DPS Trooper stops a woman 8 1/2 months pregnant finds cocaine and paraphanalia in car. She admits to having just smoked a rock. She was arrested for PCS less 1 gram and DWI with child under 15 yoa - She had a 1 and 2 yr old in the vehicle with her. She also gave blood sample- awaiting results. I am looking at charging her with endangering a child with the new defintion of individual. Anyone done this or have an opinion? Thanks

The 47th D.A.'s office in Amarillo recently indicted a pregnant crack user using the new definition of individual. I can't recall all the details. You might ask them to recount their experiences. Additionally, there was a thread discussing this issue back in January of this year. I believe the topic was entitled "Prosecuting Mothers."

[This message was edited by Scott Brumley on 05-05-04 at .]

[This message was edited by Scott Brumley on 05-05-04 at .]

There is no case law on this, but under the new definition in PC 1.07, I think you have a good argument.

You should review this case: Collins v. State, 890 S.W.2d 893. This decision was made before the definition of individual was changed, but the issues are similar. I think the outcome might be different now.

What about the legislature's careful provision that such conduct does not apply (making it a defense)? See:

PC Section 22.12. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is:
(1) committed by the mother of the unborn child.

Why not cover the conduct in the POCS charge? You certainly can include the pregnancy in punishment information.

Sounds to me that you have 2 good Endangering cases for the 1 and 2 year old children that were in the car. Is there some additional need to have a 3rd charge for the same offense?

What I have filed and I am expecting a plea to the case for pen time within the next 2 weeks is delivery of a controlled substance to a minor (the fetus). I do not think you can file an endangering because of the specific exceptions provided by the statute. There is no such exception in the Health and Safety Code. It defines a person as any legal entity which, now in Texas, a fetus surely is.

No, a fetus is not an individual within the meaning of the Health & Safety Code. I think it would be a mistake to take that approach.

The new definition of individual, which includes a fetus, only applies to Penal Code offenses, so there is no need to create an exception in the Health & Safety Code.

I know at least one office has taken your position, but, again, I think that is a serious mistake. If prosecutors attempt to push that meaning into the law without the express support of the legislature, there will be public outcry and consequences.

We are not lawmakers. As to crimes, particularly, people are expected only to avoid doing that which is expressly forbidden.

You can always prosecute for possession of a controlled substance. By inference (because there were drugs in the defendant's body), she posssessed at least a state jail felony amount. That would be a more appropriate charge.

Although I agree with John B, I'd also wonder:

Can you prove the passing of the substance through the placenta? Can you prove that the mother knew that her placenta would not filter the particulate or dissolved substance out of her blood and affect her child? She has to knowingly deliver the substance. Are you sure that the blood circulating through her system does in fact pass directly through to the fetus?

Also, are you certain that the active chemicals passed through the placenta before they became inactive metabolites?

Assume for a moment that your substance is marajuana, (a lesser crime, yes but easier for illustration and discussion)

If the chemical THC passes through the placent prior to being metabolized into carboxyTHC then yes, there's a passing of a controlled substance.

But, if the THC is metabolized into CarboxyTHC before it passes to the fetus then there is no delivery. CarboxyTHC is an inactive metabolite.

The same is true for any other controlled substance. The active ingredients are metabolized into inactive particulates that are then flitered and passed form the body.

Are you prepared to demonstrate that an active controlled substance passed through the placenta prior to being metabolized into an inactive metabolite?

Sorry to go technical on you, but I think you're overreaching. Certainly the child will be taken from the mother by CPS if on the birth of the child there is a demonstration of controlled substances in her system. Maybe provide all the information available to CPS and let them bird-dog it from there?

A great example about what's right with this web site...good discussions of important prosecutor issues...

Again, I am not arguing that the fetus is an individual in the health & safety code. Certainly you would agree that since the legislature changed the penal code a fetus in now recognized as a legal entity in the State of Texas. If we can file a case for its death it a congnizable entity is it not? Under the defintion in the 481.002 (33) a person is defined as an individual, corporation . . . or any other legal entity. That is my theory, straight statutory construction. As far as proving it there is an I have a pediatrician that is prepared to testify that the cocaine does pass through to the child. There are also numerous studies done on this that are available on the web. Whatever you decide to do good luck.

Statutes don't have more expansive meanings without a clear legislative amendment to that statute. You can't expect people to have fair notice that it is now a crime (delivery of a controlled substance to a child, for example) if the meaning of "person" has changed only in your mind.

As the postings listed above note, there is no clear, express agreement that the Legislature intended to change the meaning of the word "person" in the Health & Safety Code. And the legislative history will clearly show they intended to change only the meaning of the word "individual" in the Penal Code, with very specific restrictions on that change as it applied to certain crimes.

I think it is a tremendous stretch, that will ultimately be rejected by an appellate court, to say that the meaning of a "person" can now apply to a fetus through the theory that a fetus is now a legal entity. The definition of "person" in the Health & Safety Code includes an "individual." That term has long been understood to mean someone who was born and is alive. Until the Legislature expressly amends that term in the H&S Code, I don't think you can import a new meaning.

I have to admit it is a strange world where we can charge a defendant for leaving cocaine on the floor where an infant could eat it, read the story, but not for deliberately putting the same drugs in a pregnant mother's body.

As I said in an earlier thread I would keep ya'll updated on my cases. To date I have filed about 15 of these Deliver to a Minor cases. So far I have had pleas in five of the cases. Four who had no priors or had only misdemeanor priors and given up custody of the children have received deferred adjudications usually 5 years. The one that pled today accepted a 7 year sentence. None have sought to appeal their convictions even though I have said that the State will not oppose a certificate of appeal by the trial court. I am still set for trial on the very first case I filed on September 7. Despite some initial nashing of teeth once I have explained my logic to the local defense bar they seem to accept it and enter the pleas. I understand that Representative Ray Allen has requested an Attorney General opinion. I find it odd that a member of the legislature would ask the excutive branch to decide what its intent was but that is another issue.

Completely missing from the opinion in Perales (issued this date) is any discussion of what evidence the state used to support her guilty plea. Assuming she stipulated to certain facts, then the court is obviously going behind that stipulation to decide there was a lack of evidence. My guess is the State offered a stipulation that Perales did knowingly deliver to her child by actual transfer (without stating the possession was exchanged by passage through an umbilical cord). I have no problem with the court saying an unborn child cannot actually handle, touch, manipulate, or otherwise exercise physical possession over the drug. But, stipulations under 1.15 have always been considered sufficient if they tracked the statutory elements of the offense. The basis for the holding should be an involuntary plea, not "no evidence." This is not the type of problem addressed in Thornton, 601 S.W.2d 340. Has Ex parte Williams, 703 S.W.2d 674 now been overruled?

Constitutionally speaking, a guilty plea does not require any evidence to support it. The guilty plea alone is sufficient to support the conviction.

Only Texas statute requires evidence to support the plea as a means of reassuring the judge that the defendant is, in fact, guilty. So, how is there a due process violation for the evidence to be lacking?

The court is really saying that the Penal Code does not prohibit the conduct for which the defendant was convicted. Sort of a legal impossibility.

I don't have a problem with the result. But, the reasoning is muddy.

If the baby is actually born testing positive for amphetamines and the mother does as well, would that consititute endangering> Has anyone been prosecuting these cases when the child is born with drugs in its system?

The defense mentioned above pretty much forecloses an Endangering prosecution. Whether there are any other applicable charges is open to debate. See these threads for more:

Drug Babies

Meth Baby ...

Injury/Endangerment ...

(Sara, I deleted your new thread because we already have so many of them out there.)

Sara, if you mean endangering in the Family Code as allegations under D&E for termination--yep, it fits. If you mean a separate criminal charge under the Penal Code, I believe the other replies answer your question.