author: Justice MORRIS.

text:
    Anu F. ADEYEMI, M.D., Appellant, v. Diana GUERRERO, Appellee.
    No. 05-09-01449-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 7, 2010.
    Rehearing Overruled Jan. 14, 2011.

      David M. Walsh, IV, Chamblee & Ryan, P.C., Dallas, TX, for .Appellant.
    Paul D. Rich, Law Office of Domingo Garcia, P.C., Dallas, TX, for Appellee.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MORRIS.

This is an interlocutory appeal from the trial court’s denial of a motion to dismiss. Anu F. Adeyemi, M.D. contends the trial court abused its discretion in failing to dismiss Diana Guerrero’s health care liability claims because her expert reports did not sufficiently address causation and the experts were not qualified to render the opinions given. After reviewing the reports at issue, we conclude the trial court did not err in denying Dr. Adeyemi’s motion to dismiss. We affirm the trial court’s judgment.

I.

The reports at issue state that on February 21, 2008, Diana Guerrero was admitted to Dallas Regional Medical Center in active labor. She received an epidural anesthetic and, a short time later, gave birth. The next day, Guerrero complained of a severe headache and vomited. Her medical records show that she was given pain medication and was told by a nurse that the headache was caused by the epidural and a fall she sustained in the bathroom during labor and delivery. Although there was no description of the fall in the labor and delivery notes, Dr. Adeyemi noted the fall in her progress notes, stating that Guerrero complained of a headache after falling in labor and delivery. Dr. Adeyemi ordered further monitoring of Guerrero’s headache but did not order any scans or investigate the fall.

The next day, Guerrero continued to complain of headaches. She was given more pain medication and caffeinated drinks and was told to lie flat in bed. On February 24, three days after being admitted, the pain medication ceased to alleviate her headache pain and Guerrero suffered a seizure. Multiple scans were ordered that revealed a right parietal and frontal hema-toma. Guerrero was transferred to the intensive care unit at Parkland Memorial Hospital.

At Parkland, Guerrero suffered another hemorrhage in the same location, which resulted in a lesion. Her condition continued to deteriorate with “evidence of probable increased intercranial pressure and worsening cerebral edema.” Guerrero underwent open-skull neurological surgery for “decompressive craniectomy and evacuation of the hematoma.” After surgery, Guerrero developed left hemiparesis, exhibiting symptoms such as weakness, numbness, and cognitive deficits. The he-miparesis severely affected her mobility, and her left extremities lost functionality. Guerrero also had difficulty with speaking and swallowing. A bone infection from the craniectomy necessitated a second surgery to repair a skull deformity.

On March 5, 2008, Guerrero was moved to the Inpatient Rehabilitation Unit at Parkland for additional treatments and therapies. She regained some function on her left side but continued to experience weakness and loss of function in her left hand. After one month of inpatient therapy, Guerrero was released with instructions to continue physical, occupational, and speech therapy as an outpatient.

Guerrero filed suit against Dallas Regional Medical Center and others including Dr. Adeyemi. Guerrero asserted that Dr. Adeyemi was negligent in failing to correctly and timely assess, diagnose, and evaluate the cause of her headaches. Guerrero also asserted that Dr. Adeyemi was negligent in failing to order a CT scan or a neurological evaluation after observing and noting telltale signs of a head injury.

Pursuant to section 74.351(a) of the Texas Civil Practice and Remedies Code, Guerrero served expert reports made by Dr. Pedro Nosnik and Nancy Strange, RNC, to support her claims. Dr. Adeyemi objected to Dr. Nosnik’s report claiming it failed to show how he was qualified to opine on the standard of care applicable to her. Dr. Adeyemi further objected that the report failed to specify how she breached the standard of care or adequately address the issue of causation. Based on the alleged inadequacy of Dr. Nosnik’s expert report, Dr. Adeyemi moved that the claims against her be dismissed with prejudice under section 74.351(b). The trial court overruled Dr. Adeyemi’s objections and denied the motion to dismiss. Dr. Adeyemi brought this appeal.

II.

We review a trial court’s ruling on a motion to dismiss for failure to file a sufficient expert report under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court must grant a motion to dismiss under section 74.351(b) of the civil practice and remedies code only if the expert report does not represent an objective good faith effort to comply with the definition of an expert report set out in section 74.351(r)(6). See Tex. Civ. Prac. & Rem.Code Ann. 74.351(i); see also Palacios, 46 S.W.3d at 878. The statutory definition requires the expert to provide a “fair summary” of the expert’s opinions regarding the applicable standards of care, the manner in which the care rendered failed to meet those standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The report is meant to serve two purposes: (1) to inform the defendant of the specific conduct the claimant is questioning and (2) to provide a basis for the trial court to conclude the claims have merit. See Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex.2008). Because the statute focuses on what is required in the report, the only information relevant to determining whether a report complies with the statute is within the four corners of the document. See Palacios, 46 S.W.3d at 878.

Dr. Adeyemi first contends the trial court erred in denying her motion to dismiss because Dr. Nosnik’s report fails to explain causation in a non-conclusory manner. An expert report does not need to contain all of the plaintiffs proof. See Cook v. Spears, 275 S.W.3d 577, 585 (Tex.App.-Dallas 2008, no pet.). But it must do more than merely state the expert’s conclusions about the standard of care, breach, and causation. The expert must explain the basis of his statements and link his conclusions to the facts. Id.

In this case, Dr. Nosnik’s report states that “despite [Guerrero’s] repeated complaints of persistent headaches after her. fall in the bathroom, and despite the vomiting in conjunction with her persistent headaches after her fall where she struck her head against the floor, no CT scan was timely requested ... and no effective measures were taken by the nurses and physicians to address her repeated complaints about headaches after the fall.” Dr. Nosnik opines that Dr. Adeyemi’s conduct fell below the applicable standard of care because she “did not timely order a CT scan (nor any other imaging) to ascertain the root causes of [Guerrero’s] headaches” nor “engage any neurological professionals to assist and address her persistent headaches.” According to Dr. Nosnik, a CT scan is “particularly effective in detecting bleeding in the brain after head injuries.” Dr. Nosnik also notes that “delayed intercranial hematomas are one of the most easily remediable causes of secondary injury if identified early, but can cause significant disability or death if not promptly recognized and treated.”

Under the portion of the report entitled “Causation,” Dr. Nosnik states that “[a]s a result of the two-day delay in identifying the brain bleed after her fall in the bathroom, the risk of Ms. Guerrero suffering a worsening of [sic] intercranial hematoma was significantly increased.” Dr. Nosnik goes on to state that “[b]ased on reasonable medical probability, a CT scan would have detected the initial hemorrhage resulting from her fall in the bathroom ...” and “because the nurses and physicians at Dallas Regional Medical Center failed to timely detect the lesions and bleeding in her head after her fall in [labor and delivery], she did not receive proper and adequate medical treatment, which in reasonable medical probability increased the chances of her suffering a seizure and sustaining significant neurological damages.” Finally, Dr. Nosnik states that, in his opinion, “the breaches of the standard of care by the nurses and physicians (such as Dr. Adeyemi) at the Dallas Regional Medical Center proximately caused Ms. Guerrero’s injuries, which included but are not limited to seizure, a right parietal and frontal hematoma, additional brain hemorrhage, left hemiparesis, dysarthia, dyspha-gia, a host of neurological complications, and subsequent skull deformity due to the emergency need of a craniectomy.”

Dr. Nosnik’s report sufficiently addresses the element of causation by specifically stating what Dr. Adeyemi should have done and what happened because she failed to do it. See Moore v. Sutherland, 107 S.W.3d 786, 791 (Tex.App.-Texarkana 2003, pet. denied). Dr. Nosnik opines that, based on Guerrero’s medical history, including her reported fall during labor and delivery, Dr. Adeyemi should have ordered a CT scan or had Guerrero examined by a neurologist. The delay in ordering the scan and evaluating Guerrero significantly increased the chances that Guerrero’s condition would worsen, which it did, and proximately caused her injuries. The report ties Dr. Nosnik’s opinions on causation to the facts of the case and, therefore, the opinions are not conclusory.

Dr. Adeyemi argues the report is conclu-sory because it does not allege that her conduct caused Guerrero to suffer the initial brain bleed. It was not necessary, however, for Dr. Adeyemi’s actions to cause Guerrero’s initial injury. It is sufficient that her failure to properly diagnose and treat Guerrero’s condition caused her ultimate injuries. See id.

Dr. Adeyemi next argues that Dr. Nos-nik’s report fails to explain what would have occurred if the standard of care had been met. In other words, Dr. Adeyemi contends the report does not address causation with respect to how the performance of a CT scan or neurological consultation would have prevented Guerrero’s injuries. But the report clearly states that, based on reasonable medical probability, a CT scan would have detected Guerrero’s initial hemorrhage and, if identified early, such hematomas are easily remediable. The report further states that delay in such treatment can cause significant disability and that the failure to timely diagnose and treat Guerrero in this case caused her injuries.

Dr. Adeyemi challenges certain assertions in Dr. Nosnik’s report such as whether Guerrero’s headaches were, in fact, “persistent” and whether a CT scan would have detected a hematoma smaller than the one eventually discovered three days after Guerrero’s fall. Dr. Adeyemi further complains that, because there were other doctors involved in Guerrero’s care, Dr. Nosnik improperly lumps all of the physicians together for the purposes of assigning liability. While Dr. Adeyemi may disagree with Dr. Nosnik’s characterization of the facts and his conclusions on causation, this does not make the report conclusory. See Fagadau v. Wenkstern, 311 S.W.3d 132, 139 (Tex.App.-Dallas 2010, no pet.). Furthermore, the fact that the trier of fact may ultimately reject Dr. Nos-nik’s opinion regarding causation does not render the report insufficient. See Hayes v. Carroll, 314 S.W.3d 494, 507 (Tex.App.Austin 2010, no pet.). The report sufficiently informs Dr. Adeyemi of the specific conduct Guerrero is questioning and provides a basis for the trial court to conclude the claims have merit. This is all that is required of an expert report. See Leland, 257 S.W.3d at 206-07.

Finally, Dr. Adeyemi argues that Dr. Nosnik’s expert report is insufficient because it never addresses foreseeability. Specifically, Dr. Adeyemi argues that the report does not explain how she could have predicted that Guerrero would suffer the range of injuries that she did from her fall during labor and delivery. Dr. Adeyemi cites no authority, however, and we have found none, to support her contention that an expert report must opine on whether the specific injuries sustained by the claimant could have been foreseen by the defendant physician. A report need only contain a “fair summary” of the expert’s opinions. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex.2002). A “fair summary” of the expert’s opinion on causation informs the defendant of the specific conduct the expert believes was deficient and what conduct caused the injury. See Hayes, 314 S.W.3d at 508. Dr. Nosnik’s report does this.

After a careful review of Dr. Nosnik’s report, we conclude the trial court did not abuse its discretion in concluding the report sufficiently addressed the issue of causation. We resolve Dr. Adeyemi’s first issue against her.

In her second issue on appeal, Dr. Adeyemi contends that nothing in his report shows that Dr. Nosnik was qualified-to testify about the standard of care applicable to her. Dr. Adeyemi practices in the area of obstetrics and gynecology. Dr. Nosnik specializes in the diagnosis and treatment of neurological disorders of the brain, spinal cord, nerves, and muscles. Dr. Adeyemi concedes that a physician need not be a practitioner in the same specialty as the defendant to qualify as an expert in the case. See id. at 503. She argues, however, that Dr. Nosnik did not demonstrate he was qualified to opine on the standard of care to be applied when treating a post-partum patient complaining of headaches. We conclude Dr. Adeyemi’s argument impermissibly narrows the scope of qualifications for experts in health care liability claims such a these.

Dr. Nosnik’s report and curriculum vitae show that he is a “Diplómate of the American Board of Psychiatry and Neurology (Board Certified in Neurology)” and a “Diplómate American Academy of Pain Management.” Dr. Nosnik states in his report that he actively practices neurology “in clinic, hospital, critical care, and emergency room settings treating and evaluating patients similar to Ms. Diana Guerrero presenting with symptoms and conditions such as those she experienced and reported.” Dr. Nosnik further states he has “treated hundreds of patients like Ms. Guerrero who developed hematomas as a result of head trauma,” and he was “familiar with the standard of care as it relates to physicians who care for patients with injuries and symptoms exhibited by Ms. Guerrero.”

Although not every licensed doctor is qualified to testify on every medical question, we must be careful not to draw expert qualifications too narrowly. See Larson v. Downing, 197 S.W.3d 303, 305 (Tex.2006); Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996). The central question in determining whether an expert is qualified is whether the expert has “knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” See Broders, 924 S.W.2d at 153. The specific issue in this case is whether Dr. Adeyemi was negligent in failing to order scans or a consultation with a neurologist when Guerrero complained of persistent headaches and vomiting after falling. Guerrero’s claims focus not on her pregnancy but on her head trauma. Dr. Nosnik’s report shows 'he is experienced in treating and evaluating patients such as Guerrero and that he is familiar with the standard of care applicable to physicians who care for patients with the injuries and symptoms she exhibited. We conclude the trial court did not abuse its discretion in finding Dr. Nosnik qualified to state an opinion on the standard of care applicable to a physician treating a patient with the history and symptoms presented by Guerrero. We resolve Dr. Adeyemi’s second issue against her.

Based on the foregoing, we affirm the trial court’s order denying Dr. Adeyemi’s motion to dismiss Guerrero’s claims.

      . We note that, in her appeal, Dr. Adeyemi also challenged Guerrero’s expert report made by Nancy Strange, RNC on the same grounds that she challenged Dr. Nosnik's. Because we have concluded that Dr. Nosnik’s report is sufficient, it is unnecessary for us to address Dr. Adeyemi’s challenges to Strange’s report.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Danny Lee HOLLOWAY, II, Appellee.
    No. 06-10-00033-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 3, 2010.
    Decided Dec. 10, 2010.

      Gary D. Young, Dist. Atty., Wm. H. Harris, Asst. Dist. Atty., Paris, TX, Jeffrey W. Shell, Atty. and Counselor at Law, Rockwall, TX, for appellant.
    John Stickels, Arlington, for appellee.
    Before CARTER, MOSELEY, and MILLER, JJ.

       District Judge John F. Miller, Jr., of the 102nd Judicial District Court, was appointed by order of Chief Justice Wallace Jefferson of the Texas Supreme Court, pursuant to Tex Gov’t Code Ann. § 74.003(h) (Vernon 2005), to sit with this Court and hear this appeal in place of Chief Justice Josh R. Morriss, III, who recused himself from the proceeding.

   OPINION

Opinion by

Justice CARTER.

I. Introduction

DNA testing done seven years after the conviction of Danny Lee Holloway, II, for manslaughter showed the victim’s blood was not on the knife allegedly used as the deadly weapon. As a result, the trial court concluded Holloway probably would not have been convicted had that evidence been available at trial, and granted Holloway a new trial. We find that conclusion is not supported by evidence and, even if it was, the trial court was not authorized to grant a new trial.

II. Facts and Procedural History

Holloway was convicted in 2002 for manslaughter by using a knife as a deadly weapon. He later petitioned for DNA testing of the knife, and the trial court granted Holloway’s motion on April 29, 2009. No appeal was taken from that order. On February 25, 2010, the trial court conducted a hearing pursuant to Article 64.04 of the Texas Code of Criminal Procedure, granted Holloway a new trial, and set a $75,000.00 bond. Later, the trial court entered findings of fact and conclusions of law, one of which found that there is a reasonable probability that Holloway would not have been convicted if the exculpatory DNA results had been available for trial. The State appeals the orders, contending that the trial court should not have authorized DNA testing because Holloway did not prove that identity was an issue and should not have granted a new trial because the court erred in its conclusions of law. The initial question is whether the State has filed a timely appeal to the order granting DNA testing.

III.May the State Now Appeal the April 29, 2009, Order Granting DNA Testing?

Holloway argues the State did not file its appeal concerning the order for testing in a timely manner.

A. Appellate Timetable

The State’s right to appeal in criminal cases is limited by statute. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3), (6) (Vernon Supp.2010). Article 64.05, describing the procedure for appeals in Chapter 64 proceedings, directs that all appeals follow the usual procedures designated for appeals to the courts of appeals, except death penalty appeals are to the Texas Court of Criminal Appeals. The State is required to appeal within twenty days of the order, ruling, or sentence about which it is complaining. Tex.Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp.2010). The trial court’s order allowing DNA testing was entered April 29, 2009. The State failed to appeal within twenty days of the April 29, 2009, order. But the State argues this appeal is effective as to the April 29, 2009, order, basing its contention primarily on In re Morton, 326 S.W.3d 634 (Tex.App.-Austin 2010, no pet.). We find Morton to be distinguishable.

B. In re Mon-ton

Post-conviction, Morton asked for DNA testing of several items, including swabs from the victim, a bloody bandana found about 100 yards from the murder scene (Morton was convicted of killing his wife in their bedroom), fingerprints at the scene, and items from another, unrelated murder victim, killed in the same neighborhood six years before Morton’s wife was murdered. Id. at 637. In 2006, the trial court granted Morton’s request for testing on biological material from the victim and denied his request for testing on the bandana. For almost two years, the trial court failed to rule on the testing of biological material from the prior unrelated matter; apparently under compulsion of a mandamus ruling, the trial court in 2008 denied testing of the unrelated case material. Morton appealed after the final trial court order of July 24, 2008, and the State argued Morton had not timely perfected his appeal of the 2006 order denying testing on the bandana. The State claimed Morton had to appeal within thirty days of the 2006 order, which denied testing on the bandana, because the trial court’s order regarding the bandana was part of Morton’s appellate complaint. Id. at 639.

The Austin court rejected the State’s assertion:

We do not read chapter 64 of the code of criminal procedure to require a separate notice of appeal for each of the three orders in this case.... Instead, we hold that in a chapter 64 proceeding the final order that denies forensic DNA testing ... or that makes the required findings following the granting of DNA testing, ... triggers the running of the notice-of-appeal deadline as to all such orders in the proceeding.

Id. at 639 (citations omitted).

The State in the instant case relies upon this language in Morton as authority that the trial court’s order of February 25, 2010, granting a new trial, was the final order making Article 64.04’s required findings. Thus, reasons the State, it did not need to appeal within twenty days of the April 29, 2009, order.

The procedural events in Morton differ from this case. Morton requested DNA testing of four separate groups of material. The trial court initially entered an order on two items; not until almost two years later did the court finally rule on the remaining two items. After the trial court entered orders on all requested items for testing — granting some and denying others — Morton appealed the order denying testing. The specific portion of the appeal in question was the d,enial of testing of a bandana at a time when some issues still remained as to testing of other material, whereas here the appeal is from the granting of DNA testing when no other issues were pending.

An order granting DNA testing is a significant order that if left unchallenged leads to gathering of additional evidence. As a result of the order granting Holloway’s motion for testing and the failure to lodge an appeal, the knife has been scientifically examined. If the appeal had been filed in a timely manner, this Court conceivably could have reversed the order and precluded the testing; that option is no longer available. The evidence gathered from the DNA testing of the knife now exists. If Holloway can. use this evidence either in this proceeding or in an application for writ of habeas corpus, we know of no exclusionary rule prohibiting it.

To require the State to wait until after the trial court reviews the evidence and determines whether it is exculpatory denies the State a valuable right — to attempt to reverse the order granting the test. If the order granting testing is erroneous, a successful appeal would also save the expense of the scientific analysis. In Morton, all of the appeals involved orders denying testing rather than granting them, and the statement regarding the time for filing an appeal for when DNA testing is granted is dicta. We hold that the order granting the DNA testing is the appeal-able order and the State must appeal within the appropriate time from that order. See State v. Young, 242 S.W.3d 926 (Tex.App.-Dallas 2008, no pet.) (State’s appeal of order granting forensic DNA testing).

Unlike Morton, here there was no other motion or request for DNA examination of any other item; the DNA motion was for testing of the knife only. If the trial court erred in granting the request for testing the knife, the State had a right to appeal that order and request that DNA testing and analysis be stayed during the appeal. Had that course of action been followed, this Court could have rendered a decision that would have had a legal and practical effect; today, that is not possible. Houston Indep. Sch. Dist. v. Houston Teachers Ass’n, 617 S.W.2d 765, 766 (Tex.Civ.App.-Houston [14th Dist.] 1981, no pet.) (appellate courts do not decide cases where a party seeks judgment upon, some matter which, when rendered, cannot have any practical legal effect upon the case).

We hold that the notice of appeal must have been filed within twenty days of the April 29, 2009, order granting DNA testing, as it was the order being challenged; we lack jurisdiction to consider this point of error. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996) (timely notice of appeal necessary to invoke a court of appeals’ jurisdiction). We dismiss that portion of the State’s appeal.

IY. The Order Granting a New Trial

The State filed a timely appeal to the order granting a new trial and argues the trial court erred because one of the conclusions of the trial court was erroneous as a matter of law. We agree the trial court erred in granting the new trial, but not for the reason argued by the State.

The trial court’s jurisdiction expires when a case becomes final or is taken to a higher court. In re State ex rel. Sistrunk, 142 S.W.3d 497, 503 (Tex.App.Houston [14th Dist.] 2004, no pet.) (citing Yarbrough v. State, 703 S.W.2d 645, 649 (Tex.Crim.App.1985)) (where conviction affirmed by Texas Court of Criminal Appeals, general jurisdiction is not restored to trial court; trial court is vested with special or limited jurisdiction to see that Texas Court of Criminal Appeals’ judgment is executed and mandate carried out). A trial court then has only limited jurisdiction to perform functions specified by statute, such as finding facts on an application for writ of habeas corpus. State v. Patrick, 86 S.W.3d 592, 594 (Tex.Crim.App.2002). Without jurisdiction, the trial court has no power to act. Id. at 595. Generally, a trial court has plenary jurisdiction over a case for the first thirty days after sentencing because it has the authority to receive a motion for new trial (or motion in arrest of judgment) within that time period and to resolve the merits of that motion within seventy-five days after sentencing. See Tex.R.App. P. 21; McClinton v. State, 121 S.W.3d 768, 778 n. 1 (Tex.Crim.App.2003) (Cochran, J., concurring). A court has inherent power to correct, modify, vacate, or amend its own rulings so long as the court does not exceed a statutory timetable. Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Crim.App.1998).

Holloway was convicted and sentenced on October 31, 2002. This Court affirmed the conviction, a petition for review was denied, and our mandate issued May 27, 2004. Six years later, on February 24, 2010, the trial court signed an order purporting to grant a new trial. The trial court lost its plenary power to grant a new trial seventy-five days after convicting and sentencing Holloway, on October 31, 2002. Tex.R.App. P. 21.8(a). Both parties asserted in oral argument that either Chapter 64 or the trial court’s discretion authorized a new trial order in this case. From the citations and discussion above, we think it is clear the trial court has no jurisdiction, and thus certainly no disci’etion, to order a new trial at this late date. As for Chapter 64, there is nothing in the statute authorizing the granting of a new trial. In Ex parte Tuley, 109 S.W.3d 388, 391 (Tex.Crim.App.2002), the Texas Court of Criminal Appeals stated, “Chapter 64 provides for forensic DNA testing but does not provide a vehicle for obtaining relief if testing reveals affirmative evidence of innocence. The vehicle for relief after obtaining test results that constitute affirmative evidence of innocence is article 11.07 for noncapital felonies and article 11.071 for capital murder.”

The trial court’s order granting a new trial and setting bond for Holloway’s release is vacated.

V. Article 64.04 Finding

As part of the State’s appeal of the trial court’s entry of an order granting a new trial, the State challenges the trial court’s conclusion of law wherein the trial court found “[tjhere is a reasonable probability that Danny Holloway would not have been convicted in this case if the exculpatory DNA results been [sic] available during the trial of this case.”

If the trial court orders DNA testing, it must hold a hearing and “make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Tex.Code Crim. Proc. Ann. art. 64.04. Here, the trial court held a hearing on February 25, 2010, at which Holloway formally offered the DNA test results from the stains found on the knife admitted at trial. The State did not object; the court then heard arguments of the parties. While the trial judge made statements indicating his impressions of what the trial testimony had been, he did not make any formal findings at the hearing. Instead, he ordered a new trial be granted and set a bond. About six weeks later, on April 12, 2010, Holloway submitted proposed findings of fact and conclusions of law, which the trial court approved April 12, 2010.

The Texas Court of Criminal Appeals has not set out the standard of review of a trial court’s finding under Article 64.04, but has found a de novo review is proper under Article 64.03(a)(2)(A), which requires the defendant prove by a preponderance of the evidence that he or she would not have been convicted if exculpatory results had been obtained through DNA testing. Smith v. State, 165 S.W.3d 361, 363-64 (Tex.Crim.App.2005). The Texas Court of Criminal Appeals noted that there were no credibility and demean- or issues in that case since there were no witnesses at the hearing and the trial record and an affidavit were the only evidence. Id. at 363. Similarly, here the record consists of the trial record and written records together with counsel’s arguments. We will use the de novo review as the standard. See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002) (“Although there may be subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application of law to fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.”); Frank v. State, 190 S.W.3d 136 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (using de novo standard of review in Article 64.04 cases).

As' previously stated, the DNA test results verified that the victim’s blood was not found on the knife. From this scientific determination, the trial court concluded that there was a reasonable probability that Holloway would not have been convicted if the DNA results had been available at trial. We do not agree that it logically follows that a negative finding of the victim’s blood on the knife provides a reasonable probability that Holloway would not have been convicted. If the victim’s blood had been found on the knife, it would be extremely persuasive that this knife was used as the murder weapon, but that evidence alone would not lead to the conclusion that Holloway caused the death. Conversely, the fact that the victim’s blood was not on the knife may reveal: (1) this knife was not the murder weapon; (2) no residue of the victim’s blood was deposited on the knife; or (3) the knife was successfully cleaned — it does not provide evidence that Holloway did not use a knife and cause the victim’s death. There is a substantial amount of other evidence directly probative of whether Holloway caused the death.

Holloway argues that the State proved this knife was “the murder weapon” and as such this evidence exculpates him. But in the opinion on Holloway’s direct appeal it is stated “there is a dispute over whether this was the knife Holloway originally had, Holloway was seen ... with a survival knife before Lee was stabbed.” Further Holloway’s girlfriend testified he only had a small pocketknife, not the knife introduced into evidence. Holloway v. State, No. 06-02-00216-CR, 2003 WL 22491053, at *1 (Tex.App.-Texarkana Nov. 5, 2003, pet. refd) (mem. op., not designated for publication).

The fact that the victim’s blood or DNA was not found on the knife in Holloway’s vehicle does not create a reasonable probability that Holloway was innocent. See Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex.Crim.App.2002). In Thompson v. State, 95 S.W.3d 469 (Tex.App.-Houston [1st Dist.] 2002, pet. refd), the movant wanted DNA testing on a box cutter found at the scene of the crime. In affirming the trial court’s order denying DNA testing, the appellate court said, “[E]ven if DNA testing proved that the box cutter did not contain complainant’s blood or any blood at all, it would not prove [ThompsonJ’s innocence.” Id. at 472. Noting that even if testing produced “negative test results” that could “supply an exculpatory inference, such an inference ... would not conclusively outweigh the other evidence of [Thompson’s] guilt.” Id,, (citing Rivera, 89 S.W.3d at 60). Thompson was identified by the victim as one of the three people who assaulted the victim with a box cutter. A box cutter, with what appeared to be blood on it, was found where Thompson had been standing. It appears from the opinion that the victim identified Thompson as the one who had stabbed him. The victim identified the box cutter found near Thompson as the instrument with which the victim was stabbed.

In Rivera, the Texas Court of Criminal Appeals held that even if Rivera’s requested DNA testing were performed, the results would not prove his innocence. Rivera wanted DNA testing done on his fingernail clippings: “While the presence of the [vietim]’s DNA under appellant’s fingernails could indicate guilt, the absence of such DNA would not indicate innocence.” Rivera, 89 S.W.3d at 60.

In determining whether there was a reasonable probability that Holloway would not have been convicted if this evidence had been available, we must also consider all of the other evidence the jury heard. Two witnesses, Taquilla Gray and Derrick Dillard, testified they saw Holloway stab the victim. Gray also saw Holloway stab Mike Lipscomb, another person at the scene. Gerald Edwards also saw Holloway stab Lipscomb.

The other witness who testified to seeing Holloway stab the victim also saw Holloway stab another person at the scene, Courtney Gray (no relation to Taquilla Gray). Gray also testified that Holloway stabbed him. Dillard testified he saw Holloway stab Courtney Gray. Multiple witnesses testified no one but Holloway had a knife at the scene. At least five witnesses saw Holloway with a knife. Holloway presented one witness who said he had seen a different person with either the knife in evidence or one similar, and that person was involved in two fights outside the club the night of the offense. Several witnesses testified Holloway was swinging the knife wildly at the crowd, and there was testimony Holloway, a Caucasian, also hurled racial epithets at the predominantly African-American crowd and drove recklessly into the parking area. In his statement to police, Holloway explained the knife, wrapped in a towel, was put in his car as he and his girlfriend drove away from the scene. Holloway said the knife must have been put in his car by someone in the crowd who reached in a window while trying to stab Holloway. He denied having a knife, but said he may have picked one up in fighting off his attackers and possibly taking a knife from one of them. A movant under Chapter 64 must demonstrate a reasonable probability that he or she would not have been convicted if the DNA results were presented to the jury; this showing is not made if the test results would “merely muddy the waters.” See Rivera, 89 S.W.3d at 59 (citing Kutzner, 75 S.W.3d at 439).

We dismiss the State’s appeal of the order granting DNA testing. We vacate the order granting a new trial and setting bond. After reviewing the evidence de novo, we find it is insufficient to support the trial court’s finding that it is reasonably probable Holloway would not have been convicted if the DNA evidence had been available during trial. We remand the case to the trial court for entry of a capias for the arrest and incarceration of Holloway in order that he serve the remainder of the sentence.

      .After examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted. Tex.Code Crim. Proc. Ann. art. 64.04 (Vernon 2006).

      . A bond in that amount is contained in the record, and we assume Holloway was released on that bond.

      . Chapter 64 also allows for appeals of orders entered under that chapter: "An appeal under this chapter is to a court of appeals in the same manner as an appeal of any other criminal matter,_” Tex.Code Crim. Proc. Ann. art. 64.05 (Vernon 2006).

      . According to a footnote in Morton, a ruling on the second two requested items was not made until the conditional grant of mandamus by the Austin Court of Appeals. Morton, 326 S.W.3d at 637-38 n. 2.

      . Morton also complained on appeal the trial court should have granted testing on the biological material from the other murder victim and on the fingerprints obtained at the Morton home.

      . "[OJnce a motion for new trial is overruled by operation of law, the trial court loses jurisdiction to rule upon it.” State v. Moore, 225 S.W.3d 556, 566-67 (Tex.Crim.App.2007) (citations omitted).

      . In Ex parte Baker, 185 S.W.3d 894, 896 n. 19 (Tex.Crim.App.2006), the Texas Court of Criminal Appeals cited Tuley as "dicta.” Tu-ley was a habeas proceeding where the victim had recanted and the trial court recommended relief be granted. The Texas Court of Criminal Appeals' opinion found that even though Tuley pled guilty, he was not precluded from later asserting actual innocence. Further, "a motion for DNA testing cannot, by itself, result in relief from a conviction or sentence. It is simply a vehicle for obtaining a certain type of evidence, which might then be used in a state or federal habeas proceeding.” Thacker v. State, 177 S.W.3d 926, 927 (Tex.Crim.App.2005).

      . Articles 64.03 and 64.04 originally required evidence a movant would not be prosecuted or convicted if favorable results were obtained. The requirements were amended to only require findings the movant would not be convicted. See Tex.Code Crim. Proc. Ann. arts. 64.03, 64.04; Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 3, 4, 2003 Tex. Gen. Laws 16 (amended 2007) (current version at Tex.Code Crim. Proc. Ann. arts. 64.03, 64.04 (Vernon Supp.2010)).

      . Thompson, as well as most of the cases discussed in this section, addressed denials of testing under Article 64.03. We cite and discuss these cases because they all address whether the particular movants satisfied Article 64.03's requirement of proving by a preponderance of evidence the movant would not have been convicted if exculpatory results had been obtained by DNA testing. Tex.Code Crim. Proc. Ann. art. 64.03(a)(2) (Vernon Supp. 2010).


author: CHARLES W. SEYMORE, Justice.

text:
    Mark W. McQUEEN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-10-00068-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 14, 2010.

      Alexander B. Wathen, Houston, for appellant.
    Randy Zamora, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Mark W. McQueen, was convicted by jury in a Houston municipal court for failure to maintain a safe speed and assessed a fine of $200.00. He appealed to County Criminal Court at Law No. I, contending in four issues that the municipal court erred by (1) denying his request for a Batson hearing, (2) overruling an evidentiary objection, (8) sustaining the State’s objection to his jury argument, and (4) denying his motion for instructed verdict. The county criminal court affirmed, and appellant presented us with the same four issues. We preliminarily determined that appellant made a prima facie showing of racial discrimination in the State’s exercise of its peremptory strikes. Therefore, we abated this case and ordered the municipal court to conduct a full Batson hearing. Following the hearing, the municipal court concluded the State did not engage in purposeful racial discrimination and denied appellant’s Batson motion. A record of the hearing and the municipal court’s findings of fact and conclusions of law were filed with our Court. Having reinstated this case, we now consider the merits of appellant’s issues and affirm the municipal court’s judgment.

I.BACKGROUND

In April 2005, Mark David Hart was driving his pickup truck westbound on Highway 290 in Houston. Hart came to a complete stop on the highway when traffic became congested. While he was speaking on his telephone, he noticed in his rear-view mirror a semi-truck approaching. The semi-truck struck Hart’s vehicle from behind, pushing it across the left-hand lane and into a retaining wall. At trial, Hart identified appellant as the driver of the semi-truck.

II. Analysis

A. Evidentiary Issue

We begin with appellant’s- second issue, in which he contends the municipal court erred by overruling his objection to a question posed by the State. At trial, the following exchange occurred during the State’s direct-examination of Hart:

[Prosecutor:] Now, did — but prior to being hit, did you operate your vehicle with ordinary care?
[Defense Counsel:] Objection. Misstatement of the law.
[Municipal Court:] Overruled. [Prosecutor:] Did you operate your vehicle correctly?
[Hart:] Yes, I did.

On appeal, appellant, argues that, by asking Hart whether he operated his vehicle with. ordinary care, the State erroneously sought Hart’s opinion on an ultimate fact issue reserved for the jury. We conclude this complaint was not properly preserved for appellate review. It is not clear from the “misstatement of the law” objection or surrounding context that appellant was objecting on the ground that the State’s question invaded the province of the jury. See Tex.R.App. P. 33.1(a)(1)(A); Campos v. State, 256 S.W.3d 757, 760 (Tex.App.-Houston [14th Dist.] 2008, pet. refd). Accordingly, we overrule appellant’s second issue.

B. Texas Transportation Code Section 545.351

Appellant’s third and fourth issues concern his interpretation of Transportation Code section 545.351, which provides, in pertinent part:

(b) An operator:
(1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing; and
(2) shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.

Tex. Transp. Code Ann. § 545.351(b) (emphasis added).

In his fourth issue, appellant argues the municipal court erred by denying his motion for instructed verdict. In his motion, appellant challenged the sufficiency of the evidence supporting the jury’s implicit findings that Hart was on “the highway in compliance with law” and exercised his duty of due care. Appellant contends section 545.351(b)(2) — specifically, the language “is on ... the highway in compliance with the law” — requires that the State present evidence supporting a conclusion that the driver of the other vehicle complied with every existing vehicle-related regulation. Appellant lists a sample of over twenty traffic regulations and argues that “[t]he State should have negated the possible violations of these and countless other laws that [Hart] may not have been in compliance with at the time.”

This issue requires us to interpret statutory language. When interpreting a statute, we seek to effectuate the collective intent of the legislators who enacted the statute by giving effect to the plain meaning of the statutory text, unless application of the statute’s plain meaning would lead to absurd consequences that the legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

In light of the purpose of section 545.351(b)(2), establishing that the driver of the other vehicle was “on or entering the highway in compliance with law” does not necessitate presentation of evidence that his vehicle passed state inspection, for example. It would be an unreasonable interpretation of the statute to require the State to prove the driver of the other vehicle complied with “countless” vehicle-related regulations, many of which have little or nothing to do with whether the driver of the other vehicle bore responsibility for the collision due to his own negligence or vehicle operation. Accordingly, we reject appellant’s construction of section 545.351(b)(2).

Relative to appellant’s sufficiency challenge, we conclude the evidence supports beyond a reasonable doubt the jury’s determination that Hart was operating his vehicle in compliance with law and the duty of each person to use due care. Hart testified that he had been traveling in the middle lane of traffic for at least five miles when traffic became congested, causing him and other drivers to slow down abruptly. He explained that around 10:00 a.m., his pickup truck was at a complete stop and he was talking on the telephone when appellant’s semi-truck collided with the rear of his vehicle. He also testified that he was operating his vehicle “correctly” at the time of the collision. Appellant did not cross-examine Hart on these issues. Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). Accordingly, we overrule appellant’s fourth issue.

In his third issue, appellant contends the municipal court erred by sustaining the State’s objection to his jury argument. During jury argument, appellant attempted to argue that the State did not prove “Hart had a driver’s license, had any insurance, [or] his vehicle was inspected and was registered.” The municipal court sustained the State’s objection that this argument is irrelevant to Hart’s operation of his vehicle. For the reasons outlined above, we conclude the municipal court did not err by sustaining the State’s objection. We overrule appellant’s third issue.

C. Batson Challenge

Lastly, we address appellant’s first issue, in which he contends the municipal court erred by (1) concluding appellant did not make a prima facie showing of racial discrimination by the State in its use of peremptory strikes, (2) failing to ask the State to provide the reasons for its peremptory strikes, and (3) denying appellant’s Batson motion.

Under Batson v. Kentucky, a party may not exercise its peremptory strikes during jury selection to exclude a potential juror solely on the basis of race. 476 U.S. 79, 85-86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A defendant objecting that the State has violated Batson must make a prima facie showing of racial discrimination in the State’s exercise of its peremptory strikes. See Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App.2002).

As explained above, we previously determined that appellant made a prima facie showing that the State engaged in racial discrimination by using two of its three peremptory strikes to strike two of the three black venire members. Accordingly, we abated this case and ordered the municipal court to conduct a full Batson hearing. The municipal court has done so and concluded that the State did not engage in purposeful racial discrimination by striking two of the three black venire members. We now review this conclusion.

After the defendant makes a pri-ma facie showing, a presumption arises that the peremptory strikes were used to discriminate on a racial basis, and the burden shifts to the State to present race-neutral explanations for the strikes. See id. Once the State has articulated race-neutral explanations, the burden shifts back to the defendant to prove the State’s explanations are actually a pretext for discrimination. See id. The trial court then determines whether the defendant carried his burden of proving discrimination. Id. Because the trial court’s decision often turns largely on an evaluation of credibility, we give the trial court’s decision great deference and will not overturn it on appeal unless it is clearly erroneous. Id. We review the record of a Batson hearing and the voir dire examination in the light most favorable to the trial court’s ruling. Young v. State, 283 S.W.3d 854, 866 (Tex.Crim.App.2009).

At the Batson hearing, the prosecutor testified regarding his reasons for striking the black venire members. According to the prosecutor, he struck one of the members because she indicated she did not drive. The prosecutor explained, “We were dealing with a case involving an automobile accident; and, of course, I felt that it was kind of pertinent that the people have acquaintance with driving a car and being able to relate to the fact that, you know, drivers have to maintain certain distances and just what it’s like about driving a car.” The prosecutor also testified that he struck another black venire member because he had received a traffic ticket within the last five years and “kind of halfway raised his hand and kind of put it down” when asked if he believed the ticket was unjust. The prosecutor explained, “I felt that since he felt the ticket was unjust ... he might be a little bit biased against the State[.]” Thus, the prosecutor proffered race-neutral explanations for striking two of the three black venire members.

On cross-examination, defense counsel challenged the prosecutor on his ability to remember why he struck venire members in a routine case that occurred five years before. Defense counsel also established that the prosecutor was unable to remember the race of every venire member.

Viewing the evidence in the light most favorable to the municipal court’s ruling, we cannot conclude that the court clearly erred by denying appellant’s Batson motion. The primary determination for the court was whether it believed the prosecutor still remembered why he exercised his strikes. Apparently, the court did believe the prosecutor, and we afford great deference to this credibility determination. See Herron, 86 S.W.3d at 630. Accordingly, we overrule appellant’s first issue.

We affirm the municipal court’s judgment.

      . See Tex. Transp. Code Ann. § 545.351 (West 1999).

      . See Tex. Gov’t Code Ann. §§ 30.00014, .00024 (West Supp.2009) (governing appeal to county criminal court from municipal court).

        .See Tex. Gov’t Code Ann. § 30.00027(b) (West 2004) (providing that the same briefs and record before county criminal court are filed with court of appeals).

      . The cited regulations govern, among other matters, seatbelt use, driver’s licenses, inspection stickers, and vehicle size and weight.

      . While this appeal was pending, five judges on the Texas Court of Criminal Appeals held that a single standard should be used to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency. See Brooks v. State, 323 S.W.3d 893, 894-95, 905-07 (Tex.Crim.App.2010) (plurality op.); id. at 927-28 (Cochran, J., concurring). Accordingly, to the extent appellant challenges the factual sufficiency of the evidence, we review such challenge under the legal-sufficiency standard. See Pomier v. State, 326 S.W.3d 373, 378-79 (Tex.App.-Houston [14th Dist.] 2010, no pet. h.) (adopting single standard of review required by Brooks).

      . See Hutchinson v. State, 86 S.W.3d 636, 638-39 (Tex.Crim.App.2002) (”[W]e have long abated appeals and remanded cases to the trial court to conduct a Batson hearing when the trial court had erroneously denied such a hearing after the requisite prima facie showing had been made.”).

      . An explanation is race-neutral if it is "based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The State’s reason need not be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). The State’s explanation will be deemed race-neutral "[ujnless a discriminatory intent is inherent in the prosecutor's explanation.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859.


author: Justice MOSELEY.

text:
    Corey Don LOUIS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00127-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 6, 2010.
    Decided Dec. 15, 2010.

      Steven R. Miears, Bonham, TX, for appellant.
    Richard Glaser, Dist. Atty., James L. Moss, Asst. Dist. Atty., Bonham, TX, for appellee.
    Before MORRISS, C.J, CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

This is an appeal by Corey Don Louis of his Fannin County jury conviction for capital murder in the death of two-year-old Teddy Lawrence.

Because there was legally insufficient evidence that Louis intentionally or knowingly caused the death of the child, we reverse the capital murder conviction and acquit him of that charge. Due to jury charge error, we remand the case to the trial court for trial on the lesser-included offenses included in the jury charge.

I. Facts of the Case

The story of the death of the child had its genesis when Teddy and his four-year-old sister, Beth, rose during the night and made a very big mess in the kitchen of their home, spreading food (including mustard), dog food, and household chemicals on the floor. This was not the first time the two children had performed these acts of domestic vandalism..

The children resided with their mother, Danielle Cuba, and her boyfriend, Louis, the appellant here. Also living in the house were Louis’ son, John (fourteen at the time), and Cuba’s infant son. At the time of the incident here, Louis’ six-year-old daughter, Meg, was staying with them during spring break.

On the Saturday of Teddy’s death, Cuba arose quite early in the morning, being the first of the adults to awake. Upon discovering the mess the children had made during the night, she woke up Louis and asked him to deal with the children as she commenced cleaning. Although Cuba did not say she explicitly told Louis to discipline or beat the children because of their offense, there seemed to be a tacit understanding to that effect. Thus began what can only be described as a horrendous and excessive discipline session to punish the two children for their misconduct.

Louis engaged in three rounds of beatings of the children with a belt, primarily on their buttocks. First, he whipped the children shortly after he and Cuba awoke. Cuba testified that at some point, Louis sat down next to her, then said he was not yet tired, and so he got up and resumed his beatings. Louis then left for work, instructing that the children were to stand up facing a wall until he returned. However, having apparently forgotten something he expected to take, Louis returned inside the house to discover that Teddy was not standing and facing the hallway wall as instructed (the child was lying on the floor and appeared to be asleep). Seeing that Teddy was not standing against the wall as instructed, Louis whipped Teddy a third time. According to the testimony of the child, Meg, during this last beating, Louis said, “You should have been sleep [sic] when you was [sic] making that big mess. Don’t try to be sleep [sic] now.” When Louis finally did leave for work, he instructed Cuba to make the children continue standing and facing the wall until he returned, when he would resume beating them.

Meg also described some of Louis’ beatings of the children as “hard” and some as “soft.” Her description of the beatings corroborated Louis’ own description of holding the children by an arm and beating them on their posteriors with a belt. Meg, further testified that Louis called them very coarse names during this time and said, “I’m [not] going to stop whipping you until I go to work.” Meg said that Teddy and Beth both had difficulty staying on their feet and kept falling down.

After Louis left for work, Teddy continued to be unable to stand. At some point, he hit his head; there is conflicting evidence on how this happened. Meg said that the boy was crying and trying to hold on to Cuba’s leg; in a move to disengage the child, she flung the boy away, causing him to hit his head “hard.” John, Louis’ fourteen-year-old son, said that when Cuba whipped Teddy, the boy fell back and hit his head on a board on the floor. Cuba, for her part, admitted kicking the child in the head. Meg also said that Cuba held a hot curling iron next to Teddy’s skin, but Cuba denied having done this and the medical examiner found no evidence of burns on Teddy’s skin.

Cuba’s disciplinary acts culminated in tying Teddy’s wrists to a clothes rod and hanging the boy in a closet when he was unable to remain standing. Meg said that Teddy’s feet struggled to find a stool in the closet and that he kicked about while trying to get his feet on the stool. Cuba initially denied hanging him so high his feet did not touch the floor, but eventually she conceded that he might have been in such a position. Cuba maintained that she only left the boy hanging in the closet for five minutes at most, then let him down and put him to bed and that Teddy was still breathing when she put him to bed. Cuba also admitted that although Teddy suffered from asthma and was supposed to receive treatments for the malady twice per day, she had not given him his medication or treatment the two days prior to the incident date. After Cuba removed Teddy from the closet, she put the children to bed and laid down herself. Sometime around 8:30 that morning, Cuba awoke and found Teddy stiff in bed — rigor mortis had set in. She called Louis at work, then called 9-1-1. When emergency medical technicians (EMT) arrived, they determined that the child was already dead and took his body to the local (Bonham) hospital. When one EMT heard Cuba say she thought the children may have ingested some “blue stuff,” he suggested they return to the house for the rest of the children as a precaution against possible poisoning. By this point, Louis had returned from his job in Sherman back to the house in Bonham, where he was met by a Bon-ham police officer, who refused to allow Louis in the house.

In a video-recorded statement to law enforcement, although Louis first maintained that he had only spanked the children with his hand, he later admitted during the interview that he had employed a belt in the beatings. Nevertheless, he was adamant he did not beat the children sufficiently hard to cause the extensive subcutaneous hemorrhaging suffered by Teddy and the injuries (later diagnosed as rhab-domyolysis ) presented by Beth’s wounds.

At the hospital, Louis told a Child Protective Services (CPS) investigator, “God knows we didn’t do nothing [sic] wrong.” The investigator, Dana Mangess, said she attributed this statement to a grieving parent. He was heard telling another CPS supervisor there was no foul play involved and that God does not make mistakes. Later in the day, Louis consented to a search of the home and cooperated with police. Two officers did remark they thought Louis had exhibited nervousness when they examined a belt found at the residence. In the days after the death, Louis remarked to a co-worker that he had spanked the child and asked the co-worker, “[Y]ou don’t think that killed him?”

CPS investigators and case agents arrived at the hospital. In following the agency’s protocol when there has been a child’s death in a home, they removed the remaining children to foster care. They discovered that Beth was in significant pain in her buttocks area; due to that pain, she could not sit, even to use the toilet. When CPS agents transported her to a foster family, great care had to be taken to allow the child to be able to sit in the car seat. En route to the foster family in the Dallas/Fort Worth area, the CPS agents were concerned about Beth’s condition and stopped at a hospital in the Dallas area, where the child was admitted for treatment and diagnosed with rhabdomyo-lysis (severe injury to her muscle cells).

On the day of the child’s death, Detective Terry Bee of the Bonham Police Department viewed the forensic interview given by Meg to CPS investigators. To that point, Bee said he had believed the cause of death was some form of poisoning or accident, based on statements made by Cuba and Louis and what Bee had seen at the family home. After watching Meg’s interview, and based on statements made by her, Bee began to consider that Teddy’s death could have been caused by something other than poisoning. The following afternoon (Sunday), Bee received a telephone call from the medical examiner’s (M.E.) office. In short, the M.E.’s report indicated that Teddy had died from blunt force trauma, including extensive subcutaneous hemorrhaging in the buttocks and upper thigh regions, among other injuries. Based on this report, Bee changed the thrust of his investigation to determine whether the death was a homicide. On Monday, March 17, 2008, arrest warrants were secured for Louis and Cuba. Louis, not yet having been arrested, agreed to give a statement to Bee and Texas Ranger Brad Oliver. Sometime, apparently before this interview, Louis and Cuba made contact with Justice of the Peace Joe Dale, who had ordered an autopsy. Louis asked Dale whether Dale had ever heard of a spanking killing a child.

Also on Monday morning, Louis spoke to Bonham Police Officer James Boatman, who had been present at the Louis home on Saturday morning (the day of death). Louis related to him that Louis had seen or been informed of a preliminary autopsy report and he asked Boatman if “foul play” was being considered in regard to Teddy’s death. At that time, Louis told Boatman that he “had to spank the child and he felt like deep in his heart he didn’t do anything wrong at that time.”

Shortly after this, Louis (still not under arrest or in custody) agreed to accompany Bee and Oliver to the Fannin County Sheriffs Office for an interview. In the video-recorded interview, admitted at trial and played for the jury, Bee asked Louis if it was possible that Louis had struck Teddy harder than he intended. He explained that the significant internal bleeding could not have been caused by the simple “spanking” or “whopping” Louis claimed to have administered. Louis nevertheless steadfastly maintained that the blows he administered were insufficient to have caused the massive injuries and he suggested alternatively that the child could have fallen in the bathroom. Louis attempted to demonstrate how hard he spanked Teddy and Beth by hitting the desk in the office where he was being interviewed. Louis said that Beth cried during her spanking, but Teddy “took it like a champ” and did not cry.

Joni McClain, deputy chief M.E. from Dallas County, performed an autopsy. McClain said her opinion on the cause of the child’s death was “[hjomicidal violence including blunt-force trauma.”

“Homicidal violence means the actions of another person caused the death of an individual.” When asked if she could pinpoint exactly which injury caused Teddy’s death, she said, “No, I can’t just take one of those bruises out. I have to do everything in totality. So it’s all of the various bruises combined, because you’re losing blood into the soft tissue.” She said that the term “homicidal violence” is used to include the possibility of asphyxia or lack of oxygen; McClain’s opinion on cause of death took into consideration the report given her by investigators that the child had been hung in a closet:

I’d had a history that the child was being hung by its wrists in a closet. So, that would — you know, after a while, it gets hard to breathe if you’re hanging there. So, that’s the reason I went ahead and included that [asphyxia] along with the blunt-force injuries. So, that includes homicidal violence. At autopsy, you may not see anything with a suffocation or asphyxia. But as you’re losing blood, blood is the thing that carries oxygen to the brain. So, he’s losing blood, and it’s harder to breathe if you’re hanging. So, all of that together is the reason I called it homicidal violence including blunt-force injuries.

McClain said it was possible that the child could have bled to death from the injuries. In answering a question about progressive suffocation, McClain said, “[Y]ou see all that blood that’s going into the soft tissue. And so, blood is what’s carrying oxygen. So, you’re getting less blood that you can pump around.” Later, the following exchange occurred:

Q.Is it possible to estimate the amount of blood that was lost in [Teddy’s] buttocks and lower legs ?
A. Just extensive. No, it’s just all in the other tissue.
Q. You can’t pull it out of the fat.
A. No.

Teddy had six injuries to his head: some bruises and some scrapes. There were two impact points on the head corresponding with a subdural hematoma (bleeding between the brain and the dura, a fibrous covering over the brain, beneath the skull), resulting in a small amount — 2 milliliters— of blood in or on the brain. McClain said there was not supposed to be blood on the brain. The boy had bruises on his wrists and one bruise on his lower left abdomen. An unexplained anomaly not explored at trial was that the child had a blood-alcohol content of .06 percent and the vitreous fluid in his eyes contained .08 percent alcohol. No drugs were detected in the child’s system. He had bruises and scrapes on his buttocks and on the backs of his legs, together with similar injuries on his back, all being consistent with having been hit with a belt. McClain described the pattern marks on Teddy’s back as “like a railroad track.” There was extensive hemorrhaging in the buttocks and backs of the legs, along with two small scrapes on the penis. Although she acknowledged the child could have suffocated by being hung by his wrists, a situation which could affect his ability to breathe, she would not specifically say whether the final cause of death was due to asphyxiation or to any particular contusion or injury. Rather, she looked at the totality of Teddy’s injuries and concluded all of them, in toto, amounted to homicidal violence. McClain did say that the extensive hemorrhaging at the buttocks and backs of the legs was more severe than the brain injury.

II. Sufficiency of Evidence

Louis attacks the sufficiency of the evidence in three primary points of error: (1) in point one, that the evidence is legally insufficient to support the verdict; (2) in point three, that the evidence is legally insufficient to prove he had the requisite mental state necessary to be found guilty of capital murder; and finally, (3) in point four, that the evidence is factually insufficient to support the verdict. Because analysis of the sufficiency of the evidence of Louis’ mens rea is a necessary part of analyzing the sufficiency of the evidence to support the verdict, we will address these points together.

We begin with Louis’ third point of error, in which he claims the evidence was legally insufficient to prove he had the requisite mens rea to be convicted of capital murder. In reviewing the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; Brooks, 323 S.W.3d at 894-95, 912-13.

Louis was indicted for intentionally or knowingly causing the death of a person who was under the age of six. Tex. Penal Code Ann. § 19.03(a)(8) (Vernon Supp. 2010). “Capital murder is a result-of-conduct oriented offense; the crime is defined in terms of one’s objective to produce, or a substantial certainty of producing, a specified result, i.e. the death of the named decedent.” Roberts v. State, 273 S.W.3d 322, 329 (Tex.Crim.App.2008) (citations omitted). Due process requires the State to prove beyond a reasonable doubt every fact necessary to constitute the offense alleged. Id. (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Under a hypothetically-correct jury charge, the State had the burden to prove that Louis intentionally or knowingly caused the death of Teddy, a child younger than six, by beating him.

No evidence was presented that Louis ever held the intention to kill Teddy. Louis told police he was spanking the children as punishment for their having made a mess in the house; Cuba’s version of events corroborated this. There is nothing in the testimony of the other two child witnesses (who were likewise present when the beatings took place) to suggest that Louis was engaged in anything more than disciplining the children, albeit to an excessive, horrific, and cruel degree. Cf. Yost v. State, 222 S.W.3d 865 (Tex.App.-Houston [14th Dist.] 2007, pet. refd) (evidence defendant regularly beat victim and made statements that he would kill her). Even the police, when questioning Louis, seemed of the opinion that Louis was attempting to discipline the children and did not realize how hard he was hitting them. Detective Bee said that when he questioned Louis, Bee did not think that Louis intended to cause Teddy’s death and that Bee believed the death was accidental.

A more complex issue in this case is whether there was sufficient evidence to support a finding that Louis “knowingly” caused Teddy’s death.

(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.

Tex. Penal Code Ann. § 6.03 (Vernon 2003). Proof of a culpable mental state is often made by circumstantial evidence. Dunn v. State, 13 S.W.3d 95, 98-99 (Tex.App.-Texarkana 2000, no pet.). Proof of knowledge is an inference that may be drawn by the fact-finder both from direct evidence and from evidence of the circumstances surrounding the act. Dillon v. State, 574 S.W.2d 92, 94-95 (Tex.Crim.App. [Panel Op.] 1978). A jury may infer intent or knowledge from any facts which tend to prove its existence, including the acts, words, conduct of the accused, and the method of committing the crime. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002). “Indeed, mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or admission occurs.” Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App.1998); see also Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999) (Meyers, J., concurring). Intent can be inferred from the extent of the injuries to the victim, the method used to produce the injuries, and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995). In a murder case, evidence of a particularly brutal or ferocious mechanism of death, inflicted upon a helpless victim, can be controlling upon the issue of intent or knowledge. Id. Additionally, a culpable mental state can be inferred from the acts, words, and conduct of the accused. Id.

As with the above discussion on the absence of any evidence Louis intended to kill Teddy, we find no evidence Louis was aware that his conduct (i.e., spanking — or, more accurately — beating Teddy) was reasonably certain to cause Teddy’s death. See Tex. Penal Code Ann. § 6.03(b). All of the evidence pointed to Louis and Cuba doing what they did with the intent to discipline the children, but not attempting to kill them or to engage in conduct they knew was reasonably certain to kill them. Again, we point to Louis’ statements to police that he was disciplining the children and his denials that he hit Teddy with sufficient force or placement to cause the child’s injuries. The fact that Louis expressed an intention to resume the “discipline” when he got home from work indicates that he believed the child would be alive when he returned; he told Cuba to keep the children facing the wall in the hallway when he left. Cuba testified she thought Louis’ “spanking” was what a normal parent would do. She told police Louis “spanked them like he always do [sic],” indicating that this was, unfortunately, the normal disciplinary process in the home.

Obviously, we are aware of our duty to defer to the jury’s determination of the weight and credibility to be accorded the witnesses and the evidence; we are further cognizant that evidence of Louis’ knowledge could be inferred from his acts and statements. However, this is where we find the absence of evidence most telling. From the descriptions of the events of that terrifying morning, it is clear that Louis and Cuba were anything but ideal parents and should not have been in the position of enjoying the joys and bearing the responsibilities of child-rearing. As sad as it is to contemplate, we must take note of Cuba’s statement that during this episode, she believed that Louis was simply engaging in an act of normal child discipline. Obviously, although the brutality and severity of the child’s wounds must be considered, that still does not yield an inference that Louis was reasonably certain death would result from his conduct.

We contrast the instant circumstances with those addressed in Duren v. State, 87 S.W.3d 719 (Tex.App.-Texarkana 2002, no pet.). Duren was convicted of capital murder for having killed a young child who had been left in his charge. Duren gave inconsistent explanations of the cause of the child’s injuries and ultimately claimed that he was mimicking a wrestling move and accidentally threw the child to the ground when he meant to throw the child to a padded chair. There were no witnesses to the incident. Evidence was presented that Duren had previously argued with and slapped the child’s mother, and had a disagreement with her shortly before the child was injured. There was testimony from medical doctors that the child’s injuries (which included blunt force head trauma and injuries along the spine, upper arms, and buttocks) could not have been sustained in the manner described by Duren. Id. at 724-25.

In Montgomery v. State, 198 S.W.3d 67, 84 (Tex.App.-Fort Worth 2006, pet. ref d), the Fort Worth court found sufficient evidence to support Montgomery’s capital murder conviction where Montgomery gave inconsistent stories about the means by which the child’s injuries were sustained. There was evidence the child was injured while in the sole care of Montgomery and, importantly, a medical doctor testified that the child’s head injuries were so significant that the person administering the wounds would have been reasonably certain the injuries would cause death. Id. at 87. Also taking into consideration Montgomery’s relative size and strength as a college football player versus the size of the sixteen-month-old victim, the appellate court found sufficient evidence that Montgomery knew his acts would cause death. Id. at 87-88.

In contrast, Louis and Cuba both had charge of the children here, and there is evidence that Cuba continued the abuse of Teddy after Louis left for work.. In addition, other than initially lying about hitting the children with a belt, Louis eventually admitted using the belt but maintained he did not hit the children with sufficient force to cause the sustained injuries. Cuba testified that she believed that Louis spanked the children that Saturday morning just as any other “normal parent” would. When describing that morning’s events, it was clear from Cuba’s testimony that the “discipline” meted out was customary in that household when she said that she told Louis to “get up and get” the kids while she performed the perfunctory task of cleaning the mess. This, in her words, “was nothing new.” Louis got his belt, which he did not do if he were not going to whip the children. This was apparently nothing extraordinary for this household. “To be aware that his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature of his conduct.” Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999).

In sum, there is simply no evidence that Louis knowingly killed Teddy, as “knowingly” is defined in the Texas Penal Code. We sustain Louis’ third point of error and render an acquittal for the crime of capital murder.

The foregoing discussion and conclusion regarding insufficient evidence to support the verdict for intentionally or knowingly causing Teddy’s death render moot Louis’ points of error claiming more generally of legal and factual insufficiency of the evidence, so we need not address them.

III. Claims of Error in the Jury Charge

Louis makes two claims of error in the charge to the jury. He first claims the trial court erred by inclusion of the following instruction in the jury charge: “Intent or knowledge may be inferred by acts done or words spoken.” Next, he claims the trial court should have granted Louis’ request to instruct the jury on the defense of mistake of fact.

A. Inferred Intent

In reference to the language in the charge concerning inferred intent, the Texas Court of Criminal Appeals has said inclusion of such language is an impermissible comment on the weight of the evidence and is, therefore, error. Brown v. State, 122 S.W.3d 794, 800-01 (Tex.Crim.App.2003). It was observed that the “instruction marginally falls on the wrong side of the ‘improper-judicial-comment’ scale because it is simply unnecessary and fails to clarify the law for the jury.” Id. at 802. Brown lodged an objection to the inclusion of this language. Applying the test announced in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g), the Texas Court of Criminal Appeals found the error in the case before it was not calculated to injure the defendant’s rights, stating that the “instruction is mild, neutral, and an obvious commonsense proposition.” Brown, 122 S.W.3d at 803.

Because Louis objected to the charge language, we will reverse if we find harm, taking into consideration all the evidence, the entire jury charge, and the parties’ arguments. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986); Almanza, 686 S.W.2d at 174; Durden v. State, 290 S.W.3d 413, 420 (Tex.App.-Tex-arkana 2009, no pet.). One must take into account that when charge error was preserved at trial by a timely and specific objection, that error must have been “calculated to injure the rights of [the] defendant.” Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Almanza, 686 S.W.2d at 171. In other words, a defendant must have suffered “some” actual (rather than theoretical) harm from the error. Almanza, 686 S.W.2d at 171. If this usually relatively benign error were to be taken alone, we might be inclined to find this error “mild, neutral, and an obvious common-sense proposition.” Brown, 122 S.W.3d at 803. However, because Louis’ primary defense relied upon the position that he did not know that his “spankings” were sufficiently severe to result in the child’s serious bodily injury or death, we consider this issue of preserved-charge error conjunctively with Louis’ point of error complaining of the trial court’s denying Louis an instruction on mistake of fact.

B. Mistake of Fact

The trial court denied Louis’ request for a jury instruction on mistake of fact. “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code Ann. § 8.02(a) (Vernon 2003). A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether the evidence raising the issue is strong, weak, unimpeached, contradicted, or unbelievable. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993). Generally, an instruction on the mistake of fact defense should be given when evidence raising the issue of whether the actor formed a reasonable belief about a matter of fact, if his mistaken belief negated the kind of culpability required for the commission of the offense. Samford v. State, 302 S.W.3d 552, 556 (Tex.App.-Texarkana 2009, no pet.).

In Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App.2007), the defendant was charged with intentionally or knowingly causing serious bodily injury to a child, a first-degree felony, and also with intentionally or knowingly causing bodily injury to a child, a third-degree felony. In that case, Thompson had beaten a student in his Bible study class with a tree branch, thereby causing significant injuries. The case hinged on a finding that the doctrine of transferred intent could apply to transfer of intent from a lesser offense to a greater offense. Thompson’s intent to cause bodily injury was found to transfer to his having caused serious bodily injury. Id. at 800. The Texas Court of Criminal Appeals also stated that mistake of fact could have been raised under those circumstances and that although Thompson did not request a mistake of fact instruction, he would have been entitled to such an instruction had he done so. Id. Whether a defendant’s mistaken belief is reasonable is a matter for the jury or trier of fact to determine. Granger v. State, 3 S.W.3d 36, 38-39 (Tex.Crim.App.1999).

In the charge given to Louis’ jury, the following sentence is repeated eight times (first in the portion of the charge for capital murder and again on each of the lesser-included offense charges): “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different offense was committed.” We construe this as being a transferred intent instruction as codified in Section 6.04(b)(1) of the Texas Penal Code. Tex. Penal Code Ann. § 6.04(b)(1) (Vernon 2003).

Thompson is very similar to Louis’ situation. Like Thompson, Louis’ defense was that he intended to discipline the child, an action which would clearly entail bodily injury as defined by statute. Although at first blush the facts of this case would not seem to support the normal mistake of fact situation, in light of Thompson, we find Louis was entitled to the mistake of fact instruction — which he requested but was denied at trial. We must reverse if we find “some harm” to Louis’ rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005); Almanza, 686 S.W.2d at 171. As discussed above, we review all the evidence at trial, the charge as a whole, and the argument of parties.

Louis constructed his defense on two main pillars: (1) that Cuba might have killed the child after he left the house and (2) that he only intended to discipline the children, not to cause the death of either. In relation to the second of these defenses, as discussed above, Louis admitted to investigators that he had struck the child as a means of discipline, but maintained he had not struck the child with sufficient force to produce the resulting injuries. There was testimony from Cuba that she thought Louis’ beating constituted normal parental disciplining. Louis made comments at the hospital such as, “God knows we didn’t do nothing [sic] wrong” and was tearful. He asked two people, including Justice of the Peace Dale, whether it was possible for a spanking to result in a child’s death. While it is true that some of this conduct or statements could be construed as suspicious or self-serving, we are concerned here with a review of all the trial evidence in assaying harm, not in a sufficiency review where we would be looking at the evidence in the light most favorable to the verdict.

We also look at the charge as a whole in considering any harm to Louis. As pointed out above, there was error in instructing the jury it could infer intent from acts or words spoken. We find this error (which would usually be not harmful) is exacerbated by the erroneous denial of the mistake of fact instruction. Both errors center upon a major part of Louis’ defense — that he did not intend to cause death or serious bodily injury or know that his actions were reasonably certain to cause those results. The charge also provided for several lesser-included offenses: injury to a child by intentionally or knowingly causing serious bodily injury; manslaughter; injury to a child by recklessly causing serious bodily injury; injury to a child by intentionally or knowingly causing bodily injury; injury to a child by recklessly causing bodily injury; criminally negligent homicide; and injury to a child by causing bodily injury by criminal negligence. Louis’ requested instruction on mistake of fact would have instructed the jury that if it believed Louis “through mistake formed a reasonable belief that the spanking that he administered to [Teddy] was not to the extent to cause serious bodily injury or bodily injury or death ... or, if you have a reasonable doubt thereof, then you will find the defendant not guilty.” Louis’ two-fold defense hinged on (a) placing the blame for Teddy’s death on Cuba, and (b) arguing he did not have the requisite mental status to be held responsible for the child’s death.

As regards the parties’ argument, the State made some brief references to whether the evidence proved that Louis knew his actions would cause Teddy’s death. The State argued, “It wasn’t in his heart to kill that baby. It wasn’t. But he was pissed and he took that belt and he beat that two-year-old.... ” The State stressed the amount of the beatings and that they took place over a span of time in more than one session. It further suggested that Louis raced home from work upon receiving word the child was not breathing in order to hide the belt and other evidence. The State concluded both sections of its closing arguments by saying that Louis “knew he went overboard [with the beatings]. He knew he did too much” and that Louis had gone “too far.” Louis’ closing argument reiterated his belief that the children were alive and that he believed them to be relatively well (or at least not at risk of death) when he left them and that the responsibility for the serious bodily injury and death lay at Cuba’s feet. Counsel argued that Louis’ conduct, such as racing home and comments made at the hospital, were consistent with an innocent mind, because when he left home, the children were alive. Defense counsel cited Louis’ statements, while alone, caught on the video of his second interview, where he prayed that God would let the police see what really happened, as evidence of his innocent mind.

In this case, Louis’ mental state was á hotly contested issue. The failure to instruct the jury on the defense of mistake of fact was an impediment to Louis’ ability to present his defense that he did not have the requisite mens rea to be found guilty and to argue that defense to the jury. See Palmer v. State, 222 S.W.3d 92, 96 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (defendant impeached complainant with evidence she had made a false accusation against a third party; trial court charge erroneously instructed that the jury could only consider the false accusation if it found the accusation false beyond a reasonable doubt; effectively deprived defendant of impeachment evidence, resulting in egregious harm); Hinojosa v. State, 744 S.W.2d 319, 322-23 (Tex.App.-Corpus Christi 1988, pet. refd) (where defendant entitled to self-defense instruction, denial of instruction harmful).

Reviewing the evidence, the charge, and the arguments of counsel, we cannot say that the charge errors here did not cause some harm to Louis. “[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require reversal of the conviction.” Arline, 721 S.W.2d at 351. The jury was effectively denied the opportunity to consider Louis’ most potent defense — that he did not know the degree of injury he was inflicting. While this defense may not seem reasonable to us, resolution of that reasonableness is a matter for the jury. Granger, 3 S.W.3d at 38-39. Finding that Louis did suffer some harm, we are compelled to sustain his eighth point of error and remand this case for a new trial.

There are various lesser-included offenses to the primary charge which involve the application of Louis’ mens rea in a greater or lesser degree. It is the province of the jury, after proper instruction, to determine the reasonableness of Louis’ mindset when inflicting the damages to the child.

There are other issues raised by Louis on appeal (e.g., the presence of an investigator/witness in the courtroom during a portion of the trial after imposition of “the rule” pursuant to Rule 614, the alleged lack of corroboration of the testimony of Cuba as an accomplice, the refusal of the trial court to allow cross-examination of Cuba concerning her sexual liaison with a jailer while incarcerated after the child’s death), which do not present reversible error under the circumstances of this case as it was tried. However, because the matters discussed above are dispositive of this case, we do not choose to delve deeply into a discussion of them.

We reverse the conviction of Louis for capital murder and render an acquittal of that offense. We remand this case to the trial court for a trial of the lesser-included offenses.

      . All children’s names in this opinion have been replaced with pseudonyms.

      . Pediatrician Matthew Cox, M.D., testified rhabdomyolysis results from injury to muscle cells. In Beth’s case, she had soft tissue injuries to her buttocks and back; the injuries resulted in elevated enzyme levels in her muscle cells. The enzyme levels in Beth’s muscle cells were four times the normal level. Cox said this condition presented a substantial risk of death. Medical examiner McClain said that Teddy did not exhibit rhabdomyoly-sis because he died too soon; had he lived longer, he likely would have exhibited rhab-domyolysis.

      . The record here is not entirely clear: Cuba testified the belt was broken in the beatings; the crime laboratory forensic scientist testified the belt she examined was "broken in half. But neither of the police officers who described searching the home and finding the belt described the belt as broken. There were at least two belts discussed and admitted at trial, neither of which was included in the appellate record. Adding to the confusion, two belts were crossed up, either when submitted by Bonham police or when examined at the crime laboratory — when Detective Bee opened the evidence envelope containing one of the belts, sealed since its examination at the crime laboratory, he removed a green robe belt, expecting a black robe belt. One or both of these may have been used to hang Teddy in the closet. The testimony seems to indicate Louis beat the children with a brown leather belt. Although Louis attacked the competency of the investigation throughout trial, we do not find the details of which belt was used or its condition especially germane to resolution of this appeal. Louis admitted beating the children with a belt; he claimed to be the only person who disciplined the children, and which belt caused the injuries to Teddy is not as important as Louis’ mental status, as will be discussed below.

      . McClain explained the structure as, "[Y]ou’ve got skull, then you've got dura, and then you've got brain.”

      . In Brooks v. State, 323 S.W.3d 893, 894-95, 912-13 (Tex.Crim.App.2010) (a .4-1-4 decision with one judge joining the lead opinion with a concurring opinion and another concurring with the lead opinion and joining that concurrence), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), and its progeny. The plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency standard is the sole standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, 912-13. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the defendant’s challenge to the factual sufficiency of the evidence.

      . We weigh the sufficiency of the evidence by considering elements of the offense as defined by a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The hypothetically-correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

      . Because the jury was instructed on lesser-included offenses, we would normally at this point proceed to examine whether the evidence supports judgment on one of those offenses. Herrin v. State, 125 S.W.3d 436, 443-45 (Tex.Crim.App.2002). But because we find harmful jury error in the next part of our analysis, we will not consider the lesser of-lenses. Rather, we will remand for a new trial.

      . As for the claim of factual insufficiency, we would not address that claim in light of the Texas Court of Criminal Appeals’ ruling in Brooks, 323 S.W.3d at 894-95, 912-13. See footnote 5, supra.

      . For example: Granger, 3 S.W.3d at 38 (defendant entitled to mistake of fact instruction where evidence raised defensive theory he thought car was unoccupied when he fired into it with pistol); Sands v. State, 64 S.W.3d 488, 493 (Tex.App.-Texarkana 2001, no pet.) (defendant entitled to instruction where he testified he thought syringe of methamphetamine contained vitamin B — 12).

      . Louis objected to inclusion of these lesser-included offenses.

      . Tex.R. Evid. 614.