STATE v. PAYNE (2025)

OPINION

A grand jury indicted appellee Brian Keith Payne for continuous sexual abuse of a young child, a first-degree felony under Texas Penal Code section 21.02. On Payne's motion, the trial court quashed the indictment. By one issue, the State appeals the order quashing the indictment. We reverse and remand because the indictment sufficiently alleges the required elements of the offense. The indictment is not required to include the elements of the underlying predicate offenses that constitute the manner and means of the continuous offense.

I. Factual and Procedural Background

The grand jury presented an indictment that, in relevant part, read as follows:

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FELONY CHARGE: CONTINUE SEX AB/CHILD

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IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, BRIAN KEITH PAYNE ALSO KNOWN AS PAYNE, BRIAN, hereafter styled the Defendant, heretofore on or about February 24, 2013, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age, including an act constituting the offense of indecency with child by contact, committed against K.P. on or about February 24, 2013, and an act constituting the offense of aggravated sexual assault of a child, committed against K.P. on or about April 1, 2022, and the Defendant was at least seventeen years of age at the time of the commission of each of those acts.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

Payne moved to quash the indictment arguing that it did not plead the elements or manner and means of the predicate offenses, and thereby violated his due-process right to notice of the crime with which he was charged. Payne argued further that without a more specific indictment, he would be left to guess which offense was at issue in trial versus which offenses were extraneous. Payne also argued the indictment opened the door to a non-unanimous jury verdict against him because the jurors could convict him without agreeing on the specific prohibited acts committed.

The trial court granted Payne's motion to quash the indictment. In doing so, the trial court cited concern that the indictment did not expressly exclude the possibility that the State would attempt to prove the predicate offense of indecency by contact with evidence of touching of the breast. Touching of the breast cannot support a conviction for continuous sexual abuse of a young child under Texas Penal Code section 21.02. This appeal followed.

II. Analysis

By its sole issue on appeal, the State argues that the trial court erred by quashing the indictment because the indictment was not required to allege the elements of the underlying predicate offenses—indecency with a child by contact and aggravated sexual assault of a child—to charge Payne with continuous sexual abuse of a young child under Penal Code section 21.02. We agree.

A. Standard of Review

The sufficiency of an indictment is a question of law. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019). When reviewing a ruling on a motion to quash turns solely upon the sufficiency of the indictment, we review the trial court's decision de novo. Id.; Brown v. State, 468 S.W.3d 158, 167 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd.). Decisions involving questions of law do not involve the credibility or demeanor of witnesses; therefore the trial court is in no better position than this Court to resolve them. Brown, 468 S.W.3d at 167; State v. Stukes, 490 S.W.3d 571, 575–77 (Tex. App.—Houston [14th Dist.] 2016, no pet.)

An indictment must be specific enough to inform the defendant of the nature and cause of the accusations against him in order that he may prepare a defense. U.S. Const. amend. VI; Tex. Const. art I, § 10; Brown, 468 S.W.3d at 167 (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). In general, a charging instrument is sufficient when it tracks the statutory language and provides notice of the offense. Stukes, 490 S.W.3d at 574 (citing Moff, 154 S.W.3d at 602). Everything required to be proven should be stated in the indictment. See Tex. Code Crim. Proc. art. 21.03. Further, “[t]he certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” Tex. Code Crim. Proc. art. 21.04.

Texas notice jurisprudence requires appellate courts to engage in a two-step analysis when analyzing whether a charging instrument provides adequate notice. State v. Zuniga, 512 S.W.3d 902, 907 (Tex. Crim. App. 2017); State v. Jarreau, 512 S.W.3d 352, 354–55 (Tex. Crim. App. 2017). First, the reviewing court must identify the elements of the offense. Zuniga, 512 S.W.3d at 907; Jarreau, 512 S.W.3d at 354–55. Next, it must consider whether the statutory language is sufficiently descriptive of the charged offense. Zuniga, 512 S.W.3d at 907.

B. The Indictment was Sufficient to Allege the Elements of the Crime

By enacting the continuous-sexual-abuse-of-a-young-child statute, the Legislature criminalized “the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child.” Price v. State, 434 S.W.3d 601, 607 (Tex. Crim. App. 2014) (quoting Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring)). The prohibited act under this statute is a “repetitive course of conduct over an extended period of time.” Id. at 608. To commit the offense of continuing sexual abuse, the defendant must commit two or more “acts of sexual abuse,” which is statutorily defined by reference to eight different offenses under the Penal Code. See Tex. Penal Code § 21.02(c)(2). However, under Penal Code section 21.02(c)(2), an act of sexual abuse cannot consist of indecency by contact by touching the breast of a child. Id. § 21.02(c)(2).

In State v. Stukes, this Court addressed the pleading requirements under Penal Code section 25.11, which prohibits continuing family violence. See 490 S.W.3d at 575–77. That statute provides that a person commits an offense if at least twice, during a period of twelve months or less in duration, the person engages in conduct constituting an offense under section 22.01(a)(1)—the statute defining assault—against a family member or a person with whom the actor is in a dating relationship. See Tex. Penal Code § 25.11. This Court noted that continuing family violence is a “distinct crime” from “simple assault” and that there is a distinction between challenging the sufficiency of the allegations of “one of the underlying offenses of assault” and “not the primary offense of continuing family violence.” Stukes, 490 S.W.3d at 575–76.

In addressing whether the State was required to allege the manner and means of the “predicate assaults” in a continuing-family-violence case, this Court analogized the case to organized-crime cases which do not require the State to allege the manner and means of the underlying offense. Id. We also noted that a robbery indictment, which is predicated on the offense of theft, does not need to allege the manner and means of committing the underlying theft. Id. at 575 (citing Linville v. State, 620 S.W.2d 130, 131 (Tex. Crim. App. 1981)). This Court concluded that, when “[a]pplying the general principle that the indictment for a crime predicated on an underlying offense need not allege the elements, including the manner and means, of the underlying offense,” an indictment for continuing family violence under section 25.11 “need not allege the manner and means of the underlying assaults.” Id. at 577; see also Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003); Lucario v. State, 658 S.W.2d 835, 837 (Tex. App.—Houston [1st Dist.] 1983, no writ) (explaining that although manner and means of theft must be alleged in theft indictment because statute defines criminal conduct in more than one way, it need not be alleged in indictment for organized criminal activity in which theft is underlying offense).

The same principle applies in this case with respect to the offense of continuous sexual abuse of a young child under Penal Code section 21.01. Here, the indictment tracks the language of Penal Code section 21.02 and gives Payne notice of the offense with which he was charged:

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FELONY CHARGE: CONTINUE SEX AB/CHILD

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IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, BRIAN KEITH PAYNE ALSO KNOWN AS PAYNE, BRIAN, hereafter styled the Defendant, heretofore on or about February 24, 2013, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age, including an act constituting the offense of indecency with child by contact, committed against K.P. on or about February 24, 2013, and an act constituting the offense of aggravated sexual assault of a child, committed against K.P. on or about April 1, 2022, and the Defendant was at least seventeen years of age at the time of the commission of each of those acts.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

The indictment includes the victim's initials, the dates of the predicate offenses, and the names of the predicate offenses—indecency with a child by contact and aggravated sexual assault of a child. The heading of the indictment states the charged offense is continuous sexual abuse of a child, and the indictment specifies the alleged child victim was younger than fourteen years of age. Because the offense of continuous sexual abuse of a young child cannot be predicated on touching of the breast, the indictment in this case necessarily excludes touching of the breast as the manner and means of the alleged indecency by contact. See Tex. Penal Code § 21.02(c)(2).

We hold that the indictment in this case provided Payne sufficient notice of the charged offense of continuous sexual abuse of a young child. When charging an offense for continuous sexual abuse of a young child, the State need not allege the specific manner and means by which the defendant allegedly committed the predicate “acts of sexual abuse” to provide constitutionally sufficient notice of the crime with which the defendant is charged. See Stukes, 490 S.W.3d at 577 (applying general rule and holding an indictment for continuing family violence need not allege the manner and means of the predicate assaults).

In so holding, we also follow the opinion of our sister court, the First Court of Appeals, in Buxton v. State, 526 S.W.3d 666, 682 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd.). In Buxton, the court held that an indictment for continuous sexual abuse of a young child that identified the victim, the dates of the underlying predicate offenses, and the predicate offenses (as aggravated sexual assaults of a child) was sufficient, even though it did not allege the manner and means of the aggravated sexual assaults. See id. We observe that since the Buxton opinion was issued in 2017, no Texas appellate court has disagreed with its central holding.

When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, as is a reviewing court performing a sufficiency analysis in the event of a conviction. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). Here, the State is plainly required to prove beyond a reasonable doubt the two specified predicate offenses to obtain a conviction. See Tex. Code Crim. Proc. art. 38.03 (“․ no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”).

With the level of specificity in the indictment in this case, the risk of a non-unanimous jury verdict is removed. See McMillian v. State, 388 S.W.3d 866, 872 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding Penal Code section 21.02 does not violate jury-unanimity because the element upon which jurors must be unanimous is that the defendant committed two or more acts of sexual abuse during a period of thirty days or more). Nothing about the indictment in this case inherently allows the jury to find Payne guilty without a unanimous verdict, and so Payne's reliance on Ramos v. Louisiana is misplaced. See Ramos v. Louisiana, 590 U.S. 83, 93, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020) (holding conviction based on a verdict of ten out of twelve jurors could not support a conviction for murder or other serious offense).

As to Payne's double-jeopardy argument, the Double Jeopardy Clause prohibits a second prosecution for the same offense after a conviction. Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). There is no evidence in the record of any second prosecution. This type of double-jeopardy challenge is not ripe for review because there has not yet been an initiation of any subsequent prosecution. Keith v. State, 782 S.W.2d 861, 864 (Tex. Crim. App. 1989).

Payne also argues that the broad indictment allows the State to introduce unlimited extraneous offenses at trial because the elements of the predicate offenses are not pleaded in the indictment.¹ Payne cites no evidence or case law in support of this argument that unlimited extraneous-offense evidence will be admitted at trial because of the indictment language. Extraneous offenses can be handled at trial under the existing legal framework. If evidence of an extraneous offense is relevant under Texas Code of Criminal Procedure 38.37, before deciding whether to admit the evidence, the trial court must conduct a balancing test under Texas Rule of Evidence 403 upon request. See Tex. Code Crim. Proc. Art. 38.37 (“Evidence of extraneous offenses or acts”); Trotti v. State, 692 S.W.3d 679, 687 (Tex. App.—Houston [14th Dist.] 2023, pet. ref'd.) (holding extraneous-offense evidence was admissible at trial for continuous sexual abuse of a child). At trial, defense counsel will have the opportunity to move for a directed verdict if the State does not meet its burden of proof as to the charged offense, and to argue to the jury that it must find the elements of the charged offense have been proven beyond a reasonable doubt in order to convict.

Additionally, we note that an indictment cannot be held insufficient by reason of a formal defect that does not prejudice the defendant's substantial rights.² Stukes, 490 S.W.3d at 576; see also Tex. Code Crim. Proc. art. 21.19 (“An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.”). Even if the language of an indictment does not provide notice that is constitutionally sufficient to allow the defendant to prepare a defense, no harm is shown if the defendant receives notice of the State's theory by other means. Stukes, 490 S.W.3d at 576–77 (citing Kellar, 108 S.W.3d at 313). In this case, the record shows that in addition to the allegations in the indictment, the criminal complaint included a detailed two-page probable-cause affidavit. The affidavit is based on witness interviews, the complainant's forensic interview, and the complainant's medical records. With ample supporting facts, the affiant details the allegations against Payne, including acts of aggravated sexual assault and indecency other than by breast touching, committed when K.P. was between the ages of four and thirteen and while Payne was K.P.’s mother's boyfriend. See Tex. Penal Code §§ 21.11 (“Indecency With a Child”), 22.021(a)(2)(B) (“Aggravated Sexual Assault” of a child).

Applying the general principle that the indictment for a crime predicated on an underlying offense need not allege the elements, including the manner and means, of the underlying offense, we hold that an indictment for violation of Penal Code section 21.02 need not allege the manner and means of the underlying assaults. The indictment in this case sufficiently alleged the offense of continuous sexual abuse of a young child, and Payne has not shown harm from any lack of specificity. The trial court therefore erred by granting Payne's motion to quash. We sustain the State's sole issue.

III. Conclusion

Having sustained the State's sole issue on appeal, we reverse the trial court's order quashing the indictment and remand this case to the trial court for further proceedings.

FOOTNOTES

1.   We note that the State's notice of intention to introduce evidence of extraneous offenses in this case includes at least twenty-seven sexual acts Payne allegedly committed against K.P. on or about February 24, 2013, including breast touching. This arguably presents a situation in which too much notice is effectively no notice at all because Payne is left to guess whether the State will introduce some or all of these extraneous offenses which allegedly occurred on or about the same date. Texas Code of Criminal Procedure article 38.37 requires the State to give a defendant accused of continuous sexual abuse of a young child pre-trial notice of its intent to introduce evidence of extraneous offenses against the same victim. Tex. Code Crim. Proc. art 38.37(1)(b). The purpose of the notice requirement is to prevent surprise and to enable the defendant to prepare a defense. Pena v. State, 554 S.W.3d 242, 249 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd.). However, no motion to quash the extraneous-offense notice was filed in the trial court and no issue on appeal concerns the extraneous-offense notice.

2.   We note that when reversing a trial court's pre-trial order quashing an indictment, this Court is not required to perform a harm analysis under Texas Rule of Appellate Procedure 44.2. See Tex. R. App. P. 44.2; Stukes v. State, 490 S.W.3d 571, 577 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd.) (reversing order quashing indictment without performing a harm analysis under Rule 44.2).

Chad Bridges, Justice