TECHNICAL ASPECTS OF INDICTMENTS AND JURY CHARGES

Transcription

1 TECHNICAL ASPECTS OF INDICTMENTS AND JURY CHARGES Wm. Reagan Wynn 1 Kearney Wynn One Museum Place 3100 West 7 th Street, Suite 420 Fort Worth, Texas (817) (817) (fax) rwynn@kearneywynn.com Texas Criminal Defense Lawyer s Association Sexual Assault Seminar December 5-6, Substantial portions of this paper were copied verbatim from Helena F. Faulkner, State Law of Charging Instruments, in TEXAS CRIMINAL PROCEDURE CODE AND RULES (West 2010). The author thanks Ms. Faulkner for her assistance in this matter and recommends her paper as an excellent resource for all Texas criminal practitioners.

2 WM. REAGAN WYNN received his B.A. from the University of Texas in 1993 and his J.D. from Notre Dame Law School in After law school, Reagan served as Briefing Attorney to the Honorable David Richards, Associate Justice of the Second Court of Appeals of Texas. Since August 1997, Reagan has been in private practice in Fort Worth with Jeff Kearney. Reagan s practice is limited to the representation of individuals and business entities in criminal investigations, trials, appeals, and post-conviction proceedings. Reagan is Board Certified in Criminal Law by the Texas Board of Legal Specialization. In 2005, Reagan was elected by his peers to be listed in The Best Lawyers in America. He was also named a Super Lawyer by Texas Monthly in 2003 and , and listed as a Top Attorney by Fort Worth, Texas Magazine in Reagan is a member of the National Association of Criminal Defense Lawyers, serves on the Board of Directors of the Texas Criminal Defense Lawyers Association, and is a past-president of the Tarrant County Criminal Defense Lawyer s Association. Additionally, Reagan serves as Co-Chair of the Amicus Curiae Committee of the Texas Criminal Defense Lawyer's Association. Reagan is a frequent lecturer and has authored or co-authored several papers presented to various seminars on a variety of criminal law topics.

3 PAGE i TABLE OF CONTENTS I. INDICTMENTS... 1 A. Structural Requirements... 1 B. Specificity Required... 1 C. On or About... 4 D. Name of the Alleged Injured Party... 4 E. Counts and Paragraphs... 5 E. Affirmative Defenses... 6 F. Not the Spouse Allegations... 6 G. Punishment Factors... 7 H. Continuous Sexual Abuse... 8 II. MOTIONS TO QUASH / DISMISS / SET ASIDE... 9 A. Waiver Issues... 9 B. Timing of Motion to Quash C. Motions to Quash for Lack of Notice III. JURY CHARGE ISSUES A. General Principles B. Lesser Included Offense D. Extraneous Offense Instructions E. Elections F. Jury Unanimity Instructions SAMPLE MOTION TO DISMISS INDICTMENT BECAUSE SECTION 21.02, TEXAS PENAL CODE, IS UNCONSTITUTIONAL... APPENDIX A

4 PAGE 1 I. INDICTMENTS A. Structural Requirements! An indictment must commence with the words In the name and by authority of The State of Texas. TEX. C ODE CRIM. PROC. ANN. art (1). The indictment must conclude with the words Against the peace and dignity of the State. TEX. CODE CRIM. PROC. ANN. art (8).! The indictment must show that it was presented in the district court of the county where the grand jury is in session. TEX. CODE CRIM. PROC. ANN. art (2).! The indictment must appear to be the act of a grand jury of the proper county. TEX. CODE CRIM. PROC. ANN. art (3).! An indictment must allege the name of the accused or state that his name is unknown and give a reasonably accurate description of him. 2 TEX. CODE CRIM. PROC. ANN. art (4); see TEX. CODE CRIM. PROC. ANN. art ! The indictment must show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented. TEX. CODE CRIM. PROC. ANN. art (5). B. Specificity Required! The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances. United States v. Cruikshank, 92 U.S. 542, 558 (1875) (emphasis added).! The Supreme Court has put forth the following due process criteria by which the sufficiency of an indictment is to be measured: (1) whether the indictment contains the elements of the offense intended to be charged ; (2) whether it 2 There is a detailed statutory procedure to be followed if the defendant is either not correctly named in the indictment or was indicted as an unknown person. See TEX. CODE CRIM. PROC. ANN. art

5 PAGE 2 sufficiently apprises the defendant of what he must be prepared to meet, ; and, (3) in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. See Russell v. United States, 369 U.S. 749, (1962). Thus, an indictment is Constitutionally sufficient only if it (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. See, e.g., Hamling v. United States, 418 U.S. 87, 117 (1974).! While the federal right to a grand jury indictment has never been found to be incorporated against the states, see Hurtado v. California, 110 U.S. 516, (1884), courts have found that the due process requirements enunciated in Russell apply not only to federal indictments but also to state criminal charging instruments. See, e.g., De Vonish v. Keane, 19 F.3d 107, 108 (2d Cir.1994); Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir.1992).! Under Texas law, a charging instrument is sufficient if, on its face, it charges the offense in plain and intelligible words that would enable a person of common understanding to know what offense he will be required to defend himself against and to enable him to plead the judgment that may be given on it in bar of any further prosecution. See TEX. CODE CRIM. PROC. ANN. art (7), 21.03, 21.04, (Vernon 2009); see also, Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007), cert. denied, 553 U.S (2008); State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004).! Subject to rare exceptions, an indictment tracking the language of the statute satisfies constitutional and statutory requirements. State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004); Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000), overruled in part on other grounds, Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). However, the trial court can require the State to amend an indictment which tracks the language of the statute when more notice is needed to allow the accused to adequately prepare a defense, Moff, supra, and the information sought for greater particularity relates to the defendant s acts, omissions, or conduct constituting the offense. Curry, supra.! If the statutory language is itself completely descriptive of the offense, the charging instrument is sufficient if it follows the statutory language. State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998) (indictment tracking statutory definition of a manner or means of committing barratry provided ample notice); Moreno v. State, 721 S.W.2d 295 (Tex. Crim. App. 1986) (indictment not defective for failing to allege specific acts of peace officer that constituted acting in discharge of duties).

6 PAGE 3! If the statutory language is not completely descriptive, so that more particularity is required to afford the defendant notice as required, merely tracking the language of the statute is insufficient. Olurebi v. State, 870 S.W.2d 58 (Tex. Crim. App. 1994) (indictment tracking statutory language insufficient for failing to specify how credit card was fictitious); Haecher v. State, 571 S.W.2d 920 (Tex. Crim. App. [Panel Op.] 1978) (indictment alleging statutory language torture an animal held insufficient); Sanchez v. State, 182 S.W.3d 34 (Tex. App.-San Antonio 2005) (indictment for official oppression involving sexual harassments failed to inform defendant of complainant s rights, privileges, powers, and immunities he allegedly made conditional upon complainant s submission to sexual harassment), aff d, 209 S.W.3d 117 (Tex. Crim. App. 2006).! A statute that uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him. State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998).! When a criminal statute defines the manner or means of committing an offense in several alternative ways, a defendant is entitled, upon timely request, to an allegation of which statutory method the State intends to prove. Curry, 30 S.W.3d 394 (type of abduction), overruled in part on other grounds, Gollihar, 46 S.W.3d 243; Olurebi v. State, 870 S.W.2d 58 (Tex. Crim. App. 1994) (how credit card fictitious); Coleman v. State, 643 S.W.2d 124 (Tex. Crim. App. 1982) (type of appropriation); Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. [Panel 0p.l 1980) (type of delivery); State v. Cordell, 34 S.W.3d 719 (Tex. App.--Fort Worth 2000, pet. ref d) (type of intoxicant).! If a term is defined by statute, it need not be further alleged in the indictment. See, e.g., Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988).! In the context of an indecency with a child indictment, all that is necessary is that the indictment track the statutory language defining sexual contact, i.e., alleging that the defendant engaged in sexual contact by touching the alleged injured party s vagina with intent to arouse and gratify himself sexually, and there is no requirement that the indictment allege the method by which the defendant touched the alleged injured party. See, e.g., State v. Chuck, 222 S.W.3d 113, (Tex. App. Houston[14th Dist.] 2006, no pet.); Hilliard v. State, 652 S.W.2d 602, 605 (Tex. App. Austin 1983, pet. ref d, untimely filed).! In the context of a sexual assault or aggravated sexual assault indictment alleging a penetration offense, it would appear that, in addition to pleading the language of TEX. PENAL CODE ANN (Vernon Supp. 2009) or TEX. PENAL CODE ANN (Vernon Supp. 2009), the indictment must, at a minimum, include an allegation of the object (i.e., penis, finger, etc.) used to cause the penetration.

7 C. On or About TECHNICAL ASPECTS OF INDICTMENTS AND JURY CHARGES PAGE 4 However, there is no published appellate decision directly on point. But see, contra, Karnes v. State, 873 S.W.2d 92, 100 (Tex. App. Dallas 1994, no pet.) (indictment alleging that defendant caused the sexual organ of an animal to penetrate the female sexual organ of a child was sufficient despite failure to allege the particular type of animal or the manner by which the penetration was accomplished).! The indictment must allege a date anterior to the presentment of the indictment and not so remote that the prosecution is barred by limitation. TEX. CODE CRIM. PROC. ANN. art (6). An allegation that the offense was committed anterior to the presentment of this indictment satisfies this requirement.! When the offense is alleged to have occurred on or about a specific date, the State may prove a date other than the one alleged if the date proven is anterior to presentment of the indictment and within the statutory limitation period. Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000), cert. denied, 531 U.S (2001).! An indictment in a sexual assault case need not specify the precise date when the charged offense occurred or even a narrow window of time with it which it must have occurred to satisfy the Constitutional notice requirements. Garcia v. State, 981 S.W.2d 683, (Tex. Crim. App. 1998). In the unlikely event that the defendant is unfairly surprised at trial by evidence fixing the date of the offense very differently from that specified in the indictment, then he should for that reason ask for a postponement that he might obtain evidence to meet the charge as made by the testimony. Id. (citing Lingenfelter v. State, 73 Tex. Crim. 186, 163 S.W. 981, 983 (Tex. Crim. App. 1914) and A. Scott, Fairness in Accusation of Crime, 41 MINN. L. REV. 509, 532 (1957)). D. Name of the Alleged Injured Party! In the face of a motion to quash, the State must specify the name of the victim if the offense necessarily involves a victim. Even where the offense statute does not specifically mention a victim, an indictment must allege an injured party if the crime is one in which there is a victim. Ex parte Munoz, 657 S.W.2d 105 (Tex. Crim. App. 1983). It is sufficient to state one or more initials of the given name and the surname of the victim. TEX. CODE CRIM. PROC. ANN. art ! Any victim of any offense for which conviction can result in sex-offender registration is entitled to choose that a pseudonym be used instead of his or her

8 PAGE 5 real name in all public files and records concerning the offense. See TEX. CODE CRIM. PROC. ANN. art (b). E. Counts and Paragraphs! Two or more offenses may be joined and alleged in separate counts of a single charging instrument if the offenses arise out of the same criminal episode as defined in chapter 3 of the Texas Penal Code. TEX. CODE CRIM. PROC. ANN. art (a); Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007).! Criminal episode means, the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person..., under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; OR (2) the offense are the repeated commission of the same or similar offenses. TEX. PENAL CODE ANN (Vernon 2003).! When the State wishes to charge multiple offenses in a single indictment, it is required to set out each separate offense in a separate count. Martinez v. State, 225 S W.3d 550 (Tex. Crim. App. 2007).! Different methods of committing the same offense are alleged in separate paragraphs within a single count. TEX. CODE CRIM. PROC. ANN. art (b); Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007). A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may contain more than one offense. TEX. CODE CRIM. PROC. ANN. art (b). A single count may contain different paragraphs alleging different methods of committing the same offense in the conjunctive, but the jury may properly be charged in the disjunctive. See, e.g., Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 958 (1992). Where alternative theories of committing the same offense are submitted to the jury disjunctively, it is proper for the jury to return a general verdict if there is sufficient evidence to support a conviction under any of the theories alleged. See Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1987) (op. on reh g).

9 PAGE 6! The substance of the allegation determines its character as a count or paragraph, not the terminology used. Watkins v. State, 946 S.W.2d 594, 601 (Tex. App.--Fort Worth 1997, pet. ref d). Thus, improperly labeling paragraphs as counts does not transform them into counts, or vice-versa.! The Court of Criminal Appeals has held that the different manners of committing sexual assault and aggravated sexual assault as set out in sections (a)(1)(A), (B), and (C), (a)(2)(A), (B), (C), (D), and (E), and (a)(1)(A) or (B) constitute separate statutory offenses as opposed to separate means to commit a single offense. See, Vick v. State, 991 S.W.2d 830, (Tex. Crim. App. 1999). Therefore, any conduct fitting any of those definitions can be charged as separate counts in a single indictment -- and the defendant can be convicted of each separate count -- so long as the conduct occurred during the same criminal episode. See, e.g., Vick, 991 S.W.2d at 834.! The Court of Criminal Appeals has also held that the different statutory definitions for sexual contact create separate statutory offenses as opposed to separate means to commit a single offense. See Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007). Therefore, just as is the case with sexual assault, any conduct fitting any of those definitions can be charged as separate counts in a single indictment -- and the defendant can be convicted of each separate count -- so long as the conduct occurred during the same criminal episode. E. Affirmative Defenses! The State is NOT required to negate the existence of an affirmative defense in the indictment. See TEX. PENAL CODE ANN. 2.04(b) (Vernon 2003).! Thus, the State is not required to attempt to negate the 3 year or spouse statutory affirmative defense to Indecency with a Child or Sexual Assault of a Child in the indictment. F. Not the Spouse Allegations! Prior to September 1, 2009, the term child was defined, for purposes of sexual assault and aggravated sexual assault as a person younger than 17 years of age who is not the spouse of the actor. Because not the spouse was part of a defined term, it was not necessary for the indictment to allege that the child was not the spouse of the defendant. See, e.g., Gallegos v. State, 711 S.W.2d 300, 302 (Tex. App. Dallas 1986, no pet.). However, because it was part of the defined term, it was necessary for the trial court to instruct the jury on the full definition and for the State to prove, beyond a reasonable doubt, that the alleged injured party was not the spouse of the defendant.

10 PAGE 7! Also prior to September 1, 2009, the indecency with a child provided that A person commits an offense if, with a child younger than 17 years and not the person s spouse,... the person engages in sexual contact or exposure behavior. Arguably, because the not the spouse language was in the portion of the statute setting out the elements of the crime, as opposed to being in a statutory definition of a term in the elements, it was necessary to allege not the spouse in the indictment. In any event, it was clearly necessary for the trial court to instruct the jury on the full elements of the offense and for the State to prove, beyond a reasonable doubt, that the alleged injured party was not the spouse of the defendant.! After September 1, 2009, the Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault statutes have been amended to remove not the spouse from the elements of the offense. See TEX. PENAL CODE ANN (a) (Vernon Supp. 2009); TEX. PENAL CODE ANN (c)(1) (Vernon Supp. 2009); TEX. PENAL CODE ANN (b)(1) (Vernon Supp. 2009). There is now an affirmative defense to Indecency with a Child and Sexual Assault of a Child if the actor was the spouse of the child at the time of the offense. See TEX. PENAL CODE ANN (a) (Vernon Supp. 2009); TEX. PENAL CODE ANN (b-1) (Vernon Supp. 2009). Thus, for offenses after September 1, 2009, there is no requirement that the indictment include a not the spouse allegation and the Court must not charge the jury on the requirement unless it is raised by the evidence. G. Punishment Factors! Aggravated sexual assault of a child under the age of 14 is normally a first degree felony punishable by 5-99 years or life in prison. See TEX. PENAL CODE ANN (e) (Vernon Supp. 2009). However, if either (1) the alleged injured party is younger than six years of age at the time the offense is committed, or, (2) the offense is committed using violence, threat of violence, a deadly weapon, or a date-rape drug, the minimum punishment becomes 25 years in prison. See TEX. PENAL CODE ANN (f).! Any fact that increases the maximum punishment available for a crime amounts to an element of the crime and, as a matter of due process, must be somehow pleaded, submitted to the jury, and proven beyond a reasonable doubt. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ( Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, whether the statute calls it an element or a sentencing factor, must be submitted to a jury, and proved beyond a reasonable doubt. ). However, factual findings that only increase the minimum punishment available are NOT required to be pleaded and proven to a jury beyond a reasonable doubt. See

11 PAGE 8 Harris v. United States, 536 U.S. 545, 567 (2002) ( Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion-and rely upon judicial expertise-by requiring defendants to serve minimum terms after judges make certain factual findings. ).! No reported Texas decision has addressed the issue of whether the allegation that the child was younger than six years of age at the time the offense [was] committed must be pleaded in the indictment or found by the jury beyond a reasonable doubt.! A prior felony conviction alleged for sentencing enhancement purposes need not be pleaded in the indictment, i.e., notice may be given in a separate pleading or letter. See, e.g., Brooks v. State, 957 S.W.2d 30, (Tex. Crim. App. 1997). H. Continuous Sexual Abuse! Effective September 1, 2007, the Legislature created the Continuous Sexual Abuse of Young Child or Children Statute. See TEX. PENAL CODE ANN (Vernon Supp. 2009). This statute provides: A person commits an offense if: (1) during a period that is 30 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 17 years of age or older and the victim is a child younger than 14 years of age. TEX. PENAL CODE ANN (b) (Vernon Supp. 2009). Under the statute, act of sexual abuse includes any act that is a violation of a complete laundry list of child sex offenses, including, aggravated kidnapping with intent to commit sexual assault, indecency with a child by contact so long as it involved touching something other than the breast, sexual assault, burglary with intent to commit sexual assault, and sexual performance by a child. See TEX. PENAL CODE ANN (c).! Section is the Legislative response to Judge Cochran s concurring opinion in Dixon v. State, 201 S.W.3d 731, (Tex. Crim. App. 2006) (Cochran, J., concurring). In that opinion, Judge Cochran pointed out the difficulty the State often has pleading and/or proving the specific facts of a child-sex allegation and

12 PAGE 9 noted that many of the bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child. Judge Cochran called for the Legislature to address this conundrum and consider enacting a new penal statute that focuses upon a continuing course of conduct crime noting that this might well assist in preserving our bedrock criminal-procedure principles of double-jeopardy, jury unanimity, due-process notice, grand jury indictments, and election law. Id. Thus, it can be argued that this particular statute was enacted specifically for the purpose of evading all of those bedrock criminal-procedural principles.! As general proposition, an indictment alleging an aggravated offense need not set forth all of the elements of the underlying, or aggravating offense. See, e.g., DeVaughn v. State, 749 S.W.2d 62, 69 (Tex. Crim. App. 1988). Accordingly, a capital murder indictment need not allege the elements of the underlying felony. See, e.g., Lamb v. State, 680 S.W.2d 11 (Tex. Crim. App. 1984); Hammett v. State, 578 S.W.2d 699 (Tex. Crim. App. 1979). Therefore, it is likely that the Court of Criminal Appeals will ultimately hold that the State need not plead the elements of the underlying offenses alleged in a continuous sexual abuse indictment.! In an unpublished opinion, the Dallas Court of Appeals has held that the State need not plead any specific date for commission of the alleged underlying offenses so long as the indictment contains an allegation of a period of time of at least 30 days, i.e., [o]n or about and between the 1st day of January A.D., 2008 and the 24th day of August A.D., See State v. Espinoza, No CR, slip op., 2010 WL at * 8-9 (Tex. App.--Dallas June 30, 2010, pet. ref d) (not designated for publication).! As discussed below in more detail, section specifically does not require jury unanimity as to the underlying offenses. The propriety of this provision is currently the subject of litigation in a number of courts.! Independent of the unanimity challenge, section may also be challengeable on due process / due course of law grounds. A sample Motion to Dismiss asserting some of these arguments is attached to this paper as Appendix 1. II. MOTIONS TO QUASH / DISMISS / SET ASIDE A. Waiver Issues! An accused who does not raise a defect, error, or irregularity of form or substance in an indictment or information before the date of trial waives and forfeits the right to object, and he many not raise the objection on appeal or in any other post-

13 PAGE 10 conviction proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon 2005); see Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007).! Presentment of an indictment omitting the venue allegation vests the trial court with jurisdiction of the cause, TEX. CONST. art. V, 12, and such a defect is waived by failure to raise a pretrial objection. TEX. CODE CRIM. PROC. ANN. art. 1.14(b).! A defect that prevents the charging instrument from qualifying as an indictment under TEX. CONST. art. V., 12(b) does not vest the trial court with jurisdiction, and such defect need not be raised pursuant to article 1.14(b). Duran v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997); Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995). For example, an indictment that completely fails to name a person as the defendant is not an indictment as defined by TEX. CONST. art. V, 12(b). See id.! Failure to object to the unconstitutionality of a statute either before or during trial waives any appellate review of that complaint. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.2009); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding appellant waived his challenge to statute as vague as applied because he did not specifically object at trial); Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.--Texarkana 2003, no pet.) ( A constitutionality challenge based on application to the defendant's case cannot be raised for the first time on appeal. ). B. Timing of Motion to Quash! A trial court may set a criminal case for a pre-trial hearing. See TEX. CODE CRIM. PROC. ANN. art , 1 (Vernon 2006). One of the purposes of such a pretrial hearing is to determine any exceptions to the form or substance of the indictment. See TEX. CODE CRIM. PROC. ANN. art , 1(4) (Vernon 2006). When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raise or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. TEX. CODE CRIM. PROC. ANN. art , 2 (Vernon 2006).! The deadlines in article are enforceable. See, e.g., Goff v. State, 727 S.W.2d 603, 604 (Tex. App.--Texarkana 1987) (failure to timely file Motion to Quash prior to pre-trial hearing, defendant waived right to have trial court consider it), rev d on other grounds, 777 S.W.2d 418 (Tex. Crim. App. 1989).

14 C. Motions to Quash for Lack of Notice TECHNICAL ASPECTS OF INDICTMENTS AND JURY CHARGES PAGE 11! When considering a motion to quash, it is not sufficient to say that the accused knew with what offense he was charged; rather, the question presented is whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Jeffers v. State, 646 S.W.2d 185, 187 (Tex. Crim. App. 1981)(citing Haecker v. State, 571 S.W.2d 920 (Tex. Crim. App. 1978); Moore v. State, 532 S.W.2d 333 (Tex. Crim. App. 1976)).! The test for deciding the sufficiency of an indictment in the face of a motion to quash for insufficient notice is to examine the indictment from the perspective of the accused. The sufficiency of the indictment to give adequate notice must be determined in light of the presumption of innocence. Jeffers, 646 S.W.2d at 189 (citing Drumm v. State, 560 S.W.2d 944 (Tex. Crim. App. 1977)). III. JURY CHARGE ISSUES A. General Principles! [T]he judge shall, before the argument begins, deliver to the jury,... a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. TEX. CODE CRIM. PROC. ANN. art (Vernon 2007).! If the defense does not request an instruction on a defensive issue, such issue is not law applicable to the case and the trial court has no duty to sua sponte instruct the jury on any such issue. See, e.g., Tolbert v. State, 306 S.W.3d 776, (Tex. Crim. App. 2010); Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.1998). Therefore, unless the defendant timely requests the instruction at trial, he or she cannot claim for the first time on appeal that a trial court erred by failing to give the defensive instruction subject to egregious harm analysis. See Posey, 966 S.W.2d at 62.! The defense has no right to an instruction on a defensive theory that is not specifically listed in the penal code, i.e., if the theory merely negates an element in the State s case, rather than independently justifying or excusing the conduct-the trial judge should not instruct the jury on it. See Walters v. State, 247 S.W.3d 204, (Tex. Crim. App. 2007).

15 PAGE 12! If a phrase, term, or word is statutorily defined, the trial court should submit the statutory definition to the jury. See, e.g., Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref d); Willis v. State, 802 S.W.2d 337, 342 (Tex. App.-- Dallas 1990, pet. ref d).! Words that are not statutorily defined are to be given their common, ordinary, or usual meaning. See Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App.1996); Williams v. State, 674 S.W.2d 315, 322 (Tex. Crim. App.1984). Jurors are presumed to know and apply such common and ordinary meanings. See Cuevas v. State, 742 S.W.2d 331, 346 (Tex. Crim. App.1987), cert. denied, 485 U.S (1988). Thus, if the phrase or word is not statutorily defined, the trial court is not required to define the word or phrase to the jury. See Andrews v. State, 652 S.W.2d 370, 375 (Tex. Crim. App. 1983). Only if the word or term does not have a common meaning that the jurors can be fairly presumed to know and apply, must a definition be supplied. See Holmes v. State, 962 S.W.2d 663, 674 (Tex. App.--Waco 1998, pet. ref d untimely filed); Spector v. State, 746 S.W.2d 946, 949 (Tex. App.--Austin 1988, pet. ref d). B. Lesser Included Offenses! The Court of Criminal Appeals has adopted the cognate pleadings test to determine if an offense constitutes a lesser-included offense. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). The cognate pleadings test requires a two step analysis: (1) The first step in the lesser-included-offense analysis, determining whether an offense is a lesser-included offense of the alleged offense, is a question of law. It does not depend on the evidence to be produced at the trial. It may be, and to provide notice to the defendant must be, capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense. Id. at (2) The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury. A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. In other words, the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id. at 536 (quotations and citations omitted).

16 PAGE 13! After Hall, and despite the fact that the offense of Indecency with a Child by Contact requires proof of an element intent to arouse or gratify that is not necessary for conviction of sexual assault, it is a lesser-included offense thereof so long as both offenses are predicated on the same act. See Evans v. State, 299 S.W.3d 138, (Tex. Crim. App. 2009). Thus, Double Jeopardy prohibits a defendant from being convicted of both Indecency and Sexual Assault arising a single act of molestation. Id.! The Court of Criminal Appeals has noted, in dicta, that [s]exual assault of a fourteen-year-old is, in essence, a lesser-included offense of sexual assault of a six-year-old. Puente v. State, 320 S.W.3d 352, 357 (Tex. Crim. App. 2010).! Indecent exposure is a lesser-included offense of Indecency with a Child by Exposure. See Ex parte Amador, No. PD , slip op., 2010 WL at * 4 (Tex. Crim. App. October 13, 2010).! Assault Causing Bodily Injury is NOT a lesser-included offense of sexual assault, even if the indictment alleges that physical force or violence was used to commit the sexual assault. See McKithan v. State, Nos. PD and PD , slip op., 2010 WL at *5 (Tex. Crim. App. November 10, 2010). D. Extraneous Offense Instructions! Generally speaking, if evidence is admitted that is only admissible for a limited purpose, the defense must request a limiting instruction at the time the evidence is admitted and then in the court s charge, or any error in admission is waived. See TEX. R. EVID. 105(a). Failure to request a limiting instruction at the time the evidence is admitted means that it has been admitted and may be considered by the jury for any and all purposes. See, e.g., Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001).! Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child. TEX. CODE CRIM. PROC. ANN. art , 2 (Vernon Supp. 2010). Thus, for evidence of extraneous conduct committed by the defendant against the alleged injured party named in the indictment on trial, there is no right to a limiting instruction.! The Standard of Admissibility for ALL extraneous offenses is Beyond a Reasonable Doubt. E.g., Harrell v. State, 884 S.W.2d 154, (Tex. Crim. App. 1994).

17 PAGE 14! If the defense timely requests a limiting instruction and then timely requests a special instruction in the jury charge, the trial court MUST instruct the jury at the guilt innocence phase that they may only consider extraneous offenses if they were proven beyond a reasonable doubt. See, e.g., Ex parte Varelas, 45 S.W.3d 627, (Tex. Crim. App.2001) (noting that, at the guilt stage of a criminal trial, the defendant has the burden to request an instruction limiting consideration of extraneous offenses, and, when he does so, the trial court must also instruct the jury, in its jury charge, on the burden of proof); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) ( [I]f a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction. ); George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (stating that if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense. ).! If the defense either fails to request a limiting instruction at the time the evidence comes in OR fails to request an appropriate jury instruction, the trial court has no duty to sua sponte instruct the jury on the beyond a reasonable doubt burden of proof for extraneous offenses. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). E. Elections! The State must elect the specific act on which it will rely for conviction when the indictment alleges one sexual assault but the evidence shows multiple assaults. O Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988); Wilson v. State, 3 S.W.3d 223 (Tex. App.--Waco 1999, no pet.). When an election is required, the trial court in its discretion may order the State to make its election at any time prior to the resting of the State s case-in-chief. However, once the State rests its case-in-chief, in the face of a timely request by the defendant, the trial court must order the State to make its election.! If the State is required to elect the act on which it will proceed for conviction, the defendant is entitled to an instruction charging the jury to consider only the elected act in deciding guilt and limiting the jury s consideration of all other unelected acts to the purposes for which they were admitted. Rivera v. State, 233 S.W.3d 403, 406 (Tex. App.--Waco 2007, pet. ref d); see also Ex parte Goodbread, 967 S.W.2d 859, 861 n. 2 (Tex. Crim. Ap ) (election excludes or limits jury s consideration of offense by instructing to disregard or limiting purpose for which evidence is offered).

18 F. Jury Unanimity Instructions TECHNICAL ASPECTS OF INDICTMENTS AND JURY CHARGES PAGE 15! In federal prosecutions, a defendant is entitled, under the Sixth and Seventh Amendments, to a unanimous verdict by the jury. See, e.g., Andres v. United States, 333 U.S. 740, 748 (1948). However, the right to jury unanimity has NOT been incorporated to the States via the due process clause so that, to some extent, non-unanimous state criminal verdicts are Constitutionally acceptable. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 362 (1972) (upholding conviction based on 9-3 vote from Louisiana state criminal prosecution).! Under our state constitution, jury unanimity is required in felony case, and, under our state statutes, unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (footnote omitted). See also, e.g., TEX. CONST. art. V, 13; TEX. CODE CRIM. PROC. ANN. art (a) (Vernon 2006) ( Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror.... ).! A unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense - it is more than mere agreement on a violation of a statute. De los Santos v. State, 219 S.W.3d 71, 76 (Tex. App. San Antonio 2006, no pet.) (emphasis added) (quoting Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000)). Therefore, if the charge disjunctively submits two separate offenses, and not merely alternative means of committing a single offense, it creates the possibility of a non-unanimous jury verdict and constitutes error. De los Santos, 219 S.W.3d at 76 (emphasis added) (citing Francis, 36 S.W.3d at ).! It is common in child sex cases for the State to allege several different manners and means of committing one offense in several different paragraphs under one count of the indictment and then request the trial court to submit the different paragraphs to the jury in the disjunctive. In light of the Court of Criminal Appeals holdings in Vick and Pizzo that the different statutory means of committing these offenses are actually separate statutory offenses, jury unanimity is required as to the specific statutory offense sexual assault or indecency by conduct offense that has been committed. See, e.g., Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007) (reversing indecency conviction where it was possible that 6 juror believed defendant touched victim s genitals and 6 jurors believed defendant touched victim s breast).! The continuous sexual abuse statute provides, If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during

19 PAGE 16 a period that is 30 or more days in duration, committed two or more acts of sexual abuse. TEX. PENAL CODE ANN (d) (Vernon Supp. 2009).! There are arguments to be made that this statute violates the Texas jury unanimity requirement, although every court that has addressed the issue to date has found the statute to be constitutional. See Reckart v. State, No CR, slip op., 2010 WL (Tex. App.--Corpus Christi August 26, 2010, no pet. h.); Render v. State, 316 S.W.3d 846 (Tex. App.--Dallas 2010, pet. ref d); Jacobsen v. State, No CR, slip op., 2010 WL (Tex. App.--Austin June 8, 2010, no pet.); Soliz v. State, No , slip op., 2010 WL (Tex. App.--Corpus Christi October 7, 2010) (not designated for publication); State v. Espinoza, No CR, slip op., 2010 WL (Tex. App.--Dallas June 30, 2010, pet. ref d) (not designated for publication); Martin v. State, 335 S.W.3d 867 (Tex. App. Austin 2011, pet. ref d), cert. denied 133 S. Ct. 645 (2012); Reckart v. State, 323 S.W.3d 588, (Tex.App.-Corpus Christi 2010, pet. ref'd); Render v. State, 316 S.W.3d 846, (Tex.App.-Dallas 2010, pet. ref'd); Coker v. State, No CR, 2010 WL , 2010 Tex.App. LEXIS 9740 (Tex.App.-Tyler Dec. 8, 2010, no pet.) (mem. op., not designated for publication); State v. Espinoza, No CR, 2010 WL , 2010 Tex.App. LEXIS 4952 (Tex.App.-Dallas June 30, 2010, pet. ref'd) (not designated for publication); Casey v. State, 349 S.W.3d 825, (Tex. App. El Paso 2011, ); Fulmer v. State, 2013 WL (Tex. App. San Antonio March 20, 2013, ). A sample Motion to Dismiss asserting some of these arguments is attached to this paper as Appendix 1.

20 Cause Number THE STATE OF TEXAS IN THE 123 RD JUDICIAL vs. DISTRICT COURT JOE BLOW WHATEVER COUNTY, TEXAS DEFENDANT S MOTION TO DISMISS THE INDICTMENT BECAUSE SECTION 21.02, TEXAS PENAL CODE, IS UNCONSTITUTIONAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JOE BLOW, by and through his attorney of record, Wm. Reagan Wynn, and files this Motion to Dismiss the Indictment Because Section 21.02, Texas Penal Code, Is Unconstitutional, and would show this Court as follows: I. Background and Overview Defendant is charged in count one of the Indictment in this cause with the offense of Continuous Sexual Abuse of a Young Child in violation of section 22.01(b), Texas Penal Code. Specifically, the indictment alleges that, during a period that was 30 or more days, on or about September 1, 2009, in Whatever County, Texas, Defendant committed two or more act of sexual abuse against the alleged injury party, a child younger than 14 years of age. Section provides as follows: APPENDIX A, PAGE 1

21 If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. TEX. PENAL CODE ANN (d) (Vernon Supp. 2009). Defendant respectfully submits that this provision violates the jury unanimity clause found in Article V, section 13 of the Texas Constitution, as well as the Due Process/Due Course of Law guarantees of both the United States and Texas Constitutions. II. Jury Unanimity Under [Article v, section 13, of] our state constitution, jury unanimity is required in felony cases,.... Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (citations omitted). By creating a statute that purports to criminalize as a single offense, a series of discrete criminal offenses and specifically provides that the jury is not required to unanimously agree which of the discrete criminal offenses the defendant committed, the Legislature has run afoul of the Texas Constitutional guarantee of jury unanimity. There are no reported cases ruling on the constitutionality of section Look at Martin v. State, 335 S.W.3d 867 (Tex. App. Austin 2011, pet. ref d), cert. denied 133 S. Ct. 645 (2012); Reckart v. State, 323 S.W.3d 588, (Tex.App.-Corpus Christi 2010, pet. ref'd); Render v. State, 316 S.W.3d 846, (Tex.App.-Dallas 2010, pet. APPENDIX A, PAGE 2

22 ref'd); Coker v. State, No CR, 2010 WL , 2010 Tex.App. LEXIS 9740 (Tex.App.-Tyler Dec. 8, 2010, no pet.) (mem. op., not designated for publication); State v. Espinoza, No CR, 2010 WL , 2010 Tex.App. LEXIS 4952 (Tex.App.-Dallas June 30, 2010, pet. ref'd) (not designated for publication); Casey v. State, 349 S.W.3d 825, (Tex. App. El Paso 2011, ); Fulmer v. State, 2013 WL (Tex. App. San Antonio March 20, 2013, ). Nevertheless, a similar statute was declared unconstitutional by the Supreme Court of Hawaii. See State v. Rabago, 81 P.3d 1151, 1166 (Haw. 2003). Like the Texas Continuous Sexual Abuse statute, Hawaii enacted a statute entitled Continuous Sexual Assault of a Minor Under the Age of Fourteen Years. See HAW. REV. STAT (repealed). That statute, similar to the Texas statute, provided: To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number. Id. at (2) (repealed). Like Texas, the Hawaii Constitution has a unanimity clause. See generally State v. Arceo, 928 P.3d 843, (Haw. 1996). Like Texas courts, the Hawaii courts, prior to the passage of the continuous sexual abuse statute, had repeatedly distinguished between offenses based on multiple acts and offenses that could be committed by APPENDIX A, PAGE 3

23 alternative means. See, e.g., Rabago, 81 P.3d at 1166 (citing cases); Ngo, 175 S.W.3d at Finally, again like Texas courts, prior to the passage of the continuous sexual abuse statute, the Hawaii courts had held that, when multiple acts of sexual abuse are charged in one count of an indictment, prosecutors are required to elect the incident on which they are relying in order to give effect to the unanimity requirement. Id. At In other words, the law in Texas and Hawaii essentially was identical when the Hawaii Supreme Court, in State v. Rabago, 81 P.3d 1151 (Haw. 2003), was called upon to decide whether the Hawaii continuous sexual assault statute violated that state s unanimity requirement under its constitution. In Rabago the Hawaii Supreme Court first noted that the legislature s mere labeling of a criminal offense [in a particular matter] does not necessarily make it so. It is the judicial branch that independently determines 3 Indeed, the law in Texas could not be more clear regarding the requirement for election prior to the enactment of the continuous sexual assault statute. In a case where more than one act of intercourse is shown, upon motion of the accused, the state should be required to elect as to which act it will rely on for a conviction. Bates v. State, 305 S.W.2d 366, 368 (Tex. Crim. App. 1957) (citations omitted). See also Scoggan v. State, 799 S.W.2d 679, 680 (Tex. Crim. App. 1980) ( When the evidence shows two or more acts of intercourse, each of which is an offense for which the defendant may be convicted, and the indictment charges only one offense, the State is required to elect which act it will rely upon to secure a conviction, provided the accused makes a motion for election. ); Crawford v. State, 696 S.W.2d 903, (Tex. Crim. App. 1985) (same). Failure to make such an election constitutes error. See, e.g., Crosslinn v. State, 235 S.W. 905 (Tex. Crim. App. 1921). APPENDIX A, PAGE 4

24 whether such a label is justified. Id. at 1168 (citations omitted). 4 Next, it held that, despite the Hawaii legislature s clear intent not to require unanimity as to the discreet sexually assaultive acts when it enacted the continuous sexual assault statute, the statute nevertheless violated the Hawaii Constitution s unanimity requirement because the conduct at issue, by its very nature, constituted multiple discreet acts. Id. At The conduct element requisite to HRS , i.e., three of more acts of sexual penetration or sexual contact, when combined with the attendant circumstance of over a period of time, see supra note 1, necessarily entails multiple impulses and the operation of intermittent forces and thus deviates from the construct of continuing offenses adopted by this court in Arceo. See 84 Hawaii I at 18, 928 P.2d at 860. Multiple acts of sexual penetration or sexual contact, committed over a period of time, bespeak separate and distinct intents, which, under the formulation that this court adopted in Arceo, can only occur under circumstances in which the defendant intended to commit more than one offense in the course of [the] criminal episode. Id..... If HRS were an alternative means statute, such that the offense of continuous sexual assault of a minor under the age of fourteen years could be committed in more than one way,... unanimity as to guilt for the single crime charge would be required, although unanimity... as to the means by which the crime was committed would not, so long as substantial evidence support[ed] each alternative means. Jones, 96 Hawaii I at 170, 29 P.3d at 360 (citation and internal quotation signals omitted). But HRS is not an alternative means statute. It is a multiple acts statute, precisely because, pursuant to its terms, several acts are alleged and any [combination] of them could constitute the crime 4 Thus, as an imperative of the separation of powers doctrine, it is the province of this court, and not the legislature, ultimately to ascertain whether, for the purposes of HRS , multiple acts of sexual penetration or sexual contact may be deemed a continuing offense. Rabago, 81 F.3d APPENDIX A, PAGE 5