Out-of-state acts not applicable for assault statute

Lorenzo Z Garcia, Volume 50 Staff Member


The issue in this case was whether the commission of an out-of-state aggravated sexual assault will support a conviction for continuous sexual abuse of a child. The Court of Criminal Appeals held out-of-state acts cannot support such a conviction because only acts violating Texas law meet the statutory definition of “sexual assault”.

In Lee v. State, Lee was charged with continuous sexual abuse after his ten-year-old stepdaughter, found watching sexually explicit videos on YouTube by her mother, told her mother that Lee sexually abused her. At trial, Lee’s stepdaughter testified that Lee penetrated her with his sex organ twice: first in New Jersey during June 2012 and again in Texas during October 2012. Lee’s counsel argued that two or more violations of Texas law is an essential element of continuous sexual abuse that was unmet because the first abusive action occurred in New Jersey. The court of appeals held that the location where the sexual abuse occurred was not an element of the offense, affirming Lee’s conviction.

Texas Penal Code § 21.02 states that a person commits continuous sexual abuse if “during a period of 30 or more days in duration the person commits two or more acts of sexual abuse”, which are any acts that violate one or more of the listed Texas penal laws. Tex. Penal Code Ann. § 21.02 (West 2015) (emphasis added). And Texas Penal Code § 1.04(a)(1) states that Texas has jurisdiction over an offense if “either the conduct or a result that is an element of the offense occurs in [Texas]”. Id. § 1.04(a)(1).

The Court compared the present case to Rodriguez v. State, in which the court upheld the capital murder conviction of a defendant that kidnapped his victim in Texas but killed him in Mexico. The state had jurisdiction in Rodriguez because Texas’ law for capital murder applies to a person who commits murder during another offense, such as kidnapping, that occurred in Texas. The Court distinguished Lee’s case from Rodriguez by emphasizing that § 21.02, unlike the capital murder statute, requires a party to perform at minimum not one, but two contemptible acts in Texas—where they are subject to Texas penal law.

Thus, the Court held the evidence was insufficient to convict Lee of continuous sexual assault because Lee’s act in New Jersey could not violate § 21.02.

In his concurrence, Judge Yeary discussed the possibility of reading the statute to include a contingency in which an out-of-state act that would be an act of sexual abuse if committed in Texas would nevertheless trigger liability under Texas law. He further notes that other states have created statutes that expressly include this contingency. Finally, he criticizes the majority for failing to discuss the legislative intent of the statute’s drafters.

Lee v. State, No. PD-0880-16 (Tex. Crim. App. Oct. 10, 2017).