Texas Stamp


PD-0790-20 12/16/2020

(1) Is indecency by touching the victim’s sexual organ a lesser-included offense of penetrating the child’s mouth with the defendant’s sexual organ if the former is the defendant’s version of the incident?

(2) For indecency by contact to be a lesser of aggravated sexual assault, must the act on which the indecency is predicated have the potential to be factually subsumed within the aggravated sexual assault?

Hernandez led his 10-year-old victim to a storage shed where, according to her, he lowered her to her knees and put his penis in her mouth. She outcried soon thereafter and Hernandez was arrested. In his statement to police, he denied oral sex occurred in the storage shed but admitted he touched her sexual organ with his hand and hugged her while they were naked from the waist down. Hernandez was indicted for aggravated sexual assault of a child by penetrating the child’s mouth with his sexual organ. His trial testimony conformed to his account to police: he touched her sexual organ and neither her mouth nor her face touched his penis. During the hugging, however, “[a]t some point,” he admitted his penis touched her body. At the charge conference, Hernandez asked for a lesser-included instruction on indecency with a child, but this was denied. The jury convicted Hernandez of the indicted offense.

On appeal, Hernandez argued it was error to deprive him of a lesser on indecency by contact. The State argued that while indecency by contact could be a lesser of aggravated sexual assault of a child, it was not a lesser here. The court of appeals agreed indecency could be a lesser and that submission was warranted because the defendant’s testimony offered a valid, rational alternative version of the incident, i.e. that he only committed indecency by contact. Finding the error harmful, it reversed Hernandez’s conviction.

The State contends that neither of the indecencies that Hernandez admitted to (fondling her genitals or grazing her limbs or torso with his penis) can be a lesser of penetrating her mouth with his penis. The genital fondling involved none of the same body parts, and thus constituted different elements. Also, both the fondling and the grazing involved a different unit of prosecution than the oral sex charge. While the State acknowledged that touching part of the child’s body—i.e., her mouth or face—with the defendant’s sexual organ can be factually subsumed within the greater offense of penetrating the child’s mouth with his penis, that isn’t what Hernandez admitted to. Touching the victim’s torso or limbs necessarily would have been a separately prohibited act of indecency; Hernandez’s insistence that it was merely his version of events doesn’t change that.           

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