IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1765-05
BARRY LOUIS PIZZO, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
GRIMES COUNTY
Price, J., filed a concurring opinion in which Johnson and cochran, JJ. joined.
CONCURRING OPINION
I agree with the majority that indecency with a child is a conduct-oriented offense. But I am less sure that the statutory definition of Asexual contact@ in Section 21.01(2) of the Penal Code, as it read prior to amendment in 2001,[1] carves out three different and distinct conduct-oriented offenses. According to the majority=s interpretation of the legislative intent, a person commits three different instances of indecency with a child under former Section 21.11(a)(1) of the Penal Code if, during the same incident, he touches the anus, breast, and genitals of another with the requisite specific intent.[2] For purposes of jury unanimity, then, the majority concludes that the jury must unanimously agree that the defendant touched at least one of these three body parts to support a conviction.[3] I ultimately agree, but for reasons somewhat different than those given by the majority.
I would readily agree with the majority if the penal provision read as follows:
A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is the same or opposite sex, he . . . touches the anus, breast, or any part of the genitals of the child with intent to arouse or gratify the sexual desire of any person.
The so-called Agravamen@ of this hypothetical offense is obvious; the statute is clearly designed to penalize specifically enumerated conduct, i.e., the touching of certain body parts of a child, with a specific lascivious intent. But this is not the statute we are dissecting today in our endeavor to divine legislative intent. The statute actually before us reads:
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 . . . engages in sexual contact with the child.
ASexual contact@ is defined, in turn, to mean Aany touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.@ It is far less clear to me whether this bisected way of articulating the offense of indecency with a child was intended by the Legislature to define three offenses (touching the anus, breast, or genitals of a child, with lascivious intent), or one offense (engaging in sexual contact) that can be committed by any one (or more) of three manner and means (by touching the anus, breast, and/or genitals of a child, with lascivious intent).
It would not suffice simply to say that, because the definition of Asexual contact@ in Section 21.01(2) expressly provides for three specific areas of the body the touching of which will constitute an offense, those three bodily areas constitute elements of separate instances of indecency with a child, even if committed during the same incident. It would not suffice because merely by providing for statutory alternatives, the Legislature does not necessarily tell us that separate offenses are intended, as opposed to different manner and means of committing a single offense. I can say this because on many occasions we have held in the context of construing the capital-murder statute that the predicate felony offenses specifically enumerated in Section 19.03(a)(2) of the Penal Code (kidnapping, burglary, robbery, aggravated sexual assault, arson, etc.) do not constitute elements of separate offenses, but are merely manner and means of committing a single offense.[4] The same could plausibly be said of the three statutory definitions of sexual contact.
So how do we tell? Ostensibly, the majority relies upon the methodology for determining whether statutory alternatives constitute Aelements@ or Amanner and means@ that was first articulated by Judge Cochran in her concurring opinion in Jefferson v. State,[5] and later adopted by a majority of the Court in Stuhler v. State.[6] According to that methodology, whether or not jury unanimity is required is a function of parsing the statutory language:
In sum, we must return to eighth grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime) . . . Generally, adverbial phrases, introduced by the preposition Aby,@ describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.[7]
But applying this methodology to the statute before us today would seem to call for the opposite result from that which the majority reaches, namely, that the statutory definitions of sexual contact operate as manner and means of committing the offense of indecency with a child, rather than elements.
The main verb of the statute as written is Aengages.@ Clearly that is an element. It is a transitive verb, meaning that it requires a direct object to complete the meaning of the sentence. Therefore, the direct object, Asexual contact,@ is also elemental. According to the Jefferson/Stuhler methodology, a jury would have to be unanimous with respect to these elements in order to convict. The definition of Asexual contact,@ however, seems to operate much like an adverbial phrase: a person engages in sexual contact Aby@ touching the anus, breast, or genitals, with lascivious intent. And indeed, the majority seems to acknowledge as much.[8] But if it is accurate to say that the definition of sexual contact operates like an adverbial phrase, should we not conclude that it identifies statutory manner and means of committing sexual contact, rather than elements of the offense, consistent with the Jefferson/Stuhler methodology?
The majority says no. The majority avoids the implication of the definition of sexual contact operating as an adverbial phrase by skipping over the main verb in the statute (Aengages@) and treating the gerund in the adverbial phrase (Atouching@) as if it were the main transitive verb in the statute, and then regarding what it takes to be the direct objects of that transitive verb (anus, breast, or genitals) as elements of the offense.[9] This analysis appears on the surface to be at odds with the Jefferson/Stuhler methodology.[10]
Nevertheless, I must ultimately agree with the majority=s bottom line. As Judge Cochran made clear in her concurring opinion in Jefferson, the methodology will not necessary work invariably, in every scenario, to accurately identify legislative intent.[11] This case provides an example. It is not until we look at the statutory definition that we find a specific intent which must accompany the actus reas for indecency with a child. The sexual contact must occur with the specific intent Ato arouse or gratify the sexual desire of any person.@ The reason for this is obvious. The Legislature did not intend for every touching of a child=s anus, breast, or genitals necessarily to be actionable. I think it beyond cavil that this specific intent is elementalBsomething we would all agree the jury must unanimously findBthough it does not appear in the statutory language that articulates the offense itself, but only in the definition of sexual contact that happens to operate like an adverbial phrase. Because the Legislature placed that plain element in the definition of sexual contact, I can accept the majority=s ultimate conclusion that the Legislature also intended that the particular areas of the body that that definition identifies (anus, breast, and genitals) are also elemental, and not mere manner and means of accomplishing sexual contact.
Given that it is apparent that at least a part of the Agravamen@ of the offense (the specific intent) appears in the definition, it is appropriate that we should modify our application of the Jefferson/Stuhler methodology. It is obvious that Aengages in sexual contact@ is insufficient to fully delineate the Agravamen@ of the offense, and it is necessary to proceed to the definition of sexual contact. Although the word Atouching@ in the definition is a gerund and works grammatically as a noun, it is acceptable to treat it as a transitive verb, and to regard the direct objects of that transitive verb, in accordance with Jefferson/Stuhler, as a description of what constitutes the offense, not just how the offense may be committed. By this reckoning it is appropriate to conclude, as the majority does, that anus, breast, and genitals constitute elements of indecency with a child under former Section 21.11(a)(1) of the Penal Code, rather than merely manner and means of committing sexual contact.
With that understanding, I join the Court=s judgment.
Filed: September 26, 2007
Publish
[1]
Tex. Penal Code ' 21.01(2), before it was amended in 2001, read: A>Sexual contact= means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.@ See now Acts 2001, 77th Leg., ch. 739, '1, p. 1463, eff. September 1, 2001.
[2]
Tex. Penal Code ' 21.11(a)(1) read, prior to amendment in 2001, AA 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 . . . engages in sexual contact with the child[.]@ See now Acts 2001, 77th Leg., ch. 739, '2, p. 1463, eff. September 1, 2001.
[3]
Presumably the majority would also hold, were the issue before us, that for jeopardy purposes an accused could also be convicted and/or punished for more than one instance of indecency with a child under these same circumstances. It should be reasonably clear after our recent opinion in Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007), that legislative intent vis-a-vis jury unanimity will correlate with legislative intent vis-a-vis double-jeopardy analysis. There we observed that A[w]e doubt that the Legislature could have meant for us to construe the >act or omission= alternative of Section 22.04(a) of the Penal Code as merely alternative means of committing the same offense for jury-unanimity purposes, but as full-blown separate offenses, authorizing multiple punishments, for purposes of double jeopardy analysis.@ Id. at 747.
[4]
E.g., Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991); Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004).
[5]
189 S.W.3d 305, at 314-16 (Tex. Crim. App. 2006) (Cochran, J., concurring).
[6]
218 S.W.3d 706, at 717-19 (Tex. Crim. App. 2007).
[7]
Id. at 718, quoting Jefferson v. State, supra, at 315-16 (Cochran, J., concurring).
[8]
AAlthough the statutory text does not include the preposition >by= as an introduction to the word >touching,= it is implied.@ Majority Opinion, Slip op. at 11.
[9]
Id. (Slip op. at 15).
[10]
Though both Jefferson and Stuhler involved a result-oriented offense, neither the Jefferson concurrence nor the Stuhler majority that adopted it suggests that the methodology should apply only in construing result-oriented offenses. In fact, the Jefferson concurrence at least implies that the methodology would apply equally to nature of conduct offenses. See 189 S.W.3d at 315-16 (Aif the main verb requires a direct object (i.e., the offense is a result-oriented crime)@ then the direct object is elemental, suggesting that the methodology applies whether or not the main verb is transitive, requiring a direct object to complete the meaning). Nor does the majority today suggest that the Jefferson/Stuhler methodology does not apply simply because the statute before us today is a nature-of-conduct type of offense.
[11]
189 S.W.3d at 315 (AThe use of the prepositional word >by= in either a statute or an indictment is a tip-off that probably (eighth grade teachers are rarely dogmatic and always leave the door open for idiosyncracies) the phrase will be a description of how [i.e., manner and means, not elemental] the offense was committed.@).