419 S.W.3d 706
Tex. App.2013Background
- Tomas Jimenez, a janitor at Seven Acres nursing home, was indicted for aggravated sexual assault of an 84‑year‑old resident by causing penile oral penetration without consent; jury convicted and sentenced to 18 years.
- A CNA observed Jimenez with his penis in the complainant’s mouth; Jimenez claimed he was "scratching." No injuries or semen were found; DNA from the complainant’s mouth was only hers; DNA from Jimenez’s underwear was a mixture that could not exclude him or possibly the complainant.
- The complainant had severe Alzheimer’s dementia and lived on a secured dementia unit; Jimenez worked primarily on that unit and had training and facility access codes.
- The indictment alleged three alternative ways the assault was “without consent,” including statutory subsection 22.011(b)(11) (actor is an employee of a facility where the other is a resident, unless married). Jimenez moved to quash and objected to the charge as creating an unconstitutional presumption.
- Trial court denied requests to instruct on lesser‑included offenses (indecent exposure; attempted aggravated sexual assault) and refused to give the Penal Code §2.05 presumption instruction; the court submitted the §22.011(b)(11) predicate as an element in the charge. Jimenez appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indecent exposure is a lesser‑included offense of aggravated sexual assault | Jimenez: evidence he was "scratching" supports conviction only for indecent exposure | State: facts support aggravated sexual assault; indecent exposure not supported by evidence | Court: No; defendant’s "scratching" claim negates required sexual intent for indecent exposure, so no instruction required |
| Whether attempted aggravated sexual assault is a lesser‑included offense | Jimenez: medical records showing inability to maintain erection support only attempt | State: penetration can occur without erection; attempted offense not supported | Court: No; erection not required for penetration, so no instruction required |
| Whether indictment should be quashed because §22.011(b)(11) creates an unconstitutional presumption relieving State of burden to prove lack of consent | Jimenez: subsection creates conclusive presumption of no consent and violates due process | State: statute protects vulnerable facility residents and is constitutional strict‑liability style protection | Court: No; facial challenge failed—legislature’s protective interest and presumption of constitutionality not rebutted |
| Whether submission of §22.011(b)(11) without a §2.05 instruction and thus a mandatory presumption required reversal | Jimenez: omission converted a mandatory presumption into error harming his rights | State: presumption did not relieve burden; other definitions of lack of consent sufficed | Court: Trial court erred by submitting the mandatory presumption without a §2.05 instruction, but error was harmless beyond a reasonable doubt given strong alternative evidence (complainant’s incapacity and defendant’s knowledge) |
Key Cases Cited
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (two‑pronged test for lesser‑included offenses and cognate‑pleadings approach)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (standards for lesser‑included offense submission)
- Wilson v. State, 905 S.W.2d 46 (Tex. App.—Corpus Christi 1995) (penetration may occur without erection; no lesser‑included attempt instruction required)
- Scott v. State, 36 S.W.3d 240 (Tex. App.—Houston [1st Dist.] 2001) (upholding statutory strict‑liability protection for vulnerable classes against due process challenge)
- Tottenham v. State, 285 S.W.3d 19 (Tex. App.—Houston [1st Dist.] 2009) (effect of §2.05 instruction converting mandatory presumptions into permissive ones)
- Garrett v. State, 220 S.W.3d 926 (Tex. Crim. App. 2007) (permissive versus mandatory presumptions analysis)
- Rose v. Clark, 478 U.S. 570 (U.S. 1986) (harmless‑beyond‑a‑reasonable‑doubt standard when a presumption may have been applied)
- State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (facial‑challenge standard to quash an indictment)