Galvan v. State

• Decision Date: 30 October 1985
• Docket Number: 3-84-258-CR,Nos. 3-84-257-C,s. 3-84-257-C
• Citation: 699 S.W.2d 663
• Parties: Paul B. GALVAN, Appellant, v. The STATE of Texas, Appellee. Rose S. GALVAN, a/k/a Rose Slafani, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 663

699 S.W.2d 663

Paul B. GALVAN, Appellant, v. The STATE of Texas, Appellee.

Rose S. GALVAN, a/k/a Rose Slafani, Appellant, v. The STATE of Texas, Appellee.

Nos. 3-84-257-CR, 3-84-258-CR.

Court of Appeals of Texas Austin.

Oct. 30, 1985.

John K. Dietz, Austin, for appellants in both cases.

Charles D. Penick, Crim. Dist. Atty., Robert E. Raesz, Jr., Asst. Dist. Atty., Bastrop, for appellee.

Before POWERS, EARL W. SMITH and BRADY, JJ.

EARL W. SMITH, Justice.

A jury found appellants, Paul Galvan and Rose Galvan, (a/k/a Rose Slafani), guilty of the offense of injury to a child and assessed punishment at a jail sentence of fifty years. Tex.Pen.Code Ann. § 22.04 (Supp.1985). Appellants raise four grounds of error, all of which we will overrule. We affirm the judgment of the trial court.

On April 13, 1982, Cruz Galvan, an emergency medical technician (and Paul Galvan's uncle), was called to Paul and Rose Galvan's residence to check on their child Christopher, who they reported was having difficulty breathing. Cruz Galvan determined that the child was dead. He called a Justice of the Peace, who, without an autopsy, conducted an inquest. Sometime between 1:00 and 2:00 p.m. that afternoon, Christopher was buried in the family cemetery plot. At about the same time, although too late to prevent the burial, the Bastrop County District Attorney's Office was contacted. An order to exhume the body was issued and executed later that day. The body was transported to Austin, where Dr. Bayardo, the medical examiner, began an autopsy at approximately 5:00 p.m. that same day.

The medical evidence and autopsy conclusions are reviewed in detail under the discussion of appellants' ground of error concerning the sufficiency of the evidence. In brief, Dr. Bayardo observed that the child's body was dirty, and that the child was dressed in dirty clothes. The child appeared malnourished and dehydrated, had numerous bruises, and a severe, ulcerated diaper rash. At trial, Dr. Bayardo testified that the child died of a combination of factors. Dr. Norton, another forensic pathologist, summarized the cause of the child's death as active and passive neglect, and active abuse. The State introduced other medical evidence showing that the child's condition at death was attributable to neglect. The State also introduced evidence concerning the Department of Human Resources investigation into the case and the difficulties encountered in seeing the child.

The Galvans were convicted of Count One of a four-count indictment. Count One, in pertinent part, read as follows [Paul B. Galvan and Rose S. Galvan] intentionally and knowingly, by omission, engage[d] in conduct that caused serious bodily injury to Christopher Paul Galvan, a child younger than 14 years of age, by then and there knowingly omitting and failing to provide support and knowingly omitting to provide the minimal requirements of said child for food and medical care, and the said Paul B. Galvan and Rose S. Galvan aka Rose Sclafani were the parents of Christopher Paul Galvan and had the duty by statute to provide such support, food, and medical care for said child, and said parents could have provided and were legally obligated to provide such support, food and medical care, and there further being a statute providing that such omission is an offense.

Appellants acknowledge that the indictment is sufficient to allege the offense of injury to a child under Ahearn v. State, 588 S.W.2d 327 (Tex.Cr.App.1979), but claim that the indictment is defective because it is duplicitous.

DUPLICITY OF THE INDICTMENT

By their first ground of error, the Galvans assert that the trial court erred in failing to grant their timely-made motion to quash the indictment on the ground that it was duplicitous. The rule against charging two distinct offenses in one indictment is long-established. Foreman, Indictments Under the New Texas Penal Code, 15 Hous.L.Rev. 1, 19-20 (1977) and cases cited therein. The rationale for the rule is that a duplicitous indictment does not give the defendant fair notice because he cannot tell against what charge he must defend. Exceptions to the rule exist. For example, an indictment is not duplicitous that alleges, conjunctively, more than one theory of committing the offense alleged. Johnson v. State, 623 S.W.2d 654, 655 (Tex.Cr.App.1981).

Appellants' particular complaint is that Count One of the indictment violates the prohibition against one paragraph of an indictment charging more than one offense. Tex.Code Cr.P.Ann. art. 21.24(b) (Supp.1985). Specifically, they complain that the indictment alleges the two distinct offenses of injury to a child and criminal nonsupport, Tex.Pen.Code Ann. §§ 22.04, 25.05 (1974 & Supp.1985). Appellants have failed to fully consider the applicability of § 6.01 of the Penal Code, supra, however, and its interaction with Tex.Code Cr.P.Ann. art. 21.24 (Supp.1985).

The cases annotated under art. 21.24, supra, do not deal with the problem of duplicitous indictments that allege offenses by omission; i.e., the interaction of art. 21.24 and § 6.01 of the Penal Code. Section 6.01 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." Section 6.01 provides two alternatives that render omissive conduct an offense: (1) a statute makes such an omission an offense; or (2) a statute provides that the person has a duty to perform an act, and the person failed to perform that act. Unless § 6.01 is satisfied, conduct consisting of omitted acts cannot be a crime.

Count One of the indictment charges that the Galvans intentionally and knowingly "by omission, engage[d] in conduct that caused serious bodily injury...." (emphasis added). For the Galvans' omissive conduct to be an offense under § 6.01, there must be a statute making that omission an offense or a statute providing that the Galvans had a duty to perform those acts that the indictment charges they failed to do. Rather than alleging two distinct offenses, as the Galvans assert, the indictment tracks § 6.01 of the Penal Code and alleges two ways of satisfying the requirement for offenses by omission--a statute making the omission an offense and a statute imposing a duty to act; a conjunctive allegation of more than one theory of the offense. An indictment is not duplicitous when it alleges, conjunctively, more than one theory of the same offense. Johnson, supra.

Appellants claim that the duty to support a child arises exclusively under Tex.Fam.Code Ann. § 12.04 (Supp.1985) and that § 25.05 of the Penal Code could not be the source of a duty to support so as to be one way of satisfying § 6.01's requirements. Therefore, if § 25.05 of the Penal Code is alleged, it is as a separate offense, not as a manner of committing the offense of injury to a child by omissive conduct. Appellants cite no controlling cases. The cases cited stand for the proposition that an indictment must allege a parent-child relationship in order to show a duty to support a child and thus satisfy one alternative of § 6.01(c) in order to allege injury to a child by omissive conduct. They do not stand for the proposition that § 12.04 of the Family Code is the exclusive source of that duty, however. For example, Moss v. State, 598 S.W.2d 877 (Tex.Cr.App.1980) deals with the sufficiency of an indictment for murder and the need for an allegation of "parent" to show the parent-child relationship and thus establish a duty to support. Section 12.04 of the Family Code is cited as a source of that duty, but there is no suggestion that it is the only source. Smith v. State, 603 S.W.2d 846 (Tex.Cr.App.1980) deals with an indictment for injury to a child that was found inadequate because § 6.01(c) of the Penal Code was not satisfied. The indictment failed to allege any statutory duty to act. Section 12.04 of the Family Code is cited as imposing a duty of support only on the child's parent(s), but is not discussed as the exclusive source of that duty. Considering that Tex.Fam.Code Ann. § 4.02 (Supp.1985) of the Family Code, by its language, imposes a duty to support one's child, it is not supportable to find the exclusive source of a duty to support in § 12.04 of the Family Code. See also Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977) (murder indictment; § 4.02 of Family Code cited as well as § 12.04).

Appellants' attempt to read the indictment as alleging two separate offenses is based in part on their contention that none of the language is surplusage (and that the State is now "estopped" from so claiming) and that the indictment alleges all of the essential elements of § 25.05 of the Penal Code. Appellants focus on the State's attempt to "explain" the indictment, where the State says that it has "gone on to" allege all of the elements of § 25.05. Appellants interpret the State's remarks as meaning that the elements of § 25.05 are in the indictment, if the indictment indeed contains them, to charge a separate offense rather than to satisfy § 6.01's requirements. One phrase to which they point as being an element of § 25.05 is "knowingly omitting to provide the minimal requirements ... medical care, ..." (emphasis in original). They claim this phrase refers to § 25.05(c) making it an offense to fail to furnish the minimal requirements for support. The phrase can also be read as a description of the support they failed to furnish; i.e., they failed to furnish food and medical care (as opposed to shelter, clothing, or education, all of which are included as forms of support under § 12.04 of the Family Code.) Appellants also point to the phrase "which they were legally obligated to provide" as being an element of § 25.05. Again, this phrase can be read as descriptive of a requirement under § 22.04. Section 22.04 says that an omission can constitute an offense. Alleging only an...