The cca today extended the Vick doctrine (one statutory penal code section can encompass many penal offenses) to indecency. See Pizzo
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=15945

Is the bottom line that any "conduct oriented" offense will likely contain multiple offenses rather than manners and means?

I've always felt like Vick was wrong and that there should be an overwhelming presumption that a penal code section contained only one offense. The "8th Grade grammar" approach also seems to lead to arbitrary results. See Pizzo, (Price, J., concurring).

Admittedly, that disdain for Vick is in tension with approval for Watson v. State, 900 S.W.2d 60 (Tex. Crim. App. 1995) (cocaine and heroin possession are different offenses). But it would be very hard to create a separate section for each one of those drugs in the Health & Safety Code. In contrast, if the Legislature wanted to create four kinds of indecency with a child offenses they could just have created sections 21.11A, 21.11B, 21.11C, and 21.11D.

Maybe we should try to get the Legislature to say in TPC 1.05 that each statutory section includes only one offense.

Why? Is it so hard to plead each act of sexual abuse in a separate count? And, having done so, isn't it better to get those multiple convictions and punishments, so that the judge may consider stacking the sentences?

Well, it has the potential to create a myriad of pleading problems -- we will now have to plead separate counts for what used to be mere paragraphs, and every possible variation of lesser included offense (under Hall); it will make quite a few court charges difficult, if not impossible, for juries to decipher; it creates double jeopardy issues down the road; and most troubling, it has the potential to tie up more juries in unanimity problems.

Well, if the offense is ongoing, you might be able to solve all those issues by consolidating all the sexual abuse into a single case of Continuous Sexual Abuse Against a Child or Children. And, then, the jury does not need to make a unanimous agreement as to the same acts of sexual abuse. They only need to unanimously agree that the defendant committed any two acts of sexual abuse in a time period of 30+ days.

I suppose it is unlikely that many of the thousands of defendants who were convicted under disjunctively pled indecency counts will be entitled to habeas relief based upon an alleged violation of their constitutional right to a unanimous verdict. See Frazier v. Dretke, 145 Fed.Appx. 866 (5th Cir. 2005) (discussing preservation requirement and Ex parte Frazier, 67 S.W.3d 189 (Tex. Crim. App. 2001)).

I also suppose that other states go through this process. Cloyd v. State, 943 So.2d 149 (Fla.App. 2006) (HN42), review denied 959 So.2d 715 (Fla. 2007). I just don't relish waiting to hear from on high whether each statute in the Penal Code contains multiple offenses.

I would have never guessed that the indecency statute contained separate offenses. They held that because a single element had three definitions that each definition was a separate offense. Isn't "sexual contact" by definition the element and breast touching, anus touching and genital touching, the means? See Schad v. Arizona, 501 U.S. 624, 628, 111 S.Ct. 2491, 2495 (1991) ("The Arizona statute applicable to petitioner's case defined first-degree murder as 'murder which is ... wilful, deliberate or premeditated ... or which is committed ... in the perpetration of, or attempt to perpetrate, ... robbery.'"; held: the different ways of committing murder were manners not elements).

In fact, Pizzo seems to contradict itself. First, the opinion adopts Judge Cochran's idea in Jefferson that phrases following the word "by" are normally manners and means. Compare Jefferson v. State, 189 S.W.3d 305, 316 (Tex. Crim. App. 2006) (Cochran., J., concurring) ("Generally, adverbial phrases, introduced by the preposition "by" describe the manner and means . . . .") with Pizzo, 2007 WL 2781662 at *2.

Pizzo then says that the forms of touching in the indecency statute do (implicitly) follow the word "by." Pizzo, 2007 WL 2781662 at *4 ("Although the statutory text does not include the preposition 'by' as an introduction to the word 'touching,' it is implied. To conceptualize this, the definition of 'sexual contact' in Section 21.01(2) can be plugged into the text of Section 21.11(a)(1), resulting in the following: '(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child by any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.....'"). But for some reason the implicit "by" does not indicate that the forms of touching are manners and means. Pizzo, 2007 WL 2781662 at *6 ("Sexual contact" as defined in Section 22.01(B), criminalizes three separate types of conduct . . .").

By the logic of Pizzo, isn't .08-DWI a separate offense from loss-of-faculties-DWI? See generally Nelson v. State, 149 S.W.3d 206, 210 (Tex.App. -- Fort Worth 2004, no pet.) ("DWI . . . is a conduct-oriented offense.").

I've also never understood the repeated emphasis (since Vick) on the use of the word "or" in a statute. How would they like the Legislature to connect alternative manners and means of committing an offense? It reminds me of Monty Python's "splunge." http://www.ibras.dk/montypython/episode06.htm ("It means ... it's a great-idea-but-possibly-not-and-I'm-not-being- indecisive!"). We need a word that means "or" but not "or" in the sense of creating a separate offense.

[This message was edited by david curl on 09-27-07 at .]