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Date: 10-11-2020
Case Style:
Roberto Hernandez v. The State of Texas
Case Number: 10-19-00252-CR
Judge: JOHN E. NEILL
Court: TENTH COURT OF APPEALS
Plaintiff's Attorney: Shana Stein Faulhaber
Defendant's Attorney:
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Description:
Corsicana TX - Criminal defense lawyer represented defendant charged with Aggravated Sexual Assault.
Appellant was charged by indictment with aggravated sexual assault of a child, a
first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B). Specifically, the
indictment alleged that appellant,
on or about the 1st day of September, 2018, . . . did then and there
intentionally and knowingly cause the penetration of the mouth of [the
child victim], a child who was then and there younger than 14 years of age
and not the spouse of the defendant, by the Defendant’s sexual organ . . . .
This case proceeded to a trial before a jury.
At the charge conference, defense counsel requested instructions on the offenses
of indecency with a child by contact and indecency with a child by exposure as lesserincluded offenses and provided the trial court with a proposed jury charge. The trial
court denied appellant’s requested jury-charge instructions.
The jury ultimately found appellant guilty of the charged offense and assessed
punishment at thirty-five years’ incarceration in the Institutional Division of the Texas
Department of Criminal Justice. The trial court certified appellant’s right of appeal, and
this appeal followed.
II. ANALYSIS
In his sole issue on appeal, appellant argues that the trial court abused its
discretion by denying his request for an instruction in the jury charge on the offense of
indecency with a child by contact as a lesser-included offense. We agree.
Hernandez v. State Page 3
A. Instructions on Lesser-Included Offenses and Jury-Charge Error
We review a trial court’s refusal to include a lesser-included-offense instruction
for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
2004). An offense is a lesser-included offense if, among other things, it is established by
proof of the same or less than all the facts required to establish the commission of the
offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1); Hall v. State, 225 S.W.3d
524, 527 (Tex. Crim. App. 2007). The Court of Criminal Appeals has set forth a two-step
analysis to determine whether a defendant is entitled to a lesser-included-offense
instruction. Hall, 225 S.W.3d at 535-36; see Jones v. State, 241 S.W.3d 666, 670 (Tex. App.—
Texarkana 2007, no pet.). Under the “cognate-pleadings” test, as set forth in Hall, the first
step concerns whether a lesser-included offense exists based on a comparison of the
greater offense, as contained in the charging document, and the lesser offense, without
looking to the evidence adduced in that particular case. Hall, 225 S.W.3d at 526; see Jones,
241 S.W.3d at 670. “This is a question of law, and it does not depend on the evidence to
be produced at trial.” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Only after
the first step is answered positively do we proceed to the second step of conducting an
inquiry concerning whether there was sufficient evidence at trial to have required the
court to submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at
670-71.
Hernandez v. State Page 4
The State concedes, and we agree, that the offense of indecency with a child by
contact can be a lesser-included offense of aggravated sexual assault of a child. See Ochoa
v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (concluding that indecency with a
child is a lesser-included offense of aggravated sexual assault of a child where both
charges are based on the same incident); see also Evans v. State, 299 S.W.3d 138, 143 & n.6
(Tex. Crim. App. 2009). We therefore proceed to the second step in the Hall analysis.
Step two of the Hall analysis involves the consideration of whether there is some
evidence that would permit a rational jury to find that, if appellant is guilty, he is guilty
only of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012);
see also Hall, 225 S.W.3d at 536. “This second step is a question of fact and is based on the
evidence presented at trial.” Cavazos, 382 S.W.3d at 383. A defendant is entitled to a
lesser-included-offense instruction if some evidence from any source raises a fact issue
on whether he is guilty of only the lesser offense, regardless of whether such evidence is
weak, impeached, or contradicted. Id. However, a defendant is not entitled to a lesserincluded-offense instruction simply because the evidence supporting the greater offense
is weak, the evidence supporting the greater charge is discredited or weakened during
cross-examination, or the jury might disbelieve crucial evidence pertaining to the greater
offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). That is, “there must
be some evidence directly germane to a lesser included offense for the factfinder to
consider before an instruction on a lesser included offense is warranted.” Id. “The
Hernandez v. State Page 5
evidence must establish the lesser-included offense as ‘a valid, rational alternative to the
charged offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).
At trial, the State proffered the testimony of the child victim’s mother (the outcry
witness); the child victim; and Lieutenant Clint Andrews of the Navarro County Sheriff’s
Office (the investigator of the alleged incident). The child victim testified that, while
inside a storage container with appellant, appellant lowered the child victim to her knees
and inserted his penis into her mouth. The testimony of the child victim’s mother and
the investigator corroborated much of the child victim’s testimony.
Appellant testified on his own behalf and denied inserting his penis into the child
victim’s mouth. In fact, appellant denied that he intentionally or knowingly touched the
child victim at all with his penis. Rather, appellant admitted to touching the child victim
inappropriately with his hands with intent to arouse his sexual desire while they were
both inside the container. Appellant further testified that both he and the child victim
pulled their pants down while in the container, and appellant pulled the child victim
close to him and rubbed their bodies together. When asked about the child victim’s
allegation, appellant suggested that the child victim was lying or confused because the
child victim’s brother purportedly penetrated the child victim’s mouth with his penis
days before this alleged incident.
Ordinarily, a defendant’s own testimony that he committed no offense, or
testimony that otherwise shows that no offense occurred at all, is not adequate to raise
Hernandez v. State Page 6
the issue of a lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.
App. 2001). Although appellant denied committing the charged offense of aggravated
sexual assault of a child by causing the penetration of the child victim’s mouth by his
penis, appellant offered a valid, rational alternative version of the incident, which
included his admission to a different offense—indecency with a child by contact. See
Cavazos, 382 S.W.3d at 383 (noting that a defendant is entitled to a lesser-included-offense
instruction if some evidence from any source raises a fact issue on whether he is guilty of
only the lesser offense, regardless of whether such evidence is weak, impeached, or
contradicted); Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (“If there is
evidence within a defendant’s testimony which raises the lesser included offense, it is not
dispositive that this evidence does not fit in with the larger theme of that defendant’s
testimony.”); see also Kachel v. State, No. PD-1649-13, 2015 Tex. Crim. App. Unpub. LEXIS
402, at *8 (Tex. Crim. App. Mar. 18, 2015) (not designated for publication) (“Therefore, a
defendant can point to his or her own statements as evidence that he or she is guilty of
only the lesser-included offense, even if that defendant also denied committing any
offense.”). Moreover, appellant’s testimony did not rise to the level of a flat denial of any
culpability that would prevent the requested lesser-included offense from serving as a
“valid, rational alternative to the charged offense.” Rice, 333 S.W.3d at 145; see Hall, 225
S.W.3d at 536; Lofton, 45 S.W.3d at 652.
Hernandez v. State Page 7
Because the jury may believe all, some, or none of any witness’s testimony, see
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), a reasonable jury—in light of
all the evidence in the record—could have disbelieved the child victim’s testimony, as
well as the other witnesses called by the State, and believed appellant’s version of the
events—that he only committed the offense of indecency with a child by contact, not
aggravated sexual assault of a child. As such, a reasonable juror could have found
appellant guilty of only indecency with a child by contact—an option that was not
available to the jury in this case. We therefore conclude that the trial court abused its
discretion by denying appellant’s request for an instruction on the offense of indecency
with a child by contact as a lesser-included offense. See Cavazos, 382 S.W.3d at 383; Hall,
225 S.W.3d at 535-36; Threadgill, 146 S.W.3d at 666; Jones, 984 S.W.2d at 257; see also Kachel,
2015 Tex. Crim. App. Unpub. LEXIS 402, at *8.
B. Almanza Harm Analysis
The erroneous refusal to give a requested instruction on a lesser-included offense
is charge error subject to an Almanza harm analysis. See Saunders v. State, 840 S.W.2d 390,
392 (Tex. Crim. App. 1992) (per curiam) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985)). Because appellant objected to the charge, under Almanza, we will
reverse if the error in the court’s charge resulted in some harm to appellant. See Almanza,
686 S.W.2d at 171. The harm from denying a lesser-included instruction stems from the
potential to place the jury in the dilemma of convicting for a greater offense in which the
Hernandez v. State Page 8
jury has reasonable doubt or releasing entirely from criminal liability a person the jury is
convinced is a wrongdoer. Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005);
see Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995). Typically, if the absence
of the lesser-included-offense instruction left the jury with the sole option either to
convict the defendant of the charged offense or to acquit him, some harm exists. See
Saunders, 913 S.W.2d at 571. Because the jury could have reasonably believed that
appellant committed the lesser-included offense of indecency with a child by contact, but
was only given the option to convict him of the greater offense of aggravated sexual
assault of a child, the denial of the requested instruction caused appellant some harm.
See Masterson, 155 S.W.3d at 171; Saunders, 913 S.W.2d at 571; see also Almanza, 686 S.W.2d
at 171. As such, we sustain appellant’s sole issue on appeal.
Outcome: We reverse the trial court’s judgment and remand the case for a new trial.
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