Duwe v. StateDuwe v. State
- Reporters:
- ,
- Before:
- Davis
Concurrence Opinion
concurring.
I totally agree that this cause should be reversed for the reasons stated by Judgе *806Davis in his majority opinion. I write only because there may be another trial and the additional reversible errors I have found may be revived on a second trial.
I will not elaborate, but will simply state that in my view the State and the trial court committed reversible error when the trial court permitted the prosecutor to question the appellant’s daughter concerning hearsay information that the appellant had implicitly, approximately 4 years prior tо the date of the incident in question, sexually molested the daughter. By this record, and in my view, the questions asked, standing alone, constitute reversible error. See Fentis v. State, 528 S.W.2d 590, 592 (Tex.Cr.App.1975); Tippins v. State, 530 S.W.2d 110, 111 (Tex.Cr.App.1975); Mounts v. State, 185 S.W.2d 731 (Tex.Cr.App.1945); Sensabaugh v. State, 426 S.W.2d 224, 227 (Tex.Cr.App.1968); Lamm v. State, 94 Tex.Cr.R. 560, 252 S.W. 535 (1923).
I аlso find that the State and the trial judge committed reversible error when the trial judge permitted the prosecutor to elicit hearsay and remote testimony from the witness Hunt. See Roman v. State, 503 S.W.2d 252 (Tex.Cr.App.1974).
I,therefore, strongly suggest, in the event of a retrial, that the prosecutor handling this cause closely examine the record of appeal in this cause in order that the same errors that occurred in this cаuse will not reoccur.
Lead Opinion
OPINION
TOM G. DAVIS, Judge.Appeal is taken from a conviction for indeсency 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 unassignеd 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 Grаnd 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 sexuаl contact with K_J_H_, a female under the age of seventeen years and nоt 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 cirсumstances 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, intentiоnally engage in sexual contact with K_J_H_, who was then and there a child younger thаn 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 аny person.” Such an omission of an essential element of the offense rеnders 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 thаt the court’s charge required the jury to find that appellant had “sexual cоntact” 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 аnother 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 incorporаted by reference the definition of “sexual contact” we note that thе indictment alleges appellant engaged in sexual contact, “with intent to arouse and satisfy his sexual desire,” (emphasis added), while the definition of sexuаl 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.