IN THE
TENTH COURT OF APPEALS
No. 10-92-301-CR
SUE M. MILLIGAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court # 12,422
O P I N I O N
Appellant Sue M. Milligan was indicted for the offense of injury to a child. Section 22.04, Texas Penal Code. The indictment alleged that Appellant intentionally and knowingly, by omission, engaged in conduct that caused serious bodily injury to a child. Trial was had to a jury which found Appellant guilty of the offense of injury to a child by recklessly, by omission, causing serious bodily injury to a child. Article 6.03, Texas Penal Code, sets out the definitions of "intentionally," "knowingly," and "recklessly."
Punishment was tried to the court which assessed Appellant's punishment at seven years in the Texas Department of Criminal Justice, Institutional Division, probated for seven years.
Appellant comes to this court on two points of error. We overrule both points of error and affirm the trial court's judgment.
By her first point of error, Appellant asserts the trial court erred in refusing her motion for an instructed verdict of not guilty.
At the close of the State's case, the following motion was made by Appellant's counsel:
"May it please the Court, the State of Texas having rested its case-in-chief, before the Defendant would offer any testimony I would move the Court for an instructed verdict of not guilty in the following reasons: Number one, the State has failed to prove beyond a reasonable doubt each and every allegation as set forth in the indictment alleging this offense against this defendant as those terms are defined and used in the Texas Penal Code, and for that reason, Your Honor, we would move for an instructed verdict of not guilty."
In her brief, Appellant now contends that the State presented no evidence to show that her conduct was knowing or intentional. This contention is unsupported by any reference to the record, case law, or authority.
This contention on appeal is definitely different from the contention set out in Appellant's motion for instructed verdict, as can be seen. The point of error on appeal, to the effect that there is no evidence to support the allegations in the indictment that she knowingly or intentionally caused serious bodily injury to a child, is raised for the first time on appeal, and is not preserved for review. We accordingly overrule Appellant's first point of error. See Miller v. State, (Tex. Crim. App. 1984) 667 S.W.2d 773.
Appellant's second point of error asserts that the trial court erred when it included the culpable mental state of recklessly in the charge to the jury because it allowed the jury to convict Appellant under a theory not contained in her indictment and substantially lessened the burden of proof required by the State to obtain a conviction. We do not agree. The jury found Appellant guilty of recklessly causing injury to the child, whereas, the indictment charged her with intentionally and knowingly causing the injury.
The jury found Appellant guilty of a lesser-included offense of that charged by the indictment. Under Article 37.09(3), Texas Code of Criminal Procedure, "an offense is a lesser included offense if . . .
"(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; . . . . "
Our Court of Criminal Appeals has held that in determining whether a charge on a lesser-included offense is required, a two-step analysis is to be used. First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty of only the lesser offense. Rousseau v. State, No. 70,910, slip op. at 4 (Tex. Crim. App. February 24, 1993); Royster v. State, (Tex. Crim. App. 1981) 622 S.W.2d 442, 446. This rule has been applied by this court in Johnson v. State, (Tex. App.—Waco 1992, no pet.) 828 S.W.2d 511, 514; also see Richardson v. State, (Tex. App.—Waco 1992, pet. ref'd) 832 S.W.2d 168.
Appellant asserts that the inclusion of the term "recklessly" in the charge allowed the jury to convict on a theory not pleaded, but this court, in Johnson v. State, 828 S.W.2d 511, 514, has held that the elements of each lesser-included offense are considered to have been alleged within the elements of the indictment alleging the greater offense.
Both the State and Appellant have the right to request the inclusion of a lesser-included offense in the court's charge. Richardson v. State, 832 S.W.2d 168, 171. We overrule Appellant's second point of error.
The judgment of the trial court is affirmed.
JOHN A. JAMES, JR.
Justice (Retired)
Before Chief Justice Thomas,
Justice Cummings and
Justice James (Retired)
Affirmed
Opinion delivered and filed August 11, 1993
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