PD-0880-16 01/11/2017
"The 11th Court of Appeals panel erred by not addressing Appellant's argument in Appellant's Issue Number Two that evidence of an act committed in another state which did not violate a Texas penal law at the time of its commission, did not provide sufficient evidence to fulfil the statutory requirement that the state prove Appellant violated certain enumerated Texas Penal Laws two or more times during a specified period of time. A plain reading of the statute, Texas Penal Code §21.02, requires that each act must be proven to have been a violation of one of the penal laws enumerated in §21.02 at the time of its occurrence for that act to be used as one of the two or more acts required to prove Continuous Sexual Abuse. By omitting analysis of this issue, which was properly raised in Appellant's brief, the Appellate Court committed error."
Lee was convicted of continuos sexual abuse of a child involving two underlying instances of abuse—one in New Jersey and one in Texas. On appeal, he claimed that evidence did not support the "two or more acts" requirement for continuos sexual abuse because the New Jersey offense was outside Texas' territorial jurisdiction. The court of appeals disagreed, holding that the way an individual commits the acts is not an element of the offense. "[I]t is a manner and means by which the distinct offense of continuos sexual abuse is committed;" the "pattern" is evidentiary. Because one element of conduct occurred in Texas, there was jurisdiction over the continuous offense.
Lee contends that the court of appeals failed to apply the plain language of the continuous sexual abuse statute. It requires the use of underlying "acts of sexual abuse" that are a violation of enumerated Texas law addressing sexual abuse. So the proscribed conduct includes only what "is a violation" of a Texas statute at the time of the act.
