Recklessness is conscious risk creation; the 

reckless person does not desire that the risk occur nor is he even 

reasonably certain that it will occur; he does perceive it, however, and if the 

risk is substantial, he disregards it, and his disregard is plainly unjustifiable, 

then he is criminally responsible for whatever harm his recklessness 

produced.

Many examples of recklessness come to mind. Driving while 

intoxicated, speeding through a school zone when children line the sides of 

the street, plinking at beer cans in a lake while water skiers go by in the 

center of the lake, chasing a traffic violator through a residential area at 100 

miles an hour. In all of these examples the fact-finder would infer that the 

actor perceived the risk—of running down a child, of shooting a skier, of 

smashing into a parked car—and that he consciously disregarded it.

Williams v. State, 704 S.W.2d 156, 158 (Tex. App.—Fort Worth 1986, no pet.) (citation 

omitted).

The evidence in this case established appellant is the biological mother of I.V., the 

injured three-year-old child. She was responsible for caring for the child. In December 

2008, she took him to Driscoll Children's Hospital, where he was admitted. Even though 

I.V. was thin, he was sufficiently healthy for hospital staff to eventually discharge him to 

appellant's care. Thereafter, I.V. remained skinny, and the evidence showed appellant 

knew he was skinny. While living with appellant, I.V. nearly died from malnutrition and 

dehydration. The evidence does not show appellant took I.V. to the doctor after his 

December 2008 discharge from Driscoll Children's Hospital. When he arrived at Spohn 

Hospital South on February 27, 2009, he had stopped breathing. Even though appellant 

told Dr. Tinoco I.V. ate a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard 

to believe he ate at 11:00 a.m. and his blood sugar was 3 by 1:30 p.m. Dr. Tinoco 
13

blamed malnutrition as the cause of his low blood sugar.

Appellant testified the reason she did not take I.V. to the doctor on February 26, 

2009 was because he "didn't want to go. He don't like doctors." She also stated, "[H]e 

was fine." However, on February 27, 2009, I.V. told Dr. Harper he had not eaten that day 

or the day before. When he was brought to Driscoll Children's Hospital on February 27, 

2009, Dr. Harper described him as a "frail, frail appearing child, like a skeleton lying on the 

bed." The evidence does not show appellant had a visual impairment which kept her 

from seeing I.V.'s physical condition. I.V. could not have looked "fine" on February 26, 

2009 when the next day he looked "like a skeleton lying on the bed." 

We do not find conduct of this nature to be of a similar character with the examples 

cited by the Williams court as examples of recklessness. All of the cited examples are 

acts which create a risk of harm but are not necessarily harmful in and of themselves. 

The omissions committed by appellant were of a different character in that her conduct 

was directly harmful to the child. The evidence showed it was appellant's intention to 

cause serious bodily injury to I.V. No evidence exists that if appellant is guilty, she is 

guilty only of the lesser-included offense of recklessly causing bodily injury to a child. 

Therefore, we hold the trial court did not err by failing to instruct the jury on the 

lesser-included offense of recklessly causing serious bodily injury to a child. Issue one is 

overruled.

B. Culpable Mental State

In her second issue, appellant contends the trial court erred in charging the jury 

with respect to the nature of her conduct as well as the result of her conduct.
14

1. Standard of Review for Charge Error

"[A]n appellate court's first duty in evaluating a jury charge issue is to determine 

whether error exists. Then, if error is found, the appellate court should analyze that error 

for harm." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in the 

case before us, "no proper objection was made at trial and the accused must claim that 

the error was 'fundamental,' he will obtain a reversal only if the error is so egregious and 

created such harm that he 'has not had a fair and impartial trial'—in short 'egregious 

harm.'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 

2. The Court's Instruction

Injury to a child is a result-oriented offense, requiring a mental state that relates not 

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

242, 750 (Tex. Crim. App. 2007). In the case before us, appellant was charged with 

intentionally or knowingly engaging in conduct that caused serious bodily injury to a child 

younger than fifteen years of age. Without objection, the trial court instructed the jury 

with the full text of the language set forth in section 6.03(a) of the Texas Penal Code: "A 

person acts intentionally, or with intent, with respect to the nature of his conduct or to a 

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

or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (emphasis added). Because 

injury to a child is a result-oriented crime, the definition of "intentionally" submitted to the 

jury should have focused exclusively on the result of the conduct. 
15

3. Harm Analysis

Having determined the trial court erred by failing to properly instruct the jury, we 

examine the record to determine whether appellant was egregiously harmed. Almanza, 

686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be "assayed 

in light of the entire jury charge, the state of the evidence, including the contested issues 

and weight of the probative evidence, the argument of counsel, and any other relevant 

information revealed by the record of the trial as a whole." Id.; see Ngo v. State, 175 

S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). "Jury-charge error is egregiously harmful 

if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally 

affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 

2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). We engage 

in this assessment to illuminate the actual, not just theoretical, harm to the accused. 

Almanza, 686 S.W.2d at 174. In addition, egregious harm is a difficult standard to meet 

and must be determined on a case-by-case basis. See Hutch, 922 S.W.2d at 171.

In the present case, the application paragraph specific to appellant charged the 

jury to find her guilty only if she "intentionally or knowingly by omission cause[d] serious 

bodily injury to [I.V.], . . . ." When the facts, as applied to the law in the application 

paragraph, point the jury to the appropriate portion of the definitions, no harm results from 

the trial court's failure to limit the definition of culpable mental states in the abstract portion 

of the charge. Hughes v. State, 897 S.W.2d 285, 296–97 (Tex. Crim. App. 1994); see 

also Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Patrick v. State, 906 

S.W.2d 481, 492–493 (Tex. Crim. App. 1995). In the present case, the application 
16

paragraph applicable to appellant did correctly limit the jury's consideration to a 

result-oriented offense in which she intentionally or knowingly caused serious bodily

injury. 

In addition, during guilt-innocence closing argument, appellant's defense counsel 

argued that the evidence failed to show appellant did anything to intentionally or 

knowingly hurt I.V. and alluded to the State's theory that appellant deprived her son of 

food. Accordingly, both the application paragraph and defense counsel's argument 

steered the jury to the correct mental state for a result-oriented offense.

Finally, appellant's theory of defense throughout the trial, and as explained in final 

argument, was that her son's weight loss was not caused by appellant's failure to feed or 

care for him, but by other medical conditions, including diabetes and sickle cell anemia. 

Accordingly, even if the jury had been confused about the necessary mental state and 

thought that it could find appellant guilty if she intentionally or knowingly starved I.V., but 

without the intent to cause serious bodily injury, that was not the theory of defense and, 

realistically, would not have helped appellant. A child like I.V., who is nearly starved to 

death, is a seriously injured child and it strains common sense to believe a jury would 

have found appellant intended not to feed or care for the child but failed to find she 

thereby intended to, or knew that it would, cause him serious bodily injury.

5

 Issue two is 

overruled.

 

5

"'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes 

death, serious permanent disfigurement, or protracted loss of impairment of the function of any bodily 

member of organ." TEX. PENAL CODE ANN. § 1.07(a)(46) (West 2011). 
17

III. CONCLUSION

We affirm the trial court's judgment.

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

5th day of April, 2012.