Factual scenario: 35 year-old woman has sex with 16 year-old boy (she's Mommy's friend). Though he never really gets into the specific details of who did what first, the boy testifies that it was truly consensual, and truly sex (one time it lasted roughly an hour and a half, and he said this happened on two separate occasions, which I think may be our saving grace).

The defendant testifies basically that there was only one "incident", that she was asleep, alone on the couch, and he woke her up, kissing her with his hand down her pants, and oops, her pants and panties were on the floor before she knew it and he was almost inside her (I don't think showing contact or penetration is a problem) by the time she realized what was going on, sat up, and told him to stop, which he did. She said that it was all over and done with within a minute or so. (He says it took an hour, she says it took a minute--sound familiar?)

The appellate issue: (After she gets found guilty by a jury--10 yrs probation, $10K fine) Did we show that the defendant acted voluntarily in committing this offense? This would be regarding the character of her physical actions, separate from mental state. She's basically saying that hey, whatever happened, she was just laying there, and didn't actually DO anything. (I would personally guess probably not twice and probably not for an hour and a half). The circumstantial end of things is about all I can come up with, and hopefully it will be enough, but I was curious if anyone else had dealt with one along these lines (either male or female, it seems like the flip side of things could perhaps still be the same issue).

There doesn't seem to be any Texas caselaw out there on this(and I have opposing counsel and a Westlaw research attorney agreeing with me on that, unfortunately). Any thoughts on the subject would be more than welcome.

Elizabeth Foley
Asst. Crim. D.A., Galveston County

Why isn't your victim's testimony enough to support the conviction? The jury was free to reject the defendant's testimony and I don't see how you can have a problem so long as the victim's testimony is sufficient to support the jury's verdict (and it sounds VERY sufficient to me).

Also, it does not seem the defendant was challenging anything more than a lack of free will. I think the facts show an absence of accident on her part. Brown, 89 S.W.3d at 633. But, the key point is the jury disbelieved her version of the events and the appellate court must defer to that determination even when viewing the factual sufficiency of the evidence.

[This message was edited by Martin Peterson on 08-17-04 at .]

Oh, I think probably we'll be OK on this, given all the other, peripheral stuff the complainant testified to. It's just that his description of "the act" isn't too helpful: "And we started to kiss again and then that led to intercourse". Actually, the appellant's not going the free will route, she seems to be saying that she literally did not DO anything, that she made no "physical bodily movements" that were illegal (her version is basically that she didn't get around to stopping him until the moment of contact, and that he was the one making the physical movements).

If you believe the complainant's version, as the jury obviously did, while he never does say that she actually did anything but kiss him, you've gotta wonder just what she WAS doing for an hour and a half while this was going on (faking a coma, filing her nails, avidly watching Jerry Springer reruns?). Logically, yes, she had to be participating. I was mostly just wondering if anyone had ever dealt with the issue in this context before; it seems kind of odd there's no caselaw on any similar fact situations.

Elizabeth Foley
Asst. Crim. D.A., Galveston County

Actually, I think you could easily show her alleged failure to move is conduct that but for the occurrence of which the result (penetration/indecency) would not have occurred. You know, the "harder to hit a moving target" theory. Maybe there is no case law because no one has ever claimed to be such a totally passive partner before, but that should not prevent her liability under 6.04(a) or 6.01(a).

Was the jury given a charge on "encouraging" under 7.02(a)(2)? Maybe that would be an alternative under your facts. That term seems broad enough to include the passive conduct the Defendant described.

Your case certainly brings new meaning to the phrase "I decided to let him have his way with me". Did the defendant or her attorney go to the Clayton Williams school of defense?