I have a "super" agg. Sx. aslt. of child case going to trial and I am working on the jury charge. Came upon the issue of lesser included should the jury not find sbi or threat. When I wrote in the lesser language it made no sense when, under the law, the crime is the same just an enhanced sentence w/ the aggravating findings.

Would it not be more proper to submit the jury charge as a "straight" agg. sx. aslt. of child and place the aggravating factors as special issues to be decided by the jury. What do you think? Can I do that? Should I? Why or why not?

No, the way it was written by the Leg, those aggravating facts are elements of the offense. They were not designated as punishment issues. If you try to present them as punishment issues, the defendant can cut you off at the knees and say that violates the Penal Code.

So, start off by giving the aggravated sexual assault with enhancing facts a special name (e.g. "Super" Aggravated Sexual Assault). Then, make the consideration of the lesser included referenced by a lesser name (e.g. "Just Plain Old" Aggravated Sexual Assault).

Seriously, though, identify the indicted version as aggravated sexual assault with enhancing facts and the lesser included as aggravated assault. Put those phrases in the jury charge and verdict forms.

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Originally posted by JB:
No, the way it was written by the Leg, those aggravating facts are elements of the offense. They were not designated as punishment issues. If you try to present them as punishment issues, the defendant can cut you off at the knees and say that violates the Penal Code.

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I don't understand. The special issue would be in the guilt innocence charge. So it would requite them to place a unanimous affirmative finding on either of the elements of SBI or threat. How does it become a punishment issue?

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Seriously, though, identify the indicted version as aggravated sexual assault with enhancing facts and the lesser included as aggravated assault. Put those phrases in the jury charge and verdict forms.

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But then aren't we running afoul of the fact that those offenses don't exist under the code. There is no Agg. Sex assault w/ enahancing factors listed in the code by title. In essense we are having to invent language.

Just trying to have all my arguments ready for the court.

That's what the TDCAA charge bank calls it. I like it. (Click on the Jury Charges link above).
I agree with JB, put it all in one application paragraph with a lesser of regular aggravated sex. assault. Special issues can certainly be successfully defended on appeal, but it seems cleaner to do it the regular way.

Don't worry about what you call it in the jury charge. You could call it "murder" for all the law cares, and it would certainly confuse the jury, but it wouldn't mean that D would be convicted of murder. The name is just to help the jury navigate from application paragraph to application paragraph.

As long as the elements are there, you're good. Just keep it simple and use plain language.