holding injury to a child is a result of conduct offense and “act or omission” comprising the course of conduct statutory element does not require jury unanimity in part because it would be “‘absurd’ to set appellant free because, for example, six jurors may have believed that he struck the fatal blow to the child while six other jurors may have believed that he failed to pick up the phone and call 9-1-1 to seek medical help for a child who was obviously very seriously injured and in great distress.”
How later courts described this case
- holding injury to a child is a result of conduct offense and “act or omission” comprising the course of conduct statutory element does not require jury unanimity in part because it would be “‘absurd’ to set appellant free because, for example, six jurors may have believed that he struck the fatal blow to the child while six other jurors may have believed that he failed to pick up the phone and call 9-1-1 to seek medical help for a child who was obviously very seriously injured and in great distress.”
- stating, in injury-to-a-child case, that the essential element or focus of that statute is the result (injury) and not the possible combinations of conduct that cause the result and that dispensing with unanimity on the means does not violate due process because the acts or omissions that combine to establish the offense are “basically morally and conceptually equivalent”
- holding unanimity regarding manner or means of committing offense not required where “focus of the statute is the result of the defendant’s conduct (in this case, serious bodily injury to a child) and not the possible combinations of conduct that cause the result”
- concluding that jury could be charged disjunctively where statute did not define “act or omission” as a specific element of the offense and where the evidence supported three separate bases for finding that the defendant caused injury to a child
Written by the judges who cited it.
The opinion
COCHRAN, J.,
filed a concurring opinion, in which PRICE and JOHNSON, JJ., joined.
I join the majority opinion. I write separately only because the resolution of cases of this nature may not be intuitively obvious to the discerning reader, except perhaps to one’s eighth-grade English teacher who is accustomed to parsing sentences and diagraming adverbial phrases.
As the majority correctly holds, the unanimity requirement is directed toward that act which makes the conduct criminal. To determine the forbidden conduct, we look to the statute defining the penal offense. In defining the offense of injury to a child, the legislature (perhaps inelegantly) stated:
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury. 1
To determine what conduct the jury must be unanimous about, we look for the main (transitive) verb in the statute. It is “causes.” Because the verb “causes” requires a direct object, the full description of the prohibited conduct, under section 22.04(a)(1) as alleged in this case, is “causes serious bodily injury.” The other elements that require unanimity are: the defendant; the person who suffered serious bodily injury; and the specific occasion on which the act occurred (usually designated by a given date, but, as recent cases have shown, this element is a moveable feast). 2
*315 But, one might reasonably ask, aren’t “striking Raysate Knight with his foot,” “causing Raysate Knight’s head to strike an unknown object,” “failing to intercede or stop the physical abuse of Raysate Knight by Connie Knight,” and “failing to provide proper medical care to Raysate Knight,” all very different acts? Yes, of course they are. But the specifics of how the defendant caused serious bodily injury are not the gravamen of the offense and not the statutorily prohibited conduct. In this statute, the legislature was concerned about the result of the defendant’s conduct; he caused serious bodily injury. It really doesn’t matter, for purposes of criminal liability, how he did it. He may have done it with an affirmative act; he may have done it by failing to act when he should have acted. He may have hit her, bitten her, poisoned her, or failed to stop someone else from hitting her, biting her, or poisoning her. It would be nice to know exactly what the defendant did— precisely what act he performed or failed to performed that caused serious bodily injury — but the legislature did not predicate criminal liability for injury to child on the specific act the defendant performed. It is enough, for purposes of criminal liability, that the defendant did “something” or failed to do “something,” and that act, whate'er it may be, caused serious bodily injury.
Returning to our eighth-grade English teacher, how does she know the distinction between the “main” verb which defines the prohibited conduct and to which the jury unanimity requirement applies, and descriptive phrases that define the “manner and means” by which the defendant commits the prohibited act? Usually, those descriptive averments are adverbial phrases introduced by the preposition “by.” Thus, “by striking Raysate Knight with his foot,” “by causing Raysate Knight’s head to strike an unknown object,” “by failing to intercede or stop the physical abuse of Raysate Knight by Connie Knight,” and “by failing to provide proper medical care to Raysate Knight,” are all adverbial phrases describing precisely how the defendant caused serious bodily injury to Raysate. 3
The use of the prepositional word “by” in either a statute or an indictment is a tip-off that probably (eighth-grade teachers are rarely dogmatic and always leave the door open for idiosyncracies) 4 the phrase will be a description of how the offense was committed. But that phrase is not the gravamen of the offense, and it is not the legislative definition of the prohibited conduct for which jury unanimity is required.
In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a rea *316 sonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific incident regardless of the date alleged 5 ). Generally, adverbial phrases, introduced by the preposition “by,” describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.
With these comments, I join the majority opinion.
. Tex. Penal Code § 22.04.
. See Rodriguez v. State, 104 S.W.3d 87, 90-91 (Tex.Crim.App.2003) (holding that when the indictment alleges only one occurrence of delivery of a controlled substance, the State may introduce other instances of controlled sub *315 stance deliveries to the same person under the theory that the deliveries are part of the charged offense); see also Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App.1997); Rankin v. State, 953 S.W.2d 740 (Tex.Crim.App.1996).
. See, e.g., Ngo v. State, 175 S.W.3d 738, 746, n. 27 (Tex.Crim.App.2005) (noting that the gravamen of the offense of murder, on which the jury must be unanimous, is causing the death of a person, such as Rasputin; but the jury need not be unanimous on the manner and means — "by poisoning, garroting, shooting, stabbing, or drowning” — of how Prince Yussupov caused Rasputin's death).
. For example, the legislature could have written the injury to a child statute in a particularly inelegant way:
A person commits the offense of injury to a child by causing serious bodily injury to a child.
In that case, of course, the gravamen of the offense is still "cause serious bodily injury" because that is still the prohibited conduct and it is still the main verb defining the conduct.
. See, e.g., O’Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App.1988).