Dallas published a very troubling case today, and I was wanting to get some opinions on it. The case is Dudley v. State, available on the Dallas site or Westlaw.

The essence of the case is that the defendant was charged with aggravated sexual assault of a child for penetrating her sexual organ with his finger. He pleaded to indecency as a lesser offense, then promptly appealed it and said the trial court didn't have jurisdiction to convict him for that because it was not a lesser of ASAC. Dallas agreed, saying under the new Hall analysis, indecency is not a lesser because it contains an additional element, intent to arouse or gratify sexual desire.

Now, there are a host of cases Dallas didn't address saying that indecency is a lesser. The implication was that Hall provided a new analysis and those cases were irrelevant, but I wonder if other courts will see it the same way. I definitely anticipate a PDR.

But in the meantime, what does this mean for actual practice? Does this mean that we can now get convictions for ASAC and indecency out of the same event?

Also, does anyone else think that the defendant shouldn't be able to plea to a lesser and then complain it isn't really one??

The CCA just granted review on whether the cognate pleading approach applies to plea bargains and whether or not a defendant is estopped (or can be) from complaining about it if he takes the deal.

Here's a link to brief discussion of that case (if you're interested), Murray v. State, that also has hyperlinks to the cases involved.

I think McKinney v. State might create a problem on the estoppel argument, but it could be distinguished. McKinney got rid of estoppel as a way of challenging the legal sufficiency of a lesser when the defense requests the instruction, but the idea behind that was the defendant isn't affirmatively waiving anything by requesting the lesser (I disagreed, but I'm nobody). In a plea bargain case, though, it does seem more like an affirmative waiver.

However, does pleading to a . . . I can't think of a good word . . . non-available? . . . lesser implicate jurisdiction?

quote:

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Originally posted by David Newell:
However, does pleading to a . . . I can't think of a good word . . . non-available? . . . lesser implicate jurisdiction?

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That's how Dallas worded it -- the trial court didn't have jurisdiction to convict him on a not-really-lesser.

And hah, I knew I'd seen something about the plea bargain recently.

We caught one of those before sentencing. Told the prosecutor to redo the plea to an information for indecency by contact. The safest approach is, if there is any doubt, to file a new information pleading the offense that is the object of the plea.

Since indecency and sexual assault are both second degrees you can get the same effect by doing the plea to sexual assault which is definitely a lesser included.

That only works if you're doing a plea, though. I'm concerned about how this actually works in trial. In almost every agg sex I've seen, it's two options for the jury -- agg sex if you believe he penetrated, indecency if you think it was just contact.

In our county, we usually indict everything as separate counts, so we'll have "Count I, agg sex, Count II, indecency" to choose from instead of actual lesser-includeds. But if indecency isn't a lesser, does that mean we could now get convictions on both counts there?

Based on the Dallas court's analysis, it appears that two convictions (ASAC & indecency) would be possible, since each offense has an element that the other does not (penetration / arouse or gratify). It looks to me like this situation would pass the Blockburger analysis, so jeopardy would not be implicated. Another course of action would be to indict for ASAC, and if unsuccessful, then indict for indecency. In the "silver lining" department, based on this case, defense should NOT be able to get an instruction on indecency in an agg sex asslt of child case. But, it may seem (to some jurors) like you are over-reaching if you indict both offenses in one indictment and seek convictions in one trial for both, so it may be better (assuming no limitations issue) to indict for one, and keep the other one in "reserve".