Opinion filed February 26, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00041-CR 

__________

DANNA PRESLEY CYR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Gaines County, Texas

Trial Court Cause No. 18-4835

O P I N I O N

The jury convicted Appellant, Danna Presley Cyr, of recklessly, by omission, 

causing serious bodily injury or serious mental deficiency, impairment, or injury to

a child fourteen years of age or younger. See TEX. PENAL CODE ANN. § 22.04 (West 

2019) (injury to a child). The jury assessed Appellant’s punishment at confinement 

in the Institutional Division of the Texas Department of Criminal Justice for a term 

of fifteen years. 
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In two issues on appeal, Appellant asserts that (1) the trial court erred in 

denying Appellant’s proposed jury instruction and (2) the evidence was legally 

insufficient to support the verdict. We reverse and remand. 

Background facts

On the night of the incident, Appellant and her husband, Justin Cyr, were at 

home near Denver City with their children J.D. and E.P. E.P. was five years old

when the incident occurred, and J.D. was only four months old. E.P. testified that 

she saw Justin in the living room with J.D. while Appellant was in the kitchen. J.D. 

was crying, and Justin began to choke J.D.—while shouting obscenities at J.D.—to 

make J.D. “shut up.” The record is unclear at what point Appellant became aware 

of Justin’s conduct, but Appellant entered the living room and told Justin to “stop 

hurting the baby.”

From the court reporter’s transcription of the testimony given at trial, we note 

that neither of J.D.’s sisters who testified—E.P. and B.P.—stated that they had ever 

seen any violent shaking of their infant sister. The eldest child, B.P., stated that she 

had seen Justin—“more than once”—“choke” J.D. when J.D. would not stop crying. 

However, when questioned further, B.P. described to the jury only a single particular 

incident, and there was no testimony of anyone witnessing a violent shaking of J.D. 

B.P. testified as follows:

Q. Now, did you ever see Justin do anything else to baby [J.D.] 

other than choking baby [J.D.]?

A. It’s been a long time, I don’t remember. 

B.P. could not recall if Justin used one or both hands. She gave no direct 

testimony that Appellant was there or knew of this previous incident. B.P. was not 

present during the incident on the night of June 29, 2013, that actually led to the 

hospitalization of J.D. on June 30. The younger sister, E.P., also testified. It was 

only E.P. who gave testimony of the events of the night of the incident as she saw 
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them from the hallway on the evening of the 29th. E.P. testified that, from the 

doorway of her bedroom, she saw Justin choking (not shaking) J.D.:

Q. . . . Can you tell the jury what you saw?

A. I saw Justin choking her. 

Q. What else was he doing to her?

A. That’s all I know. 

Appellant, who had been in the kitchen, came into the living room and 

intervened, telling Justin “to stop hurting [J.D.].” At no time did E.P. state that she 

saw anyone shaking J.D., nor did E.P. state that Appellant would have seen anyone 

violently shaking J.D. While B.P. testified that she had witnessed Justin choke J.D. 

on prior occasions, B.P. was unsure whether she had ever told Appellant about the 

incidents or whether Appellant was ever aware of the previous incidents of harm. 

Of course, choking an infant is a heinous and abusive act, but it was violent shaking 

that the medical testimony concluded was the cause of brain injury to J.D. 

Soon after Appellant intervened on June 29, she noticed J.D. “to be pail, limp 

and flailing arms about” for approximately twenty minutes—after which time J.D. 

apparently began acting normal again. Appellant and Justin called Justin’s mother, 

a retired nurse, asking about the symptoms, and she told them to give J.D. Tylenol 

and watch J.D.’s condition; they followed her advice. Appellant and Justin did not 

take J.D. to the hospital at that time. 

The next day, around 11:00 a.m., J.D. began having spasms, and Appellant 

and Justin took J.D. to the hospital in Lubbock. At the hospital in Lubbock, the 

medical team was concerned that J.D.’s injuries were caused by child abuse and 

called a special investigator with Child Protective Services (CPS) to look into the 

matter. Chief Deputy Patrick Kissick was assigned to the case. He spoke to the CPS 

investigator and then proceeded to the hospital to speak with Justin and Appellant. 

While speaking with Deputy Kissick at the hospital, Justin stated that he did not take 
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J.D. to the hospital in Denver City because he did not trust the doctors there. 

However, Appellant, “later in the summer,” stated to her mother that they did not 

take J.D. to the hospital in Denver City because “Justin wanted to avoid CPS.” Both 

Appellant and Justin repeated Justin’s explanation that J.D.’s symptoms may have 

been caused by a “hard bowel movement,” but neither mentioned Justin’s actions.

Medical professionals examined J.D. and conclusively ruled out the 

possibility of her injuries being caused by a hard bowel movement; rather, the 

hemorrhaging in J.D.’s eyes and brain and the subdural hematoma were consistent 

with being violently shaken. Based on the evidence, Deputy Kissick obtained an 

arrest warrant and arrested Justin and Appellant for child abuse. During an 

interview, Appellant largely remained silent, but she stated that she was not aware 

of Justin’s prior history of family violence and that she had told Deputy Kissick the 

truth at the hospital. 

Dr. Curt Cockings, a pediatric ophthalmologist, testified that the retinal 

hemorrhaging seen in J.D.’s eyes was the result of being shaken using “very 

violent[,] severe, powerful forces.” Dr. Patty Patterson, a board-certified 

pediatrician with a certified subspecialty in child abuse pediatrics, testified that J.D.

presented with subdural hemorrhaging from ruptured bridging veins, which go 

across from the skull down into the arachnoids, and with swelling of the brain, which 

ultimately caused extensive damage to the brain tissue. The swelling reduced the 

blood and oxygen flow to J.D.’s brain. Dr. Patterson testified that the cause of J.D.’s 

injuries was a shaking of the child such that her delicate infant brain impacted 

repeatedly with the skull, stretching and exceeding the strength of the bridging veins,

which then ruptured.

Appellant was indicted for recklessly, by omission, causing serious bodily 

injury or serious mental deficiency, impairment, or injury to a child by either failing 

to protect J.D. from Justin or failing to seek reasonable medical care for J.D. when 
5

she had a duty to protect and care for J.D. After a trial on the merits, the jury 

convicted Appellant and sentenced her to fifteen years’ confinement in the 

Institutional Division of the Texas Department of Criminal Justice. This appeal 

followed. 

Analysis

I. Concurrent Cause Instruction

In her first issue, Appellant contends that the trial court erred in denying 

Appellant’s proposed jury instruction on concurrent causation. The trial court 

included in its charge to the jury an abstract section with the essential elements of 

the offense, certain penal definitions, the law of parties, an application paragraph, 

the burden of proof, and other essential instructions. However, the trial court did not 

include an instruction on concurrent causation. Before the trial court read its charge 

to the jury, Appellant objected to the charge, stating that the charge failed to 

adequately include the statutory definition of “causation.” Appellant’s counsel cited 

Section 6.04 of the Penal Code, dictated the rule for concurrent causation to the trial

court, and requested the trial court to include an instruction on concurrent causation 

in the court’s charge. See PENAL § 6.04 (West 2011). Appellant stated that an 

instruction for concurrent causation should have been given because (1) the issue of 

concurrent causation was raised by the evidence, (2) Appellant centered her case 

around it, and (3) to deny the instruction would deprive Appellant of a fair trial. The 

trial court overruled the objection. 

Appellant asserts that, because there was some evidence that Justin’s conduct 

was clearly sufficient to cause the injuries and that Appellant’s conduct was clearly 

insufficient to cause them, she was entitled to an instruction on the defense of 

concurrent causation. Therefore, Appellant contends, the trial court erred in failing 

to give the instruction, and Appellant was harmed by the court’s error. We agree. 
6

“[A]ll alleged jury-charge error must be considered on appellate review 

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Crim. App. 2012). In reviewing a jury charge, we first determine whether 

error occurred. Id. If no error occurred, our analysis ends. Id. If error occurred and 

was the subject of a timely objection in the trial court,

then reversal is required if the error is “calculated to injure the rights of 

defendant,” which means no more than that there must be some harm 

to the accused from the error. In other words, an error which has been 

properly preserved by objection will call for reversal as long as the error 

is not harmless. 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see Carter v. State,

No. 11-17-00264-CR, 2019 WL 4316812, at *5 (Tex. App.—Eastland Sept. 12, 

2019, no pet.) (mem. op., not designated for publication). In all situations, “the 

actual degree of harm must be assayed in light of the entire jury charge, the state of 

the evidence, including the contested issues and weight of probative evidence, the 

argument of counsel and any other relevant information revealed by the record of 

the trial as a whole.” Almanza, 686 S.W.2d at 171. 

A. Error

“If a defense is supported by the evidence, then the defendant is entitled to an 

instruction on that defense, even if the evidence supporting the defense is weak or 

contradicted, and even if the trial court is of the opinion that the evidence is not 

credible.” Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007); see

Remsburg v. State, 219 S.W.3d 541, 545 (Tex. App.—Texarkana 2007, pet. ref’d)

(citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)). “Conversely, 

the defendant is not entitled to an instruction that is not raised by the evidence.” 

Remsburg, 219 S.W.3d at 545; see Shaw, 243 S.W.3d at 658. Therefore, whether 

the trial court erred in refusing to give an instruction depends upon whether the issue 

was raised during trial. See Shaw, 243 S.W.3d at 658. “In deciding whether a 
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defensive theory is raised, the evidence is viewed in the light most favorable to the 

defense.” VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.—Austin 2005, no 

pet.) (citing Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)).

Section 6.04 of the Penal Code states: “A person is criminally responsible if 

the result would not have occurred but for his conduct, operating either alone or 

concurrently with another cause, unless the concurrent cause was clearly sufficient 

to produce the result and the conduct of the actor clearly insufficient.” PENAL

§ 6.04(a) (emphasis added); see also Robbins v. State, 717 S.W.2d 348, 350–52 

(Tex. Crim. App. 1986) (clarifying the “unless” language to constitute a limitation 

on concurrent causes). 

No standard exists, under Section 6.04 or any other authority, “that would help 

determine when the conduct of a party, but for which the result in question would 

not have occurred, is ‘clearly sufficient’ or ‘clearly insufficient’ to produce the 

result.” Westbrook v. State, 697 S.W.2d 791, 793 (Tex. App.—Dallas 1985, pet.

ref’d). “[B]eing a concept too difficult for lawyers or even for philosophers,” the 

issue of causation is best left for jurors. Id. Thus, for Appellant to be entitled to an 

instruction on concurrent causation, “the record had to contain some evidence that 

the concurrent cause was clearly sufficient to produce the result and the conduct of 

[Appellant] clearly insufficient.” Remsburg, 219 S.W.3d at 545 (emphasis added) 

(citing PENAL § 6.04(a); Hutcheson v. State, 899 S.W.2d 39, 42 (Tex. App.—

Amarillo 1995, pet. ref’d)). 

Although not addressed in the context of jury instructions, this court was 

presented with similar facts in Wright v. State, 494 S.W.3d 352 (Tex. App.—

Eastland 2015, pet. ref’d). There, a mother was charged with injury to a child by 

omission where the mother’s boyfriend had sexually abused the child, causing 

serious injury to the child, and the mother did not thereafter seek prompt medical 

attention for the child. 494 S.W.3d at 356, 361–63. Under those facts, we stated 
8

that the State’s case against the mother involved concurrent causes: the boyfriend’s 

sexual abuse and the mother’s failure to provide medical care. Id. at 362. We 

determined that the boyfriend’s sexual abuse of the child was the initial cause of the 

child’s injuries and was “obviously sufficient by itself to produce the result in the 

form of the physical injuries and mental injuries that [the child] suffered.” Id. Thus, 

the mother’s “criminal culpability for injury to a child by omission . . . hinge[d] on 

her response to [the boyfriend’s] acts.” Id. 

Importantly, we noted that “it is not sufficient for the State to prove that the 

defendant failed to provide medical care for a serious bodily injury. ‘Instead, it is 

necessary to prove that [the child] suffered serious bodily injury because [the 

defendant] failed to provide him medical care.’” Id. at 363 (alterations in original) 

(emphasis added) (quoting Payton v. State, 106 S.W.3d 326, 327–28 (Tex. App.—

Fort Worth 2003, pet. ref’d)). We determined that the evidence did not show that 

the mother’s failure to seek medical treatment actually caused any additional 

physical injuries, since medical treatment was not given to the child when the doctor 

examined her at the hospital. Id. Therefore, the conclusion that the mother caused 

the child to suffer serious bodily injury was conclusory and speculative, and “[a]s

such, it [was] not sufficiently based on facts or evidence to support a finding beyond 

a reasonable doubt.” Id. at 364. 

In the instant case, there was clearly some evidence that Justin’s actions, by 

themselves, were sufficient to have caused J.D.’s injuries. Cf. id. Therefore, 

whether Appellant was entitled to a jury instruction on concurrent causes depends 

on whether there was some evidence that Appellant’s conduct was clearly 

insufficient to cause J.D.’s injuries. See Almanza, 686 S.W.2d at 171; Remsburg, 

219 S.W.3d at 545. Similar to Wright, the State contends that J.D.’s injuries “could 

have been mitigated by Appellant has [sic] she sought immediate medical attention.” 

The State argued at trial that going to the hospital earlier “possibly[] could have 
9

mitigated” the effects of J.D.’s shaken-baby syndrome. The State relied heavily on 

expert testimony that “it was possible” that J.D.’s injuries may have been lessened 

had Appellant sought immediate medical attention. See Wright, 494 S.W.3d at 363; 

cf. Payton, 106 S.W.3d at 330. Here, the expert admitted on cross-examination that 

she could not determine whether the chances of mitigation were “probable” or “over

50 percent or not”; she indicated that it was only “. . . possible. Just could happen, 

yes.” Viewed in the light most favorable to Appellant, the record contains some 

evidence that Appellant’s conduct was clearly insufficient to result in serious bodily 

injury or serious mental deficiency, impairment, or injury to J.D. Because the 

evidence raised the issue of concurrent causation, we conclude that the trial court 

erred in failing to include the instruction in its charge to the jury. 

It is important to note that we do not find that Appellant’s conduct was in fact 

clearly insufficient to cause J.D. serious bodily injury. Our decision merely holds 

that the record contains some evidence, when viewed in the light most favorable to 

Appellant, indicating that Appellant’s conduct was clearly insufficient. Stated

differently, our decision goes no further than to hold that a jury could have found 

Appellant’s conduct clearly insufficient to cause J.D. serious bodily injury—had 

they been given the opportunity to view the evidence under a theory of concurrent 

causation. 

B. Harm

Concluding that the trial court erred by not including an instruction on

concurrent causation, we must next determine whether the omission caused 

Appellant harm. See Almanza, 686 S.W.2d at 171; Saenz v. State, 474 S.W.3d 47, 

53 (Tex. App.—Houston [14th Dist.] 2015, no pet.). As noted above, where a party 

properly preserves the error for review—as is the case here—then reversal is 

required so long as Appellant is caused some harm. See Almanza, 686 S.W.2d at 

171. The Texas Court of Criminal Appeals clarified what constitutes “some harm”
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in Arline v. State to mean that “the presence of any harm, regardless of degree, . . . 

is sufficient to require a reversal of the conviction. Cases involving preserved 

charging error will be affirmed only if no harm has occurred.” 721 S.W.2d 348, 351 

(Tex. Crim. App. 1986). 

Here, Appellant primarily centered her defense around the theory of 

concurrent causation. In voir dire, for example, defense counsel presented the 

statutory definition of concurrent causation in an effort to explain what the State 

would have to prove. Throughout the trial, defense counsel repeatedly focused on 

the contention that Justin’s conduct was sufficient by itself to cause the harm and 

that Appellant’s conduct was insufficient. Thus, the trial court refused to offer an 

instruction on a theory that Appellant heavily relied upon. This ran the risk of 

confusing the jury, especially given the fact that the jury requested a definition of 

causation during their deliberations—which the trial court denied and, instead,

referred them to the charge for its definition.

Moreover, this harm is compounded by the fact that the trial court included an 

instruction on the law of parties. Under the law of parties, a person is criminally 

responsible as a party to an offense if it is committed by his own conduct, by the 

conduct of another for which he is criminally responsible, or both. PENAL § 7.01(a). 

A person is criminally responsible for the conduct of another if, acting with the intent 

to promote or assist the commission of the offense, he solicits, encourages, directs, 

aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a). Under 

those circumstances, the principal actor’s conduct is imputed to the party defendant; 

in other words, the principal’s actions are the defendant’s actions. McKinney v. 

State, 177 S.W.3d 186, 202 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 207 

S.W.3d 366 (Tex. Crim. App. 2006). Thus, “[o]ne’s own actions or state generally 

cannot be a concurrent cause of one’s criminal act[,]” and “the defendant’s 

actions can never be ‘clearly insufficient’ to produce the result, as required by 
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section 6.04(a).” Id. (first citing Robbins, 717 S.W.2d at 351 n.2; then citing PENAL

§ 6.04(a)). A trial court’s charge to the jury must include an abstract statement of 

the law and also an application of the law to the facts in the case. TEX. CODE CRIM.

PROC. ANN. art. 36.14 (West 2007); Gray v. State, 152 S.W.3d 125, 127–28 (Tex.

Crim. App. 2004). Omission of the application portion of the charge is trial court 

error. Gray, 152 S.W.3d at 127–28; see Vasquez v. State, 389 S.W.3d 361, 366–69 

(Tex. Crim. App. 2012) (addressing the inclusion of the law of parties in the 

application paragraph of a jury charge). 

Although not complained of by Appellant, the trial court’s failure to apply the 

law of parties within the charge further compounds the harm of not having given the 

concurrent causation instruction. In closing argument, the State read to the jury the 

trial court’s instruction on the law of parties and yet made no application of same for

the jury, leaving it without guidance in its application to these facts. The jury then 

sent a note to the trial court asking for a definition of causation, to which the trial 

court responded by merely directing the jury back to the charge. By including an 

instruction on the law of parties without application and without a Section 6.04 

instruction, the trial court’s charge presupposes that the law of concurrent causation 

is wholly inapplicable to the case, effectively prohibiting the jury’s consideration of 

one of Appellant’s primary defenses and presenting inadequate information to the 

jury on causation. After reviewing the entire record, we cannot say that the court’s 

failure to instruct the jury on concurrent causation did not cause Appellant any harm. 

Because the trial court erred in omitting an instruction on concurrent causation

and because the error caused at least some harm to Appellant, we must reverse the 

judgment of conviction and remand the cause for a new trial consistent with this 

opinion. Appellant’s first issue is sustained. 
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II. Sufficiency of the Evidence

In her second issue, Appellant contends that the evidence was insufficient to 

show that Appellant failed to protect J.D. and failed to provide reasonable medical 

care. 

Unlike the standard of review for jury-charge error, we review a challenge to 

the sufficiency of the evidence under the standard of review set forth in Jackson v. 

Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. 

App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. 

ref’d). Under the Jackson standard, we review all of the evidence in the light most 

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

found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 

U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). 

When conducting a sufficiency review, we consider all the evidence admitted 

at trial, including pieces of evidence that may have been improperly admitted. 

Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the 

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

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s 

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; 

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict, and we defer 

to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 

It is not necessary that the evidence directly prove the defendant’s guilt; 

circumstantial evidence is as probative as direct evidence in establishing a 

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish 

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing 
13

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not 

point directly and independently to guilt if the cumulative force of all incriminating 

circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. 

Because evidence must be considered cumulatively, appellate courts are not 

permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the 

evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, 

appellate courts must consider the cumulative force of all the evidence. Villa v. 

State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).

Appellant asserts on appeal that there is no evidence that she either caused or 

consciously disregarded a substantial and unjustifiable risk that she would cause 

serious bodily injury to J.D. by not taking J.D. to the hospital right away. We 

disagree. 

“A person commits an offense if [s]he . . . recklessly by omission, causes to a 

child, . . . serious bodily injury . . . .” PENAL § 22.04(a) (West 2019). An omission 

causing serious bodily injury is “conduct constituting an offense under this section 

if . . . the actor has a legal or statutory duty to act.” Id. § 22.04(b)(1). By statute, a 

parent has the “duty of care [and] protection” of the parent’s child and the duty to 

provide the child with medical care. TEX. FAM. CODE ANN. § 151.001(a)(2), (3) 

(West 2014). With respect to the definition of reckless, the Penal Code provides:

A person acts recklessly, or is reckless, with respect to . . . the 

result of h[er] conduct when [s]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. 

PENAL § 6.03(c). 

As noted in our review of Appellant’s first issue, we did not find that the 

evidence was clearly insufficient to prove Appellant caused the injury. We only 
14

found some evidence supporting that contention and only when viewed in the light 

most favorable to Appellant. Moreover, we did not find that Appellant did not have 

the requisite mens rea to complete the offense. To the contrary, we conclude that

the evidence, when viewed in the light most favorable to the verdict, is sufficient to 

support a finding beyond a reasonable doubt that Appellant’s failure to provide 

medical care recklessly caused serious bodily injury to J.D. 

The instant case is readily distinguishable from this court’s decision in Wright. 

Again, we held there that “it is necessary to prove that [the child] suffered serious 

bodily injury because [the defendant] failed to provide him medical care.” Wright, 

494 S.W.3d at 363 (alterations in original) (quoting Payton, 106 S.W.3d at 329). We 

found that the conclusion of whether a mother’s failure to seek medical treatment 

actually caused the child’s injuries was purely speculative specifically because “no 

medical treatment was given to [the child] when [the nurse] examined her at the 

hospital.” Id. Therefore, we determined the evidence insufficient to prove 

causation. 

Instead, the instant case more closely resembles Payton. In Payton, the 

grandfather of a child challenged the sufficiency of the evidence to establish that he

recklessly caused serious bodily injury to the child by failing to seek reasonable 

medical care. 106 S.W.3d at 327–28. The court applied the same law concerning 

causation. Id. at 329. There, the child suffered internal bleeding that eventually led

to the child’s death. Id. at 330. Medical experts testified that the child would have 

been exhibiting symptoms of the injury after it occurred and that the grandparent 

would have noticed the symptoms—especially since the grandparent had a medical 

background. Id. More importantly, medical experts testified that, “although [the 

child] may have had long-term health problems, it was possible that he may have 

lived.” Id. (emphasis added). Based on this evidence, the court determined that the 

evidence was legally sufficient to support the jury’s verdict that the grandfather
15

recklessly caused serious bodily injury by failing to obtain reasonable medical care 

for the child. Id. 

Here, the child promptly obtained significant medical care once the child was 

finally brought to the hospital in Lubbock—unlike the facts in Wright. Although 

Appellant did not have prior medical experience like the defendant in Payton, 

medical experts did testify that J.D. would have started exhibiting seizure-like 

symptoms immediately after injury and that “any observer would notice there’s 

something wrong with the baby.” Furthermore, Appellant admitted during her 

interview with Deputy Kissick that she initially wanted to take the child to the 

hospital that night—indicating awareness of the risk of serious harm to J.D. 

Additionally, medical experts testified that, although J.D. would have likely had 

serious bodily injury regardless of Appellant’s delay, it was possible that the doctors 

could have stopped the swelling and that J.D.’s injuries could have been mitigated

had the parents gotten J.D. to the hospital sooner.

Moreover, Appellant’s mother, Deborah Presley, testified that, on the morning 

after J.D. had sustained the injuries, Appellant called Deborah and told her that she 

thought J.D. had just had a seizure. Deborah told Appellant to immediately take J.D. 

to the hospital in Denver City, which was only six miles away from where they lived. 

Instead, Appellant and Justin decided to take J.D. to the hospital in Lubbock, which 

was approximately seventy-five miles away. Although Appellant and Justin both 

told investigators that the reason they did not take J.D. to the hospital in Denver City 

was because Justin did not trust the doctors there, it was at least in part because Justin 

did not want CPS to get involved in Denver City—per a subsequent statement by

Appellant to her mother. During the drive to Lubbock, J.D.’s seizures had apparently 

become so severe that Appellant had scratches on her neck from holding J.D. 

because “[J.D.] was thrashing so badly.” Craig Crawford, the chief nursing officer

at the hospital in Denver City, testified that, although personnel at the hospital in 
16

Denver City could not have performed the necessary surgery to relieve pressure from 

the brain at that location, they would have “stabilized” J.D. and airlifted her to 

Lubbock. The chief nursing officer from the hospital in Seminole testified that 

stabilizing the child earlier “could possibly mitigate, maybe” the severity of the 

injuries. 

While the evidence used to support the conviction in this case is attenuated

and dependent on how the jury might weigh the credibility of the testimony and 

evidence presented, it is not so attenuated as to make the evidence insufficient to 

support the verdict. Whatever weight is to be given to the evidence, it is the sole 

province of the jury to make that determination, not the court. See Jackson, 443 U.S. 

at 326. Based on the record viewed in the light most favorable to the verdict, there 

is sufficient evidence for a jury to have found beyond a reasonable doubt that

Appellant caused J.D. to have serious bodily injury by driving to a hospital much 

further away—so that Justin could prevent CPS from getting involved—instead of 

taking J.D. to a hospital only six minutes away from their residence, at which J.D. 

could have been stabilized and then airlifted to Lubbock. Additionally, such 

evidence also is sufficient for a jury to have found beyond a reasonable doubt that 

Appellant consciously disregarded a substantial and unjustifiable risk that she would 

cause J.D. serious bodily injury by failing to seek prompt medical care. 

Having held that, viewing the evidence in a light most favorable to the verdict,

there is sufficient evidence for a jury to have found beyond a reasonable doubt that 

Appellant recklessly caused J.D. serious bodily injury by failing to seek medical 

treatment, we decline to further address the issue of whether there is sufficient 

evidence that Appellant caused J.D. serious bodily injury by failing to protect J.D. 

Appellant’s second issue is overruled. 
17

This Court’s Ruling

We reverse the judgment of the trial court and remand the cause for a new 

trial consistent with this opinion. 

W. BRUCE WILLIAMS

JUSTICE

February 26, 2021

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.