
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-96-00505-CR





Jose L. Mateo, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 45,934, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING





PER CURIAM

	Appellant pleaded guilty to an indictment accusing him of aggravated sexual assault of a
child.  The district court adjudged him guilty and, pursuant to a plea bargain agreement, assessed
punishment at imprisonment for five years.  Appellant preserved his right to appeal the overruling of his
motion to quash the indictment.  Tex. R. App. P. 40(b)(1).
	The indictment alleged that appellant "intentionally and knowingly cause[d] his sex organ
to contact and penetrate the female sex organ of [the complainant] and the said [complainant] was then and
there a child younger than 14 years of age and not the spouse of the said [appellant]."  In his motion to
quash, appellant complained that the indictment was defective because it did not allege that he intentionally
and knowingly engaged in the sexual acts with a child, or in other words, did not allege that appellant knew
the complainant was a child.
	A person commits an aggravated sexual assault if he intentionally or knowingly "causes the
penetration of the . . . female sexual organ of a child by any means" or "causes the sexual organ of a child
to contact the . . . sexual organ of another person, including the actor," and if "the victim is younger than
14 years of age."  Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) & (iii), (a)(2)(B) (West Supp. 1997). (1)  A
"child," for the purpose of this statute, is a person younger than seventeen years of age.  Tex. Penal Code
Ann. §§ 22.011(c)(1), 22.021(b) (West 1994).  It is appellant's contention that the indictment in this cause
should have tracked the language of the statute and alleged that he "intentionally and knowingly cause[d]
his sex organ to contact and penetrate the female sex organ of a child [the complainant] and the said
[complainant] was then and there younger than 14 years of age." (2)
	One of the statutory predecessors of section 22.021 is former Penal Code section 21.09. 
Under section 21.09, a person committed rape of a child "if he [had] sexual intercourse with a female not
his wife and she [was] younger than 17 years."  Act of June 2, 1975, 64th Leg., R.S., ch. 342, § 8, 1975
Tex. Gen. Laws 912, 914 (Tex. Penal Code Ann. § 21.09(a), since repealed).  In Vasquez v. State, 622
S.W.2d 864, 866 (Tex. Crim. App. 1981), the Court of Criminal Appeals held that in a prosecution for
rape of a child, the State had to prove that the act of sexual intercourse was committed intentionally,
knowingly, or recklessly, but did not have to prove that the defendant knew the complainant's age.  The
court noted that the legislature, when it adopted the present Penal Code in 1973, rejected a proposed
mistake of fact defense to prosecutions based on sexual activity with children.  The court reasoned:


	There being an obvious manifestation on the part of the Legislature not to change
the requirement relating to the age of the victim in a rape of a child case, ignorance or
mistake of law [sic] are not defenses.  This being so, it follows that to require the State to
allege and prove the appellant knew the prosecutrix to have been under the age of
seventeen would establish ignorance or mistake as a defense in contravention of the clear
legislative intent.  Such allegation and proof are not required.


Id.
 Roof v. State, 665 S.W.2d 490 (Tex. Crim. App. 1984), was a prosecution for indecency
with a child.  A person commits that offense "if, with a child younger than 17 years and not his spouse . .
. he . . . exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or
gratify the sexual desire of any person."  Tex. Penal Code Ann. § 21.11(a)(2) (West 1994). (3)  The question
in Roof was whether, in order to prove that the defendant knew the child was present, it was necessary
to prove that the defendant knew the child's age.  The court held that such proof was not necessary, noting
that "with respect to sexual offenses involving minors mistake of fact or ignorance as to the victim's age has
not been historically available as a defense."  Roof, 665 S.W.2d at 491.  The court concluded, "Given our
case law and legislative tradition running squarely against appellant's notion that the State must prove his
knowledge of the victim's age, and given the failure of the Legislature to specifically require such knowledge
when it required knowledge of the victim's presence, appellant's position must fail."  Id. at 492.
	In 1983, the legislature determined that the offenses of rape, aggravated rape, rape of a
child, sexual abuse, aggravated sexual abuse, and sexual abuse of a child were assaultive, rather than
sexual, in nature, and that their classification as sexual offenses "often confuse[ed] the issue and cloud[ed]
the circumstances."  House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 2008, 68th Leg.,
R.S.  Accordingly, the statutes defining those offenses were repealed and, in their place, the legislature
created the offenses of sexual assault and aggravated sexual assault.  See Act of May 29, 1983, 68th Leg.,
R.S., ch. 977, §§ 3 & 12, 1983 Tex. Gen. Laws 5311, 5312-15, 5321.  There is nothing in the legislative
history of sections 22.011 and 22.021 indicating that the legislature intended to nullify the holding in
Vasquez and to require the State to prove the defendant's knowledge of the complainant's age in a
prosecution for sexual assault of a child. (4)
	As a general rule, we are bound to interpret a statute according to its plain meaning, and
are permitted to consider extratextual sources only if the language of the statute is ambiguous or if
application of the statute's plain language would lead to a result the legislature could not possibly have
intended.  Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).  In this cause, however,
application of the plain language of sections 22.011(a)(2) and 22.021(a)(1)(B) would lead to a result that
is contrary to the case law and legislative tradition running against the notion that the State must prove the
defendant's knowledge of the complainant's age in a prosecution for an offense involving an adult's sexual
conduct with a child.  We therefore hold that in a prosecution for sexual assault or aggravated sexual assault
of a child, the State is not required to allege or prove that the defendant knew the complainant's age.
	Our holding is in accord with that of the Fourteenth Court of Appeals in Jackson v. State,
889 S.W.2d 615 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).  Jackson was a prosecution for
aggravated sexual assault of a child in which the trial court also instructed the jury on the lesser included
offense of sexual assault of a child.  The court of appeals held that the trial court properly refused a
requested mistake of fact instruction which would have required a verdict of not guilty if the jury found that
the defendant had mistakenly believed that the complainant was seventeen years of age or older.  Jackson,
889 S.W.2d at 617.
	The district court did not err by overruling the motion to quash the indictment.  The point
of error is overruled and the judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Affirmed
Filed:   December 5, 1996
Publish
1.        The offense in this cause was committed in July 1995.  The amendment to section 22.021
effective September 1, 1995, did not alter the statutory language at issue.
2.        Appellant's argument would apply to every charging instrument alleging sexual assault or
aggravated sexual assault of a child.  See Tex. Penal Code Ann. §§ 22.011(a)(2) (West 1994),
22.021(a)(1)(B) (West Supp. 1997).  While appellant argues that the State was required to allege and
prove that he knew the complainant was a child, he concedes that it was not necessary to allege or prove
that he knew the child was younger than fourteen.
3.        The present wording of section 21.11(a) is in all material respects identical to its wording as
interpreted in Roof.
4.        The bill analysis indicates that the only substantive change intended was to make the new
offenses gender-neutral.


or ignorance as to the victim's age has
not been historically available as a defense."  Roof, 665 S.W.2d at 491.  The court concluded, "Given our
case law and legislative tradition running squarely against appellant's notion that the State must prove his
knowledge of the victim's age, and given the failure of the Legislature to specifically require such knowledge
when it required knowledge of the victim's presence, appellant's position must fail."  Id. at 492.
	In 1983, the legislature determined that the offenses of rape, aggravated rape, rape of a
child, sexual abuse, aggravated sexual abuse, and sexual abuse of a child were assaultive, rather than
sexual, in nature, and that their classification as sexual offenses "often confuse[ed] the issue and cloud[ed]
the circumstances."  House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 2008, 68th Leg.,
R.S.  Accordingly, the statutes defining those offenses were repealed and, in their place, the legislature
created the offenses of sexual assault and aggravated sexual assault.  See Act of May 29, 1983, 68th Leg.,
R.S., ch. 977, §§ 3 & 12, 1983 Tex. Gen. Laws 5311, 5312-15, 5321.  There is nothing in the legislative
history of sections 22.011 and 22.021 indicating that the legislature intended to nullify the holding in
Vasquez and to require the State to prove the defendant's knowledge of the complainant's age in a
prosecution for sexual assault of a child. (4)
	As a general rule, we are bound to interpret a statute according to its plain meaning, and
are permitted to consider extratextual sources only if the language of the statute is ambiguous or if
application of the statute's plain language would lead to a result the legislature could not possibly have
intended.  Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).  In this cause, however,
application of the plain language of sections 22.011(a)(2) and 22.021(a)(1)(B) would lead to a result that
is contrary to the case law and legislative tradition running against the notion that the State must prove the
defendant's knowledge of the complainant's age in a prosecution for an offense involving an adult's sexual
conduct with a child.  We therefore hold that in a prosecution for sexual assault or aggravated sexual assault
of a child, the State is not required to allege or prove that the defendant knew the complainant's age.
	Our holding is in accord with that of the Fourteenth Court of Appeals in Jackson v. State,
889 S.W.2d 615 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).  Jackson was a prosecution for
aggravated sexual assault of a child in which the trial court also instructed the jury on the lesser included
offense of sexual assault of a child.  The court of appeals held that the trial court properly refused a
requested mistake of fact instruction which would have required a verdict of not guilty if the jury found that
the defendant had mistakenly believed that the complainant was seventeen years of age or older.  Jackson,
889 S.W.2d at 617.
	The district court did not err by overruling the motion to quash the indictment.  The point
of error is overruled and the judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith
