Hudson, Cynthia Ann ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1699-13
CYNTHIA ANN HUDSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S AND STATE’S
PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
CASS COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
The majority concludes that Appellant was not entitled to a lesser-included-offense
instruction on manslaughter because the evidence on which she relies raises the greater
offense of felony murder with the underlying offense of injury to a child. This conclusion
would be correct if one was examining only the Penal Code, where recklessness can be an
element of both manslaughter and felony murder based on injury to a child. T EX. P ENAL
C ODE §§ 19.04, 22.04. However, the jury charge in this case specified that injury to a child
Hudson dissent - Page 2
is committed only when a person causes serious bodily injury intentionally or knowingly. It
did not include any language explaining that the offense could also be committed recklessly
or with criminal negligence. Therefore, the jury had no vehicle by which it could convict
Appellant based on a culpable mental state of recklessness, which was raised by the evidence
she presented. This means that if the jury believed that Appellant’s acts were not intended
to kill, but only to punish or discipline, it was not authorized by the application of the jury
charge to find her guilty of recklessly or negligently causing injury to a child. And, because
the jury was not charged on manslaughter, it could not find that she recklessly caused the
death of the child.
Had the culpable mental states sufficient to commit injury to a child been explained
to the jury properly, I would agree with the majority’s decision. However, they were not, and
therefore, the trial court erred in denying Appellant’s requested instruction on manslaughter,
which would have allowed the jury to give effect to a finding of recklessness. For this reason,
I would remand this case to the court of appeals to evaluate whether Appellant was harmed
by this error. Therefore, I respectfully dissent.
Meyers, J.
Filed: December 10, 2014
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