Harris, Owen Thomas
2011 Tex. Crim. App. LEXIS 1510
| Tex. Crim. App. | 2011Background
- Harris filed a discretionary-review petition challenging the unit of prosecution for indecency with a child by exposure.
- The dissent agrees indecency with a child by exposure is a greater offense than indecent exposure, but disputes the unit-of-prosecution rule.
- The dissent argues the unit should be per child victim and per exposure, so multiple victims yield multiple offenses.
- The dissent distinguishes indecency with a child by exposure from indecent exposure, noting an actual child victim is an element of the former.
- The dissent relies on Huffman, Wallace, and Amador to support that a child victim defines the unit and that the indictment must name the victim.
- The procedural posture involves evaluating whether the greater-offense/lesser-offense relationship allows different units of prosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unit of prosecution for indecency with a child by exposure | Harris: unit is per child, per exposure. | State: unit alignment with the lesser offense may be appropriate; see Amador framework. | Unit is per child and per exposure. |
| Can greater and lesser offenses have different units of prosecution | Harris: units must be the same across related offenses. | State: greater/lesser offenses can have different units if extra elements supply a distinct unit. | Different units may exist between greater and lesser offenses. |
Key Cases Cited
- Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010) (addresses indecent exposure as a lesser-included offense of indecency with a child by exposure)
- Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (reckless mental state as to circumstances may be gravamen)
- Wallace v. State, 550 S.W.2d 89 (Tex. Crim. App. 1977) (failure to plead a specific victim not essential for indecent exposure)
- Jones v. State, 323 S.W.3d 885 (Tex. Crim. App. 2010) (framework for interpreting gravamen and legislative intent)
- Ex parte Lewis, 544 S.W.2d 430 (Tex. Crim. App. 1976) (history of fundamental defects regarding victim naming)
- Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004) (relationship of offenses in overlapping indecency contexts)
- Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999) (robust discussion of course-of-conduct and related offenses)