## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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R O N A L D E U G E N E W O R T H A M , J R
. A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E N I N T H C O U R T O F A P P E A L S

S A N J A C I N T O C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n .
Appellant’s reque sted lesser off en se was, as a statutory matter, included within the
indictment. No one disputes tha t. The issue here is w hether appellant’ s reque sted instruction w as based upon conduct that was in fac t a separ ate unit of prosec ution from the offe nse descr ibed in the
indictment. The Court say s that “both the indictment and [appellant] alleg e that [ t h e v i ct i m’s]

1

See Ex parte Denton , 399 S. W

. 3 d 5 4 0, 555 (Tex. Crim. App. 2013) (Ke ller, P.J ., 1
concur ring ). I ag ree with the Court that this ana l y s i s is conducte d under the second prong of the lesser- included offe nse test rathe r than the first. The first prong is conce rned only with whether the statutory elements of the reque sted lesser offe nse are included within the char g ing instrument. Hall v. State , 225 S.W .3d 524, 535 (Tex. Crim. App. 2007)WORTHAM CONCUR RENCE— 2

injuries wer e caused by the s ame conduct,” and, for that r eason, the y wer e the sa me conduc t. But
we do not need to addre ss whether the s ame conduct was alleg ed because , for the offe nse at issue
here , it does not matter. “I njury to a child” is a result-of- conduct offe nse. For that ty pe of offe nse, 2

we have held in various contexts that the manne r i n wh i ch the offe nse was committed was unimportant so long a s the result of the de fenda nt’s conduct wa s alleg ed to be the sa me.
I n Johnson v. State , we addre ssed a varia nce in pleading an d p ro of for the offe nse of

ag g rava ted assault. The indictment in that case alleg ed that the defe ndant cause d seri o u s bodily

3 injury to the victim “by hitting her with his hand or by twisting her arm with his hand,” but the proof

at trial showed that the defe ndant threw the victim ag ainst a wall. Be cause ag g rava ted assault is a 4
result-of- conduct offe nse, we held that a varia nce with respe ct to the act that cause d the injury cannot
be materia l, so the evidenc e was sufficie nt to support the conviction. I t was the injury that mattere d, 5 not the act that may

have pr oduced it. 6

I n Sanchez v. S t a t e , we addre ssed a jury -cha rg e issue in a murder prosec ution. Four 7

Johnson v. State , 364 S.W .3d 292, 297 n.37 (Tex. Crim. App. 2012) (citing Cook v. State , 2 884 S.W .2d 485, 489 (Tex. Crim. App. 1994)); Jefferson v. State , 189 S.W .3d 305, 312 (Tex. Crim. App. 2006).
364 S.W .3d at 293. 3
Id. 4
Id. at 298. 5
Id. (“The prec ise act or nature of conduct in this result-orie nted offe nse is inconseque ntial. 6 Had the State pled and proved differ ent injuries, a question might arise as to whether the differ ence betwee n what wa s pled and wha t was prove d was sig nificant e noug h to be mater ial.”).
376 S.W .3d 767, 770 (Tex. Crim. App. 2012). 7WORTHAM CONCUR RENCE— 3

alterna tive methods of committing murder wer e submitt ed disjunctively in the jury char g e. These 8
methods included choking the victim with the defe ndant’s hands, placing a stun g un on the victim,
and two alleg ations involving unknown manner and means. We found that err or in submitt ing the 9
unknown-manne r-a

nd-mea ns alleg ations was harmless, in part bec au s e the manner and means of committing murder

need not be decide d unanimously by the jury

. 1 0

I n Bufkin v. State , we addre ssed the trial court’s ref usal to submit the defe nse of consent in

an assault prosec ution. The State contende d that the defe ndant injured the victim by biting her on 1 1 Aug ust 9, but the defe ndant contende d that the biting was consensua l a nd occur red on Aug ust 8. 1 2
The State contende d, and the trial court appar ently ag ree d, that the alleg ed biting on differ ent day s

wer e differ ent instances of conduct, and as a result, a defe nse of consent to biting on Aug ust 8 was

no defe nse to biting on Aug ust 9. We held, howeve r, that both parties’ alleg ations wer e an attempt 1 3 to expl ain the bite mar

ks on the victim and, thus, were alterna te ver sions of one eve nt. 1 4 Bufkin preda ted some of our signific ant cases reg arding the i mportance of t he focus of t he
offe nse for evalua ting v ar i o u s t y pes of claims, so the terminolog y used in that case may not be

1 5

Id. 8
Id. 9
Id. at 773-74, 775. 1 0
207 S.W .3d 779, 780-81 (Te x . Crim. App. 2006). 1 1
Id. at 781. 1 2
Id. 1 3
Id. at 783-84. 1 4
See Huffman v. State , 267 S.W .3d 902 (Tex. Crim. App. 2008) (explaining that the 1 5
common threa d in the holdings in various prior case s seeme d to be “foc us”); Johnson , 364 S.W .3dWORTHAM CONCUR RENCE— 4

entirely consistent with later c ases, but the holding is c onsistent with them. The assault offe nse at
issue in Bufkin was a result-of- conduct offe nse, the result at issue was a biting injury suffe red by the victim, and the State and the defe ndant wer e alleg ing a lternative ma nners in which tha t result was
inflicted—unwa

nted biting on Aug ust 9 versus consensua l biting on Aug ust 8. What matters is that
the parties wer e offe ring competing theories to explain the same injury , so the defe ndant was entitled
to the submissi on of the de fense

. 1 6
The question involved in all of these case s (as well as the prese nt case ) was the appropr iate
unit of prosec ution. The answe r to that question—whether the issue is sufficie ncy of the evidenc e, 1 7 jury unanimity , the submission of defense s, or the submissi on of a lesser- included off ense—is the

same: I f the char g ed offe nse is a result-of- conduct offe nse, differ ent (nonstatutory ) way s in which 1 8
the actor could have cause d the same result are not differ ent units of prosec ution; differ ent units of

prosec ution occur only

if the result

is differe nt.
The rema ining question is how to ad dress a situation in which the rec ord supports both a deter mination that the two alleg ed ac ts of shaking cause d the same r esult and a de termination that they cause d differ ent results. I f we conclude that the conduct that the State alleg ed (seve re shaking )
and the conduct that appellant said happene d (shaking to r evive the victim) cause d the same result

at 296.
See B ufkin , 207 S.W .3d at 783 (“ a ra tional fac tfinder must have rea son to believe that

1 6 the def endant’ s scena

rio compete s, rather

than coe x ists with t he State’s sc enar io”).
See J ohnson , 364 S.W .3d at 293, 295-98. 1 7
For sufficie ncy

of the e vidence purposes, the State is bound by the statutory alleg ations 1 8 contained in the c harg ing instrument e ven if a lternative statutory alleg ations could have been (but wer e not) alleg ed. Johnson , 364 S.W .3d at 294-95. A varia nce with respe ct to statutory alleg ations is not at issue in the present c ase.WORTHAM CONCUR RENCE— 5

(ser ious bodily

injury as alleg ed in the indictment), then they are the same offe nse; if we conclude
that they cause d differ ent re sults, then they are differ ent offe nses. What if there is evidenc e in the

rec ord to s u p p o rt both conclusions? Then we choose the conclusion that flows from viewing the
evidenc e in the light most favor able to submitt ing the lesser- included offe nse. This is simil ar to 1 9
how we trea t varia

nces in the sufficie ncy of the evidenc e context an d i n t he submissi on of 2 0
defe nses. I n all three situations, the party that seeks the submissi on of the issue is the one in whose

2 1
favor we view the evidenc e.
Be cause there was evidenc e that the conduct alleg ed by appellant, when viewed in the proper light, cause d the same injury as that alleg ed in the char g ing instrument, it was not a separ ate unit of

prosec ution for purposes of conducting a lesser -included- offe nse ana ly sis.
I concur in the Court’s judgme nt.
Filed: Oc tober 30, 2013 Publis h

B u

f ki n , 2 07 S.W .3d at 782 (treated as defe nsive issue when reque sted by defe ndant, 1 9 viewed in light most favor able to reque sted submissi on); Thomas v. State , 699 S.W

. 2d 845, 839 (Tex. Crim. App

. 1 9 8 5) (“I n making the deter mination whether the appellant was entitled to an instruction on the lesser included offe nse of criminally neg lige nt homicide, the fac ts must be viewed in the light most fa

vorable toward his c ontention.”). See also G oad v. State , 354 S.W .3d 443, 450 (Tex. Crim. App. 2011) (Ke ller, P.J ., concur ring ) (“the questio n t o b e answe red is whether the nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e when viewed in the light most favor able to the submissi on of the lesser offe nse”) (interna l quotation marks omitted).

Johnson , 364 S.W .3d at 293-94 (in the lig ht most favorable to the prosec ution). 2 0 Bufkin , 207 S.W .3 d at 7 82 (in the light most favor able to the defe ndant’s reque sted 2 1 submissi on).