DELAROSA, FRANCISCO JR. v. the State of Texas

In the Court of Criminal
Appeals of Texas
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Nos. PD-0197-22, PD-0198-22, PD-0199-22
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FRANCISCO DELAROSA, JR., Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Ninth Court of Appeals
Liberty County
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YEARY, J., filed a dissenting opinion.

Appellant presented the Court with two grounds for review. The
first asked the Court to assess whether the court of appeals erred “by
finding the evidence sufficient to convict [him] of sexual assault.” And
the second asked whether the court of appeals erred “in finding that the
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jury charge did not egregiously harm [him] when it instructed the jury
on an offense that [he] was not charged with” committing.
I. Sufficiency of the Evidence
Because it is the easier question, I will address sufficiency of the
evidence first. Appellant’s first ground for review begins from a flawed
premise. He was not convicted of “sexual assault.” See TEX. PENAL CODE
§ 21.011(a)(1) (Sexual Assault). If he had been, then he might have been
right about the evidence being insufficient to sustain his conviction. I
have seen no evidence in the record of this case demonstrating that
Appellant’s actions were committed without the consent of the victim as
would be required to sustain a conviction for that offense. See Jackson
v. Virginia, 443 U.S. 307, 324 (1979) (establishing the standard for
measuring sufficiency of the evidence).
The jury’s verdicts, instead, found Appellant guilty of sexual
assault of a child. Likewise, his judgments reflect convictions for sexual
assault of a child. See TEX. PENAL CODE § 21.011(a)(2) (Sexual Assault
of a Child). It seems to me that the starting point of any review of the
sufficiency of the evidence to sustain a conviction is an examination of
the substantive elements of the offense for which the defendant was
actually convicted, and the substantive elements of that offense as
defined by state law—not an offense the jury might have convicted him
of had the trial court’s instructions to the jury been given differently.
See In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that
the Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”)(emphasis added);
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Jackson, 443 U.S. at 324 n.16 (explaining that the standard of review
for sufficiency of the evidence “must be applied with explicit reference to
the substantive elements of the criminal offense as defined by state
law”). In this light, it is clear to me that the evidence was manifestly
legally sufficient to show that Appellant committed sexual assault of a
child—the offense for which he was actually convicted.
The court of appeals measured the sufficiency of the evidence
against the elements of an offense Appellant was charged with
committing—non-consensual sexual assault—but one that was not
ultimately submitted to the jury for its consideration. Appellant was not
found by the jury to be guilty of that offense, and he has not been
convicted of it in the judgments. In my view, by focusing on the
sufficiency of the evidence to prove an offense Appellant was not
convicted of, the court of appeals erred. The court of appeals also erred
to order that Appellant’s judgments be reformed to reflect convictions
for sexual assault. The jury did not pass on that question by its verdicts,
and Appellant has not been shown to have waived his right to a jury
trial for that offense. See TEX. CODE CRIM. PROC. art. 1.13 (explaining
that a defendant’s waiver of his right to a jury is only effective if the
waiver occurs “in person by the defendant in writing in open court with
the consent and approval of the court, and the attorney representing the
state.”)
II. Submission of Charge on Sexual Assault of a Child
Appellant’s second ground for review is more complicated.
Appellant contends that he was “egregiously harm[ed]” because the trial
court “instructed the jury on an offense that [he] was not charged with”
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committing—sexual assault of a child. He must argue egregious harm
because he made no objection to the jury charges on this basis at trial.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.1985) (op. on
reh’g). The application paragraph in the trial court’s charges to the jury
instructed it to answer whether Appellant was guilty of sexual assault
of a child. Appellant contends that the sexual assault of a child
instructions were both erroneous and egregiously harmful because they
related to “unindicted offenses.”
Regarding the adequacy of an indictment, Article 1, Section 10, of
our state constitution provides in pertinent part:
no person shall be held to answer for a criminal offense
unless on an indictment of a grand jury, except in cases in
which . . .

TEX. CONST. art. I, § 10 (emphasis added). Article 5, Section 12(b) of our
state constitution further provides, in part, that:
An indictment is a written instrument presented to a court
by a grand jury charging a person with the commission of
an offense.

TEX. CONST. art. V, § 12 (emphasis added). And finally, Article 21.01 of
our Code of Criminal Procedure provides that “[a]n ‘indictment’ is the
written statement of a grand jury accusing a person therein named of
some act or omission which, by law, is declared to be an offense.” TEX.
CODE CRIM. PROC. art. 21.01 (emphasis added). So, before a person may,
consistent with our constitution and in the absence of a waiver of the
right to indictment, be put to trial for an ordinary felony offense, the
person must first be “accus[ed]” or at least “charg[ed]” by a grand jury,
in an indictment, with committing that offense.
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It is true that the body of Appellant’s indictment, following the
words of commencement, seems without error to have accused him of
committing ordinary sexual assault. As I pointed out earlier, to sustain
a conviction for ordinary sexual assault as alleged in that part of his
indictment would require proof that the victim did not consent to
Appellant’s conduct against her. TEX. PENAL CODE § 21.011(a)(1). It is
also true that the evidence presented at Appellant’s trial appears
insufficient to sustain his conviction for that offense because it fails to
show that the victim, even though a child, did not consent to Appellant’s
conduct in the sense required by that statute.
But Appellant’s indictment—even if only by reference to language
appearing in its caption—also seems to have “[c]harge[d]” Appellant
with some other offenses, to wit: three counts of sexual assault of a child.
This offense does not require evidence of the victim’s lack of consent, and
in place of that evidence requires only evidence that the victim was a
child. TEX. PENAL CODE § 21.011(a)(2). For me, the truth of this is
confirmed when I examine Appellant’s indictment without the language
accusing him of ordinary sexual assault. Here, I show what that would
look like:
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This document states the name and number of the court where it
is assigned, the cause number, the fact that it involves a case styled:
“The State of Texas vs. [Appellant][,]” the fact that it purports to be a
“TRUE BILL OF INDICTMENT[,]” and the fact that the “[c]harge” it
relates to is three counts of sexual assault of a child. Finally, the
document is signed by the “Foreman of the Grand Jury[,]” which is a
clear indication that the “[c]harge[s]” in the indictment, in fact, reflect
accusations made by the grand jury itself.
This examination of the indictment persuades me that, even
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though Appellant’s indictment contained arguable “defect[s], error[s], or
irregularit[ies] of form or substance[,]” TEX. CODE CRIM. PROC. art.
1.14(b), it most certainly was “a written instrument presented to a court
by a grand jury charging him with the commission of an offense.” See
TEX. CONST. art. V, § 12. Clearly Appellant’s indictment charged him
with sexual assault. But it also, within its caption, specified that it
“[c]harge[d]” him with sexual assault of a child.
I must admit, my thinking about this case might differ had the
word “Charge[,]” and the words “Count I[,]” “Count II[,]” and “Count III”
not appeared in the part of the caption of the indictment that listed three
counts of sexual assault of a child. Had those words been omitted, all
that the caption would have included would have been a list of three
penal offenses that were not alleged in the body of the indictment and
that otherwise contained no indication that the grand jury had passed
on their inclusion as allegations in the indictment. In that event, I might
not have found it to be clear that the grand jury authorized Appellant to
be tried for those offenses. But because those offenses were preceded by
the words “Charge” and “Count[,]” it is clear to me that the grand jury’s
true bill of indictment indeed charged and accused Appellant of those
sexual assault of a child offenses.
Furthermore, any effective counsel should have noticed the
discrepancy between what was “[c]harge[d]” according to the caption of
the indictment (sexual assault of a child), and the “sexual assault”
offense that was otherwise alleged in the body of the indictment. The
accused and his counsel could have argued, before the day of trial, that
the indictment contained “a defect, error, or irregularity of form or
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substance” in that the “[c]harge” as described by the caption—three
counts of sexual assault of a child—was in conflict with the allegations
in the body of the indictment, which accused him of only three counts of
sexual assault. But Applicant did not raise that objection, so it is waived
and forfeited. See TEX. CODE CRIM. PROC. art. 1.14(b) (“If the defendant
does not object to a defect, error, or irregularity of form or substance in
an indictment or information before the date on which the trial on the
merits commences, he waives and forfeits the right to object[.]”). 1
In the absence of such an objection to the pleading, the trial court
was authorized to submit the sexual assault of a child theory of the
offense to the jury in its charges. I see no error in the jury charges arising
from the fact that the trial court did so, at least in the application
paragraph. For that reason, I would also reject Appellant’s ground for

1 I recognize the Court’s argument that this places the defense in an odd

position. See Majority Opinion at 17 (“It would be perverse to rescue the State
from its inattention to that duty”—i.e., its duty to prepare the indictment—“by
requiring an arguably deficient performance by defense counsel”—that is, to
complain that the indictment charged a lesser offense than the State intended
to charge). I have made a similar point in cases before this Court in which the
trial court entered judgment for a greater offense than the jury verdict
authorized because of a missing element from the jury charge. See Do v. State,
634 S.W.3d 883, 905 (Tex. Crim. App. 2021) (Yeary, J., dissenting); Niles v.
State, 555 S.W.3d 562, 574 (Tex. Crim. App. 2018) (Yeary, J., dissenting). For
example, in Do I wrote that, “[o]nce again, as in Niles . . . this Court puts the
onus on a defendant to object on the State’s behalf when the jury charge fails
to require the jury to find an essential element of a greater-inclusive offense,
thus, resulting in the defendant’s de facto conviction for a lesser included
offense.” 634 S.W.3d at 905. The difference in this case is that, with respect to
indictment errors, the Legislature—not this Court—has put the onus on
defendants to object or waive any defect.
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review alleging egregiously harmful jury charge error. 2
III. Conclusion
Although not for the reasons stated by the court of appeals, the
evidence is legally sufficient to sustain Appellant’s conviction.
Furthermore, the indictment in this case was sufficient to authorize the
jury to consider Appellant’s guilt for the three counts of sexual assault
of a child. The Court, instead, concludes that the evidence is legally
insufficient to sustain Appellant’s conviction and therefore orders that
an acquittal be entered in his case.
I cannot agree with the Court’s conclusion. I, therefore,
respectfully dissent.

FILED: October 4, 2023
PUBLISH

2 This is not to say that the jury charge was wholly flawless. It should

not have instructed the jury with respect to one theory of the offense in the
abstract-definition portion of the charge (without effective consent) and then
instructed the jury with respect to a different theory of the offense (of a child)
in the application paragraph. Given that the application paragraph is the part
of the charge that specifically informs the jury what it must find in order to
convict, and the fact that there is no question the evidence presented supported
a conviction under that theory, I see no potential for egregious harm stemming
from this defect in the jury charge.