The defense attorney just busted a panel on a charge of Continuous Sexual Abuse of a Child because too many jurors were unable to consider probation on the lesser included offense of Aggravated Sexual Assault of a Child (it is charged as continuous because of multiple agg. sex assaults.)

I argued that you can no longer get probation on agg. sex assault of a child so they need not consider it. My indictment alleges a criminal episode beginning Sept. 2nd 2007 and continuing into 2008, so its invoking the new laws as far as I'm concerned even on a lesser. The defense attorney argued that the jury could convict on a single lesser included agg sex assault that was "on or about" my charging date and yet still prior to the Sept. 1st amendment, and thus he could still receive probation. The judge went along with it and my entire panel proceeded to state they couldn't consider probation under those circumstances.

I'm having a hard time wrapping my head around this but under the defense's argument it sounds like you would always have to qualify a jury for probation on an agg. sex assault even under the new law because the statute of limitations is so long you could always date it back prior to Sept. 1, 2007. This can't be right can it? I'm trying to prevent this from happening again when we pick the next jury.

Seems to me that if you make it clear on the record that you are not prosecuting any conduct that occurred before 9/1, then probation is not possible. Besides, what evidence exists that could lead to a conviction only for the lesser? ("Your honor, if my client raped this child, he only did it once.") Perhaps the lesser is not even available.

Your busted panel does show why the Leg was justified in taking probation away for those sex crimes. One of the arguments presented to the Leg was that we end up with busted panels.

I believe it is possible to convict on a lesser of Agg. Sex Assault but I do not see how the jury can convict on that charge and find that it occurred prior to Sept. 1 2007. If the original charge of continuous abuse did not even exist until Sept. 1, '07 then how can anything prior to that be used as evidence of anything? If the jury believe that an agg. sex assault occurred only prior to sept. 1, 2007 then they should be forced to just find him not guilty.

I am trying to make it very clear that I am not prosecuting for anything prior to the charged date..I have filed a motion to amend that limits my offense date to "on or about Sept. 2, 2007, but no earlier than Sept. 1, 2007 through...2008. But my judge is essentially wanting some authority for limiting myself this way. He says I am indicting my way around "on or about."

Does anyone know of any caselaw that might support me on this?

Though it is not directly on point, Judge Overstreet's dissenting opinion may give you some guidance on where to start your research.

Yzaguirre v. State, 957 S.W.2d 38 (Tex. Crim. App. 1997)

I see no reason why the judge shouldn't accept your representation that you are prosecuting only for conduct that occurred on or after 9/1/09. Just put in indictment that offense occurred during time period that "began September 1, 2007, and concluded on (fill in end date)", leaving out "on or about".

For authority, look at Alberty v. State, 2008 WL 2747183. It's a Dallas case where the statute of limitations period encompassed when the defendant was a juvenile as well as an adult. The court said that the jury charge should have limited the "on or about" language so the jury could only consider the times when he was an adult. I don't see why the same principle wouldn't apply here. The jury could simply be instructed that "on or about" means any time after 9/1/07, within the SOL, and before presentment of the indictment.

It's my understanding all acts that occurred after September 2007 that were acts of Agg Sex Assault of a Child and Indecency with a Child are NON-PROBATION eligible offenses in the first place.

So the argument should have been "judge, any potential lesser includeds are non-probation offenses as well". Makes it a moot point.

I hope I got those dates right.

SAProsecutor, that's the argument I made that didn't fly with the court. The defense's argument is that an act of agg. sex assault committed on say, Aug 30th, 2007, is still "on or about" Sept. 1, 2007 because it is still within the statute of limitations, and since the act occurred prior to the law change he could get probation. I think if the jury believes nothing happened after Sept. 1, 2007 then it doesn't matter what happened before that date, it should just be a not guilty.

AndreaW the juvenile situation is a good analogy. I'm hoping that a pre-approved limiting instruction in the jury charge will lock us into only considering the law after Sept. 1.

Adam-- Then your judge is a nut. The voters voted for him or her, yet he or she is a NUT!

The questions being asked by the defense would not show a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, as to the punishment for the offense for which the defendant is being tried. Nor should any challenge for cause based thereon be granted under 35.16 (c). The language "on or about" has no effect on the elements of the offense (which can be committed only by conduct occurring after 8-31-07). The defense attorney is engaging in unethical conduct and the judge should know better.

I would want to get into any and all acts prior to Sept 1 to show prior relationship. Why not qualify the jury with a set agg sex assault facts that would be probation acceptable before the defense gets his shot?

TS, getting into earlier instances to show a prior relationship shouldn't entitle the defense to a lesser on the earlier instances. You would just give the jury a limiting instruction that those instances are only admitted to showing the prior relationship, and then instruct them in the charge that they can only convict for acts after 9/1/07.

Right AndreaW, but if the judge is letting the defense voir dir on the possibility of a lesser included prior to Sept 1, Adam has to work with the judge he has, so why not qualify them with a set of facts that could be considered probation appropriate based on the lesser included?

Oh, I agree that if you're going to have to go into it, it's better to do it first with your own set of facts. I just disagree that simply wanting to go into past acts would actually entitle him to a lesser where he would be probation eligible.