Sledge v. State

• Decision Date: 29 June 1995
• Docket Number: No. 2-94-127-CR,2-94-127-CR
• Citation: 903 S.W.2d 105
• Parties: Roger Dale SLEDGE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 105

903 S.W.2d 105

Roger Dale SLEDGE, Appellant, v. The STATE of Texas, State.

No. 2-94-127-CR.

Court of Appeals of Texas Fort Worth.

June 29, 1995.

Rehearing Overruled Aug. 10, 1995.

Robert Ford, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Betty Marshall, Charles M. Mallin, Assts. Chief Appellate Sec., M. Susan Goggan, Alan Levy, Anne Box, Asst. Dist. Attys., Fort Worth, for appellee.

Before LIVINGSTON, DAUPHINOT and BRIGHAM, JJ.

OPINION

DAUPHINOT, Justice.

Upon his plea of not guilty, in a bench trial, the trial court convicted Appellant, Roger Dale Sledge, of aggravated sexual assault of a child and sexual assault of a child on a two-count indictment. The court sentenced Appellant to thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice for the offense of aggravated sexual of a child and to twenty years' confinement for the offense of sexual assault of a child. In a single point of error, Appellant complains that the evidence was legally insufficient to sustain his conviction of either offense. We affirm.

Appellant complains that the indictment alleged both offenses occurred on or about August 31, 1988, but the prosecutors insisted that they satisfied the requirements of the indictment by proving any offense that occurred within the ten-year statute of limitations. In the pretrial hearing, defense counsel complained that during trial he would have no way of knowing whether the State was offering evidence of extraneous offenses or whether they were offering evidence of the offense that Appellant was being tried for. He argued that he had to know an exact date of the offense or a specific offense so that he could prepare Appellant's defense.

Defense counsel was correct. He was indeed entitled to know what specific act of misconduct Appellant was required to defend against. He was also entitled to know what extraneous acts of misconduct the State was planning to introduce. Appellant correctly requested a statement of the extraneous offenses the State intended to offer pursuant to rule 404(b) of the Texas Rules of Criminal Evidence.

The Court of Criminal Appeals has clearly stated that when more than one act of sexual misconduct against a child has occurred, when a proper request to elect is made, the State must clearly inform the defendant of the specific offense for which they intend to prosecute. Crawford v. State, 696 S.W.2d 903, 905 (Tex.Crim.App.1985). As defense counsel stated, the purpose of this requirement is to allow a defendant to prepare to defend against the accusations and also to know when extraneous acts of misconduct are being offered.

The trial court carefully and appropriately required the prosecution to give notice to Appellant of the specific "incidences" that would be relied on by the State in trying its case. The trial judge further ruled he would allow those "incidences" to be proved so long as they were within the period of limitation.

Although great latitude is provided the State in proving an offense alleged to have been committed on or about a specific date, a defendant in a criminal case is afforded the protection of being able to require the State to elect which specific act of misconduct it relies upon for conviction. Crawford, 696 S.W.2d at 906.

The excellent appellate briefs submitted by both Appellant and the State have clearly set out the dilemma that faces both prosecution and defense. Since Texas law does not provide for a bill of particulars, notice must be provided by the indictment. The law, however, clearly permits the State to allege an offense occurred on or about a specific date. The proof is sufficient if it proves the offense occurred on a date anterior to the presentment of the indictment but within the statutory limitations period. Ex parte Alexander, 685 S.W.2d 57, 59 (Tex.Crim.App.1985). This great latitude given to the State has a rational basis when the victim is a young child. A young child may make no outcry for several months or even years. When outcry is finally made, the child often is unable to establish a specific date of the offense but must pinpoint the event by describing it in terms of significant holidays, a particular residence, or the circumstances of the offense itself. Texas rules of pleading require accusation in terms of the elements of the offense, including a date. TEX.CODE CRIM.PROC.ANN. art. 21.02 (Vernon 1989). But the statute provides:

The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.

TEX.CODE CRIM.PROC.ANN. art. 21.02(6) (Vernon 1989).

Permitting the State to plead that an offense occurred on or about a specific date, therefore, makes sense. The term "on or about" has no real meaning, however, when the element can be proved by showing any date within a ten-year statute of limitations. It would make more sense to admit the State is simply pleading the offense is not barred by the statute of limitations. ¹ It does not make sense to pretend such broad pleading provides any notice to the defense regarding the date of the offense alleged. Consequently a defendant is effectively denied a defense of alibi, as well as other important defenses.

By requiring the State to elect specific acts of misconduct upon which it relies, and to designate acts of misconduct that are extraneous to the alleged act of misconduct for which Appellant was being tried, the trial court in the instant case carefully and adequately protected the rights of Appellant while allowing the State the latitude provided by the rules of pleading. But, as Appellant pointed out in oral argument, there is no showing the transactions designated during the pretrial hearing were the same transactions presented to the grand jury.

Article I, Section 10 of the Texas Constitution, article 1.05 of the Texas Code of Criminal Procedure, and the Fifth Amendment to the United States Constitution prohibit trying a defendant for a felony without first presenting the accusation to the grand jury. The grand jury must inquire into the offense and, if nine jurors vote a true bill, return an indictment, which is the written statement of a grand jury accusing the person named in the indictment of some act or omission constituting an offense. TEX.CODE CRIM.PROC.ANN. art. 20.19 (Vernon 1977). If the State is permitted to wait until trial or until a pretrial hearing to choose the transaction to proceed upon, it is difficult to understand how this procedure complies with the requirements of grand jury oversight.

Another important requirement is that the indictment be worded with sufficient certainty to prevent subsequent prosecution for the same offense. TEX.CODE CRIM.PROC.ANN. art. 21.04 (Vernon 1989). Does this rule mean that once a defendant is prosecuted for an offense alleged as generally as the law now permits, that defendant may never again be prosecuted for the same offense (not transaction) against that victim if that offense occurred within the same ten-year period? This is the logical conclusion, but it is not the law.

At the pretrial hearing, the State elected two specific transactions upon which to proceed. The State clearly informed the defense that those alleged offenses occurred two or three years prior to the date alleged in the indictment and involved two separate events. One event occurred around the time the complainant was ten or eleven years old when she lived on Ray Street in Tarrant County, Texas. ² The State described it as the transaction where Appellant got vaseline and made the complainant lie face down on the bed after he had undressed her, took the vaseline, rubbed it all over her anus, and attempted to penetrate her anally. When he was unable to do so, he penetrated her digitally and finally ejaculated on her back.

The second event was described by the State as...