dissenting.
Because I believe the majority opinion focuses on the incorrect issue in this case, and further, that it imposes a duty to act without providing a legal means to act, I am compelled to dissent.
Appellant was convicted of injury to a child. The indictment alleged that appellant “failed to remove Richard Hutchins from the presence of Teresa Hutchins.” The indictment does not allege that appellant had a duty to remove the child from his mother. The majority concludes that the State was not required to prove that the appellant had a duty under the Family Code to protect the victim in order to convict appellant of the crime as alleged in the indictment. However, in order for appellant to be guilty of a crime by omission, he must have some means by which to act, and then fail to utilize those means. Under Section 22.04, an omission can amount to an offense if the actor has “assumed care, custody, or control of a child.” Y.T.C.A., Penal Code, Section 22.04(b)(2). However, the statute fails to provide a legal method for such an actor to remove the child. The court of appeals correctly concluded that appellant lacked the necessary mens rea for the offense, since he was unable to remove the child from his mother by legal means.
The majority opinion focuses on the “assumed care, custody and control” language of the injury to a child statute. V.T.C.A., Penal Code, Section 22.04(d). The majority incorrectly assumes that the Court of Appeals’ opinion relies on the lack of a familial relationship to find that appellant cannot be found guilty of this crime by omission. However, the Comí; of Appeals’ opinion only states that the appellate court believed the State advanced a familial relationship theory. The appellate court’s opinion does not rely on such a theory. The court determined that, regardless of this theory, appellant had no legal means by which to act to remove the child from his mother and, thus, could not be found guilty by omission.
The majority carelessly dismisses this case as a simple situation of strict criminal liability based on appellant’s actions in accepting the child victim, Richard Hutchins, into his home. However, the statue does not actually address the situation presented in appellant’s case. Section 22.04(b)(2) makes an omission an offense if “the actor has assumed care, custody or control of a child, elderly individual, or invalid individual." (emphasis added). Clearly the statute was written to protect people who are unable to take care of themselves, and have no one to guard then-interests. However, appellant’s case involves a situation where appellant has taken a child into his home under the guardianship of the child’s natural mother. Thus, while appellant did assume some control of the child, as defined in the Penal Code in Section 22.04(d), there was a parent on hand with superior legal responsibility for the child. Thus, appellant should not be guilty of this crime by omission where the child’s mother injured the child.
Further, the majority asks appellant to do the impossible, holding that appellant has a legal duty to act, under Section 22.04(b)(2), despite the fact that appellant had no legal power to act. Specifically, the indictment charged that appellant “did ... intentionally and knowingly, by omission, engage in conduct that caused serious bodily injury to a child ... by failing to remove the said [child] from the presence ...” of his mother. Hawkins v. State, 855 S.W.2d 881 (Tex.App.—Ft. Worth, 1993). However, appellant had no legal authority whatsoever to remove Richard Hutchins from his mother. Certainly, appellant had the physical power to act, but this does not mean he was legally empowered to so act. The Family Code sets out the rights, duties and responsibilities not only for parents but also for guardians of children. Nowhere in the Family Code would appellant have the legal ability to override the authority of the child’s natural mother, Teresa Hutchins. The Penal Code should not be used to require a person to take actions he is not legally empowered to take, such as physically removing a child from his mother. The majority’s decision imposes unfair and unrealistic responsibilities on persons without giving them any legal recourse.
To take this scenario to an extreme, imposing criminal liability on appellant in this context raises the specter of a dangerous result. *264An actor who, without any legal protection, duty, or benefit, acts as the majority would have, and removes a child from the physical presence of his lawful parent or guardian, faces subsequent criminal charges arising from his actions of removing the child, which could be perceived as kidnapping. Thus, the actor is being assigned a duty to act without the full protections and benefits of the law. Unlike the majority, I am not willing to do this.
Because I believe, the Court of Appeals correctly determined that there were no legal means by which appellant could remove the child, thus depriving appellant of the mens rea to commit the crime of injury to a child by failure “to remove Richard Hutchins from the presence of Teresa Hutchins,” I would affirm the judgment of the Court of Appeals. Accordingly, I dissent.
OVERSTREET, J., joins this dissenting opinion.