Full Opinion

NUMBER 13-25-00418-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG SENECA ALLEN BOOKER, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Cron Memorandum Opinion by Justice Cron It is undisputed that appellant Seneca Allen Booker caused his son’s death by intentionally striking the infant with his hand. He testified at trial, however, that he did not intend to cause his son’s death and that he instead acted impulsively and with a reckless disregard for the foreseeable consequences of his conduct. The jury acquitted him of capital murder (Count I), convicted him of intentionally or knowingly causing serious bodily injury to a child (Count II) and aggravated assault of a family member by causing serious bodily injury with a deadly weapon (Count III), and sentenced him to concurrent sixty-year prison terms. See TEX. PENAL CODE §§ 19.03(a)(8), 22.02(b)(1)(A), 22.04(a)(1). By a single issue, Booker complains that the trial court erred by denying his request for a manslaughter instruction as a lesser-included offense of capital murder. See id. § 19.04(a). Although he was acquitted of capital murder, Booker contends that the jury could have elected to convict him of manslaughter, a second-degree felony, see id. § 19.04(b), rather than aggravated assault, a first-degree felony under the facts of this case, see id. § 22.02(b)(1)(A), thereby capping his sentence for one of his convictions at twenty years, see id. § 12.33(a). Although we agree that Booker was entitled to the instruction as a lesser-included offense of capital murder, we ultimately find the error harmless because manslaughter was not a reasonable alternative to aggravated assault under the circumstances of this case. Accordingly, we affirm. I. BACKGROUND The State’s theory was that Booker intentionally or knowingly murdered his five- month-old son. To prove intent, the State presented evidence that Booker was upset with the child’s mother leading up to the incident, that the baby suffered significant blunt force trauma to several areas of his head, that Booker waited approximately forty minutes before calling 911, that he initially lied about what occurred, and that he subsequently confessed to striking the child several times with his hand. The State also presented evidence that the child had previously suffered other injuries while in Booker’s care, which 2 the State characterized as evidence of prior abuse. The causes of the previous injuries were hotly contested, and even the child’s mother, who testified for the State, acknowledged that at least some of the injuries were accidental and unrelated to Booker. Booker, who was eighteen years old and a first-time father at the time of the incident, testified that he and the baby were sleeping in the same bed when he awoke to the baby crying. He said he became “frustrated” and “just snapped” because the baby “wouldn’t stop crying.” He admitted to intentionally hitting the baby “multiple times” with a “half closed fist” while the two of them were lying on the bed. He acknowledged that this his conduct resulted in his son’s death, but he repeatedly denied that he intended to kill his son or cause him serious bodily injury. Given his relative strength and the vulnerability of his infant son, Booker agreed that he “had to know there was a risk” that his conduct could seriously injure his son because “that’s common sense.” He further agreed that he “disregarded the risk” of causing serious bodily injury or death when he repeatedly struck his son. Although Booker acknowledged on cross-examination that he made a “conscious choice” to “hit” his child, he maintained that he merely “lashed out” and that it was not his intent to kill or seriously injure his son. In terms of his conduct after the incident, Booker testified that he noticed that his son “was breathing weird” and that “his head was swollen and his eyes would not open.” He explained that he was initially reluctant to call 911 because he “was scared,” he “was raised that calling the police was a bad thing,” and he was hopeful that his son was not as seriously injured as it appeared. So, instead of immediately calling 911, he first put his son in the shower “to wake him up,” and when that did not work, he began giving him 3 “mouth to mouth.” Approximately forty minutes after the incident, when his son’s condition did not improve, Booker called 911 and reported that his son was not breathing. Booker initially told first responders and police that the baby had fallen, but later he confessed to striking his son several times with his hand. Several witnesses, including two police officers, testified that Booker expressed genuine remorse for his conduct. The trial court submitted three separate charges to the jury, one for each count. Beforehand, Booker requested that manslaughter be included in the instruction for Count I as a lesser-included offense of capital murder, but the trial court denied his request. 1 During closing arguments, Booker’s counsel began by telling the jury that “your job in this case is to determine what [Booker’s] intent was when this happened.” Counsel’s central theme was that Booker “made a horrible mistake.” Counsel explained why the evidence was inconsistent with the State’s theory that Booker intended to murder or seriously injure his son. Counsel insisted the State failed to prove beyond a reasonable doubt that Booker acted with the necessary mens rea under Counts I and II. Counsel concluded by asking the jury to find Booker “guilty” of only Count III because he confessed to “recklessly” assaulting his son by disregarding a known and substantial risk of causing serious bodily injury. The State, on the other hand, argued that the jury should draw the opposite conclusion from the evidence and find Booker guilty on all three counts, including capital murder. The jury returned a mixed verdict and assessed punishment as described above. This appeal ensued. 1 The trial court also denied Booker’s request for an instruction on negligent homicide as a lesser- included offense of capital murder, but he does not challenge that ruling on appeal. 4 II. STANDARD OF REVIEW & APPLICABLE LAW Alleged jury-charge error involves a two-step analysis: “First, we determine whether the charge is erroneous. If it is, then we must decide whether the appellant was harmed by the erroneous charge.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). When the trial court erroneously denies a timely requested instruction, reversal is required unless the error is harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Stated differently, an appellant is entitled to relief if the record reveals that he suffered some harm from the error. Id. In assessing harm, “we may consider four factors: (1) the charge itself; (2) the state of the evidence including contested issues and the weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole.” Maciel v. State, 689 S.W.3d 609, 615–16 (Tex. Crim. App. 2024). A defendant is entitled to an instruction on a lesser-included offense if two conditions are met: (1) the lesser-included offense is included within the proof necessary to establish the charged offense; and (2) there is some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser- included offense. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). Whether the first condition was satisfied poses a question of law that we determine by comparing “the statutory elements and any descriptive averments in the indictment for the greater offense with the statutory elements of the lesser offense.” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC. art. 37.09(1) (providing, in part, that “[a]n offense is a lesser included offense if . . . it is established by proof of the 5 same or less than all the facts required to establish the commission of the offense charged”). The second condition requires us to decide whether the evidence presented at trial established the lesser-included offense as “a valid[,] rational alternative to the charged offense.” Sweed, 351 S.W.3d at 68 (quoting Segundo v. State, 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008)). This is a low threshold that only requires some evidence (i.e., more than a scintilla) that is directly germane to the lesser-included offense, including evidence that refutes or negates other evidence establishing the greater offense. Id. Thus, “if evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the court’s charge.” Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). In addition to other aggravating facts, a person commits capital murder if they intentionally or knowingly cause the death of an individual. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a). A person commits manslaughter if they recklessly cause the death of an individual. Id. § 19.04(a). A person acts recklessly with respect to the result of their conduct if they are aware of but consciously disregard a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). “The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id. As charged in this case, a person commits aggravated assault if they intentionally, knowingly, or recklessly cause serious bodily injury to a family member with a deadly weapon. See id. § 22.01(a)(1), 22.02(b)(1)(A). “Serious bodily injury” is defined in part as “bodily injury that creates a substantial risk of death or that causes death.” Id. 6 § 1.07(a)(46). Finally, manslaughter and aggravated assault are both lesser-included offenses of capital murder. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000) (“We have recognized that manslaughter, criminally negligent homicide and aggravated assault are lesser-included offenses of murder and, therefore, of capital murder.”); see Landry v. State, 227 S.W.3d 380, 382 (Tex. App.—Texarkana 2007, no pet.) (“The other method of committing aggravated assault (causing serious bodily injury) is a lesser included offense of the charged offense of capital murder (requiring causing death).”). III. MOOTNESS The State contends that, irrespective of whether Booker was entitled to an instruction on manslaughter, the issue became moot once he was acquitted of capital murder. We disagree. 2 An issue becomes moot “when the appellate court’s judgment cannot have any practical legal effect upon a controversy.” State v. Garza, 774 S.W.2d 724, 727 (Tex. App.—Corpus Christi–Edinburg 1989, pet. ref’d) (citation omitted); see also Salinas v. State, No. 13–09–00616–CR, 2011 WL 1938664, at *3 (Tex. App.—Corpus Christi– Edinburg May 12, 2011, pet. ref’d) (mem. op., not designated for publication) (“The doctrine of mootness limits courts to deciding cases in which an actual controversy exists.”). Any opinion by an appellate court ruling on a moot issue would be purely advisory, and Texas courts have no jurisdiction to issue advisory opinions. See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991); see also State v. Marra, No. 13- 2 The State’s brief rests solely on this contention; the State has not engaged with the merits of the alleged jury-charge error. 7 13-00449-CR, 2015 WL 392752, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 29, 2015, no pet.) (mem. op., not designated for publication); Salinas, 2011 WL 1938664, at *3. The State claims that Booker’s issue is moot because the “alleged jury charge error only affected” Count I, and Booker “cannot receive any greater relief than has already been granted by the acquittal.” If Booker had only been tried for capital murder we would agree that there is nothing to appeal from. See Ex parte Bowens, 572 S.W.3d 322, 324 (Tex. App.—Austin 2019, no pet.) (“As a general rule, a criminal defendant’s right of appeal is limited to an appeal from a final judgment of conviction.”). But Booker claims that manslaughter was a viable, rational alternative to both capital murder and his conviction for first-degree aggravated assault. He further claims that because manslaughter is only a second-degree felony, a conviction for that offense would have resulted in a sentence substantially less severe than the sixty years he received for first- degree aggravated assault. We therefore conclude that Booker has presented an actual controversy that could yield tangible relief. See Garza, 774 S.W.2d at 727; see also Salinas, 2011 WL 1938664, at *3. IV. ANALYSIS As previously noted, manslaughter is a lesser-included offense of capital murder, Cardenas, 30 S.W.3d at 392, so we turn to whether manslaughter was a viable, rational alternative to capital murder in this case, see Sweed, 351 S.W.3d at 68. The primary factual dispute at trial was Booker’s culpable mental state. Although he had previously confessed to police that he struck his son, he never admitted that he intentionally or 8 knowingly caused his son’s death. Thus, the State was necessarily required to prove Booker’s culpable mental state through circumstantial evidence, and the State argued that the jury should rationally infer from Booker’s conduct before, during, and after the offense that he intentionally or knowingly caused his son’s death. See Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018) (“By its nature, a culpable mental state must generally be inferred from the circumstances. We cannot read an accused’s mind, and absent a confession, we must infer his mental state from his acts, words and conduct.” (citation modified; internal citations omitted)). Booker refuted the State’s theory by judicially confessing that he recklessly caused his son’s death. He admitted that, while in a lying position, he struck his son “multiple times” with a “half closed fist” and that his conduct resulted in the infant’s death. He explained that he became “frustrated” because the baby “wouldn’t stop crying,” and he “just snapped” and “lashed out.” He specifically denied that he intended to kill or seriously injure his son. He claimed, instead, that he was aware of but consciously disregarded the substantial risk that his conduct could result in serious bodily injury or death because a five-month-old, as opposed to an adult, is particularly vulnerable to injury. Notably, the jury apparently found his testimony somewhat credible because it acquitted him of capital murder—i.e., the jury did not believe that Booker intentionally or knowingly caused his son’s death—which supports the idea that manslaughter was a viable, rational alternative to capital murder. Having judicially confessed to each element of manslaughter, Booker was entitled to a manslaughter instruction as a lesser-included offense of capital murder, and the trial court erred by denying his request for the instruction. See TEX. PENAL CODE 9 §§ 6.03(c), 19.04(a); Lay v. State, 359 S.W.3d 291, 296 (Tex. App.—Texarkana 2012, no pet.) (“To raise the issue of manslaughter, there must be evidence of a lack of intent to kill and evidence that the defendant acted recklessly while ignoring a known risk.” (citation modified) (quoting Munoz v. State, 932 S.W.2d 242, 245 (Tex. App.—Texarkana 1996, no pet.))); Hayes v. State, 728 S.W.2d 804, 809 (Tex. Crim. App. 1987) (explaining that “a charge on reckless conduct must be given when evidence from any source raises the possibility that the defendant recklessly placed another in imminent danger of serious bodily injury through his or her conduct”). Considering the entire jury charge, the state of the evidence, the arguments of counsel, and other relevant information, we conclude the error was harmless. See Maciel, 689 S.W.3d at 615–16. Although he was acquitted of capital murder, Booker contends that manslaughter was also a viable, rational alternative to first-degree aggravated assault because the jury was required to find that he intentionally or knowingly caused his son serious bodily injury. Booker is mistaken about the culpable mental states of aggravated assault. Consistent with the indictment, the jury was correctly instructed that the State had to prove beyond a reasonable doubt that Booker intentionally, knowingly, “or recklessly” caused serious bodily injury to his son, including death. See TEX. PENAL CODE §§ 1.07(a)(46), 22.01(a)(1), 22.02(a)(1). Indeed, Booker’s trial counsel implored the jury to find Booker “guilty” of only Count III because he confessed to “recklessly” assaulting his son, and it was uncontested that Booker’s conduct resulted in his son’s death. In this regard, manslaughter was not a rational alternative to aggravated assault because, under either count, the jury could have convicted Booker by finding that he 10 recklessly caused his son’s death. Stated otherwise, a rational jury applying the facts to the law in this case would not acquit Booker of aggravated assault in favor of finding him guilty of manslaughter. See Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (“The evidence supports an instruction on a lesser-included offense if it permits a rational jury to find the defendant guilty only of the lesser-included offense.” (emphasis added)). Rather, a rational jury that believed Booker recklessly caused his son’s death would find him guilty of both counts. 3 Moreover, it appears that the jury rejected Booker’s assertion that he merely acted recklessly. By convicting Booker of first-degree injury to a child, the jury necessarily found that he intentionally or knowingly caused serious bodily injury to his son. See TEX. PENAL CODE § 22.04(e) (providing that injury to a child causing serious bodily injury is a first- degree felony “when the conduct is committed intentionally or knowingly”). Booker was not charged with, nor was the jury instructed on, second-degree injury to a child, which 3 In such a scenario, and assuming without deciding that manslaughter and aggravated assault would be the same offense in this case for double jeopardy purposes, see Gunter v. State, 673 S.W.3d 335, 346 (Tex. App.—Corpus Christi–Edinburg 2023, pet. ref’d) (finding intoxication manslaughter and aggravated assault were the same offense because the defendant “was punished twice for the same conduct that caused [the victim’s] death”), the trial court would have retained the conviction for the most serious offense, which is generally defined as “the offense of conviction for which the greatest sentence was assessed,” and set aside the other conviction, Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). Considering the jury assessed Booker’s punishment at sixty years’ imprisonment for first- degree aggravated assault (as well as first-degree injury to a child), it strikes us as implausible that the jury, if given the opportunity to assess three punishments instead of two, would have drastically reduced his sentence for first-degree aggravated assault and imposed a greater sentence for second-degree manslaughter. Injury to a child, on the other hand, is not subject to a multiple-punishments analysis because the Legislature has expressly authorized multiple convictions when the same conduct constitutes injury to a child and another criminal offense. See TEX. PENAL CODE § 22.04(h) (“A person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections.”); Gunter, 673 S.W.3d at 377–78 (explaining that “the Legislature has expressed a clear intent to allow multiple punishments for the same conduct when a person commits injury to a child and a violation of any other penal code section” (collecting cases)). 11 only requires a showing of reckless conduct. See id. (providing that the same offense is a second-degree felony if “the conduct is engaged in recklessly”). In other words, if the jury believed that Booker only acted recklessly, as his counsel argued, then it stands to reason that the jury would have acquitted him of first-degree injury to a child and only found him guilty of first-degree aggravated assault—the only charged offense that include recklessness as a culpable mental state. In sum, although manslaughter was a viable, reasonable alternative to capital murder, it was not a reasonable alternative to aggravated assault. Consequently, the error was harmless. V. CONCLUSION Booker’s convictions are affirmed. JENNY CRON Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 1st day of October, 2026. 12