Ronald Eugene Wortham Jr. v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00231-CR
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RONALD EUGENE WORTHAM JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 258th District Court
San Jacinto County, Texas
Trial Cause No. 10313
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MEMORANDUM OPINION
Ronald Eugene Wortham Jr. was indicted for injury to a child, C.B.
Wortham lived with C.G. and C.G.’s daughter, C.B. In March 2010, C.B. was
admitted to the emergency room in full cardiac arrest, unresponsive, and with no
respiration, pulse, or blood pressure. C.B. had an acute subdural hematoma,
hypoxic ischemia, intraventricular hemorrhaging, and static epilepticus seizures,
and needed an endotracheal tube.
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Deputy Jason Bell and Detective Darryl Lamott each testified that Wortham
claimed that C.B was sleeping and he later found her with a plastic bag on her face.
Wortham told Lamott that he removed the bag and noticed that C.B. was not
breathing, so he attempted to rouse her by tapping on her face and shaking her.
Detective Katherine Wick testified that she suspected child abuse. Wick searched
C.G.’s house, but found no empty plastic bags on the floor.
Dr. Sunil Kumar Saraf testified that neither a plastic bag nor suffocation
would have caused a subdural hematoma. Saraf testified that a child would have an
external mark if grabbed by the neck and shaken. Radiologist George Boutros
testified that there is no reasonable medical probability that a plastic bag blocking
C.B.’s airway caused her injuries. He testified that an acute subdural hematoma
causes seizures that restrict air flow to the brain and that C.B.’s air flow was
impaired. Dr. Sheela Lahoti testified that a bag on C.B.’s face did not explain the
bleeding in her brain. Lahoti explained that a suffocated person does not usually
have bleeding in the brain, but that the effect on the brain is the same as
suffocation when a child is knocked unconscious and stops breathing. Lahoti
testified that suffocation did not cause C.B.’s injuries, but Lahoti explained that
blood in a child’s head interrupts the child’s normal ability to breathe, which
causes a lack of appropriate blood flow and oxygen to the brain. Lahoti, Suraf, and
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Boutros did not believe that C.B.’s injuries resulted from accidental trauma. Lahoti
explained that accidental trauma would involve subdural bleeding and a skull
fracture, but there were no associated fractures in this case. Lahoti testified that
someone caused C.B.’s injuries.
Boutros believed that C.B. had been shaken. Saraf explained that shaken
baby syndrome occurs when a “[y]oung child is shaken vigorously with rapid
acceleration that can cause [] trauma[,]” such as subdural hematoma, brain
hemorrhaging, and long bone fractures. Lahoti testified that signs of shaken baby
syndrome include a subdural hemorrhage and bleeding in the ventricles. Saraf,
Boutros, and Lahoti testified that C.B.’s injuries created a substantial risk of death
to C.B. and created a protracted loss or impairment to her organs. Lahoti believed
C.B. would have died without a breathing tube and immediate medication.
At the conclusion of trial, the jury convicted Wortham of injury to a child,
and the trial court sentenced Wortham to forty years in prison. Wortham appealed,
challenging the sufficiency of the evidence to support his conviction and the trial
court’s denial of his request for jury instructions on the lesser-included offenses of
reckless injury to a child and criminally negligent injury to a child. Wortham v.
State, 366 S.W.3d 871, 872, 875-76 (Tex. App.—Beaumont 2012), rev’d, 412
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S.W.3d 552 (Tex. Crim. App. 2013). On original submission, we found the
evidence sufficient to support Wortham’s conviction and concluded that:
[A] jury could not rationally find that the brain injury resulting in loss
of airflow was caused by the alleged contact with the bag or an
alleged effort to revive the child. To have submitted the requested
instructions on lesser-included offenses on this record would have
invited the jury to reach an irrational verdict.
Id. at 876.
The Court of Criminal Appeals reversed our decision that Wortham was not
entitled to jury instructions on lesser-included offenses. Wortham v. State, 412
S.W.3d 552, 553 (Tex. Crim. App. 2013). The Court found that reckless injury to a
child and criminally negligent injury to a child by act are lesser-included offenses
of injury to a child by act. Id. at 555. The Court explained that both Wortham
himself and the indictment alleged that Wortham shook C.B. Id. at 557.
Additionally, the Court stated that Wortham presented more than a scintilla of
evidence supporting the lesser-included offense instructions, as Wortham’s
assertion that he shook C.B. in an attempt to revive her, if true, would negate the
“intentional” or “knowing” elements of the charged offense. Id. at 558. Finding
that Wortham was entitled to the instructions on lesser-included offenses, the Court
of Criminal Appeals remanded the case to this Court for a harm analysis. Id. We
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reverse the trial court’s judgment and remand the case for further proceedings
consistent with this opinion.
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); Bridges v. State,
389 S.W.3d 508, 512-13 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The
rationale is that “‘some’ harm occurs because the jury was not permitted to fulfill
its role as factfinder to resolve the factual dispute whether the defendant committed
the greater or lesser offense.” Saunders, 913 S.W.2d at 571. Harm also exists when
the penalty imposed for the charged offense exceeds the potential penalty for the
lesser-included offense. Bridges, 389 S.W.3d at 512.
In this case, the jury was limited to either finding Wortham guilty of the
greater offense of intentional or knowing injury to a child or acquitting him. See
Saunders, 913 S.W.2d at 571. 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, 12.35, 22.04(e), (g) (West 2011
& Supp. 2013); see also Bridges, 389 S.W.3d at 512; Robalin v. State, 224 S.W.3d
470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Under these
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circumstances, the trial court’s refusal of Wortham’s requested instructions on the
lesser-included offenses of reckless injury to a child and criminally negligent
injury to a child resulted in harm. See Saunders, 913 S.W.2d at 571; see also
Bridges, 389 S.W.3d at 512-13. We reverse the trial court’s judgment and remand
the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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STEVE MCKEITHEN
Chief Justice
Submitted on December 23, 2013
Opinion Delivered February 19, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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