PD-0677-21 12/08/2021
1. “The 11th Court of Appeals erred where it decided an important question of state law, specifically what constitutes an ‘additional or different offense’ in the context of Texas Penal Code section 22.011(a)(2), based on erroneous statutory interpretation that conflicts with decisions of the Court of Criminal Appeals.”
2. “The 11th Court of Appeals erred where it applied an incomplete, and therefore wrong standard to dispose of Appellant’s ineffective assistance of counsel claim.”
Jefferson was charged with two counts of sexual offenses committed against a child. The first was sexual assault by penetrating her sexual organ with his sexual organ. Tex. Penal Code § 22.011(a)(2)(A). The second was indecency by sexual contact by touching her breast with his hand. Tex. Penal Code § 21.11(a)(1). The State moved to amend the indictment by adding two counts of sexual assault of a child: causing the victim’s mouth to contact Jefferson’s sexual organ and causing the victim’s sexual organ to contact Jefferson’s mouth. Tex. Penal Code § 22.011(a)(2) (C), (E). No objection appears in the record. The motion was granted. Jefferson was convicted as charged and the sentences ran concurrently. He filed a motion for new trial alleging ineffective assistance of counsel (IAC), for failing to object to the amendments because they alleged “an additional or different offense,” which cannot be done over objection. See Tex. Code Crim. Proc. art. 28.10(c). His motion was denied after a hearing in which trial counsel claimed he objected off the record.
On appeal, Jefferson renewed his IAC “amendment” claim. The court of appeals reviewed the IAC claim for abuse of discretion and affirmed on four alternative grounds. First, it implicitly held that the amendment did not add “additional or different offense[s]” because the new allegations were of the same statutory offense. It cited Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991), and an unpublished case from Amarillo. Second, the trial court could have accepted counsel’s claim that he objected off the record, making the IAC claim that he didn’t moot. Third, the trial court could have rejected counsel’s claim that he objected but further could have concluded that his failure to object was strategic. Fourth, Jefferson’s substantial rights were not affected because his defensive theory was the same for all offenses. See Tex. Code Crim. Proc. art. 28.10(c) (forbidding amendment over objection “if the substantial rights of the defendant are prejudiced”).
Jefferson’s petition raises multiple complaints about the court of appeals’s IAC analysis. First, holding that additional charges are not “additional or different offenses” if they fall under the same statutory section ignores that they fall under different subsections that are based on distinct conduct that results in multiple convictions. See Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (“Our determination that the two indictments alleged violations of separate and distinct statutory aggravated sexual assault offenses and that those alleged offenses involved separate and distinct acts ends the inquiry for double jeopardy purposes.”). Second, Jefferson says the court of appeals cannot uphold on the implicit finding that trial counsel had a strategic reason for not objecting when counsel said he did object. Third, he was prejudiced because, although the sentences ran concurrently, the sentences for the complained-of convictions are ten years longer than the next highest sentence.
