PD-0797-17 10/25/2017
1. “In light of significant statutory changes, does Nelson v. State have continued validity when interpreting § 21.11 of the Texas Penal Code?”
2. “Under § 21.11 of the Texas Penal Code, what is a ‘breast’?”
Arroyo was charged with multiple counts including indecency with a child by contacting the child’s breasts. At trial, the eighteen-year-old victim (who was in sixth grade at the time of the offense) testified that Arroyo touched her hair, then moved down her neck, and touched down her “chest.”
On appeal, Arroyo argued this testimony was insufficient to prove he touched her “breast,” the term used in the indecency-with-a-child statute, Penal Code § 21.11. The court of appeal agreed—relying on Nelson v. State, 505 S.W.2d 551 (Tex. Crim. App. 1974), which held that “chest” was broader than “breast”—and acquitted Arroyo on these counts.
The State argues that the court of appeals should not have adopted the reasoning of Nelson because the statute Nelson interpreted has been amended. Indecency can now be committed by touching a boy’s “breast.” This expansion suggests that any distinction between “chest” and “breast” has been abrogated. Dictionaries also list “chest” as one definition of “breast.” Thesauruses indicate they are synonyms. The State argues Nelson’s definitions are incompatible with § 21.11’s modern focus and scope.
