If a case is indicted under 22.011(a)(2): Sexual Assault of a Child, will the state be required to disprove consent if the defense is alleging the affirmative defense under 22.011(e): 3 year age difference?

The affirmative defense instruction reads as though if the jury finds that the defendant is within the 3 year age range, he is automatically acquitted, but it does not discuss the issue of consent.

Any help would be greatly appreciated.

It's still sexual assault to cause non-consensual sexual contact with ANY person. It's sexual assault to have sex with someone younger than 17 WITH their consent if you're more than 3 years older.

What I don't know is if that means you have to re-indict. I think it might.

I agree with John. If the offense is based on lack of consent (for reasons other than the victim was under the age to provide consent)it should always be charged under 22.011(a)(1).