Cockrell, Ray Lee

Cockrell’s dogs ran loose in packs around his neighborhood because of inadequate fencing. Cockrell knew his dogs killed a neighbor’s dog and had attacked a neighbor’s horses. This led the local animal control authority to issue him a written dangerous dog notification. Cockrell also was aware of the dogs attacking people. His neighbor told Cockrell the dogs had attacked him, forcing him to climb a tree for safety. The dogs aggressively charged police officers investigating the incidents, leading an officer to shoot several of the dogs. And Cockrell likely was aware the dogs had attacked an 18-year-old woman. The dogs had pushed her to the ground, bitten her, and tore off her clothing, which Cockrell gave back to her grandfather when he returned to Cockrell’s home after rescuing her. After these incidents, the dogs attacked a nine-year-old boy on neighboring property, severely injuring him. The State charged Cockrell with Attack by Dog, an offense in the Health & Safety Code, and with injury to a child by omission for failing to restrain or securely enclose his dangerous dogs as required by Tex. Health & Safety Code § 822.042. Cockrell was convicted by a jury.

On appeal, Cockrell challenged the sufficiency of the omission element. A majority of the court of appeals sustained Cockrell’s sufficiency argument, holding that, while Health & Safety Code § 822.042 may have required him to restrain or secure his dogs, it did not create a statutory duty to prevent injury to the boy, which it held was required. In previous injury-to-a-child-by-omission cases, the Texas Family Code and familial relationships supplied the statutory duty to care for the specific child who was injured. But Cockrell did not know the child or that he was even on the neighboring property. The majority reasoned that if a statute like the dangerous dog requirement were sufficient to impose criminal liability for any resulting injury to a child, then even minor traffic offenses like speeding or failure to stop at a stop sign could result in a first-degree-felony prosecution if a child was injured. The dissenting judge would have allowed the dangerous dog duty to support omission liability for injury to a child but believed Cockrell’s failure to act was merely reckless, not “knowing,” as the State alleged.

The State argues that the majority’s interpretation conflicts with the plain text of the statute. An injury to a child can be committed by an omission if the defendant “has a legal or statutory duty to act.” Tex. Penal Code § 22.04(b)(1). A “duty” is a requirement to do “some definite action,” and the general Penal Code statute setting out omission liability requires that “a law as defined by Section 1.07 . . . provides that he has a duty to perform the act.” The duty doesn’t have to specifically apply to the child victim. This is underscored by the fact that injury to a child does not require the defendant to know that the victim is a child. Health & Safety Code § 822.042(a) provides that an owner who knows his dog qualifies as dangerous “shall” “restrain the dangerous dog at all times on a leash in the immediate control of a person or in a secure enclosure.” The State argues that the salient point is that the duty goes to Cockrell and his dogs, not the child. It is self-evident that this duty is imposed “to prevent foreseeable bodily harm to whoever it could be visited upon.” The majority’s limitation of duties to those found in the Family Code has no basis in law. Transportation Code offenses already form the basis for liability for injury to a child, and the court need not decide whether all such offenses would. The State also suggests that if the Court rejects omission liability, it should remand the case for the court of appeals to consider the State’s alternate theory: that Cockrell injured the child through his act of allowing his dangerous dogs to roam free.