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Chapter 21

Charges

Chapter 21

Sexual Offenses

21.2  Instruction—Continuous Sexual Abuse of Young Child or Children

LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of continuous sexual abuse of a young child or young children.

Relevant Statutes

A person commits the offense of continuous sexual abuse of a young child or young children, regardless of whether the person knows the age of the child at the time of the offense, if—

  1. during a period that is thirty or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
  2. at the time of the commission of each of the acts of sexual abuse, the actor is seventeen years old or older and the victim is a child younger than fourteen years old.

[Modify the following language as needed if other acts of sexual abuse as provided for in Texas Penal Code section 21.02(c) are alleged.]

Indecency with a child is an act of sexual abuse if the state proves, beyond a reasonable doubt, three elements. The elements are that—

  1. the defendant engaged in sexual contact with another person by—
    1. any touching of the anus or any part of the genitals of the person; or
    2. any touching of any part of the body of the person with the anus, breast, or any part of the genitals of the defendant; and
  2. the other person was a child younger than seventeen years old; and
  3. the defendant did this with the intent to arouse or gratify the sexual desire of any person.

Sexual contact or touching may be through clothing.

The offense is committed whether the child is of the same or opposite sex as the person engaging in sexual contact.

Burglary is an act of sexual abuse if the state proves, beyond a reasonable doubt, three elements. The elements are that—

  1. the defendant entered a habitation; and
  2. the owner did not effectively consent; and
  3. the defendant had the intent to commit aggravated kidnapping, with the intent to violate or abuse the victim sexually; indecency with a child other than by touching the breast of a child; sexual assault; or aggravated sexual assault.

Definitions

Intent to Arouse or Gratify Sexual Desire

A person acts with intent to arouse or gratify sexual desire if it is the person’s conscious objective or desire to gratify sexual desire.

[Select one of the following. Choose the second option if there is evidence of any conduct before September 1, 2007. Choose the third option if the victim turned fourteen before the date of the indictment.]

On or about

The indictment alleges that the offense of continuous sexual abuse of a young child was committed between on or about [date] and on or about [date]. The state is not required to prove that the alleged offense happened between those exact dates. It is sufficient if the state proves that the offense was committed before [date of indictment], the date the indictment was filed.

[or]

On or about

The indictment alleges that the offense of continuous sexual abuse of a young child was committed between on or about [date] and on or about [date]. The state is not required to prove that the alleged offense happened between those exact dates. But you may not convict the defendant of continuous sexual abuse of a young child for any acts of sexual abuse that may have occurred before September 1, 2007, the date that law went into effect, or after [date of indictment], the date the indictment was filed.

[or]

On or about

The indictment alleges that the offense of continuous sexual abuse of a young child was committed between on or about [date] and on or about [date]. The state is not required to prove that the alleged offense happened between those exact dates. But you may not convict the defendant of continuous sexual abuse of a young child for any acts of sexual abuse that occurred before September 1, 2007, the date that law went into effect, or after [insert date of the day preceding the child’s fourteenth birthday], when [name] was already fourteen.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—

  1. the defendant, in [county] County, Texas, during a period between on or about [date] and on or about [date], committed two or more of the following alleged acts of sexual abuse:

    [Insert detailed allegations; modify the following language as needed if other acts of sexual abuse as provided for in Texas Penal Code section 21.02(c) are alleged.]

    The first alleged act of sexual abuse is that the defendant engaged in sexual contact with another person. Sexual contact is an act of sexual abuse if the state proves, beyond a reasonable doubt, three elements. The elements are that—

    1. the defendant engaged in sexual contact with another person by—
      1. any touching of the anus or any part of the genitals of the person; or
      2. any touching of any part of the body of the person with the anus, breast, or any part of the genitals of the defendant; and
    2. the other person was a child younger than fourteen years old; and

    3. the defendant did this with the intent to arouse or gratify the sexual desire of any person.

      4. The second alleged act of sexual abuse is that the defendant committed burglary. Burglary is an act of sexual abuse if the state proves, beyond a reasonable doubt, three elements. The elements are that—

    1. the defendant entered a habitation; and
    2. the owner did not effectively consent; and
    3. the defendant had the intent to commit aggravated kidnapping, with the intent to violate or abuse the victim sexually; indecency with a child other than by touching the breast of a child; sexual assault; or aggravated sexual assault; and

    2. [Continue with the following.]

  2. these acts were committed during a period that was thirty or more days in duration; and
  3. at the time of commission of each of the acts of sexual abuse the defendant was seventeen years old or older; and
  4. at the time of commission of each of the acts of sexual abuse the victim was a child younger than fourteen years old.

You must all agree on elements 1, 2, 3, and 4 listed above.

With regard to element 1, you need not all agree on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. You must, however, all agree that the defendant committed two or more acts of sexual abuse.

With regard to element 2, you must all agree that at least thirty days passed between the first and last acts of sexual abuse committed by the defendant.

With regard to element 4, it does not matter whether the defendant knew the child was younger than fourteen 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, 2, 3, and 4 listed above, you must find the defendant “not guilty.”

[Select one of the following.]

If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty.”

[or]

If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must next consider whether the defendant is not guilty because of the [affirmative] defense of minimal age difference.

Minimal Age Difference

It is [a/an] [affirmative] defense to indecency with a child that—

  1. the person was not more than five years older than—
    1. the child, if the offense is alleged to have been committed against only one child; or
    2. the youngest child, if the offense is alleged to have been committed against more than one child; and
  2. the person did not use duress, force, or a threat against the child at the time of the commission of any of the acts of sexual abuse alleged.

Burden of Proof

[Choose one of the following.]

Minimal age difference is an affirmative defense. That means the burden is on the defendant to prove minimal age difference by a preponderance of the evidence.

[or]

The burden is on the defendant to prove minimal age difference by a preponderance of the evidence.

Definitions

Preponderance of the Evidence

The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.

Application of Law to Facts

To decide the issue of minimal age difference, you must determine whether the defendant has proved, by a preponderance of the evidence, two elements. The elements are that—

  1. the defendant was not more than five years older than [name]; and
  2. the defendant did not use duress, force, or a threat against [name] at the time of the offense.

If you all agree the defendant has proved, by a preponderance of the evidence, both of the two elements listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of continuous sexual abuse of a young child or young children, and you all agree the defendant has not proved, by a preponderance of the evidence, both elements 1 and 2 listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

Continuous sexual abuse of a young child or children is prohibited by and defined in Tex. Penal Code § 21.02.

Duration of Period of Crime. Perhaps the major ambiguity in the statute is the meaning of the requirement that two or more acts of sexual abuse be committed “during a period that is 30 or more days in duration.” Tex. Penal Code § 21.02(b)(1).

The California statute requires three or more acts “over a period of time, not less than three months in duration.” Cal. Penal Code § 288.5(a). The California pattern jury instructions tell juries that this means the prosecution must prove that “[t]hree or more months passed between the first and last acts.” This has been judicially approved: “[T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts.” People v. Mejia, 65 Cal. Rptr. 3d 776, 785 (Cal. Ct. App. 2007).

At least one Texas court appears to have assumed that the Texas statutory language has a similar meaning. In Williams v. State, 305 S.W.3d 886, 889 (Tex. App.—Tex-arkana 2010, no pet.), the court assumed that the statute requires proof of the commission of two or more acts of sexual abuse “over a span of thirty days or more.” The jury instruction in this case included the following:

[I]n order to find the defendant guilty of the offense of continuous sexual abuse of a young child, you must agree unanimously that the defendant, during a period that is 30 or more days in duration beginning on or after September 1, 2007, through on or about January 30, 2008, committed two or more acts of sexual abuse.

Williams, 305 S.W.3d at 892.

In Smith v. State, 340 S.W.3d 41, 51 (Tex. App.—Houston [1st Dist.] 2011, no pet.), the Houston court of appeals found error in the jury instructions because, when read literally, the application paragraph permitted a conviction if the jury believed any two or more acts of sexual abuse had occurred between the dates alleged in the indictment. The court held that the application paragraph should have required the jury to find the acts occurred at least thirty days apart, but the court also found the error did not result in egregious harm. Smith, 340 S.W.3d at 53. In Turner v. State, the Amarillo court of appeals similarly held that tracking the language of Tex. Penal Code § 21.02(b)(1) in the application paragraph of the court’s charge was erroneous because the express language did not make it clear that the first and last acts must occur thirty or more days apart. Turner v. State, 573 S.W.3d 455, 462–63 (Tex. App.—Amarillo 2019, no pet.).

With regard to pleading requirements, the only litigation of any significance seems to be State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *8 (Tex. App.—Dallas Aug. 25, 2010, pet. ref’d) (not designated for publication), upholding an indictment described as alleging that “on or about and between” January 1 and August 24, 2008, Espinoza did—

during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against [A.E.], a child younger than 14 years of age, hereinafter called complainant, namely by the contact and penetration of the complainant’s female sexual organ by the defendant’s sexual organ, and by the contact between defendant’s hand and complainant’s genitals with the intent to arouse and gratify the sexual desire of defendant, and by contact between the hand of the complainant and the genitals of the defendant with the intent to arouse and gratify the sexual desire of the defendant, and by the penetration of the complainant’s female sexual organ by the defendant’s finger, and by the contact and penetration of the complainant’s anus by the defendant’s sexual organ, and by the contact and penetration of the complainant’s female sexual organ by the defendant’s mouth.

Specifically, the court held the indictment provided sufficient notice despite the state’s failure to allege dates for specific acts of sexual abuse. Espinoza, 2010 WL 2598982, at *9.

Definition of “Act of Sexual Abuse.” Texas Penal Code section 21.02 provides in part:

  • (c) For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:

  • . . . .

    • (2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child . . . .

Tex. Penal Code § 21.02(c)(2). This definition is that of indecency with a child under section 21.11(a)(1), omitting those portions that provide for it to be committed “by touching, including touching through clothing, the breast of a child.” Tex. Penal Code § 21.02(c)(2).

Sexual Abuse by Burglary. Regarding sexual abuse by burglary, the statute leaves a number of matters unclear. Section 21.02 provides in part:

  • (c) For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:

  • . . . .

    • (5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)–(4) . . . .

Tex. Penal Code § 21.02(c)(5). Does this mean that burglary by entering and committing an offense or by remaining concealed cannot constitute an act of sexual abuse? If the offense the defendant intended to commit is one that under Penal Code section 30.02(d), subdivisions (1)–(4), has additional requirements, do those apply? For example, must an aggravated kidnapping intended by the defendant be one that the defendant intends to involve violation or abuse of the victim sexually?

Affirmative Defense. As the affirmative defense of minimal age difference is defined in Penal Code section 21.02, it includes elements in addition to those reflected in the charge:

  1. The defendant must not have been required to register for life as a sex offender under chapter 62 of the Code of Criminal Procedure.
  2. The defendant must not have been a person with a reportable conviction or adjudication under chapter 62 of the Code of Criminal Procedure for an offense under Penal Code section 21.02 or the acts described in section 21.02(c).

The Committee believed that generally there would be no dispute about whether the evidence showed these matters. Thus they could generally be resolved by the trial judge as a matter of law. This avoids the need for the very complex charge that would be required for submission of those matters to the jury.

A very unusual case could arise in which the trial judge determines that the evidence clearly fails to show one or more of these elements of the affirmative defense but the defendant nevertheless seeks jury submission of the defense. The Committee did not address whether, under those circumstances, the defendant would be entitled to jury submission under a charge requiring the defendant to prove the contested elements. See Tex. Penal Code § 2.04(c) (affirmative defense is to be submitted to the jury if “evidence is admitted supporting the defense”).

Note that the age element of the affirmative defense of minimal age difference in Penal Code section 21.02(g) is five years, whereas the age difference in the parallel defense in section 21.11(b) is three years, and the elements concerning registration under chapter 62 of the Code of Criminal Procedure vary slightly as well. See CPJC 21.15 for the elements of the defense based on Penal Code section 21.11(b).

Texas Code of Criminal Procedure Article 38.37, Sections 1 and 2. Although not common, evidence could be introduced in a continuous-sexual-abuse-of-a-young-child prosecution of another sex offense other than those alleged in the indictment. In such a case and at the defense request, an instruction under Texas Code of Criminal Procedure article 38.37, sections 1 and 2, would be warranted. See CPJC 21.1 for further discussion.

Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.

Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word “affirmative” from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.