Johnson v. State

• Decision Date: 25 March 1998
• Docket Number: No. 1399-96,1399-96
• Citation: 967 S.W.2d 848
• Parties: Roderic JOHNSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 848

967 S.W.2d 848

Roderic JOHNSON, Appellant, v. The STATE of Texas.

No. 1399-96.

Court of Criminal Appeals of Texas En Banc.

March 25, 1998.

Allan K. Butcher, Allan K. Butcher, Jr., Fort Worth, for appellant.

Danielle A. LeGault, Asst. Dist. Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge, delivered the opinion of the Court joined by MANSFIELD, KELLER, HOLLAND and WOMACK, Judges.

Appellant was convicted by a jury of the offense of indecency with a child and the jury assessed punishment at confinement for two years, probated for a period of five years. In an unpublished opinion, the Court of Appeals affirmed appellant's conviction. Johnson v. State, No. 02-95-384-CR (Tex.App.--Fort Worth July 18, 1996 pet. granted)(not designated for publication). This Court granted review to determine whether the offense of indecency with a child requires a culpable mental state relating to the child's age. We will affirm.

The statute relevant to this issue is Section 21.11 of the Texas Penal Code. Section 21.11(a)(1) and (2) states in pertinent part that:

"(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:

"(1) engages in sexual contact with the child; or

"(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person."

Appellant argues that touching the anus, breasts, or genitals is only a crime if the circumstances of the act make it a crime. He claims that indecency with a child is a circumstances of the conduct crime which is different when compared to the nature of the conduct or result of the conduct crime, as evidenced in the offenses of gambling and murder respectively. In the instant case, appellant contends that his culpable mental state attaches to the circumstances surrounding the conduct, the child's age. Appellant relies on McQueen v. State, 781 S.W.2d 600 (Tex.Cr.App.1989), where this Court held that unauthorized use of a vehicle is a circumstances of conduct crime, and that the culpable mental state attaches not only to the conduct of the operating the vehicle, but also to the circumstances surrounding the conduct, that the operation is without the consent of the owner. Appellant therefore argues that a defendant must intentionally operate the vehicle, knowing the operation is without the owner's consent. Appellant compares McQueen with the instant case in that he should not be guilty unless he knew the victim was under age 17. He contends that the rationale used in McQueen should be applied to indecency with a child.

However, this Court has previously held that in cases involving the sexual assault of a child, such as rape of a child or indecency with a child, the State is not required to show that appellant knew the victim to be younger than 17 years of age. In fact, this Court held in Vasquez v. State that, "[I]t follows that to require the State to allege and prove the appellant know the prosecutrix to have been under the age of 17 would establish ignorance or mistake as a defense in contravention of the clear legislative intent." Vasquez v. State, 622 S.W.2d 864, 866 (Tex.Cr.App.1981). Had the Legislature intended to make a provision regarding the knowledge of the victim's age it would have expressly included that requirement within Section 21.11 of the Texas Penal Code. Absence of such express language proves otherwise.

This Court in Roof v. State 665 S.W.2d 490, 492 (Tex.Cr.App.1984) again concludes that, "[G]iven our case law and legislative tradition running squarely against appellant's notion that the State must prove his knowledge of the victim's age, and given the failure of the Legislature to specifically require such knowledge when it required knowledge of the victim's presence, appellant's position must fail." In case after case, this Court has held that the State is not required to show that appellant knew the victim to be under the age of 17. ¹ This rule is well established and we therefore find that it is dispositive of the issue in the case at bar.

For the reasons stated above, appellant's sole ground of review is overruled. The judgment of the Court of Appeals is affirmed.

PRICE, J., filed a concurring opinion joined by MEYERS, MANSFIELD and WOMACK, JJ.

BAIRD, J., filed a dissenting opinion.

OVERSTREET, J., dissents.

PRICE, Judge, concurring.

I write separately, because although I concur with the judgment of the majority, I believe neither the majority nor the dissent fully address the issues this case presents, in terms of statutory interpretation and constitutionality.

The question presented today is what, if any, culpable mental state is required under TEX. PEN.CODE § 21.11. The issue of whether or not a culpable mental state is required for the offense of "statutory rape" has been much debated throughout the country for several decades now. As has been noted, "[p]rior to 1964, it was the universally accepted rule in the United States that a defendant's mistaken belief as to the age of the victim was not a defense to a charge of statutory rape." Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 499 (1997). This court's own case law has long held that such a mistaken belief was not a defense. In what appears to be the first reported case in Texas, we relied primarily on the decisions of other states, as well as on treatises on criminal law and British decisions, for the proposition that mistake of fact as to the victim's age is no defense. Edens v. State 43 S.W. 89, 89 (Tex.Crim.App.1897). Although this "universal rule" was first "broken" by the California Supreme Court more than thirty years ago, see People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964), such breakage has hardly been universally accepted. Instead, courts around the country have been split, not only as to the results reached, but also as to the reasons relied upon in reaching those results. ¹ The first consideration in today's case is one of statutory interpretation. An initial reading of § 21.11 might suggest that, in fact, a required element of the offense is knowledge of the victim's age. That is, § 21.11(a)(2) requires that the defendant know that "... the child is present." Whether such knowledge goes only to the victim's presence or to the fact that the victim is a child, i.e., under the age of 17 years, is not clear. This court has held that when the language of a statute is ambiguous, we may consider extratextual factors such as legislative history to determine legislative intent. Boykin v. State, 818 S.W.2d 782, 785-786 (Tex.Crim.App.1991). Using such legislative history, we have previously determined that the intent of the legislature was that the knowledge element of § 21.11(a)(2) applies only to the presence of the victim, rather than the victim's age. Roof v. .State, 665 S.W.2d 490, 491-492 (Tex.Crim.App.1984).

The next consideration is the interaction of TEX. PEN.CODE §§ 6.02 and 21.11. TEX. PENAL CODE § 6.02, titled "Requirement of Culpability," states in relevant part:

(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element. (emphasis added)

The issue of when an offense "plainly dispenses" with a mental element is not itself plainly evident. That is, does mere silence as to a mental element mean that the legislature intended to "plainly dispense" with any mental element, or must the text of the statute explicitly state the legislature's intent to do away with any mental element? If mere silence is not, in and of itself, sufficient to "plainly dispense" with a mental element, then under Boykin, supra, courts may be required to go outside of the text of the statute and consider legislative history, public policy, etc., to determine legislative intent.

Judicial interpretation of § 6.02 has varied, depending on the specific statute at issue. ² However, with regard to TEX. PENAL CODE § 21.11, several factors lead to the conclusion that the legislature intended that no mental element be required as to the age of the victim.

Recently in Long v. State, 931 S.W.2d 285 (Tex.Crim.App.1996), we declared the stalking provision of a harassment statute unconstitutional. In doing so, we noted that particular subdivisions of that statute prescribed a culpable mental state. From this, we reasoned that the legislature intended only those subdivisions of the statute, and no others, to require a culpable mental state. Id. at 291. In the present case, the relevant portion of § 21.11 reads as follows:

(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:

(1) engages in sexual contact with the child; or

(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person. (emphasis added)

Thus, it can be implied, similar to the reasoning in Long, that since § 21.11(a)(2) contains the mental elements "knowing" and "intent," and since those same mental elements are apart from the provision of § 21.11(a), which specifies the age of the victim, the intent of the legislature was to dispense with a culpable mental state as to the victim's age. The dissent states that I am "... unable to point to any language in the statute which 'plainly dispenses' with a culpable mental state." Post, at...