concurring.
I join the opinion of the Court, but I write separately to make a few additional comments.
Someone once said that the moral test of a society is how it treats those in the dawn of life, its children, those in the twilight of life, the aged, and those in the shadows of life, the sick and the disabled. The Texas Legislature responded to that moral challenge, in part, by enacting Penal Code § 22.04, which was, and is, intended to protect the young, the old, the sick, and the disabled from abuse at the hands of those very people who are supposed to take care of them.
At the time of the offense in question, § 22.04 provided in relevant part:
(a) 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 invalid individual:
(1) serious bodily injury;
(2) serious physical or mental deficiency or impairment;
(3) disfigurement or deformity; or
(4) bodily injury.
(b) An omission that causes a condition described by Subsections (a)(1) through (a)(f) of this section is conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of a child, elderly individual, or invalid individual.
(c) In this section:
(1) “Child” means a person 14 years of age or younger.
(2) “Elderly individual” means a person 65 years of age or older.
*262(8) “Invalid individual” means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself, (d) The actor has assumed care, custody, or control if he has by act, words, or cozcrse of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or invalid individual.
(Emphasis added.)1 Thus, as the Court’s opinion today states, § 22.04(b)(2) “creates a duty to act if the actor has assumed care, custody, or control” of a child, elderly individual, or invalid individual. Even then, a defendant may not be convicted for an omission that indirectly causes injury unless that omission was accompanied by a requisite mental element.
On April 12, 1991, the Wise County grand jury indicted appellant for violating § 22.04(a)(1). The indictment alleged that appellant
did ... intentionally and knowingly, by omission, ... cause[ ] serious bodily injury to Richard Hutchins, a child younger than fourteen (14) years of age, by failing to provide protection for the said Richard Hutchins, to-wit: by failing to remove the said Richard Hutchins 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 the said Richard Hutchins, and Terry Hawkins had then and there assumed care, custody, and control of Richard Hutchins.
The evidence at appellant’s trial told a disgustingly familiar tale of social woe so common in the late 20th Century: In 1990, appellant, then 27 years old, was married but separated from a woman with whom he had had a child. Teresa Hutchins, too, was married but separated from a man with whom she had had a daughter and with whom she was then expecting another child. Appellant was unemployed and apparently had no income, but Hutchins was receiving governmental assistance in the form of food stamps, welfare payments, and Medicaid payments. Appellant and Hutchins, who had known one another sometime before, began to date during this period and were soon living together.
In early 1991 Hutchins gave birth to her second child, Richard. Around this time, appellant and Hutchins moved into a mobile home in Wise County. Appellant found work and provided some money for the children and Hutchins, to whom he referred as his “old lady.” Appellant disciplined Hutchins’ daughter and generally treated her children as his own — although at trial appellant denied ever “accepting responsibility” for the children.
In March 1991, appellant observed three instances in which Hutchins handled seven-week-old Richard in a seriously improper manner. As the court of appeals explained:
On one occasion Hutchins picked the baby up from the sofa by the shirt and dropped it back down to keep it quiet. On another occasion the baby was lying on the sofa and would not take its bottle and Hutchins grabbed it by the shirt collar and tossed it against the corner of the sofa, three different times. On the occasion preceding the one causing [injury], the baby was crying and Hutchins picked it up and let it drop four feet to the blanket below.
Hawkins v. State, 855 S.W.2d 881, fn. 2 (Tex.App.—Fort Worth 1993). Despite witnessing these three occurrences, appellant took no steps to ensure the baby’s safety. And, on April 5, 1991, Hutchins, again in appellant's presence, swung the baby by his feet and struck his head against the arm of a sofa, causing permanent injury to his brain. It was this incident that led to appellant’s indictment.
It is plain to me that § 22.04(b)(2) was designed specifically to cover situations such as these. Live-in partners of abusive adults can no longer sit idly while defenseless children — or adults — are abused and injured. Those who do violate our law and deserve our condemnation and scorn.
. In 1991 the Legislature amended § 22.04 in a manner not relevant to this discussion.