dissenting.
I respectfully dissent. Whether a lesser-included offense instruction should be included in the jury charge depends on a two-part analysis. Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App.2011). First, it must be determined whether the lesser-included offense is included within the proof necessary to establish the charged offense. Id. at 68. Wortham contends that the record contains evidence that he did shake C.B., but not with intent to harm *877her. His request for lesser-included offense instructions stems from the same conduct as that alleged in the indictment, i.e., shaking. Irving v. State, 176 S.W.3d 842, 846 (Tex.Crim.App.2005). Accordingly, reckless injury to a child and criminally negligent injury to a child are established by proof of the same or less than all the facts required to establish the commission of intentional or knowing injury to a child. See Tex.Code Crim. Proc. Ann. art. 37.09(1) (West 2006); see also Irving, 176 S.W.3d at 846. Moreover, these two offenses differ from the charged offense only in the respect that a less culpable mental state suffices to establish their commission. See Tex.Code Crim. Proc. Ann. art. 37.09(3) (West 2006). Under these circumstances, I believe that reckless injury to a child and criminally negligent injury to a child are lesser-included offenses of intentional or knowing injury to a child.
Second, the appellate court must consider whether there is some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Sweed, 351 S.W.3d at 68. The record must contain some evidence that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. “The evidence must establish the lesser-included offense as ‘a valid rational alternative to the charged offense.’ ” Id. (quoting Segundo v. State, 270 S.W.3d 79, 90-91 (Tex.Crim.App.2008)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.” Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994). This 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. If evidence from any source raises a defensive issue or raises an issue that a lesser-included offense may have been committed, and an instruction is properly requested, the issue must be submitted to the jury. Id. at 69.
A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. § 6.03(c) (West 2011). A person is criminally negligent when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(d). In either case, there must be 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. Id. § 6.03(c), (d).
There is more than a scintilla of evidence from which the jury could rationally conclude that either reckless injury to a child or criminally negligent injury to a child is a valid alternative to the offense of intentional or knowing injury to a child. See Sweed, 351 S.W.3d at 68. Evidence that Wortham shook C.B. in an attempt to revive her is directly germane to whether Wortham lacked intent to commit the charged offense. See Goad v. State, 354 S.W.3d 443, 447 (Tex.Crim.App.2011). This evidence raises a fact question regarding whether Wortham intended to harm C.B. by shaking her or whether he (1) was aware of, but consciously disregarded a substantial and unjustifiable risk that C.B. would suffer harm, or (2) failed to perceive a substantial and unjustifiable risk that C.B. would suffer harm. See Sweed, 351 S.W.3d at 69; see also Gay v. State, 235 S.W.3d 829, 833 (Tex.App.-Fort Worth 2007, pet. ref'd). Under these circumstances, a rational jury could find that C.B.’s injuries resulted from Wortham’s reckless or negligent actions and, thus, Wortham could have been guilty only of a lesser offense and not the greater offense of intentional or knowing injury to a child. *878See Sweed, 351 S.W.3d at 69; see also Goad, 354 S.W.3d at 447-49; Bignall, 887 S.W.2d at 24; Gay, 235 S.W.3d at 833. Wortham was entitled to jury instructions on the lesser-included offenses of reckless and criminally negligent injury to a child.
A trial court’s refusal to submit a lesser-included offense that was requested and raised by the evidence results in harm when that failure leaves the jury with the sole option to either convict the defendant of the greater offense or to acquit him. Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App.1995). The rationale is that “ ‘some’ harm occurs because the jury was not permitted to fulfill its role as factfinder to resolve the factual dispute [regarding] whether the defendant committed the greater or lesser offense.” Id. In this ease, the jury was limited to either finding Wortham guilty of the greater offense of intentional or knowing injury to a child or acquitting Wortham of the greater offense. See id. Wortham received a forty-year sentence, which far exceeds the punishment range for either reckless or criminally negligent injury to a child. See Tex. Penal Code Ann. §§ 12.32, 12.33 (West 2011), §§ 12.35, 22.04(e), (g) (West Supp.2011); see also Robalin v. State, 224 S.W.3d 470, 477 (Tex.App.-Houston [1st Dist.] 2007, no pet.). For these reasons, I believe the trial court’s refusal of Wort-ham’s requested instructions on lesser-included offenses resulted in harm. See Saunders, 913 S.W.2d at 571. I would sustain Wortham’s second issue, reverse the trial court’s judgment, and remand this case for further proceedings consistent with this opinion.