Page 115 - TPA - A Peace Officer's Guide to Texas Law 2015

with the conventional requirement for criminal conduct awareness of some wrongdoing.

In light of the foregoing, Elonis conviction cannot stand. The jury was instructed that the Government
need prove only that a reasonable person would regard Elonis communications as threats, and that was error.
Federal criminal liability generally does not turn solely on the results of an act without considering the
defendants mental state. That understanding took deep and early root in American soil and Congress left it
intact here: Under Section 875(c), wrongdoing must be conscious to be criminal.

In response to a question at oral argument, Elonis stated that a finding of recklessness would not be
sufficient. See id., at 89. Neither Elonis nor the Government has briefed or argued that point, and we
accordingly decline to address it.

ELONIS V. U.S., No. 13983, U. S. Supreme Court, June 1, 2015.

REPORT WRITING

ON OR ABOUT REPORT WRITING.

The indictment in this case alleged that "on or about" January 24, 2006, the suspect solicited sex from
"Molly Shaw," a girl under seventeen years of age. Molly was actually a Garland PD detective assigned to an
Internet Crimes Against Children Unit who was posing as a minor female on an internet chat room. The suspect
arranged to meet Molly for sex and was arrested and charged with criminal solicitation of a minor under
§15.031(b) of the Penal Code. The crime he was accused of soliciting was sexual assault of a child, codified in
§22.011(a)(2) of the Penal Code.

At trial, the State introduced the chat-room transcripts from April, 2004 that showed appellant (suspect)
soliciting sex from "Molly" and the two revealing their dates of birth to one another. Appellant argued that he
should have received an instruction on the affirmative defense set out in §22.011(e). As it relates to this case,
that affirmative defense would negate a finding of guilt for sexual assault of a child if the ages of the defendant
and victim are within three years of each other. Appellant argued that, because of the "on or about" language in
the indictment and jury charge, the jury would be able to convict based on conduct that went back to the original
communications in April, 2004. Because the jury could convict based on that conduct, and because their
birthdays were within three years of each other, appellant contended that the evidence raised a defensive
instruction on that issue. The trial court disagreed and overruled appellant's objection.

The court of appeals affirmed the conviction, ruling that the within-three-years affirmative defense in
§22.011(e) was not applicable to solicitation of a minor in §15.031(b). According to the Court of Appeals, the
language of the criminal-solicitation statute did not incorporate the defense, and the defense, by its terms, applied
only in cases where the defendant was actually charged with sexual assault of a child under §22.011(a)(2).

In the alternative, the Court of Appeals held that, even if the within-three-years affirmative defense were
available in a solicitation-of-a-minor prosecution, the facts of this case failed to raise all of the elements of the
affirmative defense. The court reasoned that the age difference is calculated from the victim's age. "However,
there is no victim in this case; Molly Shaw was a fictitious character." Therefore, she had no age from which to
calculate, and the defense could not apply.

But that reasoning ignores that appellant was not just charged with criminal conduct that might have
occurred on January 24, 2006. He was, instead, charged with conduct that might have occurred "on or about"
January 24, 2006. "It is well settled that the 'on or about' language of an indictment allows the State to prove a
date other than the one alleged in the indictment as long as the date is anterior to the presentment of the

A Peace Officer’s Guide to Texas Law 108 2015 Edition