Sledge v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant has presented the issue in this case as involving a clash between the right to indictment by grand jury and the “on or about” pleading convention often used in cases involving sexual assault of a child. According to appellant, the question is whether the State may obtain a conviction by proof of a different act from the act upon which the grand jury indicted—indeed by proof of an act which the State has labeled “extraneous.” An examination of the record, however, reveals that absolutely nothing exceptional happened in this ease. The record supports neither Appellant’s account of the facts, nor his allegations of constitutional wrongdoing.

A grand jury indicted appellant for the offenses of aggravated sexual assault and indecency with a child pursuant to sections 22.021 and 21.11 of the Texas Penal Code.¹ The two-count indictment alleged that the offenses were committed in Tarrant County on or about August 31, 1988. Appellant waived trial by jury, and was subsequently convicted and sentenced to thirty and twenty years imprisonment respectively. The Second Court of Appeals affirmed the conviction. Sledge v. State, 903 S.W.2d 105 (Tex.App.—Fort Worth 1995). We granted appellant’s petition for discretionary review upon his claim that the trial court convicted him of conduct that did not appear in the indictment.² We will affirm.

I.

The record establishes that the indictment charged appellant with aggravated sexual assault and indecency with a child, alleging that the offenses occurred on or about August 31, 1988. Appellant filed a “Request for Notice of State’s Intention to Introduce Evidence of Other Crimes, Wrongs, and Acts.” See Tex. R.Crim. Evid. 404(b). The State filed its response to the extraneous offense motion, listing several instances of sexual abuse. At a pre-trial hearing on the motion, the State revealed that the conduct of appellant towards the victim had been continuous over several years. Appellant requested that the State elect the specific incidents for which it would seek conviction.

The State orally, in open court, informed the court and appellant that it would proceed on two specifically described episodes which occurred when the child was ten and eleven, because those incidents were most clear in her mind. The first episode was described by the prosecutor as an incident in which appellant undressed the child, laid her on her stomach, rubbed Vaseline on her anus and, among other things, attempted to penetrate her anally. In the second incident, appellant forced the victim to watch a pornographic movie with him and re-enact the scenes. During that episode appellant made the victim touch his penis and masturbate him, and he fondled her breasts.

The State explained that it had used the August 31, 1988 date in the indictment because “it was the last date that the defendant had contact with the victim.” The State argued that it could proceed on the two offenses because they fell within the ten year statute of limitation from the August 31,1988 date. See art. 21.02.³ Over appellant’s objection, the court stated that it would allow the State to introduce evidence of the two offenses elected⁴ at the pretrial hearing because they fell within the ten year statute of limitation. The court then commented on the lack of notice that this presented to appellant and, in an effort to remedy the situation, granted him a continuance in order to prepare a defense based on the designated offenses.

At trial, the State introduced evidence concerning only the two transactions it specified at the pre-trial hearing, proving that the alleged conduct occurred in 1986 and 1987. Appellant moved for an instructed verdict claiming that the State failed to prove its case because the incidents did not happen on or about August 31, 1988, as alleged in the indictment. Therefore, appellant argued, the offenses alleged in the indictment were distinct from those proven at trial. The trial court disagreed with appellant’s contention, overruled his motion for instructed verdict, and convicted appellant of the indicted offenses.

II.

On appeal, appellant challenged the legal sufficiency of the evidence based on his notion that, due to the discrepancies in the dates, the conduct proven at trial was extraneous to the conduct alleged in the indictment. The Second Court of Appeals stated that appellant was “entitled to know what specific act of misconduct [he] was required to defend against.” Sledge, 903 S.W.2d at 106. The court further explained that in cases involving more than one act of sexual misconduct against a child, the State must, upon proper request, choose the misconduct for which it will seek a conviction. Sledge, 903 S.W.2d at 106, citing Crawford v. State, 696 S.W.2d 903, 905 (Tex.Crim.App.1985).⁵ With those parameters in mind, the court found that, at the pretrial hearing, “the State elected two specific transactions upon which to proceed” and “[t]he State clearly informed the defense that those alleged offenses occurred two or three years prior to the date alleged in the indictment and involved two separate events.” Sledge 903 S.W.2d at 108. The Court of Appeals concluded that “the evidence was sufficiently limited to those transactions described by the State” at the pre-trial hearing. Id. at 109. The court went on to hold that the evidence was clearly sufficient to sustain appellant’s conviction. Id.

III.

In appellant’s first ground for review, he asserts that the Court of Appeals erred in holding that article 21.02 allows the State to convict a defendant based on unindicted,⁶ extraneous offenses identified as such through a pre-trial Rule 404(b) motion. He contends that the conduct proven at trial was extraneous because it happened in 1986 and 1987 rather than “on or about August 31, 1988” as alleged in the indictment. He claims that the allegation in the indictment related to a specific act that occurred in August, 1988. Appellant recognizes that the “on or about” language is construed broadly under art. 21.02, but argues that it should not be interpreted to include extraneous offenses. Appellant opines that the phrase “on or about” allows the State to bypass extraneous offense law and the requirement that a conviction be based on an indictment.⁷ Appellant asserts that by affirming the trial court, the Court of Appeals has condoned a conviction upon unindieted, extraneous offenses.

IV.

This Court has held that the State need not allege a specific date in an indictment. Mitchell v. State, 168 Tex.Crim. 606, 330 S.W.2d 459, 462 (1959). It is well settled that the “on or about” language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. See art. 21.02(6); Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App.1990) (“[t]he State is not bound by the date alleged in the indictment ... so long as the date proved is a date anterior to the presentment of indictment and the crime’s occurrence is not so remote as to be barred by limitation.”); Thomas v. State, 753 S.W.2d 688, 692 (Tex.Crim.App.1988) (“[wjhere an indictment alleges that some relevant event transpired ‘on or about’ a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.”)

In the instant ease, the dates of the offenses proven—1986 and 1987—are anterior to the presentation of the indictment on December 5, 1989, and are within the ten year limitation period. See art. 12.01(2)(D). Therefore under this Court’s construction of art. 21.02, it was allowable for the State to proceed on events that occurred in 1986 and 1987, even though the indictment alleged that the offenses occurred “on or about August 31,1988.”

Appellant argues that, nevertheless, under cases like those cited above, the State can ignore the constitutional requirement of grand jury indictment by proceeding on an offense of which the grand jury may not have heard evidence. There is, however, in this case no evidence that the testimony presented to the grand jury related to offenses other than those proven at trial.⁸ Contrary to appellant’s claim, it does not appear that there was an act that occurred in August of 1988, which was the subject of the grand jury’s true bill. Instead, the State picked the August, 1988 date solely because it was the last date appellant had contact with the child. In fact, the prosecutor said, “[Tjhere’s two offenses alleged and we intend to go on both of those offenses.” The clear implication is that the offenses alleged in the indictment were the same as the offenses designated pre-trial and then later proven at trial. Appellant’s argument that the State obtained a conviction on unindicted offenses thus fails because there is, in this case, no reason to believe that the offenses presented to the grand jury were different from the offenses proven at trial.

The second aspect of appellant’s claim is that the offenses proved were “extraneous” because the State denominated them as such in its R. 404(b) notice. In support of this contention, Appellant asserts that the same conduct alleged in the indictment appears under the heading “Extraneous Offenses” in the notice. He argues that because the State labeled the conduct “extraneous” it necessarily was extraneous and by definition could not qualify as the offenses for which appellant was charged. We disagree.

Labeling an offense “extraneous” for purposes of notice does not transform the character of the offense. But in this case, there is another reason appellant’s argument is not persuasive.

The R.404(b) notice lists seven episodes of misconduct. Those episodes designated in the notice as (2) and (3) are clearly the episodes which were described at the pretrial hearing. Although those two episodes are the same episodes upon which appellant was convicted, the specific acts alleged in the indictment—digital penetration of R.C.’s sexual organ and fondling of R.C.’s breasts—are not listed in the R. 404(b) notice. That is to say, appellant committed, on each of the two dates, a number of sexual offenses against the child. Of these acts, the State listed one (for each date) in the indictment; only the remaining acts were listed in the R. 404(b) notice. The first count of indictment alleged digital penetration of R.C.’s sexual organ, but' incident number (2) of the R. 404(b) notice alleged only anal penetration. The second count of the indictment alleged sexual contact by touching the breast, but incident number (3) of the R. 404(b) notice contained no allegations of breast contact. As to each of the two episodes, the State listed the uncharged acts, but not the charged acts, in the R. 404(b) notice. Appellant’s argument fails because the facts do not support his claim that the conduct for which he was convicted was labeled “extraneous” by the State.⁹

Appellant grounds for review are overruled. The judgments of the courts below are AFFIRMED.

1 . It should be noted that the judgment in this case reflects that appellant was convicted in count one of aggravated sexual assault and, in count two, of sexual assault. It is clear from the record, however, that appellant was convicted in count two of indecency with a child, not sexual assault.

2 . Specifically, we granted the following grounds for review:

(1) Did the court of appeals err in holding that TEX. CODE CRIM. PROC. ANN art. 21.02 (Vernon 1989) allows the State to convict a defendant based on an extraneous offense identified through a pretrial 404(b) motion? (1A) Did the court of appeals, sub silentio, extinguish the concept of extraneous offenses in the state of Texas?

(3) Did the court of appeals err in holding that art. 21.02 takes precedence over Art. I, § 10 of the Texas Constitution?

(3A) did the court of appeals err in holding that the petitioner's due process rights were not violated when the petitioner’s convictions rest on unindicted extraneous acts?

3 . All references to articles refer to the Texas Code of Criminal Procedure unless otherwise indicated.

4 . An "election” is more commonly understood to take place after the evidence is presented, and confusion is avoided by restricting the use of the term to those situations in which the State, after the evidence is presented, chooses a particular act upon which to seek conviction.

5 . Crawford held that the State must, on request, make an election after the evidence is presented.

6 . Appellant claims in his brief to this Court that, "... the Slate specifically stated, supra, that the prosecution in this case would proceed on an unindicted count.” Brief on petition for discretionary review at p. 9. This simply is not true. "Unindicted” is appellant’s characterization of the count, and the State neither “specifically stated” nor conceded that the counts were “unin-dicted.”

7 . Article I, § 10 of the Texas Constitution and the Fifth Amendment to the United States Constitution require that before trying a defendant for a felony, the State must first present the accusation to a grand jury. If the grand jury votes a true bill, it returns an indictment accusing the person named in the indictment of some offense. This concept is codified in Texas in article 1.05 of the Texas Code of Criminal Procedure.

8 . Judge Meyers’ dissent argues that in order to comply with our constitution, the State is required to prove that an offense occurred within a few days of the date alleged in the indictment. This is, of course, contrary to well-established law on the matter. Furthermore, such an interpretation of the constitutional provision would render prosecutions for offenses against children a virtual impossibility—it is not often that a child knows, even within a few days, the date that she was sexually assaulted. And, the younger the child, the greater the possibility that her abuser could never be convicted. In this case, for instance, the child victim was repeatedly sexually assaulted over a period of seven years, but she never could name an exact date of any of the offenses. If we were to adopt the reasoning of the dissent, appellant would be immune from conviction..

9 . The R.404(b) notice does include references to other occurrences of the acts for which appellant was convicted, e.g., he was convicted of fondling R.C.’s breast and number (5) of the notice includes an allegation of repeated instances of fondling her breast. But in order for that fact to render appellant’s conviction a "conviction of an extraneous offense”, we would have to come to the absurd conclusion that even if an act is committed more than once by an accused, the State may prove it only once—as an indicted act or as an extraneous act.