Defending Child Injury Cases


Kid cases—whether they be allegations of physical or sexual abuse—are the hardest cases to defend. Jurors, understandably, come in with an inherent prejudice against our client and wanting to save the child. It is an uphill battle from the start. However, it’s not impossible to win child injury cases when you know what to get, how to get it, and how to use it.

I. The Law

A. Injury to a Child—PC 22.04

Injury to a child is codified in Section 22.04 of the Penal Code, which provides:

(a)   A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.

It is an essential element of the felony offense of injury to a child that the child is “14 years of age or younger.” Lang v. State, 586 S.W.2d 532 (Tex. Crim. App. [Panel No. 2] 1979). The statute provides for different penalties depending on the applicable mens rea. As an additional matter, injury to a child is a result-oriented crime because the focus of the mens rea is on the result of the conduct, not the conduct itself. Banks v. State, 819 S.W.2d 676, 678 (Tex.App.—San Antonio 1991, pet. ref’d). “What matters is that the conduct (whatever it may be) is done with the required culpability to effect the result.Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985). The offense of injury to a child can also be the underlying felony for a felony murder indictment.

There are affirmative defenses embedded in the statute itself. Subsection (k) provides what is commonly referred to as the “Good Samaritan” defense:

That the act or omission consisted of:

(1)   Reasonable medical care occurring under the direction of or by a licensed physician; or
(2)   Emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.

The “Good Samaritan” defense is what is commonly referred to as a confession and avoidance or justification type of defense. The accused cannot deny the act or omission or the associated mental state in order to be entitled to this defense. See Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007, reh’g denied) (holding that in order to obtain an instruction on the “Good Samaritan” defense embodied in Section 22.04(k) of the Penal Code, the appellant must show that the record contains evidence sufficient to support a rational finding—not that she lacked the requisite mental state necessary to commit the offense, but that she in fact harbored the requisite mental state but nevertheless engaged in the conduct under emergency circumstances, in good faith, and with reasonable care).

Subsection (l) provides a defense

(1)   That the act or omission was based on treatment in accordance with the tenets and practices of a recognized religious method of healing with a generally accepted record of efficacy;
(2)   For a person charged with an act of omission causing to a child . . . a condition described [herein].

Beggs v. State, 597 S.W.3d 375 (Tex. Crim. App. 1980)(involving mistake of fact defense), and Sparks v. State, 68 S.W.3d 6 (Tex.App.—Dallas 2001, pet. ref’d)(involving involuntarily conduct defense), are two cases that must be in every defense lawyer’s arsenal for child injury cases. Both are fact specific and should be read in their entirety. In Beggs, the testimony of the defendant, who assisted in giving the child a bath for punishment (according to the defendant, the child so hated to bathe that a normal bath was punishment), that she mistakenly believed the temperature, which scalded the child, was normal, was sufficient to entitle her to a defensive instruction on mistake of fact. In Sparks, the defendant’s testimony that injuries to his 10-month-old child occurred when he accidentally struck the child with his elbow after tripping and falling onto the child while walking across the floor of a very cluttered apartment supported an instruction on involuntary conduct.

B. Abandoning or Endangering a Child—PC 22.041

As with injury to a child, section 22.041 applies to children who are younger than 15 years of age. As the title to the statue sug­gests, there are two ways to commit an offense under 22.041:

(a) A person commits an offense if, having custody, care, or con­trol of a child younger than 15 years, he intentionally aban­dons the child in any place under cir­cum­­stances that expose the child to an unreasonable risk of harm.
(b) A person commits an offense if he in­­ten­tionally, knowingly, recklessly, or with crim­inal negligence, by act or omission, engages in con­duct that places a child younger than 15 years in im­mi­nent danger of death, bodily injury, or physical or mental impairment.

Two cases that are still good for the defense and worth having in the trial notebook for defending abandoning/endangering cases are Millslagle v. State, 81 S.W.3d 895 (Tex.App.—Austin 2002), and Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012). Both are sufficiency cases, and both are must-reads. In Millslagle, the evidence was held to be insufficient to prove that the defendant placed his child in imminent danger of death, bod­ily injury, or physical or mental impairment when he left the child alone in the vehicle in order to ingest drugs in a nearby restaurant restroom. Similarly, the evidence was held to be insufficient in Garcia where when the police found the defendant she was sitting inside a car holding her child—who was wearing only a wet diaper in 58-degree weather, was shivering, and had blue lips—up against her body for warmth, the child did not cry until the police took the child from her, and the child did not exhibit any signs of pain or impairment.

The statute itself also has two affirmative defenses provided therein:

(g)   It is a defense to prosecution under subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.
(h)    It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

C. Leaving a Child Unattended in a Vehicle

Summertime in Texas often garners much media attention for leaving children unattended in vehicles. There are social media campaigns designed to raise awareness and prevent child deaths in hot cars. The unfortunate news stories seem endless. It is not surprising that there is a specific criminal offense called “Leaving a Child in a Vehicle.” What may be surprising, however, is that the offense is only a Class C misdemeanor offense.

(a)   A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:

(1)   Younger than seven years of age; and
(2)   Not attended by an individual in the vehicle who is 14 years of age or older.

It is important to note that Section 22.10 is broader than abandoning/endangering a child because 22.10 does not require a special relationship between the accused and the child. It is equally important to note that the two statutes are not in pari materia. See Fernandez v. State, 269 S.W.3d 63 (Tex.App.—Texarkana 2008, no pet.).

D. Justifications

An important defense for injury to a child cases is contained in Section 9.61 of the Penal Code. While it is not an affirmative defense, it is a justification for the act. Section 9.61 that

(a)   The use of force, but not deadly force, against a child younger than 18 years is justified:

(1)   If the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and
(2)   When and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

(b)   For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

It should go without saying that this justification does not permit a teacher to use physical violence because a child is unable to perform, either academically or athletically, at a desired level of ability. See Hogenson v. Williams, 542 S.W.2d 456 (Tex.App.—Texarkana 1976, no pet.)

II. The Duty to Investigate

As criminal defense lawyers, we have an inherent duty to fully investigate every case no matter how bad or clear a case may ap­pear (and indeed may be). That duty is also required by case law, the American Bar Association, and the State Bar of Texas Guidelines. A proper pretrial investigation will help you develop your theory of the case and win, whether a win is a lesser included offense, lesser punishment, or an outright acquittal.

A. Case Law

The Court of Criminal Appeals has recognized the duty of counsel to fully investigate a case:

Counsel’s function is to make the adversarial testing process  work in the particular case. Accordingly, competent advice  requires that an attorney conduct independent legal and factual investigations sufficient to enable him to have a firm command of the case and relationship between the facts and each element of the offense.

Ex Parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) (citing Strickland v. Washington) [emphasis added].


[C]ounsel also has a responsibility to seek out and interview potential witnesses and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced.

Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983) [emphasis added].

It is important to note that it is incumbent upon us to conduct our own independent investigation. This means not relying solely on the information provided in discovery from the State.

B. Guidelines

It should be no surprise that the national and state guidelines for the duties of criminal defense lawyers mirror what is required by case law on the subject. While these nation and state guidelines are not disciplinary rules nor black letter law, they provide a bench­mark for our performance. As such, we should all be aware of these guidelines. Furthermore, in addition to case law we can and should use these guidelines to our advantage when making requests of the court. For example, when requesting monies from the court for a defense investigator and/or defense expert, it is helpful to cite these guidelines. A court will be hard pressed to deny a reasonable request for such funding if case law and the following guidelines are cited in the request.

        a. American Bar Association

The duty to investigate is embodied in the American Bar Association Standards on Criminal Justice. Specifically,

Defense counsel should . . . explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.

Section 4-4.1(a).

The last sentence of the standard is of particular importance. Regardless of how bad the case appears and/or what heinousness our client has confessed to, we still have an independent duty to investigate. After all, we are the line of defense. This becomes a delicate balance when a client is wanting to expedite his/her case. However, in child injury cases, where potential prison sentences are for life, clients are appreciative of a defense lawyer wanting to fully investigate on their behalf—not accepting every accusation at face value.

        b. State Bar of Texas

The State Bar Performance Guidelines for Non-Capital Criminal Defense Representation, which were adopted in January 2011, mirror those of the ABA and case law. “The Guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime. They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Blackburn and Marsh, “The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice,” Texas Bar Journal, July 2011.

Guideline 4.1 specifically addresses pretrial investigations and, like the ABA guideline, states:

Counsel has a duty to conduct, or secure the resources to con­duct, an independent case review and investigation as promptly as possible. Counsel should, regardless of the client’s wish to admit guilt, determine whether the charges and disposition are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the merits and to the penalty in the event of conviction. In no case should counsel delay a punishment phase investigation based on the belief that the client will be found not guilty or that the charges against the client will otherwise be dismissed.

Guideline 4.1 specifically recognizes ten areas that defense counsel should investigate in order to effectively fulfill our role:

1.   Charging documents, statues & case law
2.   Client
3.   Potential witnesses
4.   Police & prosecution
5.   Courts
6.   Information from third parties
7.   Physical evidence
8.   The scene
9.   Expert assistance
10.  Mental health records

The good news is that these are all areas that we have probably already been investigating, perhaps even automatically and without realizing they are suggested.

III. What You Need and How to Get It for Child Injury Cases

While it is important to fully investigate each of the above areas in every case, it is of utmost importance in child injury cases. Further, in child injury cases, there are specific witnesses to speak to and specific records that must to be obtained in order to be an effective advocate.

A. The Story

In a child injury case, the first thing defense counsel should do is interview the client and get the story.

As an initial matter, it is important to understand who the client is and what the client has likely been experiencing before your first meeting. Often, the client is either the parent or a care­giver—a person who loves and cares for the child. And often, it is the client who has called 911 for help. The client usually goes to the hospital or emergency room behind the ambulance in a panic, only to be prohibited from seeing the child. The concern at this point is only for the welfare of the child. Then, the client is told by doctors or medical staff that the child has been abused. The client is met by law enforcement detectives and CPS investigators, who immediately and unrelentingly place blame for the child’s injuries squarely on the client, who most of the time was the last person with the child. The client is told that the doctors and professionals know it is abuse. The client, not being a medical professional, often begins to believe that he/she must have done something to have caused the injury. Then, of course, the client is arrested. It is at this point that the criminal defense lawyer enters the narrative, and in this state the defense lawyer receives the client. Be sure to appreciate the gravity of what your client has just been through.

When you talk to your client, find out who the witnesses are. Begin a timeline. Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client. Oftentimes, you will find that the client felt like he/she had to tell police, doctors, CPS something specific regardless of its veracity. For instance, if police, medical personnel, and CPS are all insistent that the client “shook” the baby, the client may unknowingly adopt that terminology in spite of the fact that he/she actually bounced the baby in attempt to calm.

This scenario occurs with some degree of regularity, and it makes sense. It is typically a parent or caregiver who is the accused. It is typically a panicked situation where the parent or caregiver is very emotional and worried about the state of the child. The first thing on the parent’s mind is the child, not how to answer interrogation questions. Therefore, in child injury cases it is not uncommon to have what the State will often call a “confession” though in reality it is hardly such.

Notice and make note of how your client emotes when telling the story. In all likelihood, you are not the first person he/she has talked to about what happened, as previously discussed. If your client is sincerely emotional when telling you what happened, it is a safe bet that he/she was sincerely emotional when talking to the doctors, police, and CPS. In child injury cases, your client’s emotional state at the time of the incident will be a factor—and likely a major factor—at trial.

Getting the story from your client will also help you develop a list of witnesses. It is important to get the full story from your client, not just what happened in the minutes preceding the 911 call. Who had been with or seen the child earlier that day? In the days before? In all probability, law enforcement and CPS will not have talked to all of the important witnesses in the case.

B. Medical Records

The importance of obtaining all of the medical records in a child injury case simply cannot be understated. This is an area where it is especially important to do your own independent in­ves­ti­ga­tion. Regardless of whether the State has provided you with the child’s medical records, still obtain them on your own. The State just has what the hospital or doctor’s office has given to them. There are two options to obtaining the medical records: 1) subpoena duces tecum, or 2) through the child’s parent. In any event, be certain to get an original business records affidavit along with the medical records.

In your request be sure to ask for all nurses’ and doctors’ notes as well as all dictated and electronic medical records. Often, you will find that you will get more records than the State has been provided. That always makes for an interesting argument to the court when the State seeks to admit the medical rec­ords of a particular child by affidavit, especially a deceased child for which there would be no possibility of follow-up or aftercare records. Remember, trustworthiness is the touchstone of admitting business records by affidavit, and if there is something inherently untrustworthy about the records or the way they were compiled, then you have a good argument as to why the records should not be admitted.

Additionally, in child injury cases it is important to get all of the child’s medical records, not just the records from the injury. This is especially true if the child is an infant. In that case you need prenatal records, birth records, and both well and sick visit records. Ordinarily, there is some golden nugget hidden in these records. Do not depend on the State to get these records, and do not wait until your case is set for trial to get these records. These records must be obtained early on for optimal use.

Call the hospital, doctor’s office, or medical examiner’s office before you request the records. Find out in what format the records are kept. Find out if the records need to be requested from multiple departments. For instance, if the child had imaging done, then a separate subpoena may need to be served on the radiology records department.

In child death cases you must know which records to request from the medical examiner’s office. Again, do not depend on the State to provide these records to you. That simply cannot be overstated. Request the autopsy report via subpoena or through a public information act request. To that end, be aware of Article 49.25 of the Code of Criminal Procedure, which provides that

[t]he full report and detailed findings of [an autopsy performed by the medical examiner] shall be part of the record . . . [and t]he records may not be withheld, subject to discretionary exception under Chapter 552 Government Code [emphasis added].

Additionally, under Garcia v. State, 868 S.W.2d 337 (Tex. Crim. App. 1993), Denoso v. State, 156 S.W.3d 166 (Tex. App.—Corpus Christi 2005), and Texas Attorney General Opinion OR-2001845, an autopsy report is a public record. It is helpful to include the aforementioned references in your request for the autopsy.

In addition to the autopsy report, also subpoena all of the autopsy photographs, the medical examiner investigator’s report, and all toxicology reports. The photographs will either come in full color photographs, digital images, or both.

Perhaps most importantly, be aware that the biological sam­ples taken at autopsy are retained for a relatively short period of time before they are purged. It is good practice to request that all of the samples taken be preserved so that your expert can review the same or perform additional testing if need be.

As a practice point, it is worth noting that oftentimes many doctors contribute to a final autopsy report. This can create a con­frontation issue if only one of the doctors appears at trial. For instance, once the eyes are removed they may be sent to an ophthalmologist for evaluation, and he in turn would write a report. In that instance, it is likely that the ophthalmologist’s report regarding the eyes has been cut and pasted into the final autopsy under the appropriate heading. If you suspect this is the case, then make the proper confrontation objections at trial if the ophthalmologist is not present to testify.

C. Evidence

Always, always go and inspect the physical evidence. Pictures of the evidence provided by the State will not suffice. You must see and inspect the physical evidence in person before trial. You have to see, in person, what the jury will be seeing. Take your investigator with you when you go see the evidence. Be sure to document what you see.

In the same vein, always, always go to the scene. It is not sufficient to view the location on a computer program. Go there. And go during the same time of day when the incident was alleged to have happened. Stand where your client stood. Take note of the smells, the sounds, the sights. How far is the scene from the nearest help? Is there anyone nearby who could have seen or heard what happened? Have your investigator take pictures.

D. Mitigation

In any case, it is too late to think about punishment once trial has begun, and it is certainly too late to think about it after a one-word verdict. Early mitigation and preparation for any po­te­ntial punishment trial or hearing is absolutely necessary. After all, as criminal defense lawyers, we know that a success isn’t always a “not guilty” verdict. Sometimes it may mean probation or a tolerable prison sentence.

This is especially true when it comes to child injury cases. Begin thinking about mitigation as soon as you get the case. We have an ethical and legal duty to conduct a thorough investigation when it comes to punishment. See Williams v. Taylor, 120 S.Ct. 1495 (2000); Wiggins v. Smith, 539 U.S. 510 (2003)(decision of counsel not to expand investigation of petitioner’s life history for mitigating evidence beyond presentence investigation report and department of social services records fell short of prevailing professional standards and prejudiced petitioner); ABA 4-4.1(a); SBOT Performance Guidelines for Non-Capital Criminal Defense Representation 4.1. To be successful in a punishment trial, we have to convince a jury that neither they nor the community have to be scared of our client.

Set the stage for your client early on. Help your client understand what a trial is like in a child injury case. Potential jurors walk into jury service believing that injury to a child is one of the worst, if not the worst, crime imaginable. The subject matter alone provokes revulsion and repugnance. That revulsion and re­pugnance is bound to be reflected in the ultimate punishment absent compelling intercession from us.

In child injury cases, the relationship between the accused and the child matters hugely in relation to the alleged incident. Was this a parent who had always been an active part of the child’s life? Who was excited about the pregnancy? Attended the child’s school events? Find witnesses who can tell you about the relationship between the accused and the child. Get pictures of the accused and the child together to use during trial. If you can paint a picture of a loving parent or caregiver from the beginning, then it will be a harder sell for the State to convince a group of 12 that the act was intentional or knowing or that the injury was even caused by the parent or caregiver.

E. Experts

You cannot go to trial defending a child injury case without the assistance of an expert. These cases center on expert testimony. That is not to say that your expert will necessarily testify or that your case will wind up in a jury trial. At a base level, you need an expert to help you understand the medical records so you can counsel your client to make intelligent and informed decisions about his case. Lawyers are not doctors nor should we be expected to be. There is always at least something helpful in the medical records.

With that said, do not rely solely on the expert. Do as much reading and research into the specific medical issue as possible. Get a library card from a medical school library. Check out books. Check out the books and articles written by the State’s expert. Know what the publications say; there is likely something helpful from the defense perspective. Take the books to trial. Know the applicable medical jargon. Know the differential diagnoses. Know what is normal and what is not normal for the specific medical finding(s) in the case. Know enough to know what does not seem right about the State’s theory. If we, as defense lawyers, are unable to explain the medical findings in a common sense way to the jury, then we will certainly lose to the State’s expert explanation every time. A defense expert can certainly help explain and point us in the right direction.

In order to get optimal use out of your expert, the expert needs the benefit of all of the medical records. It is good practice to always send the whole case file to the expert so that you can receive a credible opinion and your expert will not be blindsided. The expert has to know the worst thing about the case.

If you are retained and your client subsequently runs out of money to hire an expert, it is incumbent upon you to petition the court for funding. Failing to do so has been determined to be ineffective assistance. Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(injury to a child case).

Always request pretrial expert hearings to test the experts’ qualifications and basis of knowledge and to find out what ultimate opinions they plan on offering. Never assume that the expert is qualified. As a practice point, if you are afforded a pretrial qualification hearing as opposed to a hearing outside the presence of the jury, then request a transcript of the hearing prior to trial for use during trial. Always request a pretrial qualification hearing in child injury cases, as the medical testimony is key and there are typically several experts. The basis for your request is one of judicial efficacy—there is no need for the jury to go back and forth over and over in the middle of trial versus having a day of qualifications hearings prior to trial. As further basis for this request, consider that you will not be able to be as effective if forced to do the expert hearing midtrial.

IV. Putting It All Together

So you know the law, have a pile of medical records, a list of witnesses, and pictures of the accused and child now. You have the information. You have knowledge. What do you do with all of this information once it’s been organized? You tell your story. In your voice. Your way.

In order to successfully defend child injury cases, we must know every aspect of the case better than the State. That means getting all of the aforementioned information, then processing and understanding it. That means a significant investment of time for every case. That investment of time naturally evolves into a passion. And in the end, that knowledge and passion translates to credibility with the jury.

V. Conclusion

Child injury cases are the most challenging and time consuming cases. They are some of the most daunting. But when you know what to get, how to get it, and how to use it, you will be in the best position possible to be successful in your defense.

Sarah Roland
Sarah Roland
Sarah Roland is the former editor of Voice for the Defense. She attended undergraduate school at Baylor University, then attended law school at Texas Tech. From 2006-2011, she worked for Jackson & Hagen. In 2011, she opened her own practice in Denton. Sarah was chosen as a Super Lawyer for 2017 in the state of Texas, as well as being awarded the Hal Jackson Award by the Denton County Criminal Defense Association. She ranks as a top lawyer in the area through her trial work. She primarily serves clients in Denton, Dallas, Collin, and Tarrant County. Sarah also handle cases in Wise and Cooke County.

Sarah Roland is the former editor of Voice for the Defense. She attended undergraduate school at Baylor University, then attended law school at Texas Tech. From 2006-2011, she worked for Jackson & Hagen. In 2011, she opened her own practice in Denton. Sarah was chosen as a Super Lawyer for 2017 in the state of Texas, as well as being awarded the Hal Jackson Award by the Denton County Criminal Defense Association. She ranks as a top lawyer in the area through her trial work. She primarily serves clients in Denton, Dallas, Collin, and Tarrant County. Sarah also handle cases in Wise and Cooke County.

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