Billingslea v. State

• Decision Date: 22 November 1989
• Docket Number: No. 923-87,923-87
• Citation: 780 S.W.2d 271
• Parties: Ray Edwin BILLINGSLEA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 271

780 S.W.2d 271

Ray Edwin BILLINGSLEA, Appellant, v. The STATE of Texas, Appellee.

No. 923-87.

Court of Criminal Appeals of Texas En Banc.

Nov. 22, 1989.

John H. Hagler, (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty. & Patricia Poppoff Noble, Gary A. Moore & John D. Nation, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

Appellant was charged with the offense of injury to an elderly individual pursuant to V.T.C.A. Penal Code, § 22.04(a)(1). A jury found the appellant guilty as charged and assessed his punishment at 99 years in the Texas Department of Corrections. The appellant's conviction was subsequently reversed and his acquittal ordered. Billingslea v. State, 734 S.W.2d 422 (Tex.App.--Dallas 1987). We affirm the judgment of the court of appeals.

The State's petition for discretionary review was granted pursuant to Rule 200(c)(3) and (c)(5), Tex.R.App.Proc., to consider the following grounds: First, whether the court of appeals erred in holding that the indictment charging the appellant was defective because it did not allege a statutory duty to act; and second, whether the court of appeals erred in finding the evidence insufficient to support appellant's conviction because he had no statutory duty to act.

We note at the outset that the Legislature recently amended the statute under which the appellant was charged and initially convicted. The amended version of V.T.C.A. Penal Code, § 22.04, effective September 1, 1989, is set forth fully in fn. 7, infra. We are compelled, however, to review this case in light of the statute as it existed at the time of this offense. To do otherwise would violate the constitutional prohibition against ex post facto laws. U.S.C.A. Const. Art. 1, sec. 9, cl. 3; Vernon's Ann.Tex. Const., Article 1, § 16. See also Pope v. State, 509 S.W.2d 593 (Tex.Cr.App.1974) (error to instruct jury that defendant could be found guilty of injury to a child where statute not effective until after offense committed).

I.

Since the State assails the court of appeals' ruling on the sufficiency of the evidence, a brief review of the facts is in order. Appellant, his wife, and son lived with Hazel Billingslea (also referred to as the decedent), appellant's 94 year old mother, in a small two story frame house in Dallas. Hazel Billingslea's home had been her son's residence since approximately 1964. Appellant's only sibling was his sister, Katherine Jefferson, a resident of New Mexico. Virginia Billingslea (the decedent's granddaughter), Katherine Jefferson's daughter, lived approximately fifteen blocks from her grandmother's Dallas' home. Virginia Billingslea was raised by Hazel Billingslea and had a close relationship with her. Accordingly, she kept in regular contact by telephone and by occasional visits to her grandmother's house.

Unspecified frailties of old age affecting the elder Mrs. Billingslea forced her to become bedridden in March, 1984. Granddaughter Virginia, unaware of her grandmother's condition, made several attempts to visit her during the ensuing weeks. On each occasion her uncle (appellant) "testily" informed her that her grandmother was "asleep." Undaunted, Virginia attempted to reach her grandmother by telephone, only to be threatened by her uncle on at least two occasions to "keep [her] goddamned motherfucking ass out of him and his mother's business or he would kill [her]."

After all attempts to visit her grandmother failed, Virginia contacted her mother (appellant's sister), Katherine Jefferson, in New Mexico. Mrs. Jefferson in turn contacted the Dallas Social Security Office and requested a formal inquiry into her mother's welfare.

Velma Mosley with the Adult Protective Services section of the Texas Department of Human Resources testified that she received a report from the Social Security Office on April 20, 1984, requesting that she check on the elder Mrs. Billingslea. A few days later, Ms. Mosley, accompanied by two Dallas police officers and a police social service employee, proceeded to Mrs. Billingslea's house.

They came upon the appellant in the front yard. After some discussion, he reluctantly allowed them to enter the premises. Upon entering, they were assailed by the strong, offensive odor of rotting flesh permeating the household. While one of the police officers remained downstairs with the appellant, who wanted to know "what these motherfuckers were doing in his house," the social worker and police officer made their way upstairs. Upon entering the bedroom, they found Hazel Billingslea lying in bed, moaning and asking for help. Ms. Mosley testified that the stench was so overwhelming that she was forced to cover her face. Ms. Mosley pulled back the sheets to examine Mrs. Billingslea. Nude from the waist down, Mrs. Billingslea appeared weak and in a great deal of pain.

Ms. Mosley discovered that part of Mrs. Billingslea's heel was eaten away by a large decubitus (bedsore). Other decubiti on her hip and back appeared to have eaten through to the bone. When Ms. Mosley attempted to raise Mrs. Billingslea from the bed to continue her physical examination, "she moaned so much till I didn't look any further." Mrs. Billingslea was immediately transported to Parkland Hospital in Dallas.

Dr. Frase, at that time Chief Medical Resident at Parkland Hospital, examined Mrs. Billingslea. He testified that she was severely cachectic, i.e., that she had suffered severe muscle loss. Her mental state was one of near total disorientation, and she had apparently been unable to feed herself for some time. In addition to the decubiti, second degree burns and blisters were found on her inner thighs, caused by lying in pools of her own urine. Maggots were festering in her open bedsores.

Dr. Frase testified that weeping bedsores as severe as those he found on Hazel Billingslea would have taken anywhere from four to six weeks to develop. He further testified that until her death Mrs. Billingslea required large dosages of narcotics to relieve her pain. In his opinion, the bedsores, burns, blisters, and loss of muscle resulted in serious bodily injury indicative of overall neglect of Mrs. Billingslea in the months prior to her death.

II.

The question of whether criminal liability may be imposed for omissions against elderly individuals is one of first impression in Texas. ¹

The defendant was charged under V.T.C.A. Penal Code, § 22.04. Until September 1, 1981, § 22.04 covered only offenses against children 14 years of age or younger. That year, the Legislature added "elderly individuals 65 years of age or older" to the definition of those protected by § 22.04:

Injury to a Child or Elderly Individual.

(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that causes to a child who is 14 years of age or younger or to an individual who is 65 years of age or older:

(1) serious bodily injury;

(2) serious physical or mental deficiency or impairment;

(3) disfigurement or deformity;

(4) bodily injury.

Deleting the formal requisites, the indictment is as follows:

[That the defendant did] then and there intentionally and knowingly engage in conduct that caused serious bodily injury to Hazel Billingslea, an individual over 65 years of age, said conduct being by the following act and omission, to wit: the said defendant failed to obtain medical care for Hazel Billingslea, the natural mother of the said defendant, who lived in the same house as the defendant, and the said Hazel Billingslea was at said time physically unable to secure medical care for herself.[ ²

In its petition, the State contends that a duty to act need not be embodied in a statute for § 22.04 to apply. Instead, the State argues that the duty to act in behalf of an elderly person may be derived from legal or common law duties as would arise from the factual, not necessarily familial, relationship of the parties. Limiting § 22.04 to explicit statutory duties, according to the State, "would vitiate the intent of the statute." See also Justice LaGarde's dissenting opinion in Billingslea, supra, at 425. Relative to the present case, the State contends that the appellant owed a duty of care to the decedent because he voluntarily assumed primary responsibility for caring for his mother who was unable to care for herself, and by assuming that responsibility, prevented others from coming to her aid. According to the State, the indictment is legally sufficient because it alleges facts giving rise to appellant's duty and failure to act pursuant to that duty. Consequently, they argue, that the court of appeals erred in holding that the indictment was fundamentally defective.

While we agree with the State that the 1981 amendments to § 22.04 reflect the Legislature's intention to penalize omissions toward elderly persons, the indictment is nevertheless fundamentally defective for failing to include a statutory duty imposing a punishable omission.

An "omission" is defined in the Penal Code as a failure to act. V.T.C.A. Penal Code, § 1.07(a)(23). The Penal Code's foundation for criminal omissions may be found in § 6.01, which states that a person commits an offense if he "voluntarily engages in conduct, including an act, omission, or possession." Subsection (c) provides that "a person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act." Stated another way, (1) a statute must provide that an omission is an offense, or (2) a statute otherwise prescribes a duty to act, and a subsequent failure to act pursuant to that duty is an offense. Since § 6.01(c) is stated in the disjunctive, it appears to provide alternative grounds for finding a criminally punishable...