What happens when the judge, the prosecutor, and defense counsel fail in their respective duties to preserve a criminal defendant’s right to a fair and impartial trial?


On July 22, 2022, the Texas Court of Criminal Appeals (CCA) answered this question in Jefferson v. State.


The facts and legal issues of the Jefferson case are straightforward.


In October 2016, 68-year-old Harold Gene Jefferson was arrested for the sexual assault of a child charge brought against him in Taylor County, Texas. The charge stemmed from the allegations made by a 15-year-old girl in foster care that her foster mother sold her in exchange for drugs. Jefferson is one of the men who reportedly had sex with the teen through arrangements made by the foster mother.


Grand Jury Indicts in Two Counts


A Taylor County grand jury initially indicted Jefferson on one count of sexual assault of a child and one count of indecency with a child. 


Texas Penal Code § 22.011(a)(2)(A) defines sexual assault of a child as any sexual activity with a person under the age of 17. 


Texas Penal Code § 21.11(a)(1) defines indecency with a child as touching the genitals, breast, or anus of a child, either above or under the child’s clothing, with intent to arouse or gratify the sexual desires of the person initiating the touching.


These are two distinct, separate offenses.


Before Jefferson’s trial, the prosecutor filed a motion with the court to amend the indictment to include two additional sexual assault counts: 1) the victim’s mouth making contact with Jefferson’s sexual organ, and 2) Jefferson’s mouth making contact with the teen’s organ.


The trial court granted the motion.


State Amends Indictment Adding Counts Without Proper Objection


Defense counsel did not object to the motion or the court’s ruling on the motion.


In June 2018, Jefferson was found guilty in an Abilene courtroom on all four counts. The jury sentenced the 70-year-old to concurrent 35 years, 45 years, and 45 years on each of the sexual assault charges and 25 years on the indecency charge.


Jefferson filed a motion for a new trial following his conviction, alleging ineffective assistance of counsel because counsel failed to object to the two amendments, which alleged two additional and different crimes. The Texas Code of Criminal Procedure Art. 28.10(c) does not permit such amendments when defense counsel makes a proper objection.


Jefferson’s counsel testified at the motion for a new trial hearing that he objected, but it was off the record.  In order for an objection to be properly preserved for appeal it must be made on the record and a ruling obtained from the trial court.


Jefferson appealed his conviction to the Eleventh District Court of Appeals. He essentially raised both the improper amendment and ineffective assistance claim. Regarding the first claim, the appeals court ruled that the amendments were not “additional or different” offenses because they were part of the initial indicted sexual assault offense.


11th District Court of Appeals Strains to Preserve Conviction


The appeals court then went out of its judicial way to reject Jefferson’s ineffective assistance claim based on his attorney’s failure to make a proper Art. 28.10(c) objection. The court concluded:


  • The trial court could have accepted the lawyer’s claim that he objected off-the-record, rendering the ineffective assistance claim moot;
  • The trial court could have concluded that defense counsel indeed failed to object but that the decision to do so was strategic; and
  • The trial court could have found that since the defense to all three sexual assault charges was the same, there was no prejudice produced by the improper amendments, and, even if there had been prejudice, that issue was waived by counsel’s failure to object.


The Texas Court of Criminal Appeals(“TXCCA”) was not so generous. The court opened its July 22 decision with the following question: “… whether adding a count constitutes adding an additional offense to the indictment and whether counsel should have known that.”


The TXCCA answered both questions with a resounding “yes” thereby rejecting the Eleventh District Court of Appeals’ analysis of both issues.


The TXCCA also rejected the prosecutor’s argument that since the Art. 28.10 issue was not raised in the trial court, it was not properly before the CCA. The court said that Jefferson’s ineffective assistance of counsel claim sufficiently presented the issue to the court of appeals below, making it eligible for discretionary review by the TXCCA.


Amendment Adding Counts Added Offenses to the Indictment


Relying on its own precedent that an indictment cannot authorize more convictions than there are counts, the CCA instructed both the prosecutor and the trial judge that: 


“This is because a ‘count’ is the statutory method of alleging a separate offense in an indictment. So when the State amends an indictment to add counts, it is adding allegations of separate offenses to the indictment. The original indictment in this case authorized only two convictions. The fact that the State obtained four convictions under the amended indictment necessarily means the State added offenses to the indictment.”


That legal premise is simple: It is a rule that has been in place since the CCA announced it in 2007 in Martinez v. State. The Martinez Court explained it this way:


” When the State wishes to charge multiple offenses in a single indictment, it is required by statute to set out each separate offense in a separate “count.” TEX. CODE CRIM. PROC., Art. 21.24(a). Then separate “paragraphs” within a single count may allege different methods of committing the same offense. Art. 21.24(b). But since each “count” alleges a single offense, an indictment cannot authorize more convictions than there are counts….Permitting more convictions than authorized by the indictment implicates a defendant’s due-process right to notice. Under the Due Process Clause of the Fourteenth Amendment, a defendant has the right to notice of the charges against him…Permitting more convictions than the indictment authorizes performs the function of an implied amendment to that indictment and thus also implicates the defendant’s constitutional right to a grand jury screening of the charges.”


It is not difficult to believe that the prosecutor deliberately ignored the Martinez rule so as to stack as many convictions in the indictment as possible. And that the trial judge allowed the prosecutor to circumvent the Martinez rule for that very reason.


Defense Counsel Failed to Object


Defense counsel does not get a free pass either.


 The TXCCA thoroughly took the court of appeals out behind the judicial woodshed because of the way the court analyzed Jefferson’s ineffective assistance claim. 


Jefferson’s claim was direct, straight to the point: 


Was counsel’s failure to properly file an on-the-record Art. 28.10(c) objection “deficient,” and if so, whether that deficiency resulted in “prejudice” sufficient to undermine the jury’s guilty verdicts, as required under U.S. Supreme Court precedent in Strickland v. Washington?


The 11th District Appeals Court judicially hop-scotched around the deficient/prejudice analysis required by Strickland with its own convoluted analysis that, in effect, giving Jefferson’s counsel a free pass.


The defense counsel had an obligation to his client to make a proper on-the-record Art. 28.10(c) objection. All lawyers should know that an “off the record” objection is just that and fails to preserve error for appeal. Defense counsel failed that obligation and effectively conceded as much with his assertion that he made an off-the-record objection. Section 2 of Art. 28.10 specifically provides:


“When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.”


These sorts of collective failures occur every day in some courtroom somewhere in Texas. It is vital that defense lawyers remember that the law is the “law” only when it is raised, preserved, and respected by the courts. 


The same applies to the courts.


 In the Jefferson case, the 11th District Court of Appeals disrespected the rule of law set out in Martinez. Fortunately, the CCA recognized the failures and took steps to remedy them.