Chapter 21
Sexual Offenses
21.27 Instruction—Aggravated Sexual Assault of Adult
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of aggravated sexual assault.
Relevant Statutes
A person commits the offense of aggravated 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 and [insert specific aggravating factor, e.g., causes serious bodily injury to another person in the same criminal episode].
Penetration of another person’s sexual organ is without consent if the person compels the other person to submit or participate by the use of physical force or violence.
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.
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Serious Bodily Injury
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
[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. But the offense cannot be so far back in time that it is outside the statute of limitations period—a particular amount of time required for a case to be indicted or prosecution will be barred. The statute of limitations for aggravated sexual assault is ten years.
[or, if no limitations period under Texas Code of Criminal Procedure article 12.01(1)(C)]
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.
[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 prove aggravated sexual assault 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 aggravated sexual assault on that particular occasion. You cannot find the defendant guilty of aggravated sexual assault 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, 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
- this penetration was without the consent of [name] because the defendant used physical force or violence, and by that physical force or violence compelled [name] to submit or participate; and
- [insert appropriate third element from Texas Penal Code section 22.021(a)(2), e.g., the defendant caused serious bodily injury to [name] during the course of the same criminal episode].
[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, 2, and 3 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant “guilty.”
[or]
The state has presented evidence of more than one incident to prove aggravated 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, 2, and 3 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.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, the three elements listed above, and you all agree on the same incident or incidents when these elements occurred, 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.]
Culpable Mental State Regarding “Aggravating” Element. The above instruction does not require a culpable mental state regarding the additional element elevating sexual assault under Texas Penal Code section 22.011 to aggravated sexual assault under section 22.021. None is explicitly required by section 22.021.
In addition, one of the alternative aggravating elements contains an explicit requirement of a culpable mental state. See Tex. Penal Code § 22.021(a)(2)(A)(vi). This persuaded the Committee that the legislature intended culpable mental states regarding aggravating elements only where it explicitly provided them.
Definition of “Criminal Episode.” The instruction contains no definition of the term criminal episode.
In Burns v. State, 728 S.W.2d 114 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d), the court of appeals held that the definition of criminal episode in chapter 3 of the Penal Code did not apply to aggravated sexual assault. Rejecting what apparently was a contention that the lack of a definition made the offense unenforceable, the court explained:
We hold that for purposes of Section 22.011 and 22.021, the “criminal episode” commences when the attacker in any way restricts the victim’s freedom of movement and it ends with the final release or escape of the victim from the attacker’s control. We further hold that the use or exhibition of a weapon at any time during this period will elevate the crime to an aggravated status.
Burns, 728 S.W.2d at 116.
Burns did not consider the jury charge. The Eastland court of appeals, however, has held that a trial judge did not err in refusing to instruct the jury on Burns’s definition of criminal episode. Dodgen v. State, 924 S.W.2d 216 (Tex. App.—Eastland 1996, pet. ref’d).
Comment
Aggravated sexual assault is prohibited by and defined in Tex. Penal Code § 22.021. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46).