concurring.
There is more than meets the eye of the majority of the Court.
The indictment in this cause alleged that on or about March 22, 1991, appellant:
"... did then and there intentionally and knowingly, by omission, engage in conduct that caused serious bodily injury to ... a child younger than fourteen (14) years of age, by failing to provide protection for the said [child], to-wit: by failing to remove the said [child] from the presence of Teresa Hutchins aka Teresa Hawkins when he knew that Teresa Hutchins aka Teresa Hawkins was a threat to the health and safety of said [child] and Teny Hawkins had then and there assumed care, custody, and control of [the child.]”
Hawkins v. State, 855 S.W.2d 881 (Tex.App.—Fort Worth 1993).1
From an amalgamation of briefs of the parties and portions of the record, we may glean germane facts not seriously in dispute, viz: In the Fall of 1990 appellant was twenty seven years of age; he was still married to, but separated from, a woman with whom he had a child now three years old. Teresa Hutchins was also married, but separated from, a man with whom she had a daughter and who would be the father of the child she was then expecting. Appellant and Hutchins renewed a prior relationship when she came to visit his home, and thereafter they began dating in the latter part of 1990. Soon they were living together, and in early 1991 she gave birth to her second child, the victim in this cause.
Hutchins was receiving federal assistance, including food stamps, AFDC and Medicaid; appellant was unable to find construction work. They moved to Wise County for appellant to seek work, and set up house in a mobile home. Appellant referred to Hutch-ins as “my old lady” and treated her children as his own. He found a job, provided food and shelter for Hutchins and the children, and appropriately disciplined the daughter “with the permission of her [mother].” Hutchins tended to her new baby boy. However, appellant “never felt he accepted responsibility for [the children]” since Hutchins “took care all the matters involving her children and herself.” IV S.F. 644.
Apparently all in March, appellant observed three instances when Hutchins engaged in what the prosecution characterizes as “acts of abuse” to the baby boy. See Hawkins v. State, supra, at 881, n. 2.2 Be*260cause appellant testified that he had “no idea” that what occurred on April 5 was likely to happen, the prosecutor confronted him with each instance seriatim. Appellant responded, respectively, (1) that he “thought the situation there was under control;” (2) that he had “no idea;” (3) that he thought “she had just slipped her grip,” he did not think it was “done on purpose,” but did tell her “not to treat the baby that way” since that would be considered “rough, in my opinion.” IV S.F. 624-627. To his admonition Hutchins retorted, “It’s my goddam kid and you don’t worry about it.” Ill S.F. 520; State’s Exhibit 13, at 6, V S.F. 926.
The State’s theory of prosecution, that on or about March 22, 1991, appellant “failed to remove the [child] from the presence of [his mother],” is based essentially on that third incident. See Court’s Charge, part V, Tr., at 40.
Because appellant did not consider “calling anybody or getting any kind of help at any of those points” since “it wasn’t my children,” he felt there “really wasn’t much I could do.” At the time he could not think of what he could have done to prevent such instances in the future. He had heard of “a child being removed from a home by the State,” but did not know how it was done; he did not know it possible “to report a case of child abuse,” made no attempt to do so; he never tried to find out whether there was any place to report it “anonymously or otherwise;” he never did “try to take the baby away from [his mother]” or “to stand between her and the baby or take him away or anything of that sort.” IV S.F. 643-646.
As a result of bodily injury inflicted on or about April 5, the seven week old boy suffered permanent brain damage, but survived.
Both the indictment and the charge of the Court focus on “failing to provide protection” to the child, specifically “by failing to remove the [child] from the presence of [his mother.]” Tr. 1 and 40-42.
Appellant contended in his motion in arrest of judgment and in the court of appeals that there was no proof he had a right to take personal possession of the child to remove him from the presence of his mother, and thus cannot be punished for failure to do so; further, that in the premises he had no standing to file an action under the Texas Family Code, Chapter 11, for a managing conservatorship of the child. Therefore, he was without lawful means of taking thé child from its mother. Appellant’s Brief, Point of Error 4, at 18 ff.
The State responded in essence that the evidence was sufficient to show that appellant assumed the duty to protect the child and failed to remove the child from the presence of its mother “intending or knowing that serious bodily injury would result.” State’s Brief, Point of Error 5, at 11. As to appellant’s “ability” to act the State asked rhetorically: “Why would the Legislature first create a duty to prevent the injury to a child or other person, but then not also give the actor the legal right or ‘ability’ to stop the injury by whatever means might be necessary?” The State argued that “[e]very person legally has the ‘ability’ to stop child abuse because such an act would be justified under current law,” citing sections 9.02, 9.22, 9.31, 9.32 and 9.33. The State concluded: “Coupled with that ability to act is a statutory duty to act when the person has assumed care, custody, or control of a child — and possible criminal liability when such a person failed to act.” Id,., at 12-13. The State adds, “Appellant makes no claim that he did not have the physical ability to remove [the child] from danger,” pointing out that appellant never made any attempt “to remove the child or stop the abuse[;]” rather he tried to justify “his perceived lack of ‘ability’ to intervene[.]” Id., at 13.
The court of appeals dismissed what it characterized as the State’s “familial relationship theory,” in favor of its view that appellant “had no legal means to remove the child because he was not the child’s father, was not Hutchins’ husband, and had not lived with the child for more than six months when the incident occurred,” as required by the Fami*261ly Code. Accordingly, the court of appeals concluded:
“... In essence, the State is asking this court to impose upon Hawkins parent-child duties without the benefits of family code remedies. We cannot do this because when the accused is unable to perform the act which he is accused of omitting, he lacks the necessary means rea for the offense. See Montgomery v. State, 376 S.W.2d 839, 841 (Tex.Cr.App.1964).”
Hawkins, supra, at 880.
In these circumstances for this Court to conclude only that State was not required to prove a duty under the Texas Family Code, majority opinion, at 259, is not enough to resolve the truly troubling questions also presented in this cause regarding the meaning and practical functional operation of § 22.04(b)(2).3 Because the State specifically urges this Court to construe § 22.04(b)(2) and related provisions, we should address the issues raised and submitted in briefs and oral argument. Alternatively, since the cause must be remanded, we ought to give the court of appeals the opportunity to reconsider its initial reasons and disposition in light of the opinion of this Court concerning the role of § 22.04(b)(2).
Accordingly, I concur only in that part of the judgment reversing the judgment of the court of appeals.
MALONEY and MEYERS, JJ., joins.. All emphasis throughout this opinion is mine unless otherwise indicated.
. In the court of appeals the State, through its local district attorney, represented that the victim was “severely beaten ” by his mother. State’s Brief at 1. Later in the same paragraph it says that over the course of several weeks appellant witnessed "numerous acts of abuse” at the hands of his mother, and in context it is fairly clear that the writer was not then equating the prior "acts of abuse" with being "severely beaten.” Id., 1-2. Nonetheless, in its petition for discretionary review a different writer says the mother "severely beat the child on three occasions in the presence of [appellant] with the final one occurring on April 5 1991.” State’s PDR, at 1-2.
The common source of those representations is the written statement of appellant taken by a Texas Ranger. State's Exhibit 13, III S.F. 502, at 512-521; V S.F. 926. Suffice to say that the court of appeals did not so construe his state*260ment. Compare Hawkins v. State, note 3, and accompanying text. Neither should the majority here. Majority Opinion at 258.
. The reason given by the local district attorney for granting review is based on Tex.R.App.Pro. 200(c), and he submits the following important question of law, viz:
"[D]oes section 22.04(b) ... mean what it says, to-wit, that a person can be held criminally responsible for his failure to act if he has assumed care, custody and control over a child even if he would otherwise have no statutory or legal duty to act.”
PDR, at 3. The State Prosecuting Attorney submits substantially the same reason, as well as others. PDR, at 6-7.
In his brief the district attorney argues:
"... [T]he creation of a duty to act automatically gives a person the means to act. Further, every person has the right and means to prevent injury to another. See generally Tex.Penal Code Chapter 9. Once a duty was created to prevent the injury to the child, there is no question that he had the 'legal means’ to remove the child from the abusive mother. That is, he had the ‘means' to do such things as contact Child Protective Services or physically pick up the child and remove him to another room.”
Id., at 10. The State Prosecuting Attorney argues to the same effect. State’s Brief on the Merits, at 7, 10.