Andrew Valdez, III v. The State of Texas--Appeal from 185th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-065-CR

ANDREW VALDEZ, III,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 185th District Court

Harris County, Texas

Trial Court # 604,211

O P I N I O N

Appellant was indicted for aggravated sexual assault of a child. The indictment alleges in its pertinent parts that on or about May 23, 1986, Appellant did intentionally and knowingly cause the penetration of the female sexual organ of Belinda Valdez, a person younger than fourteen years of age and not his spouse, by placing his male sexual organ in her female sexual organ.

The proof showed that Belinda was the ten-year-old sister of Appellant who was seventeen years of age at the time of the alleged offense. Appellant pleaded not guilty to the offense. Trial on the first phase was had to a jury which found him guilty. Appellant elected to have the trial court assess the punishment. After a hearing, the court assessed his punishment at five years in the Texas Department of Criminal Justice, Institutional Division.

Appellant comes to this court on one point of error as follows: "The court erred in denying Appellant's request that the jury instruction be limited to the definition of culpable mental state to nature of the offense."

Appellant objected to the language in the court's charge which read in pertinent part:

"A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the female sexual organ of a child by any means."

"A person commits the offense of aggravated sexual assault if the person commits sexual assault, as hereinbefore defined, and the victim is younger than fourteen years of age."

. . .

"A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result."

"A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

"Now, if you believe from the evidence beyond a reasonable doubt that on or about the 23rd of May, 1986, in Harris County, Texas, the defendant, Andrew Valdez III, did then and there unlawfully, intentionally, or knowingly cause the penetration of the female sexual organ of Belinda Valdez, a person younger than fourteen years of age and not his spouse, by placing his male sexual organ in the female sexual organ of Belinda Valdez, then you will find the defendant guilty as charged in the indictment."

Appellant objected to all reference in the charge of Appellant's intent as to the result of Appellant's conduct. Appellant further requested the court to remove all reference in the charge concerning the circumstances surrounding the conduct, arguing that such language would confuse the jury and allow them to find Appellant guilty of a crime not charged, and/or to find Appellant guilty of an act which is not a crime. In other words, Appellant contends that aggravated sexual assault of a child is a "nature of conduct" offense rather than a "result of conduct" offense and that the definitions of the culpable mental states should have been so limited. We do not agree.

Appellant's contentions run directly counter to Article 6.03 of the Texas Penal Code, entitled, "Definitions of Culpable Mental States." Subsections (a) and (b) provide:

"(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result."

"(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result."

The trial court instructed the jury strictly in accordance with the hereinabove quoted parts of Article 6.03. Our Court of Criminal Appeals in McQueen v. State, (Tex. Crim. App. 1989) 781 S.W.2d 600 at page 603, has held that Article 6.03 delineates three "conduct elements" which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct." (Citations) The Court goes on to say: "An offense may contain any one or more of these `conduct elements' which alone or in combination form the overall behavior which the Legislature has intended to criminalize, and it is those `conduct elements' to which a culpable mental state must apply."

Aside from any of the above, Appellant's contentions in his point of error are foreclosed against him by our Court of Criminal Appeals opinion in Haggins v. State, (Tex. Crim. App. 1990) 785 S.W.2d 827 at page 828, which holds that injury to a child is a result-oriented crime.

In the case at bar, the charge authorized conviction if the jury found that Appellant did intentionally or knowingly cause the penetration of the female sexual organ of Belinda Valdez, a person younger than fourteen years of age and not his spouse, by placing his male sexual organ in the female sexual organ of Belinda Valdez. In other words, the court's charge only allowed conviction for conduct proscribed by the Penal Code and set forth in the indictment. Article 22.021(a)(1) and Article 22.021(a)(2)(B). We overrule the point of error.

The judgment of the trial court is affirmed.

JOHN A JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed March 31, 1993

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