Chapter 22
Assaultive Offenses
22.18 Instruction—Abandoning Child—State Jail Felony
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of abandoning a child.
Relevant Statutes
A person commits the offense of abandoning a child if, having custody, care, or control of a child younger than fifteen years old, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
Such abandonment is not an offense if it consists of a voluntary delivery of the child to a designated emergency infant care provider.
A person is aware of the circumstances of an abandonment when the person knows that those circumstances exist.
Definitions
Abandon
“Abandon” means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.
[Include the following if raised by the evidence.]
Custody, Care, or Control
A person has assumed custody, care, or control of a child if the person has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for the child.
[Include the following if raised by the evidence.]
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.
Intentionally Leaving a Child in Any Place
A person intentionally leaves a child in a place if the person has the conscious objective or desire to leave the child in that place.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, seven elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally abandoned [name], a child, by intentionally leaving [name] in any place without providing reasonable and necessary care for [name];
- [name] was younger than fifteen years old;
- the defendant had, at the time, custody, care, or control of [name];
- no reasonable, similarly situated adult would have left a child of [name]’s age and ability under the circumstances;
- the circumstances of the abandonment exposed [name] to an unreasonable risk of harm;
- the defendant was aware of the circumstances of the abandonment; and
- the defendant’s abandonment of [name] was not a voluntary delivery of [name] to a designated emergency infant care provider.
You must all agree on elements 1 through 7 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 7 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the seven 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.]
Definition of “Custody, Care, or Control.” Section 22.041 contains no definition of the phrase custody, care, or control of a child. Section 22.04, “Injury to a Child, Elderly Individual, or Disabled Individual,” contains a provision—section 22.04(d)—setting out when a person has assumed “care, custody, or control” of a person protected by that section.
In Rey v. State, 280 S.W.3d 265 (Tex. Crim. App. 2009), the court of criminal appeals announced:
The purpose of both § 22.04 and § 22.041 is protection of vulnerable individuals. We may reasonably conclude that the clear, unambiguous language that defines “care, custody, and control” in § 22.04 is equally applicable to the same phrase in § 22.041, the immediately following statute. We hold that the proper meaning of the phrase “custody, care, or control” in § 22.041(b) is the same as that of § 22.04(d): “the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child . . . .”
Rey, 280 S.W.3d at 268. Rey was not a jury instruction case, so it raises the question of whether the holding applies to the jury instructions. Of course, in a section 22.04 case the statutory definition is included in the instructions. There seems no reason to believe the same would not be the case in a section 22.041(b) prosecution under Rey.
Approach of These Instructions. To assure that all the required circumstances were in the elements of the offense, the Committee inserted the elements of “abandons” into the statement of the offense but included the statutory term abandons. Thus the offense basically requires proof that the defendant intentionally abandoned a child by intentionally leaving that child in any place.
The literal terms of the statute purport to require for the state jail felony that the defendant have abandoned the child with intent to return for the child. See Tex. Penal Code § 22.041(d)(1). This provision is, however, a negative element that does not impose a meaningful obligation on the state. This is because the third-degree felony offense requires proof that the defendant lacked the intent to return for the child. The legislature could not have meant to require acquittal of a defendant if the state fails to show either lack of intent to return or intent to return.
Comment
The term abandon is defined in Tex. Penal Code § 22.041(a). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. 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.
Statutory Scheme. The statutory scheme is somewhat confusing. If the state simply alleges the elements as set out in Texas Penal Code section 22.041(b), the offense is a state jail felony. Section 22.041(d)(1) suggests that a state jail felony offense requires proof of intent to return. In fact, however, the only way to distinguish the third-degree felony offense under section 22.041(d)(2) is to treat the third-degree felony offense as requiring proof that at the time of the abandonment the defendant did not have the intent to return for the child.
If the state alleges the section 22.041(b) elements and no intent to return, then under section 22.041(d)(2) the offense is a third-degree felony.
If the state alleges the section 22.041(b) elements and that the abandonment was done under the circumstances set out in section 22.041(e) (ones “that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment”), the offense is a second-degree felony.