Houston Attorney for an Injury to a Child, Elderly, or Disabled Person

Attorney for Injuries to a Child, Elderly Individual, or Disabled Person in Texas

Most cases of simple assault that involve bodily injury to another person are classified as Class A misdemeanors, but the charge can change drastically if the alleged victim is a child, an elderly person, or a disabled person. If so, then the allegation gets elevated to a felony. Because of these alleged victims' status as vulnerable persons, the State may go hard against your case and seek the maximum penalties. Even if you did not injure the person or had no intent to injure the person, the State will still pursue charges, and a plea deal will likely not be in your favor. A strong defense is your best way to address these charges. In my experience, this statute is most often abused by law enforcement and prosecutors trying to elevate a small situation into a larger legal problem.

The good news is that the Texas Penal Code provides affirmative defenses that may mitigate or prevent a conviction, but the defenses in these kinds of cases need to be strategically developed. You need an experienced criminal defense lawyer who understands these defenses, how to prepare them, how to strengthen them with a smart defense strategy, and how to argue persuasively before a judge and jury. Doug Murphy, a veteran trial lawyer who is Board Certified in criminal defense, has the commitment, resources, and legal insight to successfully represent your case and obtain the best outcome in your unique circumstances. He can discuss your case with you after you take advantage of a free consultation. Contact him today to learn more.

What Does a Charge of Injury to a Child, Elderly, or Disabled Individual Mean in Texas?

When a person intentionally, knowingly, recklessly, or with criminal negligence by act or by omission causes bodily injury, serious bodily injury, or serious mental deficiency, impairment, or injury to a child, elderly individual, or disabled individual, then that person has allegedly committed the crime of Injury to a Child, Elderly, or Disabled Individual according to Tex. Penal Code § 22.04.

To understand what the charge means in Texas, you must understand the elements of the charge. And if those elements are satisfied, the State can win its case against you.

Victims of the Alleged Crime

In order to be charged with this crime, the subject of the crime must meet certain qualifications as a child, elderly individual, or disabled individual. Tex. Penal Code § 22.04(c) defines three categories of victims as:

1. Child: a person who is 14 years of age or younger.
2. An elderly individual: a person who is 65 years of age or older.
3. A disabled individual: a person either who is substantially unable to protect him or herself from harm or to provide food, shelter, or medical care for him or herself, or who has:
   • Autism spectrum disorder (Insurance Code § 1355.001),
   • Developmental disability (Human Resources Code § 112.042),
   • Intellectual disability (Health and Safety Code § 591.003),
   • Severe emotional disturbance (Family Code § 261.001, Family Code), and/or
   • Traumatic brain injury (Health and Safety Code § 92.001).

Bodily Injury vs. Serious Bodily Injury

Tex. Penal Code § 1.07(8) defines bodily injury as "physical pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(46) defines serious bodily injury as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

Basically, a bodily injury is something that merely "hurts," and the presence of a bruise or blood is unnecessary, but a serious bodily injury is so substantial it could mean the loss of a functioning organ, loss of limb, or other injury that exceeds the pain threshold of "it hurts."

State of Mind

Intentionally, knowingly, and recklessly are culpable mental states necessary to prove a charge of Injury to Child, Elderly Individual, or Disabled Individual in the absence of criminal negligence. Texas Penal Code Ann. § 6.03 outlines the definitions of these three mental states.

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Criminal Negligence

In cases where intentional, knowing, or reckless states of mind are not present, criminal negligence must be proven. There are two requirements to satisfy criminal negligence: (1) a substantial and (2) unjustifiable risk existed or at least that it could occur, and the person should have been aware of that risk. The determination of this risk is the reasonable person test.

According to Tex. Penal Code §6.03(d), if the risk is of such a nature and degree that an ordinary person under the same circumstances would not have failed to understand it was a risk, then the failure constitutes a gross deviation from the standard of care, which is criminal negligence.

Omission

This offense can be charged for acts committed or for acts not committed, making this offense unique to most other offenses that require only a commission of an act. According to Tex. Penal Code § 22.04(a), an omission results in an offense if the omission causes an injury defined under the statute and the alleged offender has:

• A legal duty to act
• A statutory duty to act, or
• Assumed care, custody, or control of a child, elderly, or disabled individual. [Tex. Pen. Code §22.04(d)].

These persons who have a legal duty, statutory duty, or assume care can include but are not limited to:

• Parents or guardians,
• Caregivers, or
• Owners, operators, and employees of group homes, nursing facilities, assisted living facilities, intermediate care facilities for persons with mental retardation, or other institutional care facilities. [Tex. Pen. Code § 22.04(a-1)].

Classification & Penalties of Injury to Child, Elderly, or Disabled Individuals in Texas

Classification of the offense is entirely dependent on the nature and extent of the circumstances. Penalties are dependent on the classification. The below chart outlines the classification and penalties according to the specific circumstances.

Defenses to Injury to a Child, Elderly, or Disabled Individual in Texas

In the State of Texas, there are defenses to this offense, and these defenses include both affirmative and statutory defenses as well as general defenses. An experienced criminal defense lawyer like Doug Murphy, who is both a veteran criminal defense trial attorney and Board Certified in criminal law, will review your case and assert viable defenses. He will approach your case from all angles and develop a comprehensive defense strategy. Below are some of the affirmative, statutory defenses, and general defenses or strategies that could apply in your unique situation.

Affirmative Defenses

Within Tex. Penal Code § 22.04, under certain narrow situations, you could have an affirmative defense. An affirmative defense is one whereby the alleged offender admits to the act or omission to act, but has justification for doing so. Affirmative defenses per the statute include notification of termination of care, medical care, religious purposes, and victims of family violence.

Notification of Termination of Care

In order for Notification of Termination of Care to be a defense according to Tex. Penal Code § 22.04(i), the alleged offender must have—before the offense occurred—notified the child, parent of the child, elderly person, disabled person, or the Department of Protective and Regulatory Services—whichever one is appropriate under the circumstances—in writing that he or she no longer provides care to the child, elder, or disabled person.

According Tex. Penal Code § 22.04(j), written notification must contain:

1. The name and address of the person/caregiver/other,
2. The name and address of the child/elder/disabled person, and
3. The date the care is to be discontinued.

Medical Care

An injury to a child, elderly, or disabled person may be justified if the act or omission that caused the injury was by:

1. A licensed physician who reasonably prescribed the medical care, or
2. An unlicensed person who reasonably provided emergency medical care in good faith. [Tex. Penal Code § 22.04(k)].

Religious Methods

Tex. Penal Code § 22.04(l)(1) provides that if the act or omission was based on a "recognized religious method of healing with a generally accepted record of efficacy," and the offender could be justified for his or her harm to the child, elderly, or disabled person. The "generally accepted record of efficacy" may require science or peer-reviewed documentation to support or prove that "the method of healing" is "recognized" by the medical industry.

Victims of Family Violence

It is an affirmative defense according to Tex. Penal Code § 22.04(l)(2) for a person charged with injury to a child, elderly, or disabled person if

(A) there is no evidence that, on the date prior to the offense charged, the defendant was aware of an incident of injury to the child, elderly individual, or disabled individual and failed to report the incident; and

(B) the person was a victim of family violence, as that term is defined by Section 71.004, Family Code,

(i) committed by a person who is also charged with an offense against the child, elderly individual, or disabled individual under this section or any other section of this title;

(ii) did not cause a condition described by Subsection (a)(1), (2), or (3); and

(iii) did not reasonably believe at the time of the omission that an effort to prevent the person also charged with an offense against the child, elderly individual, or disabled individual from committing the offense would have an effect.

Actor Close in Age to Victim

According to Tex. Penal Code §22.04(l)(3), it is an affirmative defense if the alleged offender is no more than three years older than the injured child.

General Defenses & Strategies

In lieu of an affirmative defense, there are generally two ways your attorney can defend your case. Generally speaking, if you didn't commit the crime, then denial or mistake of fact may work in your favor. In many cases, injury to a child is charged subsequent to a false report of child abuse or neglect. This often happens during bitter divorce and custody battles. If you are the victim of a false report, then you should know: (1) Doug Murphy will aggressively pursue your case and your innocence; and (2) the person who falsely made the claim could be charged under Family Code Section 261.107, which makes it a criminal offense to falsely report child abuse or neglect. A first offense of this crime is a state jail felony.

In other cases where there is no specific defense, Doug Murphy will aggressively challenge the evidence, which is often witness testimony. Depending on the circumstances, your constitutional rights may have been violated, and if Doug Murphy determines that was the case, then he will move the Court to suppress the evidence flowing from any and all violations of your constitutional rights.

Contact Our Harris County Criminal Defense Lawyer for Charges of Injury to a Child or Elderly Person

If you have been charged with Injury to Child, Elderly, or Disabled Individual, Houston criminal defense lawyer Doug Murphy will aggressively and comprehensively defend your case. His capabilities have been recognized by the legal community, which has endorsed his name through accolades and frequent invitations to speak at seminars so that he can provide his insight and teach legal defense skills to other criminal defense attorneys throughout Texas and the United States. Murphy & McKinney Law Firm, P.C. represents clients throughout Harris County and other surrounding counties. Contact Murphy & McKinney Law Firm, P.C. today at 713-229-8333.