PD-0480-24 08/21/2024
State’s Issues
(1) “If an indictment’s grammar and usage errors produce awkward phrasing, does Delarosa v. State, 677 S.W.3d 668 (Tex. Crim. App. 2023), direct that it has failed to make an allegation?”
(2) “Can an indictment that sets out all the statutory language for an enhancement in the body be said to be ‘facially complete’ for the unenhanced offense—i.e., that it appears to allege the unenhanced offense and only the unenhanced offense?”
Granted on the Court’s Own Motion
Is Subsection (f) in Section 22.021 of the Penal Code an element of the offense or a punishment enhancement?
Gutierrez was indicted with aggravated sexual assault of a child (ASAC). The indictment also included additional language purporting to charge a 25-year-minimum “Super” ASAC enhancement. One statutory means to that enhancement is if the defendant “by acts or words places the victim in fear … that . . . kidnapping would be imminently inflicted on any person.” Although very close, the indictment did not strictly follow this phrasing:
and the Defendant did then and there by acts or words threaten to cause, or place, the complainant in fear that kidnapping would be imminently inflicted on [K.C.], and the acts or words occurred in the presence of the complainant.
The “threaten to cause” and concluding phrase “the acts or words occurred in the presence of the complainant” come from a different statutory means to the same enhancement. The defendant never complained of any indictment errors, and he was convicted.
On appeal, Gutierrez argued that the evidence was insufficient to prove that the victim was in fear that K.C. would be kidnapped. The court of appeals did not reach that issue. Instead, it held that the State had not properly alleged the enhancement and thus Gutierrez’s convictions for that enhanced offense could not be sustained. Because parts of two statutory means for the enhancement had been included in the indictment but neither were accurately tracked, neither had been alleged. The phrasing of the indictment didn’t make sense because a person cannot “threaten to cause [the victim] in fear that kidnapping would be imminently inflicted.” In reliance on Delarosa, the court of appeals concluded that the indictment facially charged the complete offense of ASAC and that the State would be held to that offense even though it intended to charge Super ASAC. The court of appeals reformed the judgment to ASAC and remanded for a new punishment hearing.
The State argues that the indictment alleged the enhancement. It contends that the defects were forfeited by Gutierrez’s failure to complain in the trial court and that the court of appeals’s decision otherwise contradicts forty-year-old indictment-error reforms requiring a trial objection. It also argues that the court of appeals misread Delarosa to require precise tracking and that, unlike with a true facially complete indictment, the indictment put Gutierrez on notice that an enhancement was intended and was, at most, defectively alleged. It was of no importance that the court of appeals was able to locate a “facially complete” offense within the indictment language; this should not determine what offense has been alleged or the indictment-error reforms would never apply to defects in an enhancement.
