             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1687-07



                                   DANIEL REY, Appellant

                                                 v.

                                   THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SEVENTH COURT OF APPEALS
                               HALE COUNTY

                K ELLER, P.J., filed a concurring opinion.

       The court uses language found in the injury-to-a-child statute to define terms found in the

child-abandonment statute. The problem with this approach is that, given that the language in

question is in the wrong statute, the Court’s analysis does not comport with the requirements of

Boykin v. State.1

       Appellant was charged with child abandonment under Texas Penal Code §22.041, providing

in relevant part: “A person commits an offense if, having custody, care, or control of a child younger

than 15 years, he intentionally abandons the child in any place under circumstances that expose the


       1
           818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
                                                                          REY CONCURRENCE – 2

child to an unreasonable risk of harm.”2 To define “custody, care, or control,” the Court relies upon

language found in a different section, §22.04, that codifies a different offense, injury to a child.3 This

language, found in §22.04(d), refers only to other parts of §22.04:

        For purposes of an omission that causes a condition described by Subsection (a)(1),
        (2), or (3), 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 child,
        elderly individual, or disabled individual.4

No language in §22.04 provides for the operation of §22.04(d) outside of §22.04.5 The child-

abandonment statute, §22.041, makes no reference to §22.04(d).6 Nor, as far as I am aware, does

any other statute indicate that §22.04(d) applies in prosecutions for child abandonment under

§22.041.

        Without some express language relating §22.04(d) to prosecutions under §22.041, one cannot

reasonably say, under Boykin v. State,7 that §22.04(d) unambiguously applies to prosecutions under

§22.041. It is not enough to say that §22.04 and §22.041 are immediately adjacent to each other in

the Penal Code and that the numbering of the sections is only one digit off. The same could be said,

for example, of the offenses of aggravated assault and aggravated sexual assault, found in §22.02 and

§22.021 respectively.


        2
            T EX . PENAL CODE §22.041(b).
        3
            See Id., §22.04(d) and §22.04, passim.
        4
            Id., §22.04(d)(emphasis added).
        5
            See id., §22.04, passim.
        6
            See id., §22.041, passim.
        7
            818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
                                                                       REY CONCURRENCE – 3

        To muddle matters further, although §22.04 and §22.041 use the same words, they are

presented in a different order: §22.04(d) refers to “care, custody, or control” while §22.041(b) refers

to “custody, care, or control.” If the Legislature intended the definition of a phrase found in one

statute to apply in a different statute, one would expect the appearance of the phrase in both statutes

to be identical.

        It should also be observed that §22.041(b), the child-abandonment statute, predates

§22.04(d). The child-abandonment statute was enacted in 1985, and the language of subsection (b)

has remained unchanged since then.8 Although the injury-to-a-child statute was originally enacted

with the Penal Code in 1974,9 it was not until 1989 that a version of the subsection (d) language

relating to the meaning of “care, custody, or control” was first added.10 Because the injury-to-a-child

provision is the newer provision, one cannot contend that the Legislature had it in mind when it

enacted the older, child-abandonment provision. And had the Legislature intended the newer

provision to apply to the older provision, it could have easily said so.

        I concur in the Court’s decision to reverse the judgment of the court of appeals and remand

for further proceedings, but I disagree with the Court’s decision to require the court of appeals to

consider the case under the particular standard articulated by the Court.


Filed: April 1, 2009
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        8
             See Acts 1985, 69th Leg., ch. 791, §1; TEX . PENAL CODE §22.041(b)(West 1985).
        9
             See TEX . PENAL CODE §22.04 (Vernon’s 1974).
        10
             See Acts 1989, 71st Leg., ch 357, §1; TEX . PENAL CODE §22.04(d)(West 1990).
