“On or About” in Texas Sex Crime Indictments

Being accused of a sex crime against a child is perhaps the most difficult accusation to defend yourself against in a court of law. We know that children and teens make false accusations – there are often stories in the news wherein the accusers later recant their stories, or DNA evidence exonerates the accused. Nevertheless, juries often have a difficult time trying to understand why children or teens would fabricate such stories, and this mandates defendants to prove their innocence.

Proving Something Didn’t Happen Numerous Years Ago

Defending yourself against allegations of sexual conduct that took place numerous years ago adds another layer of difficulty. You are tasked with proving that something DIDN’T happen, and quite often face numerous obstacles such as 1) deceased witnesses, 2) the inability to collect physical evidence, 3) the inability to interview the accuser at the time the allegations were made, and 4) faded memories. In such cases, the only evidence that you might be able to offer to the jury is your own statement denying that the conduct occurred. Having said that, you might be wondering about using where you were when the crime was alleged to have occurred as evidence. Well, because of the “on or about” language used in Texas indictments, using that evidence can be an impossibility.

Proving Where You Weren’t “On or About”

When multiple instances of sexual conduct are alleged to have occurred numerous years ago, Texas does not expect the accusers to recollect the exact dates, or even months and years when the conduct allegedly occurred. Logically, it may be true that accusers sometimes cannot recall specific dates or specific instances, but how is one to defend himself if the State cannot even tie the alleged conduct to a date or specific instance (.e.g., a party)?

A typical Texas indictment may read something like this: “The defendant did engage in sexual intercourse with the victim on or about December 17, 2000.” To a lay person, “on or about” would perhaps mean a couple of days, or even within a week.  Even if this were the legal definition, you would be tasked with proving your whereabouts during each of the days which were 15 years ago. This however, would be a luxury compared to what you really are tasked with under current Texas law.

The legal definition of “on or about” is construed to mean the following [Mireles v. State, 901 S.W.2d 458 (Tex. Crim. App. 1995); (see also Martin v. State, 335 S.W.3d 867 (Tex. App. 2011))]

“the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation”

Tex. Code Crim. Proc. Art. 21.02(6) provides:

“The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.”

This creates a nightmare for defense counsel as well as for the accused. Here is an example of how this works:

  1. the accuser alleges that she was sexually assaulted at least 20 times from 1997 to 2000
  2. the State charges the defendant with 20 counts of sexual assault of a child using arbitrary time frames with the “on or about” language
  3. during her testimony, the accuser gives no specific dates or instances that the defendant can challenge
  4. the jury is sent out to begin deliberations, and while it believes beyond a reasonable doubt that the defendant did have sexual intercourse with the accuser, it is unable to tie the alleged conduct to any specific time-frame in the indictment
  5. the jury reads the legal definition of “on or about”, and learns that it means any time before the indictment was filed as long as the statute of limitation had not expired
  6. believing that it occurred at least once, the jury has no reason to believe that it did not happen 20 times, so they enter GUILTY verdicts for all counts
  7. although sentences arising from a single criminal episode are required to be concurrent, there is an exception for sexual offenses against a child, so the judge sentences the defendant consecutively for each count

Ever-Changing Statute of Limitation

At this point you might be wondering as to why the statute of limitation had not expired in this theoretical situation. The answer is because the clock for the statute of limitation resets each time the statute of limitation is amended under law, as long as the statute of limitation prior to that amendment has not expired (see Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).

“Texas courts have upheld the constitutionality of extending an unexpired criminal statute of limitations. Thus, a statute oflimitations may be extended by the legislature, but a prosecution within the new time period will be permitted only if the limitations period had not already run before the law was changed.”

For example, let’s say a crime was alleged to have occurred in April 1990 when the accuser was 8, and at that time the statute of limitation (SOL) for that crime was 10 years. Then in 1998 an amendment was made that change the SOL to 10 years after the 18th birthday of the victim. In 1998, prior to the amendment, the SOL was two years away, but because that SOL had not expired PRIOR to the amendment, the new SOL would now be 2010 (victim would be 18 in year 2000, and ten years after that birthday would be 2010.)  Furthermore, because there apparently is no need for the accuser to tie alleged conduct to a specific date or instance, the SOL could be intentionally avoided by the State simply by framing the indictment within the SOL.

Fuel for False Convictions

The aforementioned is just a taste of what someone faces when accused of committing a sex crime numerous years ago. Many of these laws have been fueled by public outcry to protect children, but in fact people are ignoring that these laws undoubtedly are fueling false convictions. Currently, Texas has no statute of limitation for sex crimes against a child. Imagine being falsely accused of such a crime and trying to defend yourself 20 years later. What evidence would you have? If you find yourself in this position, you should hire a lawyer with decades of experience in sex crimes defense. If you would like to speak with attorney Tom Pavlinic about your case, call him today for a free consultation.

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