Johnson v. State

967 S.W.2d 848, 1998 Tex. Crim. App. LEXIS 39, 1998 WL 131225

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1998
• Docket: 1399-96
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge,

delivered the opinion of the Court

joined by MANSFIELD, KELLER, HOLLAND and WOMACK, Judges.

Appellant was convicted by a jury of the offense of indecency with a child and the jury assessed punishment at confinement for two years, probated for a period of five years. In an unpublished opinion, the Court of Appeals affirmed appellant’s conviction. Johnson v. State, No. 02-95-384-CR (Tex.App. — Fort Worth July 18, 1996 pet. granted)(not designated for publication). This Court granted review to determine whether the offense of indecency with a child requires a culpable mental state relating to the child’s age. We will affirm.

The statute relevant to this issue is Section 21.11 of the Texas Penal Code. Section 21.11(a)(1) and (2) states in pertinent part that:

“(a) 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:

“(1) engages in sexual contact with the child; or

“(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”

Appellant argues that touching the anus, breasts, or genitals is only a crime if the circumstances of the act make it a crime. He claims that indecency with a child is a circumstances of the conduct crime which is different when compared to the nature of the conduct or result of the conduct crime, as evidenced in the offenses of gambling and murder respectively. In the instant case, appellant contends that his culpable mental state attaches to the circumstances surrounding the conduct, the child’s age. Appellant relies on McQueen v. State, 781 S.W.2d 600 (Tex.Cr.App.1989), where this Court held that unauthorized use of a vehicle is a circumstances of conduct crime, and that the culpable mental state attaches not only to the conduct of the operating the vehicle, but also to the circumstances surrounding the conduct, that the operation is without the consent of the owner. Appellant therefore argues that a defendant must intentionally operate the vehicle, knowing the operation is without the owner’s consent. Appellant compares McQueen with the instant case in that he should not be guilty unless he knew the victim was under age 17. He contends that the rationale used in McQueen should be applied to indecency with a child.

However, this Court has previously held that in cases involving the sexual assault of a child, such as rape of a child or indecency with a child, the State is not required to show that appellant knew the victim to be younger than 17 years of age. In fact, this Court held in Vasquez v. State that, “[I]t follows that to require the State to allege and prove the appellant know the prosecutrix to have been under the age of 17 would establish ignorance or mistake as a defense in contravention of the clear legislative intent.” Vasquez v. State, 622 S.W.2d 864, 866 (Tex.Cr.App.1981). Had the Legislature intended to make a provision regarding the knowledge of the victim’s age it would have expressly included that requirement within Section 21.11 of the Texas Penal Code. Absence of such express language proves otherwise.

This Court in Roof v. State 665 S.W.2d 490, 492 (Tex.Cr.App.1984) again concludes that, “[Gjiven our case law and legislative tradition running squarely against appellant’s notion that the State must prove his knowledge of the victim’s age, and given the failure of the Legislature to specifically require such knowledge when it required knowledge of the victim’s presence, appellant’s position must fail.” In case after case, this Court has held that the State is not required to show that appellant knew the victim to be under the age of 17.¹ This rule is well established and we therefore find that it is dispositive of the issue in the case at bar.

For the reasons stated above, appellant’s sole ground of review is overruled. The judgment of the Court of Appeals is affirmed. ■

PRICE, J., filed a concurring opinion joined by MEYERS, MANSFIELD and WOMACK, JJ. BAIRD, J., filed a dissenting opinion. OVERSTREET, J., dissents.

1 . See Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977)(this Court rejected an accused's contention that the indictment under V.T.C.A. Penal Code, Sec. 21.11(a)(1),(which prohibits engaging in sexual contact with a child younger than 17), failed to allege all the elements of the offense when it failed to allege the defendant's knowledge that the victim was a child); Green v. State, 571 S.W.2d 13 (Tex.Cr.App.1978)(the defendant contended that the indictment under which he was charged failed to allege an offense under Sec. 21.11(a)(2), this Court found the indictment sufficient even though it did not allege that the defendant know his victim was under 17 years of age).