Alma Linda Villarreal v. State

NUMBER 13-10-00396-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALMA LINDA VILLARREAL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Rose Vela
Appellant, Alma Linda Villarreal, was indicted1 along with co-defendants, Vanessa
Zuniga and Yolanda Zuniga, for the first-degree felony offense of injury to a child. See
TEX. PENAL CODE ANN. § 22.04(a), (e) (West Supp. 2011). The three were tried together,
and a jury found appellant guilty and assessed her punishment at thirty years'
imprisonment. By two issues, appellant argues the trial court: (1) abused its discretion
by failing to instruct the jury on the lesser-included offense of reckless injury to a child;
and (2) erred by charging the jury regarding the nature of her conduct as well as the result
of her conduct. We affirm.
I. FACTUAL BACKGROUND
A. State's Evidence
This case involves the near-starvation death of three-year-old I.V., who lived with
appellant, his biological mother, her girlfriend, Vanessa Zuniga 2, and Vanessa's mother,
Yolanda Zuniga. On the afternoon of February 27, 2009, Jose Zuniga, arrived at I.V.'s
home and saw appellant crying while Yolanda called an ambulance. Rather than wait for
an ambulance, Jose rushed I.V. to Spohn Hospital South emergency room, where I.V.
stopped breathing. Amalia Tinoco, M.D., resuscitated him and discovered his blood
sugar was 3, which is extremely low. After infusing him with glucose, his blood sugar
rose to 79, a normal level. She testified I.V. was dying and looked severely
1
Paragraph one of the indictment alleged, in relevant part, that appellant on or about February 27,
2009, "intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15
years of age, by failing to provide adequate nutrition and/or nourishment to [I.V.], and ALMA VILLARREAL
had a legal and/or statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ."
Paragraph two of the indictment alleged, in relevant part, that appellant on or about February 27, 2009,
"intentionally or knowingly by omission cause[d] serious bodily injury to [I.V.], a child younger than 15 years
of age, by failing to provide adequate medical care to [I.V.] and ALMA VILLARREAL had a legal and/or
statutory duty to act, namely, ALMA LINDA VILLARREAL is [I.V.'s] mother, . . . ."
2
Vanessa Zuniga's appeal is still pending with this Court.
2
malnourished and dehydrated. She stated in "a few more minutes his heart would
probably have stopped completely, . . . ." Even though appellant told Dr. Tinoco I.V. ate
a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard to believe that he ate at
11:00 a.m. and by 1:30 p.m., his blood sugar was 3. Dr. Tinoco blamed malnutrition as
the cause of his low blood sugar. After treating I.V., she transferred him to Driscoll
Children's Hospital.
I.V. arrived at Driscoll in "serious condition." He had "exposure of every bony
prominence", "very visible ribs", and "no body fat." His treating pediatrician, Dr. Rivera, 3
testified he "looked like he was malnourished." Appellant told him I.V. was always
hungry and always ate a lot but never gained any weight. However, Dr. Rivera testified
this account was inconsistent with I.V.'s condition and stated that "usually when
somebody is always hungry, it usually kind of steers you away from something that is
primarily going on with his, . . . stomach or intestinal tract." He said, "[I]f you ingest
normal calories or excess calories a child should be thriving." When the prosecutor
asked Dr. Rivera, "[W]ere tests performed on [I.V.] to see if there was an organic reason
for him being that way?," he said, "Yes, there were numerous tests . . . but all those tests
were basically normal."
About 4:00 p.m. that day, Nancy Harper, M.D., a board certified specialist in child
abuse pediatrics, examined I.V. She described him as a "frail, frail appearing child, like a
skeleton lying on the bed." She stated his "belly was like all scaphoid, it was sunk down
and with the degree of starvation, malnutrition I was seeing." When she asked I.V. if he
3
When the prosecutor called Dr. Rivera as a witness, she did not state Dr. Rivera's first name. Dr.
Rivera did not state his first name when he testified.
3
had eaten anything that day or the day before, he said, "No." He told her he was unable
to walk or run. She interviewed appellant, who told her I.V. had eaten plenty of food.
Dr. Harper testified this "history was not consistent with what we saw, . . . . If he had
been able to eat that many calories in the days leading up to when he came in, he would
not have developed life-threatening refeeding syndrome when we started to feed him."
She testified he "had extreme starvation from deprivation of food."
Later that day, appellant went to the police station and gave a video-taped
statement 4 to Detective Tanya Flores. In this statement, she indicated that in the
morning of February 27, 2009, I.V. had eaten three eggs with ketchup, a slice of bread,
and a glass of milk.
Belinda Loera, a social worker at Driscoll Children's Hospital, testified that on
December 1, 2008, she met with appellant and I.V. at the hospital. Appellant was
concerned because I.V. had lost weight, and appellant explained to Loera she "noticed
some changes in his [I.V.'s] eating behaviors going on about ten months." Even though
appellant told Loera that I.V. "hoarded his food", "would eat everything around him", "ate
out of the trash can", and "ate more than his older sisters, who were 10 and 12", appellant
could not identify his favorite food and did not know his feeding schedule or his sleeping
patterns. Appellant told her Vanessa was I.V.'s primary caregiver. Regarding the
events of February 27, 2009, appellant told Loera I.V. had breakfast that morning and
usually ate three scrambled eggs, ketchup, a slice of toast and a glass of milk. Around
eleven or twelve, she passed by I.V.'s room and found him unresponsive, limp, and barely
4
During the State's case-in-chief, the trial court admitted the videotape into evidence as State's
exhibit 2. The prosecutor played the tape to the jury.
4
breathing. Appellant told Loera, "she [appellant], Vanessa, and Yolanda were
caretakers at that point." Loera testified this "was a change compared to my assessment
before." When the prosecutor asked Loera, "So she said that all three of them took care
of him [I.V.] now, rather than just Vanessa?," she said, "Yes."
Appellant's oldest daughter, A.G.G., who lived with I.V., noticed I.V. was getting
"skinny" and "was always laying down." She testified he did not get to eat every day and
said Vanessa was the one who would not let him have food. She stated there were times
when Vanessa would make her eat in front of I.V. and would not let him have any food.
Sometimes Vanessa would deprive him of food for one meal, an entire day, or more than
one day. When the prosecutor asked A.G.G. what appellant would do when Vanessa
would not let I.V. eat, she said, "She wouldn't be there, or at work, or doing something
else downstairs." When asked if appellant would feed I.V., she said, "We were the ones
that fed him." By "We" she meant herself, her younger sister, and Vanessa.
On cross-examination, defense counsel asked A.G.G. about a birthday party
which occurred about two weeks before I.V. was rushed to the hospital ER. A.G.G.
recalled I.V. attended the party and was "real skinny" and had "real loose skin." She
testified he was "always hungry" and "always in his room laying down under the covers."
She said appellant would go to work early in the morning and return home by lunch time.
When defense counsel asked A.G.G., "Do you think that Vanessa at any time tried to
keep him [I.V.] from having food?," she said, "Sometimes."
Appellant's second oldest daughter, A.G., who also lived with I.V., replied, "Yes, I
think" when asked if appellant knew "that Vanessa wouldn't give [I.V.] food?" She said
5
that when appellant "would take Vanessa out, she [appellant] would call for my grandma
Yoli [Yolanda Zuniga] to give him food." When the prosecutor asked her, "But Were [sic]
there days that [I.V.] still didn't get to eat in the whole day?," she said, "Yes." According
to A.G., Yolanda only gave I.V. food when Vanessa was gone and Vanessa "sometimes"
got mad when people gave I.V. food. She said Vanessa would spank I.V. with a belt, hit
him with her hand, and spit on him.
On cross-examination, when defense counsel asked A.G., "Do you know why he
[I.V.] was skinny?," she said, "Because Vanessa starved him." A.G. testified that at
night, I.V. ate food out of the garbage can.
B. Defense Evidence
Vanessa's cousin, Rosa Ramirez, visited appellant's home numerous times. She
noticed I.V. was always skinny and his ribs were visible. She told appellant I.V. looked
skinny. Vanessa's niece, Samantha, testified she never saw anyone prevent I.V. from
eating, and she never saw appellant act mean towards him.
Vanessa's sister, Lisa Ramirez, testified that when she went to Vanessa's house,
she never saw anyone denying I.V. food or liquids. However, she saw him "being
extremely skinny." She stated appellant "always worried about why he was so skinny. . .
. [A]nd that's why she had took him to the doctor, because he would eat all the time and
then his stomach would get real hard."
Vanessa's cousin, Jessica Marquez, testified that every time she saw I.V., he was
eating. She never saw anyone mistreating him but said he was "real skinny."
6
Vanessa's cousin, Sylvia Marquez, testified that when she saw I.V., he was "thin."
However, she did not think anything was wrong with him and never saw anyone deny him
food or water. She said Vanessa and appellant took responsibility for making sure the
kids were dressed and fed.
Appellant's sister, Amy Valdez, testified appellant never abused the children and
never kept them from eating. Rebecca Andrade, who used to baby sit appellant's
children, testified none of appellant's children ever told her they were being abused by
anyone. However, she testified I.V. looked "very skinny."
Yolanda Zuniga testified that in December 2008, appellant took I.V. to Driscoll
Children's Hospital because appellant was concerned about him being thin. After his
discharge, appellant told her, "'They said it was just failure to thrive'" and "'there is nothing
wrong with him.'" She stated appellant "told me that they had told her just to follow up in
a couple of days." When the prosecutor asked Yolanda, "Did you ever ask [appellant],
'Why didn't you take him back, . . . ?,'" Yolanda answered affirmatively and said appellant
"would say she was going to set up an appointment for him." When asked, "And did she
set up an appointment for him?," she said, "I guess not." During January and February
2009, I.V. continued to be very thin, and Yolanda told appellant about his condition.
Yolanda claimed to have fed I.V. during this two-month period and never saw anyone
deny him food. She told the police she, Vanessa, and appellant took charge of taking
care of the children and that typically Vanessa fed them. Yolanda said the last few days
before I.V. was taken to Spohn Hospital, "he . . . look[ed] like he is starved." She told
appellant that "[I.V.] is very skinny. Take him to the doctor."
7
Vanessa Zuniga testified she never abused I.V. When asked about the events
leading up to I.V.'s hospitalization in December 2008, she said, "He [I.V.] started losing
too much weight and we were worried about him so she [appellant] . . . and my mom
[Yolanda] took him to the hospital . . . and that's when they told her that he looked like he
was starving. . . ." After I.V. was discharged, appellant told Vanessa "he had to come
see the doctor again in a couple of days." According to Vanessa, appellant did not bring
I.V. back to the doctor as requested. Vanessa said she never withheld food from I.V. and
stated, "I did not starve [I.V.]. He was always fed either by me, by his mother, by my
mother, by friends, . . . . He was not starved."
Appellant testified she took I.V. to Driscoll Children's Hospital in December 2008
because "I saw he was losing weight." While at Driscoll, I.V. was examined by Jennifer
Davis, M.D., who told appellant, "'Oh, my God. He looks like he is starving.'" In reply,
appellant told Dr. Davis, "'Yes, he does.'" She told Dr. Davis that even though "'he eats a
lot.,'" "he is not gaining no weight, . . . ." Dr. Davis admitted I.V. into the hospital, where
he stayed for about four days. Appellant testified that while I.V. was in the hospital, he
was examined by Dr. Flores, who told her I.V. "could be stressing over something. . . .
[S]omething in his head, he could be jealous because I had had a baby, because he
wasn't the baby no more." When I.V. was discharged, no one gave appellant any
instructions.
She stated in February 2009, she took I.V. to the Spohn Hospital ER. When
defense counsel asked her if she "at any time had anything to do with [I.V.] collapsing
prior to going to Spohn?," she said, "No" and stated she never told Dr. Tinoco I.V. ate a
8
hamburger the day he arrived at the ER. When defense counsel asked her, "Did you
intentionally or knowingly keep [I.V.] from receiving nutrition and food?," she said, "No I
did not." When asked, "Did you intentionally, knowingly, and by omission not try to seek
medical attention for your son?," she said, "No." When asked why she did not call the
doctor between the time I.V. was discharged in December 2008 and taken to the ER in
February 2009, she said, "[H]e was fine. He had none of those symptoms. He was fine.
He was himself. . . . I did what they told me to do, take him home, do what you've been
doing; that's what I did." However, when asked, "Do you feel that whatever happened to
[I.V.] is your responsibility?," she said, "He is my son; yes."
On cross-examination, appellant testified the reason she did not take I.V. to the
doctor on February 26, 2009 was because I.V. "didn't want to go. He don't like doctors."
She also said, "[H]e was fine." However, when the prosecutor asked her, "Is that your
job as a parent, to do what your children need, regardless of whether or not they like it?,"
she said, "Yes, it is."
II. DISCUSSION
A. Lesser Included Offense Instruction
By her first issue, appellant contends the trial court abused its discretion by failing
to instruct the jury on the lesser-included offense of reckless injury to a child.
1. Applicable Law
"Determining whether a defendant is entitled to a lesser-included-offense
instruction requires a two-part analysis." Goad v. State, 354 S.W.3d 443, 446 (Tex.
Crim. App. 2011) (citing Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)).
9
"We first consider whether the offense contained in the requested instruction is a
lesser-included offense of the charged offense." Id. (citing Rice v. State, 333 S.W.3d
140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535). "If so, we must decide
whether the admitted evidence supports the instruction." Id. (citing Rice, 333 S.W.3d at
144). Reckless injury to a child is a lesser-included offense of intentional or knowing
injury to a child. Torres v. State, 979 S.W.2d 668, 670 n.2 (Tex. App.—San Antonio
1998, no pet.); Downing v. State, 761 S.W.2d 881, 883 (Tex. App.—Fort Worth 1988, no
pet.).
"The evidence supports an instruction on a lesser-included offense if it permits a
rational jury to find the defendant guilty only of the lesser-included offense." Goad, 354
S.W.3d at 446 (citing Rice, 333 S.W.3d at 145). "'[T]here must be some evidence
directly germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.'" Id. (quoting Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). "We consider all of the evidence admitted
at trial, not just the evidence presented by the defendant." Id. (citing Rousseau v. State,
855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). "The evidence must establish that the
lesser-included offense is a valid, rational alternative to the charged offense." Id. (citing
Rice, 333 S.W.3d at 145). "'Anything more than a scintilla of evidence is sufficient to
entitle a defendant to a lesser charge.'" Id. (quoting Bignall v. State, 887 S.W.2d 21, 23
(Tex. Crim. App. 1994)). "However, we may not consider '[t]he credibility of the evidence
and whether it conflicts with other evidence or is controverted.'" Id. at 446–47 (quoting
Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1992)).
10
2. Analysis
Concerning the offense of injury to a child, the penal code provides, in relevant
part:
(a) A person commits an offense if he intentionally, knowingly, recklessly, or
with criminal negligence, by act or intentionally, knowingly, or recklessly by
omission, causes to a child, . . .:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
TEX. PENAL CODE ANN. § 22.04(a)(1)–(3). Section 6.03 of the penal code defines the
culpable mental states relevant to this case as follows:
(a) A person acts intentionally, or with intent, with respect to the nature of
his conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware
of the nature of his conduct or that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to a result of his conduct when
he is aware that his conduct is reasonably certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be of such a
nature and degree that its disregard constitutes 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(a)–(c) (West 2003).
In Williams v. State, the Fort Worth Court of Appeals interpreted the distinction
between the culpable mental state of "recklessness" and the culpable mental states of
11
"intentional" and "knowing" as follows:
Recklessness, defined in Subsection (c), differs markedly from
intentional and knowing. Recklessness is conscious risk creation; the
reckless person does not desire that the risk occur nor is he even
reasonably certain that it will occur; he does perceive it, however, and if the
risk is substantial, he disregards it, and his disregard is plainly unjustifiable,
then he is criminally responsible for whatever harm his recklessness
produced.
Many examples of recklessness come to mind. Driving while
intoxicated, speeding through a school zone when children line the sides of
the street, plinking at beer cans in a lake while water skiers go by in the
center of the lake, chasing a traffic violator through a residential area at 100
miles an hour. In all of these examples the fact-finder would infer that the
actor perceived the risk—of running down a child, of shooting a skier, of
smashing into a parked car—and that he consciously disregarded it.
Williams v. State, 704 S.W.2d 156, 158 (Tex. App.—Fort Worth 1986, no pet.) (citation
omitted).
The evidence in this case established appellant is the biological mother of I.V., the
injured three-year-old child. She was responsible for caring for the child. In December
2008, she took him to Driscoll Children's Hospital, where he was admitted. Even though
I.V. was thin, he was sufficiently healthy for hospital staff to eventually discharge him to
appellant's care. Thereafter, I.V. remained skinny, and the evidence showed appellant
knew he was skinny. While living with appellant, I.V. nearly died from malnutrition and
dehydration. The evidence does not show appellant took I.V. to the doctor after his
December 2008 discharge from Driscoll Children's Hospital. When he arrived at Spohn
Hospital South on February 27, 2009, he had stopped breathing. Even though appellant
told Dr. Tinoco I.V. ate a hamburger at 11:00 a.m. that day, Dr. Tinoco found it very hard
to believe he ate at 11:00 a.m. and his blood sugar was 3 by 1:30 p.m. Dr. Tinoco
12
blamed malnutrition as the cause of his low blood sugar.
Appellant testified the reason she did not take I.V. to the doctor on February 26,
2009 was because he "didn't want to go. He don't like doctors." She also stated, "[H]e
was fine." However, on February 27, 2009, I.V. told Dr. Harper he had not eaten that day
or the day before. When he was brought to Driscoll Children's Hospital on February 27,
2009, Dr. Harper described him as a "frail, frail appearing child, like a skeleton lying on the
bed." The evidence does not show appellant had a visual impairment which kept her
from seeing I.V.'s physical condition. I.V. could not have looked "fine" on February 26,
2009 when the next day he looked "like a skeleton lying on the bed."
We do not find conduct of this nature to be of a similar character with the examples
cited by the Williams court as examples of recklessness. All of the cited examples are
acts which create a risk of harm but are not necessarily harmful in and of themselves.
The omissions committed by appellant were of a different character in that her conduct
was directly harmful to the child. The evidence showed it was appellant's intention to
cause serious bodily injury to I.V. No evidence exists that if appellant is guilty, she is
guilty only of the lesser-included offense of recklessly causing bodily injury to a child.
Therefore, we hold the trial court did not err by failing to instruct the jury on the
lesser-included offense of recklessly causing serious bodily injury to a child. Issue one is
overruled.
B. Culpable Mental State
In her second issue, appellant contends the trial court erred in charging the jury
with respect to the nature of her conduct as well as the result of her conduct.
13
1. Standard of Review for Charge Error
"[A]n appellate court's first duty in evaluating a jury charge issue is to determine
whether error exists. Then, if error is found, the appellate court should analyze that error
for harm." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in the
case before us, "no proper objection was made at trial and the accused must claim that
the error was 'fundamental,' he will obtain a reversal only if the error is so egregious and
created such harm that he 'has not had a fair and impartial trial'—in short 'egregious
harm.'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
2. The Court's Instruction
Injury to a child is a result-oriented offense, requiring a mental state that relates not
to the specific conduct but to the result of that conduct. Williams v. State, 235 S.W.3d
242, 750 (Tex. Crim. App. 2007). In the case before us, appellant was charged with
intentionally or knowingly engaging in conduct that caused serious bodily injury to a child
younger than fifteen years of age. Without objection, the trial court instructed the jury
with the full text of the language set forth in section 6.03(a) of the Texas Penal Code: "A
person acts intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the conduct
or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (emphasis added). Because
injury to a child is a result-oriented crime, the definition of "intentionally" submitted to the
jury should have focused exclusively on the result of the conduct.
14
3. Harm Analysis
Having determined the trial court erred by failing to properly instruct the jury, we
examine the record to determine whether appellant was egregiously harmed. Almanza,
686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be "assayed
in light of the entire jury charge, the state of the evidence, including the contested issues
and weight of the probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole." Id.; see Ngo v. State, 175
S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). "Jury-charge error is egregiously harmful
if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App.
2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). We engage
in this assessment to illuminate the actual, not just theoretical, harm to the accused.
Almanza, 686 S.W.2d at 174. In addition, egregious harm is a difficult standard to meet
and must be determined on a case-by-case basis. See Hutch, 922 S.W.2d at 171.
In the present case, the application paragraph specific to appellant charged the
jury to find her guilty only if she "intentionally or knowingly by omission cause[d] serious
bodily injury to [I.V.], . . . ." When the facts, as applied to the law in the application
paragraph, point the jury to the appropriate portion of the definitions, no harm results from
the trial court's failure to limit the definition of culpable mental states in the abstract portion
of the charge. Hughes v. State, 897 S.W.2d 285, 296–97 (Tex. Crim. App. 1994); see
also Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Patrick v. State, 906
S.W.2d 481, 492–493 (Tex. Crim. App. 1995). In the present case, the application
15
paragraph applicable to appellant did correctly limit the jury's consideration to a
result-oriented offense in which she intentionally or knowingly caused serious bodily
injury.
In addition, during guilt-innocence closing argument, appellant's defense counsel
argued that the evidence failed to show appellant did anything to intentionally or
knowingly hurt I.V. and alluded to the State's theory that appellant deprived her son of
food. Accordingly, both the application paragraph and defense counsel's argument
steered the jury to the correct mental state for a result-oriented offense.
Finally, appellant's theory of defense throughout the trial, and as explained in final
argument, was that her son's weight loss was not caused by appellant's failure to feed or
care for him, but by other medical conditions, including diabetes and sickle cell anemia.
Accordingly, even if the jury had been confused about the necessary mental state and
thought that it could find appellant guilty if she intentionally or knowingly starved I.V., but
without the intent to cause serious bodily injury, that was not the theory of defense and,
realistically, would not have helped appellant. A child like I.V., who is nearly starved to
death, is a seriously injured child and it strains common sense to believe a jury would
have found appellant intended not to feed or care for the child but failed to find she
thereby intended to, or knew that it would, cause him serious bodily injury.5 Issue two is
overruled.
5
"'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss of impairment of the function of any bodily
member of organ." TEX. PENAL CODE ANN. § 1.07(a)(46) (West 2011).
16
III. CONCLUSION
We affirm the trial court's judgment.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of April, 2012.
17