Taylor v. State

• Decision Date: 09 March 2011
• Docket Number: PD–0268–09.,Nos. PD–0266–09,PD–0267–09,s. PD–0266–09
• Citation: 332 S.W.3d 483
• Parties: Tracy Paul TAYLOR, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

332 S.W.3d 483

Tracy Paul TAYLOR, Appellant,

v.The STATE of Texas.

Nos. PD–0266–09

PD–0267–09

PD–0268–09.

Court of Criminal Appeals of Texas.

March 9, 2011.

Angela L. Cameron, Houston, for Appellant.Dan McCrory, Asst. D.A., Houston, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant, Tracy Paul Taylor, was convicted of three offenses of aggravated sexual assault and sentenced to seventy years' confinement with a fine of $10,000 for each offense. Much of the testimony at trial related to acts committed before Appellant turned seventeen. On appeal, Appellant argued in part that the jury charges were erroneous because they did not limit the jury's consideration to evidence of acts committed after his seventeenth birthday. The court of appeals held that the error in the jury charges deprived Appellant of a fair and impartial trial. We granted review to consider the effects of the instructions received and not received by the jury in this case. We will reverse.

I. PENAL CODE SECTION 8.07(b)

Texas Penal Code Section 8.07(b) states:

Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified 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 an offense described by Subsections (a)(1)–(5).¹

Tex. Penal Code Ann. § 8.07(b) (emphasis added).

II. PROCEDURAL HISTORY

The jury found Appellant guilty of three offenses of aggravated sexual assault, as charged in three separate indictments. The earliest date cited among the indictments was “on or about September 01, 2002.” On that date, Appellant was seventeen years old.² Therefore, the indictments did not violate Section 8.07(b), nor did the verdict forms, which referred back to the indictments.³ The issue before this Court relates to the jury charges.

At trial, testimony referred to various years as the start of Appellant's abusive conduct, all pre-dating Appellant's seventeenth birthday. A child-abuse pediatrician testified regarding her examination of the victim, which took place at the Children's Assessment Center in 2006. Her report, admitted into evidence, stated that Appellant touched the victim inappropriately for the first time when the victim was seven. Appellant would have been twelve at that time. The victim's father dated the start of his daughter's contact with Appellant as the fall of 1998, when the victim would have been eight and Appellant would have been thirteen. The victim's own testimony described the “worst” years of abuse as her sixth through eighth grade years. She agreed with the State's assertion that in sixth grade she was ten and eleven. Appellant would have then been fifteen and sixteen.⁴

The jury charges did not contain an 8.07(b) instruction to limit the jury's consideration to events after Appellant's seventeenth birthday. After reviewing the court's proposed charge, defense counsel stated that she had no objections.

At the court of appeals, Appellant argued that, without an 8.07(b) instruction, the charges were erroneous because the evidence presented at trial included acts committed before he turned seventeen. The court of appeals agreed, concluding that without an 8.07(b) instruction, “the charge authorized 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 counsel, the judge was not required to sua sponte instruct the jury on this point. The State also argues that the court of appeals should have found any error to be harmless.⁵

III. ARTICLE 36.14 AND THE LAW APPLICABLE TO THIS CASE

The State's first issue asks if the trial judge was required to sua sponte submit an 8.07(b) instruction in this case. Code of Criminal Procedure Article 36.14 details the requirements and procedures for the delivery of the court's charge to the jury. Tex.Code Crim. Proc. Ann. art. 36.14. It states, “the judge shall ... deliver to the jury ... a written charge distinctly setting forth the law applicable to the case.” Id. Article 36.14 also provides that, before the charge is read to the jury, “the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections.” Id. However, the judge's duty to instruct the jury on the law applicable to the case exists even when defense counsel fails to object to inclusions or exclusions in the charge; this may require the judge to sua sponte provide the jury with the law applicable to the case, under Article 36.14. So, even in the absence of action on the part of Appellant's defense counsel, if an 8.07(b) instruction were the law applicable to this case, the trial judge was required, under Article 36.14, to include it in the jury charges. We must assess whether the jury charges set forth the law applicable to the case, and specifically, whether an 8.07(b) instruction belonged in the jury charges.

We have previously held that Article 36.14 imposes no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998). An unrequested defensive issue is not the law applicable to the case. Id. So, we must classify an 8.07(b) instruction as the law applicable to the case or as an unrequested defensive issue.

In Posey, the instruction we labeled an “unrequested defensive issue” was a mistake-of-fact instruction. Id. at 59. The appellant argued that the trial court erred by not instructing the jury sua sponte on that point. Id. The defense of mistake of fact is codified in Section 8.02(a) of the Texas Penal Code.⁶ Tex. Penal Code Ann. § 8.02(a). The close proximity of Sections 8.02(a) and 8.07(b) in the Penal Code, both in the General Defenses chapter, invites a comparison of the statutes. Section 8.02(a) establishes mistake of fact as “a defense to prosecution,” which correlates to its classification as a “defensive issue.” Id. In contrast, Section 8.07(b) does not refer to a “defense” at all. Tex. Penal Code Ann. § 8.07(b). Rather, it is a prohibition of prosecutions and convictions based upon offenses committed before the age of seventeen. Id.

In addition to studying the language of 8.07(b) and its general applicability, we must also consider the particulars of the record before us in order to decide whether an 8.07(b) instruction is the law applicable to this case or an unrequested defensive issue. The State argues that an 8.07(b) instruction is a defensive issue in this case because defense counsel's theory at trial was that Appellant never sexually assaulted the victim, not that he only did so only before turning seventeen.⁷ In other words, the State suggests that activating 8.07(b) and directing attention away from Appellant's pre-seventeen conduct would have contravened the defense's theory that Appellant was innocent at every age.

A feature of a defensive issue is that it is a strategic decision “generally left to the lawyer and the client.” Posey, 966 S.W.2d at 63. However, the applicability of Section 8.07(b) is not contingent upon any party's theory of the case. It is not within the defendant's (or counsel's) discretion to decide whether or not he may be prosecuted for or convicted of offenses committed before turning seventeen. Even if the defense wanted to avoid a legally innocent argument, that does not change the fact that the jury in this case received evidence upon which they were statutorily prohibited from convicting Appellant.

Due to the repeated testimony regarding Appellant's pre-seventeen conduct, the absence of an 8.07(b) instruction in the jury charges is problematic. Further complicating matters is an instruction that was included:

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,⁸ 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.

With this paragraph, the jury was instructed that it could ignore the dates cited in the indictments and could convict Appellant for any offense committed prior to the victim's twenty-eighth birthday, which will fall in 2018.

We noted a similar problem in Alberty v. State, 250 S.W.3d 115, 116 (Tex.Crim.App.2008), in which indictments alleged that the defendant, as an adult, sexually assaulted a child. However, testimony described incidents of assault dating from the time the defendant was thirteen. Id. The jury charges in that case featured the following instruction, to which the defendant made no objection:

You are instructed that the State is not required to prove the exact date alleged in the indictment. The term “on or about the [respective date]” means any date prior to the date of the filing of the indictment, August 27, 2003, and within the Statute of Limitations. The Statute of Limitations for this type of alleged offense is 10 years past the child's 18th birthday.⁹

Id. at 117. On appeal, the defendant asserted that the jury charges were erroneous because “they instructed the jury that they could convict appellant of any offense anterior to presentment of the indictment and within the statutes of limitations, when in fact he could only be convicted of offenses occurring on or after his seventeenth birthday, July 7, 2001.” Id....