Chapter 22
Assaultive Offenses
22.17 Instruction—Endangering Child by Act
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of endangering a child.
Relevant Statutes
A person commits the offense of endangering a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than fifteen years old in imminent danger of death, bodily injury, or physical or mental impairment.
A person acts intentionally as required by this offense if the person had the conscious objective or desire to engage in the conduct that constitutes the crime.
A person acts knowingly as required by this offense if the person was aware that his conduct was the conduct constituting the crime.
[Include the following if raised by the evidence.]
Presumption of Prohibited Conduct
The law provides for a presumption that you may wish to apply in this case. This presumption can apply only if you find that the state has proved, beyond a reasonable doubt, that the defendant possessed [or in any way introduced into the body of any person] the controlled substance methamphetamine in the presence of the child.
If you find that the state has proved, beyond a reasonable doubt, that the defendant possessed [or in any way introduced into the body of any person] the controlled substance methamphetamine in the presence of the child, then you may infer from this that the defendant engaged in conduct that placed the child in imminent danger of death, bodily injury, or physical or mental impairment. You are not, however, required to infer or find this from the fact that the defendant possessed [or in any way introduced into the body of any person] the controlled substance methamphetamine in the presence of the child.
If you have a reasonable doubt whether the defendant possessed [or in any way introduced into the body of any person] the controlled substance methamphetamine in the presence of the child, the presumption does not arise or apply. In that case, you will not consider this presumption for any purpose.
If you conclude you cannot apply the presumption or you choose not to apply it, you must still consider whether—without reference to the presumption—the state has proved, beyond a reasonable doubt, that the defendant engaged in conduct that placed the child in imminent danger of death, bodily injury, or physical or mental impairment.
In any case, if you apply this presumption and conclude by using this presumption that the state has proved the defendant engaged in conduct that placed the child in imminent danger of death, bodily injury, or physical or mental impairment, you must still find without using this presumption that the state has proved the remaining elements that it must prove. These remaining elements are that (1) the defendant acted intentionally, knowingly, recklessly, or with criminal negligence, and (2) the defendant’s conduct was not a voluntary delivery of the child to a designated emergency infant care provider.
Definitions
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.
Designated Emergency Infant Care Provider
“Designated emergency infant care provider” means—
- an emergency medical services provider;
- a hospital;
- a freestanding, licensed emergency medical care facility; or
- a child-placing agency licensed by the Department of Family
and Protective Services that—
- agrees to act as a designated emergency infant care provider; and
- has on staff a person who is licensed as a registered nurse and who will examine and provide emergency medical services to a child taken into possession by the agency.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], [insert specific allegations, e.g., struck [name] with his hand while [name] was holding [name]];
- this conduct placed [name] in imminent danger of death, bodily injury, or physical or mental impairment;
- the defendant acted intentionally, knowingly, recklessly, or with criminal negligence; and
- the defendant’s conduct was not a voluntary delivery of [name] to a designated emergency infant care provider.
You must all agree on elements 1, 2, 3, and 4 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the four elements 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.]
Required Culpable Mental State. The major question in drafting an instruction for this section of the Penal Code is whether the required culpable mental states (intentionally, knowingly, recklessly, or with criminal negligence) apply only to the “nature of conduct” element. They may also apply to what is in effect a “result of conduct” element—that the child was in fact exposed to an unreasonable risk of harm.
In Walker v. State, 95 S.W.3d 516, 520–21 (Tex. App.—Fort Worth 2002, pet. ref’d), the court of appeals indicated:
The language of section 22.041(c) is unambiguous and expresses a clear legislative intent that a person commits the offense of child endangerment if he intentionally or knowingly “engages in conduct” that places a child in imminent danger of death, bodily injury, or physical or mental impairment. The statute does not require proof that the person intend or know that his conduct places the child in such imminent danger. Contreras v. State, 54 S.W.3d 898, 905–06 (Tex. App.—Corpus Christi 2001, no pet.). To interpret the statute in such a manner would require us to give it a meaning its language does not support.1 We refuse to do this.
1. We recognize that the Austin Court of Appeals has noted in dicta that endangering a child is a “result of conduct” crime. Millslagle v. State, 81 S.W.3d 895, 897 n.1 (Tex. App.—Austin 2002, pet. filed). In reaching this conclusion, however, we believe the court ignored the plain language of the statute and mistakenly relied on Beggs v. State, a decision of the court of criminal appeals interpreting a different statute. Id.; see Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. [Panel Op.] 1980). In Beggs, the court of criminal appeals construed the predecessor to section 22.04, the injury to a child statute, in light of the statute’s legislative history. 597 S.W.2d at 377. Because section 22.04 and section 22.041(c) are separate and distinct offenses, Beggs and its rationale is inapplicable.
In Teeter v. State, No. 05-06-00309, 2007 WL 510356, at *5 n.1 (Tex. App.—Dallas Feb. 20, 2007, no pet.) (not designated for publication), the Dallas court of appeals noted that the Fifth Circuit has indicated that the courts of appeals are split on the issue. Teeter, however, concluded: “The statute does not require proof that the defendant intentionally, knowingly, recklessly, or with criminal negligence desires to place a child in imminent danger and creates that danger by his conduct.” Teeter, 2007 WL 510356, at *5.
Under the approach of Walker and Teeter, the offense is a “nature of conduct” offense and the required culpable mental state applies to the conduct element—the unspecified act or omission that places the child in danger.
The problem with the analysis accepted in Walker and Teeter is that it may not be provided for in Penal Code section 6.03, which defines the “culpable mental states.”
Under Walker and Teeter, any of the four culpable mental states distinguished in section 6.03 can apply to the “nature of conduct” element of section 22.041(c). Subsections 6.03(a) and 6.03(b) make provision for intentionally and knowingly to apply to “the nature of the conduct.” Subsections 6.03(c) and 6.03(d), in contrast, make no such provision but set out definitions that assume those culpable mental states apply only to “circumstances surrounding [the] conduct” or “the result of [the] conduct.”
There is an argument that the legislature could not have intended that a crime be interpreted in a manner that requires a definition for which no provision is made in section 6.03.
If section 22.041(c) is construed to mean that the culpable mental states apply only to the “result of conduct” element—that the child be placed in danger—then section 6.04 can be applied to the offense. The definitions of all four culpable mental states contain provisions for them to apply to “the result of [the] conduct” elements.
The case law does not address this problem with implementing the approach accepted in Walker and Teeter.
Under the Model Penal Code, recklessness and criminal negligence are defined in ways that do not distinguish among kinds of elements. Thus those culpable mental states should be applicable to conduct elements as well as others. See Model Penal Code § 2.02 (Proposed Official Draft 1962).
The above instruction assumes that the Walker-Teeter approach is the appropriate one. It provides a relatively meaningless definition of intentionally and knowingly as applied to the conduct. It then simply ignores that recklessness and criminal negligence cannot be used despite the statutory language.
A strong argument can be made that the Millslagle dicta by the Austin court of appeals was correct. The focus of the crime is clearly not on what the accused did or did not do. Rather, it is on the result—the placing of the child in danger.
Following the approach of the Millslagle dicta would make sound policy sense. It would also avoid the embarrassment of assuming the legislature made a mistake, either in the definition of this offense or in the definitions of recklessness and criminal negligence.
Comment
Endangering a child by act is prohibited by and defined in Tex. Penal Code § 22.041(c). 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 “designated emergency infant care provider” is derived from Tex. Fam. Code § 262.301. Additional definitions of “freestanding emergency medical care facility” and “emergency care” that may be relevant in a given case may be found in Tex. Health & Safety Code § 254.001 and Tex. Ins. Code §§ 843.002, 1301.155.