Just obtained a capital murder conviction against the mother of child murder victim under the theory she failed to protect. Last year when I indicted the case, I bounced the idea off several people. I received mixed opinions. At the time, I could not find a reported case where this has occurred. There is an 1985 case where a mother was convicted of murder by omission. If anyone knows of a case currently going up I would like to know about it. Our case will go through the 8th Court of Appeals in El Paso.

i believe the one in houston texas is a good one to start with;where the mother who knowingly by her husband to have been anti depresant who got life in prision is one due to her mental status and the deaths of 6 kids;she got life;but it had to be murder by omission;darla lynn roultier is another one her two little boys;she claims she didnt kill;and claims shes innocence til this day in deathrow;but how about her husband the one who slept up stairs;that to me was very strange that he never heard a noise;one time;and the one in north carolina;who killed her two sons in a lake in her car over her boyfriend;claim they were abducted by a black man;and i think about two to three weeks she got caught is this not considered the same ommission;if you would like to call me on this please do;im now getting into the legal fields and i like comment on what i said and hope it helped alittle;you can call me at 409)882-4336;or you can write physically;at;norma jay bertrand the writer4386/internatioanl poet of the united states of america/02/03/04;at pobox617 deweyville,texas;77614;or email me at strandedrose4386@yahoo.com[EMAIL]strandedrose4386@lycos.com[/EMAIL] :mad:

Uh, yeah. Anyway ...

I nominate A.P. as "International Poet To The Universe." Any seconds?

I also suggest he start a new topic on favorite tombstone inscriptions.

I had a similiar case. I just indicted and convicted mom of injury to a child by omission. That is an F1. I think you have a problem with intent to prove a capital case. As you know, it has to be more than committing an act clearly dangerous to human life to make a capital case. I think it would be hard to make a capital case on an omission.

Maybe I am missing something, but I don't see how you can even charge a crime by omission unless the statute expressly recognizes omission as a theory. The injury to a child staute is the most frequently used example for a crime by omission.

In addition, there must be an expressly recognized duty to act that, if omitted, creates criminal liability. Again, the injury to a child statute recognizes this and provides for a duty to protect. Additional duties arise from the Family Code.

I am not aware of a provision in the capital murder law for prosecution of a person for causing a death by omission.

In addition, the manner and means for a murder requires describing an "act." An act means a bodily movement. Tex. Pen. Code, sec. 1.07(a)(1). How does that cover an omission?

I think John makes a good point. Since the murder statute itself does not seem to "provide that the omission is an offense or otherwise provide that the person has a duty to perform the act" you may well not have proved an offense. I also have a problem with causation under 6.04. I am assuming someone else inflicted the injury that was life threatening and the mother just failed to do what would be expected of her in response. The activity of the other person would seem to me to be "clearly sufficient" to lead to death in most instances if it gives rise to a duty on the part of the mother. And if the other precedent or concurrent cause was not life threatening you end up with a question of whether the culpable mental state of "knowing" applies to the mother(assuming "cause death" is broad enough to include omitted conduct). The fact that 19.03 specifically omits murder under 19.02(b)(2) may have some bearing as well. Good luck.

I agree with Martin and John. I just don't see how a prosecution can be sustained for a "murder by omission." The injury to a child statute expressly provides for such a theory, but I have always believed that murder requires an act. It could be some act of assistance that makes one a party to a murder committed by another person. I suppose that you could argue -- not very persuasively, I think -- that a parent who fails to act to protect a child has "assisted" the killer in the act of murder. Seems to me that failure to protect is a theory unique to injury to a child. Sorry to say this, but if your murder prosecution is based solely on failure to protect, and there was no act of assistance, I don't think it will stand on appeal.

I disagree. Reading Penal Code 6.01(a) & (c) allows for prosecution of a crime by omission separate from having it specifically adressed in the criminal statute. Couple that with the duty of the family code to protect a child and I believe you have an offense. I argued the intentional act was the intentional decision to not protect the child from the abusive boyfriend. That is what happened in Lott v. State 686 S.W.2d 304, the Houston case from 1985 where the Court approved murder by omission, under this same theory. I feel if you can show the mother was on notice of the danger then her duty to protect arises. I would analogize to placing your child in a cage with tiger. Is that a violation of the duty to protect? The mother was also convicted of injury to a child. At any rate we will find out if this is viable approach. Thanks for your thoughts.

Perhaps another way to address this problem is by prosecuting the mother as a party since she is guilty of the boyfriend's act if, "having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, she fails to make a reasonable effort to prevent commission of the offense." That clearly lets you go to the Family Code or elsewhere to pick up the duty. Lott held the evidence to be sufficient, but it does not appear to address the concerns we have expressed and cites no precedents for its holding. But, if nothing else, it may get you a ticket to argue the issues before the nine folks whose opinions actually count for something.