Opinion
No. 13-00-431-CR
Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 24th District Court of DeWitt County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and WITTIG.
Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX. GOV'T CODE ANN. § 74.003 (Vernon Supp. 2004).
MEMORANDUM OPINION
Bobby Lee Hranicky appeals his conviction for the second-degree felony offense of recklessly causing serious bodily injury to a child. A jury found him guilty, sentenced him to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $5,000 fine. On the jury's recommendation, the trial court suspended the sentence and placed Hranicky on community supervision for ten years. In seven issues, Hranicky asserts: (1) the trial court should have quashed the indictment; (2) the evidence is legally insufficient; (3) the evidence is factually insufficient; (4) the trial court improperly interlineated amending language on the face of the indictment; (5) the amended indictment did not give him the statutory ten days' notice before trial and charged a different offense than the original; (6) the trial court submitted an erroneous jury charge; and (7) the trial court abused its discretion by allowing autopsy photographs into evidence. The trial court has certified that Hranicky has the right of appeal. See TEX. R. APP. P. 25.2(a)(2). We affirm.
Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at TEX. PEN. CODE ANN. § 22.04(a)(1) (Vernon 2003)).
The procedural history on appeal of this 2000 case is worth noting. Hranicky filed his notice of appeal on June 30, 2000. The reporter's record was filed January 2, 2001. Hranicky filed his first motion for extension of time to file his brief on March 19, 2001, which this Court granted. We extended the due date twice more, as Hranicky requested. By June 5, 2001, the brief had not yet been filed. We requested a status report. On June 28, 2001, Hranicky filed a third motion for extension of time to file his brief. We granted it. By May 2, 2002, the brief still had not been filed. We abated the case and ordered the trial court to conduct a hearing. The trial court concluded that Hranicky wanted to prosecute the appeal, did not appear to be indigent, and had retained counsel. We ordered Hranicky to file the brief on or before 5:00 p.m. on July 1, 2002. Further, we informed Hranicky that failure to comply would result in another abatement and referral of the matter to the trial court for further action. Despite this Court's order, the brief was not filed.
On August 8, 2002, we abated the appeal a second time for another trial court hearing. The trial court recommended ten days for filing the brief. On October 3, 2002, Hranicky filed yet another motion for extension of time to file the brief. We abated for the third time for another trial court hearing. The trial court recommended that Hranicky's counsel be ordered to file Hranicky's brief on or before 5:00 p.m. November 27, 2002. The trial court further recommended, if the brief was not filed by that date, that we dismiss the appeal and sanction counsel with a fine of $200.00 and three days in the De Witt County Jail. Despite the trial court's findings and recommendations, Hranicky's counsel filed yet another motion for extension of time on December 17, 2002. We again granted the extension. Counsel finally filed the brief on January 8, 2003.
The State then moved for an extension. We granted it. Briefing was finally completed, and we submitted the case and heard oral argument on April 16, 2003.
Meanwhile, the rules of appellate procedure were amended effective January 1, 2003. This Court applies the amended rules to all appeals pending on the effective date of the amendments. See Gearhart v. State, 122 S.W.3d 459, 463 (Tex. App.-Corpus Christi 2003, pet. dism'd). Accordingly, on July 22, 2003, we abated this appeal and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Hranicky's right of appeal. See TEX. R. APP. P. 25.2(a)(2).
I. RELEVANT FACTS
This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See TEX. R. APP. P. 47.4. A newspaper advertisement offering tiger cubs for sale caught the eye of eight-year-old Lauren Villafana. She decided she wanted one. She expressed her wish to her mother, Kelly Dean Hranicky, and to Hranicky, her stepfather. Over the next year, the Hranickys investigated the idea by researching written materials on the subject and consulting with owners of exotic animals. They visited tiger owner and handler Mickey Sapp several times. They decided to buy two rare tiger cubs from him, a male and a female whose breed is endangered in the wild. They brought the female cub home first, then the male about a month later. Sapp trained Hranicky in how to care for and handle the animals. In particular, he demonstrated the risk adult tigers pose for children. Sapp escorted Hranicky, Kelly Hranicky, and Lauren past Sapp's tiger cages. He told the family to watch the tigers' focus of attention. The tigers' eyes followed Lauren as she walked up and down beside the cages. The Hranickys raised the cubs inside their home until they were six or eight months old. Then they moved the cubs out of the house, at first to an enclosed porch in the back and ultimately to a cage Hranicky built in the yard. The tigers matured into adolescence. The male reached 250 pounds, the female slightly less. Lauren actively helped Hranicky care for the animals. By June 6, 1999, the tigers were two years old. Lauren was ten. She stood 57 inches tall and weighed 80 pounds. At dusk that evening, Lauren joined Hranicky in the tiger cage. Suddenly, the male tiger attacked her. It mauled the child's throat, breaking her neck and severing her spinal cord. She died instantly. The record reflects four different versions of the events that led to Lauren's death. Hranicky told the grand jury Lauren and he were sitting side-by-side in the cage about 8:00 p.m., petting the female tiger. A neighbor's billy goat cried out. The noise attracted the male tiger's attention. He turned toward the sound. The cry also caught Lauren's attention. She stood and looked at the male tiger. When Lauren turned her head toward the male tiger, "that was too much," Hranicky told the grand jury. The tiger attacked. Hranicky yelled. The tiger grabbed Lauren by the throat and dragged her across the cage into a water trough. Hranicky ran after them. He struck the tiger on the head and held him under the water. The tiger released the child. Kelly Dean Hranicky testified she was asleep when the incident occurred. She called for emergency assistance. Through testimony developed at trial, she told the dispatcher her daughter had fallen from a fence. She testified she did not remember giving that information to the dispatcher. However, police officer Daniel Torres, who responded to the call, testified he was told that a little girl had cut her neck on a fence. Hranicky gave Torres a verbal statement that evening. Torres testified Hranicky told him that he had been grooming the female tiger. He asked Lauren to come and get the brush from him. Lauren came into the cage and grabbed the brush. Hranicky thought she had left the cage because he heard the cage door close. Then, however, Hranicky saw Lauren's hand "come over and start grooming the female, start petting the female cat, and that's when the male cat jumped over." The tiger grabbed the child by the neck and started running through the cage. It dragged her into the water trough. Hranicky began punching the tiger in the head, trying to get the tiger to release Lauren. Justice of the Peace James Dawson performed an inquest at the scene of the incident. Judge Dawson testified Hranicky gave him an oral statement also. Hranicky told him Lauren went to the cage on a regular basis and groomed only the female tiger. He then corrected himself to say she actually petted the animal. Hranicky was "very clear about the difference between grooming and petting." Hranicky maintained that Lauren never petted or groomed the male tiger. Hranicky told Dawson that Lauren asked permission to enter the cage that evening, saying "Daddy, can I come in?" Sapp, the exotic animal owner who sold the Hranickys the tigers, testified Hranicky told him yet another version of the events that night. When Sapp asked Hranicky how it happened, Hranicky replied, "Well, Mickey, she just snuck in behind me." On the day of Hranicky's grand jury testimony, Hranicky admitted to Sapp he had allowed Lauren to enter the cage. Hranicky told Sapp he had lied because he did not want Sapp to be angry with him. Hranicky told the grand jury that Sapp and other knowledgeable sources had said "there was no problem in taking a child in the cage." He did learn children were especially vulnerable because the tigers would view them as prey. However, Hranicky told the grand jury, he thought the tigers would view Lauren differently than they would an unfamiliar child. He believed the tigers would not attack her, he testified. They would see her as "one of the family." Hranicky also told the grand jury the tigers' veterinarian allowed his young son into the Hranickys' tiger cage. Several witnesses at trial contradicted Hranicky's assessment of the level of risk the tigers presented, particularly to children. Sapp said he told the Hranickys it was safe for children to play with tiger cubs. However, once the animals reached forty to fifty pounds, they should be confined in a cage and segregated from any children. "[T]hat's enough with Lauren, any child, because they play rough, they just play rough." Sapp further testified he told the Hranickys to keep Lauren away from the tigers at that point because the animals would view the child as prey. He also said he told Lauren directly not to get in the cage with the tigers. Sapp did not distinguish between children who were strangers to the tigers and those who had helped raise the animals. He described any such distinction as "ludicrous." In fact, Sapp testified, his own two children had been around large cats all of their lives. Nonetheless, he did not allow them within six feet of the cages. The risk is too great, he told the jury. The Hranickys did not tell him that purchasing the tigers was Lauren's idea. Had he known, he testified, "that would have been the end of the conversation. This was not for children." He denied telling Hranicky that it was safe for Lauren to be in the cage with the tigers. Charles Currer, an animal care inspector for the United States Department of Agriculture, met Hranicky when Hranicky applied for a USDA license to exhibit the tigers. Currer also denied telling Hranicky it was permissible to let a child enter a tiger's cage. He recalled giving his standard speech about the danger big cats pose to children, telling him that they "see children as prey, as things to play with." On his USDA application form, Hranicky listed several books he had read on animal handling. One book warned that working with exotic cats is very dangerous. It emphasized that adolescent males are particularly volatile as they mature and begin asserting their dominance. Big cat handlers should expect to get jumped, bit, and challenged at every juncture. Another of the listed books pointed out that tigers give little or no warning when they attack. The book cautioned against keeping large cats such as tigers as pets. Veterinarian Dr. Hampton McAda testified he worked with the Hranickys' tigers from the time they were six weeks old until about a month before the incident. McAda denied ever allowing his son into the tigers' cage. All large animals present some risk, he testified. He recalled telling Hranicky that "wild animals and female menstrual periods . . . could cause a problem down the road" once both the animals and Lauren matured. Hranicky seemed more aware of the male tiger, the veterinarian observed, and was more careful with him than with the female. Robert Evans, the Curator of Mammals at the San Antonio Zoo, testified that it is zoo policy to enter a tiger's cage only after anesthetizing the animal. Otherwise, entering the cage is too dangerous. However, Evans conceded on cross-examination, these zoo policies are not known to the general public. James Boller, the Chief Cruelty Investigator for the Houston SPCA, testified that tigers, even those raised in captivity, are wild animals that act from instinct. Anyone who enters a cage with a conscious adult tiger should bring a prop to use as a deterrent. Never take one's eyes off the tiger, Evans told the jury. Never make oneself appear weak and vulnerable by diminishing one's size by crouching or sitting. Never bring a child into a tiger cage. The danger increases when the tigers are in adolescence, which begins as early as two years of age for captive tigers. Entering a cage with more than one tiger increases the risk. Entering with more than one person increases the risk further. Entering with a child increases the risk even more. Tigers' activity level depends on the time of day, Boller told the jury. They tend to be more active during the early morning, twilight, and late evening. Thus, the time of day one enters a cage also can increase the risk factor. Boller identified eight o'clock on a summer evening as a high activity time. A child should never enter a tiger cage in the first place, Boller testified. Taking a child into a tiger cage "during a high activity time for the animal is going to increase your risk dramatically." Dr. Richard Villafana, Lauren's biological father, told the jury he first learned of the tigers when his daughter told him over the phone she had a surprise to show him at their next visit. When he came to pick her up the following weekend, he testified, she took him into the house and showed him the female cub. Villafana described his reaction as "horror and generalized upset and dismay, any negative term you care to choose." He immediately decided to speak to Kelly Hranicky about the situation. He did not do so in front of Lauren, however, in an effort to avoid a "big argument." Villafana testified he later discussed the tigers with Kelly Hranicky, who assured him Lauren was safe. Villafana "always had lingering doubts," however. He did not learn of the second tiger until a month or two after he saw the first one. The jury heard that Villafana was not comfortable around either animal, but that he had a "little bit more fear" of the male than the female, as "the male tiger seemed much more aggressive or excitable." As the tigers matured, no one told Villafana the Hranickys allowed Lauren in the cage with them. Had he known, he "would have talked to Kelly again" and "would have told her that [he] was greatly opposed to it and would have begged and pleaded with her not to allow her in there." He spoke to his daughter about his concerns about the tigers "almost every time" he saw her. Kelly Hranicky told the jury Lauren was a very obedient child. Villafana agreed. Lauren would not have gone into the tiger cage that evening without Hranicky's permission.II. THE INDICTMENT AND JURY CHARGE CHALLENGES
Hranicky groups his fourth and fifth issues together. He complains that the trial court, not the prosecutor, physically interlineated amending language on the 'face of the indictment. He asserts that the amended indictment did not provide him ten days' notice before trial and charged a different offense than the original. He also argues he was entitled to ten days' notice between the State's second and third amendments. In his first issue, Hranicky contends the trial court abused its discretion in denying his motion to quash the indictment. In his sixth issue, he urges that the trial court erroneously charged the jury in the disjunctive when the State alleged in the conjunctive in the indictment.A. Procedural Background
The original indictment alleged:BOBBY LEE HRANICKY on or about the 6th day of June, A.D. 1999, and anterior to the presentment of this Indictment, in DeWitt County, Texas, did then and there recklessly and with criminal negligence by an act, cause serious bodily injury to LAUREN CASEY VILLAFANA, a child, by allowing the said LAUREN CASEY VILLAFANA to enter a cage occupied by two (2) Siberian Tigers, wherein one of the said tigers did attack LAUREN CASEY VILLAFANA by biting her and by grabbing her about the neck with his mouth and did thereby cause serious bodily injury to the said LAUREN CASEY VILLAFANA.On September 8, 1999, Hranicky filed a motion to quash the indictment, claiming:
the indictment fails to allege an offense with the degree of certainty that would give the defendant notice of the particular offense with which he is charged, fails to inform the defendant of the nature and cause of the accusation against him, and fails to state facts sufficient to ensure a bar to a subsequent prosecution for the same offense. Specifically, the indictment does not give notice of the reckless or negligent acts which allegedly caused the injury to a child. The allegation that "allowing" a child to enter a cage is criminal conduct does not give fair notice of the act defendant committed.On March 2, 2000, the State filed a motion for leave to amend the indictment. The trial court granted the motion on March 16, 2000. The order read:
The indictment is amended by omitting the word "Siberian," by changing the word "Tigers" to "tigers," and by changing "his" to "its" and the indictment will read in part ". . . cage occupied by two (2) tigers wherein one of the said tigers did attack LAUREN CASEY VILLAFANA by biting her and by grabbing her about the neck with its mouth . . ." in the charging paragraph.In open court, the trial court directed the prosecutor in interlineating the amended language. This first amendment to the indictment was not responsive to Hranicky's motion to quash. On April 6, 2000, Hranicky filed a brief in support of his motion to quash. The State responded on April 17, 2000. On April 19, 2000, the State filed a second motion for leave to amend the indictment:
by inserting into the indictment after the words "two (2) tigers" the following: ", by allowing the said LAUREN CASEY VILLAFANA to enter a cage occupied by two (2) tigers, by asking and directing her to assist the defendant in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage. . . ."On May 8, 2000, before the trial court held a hearing on the State's second motion to amend, the State filed a third motion, this time seeking to amend the indictment:
by inserting into the indictment after the words "two (2) tigers" the following: ", by asking and directing her to assist the said BOBBY LEE HRANICKY in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage. . . ."On May 11, 2000, after a hearing, the trial court ordered the indictment to be amended again, so that as amended it read in its entirety:
BOBBY LEE HRANICKY on or about the 6th day of June, A.D. 1999, and anterior to the presentment of this Indictment, in DeWitt County, Texas, did then and there recklessly and with criminal negligence by an act, cause serious bodily injury to LAUREN CASEY VILLAFANA, a child, by allowing the said LAUREN CASEY VILLAFANA to enter a cage occupied by two (2) tigers, by asking and directing her to assist the said BOBBY LEE HRANICKY in the cage, and by nodding his head in the affirmative when LAUREN CASEY VILLAFANA requested to enter the cage, and by verbally giving LAUREN CASEY VILLAFANA permission to enter the cage, and by walking towards LAUREN CASEY VILLAFANA to make sure a tiger did not go into the containment area and closed the door after LAUREN CASEY VILLAFANA entered the cage wherein one of the said tigers did attack LAUREN CASEY VILLAFANA by biting her and by grabbing her about the neck with his mouth and did thereby cause serious bodily injury to the said LAUREN CASEY VILLAFANA.In open court on May 11, 2000, in the presence of all parties after the trial court granted the State's motion to amend, the trial judge physically interlineated the amendments on the face of the indictment. Hranicky did not object to the procedure at the time. Also at the May 11th hearing on the State's motion to amend, defense counsel referenced Hranicky's motion to quash, stating:
Judge Kilgore ruled or considered — had under advisement the motion to quash. As a result of a — basically, a conditional ruling on our motion to quash, that is, he basically said, I think the indictment as written fails to give adequate notice under due process of what's charged. The State amended the indictment a second time.As a result, the trial court did not hear the motion to quash on May 11. Hranicky re-asserted the motion as a pretrial matter on May 22, 2000. At that time, he also objected to the procedure by which the trial judge had interlineated the State's amendments on the face of the indictment. Finally, he objected that the May 11 amendment did not give him the requisite ten days' notice. The trial court denied the motion to quash and overruled Hranicky's procedural objections. The jury panel was seated and sworn that day.
B. The Indictment Issues 1. Interlineation
"All amendments of an indictment or information shall be made with the leave of the court and under its direction." TEX. CODE CRIM. PROC. ANN. art. 28.11 (Vernon 1989). Physical interlineation of the original indictment is an acceptable means of effecting an amendment to an indictment. Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App. 2000). Article 28.11 does not specify who physically must make the interlineation. However, the court of criminal appeals expressed no concern when analyzing an interlineation to an amendment that "was apparently done by the trial court, although the initials [were] not entirely clear." Wright v. State, 28 S.W.3d 526, 531 n. 4 (Tex.Crim.App. 2000). We are not troubled by the procedure, either. Hranicky "need go no further than the 'face of the charging instrument' itself to be informed" of the charges against him, regardless of who wrote the amendments. See Knapp v. State, 942 S.W.2d 176, 184 (Tex. App.-Beaumont 1997, pet. ref'd.) (quoting Ward v. State, 829 S.W.2d 787, 793 n. 14 (Tex.Crim.App. 1992)). Moreover, we do not see how the involvement of the trial judge in making the interlineation personally instead of directing the prosecutor to do it affected Hranicky's substantial rights. See Tex.R.App.P. 44.2(b). We hold harmless any error in the trial judge's personal interlineation of the amendment on the face of the indictment. See id.2. Notice
"On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information." TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 1989). The computation of deadlines provided in the code of criminal procedure is controlled by the code construction act. Scott v. State, 634 S.W.2d 853, 854-55 (Tex.Crim.App. [Panel Op.] 1982). In computing a period of days, we exclude the first day. Tex. Gov't Code Ann. § 311.014(a) (Vernon 1988). We include the last day. Id. If the last day of any period is a Saturday, Sunday, or legal holiday, we extend the period to include the next day that is not a Saturday, Sunday, or legal holiday. TEX. GOV'T CODE ANN. § 311.014(b) (Vernon 1988). A trial on the merits commences when jeopardy attaches. Carpenter v. State, 952 S.W.2d 1, 6 (Tex. App.-San Antonio 1997), aff'd, 979 S.W.2d 633 (Tex.Crim.App. 1998). Jeopardy attaches when a jury is impaneled and sworn. Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1994, no pet.). The trial court interlineated the amendment on the face of the indictment on May 11, 2000. Excluding the first day and including the last, the tenth day fell on Sunday, May 21, 2000. Hranicky argues that section 311.014(b) extends the tenth day to Monday, May 22, 2000, the day the trial started with the impanelment and swearing of the jury. Thus, he concludes, the amendment gave him only nine days' notice before trial, not ten. Finally, he argues that violation of article 28.10(a) is reversible error not subject to a harm analysis, citing Sodipo v. State, 815 S.W.2d 551, 555 (Tex.Crim.App. 1990). However, Sodipo held that amendments on the date of trial violated subsection (b) of article 28.10, not subsection (a). See State v. Toney, 979 S.W.2d 642, 646 (Tex.Crim.App. 1998) (citing Sodipo, 815 S.W.2d at 554). The Sodipo court held that the error was not subject to a harm analysis. Sodipo, 815 S.W.2d at 554. Conducting a harm analysis, the court of criminal appeals reasoned, prevents giving effect to the full meaning and intent of an unambiguous statute. Toney, 979 S.W.2d at 646 (citing Sodipo, 815 S.W.2d at 554.). However, subsection (a) of article 28.10, unlike subsection (b), is subject to a harm analysis:The thrust of appellant's argument is that because he was not properly notified of the amendment to the indictment, he was entitled to no less than a ten-day period to address the change and prepare for trial. We need not determine whether the amendment to the indictment was indeed effective or whether the trial court erred in denying appellant ten days to prepare for trial. Rather, we hold that appellant was not harmed by these events. See TEX. R. APP. P. 44.2; Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997).Wright, 28 S.W.3d at 531-32. Likewise, we are unpersuaded that the timing of the amendment here affected Hranicky's substantial rights. See TEX. R. APP. P. 44.2(b). Only the calculation mandated by the interplay of article 28.10(a) with section 311.014(b) permits Hranicky to argue that the amendment gave him less than ten days' notice. In point of calendar fact, he received the full ten days. We hold harmless any error in the timing of the amendment. See Wright, 28 S.W.3d at 531-32. Also within the argument under his fourth and fifth issues, Hranicky asserts that the original indictment charged him with an omission. The amendment, he argues, improperly changed the offense to an act, entitling him to a re-indictment. "An indictment may not be amended over the defendant's objection as to form or substance if the amended indictment charges an additional or different offense or if the substantial rights of the defendant are prejudiced." TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (Vernon 1989). We first note that a "different offense," as article 28.10(c) uses the term, means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex.Crim.App. 1991). Injury to a child by act and injury to a child by omission are included in the same statutory offense. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003)). The original indictment charged Hranicky with reckless injury to a child by an act by allowing Lauren to enter the tiger cage. Hranicky sought to quash the indictment, complaining that the State did not provide adequate notice to him of the reckless act it relied on in charging him. The State amended to include specific allegations of the reckless acts it intended to prove. We conclude that the amendment did not allege a different or additional offense. See Flowers, 815 S.W.2d at 728. Nonetheless, even if an amendment did not charge an additional or different offense, it may be objectionable if it prejudices substantial rights of the accused. Flowers, 815 S.W.2d at 729. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). To determine if a substantial right has been violated, we look retrospectively and review the record. Flowers, 815 S.W.2d at 729. On this record, we cannot conclude that the amendment prejudiced Hranicky's substantial rights. Further, we note that the law of invited error estops a party from making an appellate error of an action it induced. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999); Gonzalez v. State, 115 S.W.3d 278, 286 (Tex. App.-Corpus Christi 2003, pet. ref'd). We conclude that Hranicky is estopped from complaining that the State amended the indictment to include the specific allegations of recklessness he requested. See Prystash, 3 S.W.3d at 531; see also Carpenter, 952 S.W.2d at 7 (finding amendment that conformed to accused's complaint was invited error and precluded appellant from complaining about it on appeal). Finally, also within the argument following his fourth and fifth issues, Hranicky complains he did not receive ten days' notice between the State's second and third amendments. He argues he is entitled to adequate time to compare the amendments and determine if they affect his substantial rights. He notes that a motion to amend cannot be served on the accused at the hearing on the motion, implying the contemplation of some right to preparation time. He suggests that ten days is a reasonable time. Hranicky cites no authority that requires the State to provide the accused study time to compare amendments. We have found none. We decline Hranicky's invitation to impose a timing requirement on the State's right to sequentially amend a charging instrument. We overrule Hranicky's fourth and fifth issues. We turn to his motion to quash.
3. Motion to Quash
In his first issue, Hranicky asserts that the indictment, even as amended, does not allege an offense. He argues that the State's use of the word "allowing" in the indictment charged him with an omission, not an act. Reckless injury to a child is an act of commission, he contends, not omission. Injury of a child by omission requires an allegation in the indictment that the accused had a duty to act. See Hawkins v. State, 910 S.W.2d 176, 179 (Tex. App.-Fort Worth 1995, no pet.). Hranicky concludes that the trial court should have quashed the indictment and dismissed the charges against him.a. Standard of Review
This Court reviews a trial court's ruling on a motion to quash an indictment under an abuse-of-discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. 1981) (en banc); Hankins v. State, 85 S.W.3d 433, 436 (Tex. App.-Corpus Christi 2002, no pet.). As a general rule, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App. 1996). The State need not allege facts that are merely evidentiary in nature. Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App. 1989).b. Recklessness
An accused is entitled to notice of the acts or omissions the State alleges the accused committed. Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App. 1988). When recklessness is an element of an offense, the charging instrument must allege, with reasonable certainty, the acts relied on to constitute recklessness. TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989). Article 21.15 imposes two requirements on a charging instrument alleging reckless misconduct. Hankins, 85 S.W.3d at 436 (citing State v. McCoy, 64 S.W.3d 90, 92 (Tex. App.-Austin 2001, no pet.)). First, the indictment must allege the act or acts relied on to constitute the forbidden conduct committed with recklessness. Hankins, 85 S.W.3d at 436. Second, the indictment must allege the acts or circumstances relied on to demonstrate that the forbidden conduct was committed in a reckless manner. Id. "[I]n no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence." TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989); see Hankins, 85 S.W.3d at 437. Here, the amended indictment alleged what acts constituted the forbidden conduct by alleging the acts of:asking and directing her to assist [him] in the cage, and by nodding his head in the affirmative when [she] requested to enter the cage, and by verbally giving [her] permission to enter the cage, and by walking towards [her] to make sure a tiger did not go into the containment area and closed the door after she entered the cage.We find that the indictment, as amended, alleged acts the State relied on to constitute the forbidden conduct Hranicky committed with recklessness. See TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989); see also Hankins, 85 S.W.3d at 436. Further, the amended indictment alleged not merely that Hranicky acted recklessly in causing serious bodily injury to the child, but that he did so by allowing her to "enter a cage occupied by two (2) tigers." We also find that the indictment, as amended, gave sufficient notice to Hranicky of the reckless manner in which he engaged in the prohibited conduct. See TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989); see also Hankins, 85 S.W.3d at 436.
c. Act or Omission
An "act" is "a bodily movement, whether voluntary or involuntary and includes speech." TEX. PEN. CODE ANN. § 1.07(a)(1) (Vernon 2003). An "omission" is a failure to act. TEX. PEN. CODE ANN. § 1.07(a)(34) (Vernon 2003). For his proposition that the indictment charges an omission and not an act and is therefore fatally defective, Hranicky relies on Herring v. State, 633 S.W.2d 905, 909 (Tex. App.-Dallas 1982), aff'd on other grounds, 659 S.W.2d 391 (Tex.Crim.App. 1983). The State charged the accused in Herring with "allowing" another man to touch his genitals. Id. The court of appeals found that the charging instrument charged the accused with not preventing the touching. Id. at 909. Since not preventing the touching is not an offense, the allegations did not charge a penal offense. Herring v. State, 659 S.W.2d 391, 392 (Tex.Crim.App. 1983) (en banc). Here, the State did not charge Hranicky with failing to prevent Lauren's entry into the tiger cage. As amended, the indictment charged Hranicky with acts that granted Lauren access to the cage. The appellants in Hill v. State made an argument similar to Hranicky's. See Hill v. State, 881 S.W.2d 897, 901 (Tex. App.-Fort Worth 1994), aff'd, 913 S.W.2d 581 (Tex.Crim.App. 1996). The State charged the Hills, parents of a 13-year-old boy, with intentional injury to a child by omission. At trial, the State proved they kept their son chained up and denied him food as punishment. Id. at 901. The son eventually starved to death. Id. at 903. On appeal, the Hills asserted that the State charged an omission but proved only their actions. Id. at 901-02. The court of appeals disagreed, characterizing the "appellant's argument [as] simply a battle waged in semantics." Id. at 902. Even though the evidence "may have been sufficient to support a conviction for injury to a child by actions," the Hill court concluded, "it does not prevent the State from establishing the offense of injury to a child by omission." Id. The State proved that the Hills acted in restraining their child and also failed to act by not providing adequate nourishment. Id. at 902-93. Applying the rationale of Hill to this case, the State had the option of choosing whether to charge Hranicky with injury to a child by act or omission. See id. While there may be sufficient evidence to support a conviction of injury to a child by omission, it does not prevent the State from establishing the offense of injury to a child by action. See id. Thus, while Hranicky might have failed to act by not preventing Lauren's entry into the tiger cage, he also acted by asking her to assist him in the cage, or by affirmatively giving her permission to enter the cage by either nodding his head, verbally granting entry, or by closing the gate after Lauren entered the cage. See id. We conclude that the indictment, as amended, charged Hranicky with reckless acts, not an omission. Accordingly, it was unnecessary for the State to allege Hranicky had a duty to act. Finally, we note that the amended indictment substantially tracks the language of section 22.04 of the penal code. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900 § 1.01, sec. 22.04, 1993 Tex. Gen. Laws 3622-23, 3766 (current version at TEX. PEN. CODE ANN. § 22.04(a)(1) (Vernon 2003)). Alternate pleading of the differing methods of committing an offense may be charged in one indictment. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim. App. 1991). We find that the amended indictment was sufficient to apprise Hranicky of the offense with which he was charged. See Daniels, 754 S.W.2d at 217. We also find that the amended indictment set forth in plain and intelligible language sufficient information to enable Hranicky to prepare his defense. See id. Accordingly, we hold that the trial court did not abuse its discretion in denying his motion to quash. See Hankins, 85 S.W.3d at 436. We overrule Hranicky's first issue.C. The Jury Charge
In the relevant portion of the charge, the trial court asked the jury if Hranicky:did then and there recklessly, by an act, cause serious bodily injury to Lauren Casey Villafana, a child, by allowing the said Lauren Casey Villafana to enter a cage occupied by two (2) tigers, by asking or directing her to assist the said Bobby Lee Hranicky in the cage, or by nodding his head in the affirmative when Lauren Casey Villafana requested to enter the cage, or by verbally giving Lauren Casey Villafana permission to enter the cage, wherein. . . .[Emphasis added.] The jury charge tracked the allegations in the amended indictment that found support in the evidence. The trial court may charge the jury in the disjunctive even if the indictment alleges in the conjunctive. See Kitchens, 823 S.W.2d at 258. We hold there is no error in the disjunctive charge. See id. We overrule Hranicky's sixth issue.