Opinion
NO. 03-16-00061-CR
08-18-2016
Nelson Michael Daniel, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 73661, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDINGMEMORANDUM OPINION
Nelson Michael Daniel was indicted for continuous sexual abuse of a young child. See Tex. Penal Code § 21.02. He pleaded guilty to aggravated sexual assault. See id. § 22.021. Daniel also pleaded true to an allegation of a prior felony conviction, and the trial court sentenced him to 40 years' imprisonment. In his sole point of error, he contends that the trial court lacked jurisdiction to render its judgment of conviction because the offense he pleaded guilty to is not a lesser-included offense of the offense for which he was indicted. We will affirm the trial court's judgment.
"[I]t is well settled that a valid indictment, or information if indictment is waived, is essential to the district court's jurisdiction in a criminal case." Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980) (orig. proceeding); see Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009) ("[S]ubject-matter jurisdiction requires both a general grant of authority to the trial court and a charging instrument that invokes that jurisdiction over the particular case."). Therefore, "[a] trial court has no jurisdiction to convict a defendant of an offense not charged in an indictment unless that offense is a lesser included offense of the crime charged." McLeod v. State, 56 S.W.3d 704, 708 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Here, we must reverse the trial court's judgment if aggravated sexual assault, the offense for which Daniel was found guilty, is not a lesser-included offense of continuous sexual abuse of a young child, the offense alleged in the indictment.
"An offense is a lesser included offense if . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged . . . ." Tex. Code Crim. Proc. art. 37.09(1). Texas courts use the "pleadings approach" to determine whether one offense is a lesser-included offense of another. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Under this approach, "the elements and the facts alleged in the charging instrument are used to find lesser-included offenses." Id. That is, courts determine whether the elements of the purported lesser-included offense may be deduced from the "statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense." State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). Moreover, "the elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment." Id.
The indictment against Daniel alleged that he committed two or more acts of sexual abuse against the complainant, a child younger than 14 years of age, and described those abusive acts as follows:
indecency with a child, namely, with the intent to arouse or gratify the sexual desire of said defendant, engage in sexual contact with [the complainant] by touching the genitals of [the complainant] with the hand and fingers of said defendant
indecency with a child, namely, with the intent to arouse or gratify the sexual desire of said defendant, engage in sexual contact with [the complainant] by touching the genitals of [the complainant] with the mouth and tongue of said defendantSee Tex. Penal Code § 21.02(b) (listing elements of continuous sexual abuse of young child).
indecency with a child, namely, with the intent to arouse or gratify the sexual desire of said defendant, engage in sexual contact with [the complainant] by touching the anus of [the complainant] with the mouth and tongue of said defendant
indecency with a child, namely, with the intent to arouse or gratify the sexual desire of said defendant, cause [the complainant] to engage in sexual contact by causing the said [the complainant] to touch the genitals of the defendant
We must therefore determine whether the elements of aggravated sexual assault may be deduced from these allegations. Either of the following acts constitutes aggravated sexual assault if, in addition, the victim is younger than 14 years of age:
Tex. Penal Code § 22.021(a)(1)(B)(iii): the person "intentionally or knowingly . . . causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor"
Tex. Penal Code § 22.021(a)(1)(B)(iv): the person "intentionally or knowingly . . . causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor"
We conclude that the required elements for each of these methods of committing aggravated sexual assault may be deduced from the indictment's factual allegations. The "intentionally or knowingly" requirement of each method of aggravated sexual assault is satisfied by the indictment's allegations that Daniel performed each enumerated act "with the intent to arouse or gratify" his sexual desire. The indictment alleges that Daniel "engage[d] in sexual contact with [the complainant] by touching the genitals of [the complainant] with [his] mouth and tongue," satisfying the requirement that he cause "the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person," see id. § 22.021(a)(1)(B)(iii). The indictment also alleges that Daniel "engage[d] in sexual contact with [the complainant] by touching the anus of [the complainant] with [his] mouth and tongue," satisfying the requirement that he cause "the anus of a child to contact the mouth, anus, or sexual organ of another person." See id. § 22.021(a)(1)(B)(iv). In addition, the indictment alleges that the complainant was younger than 14 years of age, satisfying that element of aggravated sexual assault. See id. § 22.021(a)(2)(B). Because the indictment's allegations satisfy each element of aggravated sexual assault, we conclude that, in this case, aggravated sexual assault is a lesser-included offense of continuous sexual abuse of a young child as alleged in the indictment.
Despite this correspondence between the indictment's allegations and the elements of aggravated sexual assault, Daniel argues that aggravated sexual assault is not a lesser-included offense for several reasons. First, he argues, "The indictment contains no language concerning penetration." However, penetration is not a required element of aggravated sexual assault because contact alone also satisfies the statutory requirements. See, e.g., id. § 22.021(a)(1)(B)(iii) ("causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person") (emphasis added). Second, Daniel argues, "The indictment contains no language concerning contact other than the concept of sexual contact unique to the offense of indecency with a child by contact," citing the Penal Code provision for indecency with a child. See id. § 21.11. However, Daniel has failed to explain how "contact" as used in section 21.11 or section 22.021 means anything other than touching, and the indictment alleged that Daniel touched the complainant's genitals and anus. Third, Daniel argues, "There is no allegation [in the indictment] of causation, namely, that Daniel caused the complainant's genitals and anus to contact or penetrate his mouth or tongue." However, the indictment does allege causation because it alleges that Daniel "engaged in sexual contact with [the complainant] by touching" the complainant, and intentionally touching someone is the same as causing them to touch the actor. See Pizzo v. State, 235 S.W.3d 711, 718 (Tex. Crim. App. 2007) (noting that person has committed aggravated sexual assault if person "touches the anus, breasts, and genitals of a child with the requisite intent"). Finally, Daniel argues that "there is no allegation the conduct was intentional or knowing as required by the aggravated sexual assault statute." However, we have already concluded above that the "intentionally or knowingly" requirement of the aggravated-sexual-assault statute is satisfied by the indictment's allegation that Daniel performed the alleged acts "with the intent to arouse or gratify [his] sexual desire" (emphasis added).
Because we conclude that aggravated sexual assault is a lesser-included offense of continuous sexual abuse of a young child as alleged in the indictment against Daniel, we reject Daniel's argument that the trial court lacked subject-matter jurisdiction to render judgment against him. Accordingly, we overrule his sole point of error.
CONCLUSION
We affirm the trial court's judgment of conviction.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: August 18, 2016 Do Not Publish