Skip to Main Content

What Happens When the State Tries You for a Different Crime Than the Indictment?

In Texas felony cases, such as those involving sexual offenses against children, a grand jury is charged with reviewing the available evidence and issuing an indictment. An indictment is simply a formal statement of the criminal charges against a defendant. The indictment effectively puts the defendant “on notice” of the specific sections of the Texas Penal Code they allegedly violated.

If and when a criminal case goes to trial, a separate jury is instructed on the law and the burden of proof necessary to convict the defendant. The jury cannot convict the defendant of an offense that was not in the indictment, unless it is a “lesser included” offense to the indicted charge. In other words, if the grand jury indicts the defendant for violating Statute A, the jury cannot convict the defendant of violating an unrelated Statute B.

Court of Criminal Appeals Reverses Sexual Assault Convictions

You would think that prosecutors–who largely direct grand jury proceedings–would be clear enough in preparing an indictment so as to avoid any confusion at trial. But that is not always the case. And there are situations where a defendant is improperly convicted of a charge they never received proper notice of via the indictment.

The Texas Court of Criminal Appeals (CCA) recently addressed just such a case. In Delarosa v. State, a grand jury indicted the defendant for what the CCA described as a “mishmash of non-consensual sexual assault and sexual assault of a child.” A trial jury later convicted the defendant on three criminal charges that, in the CCA’s view, did not match the indictment.

Essentially, the case involved a defendant accused of having a sexual relationship with a minor. The defendant was employed by a local school district. The minor was a student. According to the evidence introduced at trial, the minor and the defendant’s daughter were friends. The minor testified that she regularly spent the night at the defendant’s house.

Without going into graphic detail, the defendant admitted to having romantic feelings for the minor. But he denied having sexual contact with her. But the minor later told a school resource officer that there was sexual contact between herself and the defendant.

The grand jury’s indictment labeled the three charges against the defendant as “sexual assault of a child” under Section 22.011(a)(2) of the Texas Penal Code. But the body of the indictment said the defendant was charged under Section 22.011(a)(1).

What’s the difference? Section 22.011 broadly defines the offense of “sexual assault” in Texas. Subsection (a)(2) defines sexual assault against someone who engaged in various forms of sexual contact with a child under the age of 17. Subsection (a)(1), in contrast, defines sexual assault against a victim who does not give their consent to sexual contact.

The trial jury convicted the defendant of three counts of violating Subsection (a)(2), i.e., sexual assault against a minor. But the body of the indictment actually alleged sexual assault due to lack of consent. On appeal, the defendant argued he was not only convicted under the wrong statute, but that the evidence at trial was insufficient to prove he violated the indicted charge. Put another way, the defense said the prosecution failed to prove “beyond a reasonable doubt” that he has sex with the alleged victim without her consent.

The state’s response was that a minor can never legally “consent” to sexual activity with an adult. Therefore, it did not matter what subsection the grand jury actually indicted the defendant for. The jury’s verdict could support a finding that he committed sexual assault under either provision.

The CCA disagreed. The Court noted that the minor never testified that she engaged in non-consensual sexual activity with the defendant. And it is not the case that a minor can never consent to sex under Texas law. Indeed, the statute contains two notable exceptions to the rule prohibiting adults from having sex with a minor. The first is if the parties are married. The second is for certain cases where the parties are less than three years in age apart. Neither exception applied here, but the CCA’s point was that the existence of these exceptions demonstrated that minors were legally capable of consent in some cases.

Accordingly, the CCA reversed the defendant’s convictions for non-consensual sexual assault and ordered an acquittal on those charges.

Contact a Galveston Criminal Defense Attorney Today

If you are charged with a sexual offense or any other serious felony, you need to work with an experienced League City criminal defense attorney who will look out for your interests and zealously defend your rights in court. Contact the Law Offices of Tad Nelson & Associates today to schedule a free case evaluation.