Opinion
No. 10-03-00299-CR
Opinion delivered and filed October 27, 2004. DO NOT PUBLISH.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court # F35621. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE dissents with a note: I would reverse the judgment for failure to submit a charge on a defense that was clearly raised by the evidence. Shaw's counsel presents a detailed, multi-page analysis of the law and the evidence, which the majority does not even acknowledge. I continue to believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions, particularly when counsel presents a rational argument that is being rejected. It is hard to understand why the majority will not provide the basic facts necessary to understand why the Appellant brought the issues or the reasons for rejecting them.)
MEMORANDUM OPINION
This appeal concerns a conviction for reckless serious bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (Vernon 2003). We will affirm. In her sole issue, Appellant contends that the trial court erred in denying Appellant's request for a defensive instruction pursuant to Texas Penal Code Section 22.04. See id. (k)(1) (Vernon 2003). That section provides, "It is a defense to prosecution under this section that the act . . . consisted of . . . emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts." Id. Although Appellant argues on appeal that she is "not licensed in the healing arts," she points to no affirmative evidence that she was not so licensed, nor that her conduct was in good faith or in the exercise of reasonable care. Cf. id. The trial court did not err in refusing the instruction. See TEX. R. APP. P. 33.1(a), 38.1(h); Ferrel v. State, 55 S.W.3d 586, 591-92 (Tex.Crim.App. 2001); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000); Smith v. State, 959 S.W.2d 1, 23 (Tex.App.-Waco 1997, pet. ref'd); Irvin v. State, No. 14-99-00682-CR, 2001 Tex. App. LEXIS 3354, at *7-*8 (Tex.App.-Houston [14th Dist.] May 24, 2001, pet. ref'd) (not designated for publication). We overrule Appellant's issue. We affirm the judgment.