Victory v. State

547 S.W.2d 1

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1977
• Docket: 50764
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for indecency with a child. Punishment was assessed by the jury at two years.

At the outset, appellant contends the court erred in overruling his motion to quash the indictment.

The pertinent portion of the indictment alleges that appellant did

“then and there knowingly and intentionally engage in sexual contact with J_V_, a child younger than 17 years and not then the spouse of the Defendant, by touching the genitals of the said J_V-”

Appellant urges that the “intent to arouse or gratify the sexual desire of any person” is an element of the offense and that the indictment is defective for failure to allege such culpable mental state.¹

V.T.C.A. Penal Code, Sec. 21.11(a)(1) defines the crime of indecency with a child:

“(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.”

The term “sexual contact" for the purposes of this chapter of the Penal Code is defined by V.T.C.A. Penal Code, Sec. 21.-01(2):

“(2) ‘Sexual contact’ means any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person.”

Article 21.05, V.A.C.C.P. provides that, “Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; . ..” See Worthington v. State, Tex.Cr.App., 469 S.W.2d 182.

The State cites Middleton v. State, Tex.Cr.App., 476 S.W.2d 14, where an indictment charging theft of mercury under Art. 1436b, V.A.P.C. was held not to be void on its face where it failed to aver that accused intended to deprive the owner of the value of the alleged stolen property. We find Middleton distinguishable from the instant case since Art. 1436b, supra, under which prosecution was had in Middleton, provided, “. . . and for the purpose of this

Act, the word ‘steal’ shall mean to take wrongfully and without just claim of authority any mercury, and the word ‘steal’ need not be defined in any indictment for the prosecution of any offense hereunder.” (Emphasis supplied)

The Legislature has not seen fit to provide that a key word shall dispense with the necessity of averring a necessary culpable state of mind under the offense charged in the instant case.

We find that the court erred in overruling appellant’s motion to quash the indictment.

The judgment is reversed and the cause dismissed.

Opinion approved by the Court.

1 . See New Texas Penal Code Forms, Sec. 21.11A, “Indecency with a Child—Sexual Contact” (W. Morrison & T. Blackwell, 1973).