Injury to a Child/Elderly Attorney Serving Forth Worth and Tarrant County, Texas
At the Fulgham Law Firm, P.C., we understand first-hand how devastating a felony criminal conviction can be, especially when it involves accusations of child abuse. In Texas, those charged with injuring a child or elderly person are almost automatically presumed guilty by police, prosecuting attorney and Child Protective Services (CPS), resulting in serious and sometimes permanent social and legal repercussions. Not only can such a charge cause you to become marginalized by family and friends, it can also lead to extended jail time, harsh monetary fines, and a permanent criminal record.
If you have been charged with injuring a child, we want to help you. Many people face these charges either falsely, or due to reasonably disciplining their children. Whatever the situation presents, we will fight hard for your rights and protect your legal interests, no matter what.
Has A Criminal Detective Called You? What Should You Do?
Many times, the first step in a criminal investigation regarding an injury to a child case is the contacting of the police by someone reporting a bruise or other injury sustained by a child. The investigating officer will take down information from the reporting party and the child and form an opinion about what happened. It is usually at this point that the accused is contacted.
If you are innocent of the charges of injury to a child, this is one of the most critical points of the criminal investigation. It is tempting to agree to meet with the detective to explain your innocence. Beware! Criminal investigators are trained on how to control an interview. One of the main tactics they use is to interrogate witnesses and suspects with leading questions framed to make the accused appear to be guilty.
What happens if you answer the detective’s questions and he interprets your answers as a confession? How can this happen? Many times, investigators will ask questions about the surrounding events to get you comfortable saying “yes” repeatedly. By doing so, the detective is slowly corroborating statements made by the alleged victim to make them appear more credible.
Additionally, it is not uncommon for a detective to misinterpret what the accused is saying. For instance, what if you say, “I only touched them because they grabbed me first.” The detective will likely write down, “Defendant admitted to touching the victim.” By attempting to provide explanation for what actually took place, the detective could misinterpret or manipulate your responses to fit the theory of their case.
So what should you do? You have a 6th Amendment right to counsel and a 5th Amendment right not to answer the detective’s questions. By choosing to hire an experienced criminal defense attorney, the detective is no longer permitted to contact you or ask you questions. Your criminal attorney can reach out to the detective and find out what is the basis for the criminal investigation. Additionally, anything your criminal lawyer says to the detective is hearsay and cannot be used against you in court.
At the Fulgham Law Firm, there many been many instances where clients hire us for a criminal investigation and we will contact the detective and find out what is going on and act as a firewall between the detective and our client. After discovering the detective had very little evidence, the criminal case may no longer move forward because the detective was unable to obtain a statement from the accused.
What does Texas criminal law say about the crime of Injury to a Child?
Injury To A Child Laws In Texas
Under the Texas Penal Code §22.04 entitled “Injury to a Child, Elderly Individual or Disabled Individual” the law provides in pertinent part that:
“(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 disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
(a-1) A person commits an offense if the person is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child, elderly individual, or disabled individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.”
As you can discern from the above, there are varying levels of culpability (i.e. a person must have acted intentionally, knowingly, recklessly, or with criminal negligence), also known as mental states, which are used by prosecuting attorneys and child protective services during its investigation to establish guilt. Hence, a person can still be convicted of causing injury to a child, even if he or she acted unintentionally. Since the statute offers a wide degree of latitude and discretion for those who bring these charges against the accused, aggressive and top-tier representation is a must.
Part of the definition of injury to a child refers to “serious bodily injury.” What does this mean? Under Texas criminal law, “serious bodily injury” is an injury that results in a permanent loss or protracted loss of use of a bodily member or organ. If a child or elderly person is injured to the point of being crippled, unable to use an arm or leg in the same way as prior to the injury or loses the use of any other organ, the definition of serious bodily injury would be met under Texas criminal law.
What does “bodily injury” mean under Injury to a Child or Elderly law in Texas? Bodily injury is defined as feeling pain. This part of the statute borrows from the Texas assault statute regarding what it means to be injury or experienced bodily injury. Does this mean the State of Texas must show bruising, redness or other external proof of injury? No! In fact, under Texas criminal law, the State of Texas must prove beyond a reasonable doubt through the testimony of the alleged victim that they experienced pain as a result of the contact. As a practical matter, failure by the State of Texas to provide proof of visible injuries will make it much more difficult for the prosecutor to bring an injury to a child or elderly case against you.
Is It Illegal To Spank Your Child In Texas?
The most common situation where an injury to a child case arises is within the context of disciplining a child or the spanking of a child. To be clear, Texas law allows reasonable discipline of children. However, what does “reasonable” mean in the eyes of the law? Unfortunately, there is not a bright line rule establishing what is reasonable. As such, it becomes a fact issue that leads to innocent people being arrested for a crime they did not commit.
In order to analyze the criminal defense of injury to a child or elderly, your criminal defense attorney needs to consider the specific facts of your case. Some factual scenarios make it clear that an injury to a child case is valid. For example, if a child has been spanked and has bruising and redness all over their body, no jury will believe this is reasonable discipline. However, not all injury to a child cases are so clear.
For example: is spanking a child on the backside with a belt in a manner that leaves a red mark legal? Some people would see this form of discipline as extreme and believe it is not reasonable. Other Texans that grew up getting spanked would think it is common place – after all, the Bible says, “spare the rod, spoil the child.” As you can see, there can be diverging view point regarding what is “reasonable.”
Legal Defenses To The Crime Of Injury To A Child/Elderly
In addition to hiring the best criminal attorney in Fort Worth, Texas, you should take the necessary time and effort to educate yourself on possible defenses to the crime of injury to a child. We will examine a few legal defenses that have been successfully used by the Fulgham Law Firm for clients charged with the crime of Injury to a Child or Elderly
Lack of Criminal Intent
As mentioned above, the State of Texas must prove that the actions that led to the injury of the child or elderly were intentionally, knowing or reckless. What does it mean to act intentionally? Under Texas Penal Code, Section 6.03, a person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. For example, if someone makes me angry and look them straight in the face and punch them in the nose, I acted “intentionally” in my conduct for assault.
What does it mean to act “knowingly?” Under Texas Penal Code, Section 6.03(b), a person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. If someone acts in a manner where he is aware that his conduct is reasonably certain to cause the result, he is acting knowingly. For example, if someone shoots at another person only wanting to injure them but the shooting results in their death, they acted in a knowing manner regarding their conduct.
What does it mean to act “recklessly?” Under Texas Penal Code, Section 6.03(c), a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of by consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. For example, if someone punches at a guy at a bar knowing his girlfriend is next to him and the punch hits the girlfriend, he has acted recklessly as to his conduct.
Why does this matter? If you did not act intentionally, knowingly or recklessly, you are not guilty of the crime of injury to a child. In other words, if the injury was legitimately an accident or mistake, your injury to a child case should be dismissed.
As mentioned above, if the bodily injury to the child was the result of reasonable discipline to the child, your criminal attorney should make a presentation to the grand jury to have your injury to a child case no billed by a grand jury. Every felony in Texas must be presented to a grand jury for indictment. If the evidence against you is weak, your criminal defense lawyer can make a presentation to the grand jury to either lower your case to a lesser misdemeanor charge or have the case thrown out completely by a no bill.
“Injury” Can Not Be Proven
If contact between the accused and the child or elderly individual occurred, the State of Texas must still prove that serious bodily injury or bodily injury occurred. If serious bodily injury occurred, you could be facing up to 20 years in prison and up to a $10,000 fine. If bodily injury occurred, you could be facing up to 10 years in prison and up to a $10,000 fine.
But what if someone was just offended and not injured? We have seen this happen frequently with Injury to Elderly cases. The alleged victim was offended by the contact and the police interpreted the contact as a felony crime but no evidence was provided establishing a bodily injury. Your criminal lawyer should thoroughly examine your evidence to determine if there is a reasonable doubt regarding the State’s legal burden to prove serious bodily injury or bodily injury.
Without having the best criminal defense attorneys by your side, you could be convicted of a felony, which, depending upon the facts of each case, carries with it a range of punishment from 180 days to 99 years, of life, in a Texas state penitentiary. There are a number of possible defenses that can be raised on your behalf, which is essential in having charges either reduced or dropped. With this in mind, don’t take unnecessary risks representing yourself or hiring a lawyer who is inexperienced in handling these complex types of cases. Contact the Fulgham Law Firm, P.C. now to receive the zealous criminal defense representation you deserve.
Call us right now to get help.
We’ve helped hundreds of people in Texas and we can help you too. We’ll set you up with a free conversation with Mr. Fulgham which will help you know what to do next. The Fulgham Law Firm serves Fort Worth and Tarrant county areas and is a team of Former Prosecutors with over 80 years of criminal law experience and over 500 criminal jury trials in the courts of Tarrant County and other courts in the North Texas area.