Comment

The issues posed by Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), concerning transferred intent and mistake of fact are addressed elsewhere in this product. This chapter makes no effort to incorporate any aspect of Thompson in the instructions. See chapter 6 of this product for a discussion of these issues.

Culpable Mental State. The case law indicates that the explicitly required culpable mental state in Texas Penal Code section 22.04 applies only to the result—the injury to the victim. E.g., Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985). Under this approach, it would not apply to the conduct by which the evidence shows the defendant caused the injury. This is probably of no practical consequence, since it is very unlikely the evidence would show that a defendant intended injury but not the conduct by which he caused that injury, e.g., striking with his fist.

When the indictment alleges serious bodily injury, must the culpable mental state apply to the seriousness of the injury as well as to its occurrence? The case law does not address this. Thompson, 236 S.W.3d 787, and other decisions seem to assume that it does. Certainly the statutory framework suggests this is so, since the statute makes elaborate provision for grading the offenses depending on the injuries inflicted and the culpable mental states with which the defendant acted.

Defenses. Texas Penal Code section 22.04 provides for several defenses and affirmative defenses specific to this offense or, in some situations, specific to this offense as charged in some specific ways:

1. medical care by or under the direction of a physician (defense) (section 22.04(k)(1));
2. emergency medical care (defense) (section 22.04(k)(2));
3. religious treatment (affirmative defense) (section 22.04(l)(1));
4. family violence (affirmative defense) (section 22.04(l)(2));
5. minimal age difference (affirmative defense) (section 22.04(l)(3)); and
6. “notice” defense to failure to act (affirmative defense) (section 22.04(i)).

The defenses of medical care by a physician and emergency medical care are worked into the elements of the offense in the instruction at CPJC 22.9. This seemed the most economical way to provide for them. Both defenses are quite simple; they are both just “defenses” (rather than affirmative defenses), and providing a separate unit of the instructions for them seemed to be unnecessary. The three affirmative defenses that apply to section 22.04 generally—religious treatment, family violence, and minimal age difference—are provided for separately; see CPJC 22.14 through CPJC 22.15. The affirmative defense of notice applies only to the offense of serious bodily injury to a child by omission when the duty is created by an assumption of care, and therefore that defense is included only in the instruction at CPJC 22.12.

Injury to Elderly or Disabled Individual. The following instructions are written for fact situations involving a child. The instructions may be modified for fact situations covered by Texas Penal Code section 22.04 involving an elderly or disabled individual by substituting the appropriate definitions from the statute.

Offense Involving Institutional Care Facility. The following instructions may be modified for fact situations involving an owner, operator, or employee of an institutional care facility, as governed by Texas Penal Code section 22.04(a–1), by substituting the appropriate definitions from the statute.