I'm trying the parents of a child who suffered serious bodily injury as a result of the use of a deadly weapon. One parent is indicted for committing the acts and the other by omission by failing to protect the child. I want to tag the omission parent with the deadly weapon finding. Do y'all think I can do that and, if so, any ideas about how the charging paragraph should read re the deadly weapon issue against the omission defendant? Thanks for your help.

For a discussion of getting a DW finding in an omission case, see Hill v. State, 913 SW2d 581 (Tex. Crim. App. 1996).

Hill was a rather bizarre omission case, one which could also have been prosecuted as an intentional or knowing act. In Hill, the parents chained the child to keep him out of the refrigerator; he died of starvation. I recently prosecuted a father for scalding his child in the tub (SBI+DW)and the step-mother for causing BI by omission for failing to timely seek medical help for him. I could never figure out a way to put a DW finding on step-mom, either. Any ideas? P.S. Dad got 30 + DW; Mom got 10 pro after she testified that she didn't seek medical help for the child b/c Dad threatened her.

What weapon are you saying mom might have used or exhibited? Omission to use an object is rarely considered to be use. Maybe the penalty for certain types of omissions needs to be increased, but not by some strained construction of 3G (a)(2).

That's the problem. In my case mom just flat didn't use or exhibit a DW, unless I missed something. (or unless you count her brain)

Perhaps we could get intentional or knowing injury to a child added to the 3g list.

We always add a DW finding in our Inj to child-SBI cases and, when appropriate, to our BI child cases in order to bring them into the 3g half-time requirement. I like the idea of making all injury to a child-SBI cases 3g offenses, however, I hear from our legislative liason that the lege is very reluctant to fool w/the 3g list.

42.12 3(g) language seems to be pretty clear that a minimum threshold requires that the defendant is a party to the offense and at least knows that a deadly weapon will be used. I wouldn't strain the language to try to get a finding that a defendant "used" a DW when they commit offense by omission after the use of the DW by another. Straining the limit too far just gives fuel to those who would limit the ability to get findings at all. There are already too many crazy folks out there who'd love to push the legislature to further limit DW findings to guns and knives.