I respectfully dissent. Although this is a particularly revolting crime, the state has made the fundamentally fatal mistake of charging a crime by omission rather than by commission.
This appellant was convicted on proof that does not constitute an offense. The Court of Criminal Appeals,subsequent to the 1977 legislative amendment to TEX.PENAL CODE ANN. § 22.04, held that it was reversible error to charge a crime by omission without alleging a statutory duty to act. Smith v. State, 603 S.W.2d 846 (Tex.Crim.App. 1980). Although the defendant Smith was tried in 1975, prior to the 1977 amendment, the Court of Criminal Appeals (en banc) reaffirmed their Ronk1 opinion and held that the failure to allege a duty to act was a fundamental defect in an indictment alleging a crime of omission. The court did not distinguish the amended language in § 22.04, and the court specifically cited § 6.01(c) for the proposition that ". . . a person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to act." Smith v. State,603 S.W.2d at 847.
I do not agree with the majority that the 1977 legislature "created" a new criminal offense by their amendment to § 22.04. The Texas Legislature has only seen fit to place a statutory duty to provide medical care to a child on theparents of that child. TEX.FAMILY CODE ANN. § 12.04(3) (Vernon 1986). Until the legislature enacts a statute providing that a "live-in" of a parent has a duty to provide such care for a child, we should not try to create an offense because we are shocked by the non-action of the appellant.
I would follow the holding of the Texas Court of Criminal Appeals in Smith and reverse and remand the cause to the trial court for a new trial.