Chapter 21
Sexual Offenses
21.25 Instruction—Sexual Assault of Impaired Victim
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 if the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means without that other person’s consent.
Penetration of another person’s sexual organ is without consent if the other person has not consented and the person knows the other person is physically unable to resist.
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.
Knowing Another Person Is Physically Unable to Resist
A person knows another person is physically unable to resist if the person is aware that the other person is physically unable to resist.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four 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] did not consent; and
- [name] was physically unable to resist; and
- the defendant knew [name] was physically unable to resist.
You must all agree on elements 1, 2, 3, and 4 listed above.
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.”
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.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Case Law Exposition of “Physically Unable to Resist.” In Elliott v. State, 858 S.W.2d 478 (Tex. Crim. App. 1993), the court of criminal appeals arguably modified the plain meaning of the statutory terms defining this type of sexual assault. Elliott challenged his conviction of capital murder committed in the course of sexual assault on the basis that the evidence failed to support the state’s allegation that the victim was so impaired by alcohol and cocaine as to be physically unable to resist. The evidence showed the victim was not unconscious, but the parties differed on the degree of impairment proved. The court addressed the contention that “the evidence is insufficient to establish the State’s theory of lack of consent to the sexual intercourse between appellant and the victim.” Elliott, 858 S.W.2d at 480. Under the statute then in effect, “A sexual assault is without consent of the other person if the other person has not consented and the actor knows the other person is physically unable to resist.” Elliott, 858 S.W.2d at 480. Elliott argued that the evidence failed to establish that the victim had been rendered “physically unable to resist.” Elliott, 858 S.W.2d at 480. The court rejected this.
Beginning with the meaning of the statutory standard, the court explained:
[W]e are not inclined to be strict in construing the meaning of “physically unable to resist” in § 22.011(b)(3). We hold that where assent in fact has not been given, and the actor knows that the victim’s physical impairment is such that resistance is not reasonably to be expected, sexual intercourse is “without consent” under the sexual assault statute.
Elliott, 858 S.W.2d at 485 (citations omitted). Applying this, the court added:
[T]he jury could have found that because of the effects of her intoxication, [the victim] could not reasonably have been expected to resist her assailants, and that appellant knew and took advantage of this fact.
. . . .
[A] rational jury could have discounted the opinions of [the witnesses] as inconsistent with all the other evidence, and concluded beyond a reasonable doubt that appellant knew [the victim’s] physical impairment was such that resistance was not reasonably to be expected. The evidence was not lacking on this account.
Elliott, 858 S.W.2d at 485. Elliott appears to still be good law. See Casey v. State, 160 S.W.3d 218, 223–24 (Tex. App.—Austin 2005), rev’d on other grounds, 215 S.W.3d 870 (Tex. Crim. App. 2007).
The Committee considered whether Elliott constituted an interpretation of the statutory language that should be communicated to jurors in the jury charge. One possible construction of the case is that Elliott purported to give the statutory language a meaning quite different from what can be gleaned from the language itself and thus should be reflected in jury charges. This might mean that the third and fourth elements of the offense would be defined as follows:
- 3. the other person was so physically impaired that resistance was not to be expected; and
- 4. the defendant knew the other person was so impaired.
A majority of the Committee, however, construed Elliott as a sufficiency-of-the-evidence case that did not affect the propriety of instructing juries in the language of the statute.
Comment
Sexual assault of an impaired victim is prohibited by and defined in Tex. Penal Code § 22.011(b)(3). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.