JOHN E. NEILL, Justice

E. Alan Bennett, Sheehy Lovelace & Mayfield PC, Jessica S. Freud, Freud Law PC, Waco, for Appellant/Relator.

Barry N. Johnson, McLennan County District Attorney, Gabriel Price, Sterling A. Harmon, McLennan County Asst. District Attorneys, Waco, for Appellee/Respondent.

Before Chief Justice Gray, Justice Neill, and Justice Scoggins

JOHN E. NEILL, Justice

Glenda Hammons is charged under Section 22.04 (a) (2) with the offense of injury to a child. TEX. PENAL CODE ANN. § 22.04 (a) (2). Hammons filed an Application for Writ of Habeas Corpus arguing that Section 22.04 (a) (2) is unconstitutional on its face. Hammons appeals the trial court's order denying relief. We affirm.

In one issue, Hammons argues that Section 22.04 (a) (2) is unconstitutionally vague in violation of either, or both of, the Fifth and Fourteenth Amendments to the United States Constitution, and due course of law clause of Article I section 19 of the Texas Constitution. Whether a statute is unconstitutional on its face is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15.

Section 22.04 (a) (2) 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:

(2) serious mental deficiency, impairment, or injury

TEX. PENAL CODE ANN. 22.04 (a) (2). Hammons argues that the statute is unconstitutionally vague because it fails to define "mental deficiency, impairment, or injury" and "serious." Hammons contends there is no accepted plain meaning or common understanding that saves the statute.

A statute is void for vagueness if it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement. Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) ; Gerronv. State , 524 S.W.3d 308, 316 (Tex. App.—Waco 2016, pet. ref'd). A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ about its application. Ex parte Maddison , 518 S.W.3d 630, 640 (Tex. App.—Waco 2017, no pet.). A statute satisfies vagueness requirements if the statutory language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Wagner v. State , 539 S.W.3d 298, 314 (Tex. Crim. App. 2018). A statute is not unconstitutionally vague merely because it fails to define words or phrases. Gerron v. State , 524 S.W.3d at 316. Instead, undefined terms in a statute are to be given their plain and ordinary meaning. Id. Words or phrase must be read in the context in which they are used, and ordinarily the statute must then be construed according to the rules of grammar and common usage. Wagner v. State , 539 S.W.3d at 314.

Hammons contends that "mental deficiency," "mental impairment," and "mental injury" are not simple terms with a plain, ordinary meaning. Mental has an ordinary meaning. Mental is commonly understood to refer to the mind. In construing the plain meaning of the language of a statute, courts may resort to the use of dictionary definitions. SeeBingham v. State , 913 S.W.2d 208, 209-10 (Tex. Crim. App. 1995). An ordinary law-abiding citizen may do so as well. SeeFloyd v. State , 575 S.W.2d 21, 23 (Tex. Crim. App. 1978). Deficiency is defined as "the quality or state of being defective or of lacking some necessary quality or element." WEBSTER'S COLLEGIATE DICTIONARY (10th Edition 1993). Injury is defined as "hurt, damage, or loss sustained." WEBSTER'S COLLEGIATE DICTIONARY (10th Edition 1993). Impairment is defined as "diminishment or loss of function or ability." MERRIAM-WEBSTER , http:/merriam-webster.com/dictionary/impairment (last visited April 27, 2021).

We find that "serious mental deficiency, impairment, or injury" is not impermissibly vague. Ordinary citizens understand the meaning of "deficiency" "impairment" and "injury." Modifying those words with "mental" does not create an ambiguity because ordinary citizens would be able understand those terms as they relate to the mind. The statute further requires that the mental deficiency, impairment, or injury be serious. Serious is commonly understood to require a heightened or excessive level of the deficiency, impairment, or injury. Section 22.04 (a) (2) sufficiently warns a person that conduct that intentionally, knowingly, or recklessly, causes serious mental harm to a child, elderly individual, or disabled individual is prohibited.

In Stuhler v. State , the Court of Criminal Appeals evaluated the evidence and determined there was sufficient evidence to establish serious mental injury. Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). The Court of Criminal Appeals did not express concern over construing Section 22.04 (a) (2). In Franco v. State , a child was diagnosed with post-traumatic stress disorder and attention deficit disorder as a result of the conduct of the defendant. Franco v. State , 13-14-00108-CR, 2016 WL 3389967 *4, 2016 Tex. App. LEXIS 6340 *12 (Tex. App. — Corpus Christi June 16, 2016, no pet.). In Franco v. State , the Court found sufficient evidence to support a conviction for serious mental injury. Franco v. State , 2016 WL 3389967 at *7, 2016 Tex. App. LEXIS 6340 at *20. We find that Section 22.04 (a) (2) provides explicit standards for those who apply them. We overrule Hammon's sole issue on appeal.

CONCLUSION

We affirm the trial court's judgment.

(Chief Justice Gray concurring)

CONCURRING OPINION

TOM GRAY, Chief Justice

This issue, including the related analysis, is deceptive. It initially appears simple and straightforward. Then the more you read, study, and think on it, the more problems you begin to see; and you realize what a broad statute the legislature laid out to circumscribe conduct that causes a mental injury.

But first, let me begin with the kudos. The legislature is to be commended for recognizing the critical distinction between physical injury to the brain and injury to the mind. The subdivision of the statute at issue deals with injury to the mind. It is an effort to criminalize behavior that adversely affects the mind.

While I believe there is a core of conduct that is sufficiently understood as defining criminal conduct sufficient to overcome a challenge to the entire subdivision being unconstitutional on its face, I have serious concerns about the breadth of parts of the statute and tailoring the application of the statute in particularized situations. For example, in discussion of the statute, the State and the Court both observe that causing serious "mental harm" is adequately understood as being criminal conduct under the statute. But the term mental "harm" is not in the statute. I believe there will be many difficulties encountered in the application and enforcement of this statute. In part, this observation is based on the extent to which the Court of Criminal Appeals has struggled with a somewhat related concept. With the aid of many experts, the Court of Criminal Appeals has struggled mightily with defining / describing / creating / articulating a proper test to determine when a person is so mentally deficient ("intellectually disabled") that the person cannot be executed. SeePenry v. State , 691 S.W.2d 636, 652 (Tex. Crim. App. 1985) ; Penry v. Lynaugh , 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) ; Penry v. State , 903 S.W.2d 715 (Tex. Crim. App. 1995) ; Penry v. Johnson , 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) ; Penry v. State , 178 S.W.3d 782 (Tex. Crim. App. 2005). See also, Petetan v.State , 622 S.W.3d 321 (Crim. App. May 12, 2021) (publish).

My concern extends from the core to the fringes of attempting to enforce, or the coercive use of, this subsection. If a child in foster care is diagnosed with PTSD, an attachment disorder, or any other of the myriad of diagnosed mental disorders, has the child suffered the requisite level of injury to charge those who are caring for the child with a crime? When did the child suffer the injury? Are parents, CPS investigators and staff, foster parents, and other persons toiling away in our foster care system going to have to worry that an overzealous DA will charge them with a crime because of injuries that are difficult to describe, define, and that have limited, if any, objective manifestation of the symptoms to be able to identify and attribute or connect them to the cause of the injury? Will an overzealous DA use the statute to overcharge a defendant to extract a plea deal on what would otherwise be "routine" assault charges?

Virtually every victim of violence, and especially those of sexual assaults, suffer some level of mental harm. How much harm does it take to be a serious mental injury? Society is filled with events for which we worry about the adverse mental consequences such as domestic violence, video violence, indoctrination in beliefs of which some portion of society disapproves, as well as the perceived adverse consequences that bullying and micro-aggressions may have on children. There are even counselors provided to jurors as a result of having to serve on cases involving particularly violent or gruesome crimes and some of those jurors fall into the definition of elderly individuals. Have the members of the judicial system opened themselves to being charged with causing serious mental injury by recognizing the need for counselors? What is the evidence to establish the causal connection between the action or inaction and the injury? Can you be charged with inaction for injuries you could have prevented even though you otherwise have no duty to act? And really, the mental "harm" does not solve the problem. Does "harm" require a physical manifestation as in civil cases to obtain monetary damages? SeeEx parte Ellis , 609 S.W.3d 332, 340 (Tex. App.—Waco 2020, no pet.) (Gray, C.J., dissenting).

Yes, there are huge hurdles to overcome to prove a violation of this statute. And while I would like for our legislature to have substantially narrowed and defined the conduct that is criminal for this subsection of the statute, I do not believe the entire subsection of the statute is so broad as to be unconstitutional. With these comments, I concur in the Court's judgment which affirms the trial court's order; but because of the deceiving simplicity of the analysis, I did not want even the casual reader to walk away from the issue without some awareness of the complexity of the statute and asking: What if?