“The court of appeals erred in finding egregious harm, where the record is clear that the jury understood that a conviction for the lesser included offense of attempted sexual assault would be based on Appellant’s attempted penetration of the victim’s sexual organ by Appellant’s sexual organ.”
Reed was charged with sexual assault for penetrating the victim’s sexual with his penis. The trial court granted his request for the lesser offense of attempt. The application paragraph of the instruction authorized the jury to convict Reed of attempt if he penetrated the victim’s sexual organ by any means. The jury convicted on the lesser.
On appeal, Reed claimed that the attempt offense charged impermissibly expanded the definition (i.e., by any means) beyond the original charge (i.e., penetration with his penis). A majority of the court of appeals agreed and held that Reed was egregiously harmed. It observed that Reed had admitted he penetrated the victim’s sexual organ with his mouth, not his sexual organ, and that theory was central to his defense. Because the jury could have convicted on a means not originally charged, the expanded attempt charge affected the very basis of the case.
The dissent agreed that the attempt charge was erroneous but disagreed on harm. It pointed out that no one argued anything other than penetration or attempted penetration with Reed’s penis could support a guilty verdict. Thus, the jury was told it was limited to the penis-penetration theory of conviction.
The State challenges the lower court majority’s harm analysis. It contends that it only argued for the completed offense charged. And the defense abandoned any reliance on the mouth theory to support the attempt and explained the attempt as an unsuccessful effort to penetrate with his sexual organ. The State also notes that the penis-limited application paragraph for sexual assault was referred to in the application paragraph for attempt. The jury would have understood that penetration with Reed’s penis was the only issue from the arguments and the charge.