Jefferson, Raymond ( 2006 )

      IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                 NO. PD-0363-05

                                            RAYMOND JEFFERSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

Cochran, J., filed a concurring opinion, in which Price and Johnson, JJ., joined.

OPINION

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 Acauses.@  Because the verb Acauses@ requires a direct object, the full description of the prohibited conduct, under section 22.04(a)(1) as alleged in this case, is Acauses 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]

But, one might reasonably ask, aren=t Astriking Raysate Knight with his foot,@ Acausing Raysate Knight=s head to strike an unknown object,@ Afailing to intercede or stop the physical abuse of Raysate Knight by Connie Knight,@ and Afailing 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 didBprecisely what act he performed or failed to performed that caused serious bodily injuryBbut 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 Asomething@ or failed to do Asomething,@ 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 Amain@ verb which defines the prohibited conduct and to which the jury unanimity requirement applies, and descriptive phrases that define the Amanner and means@ by which the defendant commits the prohibited act?  Usually, those descriptive averments are adverbial phrases introduced by the preposition Aby.@  Thus, Aby striking Raysate Knight with his foot,@ Aby causing Raysate Knight=s head to strike an unknown object,@ Aby failing to intercede or stop the physical abuse of Raysate Knight by Connie Knight,@ and Aby 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 Aby@ 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 reasonable 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 Aby,@ 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.

Filed: April 12, 2006

Publish

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^[1] Tex. Penal Code ' 22.04.

^[2] 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 substance 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).

^[3] 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 meansBAby poisoning, garroting, shooting, stabbing, or drowning@Bof how Prince Yussupov caused Rasputin=s death).

^[4] 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 Acause serious bodily injury@ because that is still the prohibited conduct and it is still the main verb defining the conduct.

^[5] See, e.g., O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988).