Lead Opinion
OPINION ON STATE’S MOTION FOR REHEARING
On original submission of this cause, the conviction for the offense of injury to a child was set aside for the reason that a child fourteen years, one month and five days old is not a child who is “fourteen years of age or younger” protected by V.T. C.A. Penal Code, Sec. 22.04. On rehearing, the State asks our reconsideration of the question. This we shall do.
Although the sufficiency of the evidence is not challenged, the record reveals that the appellant was in charge of Indian Springs Boys Ranch, a home for pre-delin-quent children. On September 12, 1976, appellant was using at least two of the boys to assist him in blasting a ditch in rock by the use of dynamite when one of them sustained serious bodily injury consisting of
In two grounds of error, appellant contends that the child was not 14 years of age as contemplated by V.T.C.A. Penal Code, Sec. 22.04(a), since he had passed his fourteenth birthday, and that Sec. 22.04, supra, is constitutionally vague because the standard of care imposed “is not and cannot be defined.”
V.T.C.A. Penal Code, Sec. 22.04 reads as follows:
“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury . . . to a child who is 14 years of age or younger.”
It is important to note that the phrase “14 years of age or younger” is written in the disjunctive, thereby making it quite obvious that the statute was intended to рrotect two distinct groups of children: those who are fourteen years of age and those who are under fourteen.
The appellant contends and the Panel on original submission held the phrase “14 years of age” to mean one who has reached his fourteenth birthday, but that thereafter he was over fourteen years of age, even though he had not reached his fifteenth birthday. This interpretation of the statute limits the duration of the protection afforded to fourteen year olds to a period of one day or less. As authority for this conclusion, the Panel opinion cited V.T. C.A. Penal Codе, Sec. 1.06, which provides as follows:
“A person attains a specified age on the day of the anniversary of his birthdate.”
This statute was obviously an intent on the part of the Legislature to abolish the old common law rule that a person attains a given age at the last moment of the dаy preceding the anniversary of birth, not as a limitation on the period of time one remains at a given age.
Sec. 22.04, supra, in protecting a child “14 years of age or younger,” is the only statute in the Penal Code using this phraseology. There are, however, ten statutes in the Penal Code where the term “younger than” a certain age is used.
We hold that Seс. 22.04(a) includes in its protection all children who have not attained their fifteenth birthday, and that the victim in this case was thus protected.
In his second ground of error, appellant contends that Sec. 22.04 is unconstitutionally vague because the standard of care imposed upon a defendant is not, and cannot be defined. Appellant goes further to claim that under the terms of Sec. 22.04, supra, he “cannot determine what acts or omissions are to be refrained from or what acts a person has a duty to do.”
The indictment in the instant case provided, eliminating the fоrmal parts, that the appellant, on the 12th day of September, 1977,
“did then and there with criminal negligence engage in conduct, to wit: allowing boys under his supervision to use dynamite for blasting rocks in a ditch at Indian Springs Boys Ranch, that caused serious bodily injury to Lacy Jordan, a child 14 years of agе.”
Appellant in this case was charged with criminal negligence which is defined in V.T. C.A. Penal Code, Sec. 6.03 as follows:
“(d) A person acts with criminal negligence, оr is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of 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 the failure to perceive it 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.”
Appellant’s contention that this statute is unconstitutionally vague for its failure to define the standard of care is without mеrit.
In Wingate v. State,
In Lewis v. State,
In Nabors v. State,
“[i]f the act complаined of was done in the exercise of the right of moderate restraint or correction given by law to the parent over the child . . . ”
The defendant claimed that this statute was “vague because it is lacking in ascertainable standards so that a person of ordinary intelligence is nоt given fair notice that his contemplated conduct is forbidden.” In holding that this portion of the statute was not unconstitutional, we quoted 44 Tex.Jur.2d, Sec. 17, p. 43:
“The law has not and obviously could not lay claim any fixed measure of moderation in the correction of a child. Whether in any partiсular case the correction was moderate or excessive must necessarily depend on the age, sex, condition and disposition of the child, and on all the attending circumstances to be determined by the jury under proper instructions.”
Likewise, the law could not possibly antiсipate every instance where an individual’s conduct would constitute “a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances . . . ” Whether an actor’s conduct constitutes a gross deviation from the standard of carе which would be exercised by an ordinary person in the same circumstances constitutes a question of fact to be resolved by the fact finder after proper instructions. We conclude that the definition of criminal negligence as contained in V.T.C.A. Penal Code, Section 6.03(d), supra, adequately describes the prohibited conduct and gives proper notice of the conduct forbidden. See Dockery v. State,
The State’s Motion for Rehearing is granted, and the judgment is affirmed.
Notes
. See Penal Code Sec. 8.07, Age Affecting Criminal Responsibility; Sec. 9.61 Parent-Child; Sec. 20.01 Kidnaрping; Sec. 21.09 Rape of a Child; Sec. 21.10 Sexual Abuse of a Child; Sec. 21.11 Indecency with a Child; Sec. 25.03 Interference with Child Custody; Sec. 25.05 Criminal Non-Support; and Sec. 43.24 Sale, Distribution, or Display of Harmful Material to Minor.
Dissenting Opinion
dissenting.
I also dissent. While I do not particularly disagree with the views expressed by Judge Odom in his dissenting opinion, rather than enter into the squabble about the meaning and applicability of V.T.C.A. Penal Code, Section 1.06
The perplexity nagging the majority— the singular phraseology of Section 22.04— is resolved by the result of first application of the common acceptation rule to this problem in Bell v. State,
In these times of earlier maturity of children, at least as seen by most, I perceive no policy reason impelling the Legislature in 1971 or 1973 to depart from the settled understanding of the meaning of “child” as a victim of violence or sexual abuse. And, in my judgment, it did not.
Accordingly, I dissent.
ROBERTS and PHILLIPS, JJ., join.
. Section 1.06 really just changes by one day the common law rule that a person attains a given age at the first moment of the day preceding the anniversary of birth, 86 C.J.S. 832; apparently that rule, early approved in Ross v. Morrow,
. Wilman v. State,
. Article 1147, Penal Code 1925 made an assault or battery aggravated when, in subdivision (9), it was committed by an adult male upon the person of a “child,” and then provided that the subdivision “shall not apply to the act of person who fondles . the sexual parts of a male . . . under the age of fourteen (14) years . . . .” See Article 535d, Penal Code 1925 and Daywood v. State,
. See Texas Penal Code, A Proposed Revision, Final Draft, October 1970, West Publishing Co., St. Paul. As the disposition table shows, at that time Article 1148a, Penal Code 1925, as amended, did not exist.
. Actually the phrase “14 years of age or younger” did not originate in the 1973 Penal Code revision. It first appeared in a House committee amendment to Senate Bill 445 that was enacted as Acts 1971, 62nd Leg., ch. 911, § 1 and was codified as Article 1148a, Pеnal Code 1925. Initially, as introduced and as passed by the Senate, the bill proscribed intentional battering of a child — without definition; the House adopted a committee amendment that inserted the phrase in two places following the word “child,” thusly: “a child who is 14 years of age or younger,” 1971 House Journal 3481; the Senate concurred in the amendment, 1971 Senate Journal 1326. Section 2 of the same bill amended subdivision (9) of Article 1147, supra, to limit an aggravated assault to one committed “by an adult male upon the person of a female,” thereby deleting the special catеgory of “child” as a victim of aggravated assault, except as to fondling etc. The result was that a regular aggravated assault on anyone committed by other prescribed means was punishable by provisions of Article 1148, Penal Code 1925 — a maximum of two years confinement and a thоusand dollar fine— whereas an assault that constituted child battering, as denounced by newly enacted Article 1148a, supra, was punishable by confinement for a maximum of five years. As thus reviewed and analyzed the essential purposes of Senate Bill 445, as I see them, were to regard a child like any other person as a victim of aggravated assault — retaining, however, a special distinction for cases of sexual abuse of a child under the age of fourteen years — but to provide additional protection from the more serious as-saultive offense of inflicting serious physical injury on a child, rather than to add 365 days to the settled application of the age of a “child.”
In this connection my view seems supported by the Practice Commentary following § 22.04, which states:
“The section restores prior Article 1148a, enacted in 1971, but substantially increаses the penalty of that former offense.
* * * ‘Child’ was defined by the courts as a male younger than 14 and female younger than 12, e. g., Wilman v. State, [63 Tex.Cr.R. 623 ,]141 S.W. 110 (Cr.App.1911). Section 22.04 standardizes the deñnition for both sexes at age 14 . . . ”
. As noted in Introduction to 1973 Revision, Texas Penal Code, the draft that was introduced in 1971 “was not acted on by either house,” 1 V.T.C.A. Penal Code vii.
Dissenting Opinion
dissenting.
I dissent to the majority’s disposition of appellаnt’s second ground of error. The majority erroneously construe the phrase “14 years of age or younger” in Sec. 22.04, V.T.C.A. Penal Code, to refer to “two distinct groups of children.” The result is that the phrase is held to be equivalent in scope to the phrase “younger than 15 years.” The majority оpinion does point out that the Penal Code in at least ten instances does use the terminology of “younger than” a certain age. See, e. g., the provisions listed in footnote 1 of the majority opinion. To borrow a proposition that is sound, although misapplied by the majority: Hаd the Legislature intended to protect all children under fifteen years of age, it would have been a simple matter for them to have so provided by the use of the phrase “younger than.” The fact that such language was not used in Sec. 22.04, supra, coupled with the fact that such language is usеd as a standard form of terminology in numerous other provisions of the same Act, is strong evidence of legislative intent that “14 years of age or younger” has a meaning distinct from, not equivalent to, “younger than 15 years.”
To the majority’s erroneous construction of Sec. 22.04, supra, I respectfully dissent.