Comment

Defining “On or About.” It is well-settled that the state is not required to prove that an offense was committed on the exact date alleged in the indictment. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The state is likely entitled to an instruction informing the jurors of this law. This is usually accomplished with an instruction that the state is not bound by the date alleged in the indictment and may prove that the offense occurred on any date as long as it was before the presentment of the indictment and within the statute of limitations. Sledge, 953 S.W.2d at 256. In some instances, however, an instruction on this relaxed meaning of “on or about” can “present[] the jury with a much broader chronological perimeter [around possible offense dates] than is permitted by law.” Taylor v. State, 332 S.W.3d 483, 488 (Tex. Crim. App. 2011). Sometimes, the date of presentment of the indictment and the statute of limitations are not the only limits that the jury should consider.

One such additional limitation is in Tex. Penal Code § 8.07(b), which provides that, except under very limited circumstances, a person cannot be prosecuted for offenses committed before he was seventeen years old. When the proof of the offense at trial includes acts that the defendant committed before he turned seventeen, any relaxed definition of “on or about” must include a limitation that the jury cannot convict the defendant for conduct committed before he was seventeen. Taylor, 332 S.W.3d at 488.

Also, a number of courts of appeals have held that a jury charge on the non-binding nature of dates alleged in the indictment for continuous sexual abuse of a young child must limit the jury’s consideration of offense dates to conduct occurring after September 1, 2007, the effective date of Tex. Penal Code § 21.02, the continuous-sexual-abuse-of-a-young-child statute. Martin v. State, 335 S.W.3d 867, 874–75 (Tex. App.—Austin 2011, pet. ref’d); Gonzales v. State, No. 04-14-00100-CR, 2015 WL 5037692 (Tex. App.—San Antonio Aug. 26, 2015, pet. ref’d) (not designated for publication).

The expanded definition of “on or about” and the more common limitations on this expanded definition are set out in the instructions in this chapter. These instructions reflect the fact that, for most prosecutions of aggravated sexual assault of a child, sexual assault of a child, continuous sexual abuse of a young child, and indecency with a child, there is no statute of limitations. Tex. Code Crim. Proc. art. 12.01(1)(B), (1)(D), (1)(E). For other prosecutions that are still governed by a statute of limitations, the following definition should be given instead:

Election and Incident Unanimity. When the state charges the defendant with a single count of a sex offense but the evidence at trial includes multiple instances when the defendant committed that same sex offense, the state is required at the close of its evidence to elect which instance or incident the state will rely upon for conviction, as long as the defense requests such an election. Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006). One of the reasons behind this requirement for election is that it is a way “to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred.” Phillips, 193 S.W.3d at 910. If the defense does not request an election, all of the incidents offered at trial will be double-jeopardy barred. Dixon v. State, 201 S.W.3d 731, 735 (Tex. Crim. App. 2006).

If the defense requests the state to elect, the trial court should require such an election when the state rests its case-in-chief. Phillips, 193 S.W.3d at 909–10. The Committee’s recommended language for such an instruction in the jury charge is included in several instructions in this chapter under the heading “State’s Election of a Particular Incident.”

In drafting the language to describe the particular incident that the state has elected, it is important to remember the prohibition in the Code of Criminal Procedure against “expressing any opinion as to the weight of the evidence,” “summing up the testimony,” and “discussing the facts.” Tex. Code Crim. Proc. art. 36.14. In Garcia v. State, the court of criminal appeals held that the phrase inside a bathroom was “just enough information” in that case “for the jury to distinguish it from all of the other incidents” and “not so detailed as to risk ‘summing up the testimony [or] discussing the facts’ of the case.” Garcia v. State, No. PD-0035-18, 2019 WL 6167834 (Tex. Crim. App. Nov. 20, 2019). The instructions should not assume the truth of a contested fact—namely, that the incident actually occurred. See, e.g., Ortiz v. State, No. 11-10-00303-CR, 2012 WL 760804, at *2 (Tex. App.—Eastland Mar. 8, 2012, pet. ref’d) (not designated for publication); Bonner v. State, No. 10-09-00120-CR, 2010 WL 3503858, at *10 (Tex. App.—Waco Sept. 8, 2010, pet. ref’d) (not designated for publication); Vickery v. State, No. 2-04-422-CR, 2005 WL 2244730, at *6 (Tex. App.—Fort Worth Sept. 15, 2005, pet. ref’d) (not designated for publication).

Ensuring a Unanimous Verdict. Even if the defense does not request the state to elect a particular incident, evidence of multiple incidents that could all constitute one count in the indictment can still present the danger of a nonunanimous verdict. Phillips, 193 S.W.3d at 913. As the court explained in Phillips:

Phillips, 193 S.W.3d at 913. The requirement of a unanimous verdict in Texas “means that the jury must ‘agree upon a single and discrete incident that would constitute the commission of the offense alleged.’” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). When each of the multiple incidents individually establishes a different offense or unit of prosecution, it is the trial court’s responsibility to ensure unanimity by instructing the jury in the charge that its verdict must be unanimous as to a single incident of the offense among those presented in evidence. Cosio, 353 S.W.3d at 772; Ansari v. State, 511 S.W.3d 262, 265 (Tex. App.—San Antonio 2015, no pet.). One recent court of appeals decision refers to this instruction on unanimity as an “incident-unanimity instruction.” Ansari, 511 S.W.3d at 265.

Incident-unanimity instructions are not required for the offense of continuous sexual abuse of a young child. Tex. Penal Code § 21.02(d). Under section 21.02(d), the jury is not required to be unanimous about which specific acts of sexual abuse the defendant committed. The legislature created that offense in large part due to the issues generated by prosecution of discrete offenses and evidence of a continuing pattern of sexual abuse. Price v. State, 434 S.W.3d 601, 608 (Tex. Crim. App. 2014) (citing Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring)).

For the other offenses in this chapter, however, an incident-unanimity instruction should be given when there is evidence of multiple incidents of conduct, each of which would constitute the same count in the indictment.

Incident Identification. Some members of the Committee suggested that perhaps jurors should be asked to specify a particular incident in their verdict form as a way of ensuring unanimity. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007) (approving of submission of separate verdict forms when the state had alleged separate offenses in a single count of indictment as a way “to ensure that each allegation is decided unanimously”). Because the Code of Criminal Procedure requires that “[t]he verdict in every criminal action must be general” and the court of criminal appeals indicated that an instruction on unanimity “should permit the jury to return a general verdict,” which would permit all incidents to be jeopardy-barred, the Committee concluded that current law does not support the practice of asking the jury to return a separate verdict on each of the incidents offered in evidence. See Tex. Code Crim. Proc. art. 37.07; Cosio, 353 S.W.3d at 776.

Identifying What Constitutes a Separate Offense.  In Vick v. State, the court of criminal appeals held that each of the different subsections of aggravated sexual assault within Tex. Penal Code § 22.021(a)(1)(B) constituted different offenses for double jeopardy purposes. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). What constitutes a separate offense for double jeopardy purposes has, so far, also constituted a separate offense for jury unanimity purposes. French v. State, 563 S.W.3d 228, 234 (Tex. Crim. App. 2018).

In French, the court held that even within the same subsection of 22.021(a)(1)(B), penetration of the child’s anus was a separate offense from penetration of the child’s female sexual organ. French, 563 S.W.3d at 233. See also Gonzales v. State, 304 S.W.3d 838, 849 (Tex. Crim. App. 2010).

In Jourdan v. State, the penetration of a single orifice (the sexual organ) of one victim during the same transaction constituted but one offense under section 22.021(a)(1)(A)(i), regardless of the various manner and means by which the evidence may have shown that the penetration occurred. The jury was not required to reach unanimity with respect to whether the defendant penetrated the victim with his penis or his finger during that transaction (because the statute says “by any means”). Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014).

For indecency with a child, touching of the anus, breast, and genitals constitutes three separate offenses. Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007).

Other offenses are subsumed within another and do not constitute separate offenses. Where two crimes are such that the one cannot be committed without necessarily committing the other, then they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both. Aekins v. State, 447 S.W.3d 270, 281 (Tex. Crim. App. 2014) (“[A] defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as exposure or contact) that is demonstrably and inextricably part of that single sexual assault.”); Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004).

Indictments that Allege More Than One Offense within a Single Count. When the law provides that two sex acts constitute separate offenses, the state can obtain separate convictions for each of the offenses by charging them in separate counts or indictments. Sometimes, however, the state may seek only a single conviction for what could be multiple offenses. Particularly in child sex offenses, prosecutors will not always know in advance what a child victim will say on the witness stand, or the evidence remains ambiguous at the pretrial stage. In other instances, the state may believe that the conduct warrants only a single conviction. Regardless, when the state seeks fewer convictions than offenses alleged, jury unanimity is potentially implicated, and the two different offenses should not be submitted to the jury in the alternative. See French, 563 S.W.3d at 233. CPJC 21.20 and CPJC 21.21 provide examples for instructing the jury when the state has alleged in a single count what could be two separate offenses to ensure jury unanimity as to each offense.

Instructions under Code of Criminal Procedure Article 38.37, Section 1: Other Acts Against the Same Child Victim. In trials for certain offenses (including sexual assault, aggravated sexual assault, and indecency with a child where the victim is under the age of seventeen), evidence of “other crimes, wrongs, or acts” that the defendant committed against the same child as the victim alleged in the indictment are admissible to show “(1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Tex. Code Crim. Proc. art. 38.37, § 1. In practice, jury instructions under this article are typically patterned after the limiting instructions for extraneous acts admitted under Tex. R. Evid. 404(b). See, e.g., Ex parte Pruitt, 233 S.W.3d 338, 343 n.3 (Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 900 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Ware v. State, 62 S.W.3d 344, 352 (Tex. App.—Fort Worth 2001, pet. ref’d). In many ways, article 38.37, section 1, may not seem to warrant a limiting instruction. Its terms expand the permissible purposes for which extraneous offense evidence may be admitted, and it specifies that such evidence is admissible “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence.” Tex. Code Crim. Proc. art. 38.37, § 1. At the same time—in contrast to article 38.37, section 2 (discussed below)—section 1 does not go so far as to say that such evidence may be admitted for the purpose of determining “the character of the defendant and acts performed in conformity with the character of the defendant.” The absence of this language in section 1 suggests that the limitation in Tex. R. Evid. 404 still applies to section 1 evidence, and that such evidence is not admissible solely to prove that the defendant acted in conformity with his character trait on a particular occasion. When evidence is admissible for one purpose but not another, the trial court is required, on request, to so instruct the jury. See Tex. R. Evid. 105. Some courts of appeals have indicated that, on request, the defendant would be entitled to a limiting instruction in the jury charge under article 38.37, section 1. See Rivera v. State, 233 S.W.3d 403, 406 (Tex. App.—Waco 2007, pet. ref’d); Graves v. State, 176 S.W.3d 422, 433 (Tex. App.—Houston [1st Dist.] 2004, pet. struck). As with other limiting instructions, however, a trial court may not be required to give a limiting instruction under article 38.37 if the defense did not request a contemporaneous instruction at the time the evidence was introduced. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); Beam v. State, 447 S.W.3d 401, 406–07 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (finding no error from lack of limiting instruction under article 38.37, where defendant failed to request a limiting instruction at the time evidence was admitted).

The Committee’s recommended language for an instruction under article 38.37, section 1, is included in several instructions in this chapter under the heading “Evidence of Wrongful Acts Defendant Possibly Committed.”

Instructions under Code of Criminal Procedure Article 38.37, Section 2: Offenses Against Other Child Victims. In 2013, the legislature redesignated the former section 2 as section 1(b) and added the current sections 2 and 2–a, which for the first time made evidence of extraneous offenses against a noncomplaining child victim admissible under article 38.37. Acts 2013, 83d Leg., R.S., ch. 387, §§ 2, 3 (S.B. 12); Fahrni v. State, 473 S.W.3d 486, 494 (Tex. App.—Texarkana 2015, pet. ref’d). As mentioned above, it also authorized the admission of such evidence “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” Tex. Code Crim. Proc. art. 38.37, § 2(b).

At the present time, however, neither the statute nor case law sets out how the jury should be instructed under this section. The statute does indicate that before such evidence is introduced, the trial court is to conduct a hearing to determine whether the proffered evidence will “support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt.” Tex. Code Crim. Proc. art. 38.37, § 2–a. Consequently, at the very least, the jury should be instructed that they must first find the extraneous offense occurred beyond a reasonable doubt. Other than this provision, however, the statute gives little indication of what the jury should be told about the use of this evidence. Also, the court of criminal appeals has not ruled on what kind of jury instruction is required.

Several courts of appeals have recently held that while article 38.37, section 2, removes the prohibition on specific instances of conduct and on offering conduct evidence to show conformity to a particular character trait on a particular occasion, the statute does not lessen the state’s burden of proof to support a conviction. Bezerra v. State, 485 S.W.3d 133, 140 (Tex. App.—Amarillo 2016, pet. ref’d); Robisheaux v. State, 483 S.W.3d 205, 212–13 (Tex. App.—Austin 2016, pet. ref’d); Baez v. State, 486 S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet. ref’d); Harris v. State, 475 S.W.3d 395, 402–03 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). While enlarging the scope of admissible testimony, the statute “leaves untouched the amount or degree of proof required for conviction.” Baez, 486 S.W.3d at 600 (quoting McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont 2001, pet. ref’d), interpreting present article 38.37, section 1). “The general rule that an accused may not be tried for some collateral crime or for being a criminal generally” (Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983)), is frequently enforced through Tex. R. Evid. 404, which effectively keeps such evidence from being admitted at trial. But regardless of what evidence is admitted, the federal due process clause still requires the state to prove beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant is charged. In re Winship, 397 U.S. 358, 364 (1970). Proof that the defendant committed a separate crime or even that he is generally a criminal is not sufficient to convict the defendant of the offense alleged in the indictment. Even if the evidence makes it more likely that the defendant acted in conformity on the occasion for which he is on trial, “more likely” is not the same as proof beyond a reasonable doubt. As one court of appeals explained it, “Article 38.37, section 2, as an evidentiary rule, allows the State to introduce evidence of extraneous offenses only to support the theory that [the defendant] committed the charged offense.” Distefano v. State, 531 S.W.3d 25, 38–39 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

Other parts of the jury instructions and even the verdict form tell the jury that the defendant is on trial for the offense(s) alleged in the indictment and that they can find the defendant guilty only if all of the elements are proven beyond a reasonable doubt. These instructions were sufficient for one court of appeals to conclude that the jury instructions did not entitle the jury to convict the defendant for the extraneous offense admitted under article 38.37, section 2. Distefano, 531 S.W.3d at 39.

Because article 38.37, section 2, is based on federal rules of evidence 413 and 414, the experience in the federal courts may be instructive. See Senate Committee on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013). Several federal cases demonstrate a practice of reiterating to jurors—hand-in-hand with the admission of evidence under Fed. R. Evid. 413—that the defendant is on trial for the offenses charged and not for any extraneous offenses. See, e.g., United States v. Lewis, 796 F.3d 543, 548 (5th Cir. 2015) (“You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crimes charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment[.]”); United States v. Erramilli, 788 F.3d 723, 731 (7th Cir. 2015) (“Keep in mind that the defendant is on trial here for abusive sexual contact, not for the other crimes.”).

The pattern jury charges in the Eighth Circuit go further:

Eighth Circuit Criminal Pattern Jury Inst. § 2.08A “Defendant’s Prior Similar Acts in Sexual Assault and Child Molestation Cases (Fed. R. Evid. 413 and 414)” (emphasis added); see also United States v. Summage, 575 F.3d 864, 878 (8th Cir. 2009) (trial court instructed the jury to “[r]emember that the defendant was not charged in this case with committing crimes in Georgia and [the jury could not] automatically find the defendant guilty of any crime alleged in this case simply because [it] believe[d] the evidence relating to the alleged molestation in Georgia”); United States v. Batton, 602 F.3d 1191, 1199–1200 (10th Cir. 2010) (commenting, where trial court instructed jury that the defendant “may not be convicted of the crimes charged in the Indictment if you were to find only that he committed other crimes at some other time,” that the instructions “emphasize with clarity that . . . no matter what other crimes [the defendant] may have committed, the jury must find him guilty of the crime alleged in the indictment”).

Given the lack of controlling Texas law on point, the Committee was deeply divided on how best to instruct jurors regarding article 38.37, section 2, evidence. The Committee, for instance, considered whether—as part of a larger instruction on this kind of evidence—to include the following admonition to jurors:

While many Committee members believed such an instruction was appropriate, others had reservations about instructions that went beyond the language of the statute. Still others were concerned that, even if it proved helpful in some instances, a boilerplate jury instruction might give false assurance that jurors were using the evidence only for permissible purposes.

The instruction that the majority of the Committee ultimately decided on is included in several instructions in this chapter under the heading “Evidence of Another Offense Defendant Possibly Committed.”