dissenting.
Because I do not believe the legislature has defined “another,” “person,” or “individual” to include an unborn fetus, even if later born alive, I dissent from the majority’s disposition of points of error one and two.
In Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991), the court of criminal appeals, relying on Tex. Const, art. II, § 1, stated the “lawmaking” function is assigned to the legislature and the “law interpreting” function is assigned to the judiciary. In discharging this assignment, the judiciary should “seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin, 818 S.W.2d at 785. See also, Camacho v. State, 765 S.W.2d 431, 433 (Tex.Crim.App.1989). To determine legislative intent, we focus first on the literal *142text of the statute because this is the only definitive evidence of what the legislators intended when the statute was enacted into law. Boykin, 818 S.W.2d at 785. If the statute is clear, the inquiry is over. Ex parte Matthews, 938 S.W.2d 134, 138 (Tex.Crim.App.1996).
Contrary to the majority, I find no ambiguity in the intoxication manslaughter statute. That statute provides that a person commits the offense if he is intoxicated and by reason of that intoxication, causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08 (Vernon 1994). “Another” is ultimately defined in the penal code as “a human being who has been born and is alive.” Tex. Penal Code Ann. §§ 1.07(5), (27), and (38) (Vernon 1994) (emphasis added).
We must presume the legislature did not make a mistake in choosing the words and grammatical structure used in this statute. The grammatical structure of this sentence clearly evidences the legislature’s intent that an entity must already be living at the time the proscribed conduct occurs. The penal code has not proscribed any conduct with respect to a fetus, and the legislature, by its definitions of “another,” “person,” and “individual” has specifically limited the application of our penal laws to conduct committed against a human being who has -been born and is alive. The United States Supreme Court has said that the unborn are not persons under the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 158, 93 S.Ct. 705, 729, 35 L.Ed.2d 147, (1973). I conclude therefore that the legislature intended that any conduct proscribed by the penal code must occur against a victim who “has been born and is alive” at the time the conduct occurs. See Collins v. State, 890 S.W.2d 893, 898 (Tex.App.—El Paso 1994, no pet.); Boushey v. State, 804 S.W.2d 148, 150 (Tex. App.—Corpus Christi 1991, pet. refd) (under Texas law, a “person” is defined as a “human being who has been born and is alive”).
I find Showery v. State, 690 S.W.2d 689 (Tex.App.—El Paso 1985, pet. refd), to be persuasive. In that case, a doctor delivered a fetus and then caused the death of the newborn by suffocating it. The jury charge defined “individual” as “a human being who has been born and is alive” as prescribed by § 1.07(a)(17) of the penal code. Applying the foregoing definition, the Showery charge required the jury to find that the individual allegedly murdered by Showery had been born alive and was alive at the time of the alleged misconduct.
In affirming Showery’s conviction, the El Paso Court of Appeals noted that the penal code necessitated findings of live birth and actual life at the time of Showery’s conduct. Showery, 690 S.W.2d at 694. I see no reason to apply a different standard here. In order for the jury.to convict, appellant, the penal code necessitated findings of live birth and actual life at the time of appellant’s conduct. It is uncontroverted that Ms. Coronado had not yet given birth to Krystal Zuniga at the time of the accident; thus there was no actual life at the time of appellant’s conduct.
It is a rule of statutory construction that words and phrases omitted from a statute are presumed to be omitted for a purpose. If the legislature had intended criminal consequences for conduct occurring before the birth of the fetus, it could have easily done so. For example, in Tex.Rev.Civ. Stat. Ann. art. 4512.5 (Vernon 1976), the legislature prohibited destroying the “vitality or life in a child in a state of birth and before actual birth.” (Emphasis added).1 If the legislature had intended for criminal consequences to attach to conduct occurring before the “victim” is born, it could have defined “another” in such a manner as to apply to conduct occurring before birth. It chose not to do so.
I find nothing in the Texas Penal Code to demonstrate a legislative intent that an unborn fetus, even if later born alive, is to be embraced within the scope of the intoxication manslaughter statute. As such, I find no ambiguity in the statute necessitating the application of the extra-textual factors considered and applied by the majority. As stated by the dissent in Presley v. Newport Hosp., my conclusion is
*143... in no way dependent upon whether a fetus is a person in the philosophical, theological, or scientific sense, nor is my belief based upon the Supreme Court’s ... pronouncements in the area of abortion. [Even though] we have made great strides in the field of the sciences and we have read with great respect the writings of learned philosophers and theologians, we [must] remember that such individuals cannot create a right of action at law, for this is the job of the Legislature.
117 R.I. 177, 365 A.2d 748, 756 (1976) (Kelleher, J., dissenting) (cited by Witty v. Am. Gen. Capital Dist., Inc., 727 S.W.2d 508, 504-05 (Tex.1987)).
By its opinion, the majority holds that the legislature, in enacting § 49.08, intended “another” to include a viable fetus, and has declared by judicial fiat that the time has come to prosecute, under the intoxication manslaughter statute, one who inflicts injury upon an unborn, but viable fetus whose death does not occur until after it has been delivered. In so doing, the majority has drastically rewritten the manslaughter statute under the guise of “construing” it. From such judicial activism I must dissent.
Relying on Collins, I would also sustain appellant’s second point of error, that the statute is unconstitutionally vague as applied to his conduct. The majority wholly fails to address Collins’s discussion of legislative intent with respect to the definition of a person, choosing instead to summarily dismiss the El Paso Court of Appeals’s well reasoned opinion because it conflicts with the majority’s perception that § 49.08 of the Texas Penal Code is ambiguous.
Appellant clearly alleged he lacked adequate notice that a “person” such as Krystal Zuniga could be included in the definition of “another;” thus, it is irrelevant that, as pointed out by the majority, he did not dispute he had sufficient notice he was driving his ear while intoxicated.
To determine whether a criminal statute is vague, the initial inquiry should be whether an ordinary, law-abiding citizen would have received sufficient information that his conduct risked violating a criminal law. Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989); Collins, 890 S.W.2d at 897. Because there is nothing in § 49.08 which gives an ordinary citizen notice that he could be prosecuted for injury to a fetus, I would hold that this statute is unconstitutionally vague as applied to appellant.
My decision rests, of course, with what I perceive the law to be in this matter. I am, however, in no way insulated from feelings which acknowledge the anguish suffered by Ms. Coronado in the death of her child and the scope of the overwhelming tragedy that has occurred. I am constrained by the statute as it has been enacted by our legislature. If the law is to be changed to allow prosecution for conduct such as appellant’s, that change must come from the legislature, not from this Court. See Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 79, n. 1 (Tex.1997).
. This article was not invalidated by the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Op. Tex. Atty. Gen. No. H-369 (1974).