Pizzo, 235 S.W.3d 711 raises some questions in my mind. Does anyone think the legislature actually constructs statutes using the grammatic effort/foundation/thought pattern displayed by the court? Should separate violations of 21.11 (and similar statutes) now be set out in paragraphs or counts? Does the answer to that question depend on whether you want separate convictions?

My guess is everyone will have to agree that regardless of what they think he touched, the jury must necessarily have unanimously agreed Pizzo had the requisite intent to gratify and thus, he could not have been harmed by the charge error. The harm analysis should adopt Judges Price, Johnson and Cochran's construction of the statute. Otherwise there is no way to know whether the unanimity requirement was violated, even though every juror found conduct that qualified as sexual contact. Since Judge Cochran acknowledges the grammar test does not work invariably, in every scenario, to accurately identify legislative intent, the Corpus Christi court should feel free to go beyond eighth grade grammar in determining harm.

Pizzo was my aberration. I'm currently writing a brief on the harm analysis. We will see what happens. As for handling these cases in the future, I am charging each individual contact as a separate offense. If a defendant touches a child's left breast, that is one offense. If he then touches her right breast, that is a second offense. If he touches her genitals over the clothing, that is a third offense. If he then removes her clothes and touches her again, that is a fourth offense. Each offense will be charged in a separate count and is subject to stacking. Do I think the legislature ever intended this result as the CCA holds? No way.

Well, that is easier to break down than trying to define an "episode" of abuse. The alternative is to write an offense like the new "continuous sexual abuse" crime that consolidates all the abuse into a single ongoing offense. Of course, the result is a tougher punishment.

Interesting to watch the defendants decide whether to risk a trial on separate offenses and stacked punishments or a single ongoing crime and a monster punishment for sure.

Pizzo would have been a great case for CSA. The victim testified about several offense of Sex Asslt. "on the road" late at night. She did not know where she was (somewhere on I 45 between Dallas and Houston). I could not establish jurisdiction over those offenses. With the incidents I did have in my county, CSA would have solved this problem.