Billingslea v. State
| Decision Date | 15 July 1987 |
| Docket Number | No. 05-86-00897-CR,05-86-00897-CR |
| Citation | 734 S.W.2d 422 |
| Parties | Ray Edwin BILLINGSLEA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John H. Hagler, Dallas, for appellant.
Gary A. Moore, Dallas, for appellee.
Before WHITHAM, BAKER and LAGARDE, JJ.
Ray Edwin Billingslea was convicted of injury to an elderly individual by failing to obtain medical care for his mother. A jury found appellant guilty and assessed punishment at 99 years' confinement in the Texas Department of Corrections. Appellant asserts in five points of error that: (1) the indictment is defective since it failed to allege any statutory duty to act; (2) the evidence is insufficient since appellant was not criminally responsible for the omission to act; (3) the jury instructions regarding parole and good time credit constituted a violation of the separation of powers doctrine; (4) the jury instructions regarding parole and good time credit constituted a denial of due process; and (5) the ex post facto application of the jury instructions regarding parole and good time credit was unconstitutional. We sustain points of error one and two, reverse the trial court's judgment and render a judgment of acquittal.
Appellant was charged by indictment with the offense of injury to an elderly individual. See TEX.PENAL CODE ANN. Section 22.04(a)(1) (Vernon Supp.1987). Appellant, his wife and son lived with appellant's 94-year old mother (decedent) in her home. Decedent became bedridden during March of 1984. Appellant, his wife and son cared for the decedent, including cooking for her and changing her linens. Appellant's son testified that decedent refused medical help. The granddaughter of the decedent testified that she made several attempts in April of 1984 to telephone decedent, but appellant always answered and told her that decedent was asleep, and on one occasion told her to stay out of his and his mother's business or he would kill her (granddaughter). On another occasion, appellant refused to let granddaughter and her son into the home to see decedent because he said she was asleep.
The daughter of decedent (Ms. Jefferson) testified that she received a call on April 19, 1984, from her daughter, which caused her to become concerned about decedent's health. Ms. Jefferson called the Social Security office in Dallas and asked them to investigate. An investigator (Mosley) with the Texas Department of Human Resources received a report from the local Social Security office and went to appellant's home on April 24, 1984, accompanied by a Dallas Police Department social service worker and two Dallas police officers. Appellant let them in the house and upon entering, Mosley noticed a strong odor as of rotten flesh. They found decedent in an upstairs bedroom. When asked if she was in pain, decedent moaned in response. Because of the odor, Mosley had to cover her face in order to continue the conversation. One of the officers had to leave the room because of the odor when Mosley pulled back the covers. Decedent was lying in her own urine and excrement and had a large bedsore on her heel which had eaten away part of the heel. Bedsores on the hip and back were ulcerated and had eaten to the bone. Paramedics were called to the home and decedent was transferred to Parkland Memorial Hospital. At the hospital it was further determined that decedent suffered from significant muscle loss and advanced bedsores which had some maggots in them. A doctor indicated that these bedsores probably had taken four to six weeks to develop into their current state. Decedent also had second-degree burns on her inner thighs from lying in her own urine. There was no evidence that decedent had been given any medical care during this period nor could she have secured medical care for herself. Decedent died on May 5, 1984.
Appellant contends in his first point of error that the indictment failed to allege any statutory duty to act. Section 22.04 of the Texas Penal Code provides in part:
(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;
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Omitting the formal parts, the indictment charged that appellant committed the offense as follows:
(that the defendant did) then and there intentionally and knowingly engage in conduct that caused serious bodily injury to [decedent], 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 [decedent], the natural mother of the said defendant, who lived in the same house as defendant, and the said [decedent] was at said time physically unable to secure medical care for herself.
The important determination is whether the duty to act is an essential element of the offense that must be alleged in the indictment.
In Ronk v. State, 544 S.W.2d 123 (Tex.Crim.App.1976), the mother and father of a child were prosecuted under section 22.04. The decision before the Court was whether the indictments, which failed to allege a relationship which would place the defendants under a statutory duty to secure medical treatment for a child, were missing a necessary element to constitute an offense. The court held that an essential element to an offense arising out of the failure to provide medical care for a child is the duty to provide care. Ronk, 544 S.W.2d at 125. Accord Smith v. State, 603 S.W.2d 846 (Tex.Crim.App.1980); Lang v. State, 586 S.W.2d 532 (Tex.Crim.App.1979). Therefore, failure to allege a statutory duty or a relationship which would place a defendant under a statutory duty to perform the omitted act is a fundamental defect. The State responds to appellant's first point of error by arguing that section 22.04 does not by its terms limit itself to omissions involving statutory duties. Admitting that there are no explicit statutory duties resting upon children which require support of elderly parents, the State asserts that section 22.04 also includes the common law duties that would arise according to the factual, not necessarily familial, relationship of the parties. The State's basic theory of criminal responsibility in this case was that appellant owed a duty of care to the decedent because he had voluntarily assumed the primary responsibility for caring for the decedent, who could not care for herself; and the appellant also, by that responsibility, prevented others from coming to the decedent's aid. We disagree.
Although we perceive appellant was obviously under a moral duty to care for his elderly mother, and in those jurisdictions that recognize common law duties as a basis for criminal liability he would be held responsible for his failure to act (See, e.g. Jones v. United States, 308 F.2d 307 (D.C.Cir.1962)), such is not the law in Texas.
It is clear, and regrettably so, in cases of this nature, that a statutory duty to act is required. Such duty and its omission must be alleged in the indictment and proved. Smith, 603 S.W.2d 846; Lang, 586 S.W.2d 532; Ronk, 544 S.W.2d 123.
Alternatively, the State argues that Section 22.04 satisfies the Section 6.01(c) requirement that an omission is an offense if the statute so provides. Section 6.01 TEX.PENAL CODE ANN. (Vernon 1974 & Supp.1987) provides in part:
(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission or possession.
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(c) 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.
The Practice Commentary following Section 6.01 states that "[s]ubsection (c) codifies the criminal law's traditional reluctance to punish failure to act absent a clear imposition of duty to act on the actor, see Anderson v. State, 27 Tex.Crim. [App.] 177, 11 S.W. 33 (1889)." TEX.PENAL CODE ANN. Section 6.01 Practice Commentary (Vernon 1974). Anderson is recognized as the leading authority supporting the proposition that only the legislature can impose duties. Thus, in Texas, criminal liability cannot be imposed if no statutory duty to act exists. See Smith, 603 S.W.2d 846; and Ronk, 544 S.W.2d 123. The Practice Commentary goes on to explain that TEX.PENAL CODE ANN. Section 6.01 Practice Commentary (Vernon 1974) (since amended). Upon examination, these sections all proscribe certain omissions, plainly stating what omission can be punishable. It is also apparent that each of these sections recognizes a pre-existing duty in law and provides punishment for omission to act according to that duty. So, even under the first branch of section 6.01(c) the punishment for the omission to act is predicated upon a duty to act. For example, section 25.05 which covers Criminal Nonsupport, provides that:
(a) An individual commits an offense if he intentionally or knowingly fails to provide support that he can provide and that he was legally obligated to provide for his children younger than 18 years, or for his spouse who is in needy circumstances.
This plainly relies on the legal duty to act and makes an offense only omissions of that legal duty.
Before it was amended, Section 39.01, "Official Misconduct," made omissions to act an offense if an official intentionally or knowingly refrained "from performing a duty that is imposed on him by law or that is clearly inherent in the nature of his office or employment."...
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Billingslea v. State
...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 The State's petition for discretionary review was granted pursuant to Rule 20......