Defense Lawyers Sound Objection to Lesser Included Offense Causes Appellate Mental Madness

By: Houston Criminal Lawyer John Floyd and Billy Sinclair


The law is rarely ever clearly defined. It is continuously subject to interpretation.
The law is such a fluid creature that finding its true meaning is sometimes very difficult and can strain the bounds of intellectual honesty. This was illustrated on October 20, 2010 by the Texas Court of Criminal Appeals in the case of Oscar Rene Benavidez.


Benavidez was indicted for the offense of aggravated sexual assault. At the end the guilt/innocence phase of the Benavidez’s trial, the State submitted a proposed jury charge to the court which would allow the jury to convict Benavidez of a lesser included offense of aggravated assault, should it decide to acquit him on the sexual assault charge. That is where the convoluted legal dispute in the Benavidez case began: State prosecutors believed that aggravated assault was indeed a lesser included offense to the aggravated sexual assault charge which had been charged in the indictment. Benavidez’s defense counsel, however, strongly objected to the proposed charge, being of the firm opinion that aggravated assault could not be a lesser included offense of aggravated sexual assault.


The defense was correct.  A defendant is entitled to notice, by indictment, of the charges the government will seek to prove at trial, so that the defendant can adequately prepare a defense.  The indictment does not serve this notice function if it allows the government to argue additional or inconsistent charges at trial.


The lesser included offense doctrine typically allows a jury to convict a defendant of an offense that is less serious than the offense charged in the indictment.  In very simple terms, it can be said that the greater offense cannot be committed without also committing the lesser.


However, in order for a lesser included offense to be properly included in the jury charge, the facts must establish proof of the same or less than the facts required to prove the offense charged.  This typically means the lesser included offense is missing one of the elements required to prove the primary offense charged in the indictment.  Therefore, there is no inconsistency between the offenses.



“The statutory elements of aggravated sexual assault, as… charged in count 1 of the indictment, provided that appellant committed the offense of aggravated sexual assault if he (1) intentionally or knowingly caused the penetration of the sexual organ of Adela Coronado without her consent, and (2) by acts or words placed her in fear that serious bodily injury would imminently be inflicted on her. See Tex. Penal Code Ann. § 22.021(a) (1)(A)(i), (a)(2)(A)(ii) (Vernon Supp. 2008). In the indictment against appellant, the manner of committing aggravated sexual assault was limited to his placing Coronado in fear that serious bodily injury would be inflicted on her. In contrast, a person commits aggravated assault if the person actually causes serious bodily injury to another. See id. § 22.02(a)(1) (Vernon Supp. 2008). Numerous courts have recognized that the proof required to show a threat of bodily harm or injury is different than the proof required to show serious bodily harm or injury. See, e.g., Schmidt v. State, 278 S.W.3d 353, 355-59 (Tex. Crim. App. 2009) (discussing the distinctions between threatening to cause bodily harm and actually causing bodily harm); Hall, 225 S.W.3d at 531 (noting that assault by bodily injury is not a lesser-included offense to aggravated assault by threat with a deadly weapon); Trejo v. State, 242 S.W.3d 48, 52 (Tex. App.-Houston [14th Dist.] 2007), rev’d on other grounds, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (holding that aggravated assault is not a lesser-included offense of aggravated sexual assault because aggravated sexual assault does not require proof of serious bodily injury).” Benavidez v. Texas


The trial court, however, overruled Benavidez’s objection and the judge gave the aggravated assault charge to the jury. The jury apparently believed the facts fit the lesser charge because it found Benavidez guilty of aggravated assault; a decision which implicitly acquitted him on the aggravated sexual assault charge. Benavidez appealed to the Thirteenth Court of Appeals on the legal premise that the trial court erred by allowing his conviction for aggravated assault when that offense is not a lesser included offense of aggravated sexual assault. The court of appeals agreed.


But in so agreeing the appeals court created yet another legal dispute. It relied upon a Texas Court of Criminal Appeals decision, Trejo v. State, to find that the trial court did not have “jurisdiction” to convict Benavidez of an offense not charged in the indictment unless it was a “lesser-included offense of the crime charged.” And because aggravated assault is not a lesser included offense of aggravated sexual assault, the appeals court held that Benavidez’s conviction for aggravated assault was “void.” The appeals court, without any detailed explanation, remanded Benavidez’s case back to the trial court with instructions that the lower court enter a “judgment of acquittal.”


Rational minds would have thought that would be the end of this saga for Benavidez.


The State sought, and secured, a discretionary review of the appeals court’s decision before the Texas Court of Criminal Appeals (TCCA). State attorneys argued (although only in passing) that the appeals court had misconstrued the Trejo decision, and the TCCA agreed.


The Trejo decision also involved a case where a trial court had authorized a jury to convict the defendant of the lesser offense of aggravated assault in an aggravated sexual assault case. The Fourteenth Court of Appeals in that case also found that the trial court lacked “jurisdiction” to submit the “lesser-but-not-included” offense and, therefore, the conviction was “void.” The TCCA disagreed, finding that the trial court had both “subject matter and personal jurisdiction” overTrejo because of the felony indictment against him, and while it may have been an error to charge the jury that aggravated assault was a lesser included offense to aggravated sexual assault, the court had the “jurisdiction” to make that error. Since Trejo’s defense counsel had not objected to the erroneous jury charge, the case was remanded for a determination of whether he was “egregiously harmed by the error.”


But since Benavidez’s attorney did object to the erroneous charge, he had to show only that he suffered “some” harm to secure appellate relief. And State attorneys elected to concede before the TCCA that the trial court had in fact made an “error” with the erroneous jury charge but nonetheless argued that the “judgment of acquittal” remedy ordered by the appeals court was improper. The TCCA began its analysis after what it called “mature reflection” with the finding that the “judgment of acquittal” on the aggravated assault charge was not the “appropriate remedy” for the erroneous jury charge. The Court reasoned that, for purposes of double jeopardy, an acquittal can only occur in the trial court “when the ruling of the trial court, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.”


The TCCA noted that the jury verdict for aggravated assault amounted to a “finding of fact” that Benavidez was guilty of that charge. This finding necessarily meant there had been no acquittal on that offense. However, the TCCA pointed out that the appeals court does have the authority to order the entry of a judgment of acquittal under two circumstances: the evidence was legally insufficient to support Benavidez’s conviction or the trial court’s ruling amounted to a de factobut unacknowledged acquittal. Since the court of appeals did not find reach the issue of whether there had been insufficient evidence presented to convict Benavidez of aggravated assault, the TCCA said the appeals court did not have the authority to enter the judgment of acquittal.


State attorneys suggested that the appropriate remedy would have been for the appeals court to remand the case back to the trial court “for further proceedings not inconsistent with its holding.” But the TCCA pointed out that the State attorneys did not “suggest what those further proceedings would be.” And since the jury implicitly acquitted Benavidez’s of aggravated sexual assault when it convicted him of aggravated assault, the State could not resurrect that sex offense charge. And, more to the point, as observed by the TCCA, the State could not prosecute Benavidez “for the lesser offense based upon the present indictment, having conceded that the aggravated assault is not a lesser-included offense of the aggravated sexual assault.”


Any possible solutions?


“The trial court could vacate the judgment of conviction for the aggravated and enter a judgment of acquittal for the aggravated sexual assault,” the TCCA suggested. “Such an order would terminate the present case, and the State might then return to the grand jury and attempt to obtain an indictment for the lesser of offense of aggravated assault.”


Are you still with us here?


But, as the TCCA pointed out, even this suggestion had a legal “complication.” That complication was rooted in Benavidez’s argument on appeal that the evidence was “legally insufficient” to sustain the jury’s verdict on the aggravated assault conviction. As noted above, the appeals court did not address this issue and the State attorneys did not mention it even though they conceded there had been a “trial error” with the erroneous jury instruction on the charge. The TCCA informed all the parties that it has long held that “an appellant who established a trial error is entitled to appellate consideration of his claim that the evidence is insufficient to support his conviction” and “that continues to be the rule in Texas.”


Benavidez’s right to have the legal insufficiency addressed was critically important because a finding on appeal that the evidence was legally insufficient to support his conviction for aggravated assault would automatically preclude the State from retrying him for that offense because of jeopardy reasons.


This complication ultimately led to an ironical outcome in the case.


Had the court of appeals decided that there was insufficient evidence in the record to support Benavidez’s conviction for aggravated assault, the court would have been correct in entering a judgment of acquittal.


We know. Our heads are twirling also. But understanding the law is not always an easy path toward the welcomed fires of home.


And to make the Benavidez’s case even more convoluted is the fact that, as the TCCA noted, the “greatest injury [he] inflicted in this case was to crack one of his victim’s ribs when he pushed her to the floor trying to gain access to her apartment.” Benavidez’s attorney argued on appeal that this injury did not satisfy the “statutory definition” of “serious bodily injury” required under the aggravated assault statute. Article 1.07(a) (46) of the Texas Penal Code defines serious bodily injury as one that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”


The “bodily injury” inflicted by Benavidez did not meet that statutory criteria, and, thus, against this backdrop, Benavidez’s attorney argued strenuously that because the evidence clearly was legally insufficient to support his conviction for aggravated assault, the court of appeals’ order that a judgment of acquittal should stand as correct. But the TCCA held that “rather than address that claim (legal insufficiency) for the first time in a petition for discretionary review … we think the appropriate action is to remand the cause to the court of appeals to address the appellant’s sufficiency claim” and should the appeals court conclude “that the evidence is not legally sufficient to support conviction for the lesser-but-not-included offense (aggravated assault), then it may reinstate its judgment remanding the cause to the trial court for entry to a judgment of acquittal.”


And, ladies and gentlemen, that is a fine example of the complicated and sometimes logically strained process that is post conviction work in Texas.  Surely, the TCCA could have ordered the obvious, an acquittal, but it considered it better to stick with procedure than act logically.  In the end, we hope, everyone will arrive home safely even though they all may have taken different paths to get there.