                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-05-00109-CR
         ______________________________


          JAMES CORY HICKS, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the Fifth Judicial District Court
                 Cass County, Texas
           Trial Court No. 2004F0089A




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                             OPINION

       James Cory Hicks was convicted for injury to a disabled individual by omission. See TEX .

PENAL CODE ANN . § 22.04(a) (Vernon Supp. 2007). We affirmed.1 The Texas Court of Criminal

Appeals has reversed our decision and Hicks' conviction and remanded the case to us to weigh the

evidence in light of that court's construction of Section 22.04(d) of the Texas Penal Code, defining

how one can be found to have caused injury to a child, elderly individual, or disabled individual, by

omission. Because, under that construction of Section 22.04(d), the evidence is legally insufficient

to support Hicks' conviction, we reverse his conviction and render an acquittal on that charge.

       This case had its inception in late September 2003, when Billy Ray Johnson, a forty-two-

year-old, mentally retarded black man, was invited to a drinking party in rural Cass County,

ostensibly to provide the young2 white revelers some "entertainment" with his dancing. But the

revelers faced a dilemma when, after a dispute over the type of music being played, Colt Amox

punched Johnson once in the face and knocked him unconscious. Johnson remained unconscious

for hours but did not get medical assistance until the next day. Instead, evidence suggested that, at

Hicks' direction and at some point during the evening, the unconscious Johnson was loaded into the

back of a pickup truck, deposited on the side of a rural road, and left there alone. As a result of the



       1
         For a more complete account of the case's background, including Hicks' conviction and his
earlier acquittal on two other counts, please see our original opinion. See Hicks v. State, 183 S.W.3d
869 (Tex. App.—Texarkana 2006), rev'd & remanded, 241 S.W.3d 543 (Tex. Crim. App. 2007).
       2
           The party-goers' ages ranged from late teens to early twenties.

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evening's events, Hicks was charged with and convicted of injuring the disabled Johnson by

omission within the meaning of Section 22.04(a)(3) of the Texas Penal Code.

        A person commits an offense if he or she "by omission causes to a . . . disabled individual

. . . bodily injury," and "(1) the actor has a legal or statutory duty to act; or (2) the actor has assumed

care, custody, or control of . . . [the] disabled individual." TEX . PENAL CODE ANN . §§ 22.04(a)(3),

22.04(b) (Vernon Supp. 2007). Since the State does not allege that Hicks had any independent legal

or statutory duty to act on Johnson's behalf, the question in this case is whether Hicks "assumed care,

custody, or control" of Johnson under Section 22.04(b)(2). That question is addressed by subsection

(d):

        [T]he actor has assumed care, custody, or control [of the victim] 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.

TEX . PENAL CODE ANN . § 22.04(d) (Vernon Supp. 2007). Hicks claims that the evidence was legally

and factually insufficient to prove he assumed care, custody, or control of Johnson on the night in

question. Hicks argues that no "care, custody, or control" can be assumed within the meaning of the

statute unless the actor has, by word or deed, acted in such a way that it would make reasonable

people believe that he or she has accepted responsibility for the victim's "protection, food, shelter,

and medical care." (Emphasis added.) In our original opinion, we disagreed with Hicks and

affirmed his conviction. The Texas Court of Criminal Appeals' subsequent ruling construed Section




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22.04(d) in the manner urged by Hicks, reversed our decision, and remanded this case to us to weigh

the evidence in light of that statutory construction.

       In our original opinion we interpreted Section 22.04(d) as a bright-line rule that, once

someone has become, in essence, a caretaker—even informally—for one of the listed vulnerable

individuals, 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. We interpreted the statute to provide that a

criminal defendant—even if he or she did not come within subsection (d) by acting or speaking in

such a way that reasonable people would believe that he or she had assumed responsibility to provide

protection, food, shelter, and medical care for such a vulnerable person—could have assumed

custody or control of someone, within the terms of subsection (b)(2) and the ordinary meaning of

the words "custody or control," and thus be potentially responsible for injuring that vulnerable person

by omission.

       The construction of subsection (d) by the Texas Court of Criminal Appeals establishes a

different meaning for the statutory scheme. In light of that construction, a defendant cannot properly

be convicted under Section 22.04(a), by assuming "care, custody, or control" of a listed vulnerable

individual, unless the defendant "by acts, words, or course of conduct acted" in such a way that a

reasonable person would conclude he or she "has accepted responsibility for protection, food, shelter,

and medical care" for the individual in question.3 In other words, assuming (as is true here) that the

       3
       The definition of "care, custody, or control" in subsection (d) requires a finding that the
evidence was insufficient to sustain Hicks' conviction. The statute's language sets a very high

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defendant was not alleged to have any legal or statutory duty to act as provided by subsection (b)(1)

and therefore could be responsible only under subsection (b)(2), if that defendant merely takes

physical control of a disabled individual—as the jury apparently believed Hicks had done—and then

fails to provide needed medical care for that individual—again as the jury believed Hicks had

done—those facts alone would not establish a violation. Unless that defendant also satisfied

subsection (d), he or she would not have "assumed care, custody, or control" of the disabled

individual within the meaning of the statutory scheme and therefore would not have subjected

himself or herself to possible criminal liability under Section 22.04 of the Texas Penal Code.

       This Court is bound by controlling authority from the Texas Court of Criminal Appeals. See

Mapes v. State, 187 S.W.3d 655, 666 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd); Sierra v.

State, 157 S.W.3d 52, 60 (Tex. App.—Fort Worth 2004), aff'd, 218 S.W.3d 85 (Tex. Crim. App.

2007). The higher court's construction of the statute is binding on us, constraining us to find the

evidence legally insufficient to support Hicks' conviction for injury by omission, because there is no

evidence that Hicks did or said anything that would make anyone believe he was assuming



threshold to establish when care, custody or control have been assumed. Subsection (d) says that
"the actor has assumed care, custody, or control" of a certain individual by acting or speaking so as
"to cause a reasonable person to conclude that he has accepted responsibility for protection, food,
shelter, and medical care" for that individual. TEX . PENAL CODE ANN . § 22.04(d) (emphasis added).
As earlier presented to the Texas House, the language which ultimately became subsection (d) listed
matters comprising evidence of care, custody or control in the disjunctive, providing that care,
custody, or control has been assumed if the words or conduct would allow a reasonable person to
conclude "that the actor has accepted responsibility for protection, clothing, food, shelter, or medical
care" for the vulnerable individual. See Tex. H.B. 1510, 71st Leg., R.S. (1989) (emphasis added).

                                                   5
responsibility for Johnson's "protection, food, shelter, and medical care." The record contains ample

evidence that Hicks acted to control what was to be done with the unconscious Johnson, but no

evidence shows any word or deed of Hicks appearing to assume responsibility for Johnson's

protection, food, shelter, or medical care.

       For that reason, we reverse the judgment of the trial court and render a judgment of acquittal.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        July 15, 2008
Date Decided:          July 16, 2008

Do Not Publish




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