Cunningham v. State

• Decision Date: 18 March 1987
• Docket Number: No. 929-85,929-85
• Citation: 726 S.W.2d 151
• Parties: Maurice Samuel CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 151

726 S.W.2d 151

Maurice Samuel CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.

No. 929-85.

Court of Criminal Appeals of Texas En Banc.

March 18, 1987.

David R. Weiner, court appointed on appeal, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., and Elizabeth H. Taylor, Ernest Glenn and Charles Estee, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Charged with aggravated sexual assault of a child under V.T.C.A. Penal Code, Sec. 22.011(a)(2)(B) and Sec. 22.021(a)(3), appellant pleaded not guilty in a trial before the court. Expressly finding a failure to prove "penetration of the mouth of the child by the sex organ of [appellant]," the trial court convicted him of indecency with a child. ¹

On appeal the San Antonio Court of Appeals sustained appellant's sole ground of error to the effect that the judgment is void because the conviction is for an offense neither alleged nor included in the indictment. Finding that "an essential element of the offense of indecency with a child is the intent to arouse or gratify the sexual desire of any person ... that must be specially alleged in the indictment," the San Antonio Court reasoned that conviction for indecency with a child "requires proof of an additional material fact, the required specific intent, which is not required to be proven for a conviction for aggravated sexual assault under the instant indictment." Therefore, under the indictment in this cause "indecency with a child is not a lesser included offense." It ordered an acquittal for indecency with a child. Cunningham v. State, 694 S.W.2d 629 (Tex.App.--San Antonio 1985).

In its petition the State challenges the decision (and reasons given for it) of the Court of Appeals, and we granted review under Tex.Cr.App. Rule 302(c)(2), now Tex.R.App.Pro. Rule 200(c)(2). We will reverse the judgment of the San Antonio Court.

The leading opinion on meaning and construction of Articles 37.08 and 37.09, V.A.C.C.P., and the relation of lesser included offenses to allegations in a charging instrument is Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), the latter in Opinion on Rehearing. The State contended that a requested charge on criminal trespass, as a lesser included offense of burglary, was properly denied "because the indictment would not support a conviction for criminal trespass," id., at 310, relying on the principle that when a lesser offense is not statutorily identified as a degree of the primary offense charged, the lesser must be sufficiently pled in the indictment in order to support a judgment of conviction for the lesser offense. Id., at 313. ²

Responding to the State's contention, the Court first observed that the State was relying on authorities decided before the 1973 amendments to the Code of Criminal Procedure. Accordingly it analyzed former statutes and case law, and we set out in the margin its own summary of what was found. ³

Having held on original submission that "on the facts of this case" criminal trespass is a lesser included offense to burglary as charged, and having affirmed that holding on rehearing, id., at 310, the Court concluded:

"With respect to the State's challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case, [note omitted] we hold that the new statutory scheme of lesser included offenses ... did not create such a restriction upon the jurisdiction of the trial court once properly invoked to try the offense charged, to proceed to judgment upon the lesser included offense...."

Id., at 315. Accord: E.g., Ex parte McClelland, 588 S.W.2d 957, 959 (Tex.Cr.App.1979) (new statutory scheme does not restrict jurisdiction of the trial court, once properly invoked to try the offense charged, to proceed to judgment on a lesser included offense).

Turning to the constitutionality of Articles 37.08 and 37.09(1), supra, the Court noted that "each definition in Article 37.09 is stated with reference to 'the offense charged,' and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged;" it further observed that those differentiations "vary in a manner that is either restrictive or reduces culpability as compared to the offense charged." Accordingly, the articles are constitutional "insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged." Id., at 315. However, the Court added a most significant stipulation, viz:

"[W]hether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case."

Id., at 315-316. Accord: Campbell v. State, 571 S.W.2d 161 (Tex.Cr.App.1978) (State's case "as presented to prove the [aggravated robbery] offense charged" included proof of lesser included offense of completed theft); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976) (proof showed unlawful possession of hand gun a lesser included offense of possession of pistol by felon); Jones v. State, 532 S.W.2d 596, 601 (Tex.Cr.App.1976) (insufficient proof that a "habitation" was burglarized but showing an "enclosed structure" sustains lesser included offense of burglary of a "building"); cf. Williams v. State, 605 S.W.2d 596, 600 (Tex.Cr.App.1980).

In terms of the offense charged in the instant cause, practically tracking Secs. 22.011(a)(2)(B) and 22.021(a)(3), supra, in pertinent part the indictment alleged that on the 3rd day of October 1983, appellant did then and there:

"intentionally and knowingly cause the penetration of the mouth of [named child] by the sexual organ of the said defendant, and by acts and words occurring in the presence of [the child], intentionally and knowingly threatened to cause the death of [the child]."

The jurisdiction of the trial court having been properly invoked to try the offense charged, it was authorized to proceed to judgment upon any lesser included offense determined from the offense charged and the facts of the case. Williams v. State, 605 S.W.2d 596, 600 (Tex.Cr.App.1980); Ex parte McClelland, supra; Hazel v. State, 534 S.W.2d 698, 700-701 (Tex.Cr.App.1976); Day, supra. Contrary to the opinion of the San Antonio Court of Appeals, that the indictment did not expressly allege an element of indecency with child--intent to arouse or gratify the sexual desire of any person--did not preclude the trial court from proceeding to judgment upon a correctly determined lesser included offense. Day, supra (Opinion on Rehearing) In this context both Duwe v. State, 642 S.W.2d 804 (Tex.Cr.App.1982) and Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976), cited by the San Antonio Court, are inapposite. What must be decided in light of the offense charged and the facts proved is whether in this cause indecency with a child is a lesser included offense of the one alleged. Campbell v. State, supra, at 161.

The offense charged is a species of what is now titled "sexual assault," aggravated in this instance by threat to cause death of the child. V.T.C.A. Penal Code, Secs. 22.011(a)(2)(B) and 22.021(a)(3). Putting aside the aggravating feature, Hazel v. State, supra, at 701, the offense is committed when a person "intentionally or knowingly causes the penetration of the mouth of a child by the sexual organ of the actor." ⁴ While the 1983 changes may indicate a legislative preference that the thrust of sexual assault of a child be regarded as more assaultive in nature than sexual abuse of a child, we must not confuse statutory elements in the definition of an offense with evidentiary facts that prove it. That the Legislature altered the nature of the offense does not rule out the fact that an act of causing penetration of the mouth of a child by the penis of another will be accompanied with specific intent to arouse or gratify sexual desire of the actor. The issue is "whether the State's case as presented to prove the offense charged included proof of [a lesser included offense]," not "whether the primary offense is capable of proof on some theory that would not show [a lesser included offense]." Campbell, supra, at 162; Hazel, supra, at 700; Day, supra, at 310, 315.

In the instant cause, however, in reaching its decision the San Antonio Court did not even mention the State's proof. That proof presents a brief scenario that is at once simple and commonplace in such cases.

The fourteen year old victim testified that during lunch time at the middle school she attended appellant approached her in the parking lot; through a ruse and a dollar bill he induced her into his automobile and drove to another area nearby. There, still in his car, appellant told the child to take off her clothes, slapping her in the face until, in tears and afraid, she began to do so. She removed her pants and shirt and lifted up her "bra." Then or later he "took down" his own pants. He "put his finger on [her] crotch," and told her to lick his penis; she did that. After she licked his penis he put it "in [her] crotch."

Asked directly if he "put his penis in your mouth," the child answered, "No." In time appellant told her to put her clothes back on, she did and appellant drove her back to school and let her out. The child went immediately to her teacher and reported what had happened.

Ever since the Legislature modernized the common law definition of sodomy to proscribe certain acts done "in a lewd and lascivious manner"--meaning "in a vulgar manner inciting sexual desire or appetite," Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, 730 (1950)--and denounced other...