Affirmed as Modified and Opinion Filed April 17, 2015.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-13-01586-CR
SYLVIA ROMERO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F-01-16575-X
OPINION Before Justices Lang and Brown 1 Opinion by Justice Lang Sylvia Romero appeals the trial court’s judgment convicting her of injury to a child. The
jury found Romero guilty and assessed her punishment at life imprisonment and a $10,000 fine.
Romero raises two issues on appeal arguing: (1) the evidence is legally insufficient to support
her conviction; and (2) she suffered egregious harm when the trial court included an instruction
in the jury charge that authorized the jury to convict her of injury to a child under an incorrect
definition of the culpable mental state. The State raises one issue on cross-appeal arguing the
judgment should be modified to reflect the correct statute for the offense.
We conclude the evidence is sufficient to support Romero’s conviction. Also, we
conclude that, even though the trial court included an instruction in the jury charge that
1 The Hon. Kerry P. FitzGerald was on the panel and participated at the submission of this case. Due to his retirement from this Court on December 31, 2014, he did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1 (a), (b). authorized the jury to convict Romero of injury to a child if they found that she intentionally
“engage[d] in the conduct,” Romero has not shown that she suffered egregious harm. Further,
we conclude the judgment lists an incorrect statute for the offense and fails to list that Romero
used a deadly weapon, and modify the judgment accordingly. The trial court’s judgment is
affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
M.I. was born in Mexico and her mother abandoned her approximately three months after
she was born. Afterward, M.I.’s father, Silvio Iniesta, relocated to the United States where he
met and married Romero. Iniesta and Romero also had a child together, A.K. The children were
approximately one year apart in age. Iniesta worked as a long-haul truck driver and was away
from home most of the time while Romero cared for the children.
Alexamari Villareal, Iniesto’s sister, visited Romero “at least two times a week.”
Villareal observed that Romero did not treat the children equally. Villareal believed Romero
showed a preference for A.K., and was stricter with and yelled at M.I. Although Villareal did
not see Romero physically abuse M.I., she did see Romero treat M.I. roughly. Villareal saw M.I.
cry a lot, observed that M.I. was unhappy and sad, and knew that M.I.’s arm was always in pain.
On May 18, 2001, M.I. was taken to the emergency room. Medical imaging revealed an
uncommon fracture of M.I.’s humerus bone at the shoulder joint. Also, the imaging revealed
that the fracture was several weeks old based on the degree of healing.
On September 9, 2001, Villareal picked her daughter up from Romero’s apartment. M.I.,
who was two years old at the time, grabbed her shoes and wanted to leave with Villareal.
Villareal told Romero to tell M.I. “to get ready and go to [Villareal’s] house,” but Romero said,
“No.” M.I. started crying. Approximately fifteen minutes after Villareal left Romero’s
–2– apartment, she received a “missed call” from Romero. Later, when Villareal saw the missed call,
she tried to return Romero’s call, but there was no answer.
Meanwhile, on September 9, 2001, Romero called 9-1-1, reporting to the dispatcher that
M.I. had fallen off of a couch while jumping and hit her head. When the emergency medical
technicians (EMTs) arrived at Romero’s apartment, they saw Romero and A.K., and found M.I.
lying on the dining room floor carpet. M.I. was unresponsive, had a “blown pupil,” and her body
was posturing, which is an abnormal motor function. These signs were indicative of a brain
injury, so the EMTs immediately took M.I. in the ambulance to the hospital where a medical
team was waiting for her.
Pamela Okada, M.D., was waiting for M.I. when she arrived at the hospital and was the
first emergency room physician to examine her. Dr. Okada was informed that M.I. had fallen off
the couch on either the carpet or “a chimney” and the step-mother had stated she was not in the
room when it happened. Dr. Okada found that M.I. was nonresponsive, i.e., she had no eye
movement and did not open her eyes spontaneously, and she made no verbal response, spoke no
words, and did not cry. She also found that M.I.’s arms were posturing, which is a serious
abnormal motor function that shows the body is unable to follow commands. In addition, Dr.
Okada found that M.I. had a “blown pupil” or a pupil that is dilated large, which is indicative of
brain swelling or something pushing on the brain. Dr. Okada ordered CAT Scans and blood
tests. The imaging revealed a large skull fracture and subdural hematoma, a serious brain injury,
and that her pancreas was lacerated or torn into two pieces. As a result, M.I. was intubated, i.e.,
a breathing tube was put into M.I.’s lungs, and provided oxygen.
Dale Swift, M.D., a pediatric neurosurgeon, operated on M.I. Dr. Swift found fresh
subdural and epidural hematomas and one long segmented skull fracture that appeared to be a
couple of weeks old based on the degree of healing. To alleviate the bleeding and swelling, Dr.
–3– Swift performed a craniotomy, cutting open M.I.’s scalp, drilling a hole in her skull, and
removing a large window of bone. Then, M.I. was placed in a pentobarbital coma.
At the hospital, Romero told JoAnne Marchant of Child Protective Services (CPS) that
she was in the bathroom when she heard a child scream, “Mamma,” and the sound of a fall.
Romero stated that she believed A.K. had fallen, but instead found M.I. lying on her back by the
fireplace and unconscious. Romero stated that M.I. was in the habit of playing on and jumping
from the rocking chair to the fireplace and she believed the rocking chair had fallen over. Also,
Romero explained that M.I. broke her arm when she fell off of the bed while playing with a
cousin who had wrapped M.I. in a bed sheet. Romero and Marchant drew a diagram of the scene
and Romero provided a handwritten affidavit in Spanish, which was translated into English as
follows:
Silvia Romero affirms that [M.I.] was playing with her daughter and was in the bathroom when I suddenly heard a scream. I thought that the child [A.K.] had fallen, but it wasn’t so.
I found [M.I.] tossed in the middle of the chimney. I picked her up and wet her head with water. And she wasn’t breathing very well but her aunt [Villareal] had just left and I called [Villareal] on her cellular and she didn’t answer.
Then[,] I dialed 911 and then they tended to the child and they asked me where she had fallen from and I told them from the couch. That is, the rocking chair. I wasn’t asked anything else, nothing else, and I am at the clinic.
That night, CPS removed A.K. from Romero’s home. Then, CPS proceeded to terminate
Romero’s parental rights to A.K. After M.I. was released from the hospital, she went through a
series of foster homes for approximately a year before she returned to Mexico.
On September 13, 2001, during an interview with the Carrollton police, Romero made a
second, voluntary statement to Detectives Vick Humphrey and Jose Flores. The statement was
provided in Spanish and was translated into English as follows:
–4– This Sunday [I] was in my apartment with my daughters, [M.I.], [A.K.,] and [Villareal’s daughter]. Around 4:00 p.m., my sister-in-law came to my apartment too.
So then we ate and stayed for about five minutes and [Villareal] took [Villareal’s daughter]. My daughters and I were watching television. My daughter was playing with the control.
So then I told her, “Calm down, because if you don’t, I’m going to spank you.” And she wouldn’t calm down.
I got really annoyed and grabbed my girl’s arm and I pushed her hard on the chair and the chair went backwards and she hit her head on the floor.
She did not react and I took her to the bathroom and I wet her head and she didn’t react and I gave her moth-to-mouth resuscitation and nothing.
And then I called 911. That was when they came and tended to her and I went with them. I am sorry about what happened. I am torn because this was an accident and I am so regretful and it hurt me a lot.
Romero was arrested in September 2001, indicted for the offense of injury to a child, and
released on bond in March 2002. After being released on bond, Romero fled to Mexico. The
case was called for trial on December 9, 2002, but Romero failed to appear and answer. On
December 11, 2002, Dallas County Criminal District Court No. 4 signed a judgment nisi against
Romero. Romero lived in Mexico for approximately three years before moving to North
Carolina with her siblings. Romero was re-arrested in September 2011.
In September 2013, Romero was tried before a jury. During the trial, Villareal testified
that at the time of trial, M.I. was fifteen years old and living in Mexico with Iniesta. Villareal
also stated that M.I. is unable to talk or feed herself, walks with difficulty, can move only one
hand and one eye, and wears a diaper. Dr. Okada, Dr. Swift, and Mathew Cox, M.D., a
pediatrician who reviewed M.I.’s medical files, provided medical testimony regarding the nature
and extent of M.I.’s injuries during the trial. Romero testified in her own defense and denied
harming M.I., stating that she was not in the room at the time of M.I.’s injury and did not know
–5– how M.I.’s injuries occurred. The jury found Romero guilty of injury to child. After a hearing
on punishment, the jury assessed Romero’s punishment at life imprisonment and a $10,000 fine.
II. SUFFICIENCY OF THE EVIDENCE
In issue one, Romero argues the evidence is insufficient to support her conviction.
Romero contends there is no evidence she intended to cause the injuries resulting from her
actions. In the alternative, she argues the evidence shows only that she was guilty of the lesser
included offense of recklessly causing the injury. The State responds that the overwhelming
evidence allowed a rational jury to find Romero guilty of intentionally or knowingly causing
serious bodily injury to a child.
A. Standard of Review
When reviewing the sufficiency of the evidence, an appellate court considers all of the
evidence in the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–
19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to
determine whether any rational juror could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An
appellate court is required to defer to the jury’s credibility and weight determinations because the
jury is the sole judge of the witnesses’ credibility and the weight to be given to their testimony.
See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All
evidence, whether properly or improperly admitted, will be considered when reviewing the
sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart
v. Nelson, 488 U.S. 33, 41–42 (1988); Jackson, 443 U.S. at 319.
–6– B. Applicable Law
Section 22.04(a)(1) of the Texas Penal Code states that “[a] person commits [the offense
of injury to a child] if he intentionally, knowingly, recklessly, or with criminal negligence, by act
. . . causes to a child . . . serious bodily injury.” TEX. PENAL CODE ANN. § 22.04(a)(1) (West
Supp. 2014). A person acts intentionally with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011).
A person acts knowingly with respect to a result of his conduct when he is aware his conduct is
reasonably likely to cause the result. TEX. PENAL CODE ANN. § 6.03(b).
The culpable mental state is generally proven by circumstantial evidence. Lopez v. State,
630 S.W.2d 936, 942 (Tex. Crim. App. [Panel Op.] 1982); Dillon v. State, 574 S.W.2d 92, 94
(Tex. Crim. App. [Panel Op.] 1978). To determine culpability for an offense, a jury is entitled to
consider events before, during, and after the commission of the offense. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004); Barron v. State, 566 S.W.2d 929, 931 (Tex. Crim. App.
[Panel Op.] 1982). Proof of a culpable mental state may be inferred from any facts tending to
prove its existence, including the acts, words, and conduct of the accused. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the extent of the injuries,
and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.
Crim. App. 1995) (citing Lindsey v. State, 501 S.W.2d 647, 648 (Tex. Crim. App. 1973)).
Attempts to conceal incriminating evidence, inconsistent statements, and implausible
explanations are probative of wrongful conduct and also circumstances of guilt. Guevara, 152
S.W.3d at 50. Also, Texas law has long recognized that evidence of a defendant’s flight or
escape is a circumstance from which an inference of guilt may be drawn. See e.g., Bigby v.
State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State, 876 S.W.2d 877, 903 (Tex.
Crim. App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); Cantrell v.
–7– State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752
(Tex. Crim. App. 1982); McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980).
C. Application of the Law to the Facts
The record shows that M.I. suffered serious bodily injury. The EMTs and Dr. Okada
found that M.I. was nonresponsive, posturing, and had a “blown pupil.” Medical imaging
revealed that M.I. had a large skull fracture and subdural hematoma, and her pancreas was
lacerated or torn into two pieces. Dr. Swift performed a craniotomy and found that M.I. had
fresh subdural and epidural hematomas and one long segmented skull fracture that appeared to
be a couple of weeks old based on the degree of healing. As a result of her injuries, M.I. had to
be placed in a pentobarbital coma. Further, Villareal testified that, at the time of trial, M.I. was
fifteen years old, and as a result of her injuries, M.I. remains unable to talk or feed herself, walks
with difficulty, is unable to move one hand and one eye, and wears a diaper. The jury could infer
that Romero intentionally or knowingly injured M.I. from the extent of M.I.’s injuries. See
Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from extent of injuries).
The record shows Villareal left Romero’s apartment approximately fifteen minutes before
M.I. was injured. As a result, Romero and A.K. were the only persons present in the apartment
at the time M.I. was injured. M.I. was two years old and A.K. was one year old. The evidence
of M.I.’s age and size compared with that of Romero, who the jury was able to see in court, is a
circumstance from which the jury could infer that Romero intentionally or knowingly injured
M.I. See Patrick, 906 S.W.2d at 487 (culpable mental state can be inferred from relative size and
strength of parties).
When asked about M.I.’s injuries, Romero gave inconsistent statements. First, she told
the 9-1-1 dispatcher that M.I. had fallen off of a couch while jumping and hit her head. Then,
she told CPS that while she was in the bathroom, she heard a child scream and found M.I. lying
–8– on her back by the fireplace and unconscious. Romero stated that she believed while M.I. was
playing on and jumping from the rocking chair to the fireplace, the rocking chair had fallen over.
Next, Romero gave police a voluntary written statement admitting that she pushed M.I. At trial,
Romero claimed that she was not in the room when M.I. was injured.
In addition, Dr. Okada and Dr. Swift, the treating physicians, and Dr. Cox, the medical
expert at trial, testified that in their opinions M.I.’s injuries were not consistent with Romero’s
explanation and were the result of non-accidental trauma. Dr. Swift testified that, in his opinion,
based on the types of injuries sustained a person would have known that they were going to
cause bodily injury to the child. Dr. Cox testified that his review of M.I.’s medical file showed
there has been more than one episode of trauma to M.I., which are not explained by the history
that was provided by Romero, indicating that her injuries were inflicted and the result of child
abuse. Also, Dr. Cox stated that “based on the type of injuries, it would be obvious to the person
there that what happened would be injurious.” Dr. Cox stated that M.I.’s injuries required “high
force.” Romero’s inconsistent statements to the 9-1-1 dispatcher, CPS workers, and the police,
and implausible explanations for M.I.’s injuries are circumstances from which the jury could
infer Romero’s consciousness of guilt. See Guevara, 152 S.W.3d at 50 (inconsistent statements
and implausible explanations are circumstances of guilt).
Romero was arrested in September 2001, indicted for the offense of injury to a child, and
released on bond in March 2002. Romero testified that, although she does not speak English and
the judge did not speak Spanish, she understood the trial judge to say, during her March 26, 2002
hearing, that she could just go home and never had to return to court. After that hearing,
Villareal picked Romero up from the jail and Romero stayed with her for approximately four
months. Then, Romero stated that she went to Mexico because her husband’s father died, her
husband was supporting her, she did not work, and she was pregnant. However, Villareal
–9– testified that, when Romero left Villareal’s home for Mexico, Villareal asked Romero “how she
gets free from jail,” and Romero told her “she got a call and the Judge tell her just go home.”
Romero stated she lived in Mexico for three years before moving to North Carolina with her
siblings. Romero was re-arrested nine years later in September 2011. The evidence of Romero’s
flight from prosecution is a circumstance from which the jury could infer Romero’s
consciousness of guilt. See e.g., Bigby, 892 S.W.2d at 883; Burks, 876 S.W.2d at 903; Cantrell,
731 S.W.2d at 92; Foster, 779 S.W.2d at 859; Rumbaugh, 629 S.W.2d at 752; McWherter, 607
S.W.2d at 535.
Reviewing all of the evidence in the light most favorable to the jury=s verdict, we
conclude a rational jury could have found that Romero intentionally or knowingly caused injury
to M.I., a child. See Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 899. Issue one is
decided against Romero.
III. JURY CHARGE ERROR
In issue two, Romero argues that she suffered egregious harm when the trial court
included an instruction in the jury charge that authorized the jury to convict her of injury to a
child if they found that she “intentionally” engaged in the conduct. She claims that the trial court
incorrectly defined “intentionally” and that error was egregious because the jury could have
found her guilty of intentionally engaging in the alleged conduct based upon that incorrect
definition. Romero concedes that the portion of the jury charge containing the definitions of
knowingly and recklessly were correct. Finally, Romero acknowledges that no objection was
raised at trial respecting the definition of “intentionally.”
The State “agrees [] that the definition of ‘intentionally’ should not have included the
phrase ‘engage in the conduct or.’” However, the State argues that Romero did not suffer
egregious harm because the application paragraphs show the trial court correctly limited the
–10– culpable mental states to the result of Romero’s conduct. Also, the State contends that the jury
returned a general verdict of guilty of “intentionally or knowingly causing serious bodily injury
as charged in the indictment,” so the jury could have found that Romero knowingly caused
bodily injury to M.I.
A. Egregious Harm
Article 36.19 of the Texas Code of Criminal Procedure establishes the standard for
reversal on appeal when the requirements of article 36.14, which relates to the charge of the
court, have been disregarded: “the judgment shall not be reversed unless the error appearing
from the record was calculated to injure the rights of [the] defendant, or unless it appears from
the record that the defendant has not had a fair and impartial trial.” TEX. CODE CRIM. PROC.
ANN. art. art. 36.19 (West 2006). Under Almanza, jury charge error requires reversal of the
judgment when the defendant has properly objected to the charge and the appellate court finds
“some harm” to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
When the defendant fails to object or states that he has no objection to the jury charge, an
appellate court will not reverse for jury charge error unless the record shows “egregious harm” to
the defendant. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
Egregious harm is a difficult standard to prove and such a determination must be done on
a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The actual degree of harm must be assayed
in light of: (1) the entire jury charge; (2) the state of the evidence; (3) the argument of counsel;
and (4) any other relevant information revealed by the record of the trial as a whole. Allen v.
State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. Errors which
result in egregious harm are those that affect the very basis of the case, deprive the defendant of
–11– a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and
significantly more persuasive. E.g., Taylor, 332 S.W.3d at 490.
B. Application of the Law to the Facts
First, we examine the entire jury charge. See Allen, 253 S.W.3d at 264; Almanza, 686
S.W.2d at 171. Section 22.04(a)(1) of the Texas Penal Code states that “[a] person commits [the
offense of injury to a child] if he intentionally, knowingly, recklessly, or with criminal
negligence, by act . . . causes to a child . . . serious bodily injury.” TEX. PENAL CODE ANN. §
22.04(a)(1). The definition portion of the jury charge states,
A person acts intentionally, or with intent, with respect to [] a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(Emphasis added). The application paragraphs of the jury charge state:
Now if you find from the evidence beyond a reasonable doubt that on or about the 9th day of September, 2001, in Dallas County, Texas, the defendant, Silvia Romero, did then and there knowingly or intentionally cause serious bodily injury to [M.I.], a child fourteen years of age or younger, hereinafter called complainant, by throwing or pushing complainant into a chair with her hands, a deadly weapon, or causing complainant to strike the floor, a deadly weapon, or a fireplace, a deadly weapon, or an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors;
Or if you find from the evidence beyond a reasonable doubt that the defendant did unlawfully then and there knowingly cause serious bodily injury to [M.I.], a child fourteen years of age or younger, hereinafter called complainant, by striking the complainant against a floor, a deadly weapon, or by striking complainant against a fireplace hearth, a deadly weapon, or by striking complainant with and against an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors, then you will find the defendant guilty of knowingly or intentionally causing serious bodily injury to a child as charged in the indictment.
–12– The definition and application portions of the jury charge also included the lesser included
offense of recklessly causing injury to a child. Neither the State nor Romero objected to the trial
court’s charge.
The application portion of the trial court’s jury charge alleged three theories by which the
jury could have found Romero guilty. Although the portion of the jury charge defining
“intentionally” includes the phrase “engage in the conduct or,” the application paragraph limited
the offense to “intentionally cause serious bodily injury.”
Second, we review the state of the evidence. See Allen, 253 S.W.3d at 264; Almanza, 686
S.W.2d at 171. The evidence adduced at trial showed that M.I. suffered serious bodily injury,
was only two years old at the time of her injuries, Romero and A.K., who was one year old, were
the only others present in the apartment when M.I. was injured, Romero gave inconsistent
statements and implausible explanations relating to M.I.’s injuries, and Romero absconded,
fleeing prosecution for nine years.
Third, we review the argument of counsel. See Allen, 253 S.W.3d at 264; Almanza, 686
S.W.2d at 171. In the first part of the State’s closing argument, the State argued
What we know beyond all doubt from what you heard from the evidence is that this was an intentional act. Every doctor who treated this baby told you this was an intentional act. . . .
This was an intentional act. . . .
I told you that you could look at everything to determine whether a person acted intentionally, before, during, after. . . .
The doctors told you that this was an intentional act. The brain, the fractures, all the bruising that they saw, this was an intentional violent act, and [Romero] knew, because that’s why she fled the country, leaving everything behind.
However, during defense counsel’s closing argument, he referred to the court’s charge, stating,
in part, the jury had to decide “whether this is intentional, that is, [Romero] intended that this
result occur.” Then, during the second part of the State’s closing argument, the State argued, in
–13– part, “Actually, your job is going to be easy. We know it was an intentional act. We know it
was her.”
We consider the totality of the circumstances as well as the fact that, although the State
argued Romero intended the act, the State did not argue or suggest that the jury did not have to
find that Romero intended to cause the result. Further, it was Romero’s defensive theory that she
was not present in the room when M.I. was injured and that M.I.’s injury was the result of an
accident.
Finally, we consider any other information revealed by the record of the trial as a whole.
See Allen, 253 S.W.3d at 264; Almanza, 686 S.W.2d at 171. The record shows the indictment
alleged Romero “intentionally and knowingly cause[d] serious bodily injury to [M.I.].” Romero
concedes that the portion of the jury charge containing the definition of knowingly was correct.
Further, the jury’s verdict states the jury found Romero “guilty of intentionally or knowingly
causing serious bodily injury to child as charged in the indictment.” Accordingly, the jury could
have found that Romero knowingly caused serious bodily injury to M.I.
Even though the trial court included an instruction in the jury charge that authorized the
jury to convict Romero of injury to a child if they found that she intentionally “engage[d] in the
conduct,” we conclude that Romero has not shown that the error resulted in egregious harm.
Issue two is decided against Romero.
IV. MODIFICATION OF THE JUDGMENT
In its sole issue on cross-appeal, the State argues the judgment should be modified to
reflect the correct statute for the offense. The State argues the trial court’s judgment incorrectly
lists the statute for the offense as section 22.01 of the Texas Penal Code.
Romero was indicted for the offense of injury to a child. Section 22.04(a)(1) of the Texas
Penal Code states that “[a] person commits [the offense of injury to a child] if he intentionally,
–14– knowingly, recklessly, or with criminal negligence, by act . . . causes to a child . . . serious bodily
injury.” TEX. PENAL CODE ANN. § 22.04(a)(1). The jury charge reflects that the jury found
Romero “guilty of intentionally or knowingly causing serious bodily injury to a child as charged
in the indictment.” The trial court’s judgment states that Romero was convicted of the offense of
“Injury to a Child Serious Bodily Injury.” However, the trial court’s judgment also lists the
statute for the offense as “22.01 Penal Code.” Section 22.01 of the Texas Penal Code defines the
offense of assault. TEX. PENAL CODE ANN. § 22.01 (West Supp. 2014).
An appellate court has the authority to modify an incorrect judgment to make the record
speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we conclude the trial
court’s judgment should be modified to reflect the correct statute for the offense, which is section
22.04 of the Texas Penal Code. Issue one of the State’s cross-appeal is decided in favor of the
State.
Also, although neither party raises the issue, we observe the judgment states that the
deadly weapon finding was “N/A.” However, the indictment alleged Romero:
unlawfully then and there intentionally and knowingly cause[d] serious bodily injury to [M.I.], a child 14 years of age or younger, hereinafter called complainant, by throwing and pushing complainant into a chair with her hands, a deadly weapon, and causing complainant to strike the floor, a deadly weapon, and a fireplace, a deadly weapon, and object, a deadly weapon, the extant nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors.
and did unlawfully then and there knowingly cause[d] serious bodily injury to [M.I.], a child 14 years of age or younger, hereinafter called complaint, by striking the complainant against a floor, a deadly weapon, and by striking complainant against a fireplace hearth, a deadly weapon, and by striking complainant with an against an object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and unknowable to the Grand Jurors.
–15– (Emphasis added). Also, the jury charge “instructed that a deadly weapon is a firearm, or
anything manifestly designed, made, or adapted for the purpose of inflicted death or serious
bodily injury, or anything that in the manner of its use or intended use is capable of causing
death or serious bodily injury.” The application paragraphs also referred to the use of a deadly
weapon. The jury found Romero guilty as charged in the indictment. See Crumpton v. State,
301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (jury’s verdict was finding that defendant used
deadly weapon as verdict expressly found defendant guilty of the offense “as included in the
indictment” and indictment expressly alleged defendant committed offense with “a deadly
weapon). Accordingly, we conclude the trial court’s judgment should be modified to state that
the jury found Romero used a “deadly weapon, not a firearm.” See TEX. R. APP. P. 43.2(b);
Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30 (appellate court has authority to
sua sponte modify incorrect judgment to make record speak the truth when it has necessary
information to do so).
V. CONCLUSION
The evidence is sufficient to support Romero’s conviction. Also, even though the trial
court included an instruction in the jury charge that authorized the jury to convict Romero of
injury to a child if they found that she intentionally “engage[d] in the conduct,” Romero has not
shown that she suffered egregious harm. Further, the judgment lists an incorrect statute for the
offense and fails to list that Romero used a deadly weapon.
–16– The trial court’s judgment is affirmed as modified.
/ Douglas S. Lang/ DOUGLAS S. LANG JUSTICE
Do Not Publish TEX. R. APP. P. 47 131586F.U05
–17– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SYLVIA ROMERO, Appellant On Appeal from the Criminal District Court No. 6, Dallas County, Texas No. 05-13-01586-CR V. Trial Court Cause No. F-01-16575-X. Opinion delivered by Justice Lang. Justice THE STATE OF TEXAS, Appellee Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
(1) The portion of the trial court's judgment that states "Statute for Offense: 22.01 Penal Code" is modified to state "Statute for Offense: 22.04 Penal Code”; and
(2) The portion of the trial court’s judgment that states “Findings on Deadly Weapon: N/A” is modified to state “Findings on Deadly Weapon: Deadly Weapon, Not a Firearm.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 17th day of April, 2015.
–18–