I have a shaken baby case and I am drawing up the indictment. I see under 22.04 where the injury can be alleged as either (a)(1) serious bodily injury or (a)(2) serious mental deficiency, imparement, or injury.

Would the follwing language be correct:

intentionally or knowingly cause serious bodily injury, serious mental deficiency, impairment, or injury to (victim), a child younger than 15 years of age, by shaking (victim) with his hands.

Or should I draw up each as two seperate paragraphs one for a1 and one for a(2)

We have also been discussing this issue and the consensus seems to be two paragraphs.

See Stuhler, 2007 Tex. Crim. App. LEXIS 62, *27-*30 (Tex. Crim. App. 2007)(5-4 decision):

. . . we agree . . . that the jury should have been required to agree unanimously that the appellant caused either serious bodily injury or serious mental deficiency, impairment or injury. . . . the Legislature intended the seperate results spelled out in the various subsections of the statute to be elemental and thus required jury unanimity.

In other words, the CCA majority is treating these different results as seperate elements. Thus, charging them in the same paragraph is problematic at best and could lead to some serious jury charge error.

Even if you charge in two paragraphs, you will still need to make sure your jury charge has the unaminity language spelled out in Ngo, 175 S.W.2d 738 (Tex. Crim. App. 2005).

It appears that each type of injury is a separate offense. So, I would say separate counts.

Just attended a 2 day course put on by the Shaken Baby Alliance out of Ft. Worth.Jay Lapham is the staff attorney. He only alleges knowingly not intentionally in all of his indictments. There is some case law to back it up.These cases are hard for juries and this school was excellent.Lots' of info from doctors. I highly recommend it to prosecutors. I too am confused about charging in paragraphs vs. counts. Why not do counts and only go to the jury after you have all of your evidence in and know which one is the stongest?

What I meant to say was to abandon one of the counts.It appears that there are doctors who will testify (for a fee) that a baby cannot be injured by merely shaking it.