dissenting.
With its reliance on Wilson v. State and application of a “rational-juror” test to the evidence to determine if an accused has the right to a defensive instruction, the majority applies the wrong test under Texas law and thus reaches the wrong result. See Wilson v. State, 777 S.W.2d 828, 825 (Tex.App.-Austin 1989), aff'd, 858 S.W.2d 547 (Tex.Crim.App.1993). Wilson was affirmed on other grounds, and neither the Court of Criminal Appeals nor any other Texas court of appeals has approved or adopted a rational-juror test, which in practice wrongly allows the judge — or judges — to weigh the relative credibility of the evidence.
The other two Texas cases cited by the majority neither mention nor apply a rational-juror test. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.). Instead, they state and apply the well-established “raised-by-the-evidence” test discussed below. The two federal cases cited by the majority are not controlling.
Generally, when evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993) (citing Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978)). The evidence that raises the issue may be strong, weak, contradicted, unimpeached, or unbelievable. Muniz, 851 S.W.2d at 254 (citing Sanders v. State, 707 S.W.2d 78, 80 (Tex.Crim.App.1986)); see also Ferrel, 55 S.W.3d at 591 (“A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.”); Johnson, 157 S.W.3d at 50 (quoting Ferrel). As we said in East v. State:
A trial court must charge the jury on any defensive issue raised by the evidence, “regardless of its substantive character.” Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997).
A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unim-peached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant’s testimony alone may be sufficient to raise a defensive .theory requiring a charge.
Id. (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982)). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence, [citation omitted] When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury, [citation omitted] The weight of *458the evidence in support of an instruction is immaterial.
Id. (quoting Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex.Crim.App.1987)).
East v. State, 76 S.W.3d 736, 737 (Tex.App.-Waco 2002, no pet.).
By applying the wrong test to the evidence, the majority’s analysis and result are flawed. The evidence raised both elements of the defense on which Shaw requested an instruction.
Shaw testified how she ran through the house with the baby in a panic and how she performed CPR (emergency medical care) on the baby after calling 9-1-1. Dr. Hernandez thought — at least initially— that the injury was the result of aggressive cardio-pulmonary resuscitation. There thus was evidence that Shaw administered emergency medical care to the child in good faith and with reasonable care and that this care caused the child’s injury. While the causation testimony was contradicted, that factor does not support the denial of Shaw’s requested instruction; the first element of the defense was still raised by the evidence.
I also disagree with the majority’s assertion that “the only reasonable conclusion that may be drawn from [Shaw’s] testimony is that she is licensed as a physician assistant.” She testified ■ that she is a “medical assistant” and that she is “licensed.” I agree with the majority that “medical assistants” are not licensed by the State; thus, her testimony is susceptible of two interpretations: (1) she is a medical assistant who is mistaken about being “licensed” or (2) she is mistaken about being a “medical assistant” when she is in fact a physician assistant who is licensed. I believe that the former is the more rational interpretation of her testimony. It seems a lot more likely that a medical assistant might believe that going to school and graduating constituted a “license” than that a physician assistant, who is licensed, would describe herself as a “medical assistant.” Regardless, this seemingly conflicting evidence raised this element of the defense.
Because there was some evidence that Shaw (1) administered emergency medical care to the child in good faith and with reasonable care and that this care caused the child’s injury and (2) was not a person licensed in the healing arts, she was entitled to the requested defensive instruction. Because the majority applies an incorrect test and determines otherwise, I respectfully dissent.