In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00068-CR ____________________
JOHN WESLEY SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B160460-R
MEMORANDUM OPINION
A grand jury indicted Appellant John Wesley Smith for the offense of injury
to an elderly individual. See Tex. Penal Code Ann. 22.04 (West Supp. 2017)1. After
a trial, a jury found Smith guilty and that Smith used a deadly weapon during
commission of the offense. The jury assessed punishment at confinement for sixty-
nine years and a fine of $10,000. On appeal, Smith raises two issues, challenging the
1 We cite to the current version of the statute because subsequent amendments do not affect our disposition. 1 sufficiency of the evidence to support his conviction and alleging that he was denied
the effective assistance of counsel. We affirm.
Background
On November 16, 2016, a grand jury indicted Smith for:
. . . intentionally and knowingly engag[ing] in conduct that caused serious bodily injury to [W.S.][2], an individual who was at least 65 years of age by hitting the said [W.S.] on the head
[and] . . . recklessly engag[ing] in conduct that caused serious bodily injury to [W.S.], an individual who was at least 65 years of age by hitting the said [W.S.] on the head.
Smith was tried for intentionally and knowingly causing serious bodily injury to an
elderly person, to which Smith pleaded “not guilty.”
Testimony of Marie Dempsey
Marie Dempsey, a communications supervisor for the Orange County
Sheriff’s Office, testified that she located a 911 phone call made on September 4,
2016 and made a copy of the recorded call. A copy of the recorded 911 call was
admitted as State’s Exhibit 1 and published to the jury.
2 We use initials to refer to the victim. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Testimony of Deputy Chase Alexander
Deputy Chase Alexander, a patrol officer with the Orange County Sheriff’s
Office, testified that he was working the night shift on September 4, 2016, and he
received a call about a male suspect’s mother who had “some facial injuries” and an
ambulance was being dispatched to an address in Rose City to check on the victim
who was the suspect’s mother. Deputy Alexander explained that he and two other
officers went to the home in Rose City, and when he looked through a window, he
could see the back of an elderly white woman in a nightgown who was walking.
According to Alexander, when the woman opened the door he could see her hair in
disarray and her appearance was “unreal.” Alexander explained that he thought she
had “real injuries[]” and that he needed to get an ambulance. Alexander testified that
the officers did not find anyone else in the house other than a small dog, and he was
able to determine the woman, W.S., was about sixty-nine years of age. Alexander
explained that W.S. “kept clenching a napkin in her hand and would dab her face to
the spots that were bleeding,” and “[i]t was like she was so beat []senseless she didn’t
know what was going on.”
According to Deputy Alexander, upon a search of the house, the officers found
napkins in the kitchen covered with blood, blood on the floor, blood on the bed, and
blood on clothing. Alexander agreed that it appeared that an assault had taken place
3 just before the officers arrived. When Alexander asked W.S. who had done this to
her, she responded “I guess my son did.” Deputy Alexander agreed that State’s
Exhibits 2 through 18 fairly and accurately depicted W.S.’s residence and her
injuries on September 4, 2016, and included pictures from numerous places inside
the house where blood was visible, and included a photo of the inside of a purse.
Testimony of Dr. David Parkus
Dr. David Parkus, the director of trauma surgery at St. Elizabeth Hospital,
testified that he examined W.S. on September 4, 2016, after other emergency room
doctors found she had serious injuries. Describing W.S.’s appearance, Dr. Parkus
explained
I walked in and saw this frail elderly lady whose face looked like a pumpkin. It was just completely purple, swollen, eyes completely shut. It was -- it was pretty disturbing.
....
I mean, the most severe and obvious injury was to her face. It was completely swollen and purple. There were also bruises that I observed around the neck and arms, and I believe there was some bruises on the anterior chest.
Parkus testified that, when W.S. arrived at the emergency room, he understood she
had been assaulted; she had bruising about her face, a swollen nose, eyes swollen
shut, and blood flowing from her nostrils; her nose was shattered; and a CT revealed
W.S. had a subdural hematoma. Dr. Parkus agreed that State’s Exhibits 19 through 4 24 were photographs that fairly and accurately depicted W.S. at the hospital and a
couple of days after September 4, 2016. According to Dr. Parkus, the pattern of
bruising—which included multiple discrete bruises of similar colors and bilateral
ecchymosis (bruising of the eyes)—implied “multiple strikes or hits[]” that
happened at the same time and also showed trauma to her neck. Parkus explained
that W.S. had both a subarachnoid hemorrhage as well as contusions to the brain,
which indicated “severe brain trauma.” Parkus further explained that W.S.’s head
injuries caused her to develop problems swallowing correctly and she was put on a
feeding tube. In addition, Parkus testified that W.S. required plastic surgery on her
nose so she could breathe because “her nose was completely collapsed, and the
septum . . . was smashed in[.]”
In Dr. Parkus’s opinion, W.S.’s injuries constituted serious bodily injury. As
a trauma surgeon who has worked with individuals involved in boxing, martial arts,
and mixed martial arts, Parkus agreed that Smith’s hands could have been used as a
deadly weapon to cause serious bodily injury to W.S.
Testimony of Sergeant David Lampman
Sergeant David Lampman with the criminal investigations division of the
Orange County Sheriff’s Office testified that on September 6, 2016, he was assigned
to investigate the W.S. case and he became the lead investigator. Lampman
5 explained that he went to the hospital to check on W.S.’s condition and to get consent
for photographs and access to medical records, but he was unable to speak with her
because she was in an induced coma. The Sergeant agreed that State’s Exhibits 19
through 26 were photographs he took that reflect how he found W.S. when he saw
her in the hospital. According to Lampman, he played the recorded 911 for W.S.’s
daughter, was able to obtain an identification of the caller’s voice, and determined
that Smith was the suspect.
Lampman explained that, upon visiting W.S.’s home, he noted blood drops
and blood splatter in various rooms, including a large amount of blood on the floor
in Smith’s bedroom and a bloody nightgown. According to Lampman, he believed
that the large amount of blood on the floor collected because “the victim was sitting
in [a] chair for quite some time and dripped.”
Sergeant Lampman testified that he obtained a warrant for Smith’s arrest on
September 7, 2016, and he started reaching out to family members to locate Smith.
Lampman located Smith at a relative’s house in Vidor, where officers arrested Smith
and took him into custody. Lampman explained that at the jail, after informing Smith
of his rights and obtaining a signed Miranda card, he interviewed Smith, and the
interview was recorded. Lampman identified State’s Exhibit 53 as a copy of the
recorded interview of Smith that occurred on September 8, 2016, which was
6 published to the jury. According to Lampman, during the interview Smith said he
was a “trained boxer[.]” Lampman also explained that there was dried blood on the
clothing that Smith was wearing when he was arrested, as reflected in the photos
admitted as State’s Exhibits 48 through 51.
Testimony of Detective Lauren Kemp
Detective Sergeant Lauren Kemp with the Orange County Sheriff’s Office
testified that she saw Smith on September 8, 2016, and she observed an injury to his
right index finger. Kemp explained that “it was a healed-over wound[]” that “looked
to be a superficial scratch extending from -- approximately maybe an inch in length,
extending from the cuticle area going up towards the . . . first knuckle.”
Testimony of C.H.
Smith’s younger sister C.H. testified that she saw W.S. on September 2, 2016,
and she described W.S. as “fairly healthy[]” with no mobility problems, but that
W.S. had some problems with arthritis, pain, and memory. On September 4, 2016,
C.H. learned that W.S. was going to the hospital in a phone call from C.H.’s father.
According to C.H., at the time of trial, W.S. was in a nursing home and remained
bedridden and had a feeding tube. Although C.H. felt W.S. had memory problems
before the incident, C.H. doubted whether W.S. had Alzheimer’s.
7 Testimony of John Wesley Smith
Smith testified that W.S. is his mother and that over the recent few years, he
had lived primarily with his parents. According to Smith, his mother was his best
friend, he loves her very much, and he has had a great relationship with her his whole
life. Smith explained that prior to September 4, 2016, his mother was in very good
shape physically but not mentally—she had memory loss and was “[v]ery erratic,
impulsive at times, quite confused very much of the time.” Smith testified that W.S.
would lose her purse multiple times a week and blame him and his father. When
asked whether W.S. would become aggressive, Smith responded “Oh, yes. Very,
very much so[,]” and that W.S. had begun cursing in a manner that Smith regarded
as “totally uncharacteristic[.]” Smith agreed that Alzheimer’s runs in his family and
he thought W.S.’s symptoms of memory loss and erratic behavior were similar to
his grandmother’s symptoms, and his grandmother had Alzheimer’s.
Smith explained that W.S. took both Soma and hydrocodone and that
sometimes the combination “can cause violence.” According to Smith, on the night
of September 4, 2016, W.S. asked him to help her look for her purse and “she became
more aggressive, and . . . she became very violent, and she was sweating and red
faced, bulging eyes when -- like when -- she gets when she takes her medication or
too much of her medication.” When he was attempting to help W.S., he turned
8 around and saw her “running at [him] with a butcher knife . . . a chopping, big
butcher knife, very sharp[,]” with a handle about ten to thirteen inches long. Smith
testified that W.S. was running at him very fast and said, “I will stab you.” According
to Smith, as W.S. approached him, he grabbed her wrists, but he let go when he fell,
and W.S. “took a swing” at him with the knife. Smith explained that as he and W.S.
tussled over the knife, he grabbed W.S.’s throat and facial area to try to push her off
of him. Smith testified that he was initially unable to push W.S. off of him because
“[s]he’s a strong lady[,]” but W.S. eventually dropped the knife at which time Smith
was able to get up. Smith further explained that he received a deep cut on his finger
because
right before she dropped the knife, she had -- she had grabbed my right finger, my right index finger. She got it in her mouth when I was trying to push her off of me; and she bit down.
She bit down on it very hard, as I -- as I stated before; and she would not let go. And I’m trying -- I’m looking for the knife and she has the knife in her hand still and I’m trying not to get stabbed. And I can’t get out away from her because my hand -- my finger is in her -- her grasp in between her teeth, and I’m -- I’m fighting for my life.
With -- with my left hand in a open-fist position, in a vertical position, not a closed fist, I struck her on top of the cranium one time.
.... 9 I was asking her, begging “Let go of me, please. Drop the knife. Let go of my finger.” She -- she would not do any one of the things I asked. And she -- I asked her, like I’m saying, time and time; and everything’s going by so fast. I’d say over time of a minute, if that long; and she -- I’m asking her, begging her still. No, not that long. Not quite that long. Time was flashing by. It was going by fast. And she wouldn’t let go, as I asked her; and I’m looking for the knife. I see the knife still in her hand, in her right hand.
I was forced to -- to do basically the only thing I could do, and that was to do what I had done before. So, I had to strike my mother on -- on top of the cranium again, about three -- three more times, three or four more times.
. . . I’m not a guesstimating person, assuming person, in life. I -- I think she was -- released letting go of the knife then. And then she grabbed at me with her -- which would have been her -- her left hand; and she dropped the knife then, right before she grabbed it. I assume. I -- I was finally able to be able to push her back and --
I was trying to get up, and I -- she was up. I was able to get up and run. Run.
I took the knife with me because I didn’t want her stabbing me, getting a hold to it. Got it out of her sight.
Smith explained that, back in his own room, he bandaged his finger and could hear
W.S. asking him to look for her purse, and she talked him into helping her. 10 According to Smith, he tried to be a good son, but he “feared for [his] life.” Smith
testified that when W.S. found her purse, he left the room, but when he turned
around, “she jumps out with an umbrella and also another knife.” Smith explained
that W.S. hit him with the umbrella and because she also had a knife, he put his
hands in a “hitting, pushing position.” After W.S. hit him, Smith struck W.S. on her
upper head, eyes, and face and pushed her in order to stop her because she had a
knife and she had already threatened him. Smith further explained that W.S. hit her
head on a cabinet after he pushed her.
Smith testified that, at that point, he went to his room and locked the door.
Smith believed that W.S. used something like a butter knife to unlock the door, and
she came into his room with the knife. Smith explained that W.S. was blocking the
door, he hoped he could jump over her to get away, but he slipped on something and
went down “right at her.” According to Smith, W.S. came forward, trying again to
stab him, and he jumped out of the way. Smith explained that he spun W.S. around,
and when W.S. had her back to Smith, he locked his arm around her neck and tried
to get the knife out of her hand. According to Smith, he finally got the knife away
from her. To make sure it would not occur again, he picked up the knife and ran out,
but later returned to his room and saw W.S. lying on the floor.
11 Smith testified that he saw W.S. was bleeding profusely and her nose was
“bad off.” He was able to take care of her because she was no longer threatening
him, and he tried to stop her nose from bleeding. He suggested she put on something
else because there was blood on her clothing. Smith explained that W.S. was
“swelling up rapidly” and he knew she needed more help than he could provide.
Smith testified that he was afraid for his father to come home because his father
carries a gun and he might think W.S. was assaulted, so Smith then left the premises
and started walking from the house in Rose City towards Vidor. He called a friend
to get a Suboxone for himself “for the next day” and then called his aunt to pick him
up. After he smoked a cigarette, his third call was to 911 to get help for W.S. Smith
explained that he refused to tell 911 who he was because he did not want to get in
trouble or get his mother in trouble. According to Smith, he spent a couple of days
“in the woods” at his aunt’s house until the police picked him up. Smith explained
that he did not mention knives in the recorded interview with the police because he
did not want to get his mother in trouble. He also explained that he did not
immediately turn himself in for fear of getting his mother in trouble.
Smith denied he was a trained boxer. Smith agreed that he thought knives
were deadly weapons and that he felt it was necessary to use force against his mother
to protect himself from getting killed. On cross-examination he agreed he
12 purposefully and intentionally hit his mother on the head and that he caused serious
bodily injury to her. Smith testified that his palms contacted W.S. around her eyes,
upper cheeks, and possibly her nose. Smith agreed that W.S. “had this coming”
because of her actions towards him and that his conduct was justified because he had
the right to defend himself. Smith also explained that on September 3, 2016, his
mother took him to St. Elizabeth, his mother had his money in her hand, and he
snatched the money away from her because she would not give it to him.
Sufficiency of the Evidence
In his first issue, Appellant argues that the evidence is legally insufficient to
support his conviction for causing injury to an elderly individual because, although
Appellant admitted he intentionally engaged in the conduct, the evidence does not
establish that he caused the resulting injuries or that he had the requisite criminal
intent. Appellant argues that the record is not clear what injuries resulted from W.S.
being hit by Smith and that the doctor and investigating officers did not testify as to
how W.S.’s fractured nose and facial injuries may have occurred. Appellant also
argues that Smith testified that he loved his mother very much, she was a “great
lady” and his “best friend[,]” thereby indicating he did not act to intentionally or
knowingly cause her serious bodily injury.
13 In reviewing the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341,
360 (Tex. Crim. App. 2013). “The jury is the sole judge of credibility and weight to
be attached to the testimony of witnesses.” Temple, 390 S.W.3d at 360; see also
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (citing Esquivel v.
State, 506 S.W.2d 613 (Tex. Crim. App. 1974)); Johnson v. State, 673 S.W.2d 190,
196 (Tex. Crim. App. 1984) (citing Ables v. State, 519 S.W.2d 464, 465 (Tex. Crim.
App. 1975); Esquivel, 506 S.W.2d at 615) (“[A] jury, sitting as the trier of facts, may
accept or reject any or all of the testimony adduced.”). We give full deference to the
jury’s responsibility to fairly resolve conflicts in the testimony, to weigh evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not substitute our judgment for
that of the factfinder concerning the weight and credibility of the evidence. King v.
State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When faced with conflicting
evidence, we presume the trier of fact resolved conflicts in favor of the prevailing
party. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
14 Appellant was indicted for intentionally and knowingly causing serious bodily
injury to W.S., an individual who was at least sixty-five years of age, by striking her
on the head. Smith testified that he struck W.S. on her head multiple times. A person
commits the offense of causing injury to an elderly individual if he intentionally,
knowingly, recklessly, or with criminal negligence causes an elderly individual: “(1)
serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3)
bodily injury.” Tex. Penal Code Ann. § 22.04(a). “‘Elderly individual’ means a
person sixty-five years of age or older.” Id. § 22.04(c)(2). “‘Serious bodily injury’
means bodily injury that creates a substantial risk of death or that causes death,
serious permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” Id. § 1.07(a)(46) (West Supp. 2017). An offense under
this section is punishable as a first-degree felony. Id. § 22.04(e).
On cross-examination, Smith agreed that he purposefully and intentionally hit
his mother on the head and that he caused serious bodily injury to her. Although
Smith testified that W.S. had fallen during their scuffle, he also testified that he
pushed or shoved her. In addition, Dr. Parkus—a trauma surgeon with medical
experience with boxing, martial arts, and mixed martial arts—testified that the
pattern of bruising he observed on W.S. suggested she had received “multiple strikes
or hits[]” at the same time and that a CT scan of W.S.’s brain revealed she had a
15 subdural hematoma, “basically blood around the brain[.]” The doctor also agreed
that Smith’s hands could have been used as a deadly weapon to cause serious bodily
injury to W.S.
Based on the record before us and viewing the evidence in a light most
favorable to the verdict, we conclude that the evidence is legally sufficient for a
reasonable jury to conclude beyond a reasonable doubt that Smith intentionally and
knowingly caused serious bodily injury to W.S., an individual at least sixty-five
years of age. See Jackson, 443 U.S. at 318-19; Temple, 390 S.W.3d at 360. The jury,
as judge of the facts and credibility of the evidence, could disbelieve all or part of
Smith’s testimony, including his defensive theory. See Temple, 390 S.W.3d at 360;
Sharp, 707 S.W.2d at 614. We overrule Smith’s first issue.
Effective Assistance of Counsel
In his second issue, Appellant argues that he did not receive the effective
assistance of counsel at trial because his attorney did not object to the charge for
failure to include the lesser-included offense of reckless injury or that his attorney
failed to request such a jury instruction. According to Appellant, on this record there
is a reasonable probability that a jury would have found that Smith acted recklessly
in causing W.S. serious bodily injury because uncontroverted evidence shows that
the injuries were inflicted during an altercation during which W.S. was wielding a
16 knife at Smith. Appellant argues that failure to object to the jury charge on this basis,
or to request a lesser-included instruction, constituted deficient performance and that
Appellant was prejudiced thereby because he was subject to a much higher penalty
range. Appellant also notes that trial counsel’s performance was deficient for not
requesting an instruction on the lesser-included offense because the second
paragraph of the indictment charged Smith with recklessly causing serious bodily
To establish that he did not receive the effective assistance of counsel, Smith
must demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
error(s), the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984). The party alleging ineffective
assistance has the burden to develop facts and details necessary to support the claim.
See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting
an ineffective-assistance claim must overcome the “strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance.”
See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland,
466 U.S. at 689). An appellant’s failure to make either of the required showings of
deficient performance or sufficient prejudice defeats the claim of ineffective
17 assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s
failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.”).
The right to the effective assistance of counsel ensures the right to “reasonably
effective assistance[,]” and it does not require that counsel must be perfect or that
the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.
Crim. App. 1984). The appropriate context is the totality of the representation;
counsel is not to be judged on isolated portions of his representation. See Thompson,
9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated
failures to object to improper evidence or argument ordinarily do not constitute
ineffective assistance of counsel. See id.; Ewing v. State, 549 S.W.2d 392, 395 (Tex.
Crim. App. 1977). In order to meet his burden regarding his claim that his counsel
was ineffective for failing to object to evidence, Appellant must also establish that
the trial court would have committed error in overruling such objection had an
objection been made. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.
1996). Ordinarily, on direct appeal, the record will not have been sufficiently
developed during the trial regarding trial counsel’s alleged errors to demonstrate in
18 the appeal that trial counsel provided ineffective assistance under the Strickland
standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
A two-step test determines whether a lesser-included offense instruction
should be given to the jury. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App.
2016); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). First, the trial
court must determine “whether the requested instruction pertains to an offense that
is a lesser-included offense of the charged offense, which is a matter of law.”
Bullock, 509 S.W.3d at 924. Where the requested offense is established by proof of
the same or less than all the facts required to establish the offense charged, the first
step is satisfied. See id.; see also Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).
“The second step in the analysis asks whether there is evidence in the record
that supports giving the instruction to the jury.” Bullock, 509 S.W.3d at 924-25.
Under this step, “a defendant is entitled to an instruction on a lesser-included offense
when there is some evidence in the record that would permit a jury to rationally find
that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Id.
at 925. “The evidence must establish that the lesser-included offense is a valid,
rational alternative to the charged offense.” Id. This step requires “examining all the
evidence admitted at trial, not just the evidence presented by the defendant.” Id. A
defendant is entitled to the instruction on anything more than a scintilla of evidence,
19 but “it is not enough that the jury may disbelieve crucial evidence pertaining to the
greater offense, but rather there must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted.” Id. When reviewing the trial court’s ruling,
we cannot consider “the credibility of the evidence and whether it conflicts with
other evidence or is controverted.” Id. Accordingly, “the standard may be satisfied
if some evidence refutes or negates other evidence establishing the greater offense
or if the evidence presented is subject to different interpretations.” Id.
In the context of this case, the offense of injury to an elderly individual is a
first-degree felony when the conduct is committed intentionally or knowingly and is
a second-degree felony when committed recklessly. See Tex. Penal Code Ann.
§ 22.04(e).
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.
Tex. Penal Code Ann. § 6.03(c) (West 2011).
Here, Smith testified that he acted in self-defense, the defense argued that
Smith acted in self-defense, and the jury charge included an instruction on self- 20 defense. As a matter of law, one cannot accidentally or recklessly act in self-defense.
See Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d); Avila v. State, 954 S.W.2d 830, 843 (Tex. App.—El Paso 1997, pet. ref’d)
(“His testimony that he acted in self-defense precludes an instruction on an
accidental or reckless discharge of a weapon.”) (citing Mock v. State, 848 S.W.2d
215, 219 (Tex. App.—El Paso 1992, pet. ref’d)). Additionally, Smith agreed he
purposefully and intentionally hit his mother on the head and that he caused serious
bodily injury to her.
On this record, we cannot say that the evidence establishes that the lesser-
included offense was a valid, rational alternative to the charge the jury considered.
See Bullock, 509 S.W.3d at 925. Therefore, Smith was not entitled to a charge on the
lesser-included offense of recklessly causing serious bodily injury, and the trial court
would not have committed error in refusing a request for such an instruction had
such request been made. See Vaughn, 931 S.W.2d at 566. Accordingly, Smith has
not met his burden. See Strickland, 466 U.S. at 687-88, 694. We overrule his second
issue.
21 Having overruled Appellant’s issues, we affirm the judgment of conviction.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on August 20, 2018 Opinion Delivered September 12, 2018 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.