My son had an hairline fracture in his upper arm. My son, his father and paternal grandmother are saying that "I threw him forcefully down" to cause the break. His father and I (who have never been on good terms) are currently through a custody battle as well. He wants full custody and will do anything to do that. Right now my son is placed with the paternal grandmother who does not speak to me either. My son is 5 years old and I have taken care of him by myself with no child support since he was born. I want to clear my name, because I would never harm my child. I definetly do not want to face any jail time for something I did not do.
Family Law Attorney
Injury to a Child is governed by the Texas Penal Code section 22.04. The punishment range on this type of crime varies based upon the actual charging instrument. If they allege that you caused serious bodily injury to the child then it is considered a a first degree felony. However, if the mens rea (mental state) is reckless, then it is a second degree felony. I will explain mens rea in a moment. Now, if they charge you with just causing bodily injury, then it would be a third degree felony. However, if you are found to have been reckless in causing the bodily injury or the bodily injury occurred due to criminal negligence, then it is a state jail felony.
Let me explain the punishment ranges first and then the mens rea. A first degree felony is punishable from 5 years in prison to 99 years or life in prison. A second degree felony is punishable from 2 years to 20 years in prison. A third degree felony ranges from 2 years to 20 years in prison. Finally, a state jail felony has a punishment range of 180 days to 2 years in the state jail. Each of these punishment ranges can also come with a fine of up to $10,000.
Now, this particular crime accepts all four (4) types of mens rea (mental state). The four types of mental states are 1) intentionally, 2) knowingly, 3) recklessly, or 4) with criminal negligence. If a jury finds that the injury was committed intentionally, knowingly, or with criminal negligence, then there is one type of punishment. If the crime was committed recklessly, then the punishment reduces. Here is the best way to explain those four types of mental states. Intentionally means that there is an explicit and conscious desire to commit a dangerous or illegal act. Knowingly means that you knew your actions could produce certain results but ignored that fact and proceeded with your action. Criminal negligence means failing to meet a reasonable standard of behavior for the circumstances. For example, if a child is injured because his or her caretaker failed to perform her duties, she may be guilty of criminal negligence. Finally, reckless means making a decision to commit a certain action despite knowing about the associated risks. For example, if a person causes injury while driving drunk, he can be found guilty of recklessly causing harm. He did not intend to hurt anyone, and did not expect it to happen, but he knew he was taking the risk of hurting someone by driving while inebriated.
Finally, regardless of whether the criminal charge holds up in the criminal courts, this charge can severely mess up a family law case, such as a Divorce or a Suit Affecting the Parent-Child Relationship. It does not matter that the father has never paid child support and that will have little effect in your current custody battle. What the court is going to be more concerned with is the safety of the child. Since your son is also alleging that you intentionally hurt him, you have an uphill battle to not only clear your name in the criminal courts but to keep any and all rights to your son in the family courts. If CPS is involved in this case, be prepared for a year long battle for keeping your rights. Your best bet is to get a very good attorney, you will need one for both the criminal case and the family case, and make sure that you seek a medical expert to show that the break in the arm could not have occurred as they allege.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Texas. Responses are based solely on Texas law unless stated otherwise.
Criminal Defense Attorney
Mr. Rivera gave you an excellent answer. Having looked at your charge online, I would also let you know that you are in a court with a very tough judge, which generally means that the prosecutors are quite tough. There is a great likelihood that if you intend to fight the case, you will need not only an attorney but also a medical expert.
Although I have answered the question to try to help you, you should consult with a lawyer in your area in person on the matter. In addition, my answer does not establish an attorney-client relationship between us.