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injury to a child

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February 17, 2012, 09:07
Sara
injury to a child
I have an injury to a child case in which the child had several broken bones inculding three broken limbs. Should I indict theses as different counts or different cases? Or should it be one case with different paragraphs?
February 17, 2012, 10:47
APorter
If you can prove the defendant took a pause between multiple assaultive periods, then you have separate offenses. See, e.g., Sanchez v. State, 269 S.W.3d 169, 170-71, No. 07-07-0350-CR, slip op. at 2-5 (Tex. App.---Amarillo 2008, pet. ref'd).

If you can't prove the defendant took a pause between multiple assaultive periods, then you probably have proof of the essential element of serious bodily injury to the child established in different ways. In this latter situation, you're probably looking at a single indictment with alternative paragraphs. See Villanueva v. State, 227 S.W.3d 744, 745-49, No. PD-0718-06 (Tex. Crim. App. 2007). Read also Judge Cochran's concurrence, explaining that the jury need not be unanimous about the acts or omissions because they all involve the same injury to the same child during the same transaction with a similar level of culpability. Id. at 751.

I wish the caselaw were different (i.e., the caselaw said each different blow to a kiddo was a different crime subject to multiple punishments even when multiple blows part of the same criminal transaction), but I fear that the caselaw doesn't permit it.
February 17, 2012, 11:41
Sara
I really appreciate your assistance!