Tamecca Shonta Henderson v. State ( 2006 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-05-454 CR ____________________

TAMECCA SHONTA HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 91243

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MEMORANDUM OPINION

   A jury convicted appellant Tamecca Shonta Henderson of causing serious bodily injury to a child by failing to provide food and medical care. See Tex. Pen. Code Ann. § 22.04(a)(1), (e) (Vernon Supp. 2006). ⁽¹⁾ The trial court assessed punishment at twenty years of confinement. In two issues on appeal, Henderson contends the indictment was fundamentally defective because it omitted an element of the offense and the trial court committed fundamental error by omitting an element of the offense from the jury charge. We affirm.

In her first issue, Henderson asserts the indictment was fundamentally defective because it did not allege that she owed a legal duty to the child or had care, custody, or control of the child. See Tex. Pen. Code Ann. § 22.04(b)(1), (2) (Vernon Supp. 2006). ⁽²⁾ The record reflects Henderson did not raise this issue before trial. Therefore, she has not preserved the issue for our review. See Studer v. State, 799 S.W.2d 263, 271 (Tex. Crim. App. 1990); Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Tex. R. App. P. 33.1(a). We overrule issue one.

In issue two, Henderson argues the trial court fundamentally erred by omitting from the jury charge the element that she owed a duty to the child or had care, custody, or control of the child. The record reflects Henderson did not raise this objection in the trial court. When no objection to the alleged charge error was made at trial, an appellate court will reverse only if the error caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). In assessing the degree of harm, an appellate court must examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the record. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 171. Egregious harm exists if Henderson did not receive a fair and impartial trial as a result of the alleged charge error. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).

Henderson testified that she was the child's mother. Therefore, the existence of a legal duty to the child was not an issue at trial. See Tex. Fam. Code Ann. § 151.001(a)(2), (3) (Vernon Supp. 2006) ⁽³⁾ (Parent owes duty to care for her child, including the duty to provide the child with food and medical care.); see generally Prescott v. State, 123 S.W.3d 506, 512 (Tex. App.--San Antonio 2003, no pet.) (When uncontroverted testimony showed that appellant was the victim's parent, it was not necessary for the State to present evidence that appellant had care, custody, or control of the victim.). Because Henderson's uncontroverted testimony established that she was the child's mother, the omission from the charge of a question asking the jury to determine that Henderson owed a duty to the child did not constitute egregious harm. We overrule issue two and affirm the judgment of the trial court.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on July 19, 2006

Opinion Delivered August 23, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1.

Because subsections 22.04(a)(1), (e) have not substantively changed since 1993, we cite the current version.

2.

Because subsections 22.04(b)(1), (2) have not substantively changed since 1993, we cite the current version.

3.

Because subsections (2) and (3) of the statute have not substantively changed since their enactment, we cite the current version.