Hill v. State

MEYERS, Judge,

concurring.

I agree with the dissent that omission to perform a duty imposed by law never constitutes the use of a deadly weapon. It does not follow, however, that a deadly weapon can never be used or exhibited during commission of an offense which has as an essential element the omission to perform a duty imposed by law. Moreover, even were we to hold that a deadly weapon is not used or exhibited during the commission of an offense unless its use or exhibition somehow facilitates commission of that offense, it would still not follow that a deadly weapon can never be used to facilitate an offense of omission. The instant cause is a perfect example.

The appellants in this case starved one of their children to death. They did it slowly over a period of more than a year by preventing him from obtaining food. At first, they simply ordered him not to eat, but when hunger at last overcame his fear of reprisal, he secretly stole food from the kitchen. Appellants soon discovered his scheme, however, and he was thereafter chained up until he lapsed into a coma and finally died.

As is so often the case in our society of complex laws, the appellants’ conduct violated a number of penal statutes. The State chose to prosecute them for violating section 22.04 of the Penal Code, a crime known popularly as Injury to a Child. This statute *587 makes it a felony to cause serious physical or mental deficiency or impairment, disfigurement, deformity, or serious bodily injury to a child younger than fifteen years of age. It is a crime to cause such injury whether it is done by act or by omission. The difference is that an act is “a bodily movement, whether voluntary or involuntary, and includes speech” while an omission is a “failure to act.” Penal Code § 1.07(a)(1), (34). In the present context, it is the difference between keeping from food and not feeding.

Clearly, appellants could have been charged and convicted for injuring their son under either theory (perhaps even both theories), since the evidence is easily sufficient to prove both that they did not give him food and that they actively prevented him from getting food for himself. The indictment, however, charged only that they injured him “by omission” in that they “fail[ed to provide [him with] food.” The dissent intimates rather strongly that, had appellants instead been charged with injuring their child by the act of tying him up, the proof would have been sufficient to show that a deadly weapon was used during commission of the offense. But because appellants were not charged with the “act” of starving their son, the dissent maintains that the jury’s finding of deadly weapon use was irrational.

I do not agree. We must bear in mind that the jurors in this case were instructed accurately both as to the meaning of the term “deadly weapon” and as to the conditions under which they might find that appellants used or exhibited a deadly weapon during commission of the offense. Based upon these instructions and the evidence adduced at trial, the jurors unanimously found as a matter of fact that the “chain, rod, belts, or locks” by means of which appellants restrained their son from obtaining food was “in the manner of its use or intended use ... capable of causing death or serious bodily injury.” They were, of course, right.

The dissent thinks they were wrong, however, and it seems likely to me that this belief comes from a strong intuition that use of a deadly weapon “during commission of an offense” means that the weapon was actually used to commit the offense. I admit that this is an attractive reading of the statute in some situations. For example, had appellants been hatching a plot with their friends to sell illegal drugs to school children while their own son, wrapped in chains, lay starving in the corner, it would be a little strange to suggest that a deadly weapon was used during commission of the criminal conspiracy merely because appellants were, “during” the same period of time, committing a different offense involving use of a deadly weapon. But, on the other hand, we have never required that the deadly weapon be the actual manner or means by which the charged offense was committed. Thus, for example, we have upheld a jury’s finding that a deadly weapon was used during commission of a drug possession offense, even though it was not the manner or means of possession, because it “facilitated” the defendant’s possession of the drugs. Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989). It seems we want a deadly weapon to be connected with the offense more than just fortuitously, but are not willing to insist that it be the very instrumentality of the crime, before upholding a finding that it was “used.”

I suppose we will someday be confronted with a case like my hypothetical, where two unconnected crimes, only one of which actually involves the use or exhibition of a deadly weapon, are committed simultaneously by the same person. We will then have to decide whether a deadly weapon finding may be entered in the ease not involving use or exhibition of the weapon merely because it was used or exhibited “during” commission of the offense. Frankly, I am uncertain how to answer that question. Fortunately, however, it is not the question presented here.

In the instant cause, appellants’ use of a lock and chain to prevent their son from getting food for himself was actually intended to facilitate, and did facilitate in fact, the success of their plan to withhold food from him. In a sense, it was the commission of one crime, injury by an act, to help accomplish another, injury by an omission (if, indeed, these are different crimes at all). I have no doubt under these circumstances that a deadly weapon was used during the offense of omission, not just because it hap *588 pened contemporaneously, but because it was an integral part of appellants’ strategy to starve their son. Accordingly, I concur with the opinion of the Court.