Rey v. State

280 S.W.3d 265, 2009 Tex. Crim. App. LEXIS 468, 2009 WL 838570
CourtCourt of Criminal Appeals of Texas
DecidedApril 1, 2009
DocketPD-1687-07
StatusPublished
Cited by12 cases

This text of 280 S.W.3d 265 (Rey v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rey v. State, 280 S.W.3d 265, 2009 Tex. Crim. App. LEXIS 468, 2009 WL 838570 (Tex. 2009).

Opinions

OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which MEYERS, PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

Appellant was charged with and convicted by a jury of abandoning a child. He was sentenced to two years’ imprisonment, probated for five years, and a $3,000 fine. Appellant appealed the conviction. The court of appeals reversed the conviction and ordered an acquittal. The state sought discretionary review of the judgment, which was granted by this Court. Because the court of appeals improperly construed the law, we reverse that court’s ruling and remand this case to the court of appeals to review appellant’s legal- and factual-sufficiency claims under the proper standard.

Facts

Appellant was married to Michelle Morales. Together they had a daughter, who was one year old at the time of the charged offense. Morales also had a three-year-old son from a prior relationship. After the couple separated in late 2005, the children lived with their mother in Plainview, while Appellant lived in Mu-leshoe. In his statement to the Plainview Police Department (state’s exhibit 2), Appellant wrote that he had called Morales on February 23, 2006, and said that he was coming to visit. When he arrived around 12:30 a.m., he could hear his daughter crying. Through the window, he could also see his stepson, D.M., asleep on the couch. He knocked on the door, and D.M. woke up. Appellant asked D.M. where his mother was. The child looked for her in the apartment, but his mother was not home. Appellant broke the front window, opened the door, removed both children from the apartment. He stated that he left his stepson with the neighbors, then [267]*267took his daughter, and went back to Mu-leshoe. In Muleshoe, he waited “an hour” before reporting the unattended children because he didn’t want to get his wife in trouble for leaving the children alone. When she still was not home an hour later, he called the Muleshoe police, who contacted the Plainview police. He asserted that he had not taken his stepson with him because his wife had “already tried to file charges and [he] was afraid th[at] she would say that [he] kidnapped him.” The neighbor testified that appellant did not leave D.M. with him; he found D.M. alone, standing outside near the broken window glass without shoes or socks and “screaming for his father.” No one else was present when officers arrived to investigate.

On appeal, appellant argued that the state’s evidence against him was insufficient to show that he had “custody, care, or control,” as required by the child-abandonment statute. The court of appeals agreed, finding that appellant did not stand in loco parentis with D.M.; it reversed the conviction and rendered a judgment of acquittal. Rey v. State, 238 S.W.3d 840 (Tex.App.-Amarillo, 2007).

In its petition, the state argued that the gravamen of the offense is abandonment by one who has care, custody, or control of the victim, and the proof of a familial relationship with the victim is only one possible evidentiary fact to be considered by the fact-finder in its determination of whether a defendant committed the offense. We granted the state’s ground for review, which asserted that the court of appeals erred in grafting an in loco paren-tis requirement onto Tex. Penal Code § 22.041(b).1

Custody, Care, or Control Under § 22.041(b)

The case before us presents a question of the statutory construction of the meaning of “custody, care, or control” in § 22.041(b). This is a question of law that we review de novo. Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008). Section 1.05(a) of the Penal Code provides that provisions are to be “construed according to the fair import of their terms, to promote justice and effect the objectives of the code.” Tex. Penal Code § 1.05(a). Section 1.05(b) refers us to the Code Construction Act, which provides that “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” Tex. Gov’t Code § 311.011(b).

Appellant was charged with abandoning or endangering a child under Tex. Penal Code § 22.041(b). That subsection states that

[a] person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.

We have not previously examined the phrase “custody, care, or control” as used in § 22.041(b).2

[268]*268The legislature has given “custody, care, or control” a particular meaning within the statute that defines the offense of injury to a child, elderly individual, or disabled individual. Tex. Penal Code § 22.04(d). That subsection states that

[f]or the purposes of an omission that causes a condition described by Subsection (a)(1), (2), or (8), the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child....

The conditions in the listed subsections are: 1) serious bodily injury; 2) serious mental deficiency, impairment, or injury; and 3) bodily injury.

In Hicks v. State, 241 S.W.3d 543 (Tex.Crim.App.2007), we considered the issue of interpreting the meaning of “care, custody, or control” as used in § 22.04(d). In that case, the court of appeals had held that “possession” equated to “care, custody, or control” as used in § 22.04(d). Id. at 544. The definition of “possession” was taken from § 1.07(a)(39) of the Penal Code. However, this Court, citing Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991), reiterated that, when statutes are clear and unambiguous, their plain meanings must be given effect unless it would lead to an absurd result that the Legislature could not possibly have intended. Hicks, 241 S.W.3d at 545-46. Subsection 22.04(d)’s definition of “care, custody, or control” was “clearly and unambiguously set out,” and “[bjecause the language of Section 22.04(d) is clear, the court of appeals should have applied the plain language of subsection (d) and refrained from looking beyond the text of the statute in interpreting it.” Id. at 546.

The purpose of both § 22.04 and § 22.041 is protection of vulnerable individuals. We may reasonably conclude that the clear, unambiguous language that defines “care, custody, and control” in § 22.04 is equally applicable to the same phrase in § 22.041, the immediately following statute.

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Bluebook (online)
280 S.W.3d 265, 2009 Tex. Crim. App. LEXIS 468, 2009 WL 838570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rey-v-state-texcrimapp-2009.