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Click here for the full text of this decision FACTS:A jury unanimously found appellant guilty of the offense of injury to a child. Appellant, the child and the child’s mother lived together. The evidence shows that appellant and the child’s mother severely abused the child for approximately two years. This pattern of abuse culminated in a Sept. 7, 2001 incident during which the child was severely injured. The child was struck by some object, causing her to fall and hit her head. Neither appellant nor the child’s mother sought medical attention for the child even though the child was obviously in great distress. The child died very soon after being struck. The mother initially told the police that she struck the fatal blow to the child during the Sept. 7, 2001, episode. She testified at trial, however, that appellant struck the fatal blow to the child during this incident. The jury unanimously convicted appellant of “intentionally or knowingly causing serious bodily injury to a child younger than 15 years of age, as charged in the indictment,” and sentenced him to life in prison. Appellant claimed on direct appeal that “the jury charge permitted a finding of guilt on less than a unanimous verdict.” The court of appeals decided that appellant’s right to a unanimous verdict was not violated, because “it is proper to charge a jury in the disjunctive with multiple theories of committing a single offense.” The court of appeals distinguished Francis v. State, 36 S.W.3d 121 (Tex.Cr.App. 2000), because there “two separate offenses [occurring on different dates] were submitted to the jury in the disjunctive, not [as in this case] one offense with alternate theories of commission.” HOLDING:Affirmed. Although it is not clear that the state sought to convict appellant based solely on the Sept. 7, 2001, incident, several things in the trial record and the parties’ briefs leads the court to conclude that the state was relying on this incident. The appellant does not dispute the state’s assertion in its original brief that it was not “relying upon multiple acts of serious bodily injury in order to support the appellant’s conviction.” The court addresses whether the Legislature intended to make “act or omission” in Texas Penal Code �22.04(a) separate elements of the offense or underlying “brute facts [or means that] make up a particular element.” The court believes that the Legislature intended the latter � that “act or omission” constitute the means of committing the course-of-conduct element of injury to a child. The language of �22.04(a) and prior case law support this construction. Section 22.04(a)(1) states, in relevant part, that a person commits the offense of injury to a child if (with a particular culpable mental state) he causes serious bodily injury to a child by “act or omission.” Construing the statute to mean that the conduct element of the offense can be committed by a combination of these two means is consistent with its plain language. This court’s prior case law also supports a decision that the essential element or focus of the statute is the result of the defendant’s conduct (in this case, serious bodily injury to a child) and not the possible combinations of conduct that cause the result. The court decides that “act or omission” do not constitute elements of an injury to a child offense about which a jury must be unanimous. The court distinguishes Ngo v. State, S.W.3d , slip op. at 10 (Tex.Cr.App. No. PD-0504-04, delivered March 16, 2005). The applicable statute in Ngo defined the three acts involved as separate criminal offenses, while the applicable statute here defines the three acts involved as means of committing a single criminal offense. Dispensing with unanimity does not violate due process, because the acts or omissions that combine to establish the offense in this particular case are basically morally and conceptually equivalent. These acts and omissions all involve the same injury to the same child during the same transaction with a similar level of culpability. The court believe it would be absurd to set appellant free because, for example, six jurors may have believed that he struck the fatal blow to the child, while six other jurors may have believed that he failed to pick up the phone and call 9-1-1 to seek medical help for a child who was obviously very seriously injured and in great distress. OPINION:Hervey, J., delivered the opinion of the court in which Meyers, Keasler, Holcomb and Cochran, JJ., joined. Keller, P.J., concurred. Womack, J., dissented. Cochran, J., filed a concurring opinion in which Price and Johnson, JJ., joined. DISSENT:Cochran, J., filed a concurring opinion, in which Price and Johnson, JJ., joined. “In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific incident regardless of the date alleged). Generally, adverbial phrases, introduced by the preposition “by,” describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.”

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