Public-domain · open source
OpenJurist

548 S.W.2d 30

Slavin v. State

Court of Criminal Appeals of Texas

Decided March 9, 1977

Court of Criminal Appeals of Texas · decided 1977-03-09

Key passage — most relied on by later courts

“It has been consistently 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. This specific intent is a material fact in the description of the offense that must be specifically alleged in the indictment and is not incorporated in an indictment by the allegations of the general culpable mental states of knowingly and intentionally. Thus, a conviction for indecency with a child requires proof of an additional material fact, the required specific intent, which is not required to be proven for a conviction for aggravated sexual assault under the instant indictment. Under the indictment before us, indecency with a child is not a lesser included offense. In finding appellant guilty of what the trial court believed to be a lesser included offense, the court acquitted the appellant of the primary offense.”

quoted by 1 later decision, including Ryan v. State

Relies on Reynolds v. State · Victory v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1977-03-09

How this case has been cited

Cited by 7 later decisions — most recently August 1997

7 state decisions

30197719801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

DALLY, Commissioner.

¶2 This is an appeal from a conviction for the offense of indecency with a child; the punishment, which is enhanced by prior felony convictions, is imprisonment for life.

¶3 The appellant asserts that the indictment is fundamentally defective. We agree. The State attempted to allege the commission of this offense in exactly the same words that we held to be insufficient in Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (Decided January 21, 1976, opinion on motion for rehearing delivered November 3, 1976).

¶4 The indictment in the case at bar in pertinent part reads:

“. . . did then and there knowingly and intentionally engage in sexual contact with V_R_F_, a child younger than 17 years and not then the spouse of the defendant, by touching the genitals of V-R-F-”

¶5 In Victory v. State, supra, the indictment was held to be defective because it failed to allege that the touching of the genitals of the named child was done with the intent to arouse or gratify the sexual desire of any person. It was there said that the indictment must allege the particular intent because it was a material fact in the description of the offense. Art. 21.05, V.A.C.C.P. Also, Art. 21.03, V.A.C.C.P. requires that everything should be stated in an indictment which is necessary to be proved. It is necessary to prove the specific intent required by the statute. V.T.C.A., Penal Code, Sec. 21.01(2).

¶6 Since the indictment omitted the necessary allegation of the particular intent, the indictment is fatally and fundamentally defective, and even though a motion to quash the indictment or a motion to dismiss the indictment was not filed, reversible error is presented. See Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 (Decided November 3, 1976).

¶7 The judgment is reversed and the prosecution on this indictment is ordered dismissed.

¶8 Opinion approved by the Court.

DOUGLAS, J., dissents.
/548/sw2d/30 · .json · Public domain