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Click here for the full text of this decision FACTS:On Sept. 28, 2003, Billy Ray Johnson, a 42-year-old mentally retarded man, attended a “party in a pasture” near Linden. As the party progressed into the early morning hours, a disagreement arose between Johnson and Christopher Colt Amox about the type of music that was being played. Amox told Johnson to leave the party when Johnson complained about Amox’s decision to change the music from rap to country. Amox testified that he feared that Johnson was about to hit him, so he punched Johnson in the face, knocking him unconscious. Several partygoers suggested that Johnson should be taken to the hospital for medical attention or that someone should call the police. James Corey Hicks, however, rejected these suggestions. He believed that calling the police would jeopardize his employment as a jail guard with the Cass County Sheriff’s Office. While the partygoers discussed the matter for approximately one hour, Johnson was on the ground unconscious. Hicks directed the group to take Johnson outside of town and leave him on the side of a county road. Several of the partygoers lifted Johnson off the ground and placed him in the back of Amox’s truck. Hicks then led a convoy to a remote location on County Road 1620, where Amox and Dallas Stone placed Johnson on the side of the road. Hicks testified that after leaving Johnson, he briefly returned home. Hicks then went back to where Johnson was lying and called the sheriffs’ department to inform them of Johnson’s location. A Cass County officer drove to the site and found the unconscious Johnson. The officer called for an ambulance, which took Johnson to Linden Hospital. Dr. Donald Simmons testified that Johnson had a subarachnoid hemorrhage arising from trauma to the head and aspiration pneumonia. Johnson was hospitalized for approximately one week before he was released. Authorities charged Hicks with three counts of injury to a disabled individual under Texas Penal Code ��22.02 and 22.04: 1. intentionally or knowingly causing serious bodily injury to a disabled individual; 2. aggravated assault causing serious bodily injury to an individual; and 3. injury to a disabled individual by omission. The jury acquitted Hicks on the first two counts but found him guilty of injury to a disabled individual by omission. The jury assessed Hicks’ punishment at three years of imprisonment, but the trial judge probated the sentence and placed him on community supervision for 10 years. The judge also ordered Hicks to serve 60 days in the Cass County jail. Hicks appealed his conviction to the Texarkana Court of Appeals. On appeal, he challenged the legal and factual sufficiency of the evidence to prove that he either caused bodily injury to Johnson or that he had assumed care, custody or control of Johnson. Hicks argued that in order to have assumed “care, custody, or control” under �22.04(d), an actor must accept responsibility for the victim’s protection, food, shelter and medical care. The 6th Court of Appeals disagreed. The court determined that �22.04(d) establishes “[a] bright-line rule that, once someone has become a caretaker � even informally � for a vulnerable individual, he or she cannot then escape responsibility for the individual by arguing he or she has not assumed that individual’s care, custody, or control.” As a result, the court concluded that under subsection (d), “the phrase”care, custody, or control’ has more breadth than subsection (d) and that Hicks is covered by that additional breadth.” Explaining what it meant by “additional breadth,” the court stated that “possession,” as defined in Texas Penal Code �1.07(a)(39), “means actual care, control, or management,” and that “[a]n identical definition of possession applies to controlled substances.” Thus, the 6th Court affirmed the judgment of the trial court, holding that there was sufficient evidence “to prove that Hicks caused bodily injury by omission” and “that Hicks had assumed Johnson’s care, custody, or control.” Hicks filed a petition for discretionary review. HOLDING:Reversed and remanded. The Court of Criminal Appeals first noted that Texas Penal Code �22.04 provides, in relevant part, that a person commits an offense if he recklessly by omission causes serious bodily injury, serious mental deficiency, impairment, or injury, or bodily injury to a disabled individual. An omission that causes a condition described by Subsections (a)(1) through (a)(3), the CCA stated, 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 . . . disabled individual.” In subsection (d), the CCA stated, the Legislature set forth the standard for establishing when an actor has assumed care, custody, or control of a disabled individual under subsection (b)(2): “The actor has assumed care, custody, or control if he has by act, words, or course 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 . . . disabled individual.” Hicks argued that the 6th Court “rejected the restrictive definition of ‘care, custody, or control’” found in �22.04(d) by applying “another broader definition equating to”possession.’ ” Hicks further contended that “ had the Court of Appeals applied the far stricter definition of ‘care custody, or control,’ the Court would have concluded that there was not factually and legally sufficient evidence to establish Hicks assumed Johnson’s”care, custody or control.’ “ The CCA stated that it agreed with Hicks. The CCA held that 6th Court incorrectly expanded the language of �22.04(d) by substituting the word “possession” for the definition of “care, custody, or control” contained in �22.04(d). The Legislature, the CCA stated, clearly provided the standard in subsection (d) for establishing when an actor has assumed “care, custody, or control” of a disabled individual under subsection (b)(2). By looking outside subsection (d) to the definition of possession, the CCA found that the 6th Court ignored established principles of statutory construction. Thus, the CCA concluded that the 6th Court improperly broadened the language of Texas Penal Code �22.04 by adding the word “possession” to the definition provided in the statute. The CCA therefore remanded the case to the 6th Court to review Hicks’ legal and factual sufficiency claims using the standard for establishing when an actor has assumed “care, custody, or control” of a disabled individual provided in �22.04(d). OPINION:Keasler, J., delivered the opinion of the court in which Keller, P.J., and Price, Womack, Johnson, Hervey and Cochran, JJ., joined. Meyers, J., did not participate. CONCURRENCE:Holcomb, J., concurred without a written opinion.

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