Under Texas law, a person who commits two or more acts of sexual abuse against a child younger than 14 years of age, during a period that is 30 days or more, can be tried and convicted for “continuous sexual abuse of a child.” This statute enumerated 8 sexual offenses that constitute acts of sexual abuse. Each enumerated offense is a felony.
The State of Texas charged that in 2012 Ronald Edgar Lee sexually abused his 9-year-old stepdaughter—once in New Jersey in June and the second time in Abilene, Texas in October. Lee reportedly told detectives with the Abilene Police Department that he had sexually abused the child in Abilene but denied any sexual abuse occurred in New Jersey. The child testified at Lee’s subsequent trial that her stepfather had sexually abused her once in New Jersey and only once in Texas.
Defense Objects to Out-of-State Act
Lee’s defense attorney formally objected to the use of the alleged New Jersey offense to support a Texas conviction for continuous sexual abuse of a child. The trial rejected this issue.
On appeal, Lee argued that the State had not proven that two or more acts of sexual abuse had occurred in Abilene (Taylor County). The appeals rebuffed this argument, saying the location or place where the sexual abuse is committed “is not an element of the offense of continuous sexual abuse of a child.”
In June 2016, the Eleventh District Court of Appeals, through its Chief Justice Jim R. Wright, affirmed the trial court’s ruling. The court supported its ruling by pointing out:
“The State did not, in count one, charge Appellant with separate criminal offenses of aggravated sexual assault – one offense in Texas and another New Jersey – it charged him with a completely different offense under a completely different provision of the penal code: continuous sexual abuse of a child.”
Texas Does Not Have Jurisdiction Over Offense That Occurs Wholly Outside State
Through this narrow lens, the appeal court said that it was not the place but the act that constitutes continuous sexual abuse of a child. The court relied upon Texas Code of Criminal Procedure, art. 31.01, which provides that “offenses committed wholly or in part outside this State, under circumstances that gives this State jurisdiction to prosecute the offender, may be prosecuted in any county in which the offender is found or in any county in which an element of the offense occurs.”
The court then concluded that in this case the State’s “only obligation” was to prove “by a preponderance of the evidence that the county of prosecution has venue.”
Court of Criminal Appeals Reverses Conviction
On October 4, 2017, the Texas Court of Criminal Appeals reversed the appeals court, finding that a defendant in Texas cannot be convicted for an act that “is a violation” of Texas law that is committed outside the state. The court crystalized its ruling this way:
“… Because ‘act of sexual abuse’ requires an act that ‘is in violation’ of Texas law, Appellant’s act in New Jersey may not be considered one of the predicate offenses necessary for a conviction under Section 21.02. We agree that Texas had territorial jurisdiction of continuous sexual abuse of a child, but the evidence was insufficient to sustain a conviction because only one violation of Texas law was proven, and that was the aggravated sexual assault committed in Texas.” In other words, the State must allege and prove that two distinct acts of sexual abuse, from those enumerated in the statute, and they must occur more than thirty days apart and be committed in Texas.
Remanded for New Punishment Hearing
The court reformed the trial court judgment to reflect that Lee had been convicted of aggravated sexual assault of a child and remanded the case for a new punishment hearing.
In June 2014, the jury that convicted Lee of continuous sexual assault of a child sentenced him to life without the possibility of parole. Aggravated sexual assault of a child is a first-degree felony in Texas, and because the victim in this case was over six years of age, Lee will face a sentencing range of 5 to 99 years, or life, but, this time, with the possibility of parole.