Can you get a sexual assault charge dismissed in Texas?

By Jose Ceja
Managing Attorney

Sexual assault is one of the most serious crimes in Texas. All forms of sexual assault carry the potential for prison time and sex offender registration. In the Houston area, allegations of sexual assault are typically handled by special divisions of the District Attorney’s Office by seasoned prosecutors with experience in handling sex cases. But with so much on the line, is it possible to get a sexual assault case dismissed? 

It is possible to get a sexual assault case dismissed, but it can be very difficult. Due to the severity of these crimes, District Attorney’s offices never dismiss sexual assault cases without a fight. In Houston, the Harris County District Attorney’s Office is very sensitive to negative publicity regarding its handling of child sex assault cases in particular and often do not usually dismiss cases without the approval of people high in the chain of command. 

Additionally, sexual assault cases do not require more than the word of the accuser so a lack of evidence on its own may not typically lead the dismissal of the case. Unlike many other types of criminal cases, sex crimes are frequently prosecuted with no tangible evidence other than the word of the accuser. As a result, unless the accuser recants or tells a story that is plainly impossible, prosecutors will frequently take the position that an allegation is true despite being unsupported by any other evidence. 

In the right situation, one way to attempt to get a sexual assault case dismissed is by using a Grand Jury packet. A Grand Jury packet is a set of materials that a sex crimes attorney will provide to a Grand Jury to attempt to persuade the Grand Jury to not indict a defendant. In Texas, almost every felony case will be presented to the Grand Jury, which is a group of people who listen to evidence in a case and decide whether or not there is probable case. When probable cause is found, a case is considered to be indicted. 

In a sex assault case, a Grand Jury packet might contain letters of character reference, background about the defendant or accuser, a polygraph (a so-called “lie detector test”) examination, records and a letter from the sex crimes attorney explaining the allegation and why the Grand Jury should refuse to indict a case.   

It is somewhat rare for an experienced sex crimes attorney to file a Grand Jury packet in a sex crimes case. There are several reasons for that. First, as noted above, sex crimes cases are frequently prosecuted with minimal evidence, and if the case is just based off of the word of an accuser, then a prosecutor will typically sway the jury to indict a defendant (sex crimes attorneys know that a prosecutor has great influence over whether or not a Grand Jury indicts a defendant). Another reason that Grand Jury packets in sex crimes are rare is that when a sex crimes attorney submits one, he may be revealing the defense’s strategy. For example, if a Grand Jury packet alleges that a false allegation of sexual assault of a child was made to gain advantage in a divorce proceeding, then the prosecutor will be able to anticipate that defense if the case goes to trial. 

Although filing a Grand Jury packet in a sex case is rare, our office occasionally uses this tool. Some time ago, attorney Jose Ceja filed a Grand Jury packet in a case where a young man was charged with sexual assault after having sex with a woman who represented herself as being an adult and was sexually aggressive. Moreover, the young woman had a prior theft conviction, while the young man had no criminal history and was held in high regard by the people who knew him best. Additionally, we felt that the prosecutor was at least neutral in this case and would not go out of his way to sway the jury to indict our client. In this case, the Grand Jury did not find probable cause and our client’s case was not dismissed. But as this blog post should make clear, using a Grand Jury packet in a sexual assault case is an art that requires the expertise of an experienced sex crimes attorney. 

Occasionally, sexual assault case will be dismissed due to lack of cooperation of the alleged victim. Many people incorrectly believe that the alleged victim in a criminal case can “drop” the charges and a case will automatically be dismissed. This is incorrect. In a sexual assault case – or any criminal case – the State of Texas can go forward with a criminal case regardless of the wishes of the alleged victim. As a practical matter, however, when the alleged victim is not cooperative and will not speak with prosecutors and refuses to testify at trial, prosecutors are sometimes forced to dismiss a case. Due the to right of confrontation that criminal defendants enjoy in criminal cases, in most instances, prosecutors need the testimony of the alleged victim to prove the case unless there was another witness to the alleged incident. 

Finally, cases can also be dismissed if prosecutors have doubts about the truthfulness of the alleged victim. Unfortunately, most prosecutors essentially take the position that an alleged victim in a sexual assault case would never lie, even when the evidence indicates that they are being untruthful. But when a reasonable prosecutor is confronted with strong evidence that an accuser is lying, they may do the right thing and dismiss the case. When a sex crimes attorney has information that an alleged victim is lying a sex crimes attorney should proceed with caution, it can be risky to share this information with a prosecutor. Too often, a prosecutor will simply add information from a defense attorney to his file and use it to prepare for trial and figure out how to minimize the significance of the lie, rather than dismiss a case. 

Sexual assault cases are incredibly complex and involve technical, legal and strategic issues that are not involved in other criminal cases. For this reason, it is critical that you hire an experienced sex crimes attorney if you are charged with any sex crime. Attorneys Jose Ceja and Abigail Anastasio handle sex cases throughout the Greater Houston area. If you are under investigation for, or have been charged with any sex crime, call Ceja Law Firm today.

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.