By Randle Smolarz
Assistant Criminal District Attorney in Bowie County
The Texas Legislature created the offense of Continuous Sexual Abuse of a Child[1] to encompass the realities of child sexual abuse and protect vulnerable children in Texas. Although the legislature intended the statute to be flexible, its most inflexible aspect is the time element, which requires “during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims.”
The recent opinion from the Court of Criminal Appeals in Witcher v. State[2] tests the limits of the statute’s time requirement. In Witcher, the victim stated that the last sexual abuse occurred on July 28, 2018. Then she testified that the sexual abuse began “when [her brother] went to jail.” Her sister later testified that their brother went to jail on June 10, 2018, “give or take.”
To corroborate the date of the brother’s incarceration, the State asked a sheriff’s investigator about the dates in the indictment, and he “testified that the period of time alleged in the indictment was June 10, 2018, through July 28, 2018, and that he had confirmed that the brother was incarcerated ‘around that time.’” The victim was 11 years old at trial, and the evidence showed she had mental impairment. She testified consistently with the same language as at pre-trial meetings, and our strategy was to combine the victim’s ambiguous testimony with officers’ testimony about the dates; however, the evidence just did not come out as strong at trial. Even so, the State believed the testimony was sufficient to meet the time requirement or put on additional information about the day the brother went to jail.
The jury found the defendant guilty of continuous sexual abuse of a child. On direct appeal,[3] the court of appeals reversed, stating that the evidence was insufficient to show the start date of the abuse and the jury could only have speculated as to this date.
In a 5–4 decision, the Court of Criminal Appeals disagreed, reversed the intermediate court, and remanded. First, the CCA stated that a jury could find that “the day the victim’s brother went to jail,” approximately June 10, was sufficient to determine a start date of the abuse.
Second, the relevant time period was 30 days: Did the continuous sexual abuse take place over 30 or more days as required by the statute? There are 46 days between June 10 (when the brother went to jail) and July 28 (when the child said the last abuse occurred); subtract 30 from 46, and we’re left with 16 days of leeway. The Court held that the terms “around” and “give or take” do not mean more than 16 days, which would account for one-third or more of the relevant time period. “Consequently, the jury could have rationally inferred, without resorting to speculation, that the abuse began on June 26 or earlier,”[4] putting it within the 30-days-or-more requirement.
In dissent, Judge Keel (joined by three other judges) pointed out that the phrases “at some point,” “around,” “about,” “maybe,” “as close as possible,” or “give or take” amounted to equivocations. She cited Hooper v. State,[5] the seminal case for speculation versus inference. “An inference is a conclusion reached by considering other facts and deducing a logical consequence from them,” while “speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.”[6] Similarly to the court of appeals’ conclusion, Judge Keel concluded, “Given these equivocations, the jury had to guess about the meaning of the testimony, which means they had to speculate, and speculation will not support a finding beyond a reasonable doubt.”[7]
Takeaways and best practices
The “one third” mention in the CCA’s opinion suggests if the time period had been tighter than 16 days, the terms the victim used would have been considered speculation and not inference. Here, the CCA made a point to address each phrase describing the start date and hold that these words essentially (in this case) could not reasonably mean 16 days or more.
Even though the CCA allowed the inexact dates in this case, a much safer approach in future cases is to shore up the time period of the abuse with exact dates, especially if acts of sexual abuse occurred in a window tighter than 60 days. This is harder when a victim is younger—which, paradoxically, the Legislature attempted to account for when passing the Continuous Sexual Abuse of a Child statute. With younger children who do not know or use exact dates, the burden to provide contextual and descriptive events tied to real events becomes necessary to eliminate any ambiguity. A child victim equivocating on the stand is always a possibility—or, as here, the victim may have other issues that do not allow her to provide all the details.
Second, asking the lead investigator to confirm every element of the indictment may add a layer of corroboration that can save a case and support any sufficiency issue. After the Witcher case was submitted for PDR, I argued with our first assistant (who tried the case) that the officer’s testimony should not have any weight in this circumstance because the officer did not provide direct evidence about when the brother went to jail. I was apparently wrong. But on these tight-window cases, prosecutors should use all they can get.
Finally, from the perspective of a general statutory interpretation, the Court of Criminal Appeals basically stated that when a word (i.e., “when”) is used by a witness, it goes to the weight of the evidence and is purely a fact issue. Even with an ambiguity, the jury is free to believe whatever it deems credible.
Endnotes
[1] Tex. Penal Code §21.02.
[2] Witcher v. State, No. PD-0034-21 (Tex. Crim. App. Jan. 26, 2022).
[3] Witcher v. State, No. 06-20-00040-CR, 2020 WL 7483953, *4 (Tex. App.—Texarkana December 21, 2020) (not designated for publication).
[4] Witcher, No. PD-0034-21 at 5.
[5] Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
[6] Hooper at 16.
[7] Witcher, No. PD-0034-21 (Keel, J., dissenting) at 2.