Johnson v. State

¶1dissenting.

¶2Believing the majority’s holding conflicts with the laws of the State of Texas which seek not to criminalize conduct that is without guilt, I dissent.

¶3I.

¶4“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in the freedom of human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). The requirement of a culpable mental state descended from the Eighteenth Century common-law theory that to constitute a crime there must be a “vicious will.” Id.,342 U.S. at 251, 72 S.Ct. at 244 (citing 4 Bl. Comm. 21). Speaking of the requirement of mens rea or “vicious will,” the Court stated:

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.

¶5Id.,Id., 342 U.S. at 251-252, 72 S.Ct. at 244.1

¶6The mandate of Morissettehas been expressly recognized by our Legislature in at least two statutory provisions. First, the Penal Code is to be construed, inter alia, to “safeguard conduct that is without guilt from condemnation as criminal.” Tex. Penal Code Ann. § 1.02(4).2 Second, virtually every offense enumerated in the Penal Code prescribes a culpable mental state. And in the rare offense where a culpable mental state is not prescribed, one is nevertheless required. Tex. Penal Code Ann. § 6.02(b).3

¶7*855An offense without a prescribed culpable mental state creates strict criminal liability. Strict liability offenses are disfavored because:

... [t]o punish conduct without reference to the actor’s state of mind is both ineffica-cious and unjust. It is inefficacious because conduct unaccompanied by an awareness of the facts making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventative or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.

¶8Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, Vol. I, p. 348. This stigma is especially severe in the case of a rape conviction. Herbert Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct. Rev. 107, 109 (1962).

¶9II.

¶10The question presented by the instant case is whether the offense of indecency with a child requires a culpable mental state as to the age of the complainant. At the times relevant to the instant case, Tex. Penal Code Ann. § 21.11 (West 1994) provided:

(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.

¶11Tex. Penal Code Ann. § 21.01(2) (West 1994) defined sexual contact as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”

¶12The concurring judge concludes the statute has plainly dispensed with a culpable mental state. However, that conclusion is not reached after considering the clear language of the statute. Rather that conclusion is reached only after consulting a twisted trail of legislative history, bolstered by previous versions of the statute, and suggestions as to the intent of the legislature when redrafting the law. Exhausting as his argument may be, he is unable to point to any language in the statute which “plainly dispenses” with a culpable mental state. And his footnote detailing myriads of cases where “this court and several lower courts have asserted that when the statute is merely silent as to a mental element, it has not plainly dispensed with one, and so one is nevertheless required,” undermines his conclusion. Ante, at 851-852, n. 2. In addition, the concurring judge’s opinion that “it is precisely the absence of a culpable mental state as to the victim’s age, when the legislature has prescribed mental elements as to other portions of the offense, that makes the legislative intent clear,” renders Tex. Penal Code Ann. § 6.02 a nullity. Ante at 852 (emphasis in the original). This “absence” does not elucidate the intent of the legislature, as posited by the concurrence.

¶13Contrary to the concurring judge’s position, the legislature has not plainly dispensed with the required culpable mental stated for the offense of indecency with a child. When the legislature has intended to dispense with this requirement, the intent is clear. For example Tex. Penal Code Ann. § 7.22: Criminal Responsibility of Corporation or Association, provides:

(a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:

*856(1) in this code where corporations and associations are made subject thereto;

(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or

(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.

¶14III.

¶15The instant case should be analyzed in light of two cases, one from the United States Supreme Court and the other from this Court.

¶16A.

¶17The first case is United States v. X-Citement Video, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), where the defendant’s mens rea as to the age of the participant was not a statutory element of the charged crime. Nevertheless, the Supreme Court extended the stated culpable mental state to every element within the offense. The statute in question provided, in relevant part:

(a) Any person who-

(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if-

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if-

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct.

¶18Id.,513 U.S. at 68,115 S.Ct. at 467.

¶19Even though a grammatical reading of the statute suggested the term “knowingly” only modified the surrounding verbs, the Court concluded the statute, when properly read, required the actor know the age of the performer. The Court reasoned:

Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.

¶20Id.,513 U.S. at 70, 115 S.Ct. at 468. In reaching their conclusion, the Court held:

A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as [New York v.] Ferber, 458 U.S., [747] at 765, 102 S.Ct., [3348] at 3359 [, 73 L.Ed.2d 1113 (1982)] (“As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant”); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); and Osborne v. Ohio, 495 U.S. 103, 115, 110 S.Ct. 1691, 1699, 109 L.Ed.2d 98 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress.

¶21Id.,513 U.S. at 78,115 S.Ct. at 472.

¶22The core of the statute was the age of the performer; “the age of the performers is the crucial element separating legal innocence from wrongful conduct.” Id, 513 U.S. at 73, 115 S.Ct. at 469. The Supreme Court could *857not have more plainly expressed the inherent difficulty with the statute’s lack of an intent element by holding the statute would probably not pass constitutional muster. The Court held it was their responsibility to interpret the statute in a way that would first pass constitutional considerations and not plainly dispense with congressional intent.

¶23In Texas, if there is a dispute over the meaning of the statute, the literal text of the statute controls. Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991). As the Boy-kin Court held, “the statute is the law in the sense that it is the only thing actually adopted by the legislators ...” Id.,818 S.W.2d at 785,(emphasis in the original). The reasons for this type of statutory interpretation were made clear in Boykin:

When attempting to discern this collective legislative intent or purpose, we necessarily focus our intention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment ... We focus on the literal text also because the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law. There really is no other certain method for determining the collective legislative intent or purpose at some point in the past, even assuming a single intent or purpose was dominant at the time of enactment. Yet a third reason for focusing on the literal text is that the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted, (emphasis in the original).

¶24Boykin, 818 S.W.2d at 785.

¶25Consequently, the majority is incorrect when they state: “Had the Legislature intended to make a provision regarding the knowledge of the victim’s age it would have expressly included the requirement within Section 21.11 of the Texas Penal Code.” Ante, at 849-850. This type of interpretation conflicts with Boykin, supra,and fails to acknowledge the existence of Tex. Penal Code Ann. § 6.02.

¶26B.

¶27The second case is McQueen v. State, 781 S.W.2d 600 (Tex.Cr.App.1989), which considered the culpable mental states associated with the offense of unauthorized use of a motor vehicle. For commission of such an offense, three elements were required to be proven: “(1) that a defendant operated a motor-propelled vehicle; and, (2) that he knew he was operating the vehicle; and, (8) that he did so without the permission of the owner." Id.,781 S.W.2d at 602. The McQueenCourt held the State was required to prove McQueen operated the motor vehicle knowing such operation was without the owner’s effective consent. Ibid.Otherwise, unauthorized use of a motor vehicle would be a strict liability offense because:

... once the State proved that the vehicle was operated at all, the requisite mental state with regard to the nature of conduct would be self-proved, (we cannot foresee any time one would operate a vehicle unintentionally or unknowingly), and the defendant would be held liable regardless of anyone’s awareness of the owner’s consent or lack thereof. To require culpability only as to the otherwise lawful act of operating a vehicle wholly fails to ‘safeguard conduct that is without guilt from condemnation as criminal.’

¶28Id.,781 S.W.2d at 604. The Court’s reasoning for requiring the culpable mental state for each element of the offense was:

... what separates lawful operation of another’s motor vehicle from unauthorized use is the actor’s knowledge of a “crucial circumstance surrounding the conduct”— that such operation is done without the effective consent of the owner. Accordingly ... we believe Sec. 6.03(b) requires proof of the actor’s knowledge of this circumstance.

Further support for this proposition comes from (V.T.C.A., Penal Code, Sec. 1.02(4), one of the basic objectives of the Penal Code: 4) to safeguard conduct that is without guilt from condemnation as criminal;

¶29Id.,781 S.W.2d at 604.

¶30C.

¶31In light of X-Citement Videoand McQueen, the law may be stated as follows: *858If the conduct itself is not illegal, i.e., operating a motor vehicle, then a culpable mental state regarding the circumstances of the offense is required.

¶32IV.

¶33A.

¶34With the foregoing in mind, consider the instant case where the 19 year old appellant engaged in consensual sexual intercourse with the complainant, a 12 year old girl. Appellant was told by the complainant and her friend that the complainant was 17 years old. Several witnesses, including the complainant herself, testified she frequently told people she was older than 12. The evidence also showed the complainant appeared to be older than her chronological age. There was also evidence of several telephone calls by the complainant entreating appellant to engage in sexual intercourse. The day after the sexual intercourse, the complainant informed her mother and appellant was subsequently arrested and charged with aggravated sexual assault of a child and indecency with a child.

¶35At trial, appellant admitted to engaging in sexual intercourse with the complainant but testified that he did not know she was under 17 years of age. Appellant requested a jury charge on mistake of fact. Tex. Penal Code Ann. § 8.02. The trial judge denied the requested instruction. During their deliberations, the jury sent out the following note:

Does “intentionally or knowingly” refer to what he did with his penis i.e.: inadvertent contact vs. intentional contact or does “intentionally or knowingly” cause the penetration of the female sexual organ of a child refer to knowing that she was a child? We have to understand the meaning of the law.

¶36The trial judge did not answer the question and appellant was convicted of the lesser charged offense, indecency with a child. The range of punishment for that offense is from two to twenty years imprisonment and a possible fine of up to $10,000. Tex. Penal Code Ann. §§ 21.11(a)(1), (e), and 12.33. The jury assessed the minimum punishment allowed by law, two years probation with no fine.

¶37On appeal, appellant argued that knowledge of the complainant’s age was required for conviction and the trial judge erred in denying the mistake of fact charge. The Court of Appeals restated appellant’s argument:

Johnson argues that a culpable mental state which does not require knowledge of the complainant’s age “miss[es] the whole point of the offense.” He notes that the act in question is not criminal unless the complainant is under the age of 17. He then argues that the intent or knowledge that the person is under 17 should be the required culpable mental state which makes the act an offense. We admit that Johnson’s logic is reasonable. The current state of the law, however, is not based on a fault in Johnson’s logic, but instead on a countervailing public policy.

¶38Johnson v. State, No. 2-95-384-CR, slip op. pp. 8-9 (Tex.App. — Fort Worth July 18, 1996)(not designated for publication). The Court of Appeals affirmed the judgment of the trial court stating: “because we find that a mistake about the age of a child has no bearing on the requisite culpable mental state for indecency with a child, we hold that mistake of fact is not a proper jury charge_” Id., at 10.

¶39B.

¶40The instant case should be resolved using the reasoning of X-Citement Video, supra,and McQueen, supra.Consistent with those holdings, a crime cannot be completed by mere conduct, in this case consensual sexual intercourse, without proving a culpable mental state regarding the circumstances of the offense. This is especially true in light of Tex. Penal Code Ann. § 1.02(4), where the objective of the Code is “to safeguard conduct that is without guilt from condemnation as criminal.” 4 If a conviction for the offense *859of unauthorized use of a motor vehicle cannot rest on the mere operation of the vehicle, a conviction for indecency with a child cannot rest on the mere act of consensual sexual intercourse.

¶41Operating a vehicle is not per se illegal and neither is consensual sexual intercourse. The age of the child is “the crucial element separating legal innocence from wrongful conduct.” X-Citement Video, 513 U.S. at 73, 115 S.Ct. at 469. Because the gravamen of the offense of indecency with a child is the age of the complainant, the defendant must have knowledge of that age in order to suffer criminal liability.