Smith v. State , 1980 Tex. Crim. App. LEXIS 1043 ( 1980 )

OPINION

ROBERTS, Judge.

These appellants were charged with injury to a child in a single indictment which alleged that they “did then and there intentionally and knowingly engage in conduct that caused serious bodily injury and serious physical deficiency and impairment to Michael Franks, a child younger than fifteen (15) years of age, by then and there striking the said Michael Franks by means which are to the Grand Jurors unknown and by then and there burning the said Michael Franks by means which are to the Grand Jurors unknown, and by then and there denying the said Michael Franks of food and nourishment and adequate medical attention, . . . .” A jury found them guilty and assessed punishment at 20 years’ confinement.

The trial began on December 1, 1975, exactly a year before this Court’s decision in Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976). There we held that an indictment, which alleged that the defendants caused serious bodily injury to a child by failing and refusing to secure proper medical attention for the child, was fundamentally defective for failing to allege that the defendants had a duty to secure medical attention for the child. We noted that a person who omits to perform an act does not commit an offense unless a statute provides that the omission is a n offense or otherwise provides that he has a duty to act. V.T.C.A., Penal Code, Section 6.01(c). The statutory duty to provide medical care (and food) to a child is imposed only on the parent of a child. V.T.C.A., Family Code, Section 12.04(3). The omission to provide medical care for a child would constitute an offense only if committed by the parent. Therefore the parent-child relationship was an essential fact to be proved, and the failure to allege that fact was a fundamental defect. Accord, Lang v. State, 586 S.W.2d 532 (Tex.Cr.App.1979).

In a supplemental brief, the appellants call for the same result that was reached in Ronk v. State: reversal and dismissal. We agree with the appellants that the allegation “by then and there denying the said Michael Franks of food and nourishment and adequate medical attention” should be construed as alleging omissions.¹ We also agree that the allegation is defective in that it fails to allege that the appellants had any statutory duty to act. But we do not agree that the entire indictment is rendered fundamentally defective. Unlike the indictment in Ronk v. State, in which the omission was the only allegation of conduct, the indictment in this case alleged two other acts of conduct: striking and burning. Because these allegations involve acts rather than omissions, they are not affected by the failure to allege a statutory duty. Parents and non-parents alike may commit the offense of injury to a child by such acts as striking and burning. Therefore the indictment was sufficient to allege the offense of injury to a child by striking and burning, and it is not defective in those respects. Had the State abandoned the allegations of omissions, or had the trial court not charged on those allegations, the conviction would not have been void.

The defect in the allegation of omissions did result in reversible error, because of the reliance placed on it in the charge to the jury. The trial court instructed the jury:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Thomas Smith, did, in Galveston County, Texas, on or about April 29, 1975, intentionally and knowingly engage in conduct as alleged in the indictment that caused serious bodily injury to Michael Franks, and that the said Michael Franks was then and there a child 14 years of age or younger, you will find the defendant guilty.” [Emphasis supplied]

The same instruction was given in a separate charge for Betty Franks Smith.

This charge authorized the jury to convict on any of the several allegations of conduct in the indictment, including the defective allegation. That is, it could convict on proof that the appellants failed to furnish food and nourishment and adequate medical attention without any proof that they (as parents) were under a statutory duty to provide such care.² Thus the jury was authorized to convict on proof that did not constitute an offense. This constitutes fundamental error. Cumbie v. State, 578 S.W.2d 732, 734-735 (Tex.Cr.App.1979).

The judgments are reversed and the cause remanded.

Before the court en banc.

1 . The State seems to be in accord: “Thus, this Appellant can be found to have seriously injured this child either by act or omission.” State’s brief, at the third page of seven unnumbered pages.

2 . In fact, it appears that Thomas Smith was not a parent of Michael Franks.