Chapter 21
Sexual Offenses
21.3 Instruction—Continuous Sexual Abuse of a Disabled Individual
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of continuous sexual abuse of a disabled individual.
Relevant Statutes
A person commits the offense of continuous sexual abuse of a disabled individual, if—
- 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
- 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 disabled individual.
[Modify the following language as needed if other acts of sexual abuseas provided for in Texas Penal Code section 21.02(c) are alleged.]
Sexual assault is an act of sexual abuse if the state proves, beyond a reasonable doubt, two elements. The elements are that—
- the defendant 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, violence, or coercion and by that physical force, violence, or coercion compelled [name] to submit or participate.
Burglary is an act of sexual abuse if the state proves, beyond a reasonable doubt, three elements. The elements are that—
- the defendant entered a habitation; and
- the owner did not effectively consent; and
- 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
Disabled Individual
A person is a disabled individual if the person is older than thirteen years of age and by reason of age or physical or mental disease, defect, or injury is substantially unable to protect themself from harm or to provide food, shelter, or medical care for themself.
Coercion
“Coercion” means a threat, however communicated—
[Include only those types of coercion supported by the evidence.]
- to commit an offense; or
- to inflict bodily injury in the future on the person threatened or another; or
- to accuse a person of any offense; or
- to expose a person to hatred, contempt, or ridicule; or
- to harm the credit or business repute of any person; or
- to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
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.
[Select one of the following. Choose the second option if there is evidence of any conduct before September 1, 2021.]
On or about
The indictment alleges that the offense of continuous sexual abuse of a disabled individual 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 disabled individual 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 disabled individual for any acts of sexual abuse that may have occurred before September 1, 2021, the date that law went into effect, or after [date of indictment], the date the indictment was filed.
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, 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 committed sexual assault. Sexual assault is an act of sexual abuse if the state proves, beyond a reasonable doubt, two elements. The elements are that—
- the defendant 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, violence, or coercion and by that physical force, violence, or coercion compelled [name] to submit or participate.
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—
- the defendant entered a habitation; and
- the owner did not effectively consent; and
- the defendant had the intent to commit aggravated kidnap-ping, 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
[Continue with the following.]
- these acts were committed during a period that was thirty or more days in duration; and
- at the time of commission of each of the acts of sexual abuse the defendant was seventeen years old or older; and
- at the time of commission of each of the acts of sexual abuse the victim was a disabled individual.
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.
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”/proceed to consider whether the defense of [insert defense] applies].
[Include defense if raised by the evidence. Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1.]
Comment
Continuous sexual abuse of a disabled individual is prohibited by and defined in Tex. Penal Code § 21.02. The offense was recently enacted during the 87th legislative session, and its effective date is September 1, 2021. See Acts 2021, 87th Leg., R.S., § 1.02 (H.B. 375), eff. Sept. 1, 2021.
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.—Texarkana 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:
. . .
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:
. . .
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. The affirmative defense of minimal age difference defined in Tex. Penal Code § 21.02(g) is not available for this offense.
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-disabled-individual 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.