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Click here for the full text of this decision FACTS:Rebecca Ann Shaw appeals her conviction by a jury of the offense of recklessly causing serious bodily injury to a child. The jury assessed her punishment at 20 years’ confinement and a fine of $10,000. She asserts in a single point that the trial court erred in refusing to submit her timely requested defense to prosecution of injury to a child, that the act or omission consisted of emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts. HOLDING:Affirmed. As a general rule, an accused has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. An element of the defense is raised if, viewing the evidence in the light most favorable to the defendant, there is evidence that a rational juror could accept as sufficient to prove that element. Whether the defense is raised by the evidence is always a question of law. “The dissent questions our reliance on a rational-juror test as a basis for determining whether defensive evidence is sufficient to require an instruction, arguing that the use of such a test wrongly allows the court to weigh the relative credibility of the evidence. We submit that the test assumes the credibility of the evidence supporting the defense, then determines whether it is evidence that a rational juror could accept as sufficient to prove the elements of the defense.” It is a defense to prosecution for injury to a child that the act or omission consisted of emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts. Texas Penal Code �22.04(k)(1)(B) (Vernon 2003). Shaw was convicted of recklessly causing serious bodily injury to a child by shaking the child and causing his head to strike an unknown object. The court addresses whether there is evidence from which a rational juror could conclude that Shaw’s shaking the child and causing his head to strike an unknown object consisted of emergency medical care administered in good faith and with reasonable care. assuming there is evidence that Shaw shook the baby and hit its head against an object, which might include the bed, there is no evidence from which a rational juror could conclude that such action was a reasonable way to conduct infant CPR, the court finds. Shaw may be an unlicensed medical assistant who performs only routine tasks in the office to assist the physician. However, in view of Shaw’s testimony that she was licensed, and her broad testimony as to her duties, a rational juror would be required to resort to speculation in order to make such a determination, the court states. The court holds that a physician assistant is, for the purpose of the defense to this prosecution, a person licensed in the healing arts. Consequently, Shaw, who is a licensed physician assistant, is licensed in the healing arts with respect to the purpose of the defense to this prosecution. Because a rational juror could not have found that Shaw’s conduct in shaking the baby and hitting its head against an object was reasonable emergency medical care or that Shaw was not licensed in the healing arts, the defense in question was not raised. Consequently, the trial court did not err in refusing to give the instruction requested by Shaw. OPINION:John G. Hill, J.; Vance and Reyna, JJ., and Hill, S.J. DISSENT:Bill Vance, J. “With its reliance on Wilson v. State and application of a”rational-juror’ test to the evidence to determine if an accused has the right to a defensive instruction, the majority applies the wrong test under Texas law and thus reaches the wrong result. See Wilson v. State, 777 S.W.2d 823, 825 (Tex. App. � Austin 1989), aff’d, 853 S.W.2d 547 (Tex. Crim. App. 1993). Wilson was affirmed on other grounds, and neither the Court of Criminal Appeals nor any other Texas court of appeals has approved or adopted a rational-juror test, which in practice wrongly allows the judge � or judges � to weigh the relative credibility of the evidence.”

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