Schultz v. State

923 S.W.2d 1, 1996 Tex. Crim. App. LEXIS 44, 1996 WL 180701

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 1996
• Docket: 0864-94
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was charged with the offense of child abandonment under TEX.PEN.CODE ANN., Sec. 22.041(b).¹ Evidence showed that appellant’s nine year old daughter and her eleven year old nephew died in a fire after appellant left them alone for fifteen hours. In affirming appellant’s conviction, the Court of Appeals held that the culpable mental state under Sec. 22.041(b) is “intentional” and that the mental state attaches to conduct rather than to circumstances surrounding conduct. Schultz v. State, 879 S.W.2d 377 (Tex.App.— Amarillo 1994). We granted review to determine the propriety of that determination. We will affirm.

Sec. 22.041 provides, in part:

(a) In this section, “abandon” means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.

(b) 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.

The jury charge in this case tracked the language of the statute. Appellant objected at trial, arguing that the charge erroneously authorized a conviction without requiring any culpable mental state as to the circumstances surrounding the conduct of abandonment.

Essentially, appellant’s argument is that the jury charge was erroneous because abandoning a child is not a criminal offense unless the person leaving the child is aware of the risk in doing so and consciously disregards that risk. She reaches this conclusion by means of the following steps: Appellant first claims that “intentionally” in Sec. 22.041 does not prescribe a mental state, but is vestigial language that merely establishes a requirement that conduct be voluntary. She then refers to See. 6.02, which states that if the definition of a statute does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental elements. Since, according to appellant, Sec. 22.041 does not prescribe a mental state, the statute falls under the purview of Sec. 6.02, and a mental state of at least recklessness is implied. After determining that a mental state of recklessness attaches to Sec. 22.041, appellant analogizes See. 22.041 to similar statutes and to cases involving the result-oriented offense of injury to a child. She concludes her claim by arguing that, comparable to injury to a child, child abandonment is a circumstance-dependant offense that requires a culpable mental state that relates to the nature of the circumstances surrounding the charged conduct, rather than to the conduct itself.

In its opinion, the Court of Appeals focused on the text of the statute and found that the legislative intent behind the statute was clear. Id. at 380. They looked at the fact that the Legislature placed “intentionally” directly before “abandons,” and concluded that the intent in so doing was to require that the prescribed mental state attach to the act of abandonment itself. Id. They held, in other words, that the statute requires that the act of abandonment be intentional, but does not require an additional mental state regarding the circumstances of the offense. Id.

In construing a statute, our duty is to attempt to effectuate the intent of the Legislature in enacting the statute. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). If the meaning of the statutory text, when read using established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). It is only when a statute is ambiguous or would lead to absurd results that a court may resort to extratextual factors such as legislative history. Id. at 785.

We agree with the Court of Appeals that, according to the plain language of Sec. 22.041, the fact that “intentionally” immediately precedes “abandons” means that the prescribed mental state is connected with the act of abandonment itself. Had the Legislature intended to require that the actor be aware of the risk of harm, it would have been a simple matter to have included language to that effect. For example, Sec. 22.10, “Leaving a Child in a Vehicle,” explicitly requires a mens rea of ‘knowing’ or ‘intentional’ for conduct (leaving a child in a vehicle) and also explicitly requires a mens rea of ‘knowing’ for the circumstances (knowing that the child is younger than seven years old and not attended by a person fourteen or older.)²

Moreover, we presume that “the entire statute is intended to be effective.” TEX. GOV’T CODE, Sec. 311.021(2).³ Subsection (a) of Sec. 22.041 defines “abandon,” in part, as leaving a child “under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.” Because no reasonable similarly situated adult would knowingly leave a child under circumstances posing an unreasonable risk of harm, this clause in the definition of “abandon” in subsection (a) would be rendered meaningless by attaching a mental state to the risk of harm clause in subsection (b). Under the appellant’s interpretation of the child abandonment statute, the meaning of the statute would not change if the word “abandons” and its special definition in subsection (a) were replaced with the word “leaves.” The text of Sec. 22.041, therefore, persuades us that the first premise of appellant’s argument must fail, and with it, the conclusions that rest upon that primary hypothesis.⁴

One argument remains to be considered. Appellant contends that it would be contrary to the common law tradition to penalize one who acts without being conscious of an unreasonable risk. In making this argument, appellant claims that child abandonment is a circumstance-dependant offense, and analogizes it to result-oriented offenses such as injury to a child. She refers us to the line of cases including Beggs, Alvarado, and Haggins v. State, 785 S.W.2d 827 (Tex.Crim.App.1990). Result-oriented offenses require specific mental culpability beyond intentional conduct. Therefore, appellant argues, circumstance-dependant offenses also require specific mental culpability beyond intentional conduct. By analogizing her case to Beggs appellant asks us, in effect, to consider whether it is right to punish one for an act that is done without awareness of the risk associated with the act.

In Beggs this Court held that in a trial for injury to a child, the jury must be instructed that they cannot find the defendant guilty unless they find that he intended the result of his conduct. In other words, injuring a child is not a criminal act unless the actor intended to cause the injury.

Beggs was a prosecution for injury to a child under Sec. 22.04(a). In that ease, the defendant was charged with injuring her granddaughter by placing her in a tub of hot bathwater. The defendant claimed that she did not know the water was hot enough to injure the child, as the child’s mother had drawn the bath. Because the jury instructions allowed the jury to convict the defendant if they found only that she intended to place the child in the hot water, regardless of whether she intended the resulting injury, the conviction was reversed. This Court determined that the focus of Sec. 22.04 was the harm which the statute sought to prevent, rather than the nature of the suspect’s conduct. That is, the Legislature did not intend to criminalize behavior that was, in itself, innocent, e.g., placing a baby in the bath.

There are two significant differences between injury to a child under Sec. 22.04(a) •and child abandonment under Sec. 22.041. One is that conduct that is criminalized under Sec. 22.041 is per se dangerous. The statute makes this so by defining “abandon” as leaving a child under circumstances under which no reasonable, similarly situated adult would do so, that is, in dangerous circumstances. The problem that arose in Beggs — the possibility of convicting a person for entirely innocuous behavior — does not arise in prosecutions under Sec. 22.041.⁵

The other fundamental distinction between See. 22.04(a) and Sec. 22.041 is that the latter applies only to those who have custody, care, or control of the child victim. Sec. 22.041 imposes a duty upon those responsible for children to refrain from unreasonably subjecting the child to danger. There is no corollary duty under Sec. 22.04(a). Unlike Sec. 22.04(a), Sec. 22.041 can dispense with a requirement of awareness of danger because a person subject to Sec. 22.041 has already assumed the responsibility to act reasonably with regard to the child’s safety. It is the neglect of this duty that is criminalized under Sec. 22.041(b).⁶

The judgment is affirmed.

1 . All references to sections refer to the Texas Penal Code unless otherwise specified.

2 . Judge Meyers' dissent cites Judge Clinton’s concurring opinion in Lugo-Lugo for the proposition that a culpable mental state must attach to every element of the offense. Lugo-Lugo v. State, 650 S.W.2d 72, 87 (Tex.Crim.App.1983) (Clinton, J. concurring). That proposition has never been adopted by a majority of the Court. Judge Meyers’ dissent argues that the Lugo-Lugo concurrence provided the blue-print for the other opinions his dissent cites. While these cases indicate that some of the analysis in that concurring opinion may be useful, we disagree with Judge Meyers’ apparent belief that the Lugo-Lugo concurrence has been adopted wholesale by this Court. Beggs precedes Lugo-Lugo, and McQueen does not cite the concurring opinion. See Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App.1980). McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App.1989). Alvarado and Gardner merely cite Lugo-Lugo for its observation that an offense could be divided into elements of conduct for the purposes of analyzing and distributing the required culpable mental state. Alvarado v. State, 704 S.W.2d 36, 38 (Tex.Crim.App.1985). Gardner v. State, 780 S.W.2d 259, 262 (Tex.Crim.App.1989). While McClain holds that a culpable mental state must attach to circumstances surrounding the conduct when doing so conforms to clearly expressed legislative intent (citing Committee comment), the opinion does not hold that all conduct elements require a mental state unless the legislature expressly dispenses with such. McClain v. State, 687 S.W.2d 350, 354 (Tex.Crim.App.1985). As a concurring opinion, Lugo-Lugo is not binding precedent.

3 . This provision is part of the “Code Construction Act” made applicable to the Texas Penal Code by § 1.05(b) which states:

Unless a different construction is required by the context. Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of the Code Construction Act (Chapter 311, Government Code), apply to the construction of this code.

4 . Even if we were to find that the language of Sec. 22.41 is ambiguous, an examination of the legislative history of the statute confirms that the intent of the Legislature was that “intentional” be the culpable mental state, and that it relate to the conduct of abandonment. The bill analysis of S.B. 175, which ultimately became Sec. 22.041, reveals that the bill was intended to remedy the fact that, as the law stood prior to the enactment of the statute, when a child was abandoned by someone with custody of the child, that person could be prosecuted only if the child suffered injury or death. One of the witnesses who testified in favor of the bill at the hearing on S.B. 175 told the committee he favored the bill because:

The juvenile division of the Houston Police Department has noted multiple cases of child abandonment and endangerment, including infants left in fields and trash dumpsters and young children left unattended in filthy apartments for several weeks.

Until S.B. 175 rectified the problem, the conduct described above did not constitute a criminal act.

An unidentified member of the committee stated his understanding of the statute as follows:

UNIDENTIFIED COMMITTEE MEMBER # 1: Well, as I read this bill, if you went off and left two three-year olds in the house with open flame heaters in the cold wintertime, if you intended to leave them half the night, you have abandoned them in circumstances that would endanger their well-being. And I think it would fit in this category. I mean, you can abandon someone immediately, you know.

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MR. JOHNSON: I believe that endangerment could apply to that circumstance, because the children are left in a dangerous circumstance ....

Although the above exchange appears to have been, at least by one speaker, a reference to the offense of child endangerment rather than child abandonment, the fact remains that the conduct described was meant to be criminalized without regard to the offender’s awareness of danger. The intent of the actor in the above illustration was “to leave them half the night." No mention is made of the actor's awareness of the danger; the act is criminal “because the children are left in a dangerous circumstance.”

5 . Judge Meyers' reliance upon McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985) and McQueen v. State, 781 S.W.2d 600 (Tex.Crim. App.1989) is misplaced for this very reason. As we stated in McQueen, "[W]here otherwise innocent behavior becomes criminal because of the circumstances under which it is done, a culpable mental state is required as to those surrounding circumstances.” 781 S.W.2d at 603 (emphasis added). Judge Meyers believes that "otherwise innocent” behavior merely means non-criminal behavior. However, McQueen explained that attaching a culpable mental state was necessary to effectuate the legislature’s intent to prevent strict liability offenses. Id. at 604.

6 . Appellant mistakenly believes that this interpretation of the statute punishes her actions without regard to the surrounding circumstances. On the contrary, by intentionally “abandoning" a child, the actor does more than merely intentionally "leave” the child. The actor intentionally leaves the child under a certain set of objectively unreasonable circumstances outlined in the definition of "abandons.” This construction appears designed to punish actors who are aware of the dangerous circumstances even though, due to shortsightedness, lack of common sense, apathy, or just plain stupidity, they may not be aware that the circumstances are dangerous.