By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Being criminally charged with injury to a child can be Earth shattering.
These cases come with all sorts of built-in hurdles such as self-assured prosecutors or CPS members, complications from ongoing divorces, and a lack of understanding of someone being accused. Aggressive and skillful representation is a must.
Tex.Pen.C. 22.04 is called, “Injury to a Child, Elderly Individual or Disabled Individual.” That law states in relevant part,
“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
“(1) serious bodily injury (defined 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’);
“(2) serious mental deficiency, impairment, or injury; or
“(3) bodily injury (defined as ‘physical pain, illnes, or any impairment of physical condition’).
Here are several notes about cases of injury to a child — First is that these cases are highly subjective. Standards such as intentionally, knowingly, recklessly or with criminal negligence are subjective enough. If that weren’t enough, an injury sustained by a child can also be highly subjective in nature. This means that police agencies in Texas as well as Child Protective Services (“CPS”) have very broad discretion in pursuing these cases.
Secondly, there are many defenses and affirmative defenses available to people accused of injury to a child in Texas. The main defense is provided by Tex.Pen.C. 9.61 which allows the use of force, but not deadly force, against a child younger than 18 years of age (1) if the actor is the child’s parent or step-parent acting in loco parentis to the child (which includes grandparents, guardians, or any person acting by, through, or under the discretion of a court with jurisdiction over the child, and anyone that has the express or implied consent of the parent or parents of the child); and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
Injury to a child can be anywhere between a First Degree Felony (5 to 99 years) to a State Jail Felony (18 months to 2 years State Jail) depending on how the offense was committed and on the nature of the injury.
Investigations of these cases can seem innocuous enough from the accused’s standpoint. It isn’t uncommon for law enforcement or CPS to call and ask the accused to come and answer questions in an ‘informal’ setting. Any person requested to give a statement to law enforcement or CPS about an injury to a child case should immediately contact counsel.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice for any specific matter you should consult an attorney directly.