677 S.W.3d 668
Tex. Crim. App.2023Background
- Appellant Francisco Delarosa Jr. was tried and convicted on three counts where the indictment body alleged non-consensual sexual assault (§ 22.011(a)(1)), but the indictment caption, verdict forms, and jury application referenced sexual assault of a child (§ 22.011(a)(2)).
- Trial evidence: the complainant ("LAM") testified she had sex with Delarosa while 14–17 and later wrote she was a minor and "unable to give consent;" the prosecutor did not ask contemporaneous-consent questions. Delarosa admitted a relationship with LAM but denied sexual intercourse.
- The court of appeals upheld the convictions, reasoning that proof of LAM’s minority (and Delarosa’s knowledge) satisfied lack-of-consent via § 22.011(b)(4) or that Delarosa had not contested consent.
- The Court of Criminal Appeals granted review on legal sufficiency and reversed: it held the State pleaded non-consensual assault and failed to prove the essential element of lack of consent.
- The CCA concluded § 22.011 has two distinct methods: (a)(1) requires non-consent; (a)(2) criminalizes sexual contact with a child regardless of consent; minority is not automatically a "mental disease or defect" under (b)(4).
- Judgment: convictions for sexual assault reversed and judgments of acquittal entered for the three counts (other convictions not at issue).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Delarosa) | Held |
|---|---|---|---|
| 1) Was the evidence legally sufficient to prove non-consensual sexual assault as charged? | State: Evidence of victim’s minority and jury understanding prove lack of consent; trial showed everyone knew child was victim. | Delarosa: Indictment alleged non-consensual assault; no evidence of contemporaneous lack of consent. | Held: Insufficient—State failed to prove lack of consent required by the (a)(1) theory actually alleged. |
| 2) Does § 22.011(a)(2) (sexual assault of a child) render consent irrelevant so a caption referencing child supplies the missing element? | State: Caption and trial focus show charge was sexual assault of a child, so consent is irrelevant. | Delarosa: The indictment body charged non-consensual assault; State is bound to prove that theory. | Held: The two statutory methods are distinct; the State is limited to the method pleaded in the indictment. |
| 3) Can minority be treated as a "mental disease or defect" under § 22.011(b)(4) to establish lack of consent? | State: A jury could infer minors lack capacity—(b)(4) covers youth as diminished capacity. | Delarosa: (b)(4) does not list age; other Penal Code provisions treat youth separately—proof required that victim was incapable of appraising or resisting. | Held: Minority alone is not automatically a "mental disease or defect" under (b)(4); no evidence showed incapacity to appraise or resist. |
| 4) Did the caption/other trial context effectively amend the indictment so Delarosa forfeited objections? | State: Everyone knew the child-based theory; defendant’s failure to object forfeited claim. | Delarosa: The charged instrument’s body was facially complete; due process requires proof of pleaded elements. | Held: Failure to object did not cure the variance; constitutional requirement to prove pleaded elements controls; conviction cannot stand on an unpleaded theory. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (due-process standard for evidentiary sufficiency)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge governs sufficiency review)
- Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) (indictment limits the theory/method the State may pursue)
- Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (State must prove every element of the charged offense)
- Thomason v. State, 892 S.W.2d 8 (Tex. Crim. App. 1994) (facially complete indictment binds the State to that offense)
- Miles v. State, 357 S.W.3d 629 (Tex. Crim. App. 2011) (notations/labels on indictments and limits of post hoc reconstruction)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (variance in statutory language defining the offense renders evidence insufficient)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ("any rational juror" sufficiency standard and limits on reasonable inferences)
- Musacchio v. United States, 577 U.S. 237 (2016) (sufficiency review is not dependent on jury instructions)
- Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) (the law authorized by the indictment concept)