holding that defendant recklessly caused serious bodily injury by failing to call 9-1-1 and identify her boyfriend as the violent kidnapper of her children
How later courts described this case
- holding that defendant recklessly caused serious bodily injury by failing to call 9-1-1 and identify her boyfriend as the violent kidnapper of her children
- “[I]n most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.”
- appellant could hear child’s screams and did not call 911 for more than 6 hours
- where jury authorized to convict on more than one theory, general verdict of guilt may be sustained if evidence supports conviction under at least one theory
Written by the judges who cited it.
The opinion
*308 LIVINGSTON, Justice
dissenting.
I respectfully dissent. The majority opinion clearly lays out the three theories of responsibility tried by the State in proving the offense of knowingly, by omission, causing serious bodily injury to a child under Texas Penal Code Section 22.04(a)(1). Tex. Penal Code Ann. § 22.04 (a)(1) (Vernon Supp.2001). However, it justifies its determination of legal insufficiency on only two of the trial theories: omission by failure to report to law enforcement authorities and summon aid immediately after Woods took Sarah and James (second theory) and by failure to disclose Woods’ identity to law enforcement authorities the next morning when appellant finally reported them missing (third theory). The majority concludes that because there is no evidence from which to infer appellant knew with reasonable certainty that the sheriffs department would have intervened in a timely manner to prevent the injuries had she called 911 immediately or later informed them of Woods’ identity, her omission was not a “knowing” omission.
While I disagree with the majority’s conclusions as to these two theories, more importantly, I believe there is legally sufficient evidence to support the State’s first theory of responsibility based on appellant’s failure to come to the aid of Sarah and James while they were being assaulted in the house before they were kidnapped. Because we are required to review the evidence in the light most favorable to the jury’s verdict, we are required to accept as true that appellant heard the assault on her children as it was taking place. If she heard the assault, then the evidence is sufficient to conclude the appellant knew with reasonable certainty that if she failed to act it was done so with awareness that serious bodily injury was reasonably certain to result. Dusek v. State, 978 S.W.2d 129, 134 (Tex.App.—Austin 1998, pet refd). I do not believe that the State was required to show that if appellant had intervened at that time she thought it would be a successful intervention, but only that if she failed to intervene she knew, with reasonable certainty the result, the serious bodily injury, would not be avoided. The majority requires too much when it says that she must have known with reasonable certainty the injury would not result “but for” her conduct. I also believe that is a mis-characterization of the State’s position and section 6.04(a) of the penal code. Tex. Penal Code Ann. § 6.04 (a). According to Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986) (op. on reh’g), the “but for” requirement of 6.04 is met if the defendant’s conduct and the other cause together may be sufficient to have caused the harm.
Because I believe the evidence supports the jury’s finding of guilt by omission in failing to render aid when it might have made a difference, I respectfully dissent.