PD-0197-22 06/22/2022
1. “Did the Court of Appeals err in finding that the evidence was sufficient to convict Delarosa of Sexual Assault?
a. Did the Court of Appeals err in finding that minority is a mental defect rendering consent invalid for the purposes of Sexual Assault?
b. Did the Court of Appeals err in finding the evidence was sufficient to find that any sexual contact between Petitioner and the victim was without her consent?”
2. “Did the Court of Appeals err in finding that the jury charge did not egregiously harm Petitioner when it instructed the jury on an offense that the Petitioner was not charged with?”
Delarosa engaged in a sexual relationship with his daughter’s friend, a child younger than seventeen. He was charged with three counts of sexual assault. The indictment did not allege the victim was a child. Instead, it alleged Delarosa acted “without the consent of the complainant.” The charge, however, did not ask the jury to find Delarosa acted without consent. It asked the jury to decide whether Delarosa committed the acts against a child younger than seventeen. There was no objection. Delarosa was convicted.
On appeal, Delarosa said the evidence was insufficient and, alternatively, that he was egregiously harmed by the erroneous charge. The court of appeals agreed that the hypothetically correct charge requires proof of lack of consent, and recognized the victim’s claim that she and Delarosa were in love. In affirming on sufficiency, it relied on Tex. Penal Code 22.011(b)(4), which says a sexual assault is without consent if “the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it[.]” Because Delarosa knew of the victim’s minority—a “defect” making consent impossible—there was a lack of consent. The court of appeals also rejected Delarosa’s related charge error claim. Despite the fact the jury was never asked to pass on consent, the court found no egregious harm because 1) his defense was a denial of sexual conduct, 2) the evidence focused on his grooming and manipulation of his daughter’s friend, and 3) the evidence conclusively proved he knew the victim was younger than seventeen.
Delarosa attacks both holdings. First, there is no basis upon which to interpret “mental disease or defect” to include simple minority. Not only is it inconsistent with the plain language of Section 22.011(b)(4), it would render Section 22.011(a)(2)—sexual assault of a child—superfluous. Further, the evidence does not support the latter half of (b)(4)’s definition. As for charge error, Delarosa says the court of appeals ignored or misconstrued parts of the record that show he contested consent while the State focused on the victim’s age rather than consent.
