New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
“Whether, as stated by Justice Gray in his dissent from Appellant’s motion for rehearing, the evidence allowed the jury to have reasonably inferred that the second assault occurred on or before the victim’s fourteenth birthday?”
Griffith was convicted of continuous sexual abuse of a child. On appeal, he claimed that the evidence failed to prove that the second incident of abuse underlying the continuous conviction occurred before the victim’s fourteenth birthday, as required by Tex. Penal Code § 21.02(b). The court of appeals disagreed. The first incident, it determined, occurred during spring break 2012 before the victim’s thirteenth birthday in April. Regarding the second incident, the court observed that the evidence established that additional acts of abuse occurred during Griffith’s separation from the victim’s mother in January 2013 through May or June 2013. Therefore, it held that the jury could have inferred that the second incident occurred before the victim’s fourteenth birthday in April 2013.
Griffith’s motion for rehearing was denied but Chief Justice Gray noted his dissent. He asserted that the evidence only proves that the second incident could have occurred before or after the victim’s fourteenth birthday. So, it cannot be reasonably inferred that it was before; “[t]hat is what distinguishes speculation from inferences.”
Adopting Chief Justice Gray’s inference-versus-speculation dichotomy, Griffith cites Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007), and points out that an inference is the result of deducing a logical consequence from facts and speculation is based on mere theorizing or guessing about the meaning of facts. Griffith contends that the court of appeals “had to speculate that a second act occurred in January, February, March, or the first four days of April 2013 instead of the later twenty-six days of April, or in May or June of 2013.” As a result, Griffith claims that the evidence does not support the second incident for purposes of proving the continuous offense.