Comment

The homicide offenses require proof that the accused caused the death of “an individual.” “Individual” is defined by Tex. Penal Code § 1.07(a)(26) as including “an unborn child at every state of gestation from fertilization until birth.” If the indictment alleges the victim of the charged offense was an unborn child, the instructions must incorporate that specification of the charging instrument. Often this will require that the application portion of the instruction specify that the defendant must be proved to have caused the death of “an unborn child of [name of mother] while that unborn child was in gestation of [name of mother].” This sort of description of this kind of victim in the charging instrument is apparently adequate to provide the accused with the required notice. Lawrence v. State, 240 S.W.3d 912, 916–17 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1007 (2008).

Section 1.07(a)(49) further defines “death,” as applied to an unborn child, as “the failure to be born alive.” This definition would be properly included in a homicide case in which the victim is an unborn child.