The “It wasn’t serious brain bleeding” defense.

Nixon v. State (Unpublished Memo): Stepmother beat a toddler. Did not appeal on grounds that she didn’t do it. Instead appealed on grounds that the beating didn’t inflict serious bodily injury. Not much sympathy for that argument.

Thankfully, the child had no disfigurement or permanent loss of organ or limb function.  Of course, such injuries would have qualified as serious.

So, in this case, the remaining way for the State to prove a “serious” injury was to show that the beating resulted in “a substantial risk of death.” Tex. Penal Code § 1.07(a)(46).  That risk is judged based on the injury as inflicted, i.e., on what would have happened if the victim didn’t get medical care. A doctor testified that the child’s breathing was suppressed by bleeding on the brain.  The doctor also testified that the child could have died but for five days of hospital treatment.

Just a guess: In the guilt/innocence phase, the stepmother tried to introduce a journal she had kept concerning the child, in hopes of showing that she was really a diligent and loving parent. The State objected on hearsay grounds. The trial judge sustained. The stepmother did not make an offer of proof. Consequently the issue was waived on appeal. I suspect Stepmother’s appellate counsel raised the point anyway, in the vain hope the journal would his client some sympathy.

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