Chapter 21
Sexual Offenses
21.19 Instruction—Sexual Assault of Child
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of sexual assault.
Relevant Statutes
A person commits the offense of sexual assault, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means.
Definitions
Intentionally Causing Penetration
A person intentionally causes the penetration of the sexual organ of another person by his sexual organ if the person has the conscious objective or desire to cause that penetration.
Knowingly Causing Penetration
A person knowingly causes the penetration of the sexual organ of another person by his sexual organ if the person is aware that his conduct is reasonably certain to cause that penetration.
Child
A child is a person younger than seventeen years old.
[Select one of the following.]
On or about
The indictment alleges that the offense was committed on or about [date]. The state is not required to prove that the alleged offense happened on that exact date. It is sufficient if the state proves that the offense was committed before [date of indictment], the date the indictment was filed.
[or, if raised by the evidence]
On or about
The indictment alleges that the offense was committed on or about [date]. The state is not required to prove that the alleged offense happened on that exact date. It is sufficient if the state proves that the offense was committed after [date of defendant’s seventeenth birthday], the date of the defendant’s seventeenth birthday, and before [date of indictment], the date the indictment was filed.
[Include if raised by the evidence and requested by the defense.]
Evidence of Wrongful Acts Defendant Possibly Committed
During the trial, you heard evidence that the defendant may have committed wrongful acts against [name] not charged in the indictment. [If requested, include description of specific acts.] The state offered the evidence to show the state of mind of the defendant and the child [and/or] the previous and subsequent relationship between the defendant and the child. You are not to consider that evidence at all unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit the wrongful act against [name]. Those of you who believe the defendant did the wrongful act may consider it.
Even if you do find that the defendant committed a wrongful act, you may consider this evidence only for the limited purpose[s] described above. You may not consider this evidence to prove that the defendant is a bad person and for this reason was likely to commit the charged offense. In other words, you should consider this evidence only for the specific, limited purpose[s] described above. To consider this evidence for any other purpose would be improper.
[Include if raised by the evidence and requested by the defense.]
Evidence of Another Offense Defendant Possibly Committed
During the trial, you heard evidence that the defendant may have committed [an offense/offenses] [against [name of extraneous victim]/other than the one he is currently accused of in the indictment]. You are not to consider that evidence at all unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit [the offense[s] against [name of extraneous victim]/the other offense[s]]. Those of you who believe the defendant committed [that offense/those offenses] may consider it.
You may consider this evidence for any bearing this evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Even if you consider it, however, the defendant is not on trial for any offenses not alleged in the indictment. You must determine if the state proved all the elements for the offense alleged in the indictment.
[Include if raised by the evidence and requested by the defense.]
State’s Election of a Particular Incident
The state has offered evidence of more than one incident to sexual assault of a child as alleged in the indictment. The state is required to choose one of those incidents for you to consider in deciding whether it has met its burden of proof on that particular occasion. The incident that the state has chosen is [insert specific incident, e.g., the first act of sexual intercourse that [name] testified that she remembered]. This is the only incident for which the defendant is on trial [in this case/in count [number]]. You are to confine your deliberations to deciding whether the defendant is guilty or not guilty of sexual assault of a child on that particular occasion. You cannot find the defendant guilty of sexual assault of a child based on an occurrence at any other time or place other than the incident that the state has chosen.
Also, you may not consider evidence of any other incident for any purpose unless you find, beyond a reasonable doubt, that such incident occurred. Even then, you may consider it only for the specific, limited purpose of determining [insert limited purpose, e.g., the defendant’s intent].
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- [name] was at the time a child.
[Select one of the following. Choose the second option if incident unanimity has been raised by the evidence and there has been no request for election.]
You must all agree on elements 1 and 2 listed above.
With regard to element 2, it does not matter whether the defendant knew the child was younger than seventeen years old at the time of the offense.
If you all agree that the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must [find the defendant “guilty”/proceed to consider whether the defense of [insert defense, e.g., minimal age difference; marriage; medical care] applies].
[or]
The state has presented evidence of more than one incident to prove sexual assault as alleged [in the indictment/in count [number]]. To reach a guilty verdict [in this case/in count [number]], you must all agree that the state has proved elements 1 and 2 listed above, and you must also all agree that these elements occurred in the same incident. While it is permissible for you all to agree on more than one incident, to reach a guilty verdict in the case, you must all agree that these elements occurred in the same incident or incidents.
With regard to element 2, it does not matter whether the defendant knew the child was younger than seventeen years old at the time of the offense.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, the two elements listed above, and you all agree on the same incident or incidents when these elements occurred, you must [find the defendant “guilty”/next consider whether the defendant is not guilty because of the defense of [insert defense, e.g., minimal age difference; marriage; medical care]].
[Include defense if raised by the evidence; see CPJC 21.22 through CPJC 21.24. Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
First-Degree Sexual Assault under Section 22.011(f). Section 22.011(f) raises sexual assault to a first-degree felony “if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 [the offense of bigamy].” Tex. Penal Code § 22.011(f). In Arteaga v. State, the state attempted to invoke this enhancement on the theory that the defendant was “prohibited from marrying” his daughter (the victim) under a Texas Family Code statute prohibiting marriage between close relations. Arteaga v. State, 521 S.W.3d 329, 332–34 (Tex. Crim. App. 2017). The court of criminal appeals rejected this interpretation and held that the words “under Section 25.01” modified each phrase of the statute, meaning that the enhancement applies if the victim is a person whom the actor was prohibited from marrying (under section 25.01), purporting to marry (under section 25.01), or living with under the appearance of being married (under section 25.01). Arteaga, 521 S.W.3d at 336. Thus, under Arteaga, despite the existence of other statutes that prohibit or invalidate certain marriages, the only law the jury should be instructed on for purposes of the section 22.011(f) enhancement is section 25.01. Arteaga governs offenses that occur before September 1, 2019. For offenses that occur after that date, an amendment to the statute abrogates Arteaga and creates a first-degree enhancement when the incest statute (Tex. Penal Code § 25.02) prohibits sexual intercourse between the victim and defendant. Thus, a defendant who sexually assaults his fourteen-year-old daughter or stepdaughter or thirty-five-year-old adopted cousin is eligible for the incest enhancement under section 22.011(f)(2). Acts 2019, 86th Leg., R.S., ch. 738, § 2 (H.B. 667), eff. Sept. 1, 2019.
In Lopez v. State, the court of criminal appeals further clarified that the state does not have to prove the defendant committed bigamy to trigger the enhancement under section 22.011(f). Lopez v. State, No. PD-1382-18, 2020 WL 2049103, at *1 (Tex. Crim. App. Apr. 29, 2020). Instead, it need only prove that marriage (or purporting to marry or living under the appearance of marriage) with the victim is prohibited by the bigamy statute—which occurs whenever the defendant (or the victim) is already legally married to someone else at the time of the sexual assault. Lopez, 2020 WL 2049103, at *3. The opinion occasionally explains this requirement in terms of proving the defendant’s marriage, but this is not surprising given that all three cases consolidated in Lopez involved married defendants. Because bigamy equally applies when the victim is already married to someone else, that circumstance has also been provided for in the recommended instruction set out in the commentary below.
Under a traditional approach to jury charges, an enhancement like section 22.011(f) would be submitted by asking jurors whether the victim was a person the defendant was prohibited from marrying under the bigamy statute and instructing jurors through submission of the bigamy statute that a defendant is prohibited from marrying someone when he is already married. Indeed, Arteaga counsels that “the bigamy statute is ‘law applicable to the case’ and should [be] included in the [jury] charge because the jury had to understand what ‘prohibited from marrying’ meant.” Arteaga, 521 S.W.3d at 338. Such an instruction might read as follows:
Relevant Statutes
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means. It is a first-degree felony if the child was a person whom the defendant was prohibited from marrying, purporting to marry, or living with under the appearance of marriage, under the offense of bigamy.
The offense of bigamy prohibits a defendant who—
- is legally married from—
- purporting to marry or marrying a person other than his spouse under circumstances that would, but for the defendant’s prior marriage, constitute a marriage, or
- living with a person other than his spouse in this state under the appearance of being married; or
- knows that a married person other than his spouse is married
from—
- purporting to marry or marrying that person under circumstances that would, but for the person’s prior marriage, constitute a marriage, or
- living with that person in this state under the appearance of being married.
“Under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.
. . .
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- [name] was a child; and
- the offense of bigamy prohibited the defendant from marrying [, purporting to marry, or living under the appearance of being married to] [name] because [the defendant/[name of the complainant]] was, at the time, already married to someone else.
The Committee believed this instruction could be streamlined (and resort to a separate definition of bigamy avoided) by asking jurors the only question that matters: was the defendant (or the victim) legally married to someone else at the time of the sexual assault? The case may raise a fact issue that could entitle a party to request an instruction from the Family Code regarding the validity of marriage that would fit a particular fact situation. In a sufficiency review, an appellate court would only consider that same factual issue, not whether the state had proved that the law of bigamy prohibited a married person from marrying someone else. Indeed, in its analysis of the three consolidated cases in Lopez, the court of criminal appeals found each case sufficient based on that limited factual issue—that the defendant was already married to someone else. See, e.g., Lopez, 2020 WL 2049103, at *5 (“[T]he evidence that Lopez was legally married to the victim’s mother at the time of the sexual assault was sufficient for enhancement.”).
Therefore, the Committee recommends a jury instruction like the following:
Relevant Statutes
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means. It is a first-degree felony if the child was a person whom the defendant was prohibited from marrying under the offense of bigamy, which prohibits persons from marrying if one or both of them are already legally married to someone else.
. . .
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- [name] was a child; and
- [the defendant/[name of the complainant]] was then legally married.
Comment
Sexual assault of a child is prohibited by and defined in Tex. Penal Code § 22.011(a)(2)(A). The definition of “child” for purposes of sexual assault is based on Tex. Penal Code § 22.011(c)(1). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.