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Click here for the full text of this decision FACTS:Martina Stuhler was M.V.’s stepmother. When M.V. was three years old, in December 2002, social workers placed M.V. in his biological father’s custody. M.V. father lived with Stuhler and their three young children in a singlewide trailer. Stuhler delivered newspapers in the early morning hours and would then sleep during the day. On one or more occasions, she locked M.V. in the bathroom of the trailer while she slept. Stuhler’s oldest child testified that the Stuhler restrained M.V. by duct-taping him to the toilet seat. The trauma of this confinement or restraint caused M.V. to suffer from constipation. By the time Child Protective Services removed M.V. from the trailer and placed him in foster care in April 2003, M.V.’s constipation worsened to the point it was moderate to severe, and a medical exam revealed that his abdomen was distended and hard. The indictment alleged, in relevant part, that on or about March 31, 2003, Stuhler “intentionally or knowingly cause[d] serious bodily injury or serious mental deficiency, impairment, or injury to [M.V.], a child 14 years of age or younger, by act, to-wit: by confining or restraining [M.V.] in a bathroom or bedroom.” During the jury-charge conference, Stuhler’s attorney persuaded the trial court to remove the theory of confinement or restraint in the bedroom from the charge. Thus, the state’s theory of the case was that Stuhler caused M.V. either serious bodily injury or serious mental deficiency, impairment, or injury by confining or restraining him on a particular occasion in a bathroom. A jury convicted Stuhler of the first degree felony offense of injury to a child and sentenced her to 65 years of confinement in the penitentiary and a fine of $10,000. The jury was instructed in the same application paragraph that it could convict Stuhler should it find, alternatively, either that she caused the victim serious bodily injury, or that she caused him serious mental deficiency, impairment, or injury. On appeal, the 2nd Court of Appeals reversed the conviction, holding in an unpublished opinion that insufficient evidence supported the conviction on the basis of serious bodily injury. The 2nd Court remanded the cause for a new trial on the alternative theory that Stuhler caused serious mental deficiency, impairment, or injury, because the jury charge, which had authorized conviction alternatively under either theory, erroneously authorized a nonunanimous jury verdict. The Court of Criminal Appeals (CCA) granted the state’s petition for discretionary review to examine the 2nd Court’s conclusions that the insufficient evidence supported the conviction and that the jury charge erroneously authorized a nonunanimous verdict. HOLDING:Affirmed. The CCA examined whether the evidence showed that the child’s constipation caused by Stuhler’s actions: 1. created a substantial risk of death; 2. caused serious permanent disfigurement; or 3. caused protracted loss or impairment of the function of any bodily member or organ. The evidence, the CCA stated, did not speak to whether, once the confinement and restraint came to an end and the psychological trauma dissipated, the constipation would have progressed to a deadly level, even absent medical intervention. Thus, the CCA agreed with the 2nd Court’s conclusion that insufficient evidence supported the jury finding of serious bodily injury beyond a reasonable doubt. Similarly, the CCA found insufficient evidence that the infliction of constipation caused serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Moving on to Stuhler’s challenge to the jury instructions, the CCA stated that the 2nd Court correctly concluded that the Legislature intended the separate results spelled out in the various subsections of the statute to be elemental and thus requiring jury unanimity. Likewise, the CCA agreed with the 2nd Court that the application paragraph violated Stuhler’s right to a unanimous jury verdict and held that this defect required reversal of the conviction even under an egregious-harm standard of review. OPINION:Price, J., delivered the opinion of the court, in which Meyers, Johnson, Holcomb and Cochran, J.J., joined. DISSENT:Keller, P.J., filed a dissenting opinion in which Womack, Keasler and Hervey, J.J., joined. “I disagree with the Court’s conclusion that the evidence was insufficient to show”serious bodily injury.’ Serious bodily injury includes, among other things,”any impairment of a physical condition . . . that creates a substantial risk of death.’ Stuhler restrained the three-year-old victim by duct-taping him to a toilet seat. As a result of this restraint, the victim suffered from”moderate to severe’ constipation, causing his abdomen to become distended and hard. . . . “I also disagree with the Court’s conclusion that appellant was harmed by the alleged violation of jury unanimity. Aside from the fact that evidence was sufficient to show”serious bodily injury,’ I believe appellant was not harmed because the evidence of”serious mental . . . injury’ was virtually conclusive.”

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