Endangering a Child

A person commits an offense of endangering a child if he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.” Tex. Penal Code § 22.041(c).

The Texas Penal Code broadly defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8). The Penal Code does not define “physical impairment,” but the courts in Texas have interpreted "impairment" to include the diminished function of a bodily organ. The word “imminent” is not defined in the Penal Code, but the Texas Court of Criminal Appeals has defined the term to mean “ ‘ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'"

The offense of endangering a child is listed in the Texas Penal Code in Title 5 for offenses against the person and under Chapter 22 for assaultive offenses.

Attorney for Child Endangerment Crimes in Tarrant County, TX

If you were charged with the crime of endangering a child in Fort Worth or the surrounding areas of Tarrant County, TX, then contact an experienced criminal defense attorney at Law Offices of Richard C. McConathy. Call for a free consultation to discuss important defenses that can be used to fight the charges pending against you.

We represent clients charged with a variety of offenses involving a serious allegation of assault or violence in Fort Worth, TX.

It is not sufficient that the accused placed the child in a situation that is potentially dangerous. For example, in Mayberry v. State, 351 S.W.3d 507, 513 (Tex. App.—San Antonio 2011, pet. ref'd) the court concluded that “[c]onduct that merely places a child in a potentially dangerous situation is not sufficient for conviction.

The defendant's conduct must threaten the child with immediate, impending death, bodily injury, or impairment. In other words, to be “imminent” for the purpose of imposing responsibility pursuant to Penal Code § 22.041(c), the situation must be immediate and actual, not potential or future, at the moment of the act or omission by the defendant. See Newsom v. B.B., 306 S.W.3d 910, 918 (Tex. App.—Beaumont 2010, pet. denied).

Penalties for Child Endangerment in Texas

Subsection (c) of the endangering a child statute, section 22.041 of the Penal Code, defines the offense of endangering a child. See Tex. Penal Code 22.041(c). Subsection (f) of that statute classifies the offense as alleged, an offense under subsection (c), as a state jail felony. See id. § 22.041(f).

Section 12.35 of the Penal Code, entitled State Jail Felony Punishment, sets forth the punishment ranges for state jail felonies. See id. § 12.35.

Under subsection (c) of that statute, “[a]n individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense.” Id. § 12.35(c). A firearm is a deadly weapon per se, see id. § 1.07(17)(A) for purpose of the commission of the endangering a child offense.

However, although section 12.35(c) allows for the punishment of a state jail felony to be increased to that of a third-degree felony, it does not change the classification or level of the offense to a third-degree felony. For instance, in Chambless v. State, 411 S.W.3d 498, 502 (Tex. Crim. App. 2013), the court found that Section 12.35(c)'s phrase "an individual adjudged guilty of a state jail felony shall be punished for a third degree felony" means that, while the conviction is for a state-jail felony, it is punishable as a third-degree felony.

In other words, when applicable, Section 12.35(c) increases the punishment level for a 12.35(a) state jail felony to a third-degree felony, but the primary offense itself remains a state jail felony. In Ex parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App. 2012), the court drew a distinction between “enhancing the level of the offense and enhancing the level of punishment.

This article was last updated on Monday, April 17, 2017.

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