Sanchez v. State

¶1filed a concurring opinion.

¶2I do not join footnote 7 of the Court’s opinion, in which it is said that Penal Code § 39.03(a)(3) “does not require the perpetrator to intend that the conduct be unwelcome,” but only that “he intends sexual conduct that he knows is unwelcome.” The Court “finds” this to be so, “[gjiven the structure of the statute and its apparent purposes.”

¶3The structure of the statute supports an opposite conclusion. Subsection (a)(1) has two culpable mental states; it is an offense for a certain person “intentionally” to subject another to conduct “that he knows is unlawful.”1 Subsection (a)(2) has two culpable mental states; it makes it an offense for a certain person “intentionally” to engage in certain conduct “knowing his conduct is unlawful.”2 Subsection (a)(3) has one culpable mental state: “intentionally.” It never uses the word “knowing,” nor does subsection (c).3 If the legislature *693wanted to make it an offense to intentionally engage in conduct that the actor knew was unwelcome, it conspicuously failed to do in subsections (a)(3) and (c) what it naturally and clearly did in subsections (a)(1) and (2).

¶4As to the purpose of the statute, the Court assures us that “the perpetrator ... may in fact wish that the conduct were welcomed by the recipient.” I shall not question the Court’s knowledge that there are such persons. I shall not deny that it would have been a fíne thing for the legislature and the governor to have made the conduct of such persons an offense; it may be that a statute that did so would have been better than the one we have. But it is really unacceptable for the Court to hold that, if the statute means what it says, it would cause “absurd results” because it “would cover few instances of sexual coercion” — only those that are committed with “something in the nature of sadistic intent.”4 The holding begs the question; the Court can say that an instance of unintentional sexual conduct is “coercion” only by assuming that the legislature wanted to define that instance as coercion, which is assuming the point that is at issue. Worse, it is self-contradictory; the Court cannot say in one breath that a statute can be construed in a reasonable fashion, namely to reach sadistic, intentional conduct, and in the next breath that that construction leads to absurd results. The statute might not cover conduct as the Court wants, but that is not the same as its being absurd. We are not the legislature; we must deal with the statute that the legislature and the governor enacted. And that statute says it is an offense if a certain person “intentionally subjects another to ... unwelcome ... conduct of a sexual nature.” I see no room in that language for a culpable mental state other than intent.