Texas Courts of Appeals

Thetford v. State

No. 02-18-00488-CR                                  3/3/22

Issue:

Is evidence sufficient to support a conviction when the relevant statute (attempted murder) requires an act, but the defendant’s indictment alleges an omission (failure to provide)?

Holding:

Yes. The indictment, in this case, alleged “fail[ing] to provide adequate food and/or nutrition,” which involved affirmative acts (withholding food), not an omission. In addition, the court held Rodriguez v. State, 454 S.W.3d 503 (Tex. Crim. App. 2014), did not create a per se rule that an indictment alleging failure to provide could not support a conviction for attempted murder, regardless of the evidence presented at trial. Instead, a traditional sufficiency analysis examining the record for affirmative acts must be conducted. Here, the State met its burden in proving attempted murder when evidence at trial showed the defendant prevented access to food and kept others from feeding her child. Read opinion.

Commentary:

This opinion logically observes that an omission, or the “failure” to do something or provide something, can also involve component affirmative acts—such as, in this case, actively restricting or withholding food, or actively preventing others from providing food. This is important information for prosecutors who handle cases involving injury to a child, elderly person, or disabled person (which often involve neglect or other omissions), or any other offense where the State brings a “failure-alleging” charging instrument against a defendant for an “act-based” offense. 

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