Taylor v. State
| Decision Date | 22 January 2009 |
| Docket Number | No. 01-07-00803-CR.,No. 01-07-00802-CR.,No. 01-07-00801-CR.,01-07-00801-CR.,01-07-00802-CR.,01-07-00803-CR. |
| Citation | 288 S.W.3d 24 |
| Parties | Tracy Paul TAYLOR, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Angela Cameron, Houston, TX, for Appellant.
Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices HIGLEY and NUCHIA.*
Following a joint trial on three separate indictments, a jury found appellant, Tracy Paul Taylor, guilty of three offenses of aggravated sexual assault of a child.1 For each offense, the jury sentenced appellant to 70 years in prison and assessed a $10,000 fine. In response to a motion by the State, the trial court cumulated two of the three sentences.
Appealing each judgment of conviction, appellant raises three identical points of error in each appeal. Appellant contends as follows: (1) the trial court abused its discretion by denying his motion for new trial; (2) the jury charge was erroneous because it did not instruct the jury that it could not consider appellant's conduct before his seventeenth birthday as a basis for conviction; and (3) appellant did not receive effective assistance of counsel at trial because his counsel failed to object to the jury charge on the ground that it failed to instruct the jury that it could not base a guilty finding on an act committed by appellant before his seventeenth birthday.
We reverse and remand.
J.G., the complainant, is five years younger than appellant. J.G.'s birthday is June 12, 1990, and appellant's birthday is March 25, 1985.2 When J.G. was eight years old, she began staying at the home of appellant's mother before and after school and in the summer, while her father worked.
At the age of 16, J.G. made an outcry to appellant's sister-in-law that appellant had sexually abused her during the time period that she stayed at the home of appellant's mother. J.G. reported that appellant had begun sexually abusing her by the time she was in the fifth grade and had stopped abusing her when she was 15 years old.
Appellant was ultimately charged with three offenses of aggravated sexual assault, based on abuse that occurred in September 2002. Specifically, appellant was charged with intentionally and knowingly causing the penetration of (1) J.G.'s sexual organ with his sexual organ on or about September 1, 2002, (2) J.G.'s mouth with his sexual organ on or about September 15, 2002, and (3) J.G.'s anus with his sexual organ on or about September 30, 2002. In September 2002, appellant was 17 years old, and J.G. was 12 years old.
At trial, J.G. testified about the abuse generally, stating that, over the years, appellant penetrated her vaginally, orally, and anally with his penis on a frequent basis. Because of the frequency and duration of the abuse, J.G. did not remember many details about each instance of abuse.
J.G. did describe a few specific instances of abuse for the jury. J.G. testified that appellant had penetrated her vaginally with a number of objects, including a hammer, a broomstick, and a paintbrush. J.G. also described how appellant placed his penis in her mouth and then penetrated her vaginally on his grandmother's bed. When read in the context of the record, appellant committed these instances of abuse before he was 17 years old.
J.G. also told the jury about one instance when appellant performed oral sex on her in the bathroom. J.G. recalled that she was in the fifth grade. Appellant would have been 15 or 16 years old at the time. J.G. told the jury about another specific instance of abuse that was close in time to the bathroom incident. J.G. described that appellant had penetrated her vaginally with his penis in his bedroom.
J.G. told the jury that she remembered one instance when appellant abused her by placing his penis in her anus. She recalled that it occurred in appellant's backyard, but could not remember when it had happened.
No instruction was given to the jury that it should not consider, as a basis for conviction, acts committed by appellant before his seventeenth birthday. Appellant made no objection to the jury charges on this ground.
With respect to the date of the offense, each jury charge, provided,
You are further instructed that the State is not bound by the specific date which the offense, if any, is alleged in the indictment to have been committed, but that a conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations. The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.
The jury found appellant guilty of the each offense as alleged in the three indictments. These appeals followed.
Appellant frames his second point of error as follows: "The jury charge was erroneous as it did not instruct the jury it could not consider conduct occurring before appellant's seventeenth birthday as evidence of guilt."
Penal Code section 8.07(b) provides that unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age," except for certain offenses not applicable here. TEX. PENAL CODE ANN. § 8.07(b) (Vernon Supp.2008). Appellant turned 17 on March 25, 2002. J.G. testified that appellant penetrated her vaginally, orally, and anally both before and after appellant's seventeenth birthday. With respect to the juvenile conduct, the juvenile court did not waive jurisdiction or certify appellant for criminal prosecution.
The three indictments alleged that appellant penetrated J.G. vaginally, orally, and anally "on or about" September 1, 15, and 30, 2002, respectively. As described above, the jury charge in each case did not contain a section 8.07(b) instruction informing the jury that it could not base a guilty finding on appellant's conduct before his seventeenth birthday. The jury was not limited, for purposes of determining guilt, to considering appellant's conduct after he reached 17 years of age. Rather, the jury was instructed that it was not bound to the "on or about" dates and could consider any conduct that occurred within the limitations period as a basis for conviction.
Appellant contends that the trial court erred by failing to give, sua sponte, a section 8.07(b) instruction. Code of Criminal Procedure article 36.14 requires the trial court to deliver to the jury "a written charge distinctly setting forth the law applicable to the case." Delgado v. State, 235 S.W.3d 244, 247 (Tex.Crim.App.2007) (quoting TEX.CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007)). Error due to erroneous omissions in the jury charge can result either from omissions of issues on which a trial court has a duty to instruct without a request from either party or from issues that have been timely brought to the trial court's attention. Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000).
A distinguishing feature of "the law applicable to the case" for which a trial court has a sua sponte duty to instruct the jury is that it is neither discretionary nor dependent on either side's theory of the case. See Oursbourn v. State, 259 S.W.3d 159, 180 (Tex.Crim.App.2008). When a statute requires a jury instruction under the particular circumstances of the case, then the trial court must sua sponte give the instruction. See id. For example, if the evidence raises an accomplice witness issue, then the trial court shall instruct the jury that an accomplice's testimony must be corroborated by other evidence tending to connect the defendant to the crime, regardless of whether the defendant requested the instruction or objected to its omission. See id. at 180 n. 84.
In contrast, defensive issues are typically dependent on trial strategy and tactics, and are not legislatively proscribed by statute when particular circumstances are presented. See Delgado, 235 S.W.3d at 249. Instead, defensive issues are typically framed in terms of permissive or discretionary language. See, e.g., TEX. PENAL CODE ANN. § 8.01 (Vernon 2003) (permitting insanity defense); id. § 8.02 ().
A defensive issue is not law applicable to the case for purposes of article 36.14 unless the defendant timely requests the issue or objects to its omission in the jury charge. Oursbourn, 259 S.W.3d at 180 (citing Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998)). Accordingly, a trial court does not err by failing to include a defensive issue in the charge when the defendant has not requested it or objected to its omission. See Posey, 966 S.W.2d at 62.
The State contends that the trial court did not err by failing to give a section 8.07(b) instruction because appellant's juvenile status was a defensive issue, and appellant neither requested the instruction nor objected to its omission. We disagree.
The language of section 8.07(b) is not permissive; it is mandatory. It provides that, with a few exceptions, a person may not be prosecuted for or convicted of a criminal offense committed before he is 17 years old, unless the juvenile court has waived jurisdiction and certified the person for prosecution. TEX. PENAL CODE ANN. § 8.07(b) (Vernon Supp.2008). It is a legislatively prescribed jurisdictional requirement applicable to all cases in which the culpable conduct was committed before the alleged perpetrator reached the age of 17. See Huizar, 12 S.W.3d at 484 (). Section 8.07(b)'s application is neither dependent on a defendant's theory of the...
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Taylor v. State
...any acts committed by appellant before his seventeenth birthday to support a guilty finding. Taylor v. State, 288 S.W.3d 24, 28 (Tex. App.—Houston [1st Dist.] 2009, pet. granted) (Taylor I). Holding the error to be egregiously harmful, we reversed the trial court's judgment in each case and......
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Taylor v. State
...the jury to convict [A]ppellant based on acts he committed before his seventeenth birthday.” Taylor v. State, 288 S.W.3d 24, 30 (Tex.App.-Houston [1st Dist.] 2009, pet. granted). The State now argues to this Court that, in the absence of any request for an 8.07(b) instruction from defense c......