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Chapter 22

Charges

Chapter 22

Assaultive Offenses

22.12  Instruction—Serious Bodily Injury to Child by Omission—Duty Created by Assumption of Care, Custody, or Control with “Notice” Defense

LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of injury to a child by omission.

Relevant Statutes

A person commits the offense of injury to a child by omission if the person intentionally or knowingly by omission causes serious bodily injury to a child.

A person’s omission that causes serious bodily injury to a child may constitute an offense only if the person has assumed care, custody, or control of the child.

Definitions

Assumes Care, Custody, and Control

A person “assumes care, custody, or control” of a child if the person by act, words, or course of conduct acts so as to cause a reasonable person to conclude that the person has accepted responsibility for protection, food, shelter, and medical care for the child.

Bodily Injury

“Bodily injury” means physical pain, illness, or any impairment of physical condition.

Serious Bodily Injury

“Serious bodily injury” means injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Intentionally Causing Serious Bodily Injury

A person intentionally causes serious bodily injury to a child if the person has the conscious objective or desire to cause that serious bodily injury to the child.

Knowingly Causing Serious Bodily Injury

A person knowingly causes serious bodily injury to a child if the person is aware that his conduct is reasonably certain to cause that serious bodily injury to the child.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, five elements. The elements are that—

  1. the defendant—
    1. assumed care, custody, or control of [name]; and
    2. failed to provide medical care;
  2. the defendant, in [county] County, Texas, on or about [date], by this failure to provide medical care caused injury to [name];
  3. [name] was a child fourteen years old or younger;
  4. the bodily injury caused was serious bodily injury; and
  5. the defendant—
    1. intended to cause serious bodily injury to [name]; or
    2. knew he would cause serious bodily injury to [name].

You must all agree on elements 1 through 5 listed above, but you do not have to agree on the culpable mental states listed in elements 5.a and 5.b above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 5 listed above, you must find the defendant “not guilty.”

[Select one of the following.]

If you all agree the state has proved, beyond a reasonable doubt, each of the five elements listed above, you must find the defendant “guilty.”

[or]

If you all agree the state has proved, beyond a reasonable doubt, each of the five elements listed above, you must next consider whether the defendant is not guilty because of the [affirmative] defense of notice.

Notice

It is [a/an] [affirmative] defense to the offense of injury to a child by omission that—

  1. the defendant gave notice that the defendant would no longer provide protection, food, shelter, and medical care for the child to either—
    1. the Department of Family and Protective Services in writing that included the defendant’s name and address, the child’s name and address, the type of care provided by the defendant, and the date the care was discontinued; or
    2. the child in person and in writing to the [parents of the child/person, other than the defendant himself, acting in loco parentis to the child]; and
  2. this was done before the injury to [name] occurred.

Burden of Proof

[Choose one of the following.]

Notice is an affirmative defense. That means the burden is on the defendant to prove notice by a preponderance of the evidence.

[or]

The burden is on the defendant to prove notice by a preponderance of the evidence.

Definitions

Preponderance of the Evidence

The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.

[Include the following if raised by the evidence.]

Person Acting In Loco Parentis

The term “person acting in loco parentis” means a person acting in the place of a parent.

Application of Law to Facts

To decide the issue of notice, you must determine whether the defendant has proved, by a preponderance of the evidence, two elements. The elements are that—

  1. the defendant gave notice that the defendant would no longer provide protection, food, shelter, and medical care for [name] to either—
    1. the Department of Family and Protective Services in writing that included the defendant’s name and address, [name]’s name and address, the type of care provided by the defendant, and the date the care was discontinued; or
    2. [name] in person and in writing to the [parents of name/person, other than himself, acting in loco parentis to name]; and
  2. this was done before the injury to [name] occurred.

If you all agree the defendant has proved, by a preponderance of the evidence, both elements of the affirmative defense of notice listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of injury to a child, and you all agree the defendant has not proved, by a preponderance of the evidence, both elements of the affirmative defense of notice listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

Injury to a child and other offenses are prohibited by and defined in Tex. Penal Code § 22.04. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46).

The definition of “in loco parentis” is based on the discussion in Rey v. State, 280 S.W.3d 265, 269 (Tex. Crim. App. 2009). The issue in Rey concerned the scope of the requirement for “custody, care, or control” in Tex. Penal Code § 22.041 (abandoning or endangering a child) and held that one acting in loco parentis has greater responsibilities than one “who has at least temporary ‘care, custody, or control.’ ” Rey, 280 S.W.3d at 269.

“Notice” Defense and 2017 Amendments. The defense in Tex. Penal Code § 22.04(i) applies when the defendant initially assumed care of a child or elderly or disabled person but (before the injury by omission occurred) gave written notice to the parents or the Texas Department of Family and Protective Services that he would no longer provide care. The statute does not expressly require that the department already be involved in the case before notice to the department will excuse the offense.

There is also some question whether the particular written notice requirements set out in section 22.04(j) apply when notice is given to parents rather than the department. Before subsection (i) was amended in 2017, the defense required one mandatory provision (i)(1)—in person notice to the child—and one of two alternatives: written notice to the parents (or person acting in loco parentis) ((i)(2)) or written notice to the Texas Department of Family and Protective Services ((i)(3)). Subsection (j) required that the written notice in (i)(2) and (i)(3) set out certain items.

The 2017 amendment to subsection (i) reorganized the statute so that notice is sufficient if made in one of two ways: in person to the child and in writing to the parents or person acting in loco parentis (under (i)(1)) or in writing to the department (under (i)(2)).

There is no longer a subsection (i)(3). The amendment, however, did not change subsection (j). It reads:

Written notification under Subsection (i)(2) or (i)(3) is not effective unless it contains the name and address of the actor, the name and address of the child, elderly individual, or disabled individual, the type of care provided by the actor, and the date the care was discontinued.

Tex. Penal Code § 22.04(j). Written notice to the department requires the particulars in subsection (j) since notice to that agency was requirement (i)(3) under the former statute and is requirement (i)(2) under the amended statute. However, the plain language of (j) does not currently seem to apply to the written notice to the parents or person acting in loco parentis. The instruction reflects this.

Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.

Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word affirmative from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.