I have a case where a 3 month old child will die soon as a result of being born with extremely high meth levels. I expect to file a delivery to a minor case as has been discussed on a previous post. However, 19.06 says a mom can't be prosecuted for homicide for causing the death of an "unborn child." In my case, the mom will cause the death of a child born alive that subsequently dies as a result of conduct committed while the child was still unborn. Assuming I can make the case factually, what do you think about the applicabiliy of 19.06 to my situation. Thanks.

I have four of these cases on my desk right now, two with dead babies. We have extensively discussed and researched the law and have been frustrated that we cannot pursue the mom under either the assault or homicide chapters of the Penal Code. I know that some jurisdictions have been charging delivery of a controlled substance relying on the fact that the exception for the mom does not apply to the Health and Safety Code, but I have some reservations about that approach. Most significantly is the concern that the mom's intent is to get high, not to deliver to the child, although these prosecution might be sustainable under a "knowingly" theory. We are going to take a different approach with our cases. We are going to charge simple possession of a controlled substance (a state jail felony). The proof of the possession of the meth or cocaine is the toxicology from the newborn (or stillborn) child coupled with medical and other testimony about how long the substance would remain in blood. We are also fortunate to have, in each case, an admission by the mom of the use of the controlled susbstance. So, we think we can prove that the mom possessed the specific controlled substance on or about a specific date, thus the possession charge. We are also going to allege the controlled substance as a deadly weapon, raising the state jail felony to a third degree aggravated offense. To us, this seems like the cleanest approach. Any thoughts?

P.S. We are proceeding on cases in which the mother has given birth before to a child with a controlled substance in the child's system and in which the mother has been warned previously about the dangers of using drugs while pregnant.

Wasn't there a case from Corpus Christi a few years ago, in which a defendant who struck another car with his vehicle while intoxicated and caused a pregnant woman to have a child who then died? That case was affirmed even though the injury occurred while the unborn child was not an individual. Could that case be used to support prosecution of a mother who injures a fetus that lives to become a child?

John, Could you be thinking about the case out of the Dallas Court in which the Court upheld the defendant's conviction for intoxication assault (of the mother). The victim miscarried as a result of the accident, and the court found that an unborn fetus was a "bodily member" within the meaning of the statute. This was before the revised definition of "individual."

Janette Ansolabehere

John's memory is correct. There was a case in Corpus Christi. Was an auto accident in which a pregnant mother was injured and the premature child was delivered and then died, as I recall. Carlos Valdez could probably give a lot of detail. Was upheld on appeal.

Cuellar v. State, 957 SW3d 134.

Appellant crashed into a car driven by a woman who was seven and one-half months pregnant. An emergency caesarian section was performed, and a live baby girl was born. The baby later died due to injury from the collision. Appellant was convicted of intoxication manslaughter and driving while intoxicated, and challenged both convictions. On review, the court found that, in applying the statutory definition of "has been born and is alive" to the facts, the finding that the victim was indeed an "individual" under the criminal law of Texas was sufficient to sustain an indictment and conviction under the intoxication manslaughter statute, Tex. Penal Code Ann. � 49.08 (1994).

I'd look at it like this: the mom who takes drugs is the same as the guy who leaves a bomb on a timer in the shopping mall. The bomber is guioty of homicide when his bomb goes off, regardless of whether anyone was around when he left the bomb there. And he would be guilty of the homicide of an infant who was after he set the timer if the bomb kills the child. If mom is committing acts which could clearly cause the death of a child, the fact that she will be causing the death of a not-yet-born child should be immaterial, so long as the child is later born alive, and then dies as a result of her conduct.