Comment

Indecency with a child by contact is prohibited by and defined in Tex. Penal Code § 21.11(a)(1). The offense presents several basic issues that must be resolved to draft jury instructions for this offense.

Formulation of Elements of Offense. Indecency with a child by contact as defined in Texas Penal Code section 21.11 poses the same question as a number of other offenses: To what extent, if any, should the jury charge incorporate into the definition of the offense what in the statute is a definition of a term?

Specifically, should the statutory definition of “sexual contact” be incorporated into the elements of the offense, although it does not appear as part of the “basic” statutory definition in section 21.11(a)(1)?

Unless the definition of “sexual contact” is incorporated into the elements, the statement of the crime itself does not explicitly contain any culpable mental state. Moreover, that statement does not explicitly state what the real conduct constituting the offense is—“touching.”

The court of criminal appeals has held that the intent to arouse or gratify sexual desire, although contained in the definition of “sexual contact,” is nevertheless an element of the offense that must be pleaded in the indictment. This is apparently necessary not simply to provide notice but to charge the offense of indecency with a child. Victory v. State, 547 S.W.2d 1 (Tex. Crim. App. 1976). See also Duwe v. State, 642 S.W.2d 804, 805 (Tex. Crim. App. 1982) (applying Victory).

The Committee decided that the instructions would most clearly present the elements of the offense if the instructions incorporated the substance of sexual contact into the definition of the offense.

Culpable Mental State—Case Law. The case law reflects considerable uncertainty about what culpable mental state is required by this offense.

In McMillan v. State, 926 S.W.2d 809 (Tex. App.—Eastland 1996, pet. ref’d), for example, the court of appeals assumed the trial court erred in refusing to add the words “intentionally and knowingly” to the jury charge immediately before the phrase “engage in sexual contact with E.M.” But the error, although preserved, was held harmless. The charge did require the jury to find that the defendant acted with the intent to arouse or satisfy his sexual desire. “The jury could not have found such an intent unless it believed that appellant knowingly or intentionally engaged in sexual contact with the complainant.” McMillan, 926 S.W.2d at 811.

In Rodriguez v. State, 24 S.W.3d 499, 501 (Tex. App.—Corpus Christi–Edinburg 2000, pet. ref’d), the indictment alleged the defendant did “with the intent to arouse or gratify [his] sexual desire, intentionally or knowingly engage in sexual contact with [child’s name] by touching the breast of [child], a child younger than seventeen years of age, and not the spouse of [appellant] with [his] hand.” In the jury charge, the application paragraph told the jury that it was to convict if it found beyond a reasonable doubt that the defendantacted “with intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly.” Rodriguez, 24 S.W.3d at 502. The jury was given the full statutory definitions of “intentionally” and “knowingly.”

Relying heavily on Caballero v. State, 927 S.W.2d 128 (Tex. App.—El Paso 1996, pet. ref’d), Rodriguez concluded that indecency with a child is a “conduct offense,” “requiring proof of the defendant’s intent to engage in proscribed contact.” Rodriguez, 24 S.W.3d at 502. The court found error apparently in two aspects of the charge. First, the charge permitted conviction on proof that the accused acted intentionally or knowingly, without also requiring proof that he acted with intent to arouse or gratify his sexual desires. Second, the charge did not make clear that intentionally or knowingly applied to the “nature of conduct” element. Error was not preserved, however, and since egregious harm was not caused the error was not reversible.

The Corpus Christi court of appeals found a jury charge erroneous for the first of the two reasons relied on in Rodriguez but concluded the record failed to show the necessary egregious harm. Cavazos v. State, No. 13-04-075-CR, 2005 WL 2008417, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 22, 2005, no pet.) (not designated for publication) (charge permitted conviction on proof the defendant “with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage[d] in sexual contact . . . by touching the genitals of [the child]”).

Caballero and Washington v. State, 930 S.W.2d 695 (Tex. App.—El Paso 1996, no pet.), addressed cases in which the indictment did not allege and the charge did not require proof that the accused acted intentionally or knowingly. Rather, the charge told the jury it must find the defendant acted with intent to arouse or gratify sexual desire. In both cases, the claimed error was in giving the juries definitions of intent that referred to results as well as nature of conduct. Both defendants apparently argued that this might have misled the jury in understanding intent to arouse or gratify sexual desire. Neither case found error. Washington explained that under the charge “the jury could not have found him guilty simply on the basis that he had a conscious objective or desire to touch J.R.H.’s penis, or on the basis that he intended some result other than sexual gratification.” Washington, 930 S.W.2d at 700. The court added, “[I]t seems superfluous to provide any definition of ‘intentionally’ in the jury charge.” Washington, 930 S.W.2d at 700.

Washington reaffirmed that indecency by contact is a “nature of conduct” offense. Washington, 930 S.W.2d at 699. But at no point did the court suggest that this meant that somehow the offense requires a culpable mental state regarding the conduct.

The Dallas court of appeals found no fundamental error in the trial court’s failure to limit a charge’s definition of intentionally and knowingly to those parts of the statutory definition that applied the terms to “nature of conduct” elements. The application paragraph of the charge required the jury to find that the defendant “intentionally or knowingly engage[d] in sexual contact with C.L.,” and this “limited the applicable mental states to the appropriate conduct element.” Battaglia v. State, No. 05-06-00798-CR, 2007 WL 4098905, at *2 (Tex. App.—Dallas Nov. 19, 2007, no pet.) (not designated for publication).

This uncertainty is somewhat surprising in light of Clark v. State, 558 S.W.2d 887 (Tex. Crim. App. 1977). Clark squarely held that an indictment for indecency with a child need not allege any culpable mental state beyond that of “with the intent to arouse or gratify the sexual desire of any person.” Clark, 558 S.W.2d at 890–91. This was apparently on the ground that Penal Code section 6.02 does not apply or require anything more. If no such mental state need be alleged, it follows that none is required for proof of guilt.

At least one leading source recommends that a charging instrument for the offense allege a culpable mental state. 7 Michael J. McCormick et al., Texas Practice Series, Criminal Forms and Trial Manual § 6.4 (11th ed. 2005) (recommending “A.B. did then and there intentionally and knowingly engage in sexual contact with C.D.”). Clearly such a culpable mental state is sometimes alleged, perhaps on the assumption that this is required by section 6.02.

In summary, the case law—despite Clark—sometimes assumes that indecency with a child by contact requires that the defendant act knowingly or intentionally with regard to sexual contact in addition to acting “with the intent to arouse or gratify the sexual desire of any person.” The courts do not provide a rationale for this assumption.

Culpable Mental State—Committee Conclusions. No culpable mental state is expressly required by the basic statutory provision creating and defining the offense. Tex. Penal Code § 21.11(a)(1). That provision, however, uses the term sexual contact, which is then defined by section 21.11(c) as requiring “the intent to arouse or gratify the sexual desire of any person.” Tex. Penal Code § 21.11(c).

A culpable mental state is required by Penal Code section 6.02 only “[i]f the definition of an offense does not prescribe a culpable mental state.” Tex. Penal Code § 6.02(b). The Committee concluded that the definition of the offense of indecency with a child by contact includes the statutory definition of sexual contact and thus does prescribe a culpable mental state. Consequently, no additional culpable mental state is required by section 6.02.

Sometimes the offense is pleaded by alleging that the accused acted intentionally or knowingly. The above instructions are drafted on the assumption that this is not required and should not be pleaded.

The crime does, of course, require proof that the accused acted “with the intent to arouse or gratify the sexual desire of [some] person.” Tex. Penal Code § 21.11(c). Whether to include some or all of the statutory definition of intent has troubled the courts. The Committee concluded that the better course would be to include a definition of the entire statutory culpable mental state, using and applying the statutory definition of intent. This is reflected in the above instructions.

Touching. The essence of the offense, of course, is the act of “touching.” The Penal Code provides no definition of that act.

In at least one case, the trial court has made some effort to define this term. In Pleasant v. State, No. 03-04-00691-CR, 2005 WL 3330352, at *3 (Tex. App.—Austin Dec. 9, 2005, pet. ref’d) (not designated for publication), the trial court instructed the jury:

This instruction was held not to be error, although Pleasant’s objection was apparently to the statement that the touching could be through clothing because the statutory provision to that effect did not apply to the case. The court of appeals held that the instruction essentially and permissibly incorporated the law as stated in Resnick v. State, 574 S.W.2d 558 (Tex. Crim. App. 1978), a public lewdness case.

Whether Pleasant actually approved of a charge explaining touching in terms of a sense of feeling is not clear. The Committee concluded that no such effort to explain the term should be made in the instructions. How such an explanation should be formulated is unclear. Resnick seemed to regard touching as requiring that the defendant perceive by the sense of touching. Resnick, 574 S.W.2d at 560. In Deason v. State, 786 S.W.2d 711 (Tex. Crim. App. 1990), overruled on other grounds by Gipson v. State, 844 S.W.2d 738, 741 (Tex. Crim. App. 1992), the court seemed to read Resnick as requiring that the victim perceive the touching: “[T]here is no evidence that the complainant felt the appellant touch her genitals. In fact, the evidence is replete with evidence to the contrary.” Deason, 786 S.W.2d at 715. Even if using case law to develop a definition might be appropriate, the existing case law does not provide a firmly established definition.

Anus vs. Buttocks. There is authority that insofar as the offense is defined to include the touching of the victim’s anus, this must be distinguished from the touching of the buttocks. See Wright v. State, 693 S.W.2d 734, 735 (Tex. App.—Dallas 1985, pet. ref’d) (“Nowhere does the Code criminalize the touching of the buttocks. Instead, the touching of the ‘anus’ is specified. We cannot accept the State’s contention that the two words are analogous.”). One court has commented that “the State was required to prove beyond a reasonable doubt that [the defendant] touched complainant’s anus, not just the surrounding area.” Pryor v. State, 719 S.W.2d 628, 630 (Tex. App.—Dallas 1986, pet. ref’d). Testimony may be sufficient to show touching of the buttocks but not touching of the anus. Alberts v. State, No. 06-09-00058-CR, 2009 WL 4724302, at *3 (Tex. App.—Texarkana Dec. 11, 2009, no pet.) (not designated for publication) (testimony that defendant “touched his penis to [complainant’s] butt” and when asked, “Did he attempt to do anything with his penis,” complainant replied, “No, just touched it there,” would not permit a rational jury to find beyond a reasonable doubt that defendant’s penis contacted complainant’s anus as alleged in the indictment).

Perhaps in such cases the term anus might be defined so as to make clear that touching of the buttocks is not sufficient. No case appears to address whether such a definition is ever required or permissible, or how an instruction might acceptably define the term anus.

Jury Unanimity. Application of the requirement of jury unanimity to indecency by contact was addressed in Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007).

Section 21.11(a)(1), Pizzo held, creates three separate offenses: (1) touching the anus, (2) touching the breast, and (3) touching the genitals. Pizzo, 235 S.W.3d at 719. If the jury instructions submit these as alternatives, those instructions must make clear that the jury is to be unanimous on which alternative the jury relies on for conviction.