Duwe v. State

642 S.W.2d 804, 1982 Tex. Crim. App. LEXIS 1158

• Court: Court of Criminal Appeals of Texas
• Decided: December 22, 1982
• Docket: 60272
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for indecency with a child. V.T.C.A. Penal Code, Sec. 21.11. After the jury found appellant guilty, the court assessed punishment at ten years.

At the outset, we are confronted with unassigned error which requires reversal. Appellant was prosecuted under a two-count indictment. The first count alleged rape of a child while the second count alleged indecency with a child. The State elected to proceed under the second count which alleged in pertinent part:

“And the Grand Jury further represents that in Harris County, Texas, Robert Duwe, hereafter styled the Defendant, on or about August 30, 1977, did then and there unlawfully, knowingly and intentionally and with intent to arouse and gratify his sexual desire, engage in sexual contact with K_J_H_, a female under the age of seventeen years and not the spouse of the Defendant, by touching the genitals of the said K_ J-H-” (Emphasis added).

In applying the law to the facts of the case and instructing the jury under what circumstances to convict or acquit, the court charged the jury in the following manner:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Robert Duwe, did, in Harris County, Texas, on or about August 30th, 1977, intentionally engage in sexual contact with K_J_H_, who was then and there a child younger than 17 years, and not the defendant’s spouse, by touching the genitals of the said K-J_H_, you will find the Defendant guilty.”

This Court has held that an essential element of the offense of indecency with a child is the “intent to arouse or gratify the sexual desire of any person.” Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.); Polk v. State, 547 S.W.2d 605 (Tex.Cr.App.); Slavin v. State, 548 S.W.2d 30 (Tex.Cr.App.); Wesley v. State, 548 S.W.2d 37 (Tex.Cr.App.). The jury charge in the instant case failed to include the essential element of “the intent to arouse or gratify the sexual desire of any person.” Such an omission of an essential element of the offense renders the charge fundamentally defective in that it authorizes a conviction for conduct which did not constitute a criminal offense. See Holloway v. State, 583 S.W.2d 376 (Tex.Cr.App.); West v. State, 567 S.W.2d 515 (Tex.Cr.App.); Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.); Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.).

We note that the court’s charge required the jury to find that appellant had “sexual contact” with the complainant. The term “sexual contact” was defined in the court’s charge as “any touching of the anus or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” If it be urged that in applying the law to the facts the court incorporated by reference the definition of “sexual contact” we note that the indictment alleges appellant engaged in sexual contact, “with intent to arouse and satisfy his sexual desire,” (emphasis added), while the definition of sexual contact in the jury charge speaks of an “intent to arouse and gratify the sexual desire of any person.”

We conclude, under these circumstances, that use of the term “sexual contact” in the charging portion of the charge was not sufficient to supply the omitted element as it appeared in the indictment.

The judgment is reversed and the cause is remanded.

McCORMICK, J., dissents.