RICHARDS v. STATE (2001)

OPINION

A jury convicted appellant, Dennis Wayne Richards, of the first degree felony offense of injury to a child, namely, his son Laren Richards.¹  Appellant entered a plea of true to one enhancement paragraph,² and the jury assessed his punishment at 60 years confinement.   Appellant challenges the trial court's judgment in eight points of error.   We affirm.

In his second point of error, appellant contends the evidence is legally insufficient to support his conviction.   Specifically, appellant asserts the State failed to meet its burden to prove that the object used to injure complainant was “unknown to the grand jury” after use of due diligence to determine the nature of the object.

 Sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.  Gollihar v. State, 46 S.W.3d 243, 252 (Tex.Crim.App., 2001);  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).   Such a charge would be one that accurately 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.  Gollihar, at p. 253;  Malik, 953 S.W.2d at 240.

The indictment, in pertinent part, alleged:

[Appellant] ․ on or about March 25, 1998, did then and there unlawfully, intentionally and knowingly cause serious bodily injury to LAREN RICHARDS ․ a child younger than 15 years of age, by shaking the Complainant and striking Complainant with an object unknown to the Grand Jury.

It is further presented that ․ [appellant] on or about March 25, 1998, unlawfully, intentionally and knowingly caused serious bodily injury to LAREN RICHARDS ․ a child younger than 15 years of age, by a manner and means unknown to the Grand Jury․

(Emphasis added.)

 The first degree felony of injury to a child is committed when a person intentionally or knowingly causes serious bodily injury to a child.   Tex. Pen.Code Ann. § 22.04(a)(1), (e) (Vernon Supp.2001).   A non-essential element allegation, such as an allegation that the object used to cause the serious bodily injury was unknown to the grand jury, may properly be excluded from a hypothetically correct charge.   See Gollihar, at p. 256;  Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999).   Therefore, such an allegation is disregarded in a sufficiency of the evidence review.   See Gollihar, at pp. 256-257.   Accordingly, even if the evidence was insufficient to show that the object was unknown to the grand jury after due diligence, such would be an immaterial variance.³  Id.

We overrule point of error two.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App.P. 47, and is thus ordered not published.

We affirm the judgment.

FACTUAL BACKGROUND4

Seven-week old Laren Richards (complainant) died on March 27, 1998 from trauma to his head.   His skull had been fractured and he had hemorrhaging in and around his brain.   The autopsy report listed the manner of complainant's death as “homicide.”

When he was born, complainant suffered from pneumonia, a collapsed lung, a heart murmur, and an enlarged heart.   Because of these complications, he stayed in the hospital for two weeks following his birth.   When he came home, he appeared to have stabilized and did not have any apparent health problems although he was a lethargic baby who slept much of the time.

Complainant's mother, Laurie Richards, and appellant were common law husband and wife.   Laurie and appellant also had a daughter, Deja, who was 18 months older than complainant.   The Richards family lived in a modest one-bedroom apartment.

Except for doing “odd jobs,” appellant was unemployed during the five years that he and Laurie lived together;  Laurie was the primary wage earner.   After Deja was born, Laurie continued to work while appellant stayed at home full-time to care for Deja. Laurie was on maternity leave for six weeks following complainant's birth and had gone back to work at a collection agency only a short time before complainant's death.   While Laurie was at work, appellant continued to stay at home to care for complainant and Deja.

On Saturday, March 21, 1998, the Richards family went to a children's festival.   They were at the festival from late morning until late afternoon;  they returned home between five and six o'clock in the evening.   After arriving home, Laurie went into the kitchen to prepare complainant's bottle.   Appellant was in the kitchen talking on the telephone.   Laurie had put complainant in his stroller without the safety straps fastened and left him in the bedroom.   Nineteen-month old Deja was also in the bedroom with complainant.

From the kitchen, Laurie heard complainant crying.   She finished warming up the bottle and went into the bedroom.   She found complainant on the floor with the stroller on top of him;  Deja was next to the stroller.   Laurie lifted the stroller off complainant and picked him up.   Complainant continued to cry for five or 10 minutes after Laurie picked him up, and Laurie continued to hold him for about an hour.   Because complainant did not appear to be injured, Laurie did not call a doctor.

On Sunday, the family went to appellant's grandmother's house.   There was nothing unusual about complainant's condition during the visit.   On Monday, Laurie also did not notice anything unusual about complainant, and she went to work from noon until nine-thirty that night.   Appellant stayed home to care for the children.   That evening, complainant's diet was changed from formula to powdered cereal.   But he had no problem with the cereal.

Before Laurie left for work on Tuesday, complainant appeared fine. When Laurie arrived home on Tuesday evening, she fed complainant.   He was able to eat his cereal and drink his formula.   Again, Laurie noticed nothing unusual about him on Tuesday.

Laurie went to bed at about ten-thirty Tuesday night.   She awoke during the night to the sound of someone vomiting.   She discovered that complainant had vomited in his crib.   Laurie took his temperature, but he did not have a fever.   During the night, complainant vomited two or three more times.   Laurie believed that he might have a stomach virus because Deja had been ill with the stomach flu a couple of weeks earlier.

On Wednesday, March 25, 1998, Laurie was scheduled to work from seven a.m. until four p.m.;   however, she did not leave for work until about seven-thirty.   When she left for work, complainant was still asleep in his crib.   Before leaving, Laurie called her pediatrician's office, but it was not open yet.   Laurie instructed appellant that if complainant vomited again, he should take complainant's temperature.   She also told appellant that if complainant slept for three or four hours and was hungry when he woke up, then appellant should give him formula.   Complainant's sister also remained at home with complainant and appellant.

Laurie called home to check on complainant a little after eight.   Appellant told Laurie that complainant was still sleeping.   Laurie called a second time after her first break around 10 a.m. and appellant told her that complainant had eaten four ounces of formula and had kept it down.   Laurie called again around lunch-time, and appellant told her that complainant was sleeping.   Laurie called a final time at one-thirty or two.   Appellant told Laurie that complainant had eaten eight ounces of formula and had kept it down.   Laurie could hear complainant being “fussy” in the background.

About 45 minutes later, appellant called Laurie and said, “The paramedics are here.   Laren was choking on his formula.   Come home.”   Laurie went home to find paramedics at the apartment.

Before transporting him to the hospital, the paramedics performed CPR on complainant and removed formula and mucous from his airway.   At trial, paramedic Curtis Williams stated that they removed more fluid from complainant's airway than he would have expected.   Williams thought that the baby would do well because he had responded to the paramedics' treatment.   However, Williams was unaware at the time that complainant had a fractured skull and brain hemorrhaging.

An ambulance took complainant to Texas Children's Hospital.   He was initially seen in the emergency department and then transferred to the pediatric intensive care unit.   A doctor then told Laurie and appellant that complainant was brain dead.

Homicide detectives came to the hospital and spoke to Laurie and appellant separately.   Both Laurie and appellant told the detectives about the stroller accident that had occurred four days earlier on Saturday.   At trial, Detective S. Straughter testified that appellant told him that complainant had been fine all day on Wednesday, March 25, 1998 until about three o'clock.   At that time, appellant said that complainant started to choke on his cereal and appellant called 911.   Appellant also told the detective that he was the only adult at the apartment during that day after Laurie left for work.

On Friday, March 27, 1998, complainant was taken off of life support and was pronounced dead.   Appellant was later indicted by a grand jury for injury to a child.

DISCUSSION

A. Factual Sufficiency

In his first point of error, appellant contends that the evidence was factually insufficient to establish his intent to cause serious bodily injury to complainant.   We apply the usual standard of review for factual sufficiency.   See King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App.2000).

A person commits the first degree felony offense of injury to a child if he intentionally or knowingly by act or omission, causes serious bodily injury to a child.   Tex.Pen.Code Ann. § 22.04(a)(1), (e) (Vernon Supp.2001).   Serious bodily injury is defined in the Penal Code as, “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”   Tex.Pen.Code Ann. § 1.07(46) (Vernon 1994).

Appellant contends that the evidence is factually insufficient because it was “entirely circumstantial.”   In support of this argument, appellant points out that there were no eyewitnesses to the injury, and there was no confession or admission by him.   He also asserts that the medical testimony offered by the State is insufficient because it fails to provide an explanation as to the specific manner of injury.

Injury to a child is considered a result-oriented crime;  that is, the accused acts with intent if it is his conscious objective or desire to cause the result.   See Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985);  Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982);  Hill v. State, 883 S.W.2d 765, 769 (Tex.App.-Amarillo 1994, pet. ref'd).   Intent may be inferred from the acts and the words of the accused, as well as the surrounding circumstances.   See Hill, 883 S.W.2d at 769.

The record reveals testimony from five medical experts regarding complainant's injuries.   At trial, Dr. David Coats, a pediatric ophthalmologist, testified that he examined complainant on March 26, 1998 in the intensive care unit.   He observed that complainant did not blink to light indicating that complainant had no vision.   He also noted that complainant's eyes were “fixed” indicating that he had “severe abnormality of brain function.”

Dr. Coats also discovered that both of complainant's retinas had “extensive bleeding and hemorrhage.”   He stated, “This child's hemorrhages are as bad as I have ever seen.   I may have seen a child or two with hemorrhages as bad as these, but never have I seen them more severe than this.”   To Dr. Coats, this indicated “nonaccidental trauma,” i.e., child abuse.   He explained, “To have hemorrhages this severe in the eye of a child, that child had to undergo extreme, I mean extreme forces much beyond anything that's going to occur in daily life.”

According to Dr. Coats, “Retinal hemorrhages to this severity, particularly bilateral retinal hemorrhages, are indicative of a severe shaking injury or a whiplash injury.”   One mechanism for such an injury is a “repetitive, severe acceleration-deceleration injury” which occurs when a baby is shaken.   He opined that although he did not know the exact cause of the injury in this case “a deceleration-acceleration injury is the most likely and most viable reason for getting hemorrhages of this sort.”   Dr. Coats stated that blunt trauma would not cause injuries of this nature:  “[B]lunt trauma interestingly doesn't cause retinal hemorrhages to this extent․ [T]his type of severe ․ extensive retinal hemorrhages is just more consistent with a shaking injury.   So, I don't think that blunt trauma would be the major mechanism here.”   Dr. Coats explained:

We see kids in car wrecks all the time, no seat belts.   We see kids who have fallen down the stairs or fallen off a table or fallen ․ off a first story down to the ground and sustain skull fractures ․ and they just almost never have retinal hemorrhages, and in the rare situations they do, they never look like that.

According to Dr. Coats, a 33-pound, 19-month old child, such as complainant's sister, Deja, also could not inflict such injury on an infant.   Dr. Coats said, “I think you need a very, very strong person to do that.   I'm not even sure Bam-Bam could inflict that type of injury.”   Dr. Coats also stated that a fall from a stroller would not cause retinal hemorrhages because “[i]t just is not going to inflict enough force on a child to fall a few feet like that․ I think you could put that stroller on the roof of a house and let the child fall off and I don't think it's going to [cause retinal hemorrhages].”

The State also introduced the testimony of Dr. Mark Ward, who is board certified in pediatrics with a sub-board certification in pediatric emergency medicine.   Dr. Ward treated complainant as the attending physician in the emergency department on March 25, 1998.   Dr. Ward stated that when complainant arrived in the emergency room, he was not breathing on his own, had a “thready pulse,” and his fontanel (i.e., soft spot on a baby's head) was bulging.   Complainant's bulging fontanel indicated increased pressure inside his head from either brain swelling or bleeding into and around the brain.   Dr. Ward ordered a CT scan which revealed that complainant had a skull fracture, as well as bleeding in around the brain.   Complainant also had no brain activity.

Dr. Ward stated complainant's injuries were consistent with a shaking injury and that complainant's skull fracture would have required some sort of impact.   Complainant's injuries could not have been caused by administering CPR or inflicted by a 33-pound, 19-month old such as complainant's sister because it “requires so much force.”   Dr. Ward also believed that a fall from a stroller would not inflict the type of injuries that complainant exhibited, especially on a carpeted floor.5  In relation to the retinal hemorrhages, Dr. Ward said, “You don't see retinal hemorrhages even if you fall off the second or third floor of a building.”

According to Dr. Ward, an infant with complainant's injuries would (1) show change in behavior in a short period of time (i.e., from immediately to within one hour), (2) not be able to eat, and (3) not live more than 24 hours.

In Dr. Ward's opinion, complainant's injuries were caused by child abuse.   He explained:

[T]here's a skull fracture that there was no explanation for.   There's very significant bleeding in the brain and around the brain without any explanation of any sort of trauma, and the retinal hemorrhages are really the sort of thing that is diagnostic of abuse, because ․ [the] extensive kind of retinal hemorrhages that the patient had just almost don't occur in anything else, given this compilation of findings.   Put all that together and there's no explanation for how it happened, and there's only one thing in the differential diagnosis that's nonaccidental trauma.

Dr. Paul Gerson, a neuroradiologist, interpreted complainant's head CT scan, which showed that complainant had a skull fracture and the presence of “a lot of blood inside the head where there's been bleeding around the brain.”   Dr. Gerson explained that the color of the blood on the CT scan indicates the age of the injury.   Within the first 24 hours following the injury, the blood in the head appears as a white shadow on the CT scan.   As it ages, it becomes darker.   Here, the complainant's CT scan showed “very bright white blood.”   This indicated to Dr. Gerson that the injury was less than 24 hours old and did not happen three or four days earlier.   He said the recentness of the injury is also indicated by the lack of bruising on complainant's scalp because bruises do not form immediately.

Dr. Gerson did not believe that complainant died from being shaken but from a “direct blow to the head.”   He also stated that it was not the skull fracture or the hemorrhaging that killed complainant, but it was the injury to complainant's brain.   Dr. Gerson opined that “Some horrible blunt trauma occurred to this baby's head that caused the swelling of the skull, the tissues, that caused the fracture, that caused the bleeding, but most important of all, it killed the brain.”   He described the type of force that would be necessary to inflict such as injury as “a really severe blow.”

When asked whether an 18-month old child could inflict these types of injuries, Dr. Gerson said “[I]t takes a great deal of force to break a skull.   That's ludicrous.”   With regard to whether falling from a stroller could cause such injuries, Dr. Gerson stated:

A study has been done about this, because this is a common problem in courtrooms, and actual tests have been done on skulls to see what distance you would have to drop them to make a skull fracture, and it's a considerable distance and it is not a carpeted floor, either.   There's actually some science that tells you that that's not going to happen.

Dr. Rubina Khan, complainant's pediatrician, testified at trial for the defense.   She stated that she had seen complainant when he was three weeks old.   At that time, complainant had a cold but was otherwise in good health.   She next saw complainant when he was in the hospital.   She did not believe that complainant's injuries were caused by the stroller accident.   Dr. Khan gave the following reasons for her opinion:

[H]e had severe injuries which are consistent with nonaccidental trauma.   He had bilateral retinal hemorrhages so severe that I could see them myself just on a general exam without even a special instrument.   He had a skull fracture.   He had hematoma in his brain.   Those are not consistent with a stroller falling on a child.

Dr. Vladmir Parungao, an assistant medical examiner, performed complainant's autopsy.   He found that complainant had a skull fracture and hemorrhaging.   It was his opinion that complainant's death was caused by a “skull fracture with epidural, subdural and subarachnoid hemorrhage due to trauma of the head.”   Dr. Parungao stated that complainant's injuries did not occur on Saturday because the baby would exhibit signs of being ill, such as vomiting, convulsions, and loss of consciousness, within 30 minutes to one hour following the injury.   He stated that certainly within two hours the “baby is going to be very sick.”

In summary, the medical evidence showed that complainant's injuries were recent, quite severe, and resulted from significant trauma, i.e., violent shaking, a blow to the head or both.   All of the medical experts agreed that complainant's injuries did not result from the stroller accident on Saturday and were not caused by complainant's sister or CPR.

In addition to the medical evidence, the evidence presented at trial showed that (1) complainant appeared fine until sometime after Laurie left for work on Wednesday, March 25, 1998 and (2) appellant was the only adult with complainant between the time Laurie left for work and the ambulance arrived.

We find that medical evidence of the nature presented in this case, coupled with the evidence that complainant was in appellant's sole care when he began exhibiting symptoms of his injuries, is sufficient for the jury to infer appellant's intent to cause complainant serious bodily injury.   See Morales v. State, 828 S.W.2d 261, 265 (Tex.App.-Amarillo 1992), aff'd, 853 S.W.2d 583 (Tex.Crim.App.1993) (holding similar medical evidence was factually sufficient to show defendant acted intentionally and supported his conviction of injury to a child).

Viewing the evidence as required, we hold the evidence is factually sufficient to support appellant's conviction.

We overrule point of error one.

B. Autopsy Photographs

In points of error three through six, appellant complains of three autopsy photographs admitted into evidence:  (1) State's Exhibit (hereafter SX) No. 18-skull viewed from the side;  SX 19-top of skull;  and SX 20-skull with brain removed.   Appellant argues these autopsy photographs depict the mutilation of the autopsy process, and thus their probative value is far outweighed by their prejudicial effect.   Tex.R.Evid. 403.

The medical examiner, Dr. Parungao, testified to the significance of each photograph.   He stated SX 18 (skull viewed from the side) depicted the hemorrhages present on complainant's scalp and the fracture on the top of the head.   Using SX 18, Dr. Parungao explained that complainant had an old hemorrhage, which could have occurred during childbirth that appeared yellow, and a more recent hemorrhage that was reddish.

Dr. Parungao testified that SX 19 depicts complainant's skull fracture and was taken from an angle looking down on complainant's head.   He used SX 19 to show the size of the fracture and explained that complainant's skull was not merely cracked but fractured “through and through.”

As to SX 20, Dr. Parungao testified that it depicted complainant's skull with the brain removed and bent to show the hemorrhages around complainant's brain.   Dr. Parungao related this to a trauma injury to the head.

Admissibility of photographs over challenges are within the sound discretion of the trial judge.   See Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App.1995).   Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy.   See Burdine v. State, 719 S.W.2d 309, 316 (Tex.Crim.App.1986).   In determining whether the probative value of the photographs is outweighed by its inflammatory nature, we consider factors such as:  the number of exhibits offered, their gruesomeness, detail, size, and color, whether they are close-up, whether the body is naked or clothed, the availability of other means of proof, and the unique circumstances of the individual case.  Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App.1997).

In reviewing SX 18, 19, and 20, we note that they are three and one-half by five inch photographs, but that the State put them on an overhead projector while Dr. Parungao testified;  they are in color, taken close-up, and fairly detailed.   Though these factors may weigh against admitting the photographs, the peculiarities of this case and detailed medical testimony of five doctors virtually required such photographic evidence be presented to the factfinders to assist them in understanding the nature and extent of complainant's injuries.   See Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App.1983) ( “Where pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, a trial judge does not abuse its discretion in admitting these photographs.”).

Appellant complains that the photographs are “extremely gruesome.” For example, SX 18 shows the skin pulled back from complainant's skull.   However, photographs provide powerful visual evidence of the offense, and the trial court does not abuse its discretion by admitting photographs of the victim into evidence merely because they are gruesome.  Sonnier, 913 S.W.2d at 519.   Moreover, the evidence at trial showed that complainant's injuries were not externally apparent (e.g., there was no bruising on complainant's head).   Thus, the only way that the factfinders could see complainant's injuries were in the autopsy photographs.

Appellant also argues that the photographs were unnecessary because he agreed to stipulate to complainant's cause of death.   Even with this stipulation, however, these exhibits have probative value.   In particular, they assist the jury in determining (1) the specific circumstances under which the injuries occurred;  (2) the extent and severity of the injuries;  and (3) the manner in which the injuries were inflicted, all of which are probative of whether appellant intentionally or knowingly inflicted serious bodily injury on complainant, which is a contested issue in this case.   See Phipps v. State, 904 S.W.2d 955, 957-59 (Tex.App.-Beaumont 1995, no pet.) (holding photograph of complainant's skull with skin pulled back showing bruise-like marks was probative to aid factfinder in determining whether complainant's death was intentionally caused by appellant or was accidental).

We hold the trial court did not abuse its discretion in admitting State's exhibits 18, 19, and 20.

We overrule points of error three, four, five, and six.

C. Charge Error

In points of error seven and eight, appellant complains that he was denied due process of law and due course of law because the jury instruction that his sentence might be reduced through award of good-conduct time was unconstitutional as applied to him because he was not eligible for mandatory supervision.   See Tex.Gov't Code Ann. § 508.149(a)(9) (Vernon Supp.2001);  Tex.Pen.Code Ann. § 22.04(a)(1) (Vernon Supp.2001).

Appellant complains about the following portion of the jury charge on punishment:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time.   Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation.   If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

(Emphasis added.)   Appellant did not object to this instruction.

In support of his position, appellant relies on our holding in Jimenez v. State, 992 S.W.2d 633, 637-38 (Tex.App.-Houston [1st Dist.] 1999), aff'd on other grounds, 32 S.W.3d 233 (Tex.Crim.App.2000).   However, the facts of this case are distinguishable from those found in Jimenez.   Here, unlike in Jimenez, good-conduct time may be considered in determining when appellant is eligible for parole, even though he is not entitled to release on mandatory supervision.6  See Tex.Gov't Code Ann. § 508.149(a) (Vernon Supp.2001) (stating mandatory supervision release is not allowed for conviction of injury to a child).   Under Government Code subsection 508.145(f), appellant “is eligible for release on parole when [his] actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” 7  Tex. Gov't Code Ann. § 508.145(f) (Vernon Supp.2001) (emphasis added).

Because good-conduct time may properly be taken into consideration when determining appellant's eligibility for parole, the portion of the jury charge that appellant complains about was a proper charge.

Accordingly, we overrule points of error seven and eight.

CONCLUSION

We affirm the judgment of the trial court.

FOOTNOTES

1.   See Tex. Pen.Code Ann. § 22.04(a)(1), (e) (Vernon Supp .2001).

2.   The enhancement paragraphed alleged a prior conviction of burglary of a habitation.

3.   We note that the evidence at trial was inconclusive about what instrument or method was used to cause complainant's injuries, and the assistant foreman of the grand jury testified that the grand jury was not able to determine the manner and means of the injury.   Even under pre-Gollihar and pre-Rosales case law, the State did not need to prove the grand jury used “due diligence” in attempting to ascertain the weapon used in this case.   See Hicks v.. State, 860 S.W.2d 419, 425 (Tex.Crim.App.1993).

FN4.  Much of the factual background is derived from the trial testimony of Laurie Richards, complainant's mother..  FN4.  Much of the factual background is derived from the trial testimony of Laurie Richards, complainant's mother.

FN5.  The evidence showed that the Richards' bedroom was carpeted..  FN5.  The evidence showed that the Richards' bedroom was carpeted.

FN6.  In Jimenez, good-conduct time could not be considered in determining the defendant's (1) entitlement to release on mandatory supervision, or (2) eligibility for parole.  992 S.W.2d at 638..  FN6.  In Jimenez, good-conduct time could not be considered in determining the defendant's (1) entitlement to release on mandatory supervision, or (2) eligibility for parole.  992 S.W.2d at 638.

FN7.  Injury to a child as defined by section 22.04 of the Penal Code is not an offense listed in Code of Criminal Procedure article 42.12, section 3g(a)(1), and no deadly weapon finding was requested in this case..  FN7.  Injury to a child as defined by section 22.04 of the Penal Code is not an offense listed in Code of Criminal Procedure article 42.12, section 3g(a)(1), and no deadly weapon finding was requested in this case.

MIRABAL, Justice.