Texas Stamp


PD-1279-19 03/11/2020

   “Can error in a sexual-assault charge—which fails to specify that the defendant used his penis—be harmful when there was no evidence or claim that he used anything else?”

Castillo-Ramirez was charged with a single count of aggravated sexual assault of an elderly woman, specifically by using his sexual organ to penetrate her anus.  The victim testified Castillo-Ramirez anally and vaginally raped her—both with his sexual organ. His semen was found in her vagina but not in her anus. Castillo-Ramirez did not testify and did not offer any evidence that the victim was penetrated by anything other than his sexual organ. The application paragraph of the jury charge failed to track the “by means of his sexual organ” allegation but required anal penetration. He was convicted and raised the charge error on appeal.

 The court of appeals found the error egregiously harmful because it held that the means of penetration was contested and that Castillo-Ramirez built his defensive theory around that specific allegation.

 The State concedes the charge was erroneous but contends it could not have been harmful. It argues that the only means of penetration Castillo-Ramirez contested was the anal penetration—not whether he used his penis or something else. It also relies on the fact that the accusation portion of the jury charge and the parties’ closing arguments specified that the issue was anal penetration by sexual organ.

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