CRAWFORD v. STATE (2025)

OPINION

The body of Appellant's indictment alleged the elements of the offense of assault and, among other things, also alleged that Appellant knew that the victim was “a public servant, to wit: Menard County Deputy Sheriff.” The question here is whether this indictment permitted the State to obtain a conviction for the offense of assault on a peace officer. The court of appeals answered that question “no” and found that the indictment supported only the lesser offense of assault on a public servant. We disagree and conclude that, with the “deputy sheriff” allegation, the indictment permitted a conviction for assault on a peace officer.

I. BACKGROUND

A. Trial

Although the indictment contained two counts, only the first is at issue in this case. The body of the indictment for the first count provided, in relevant part:

Defendant ․ did then and there intentionally, knowingly, and recklessly cause bodily injury to Burl Hagler, hereinafter styled the complainant, by shoving Burl Hagler, by kicking Burl Hagler in the chest, or by kicking Burl Hagler in the groin, and the defendant knew that the complainant was a public servant, to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty, namely attempting to arrest Shawn Crawford.1

The caption of the indictment listed the type of offense as “assault peace officer/judge” and cited the Penal Code provision for assault against a peace officer.²

Appellant did not object to the indictment before the day of trial.

The voir dire proceedings contained several references to the offense being assault on a peace officer. In its opening remarks to the venire panel during voir dire, the trial court said:

The Defendant has already been introduced and he is charged, as I've referenced earlier, with the alleged offense of assault on a peace officer, an alleged second-degree felony and I told you what the range of punishment is in this State in the event and only in the event that a person is found guilty of that.

During her remarks, the prosecutor affirmed, “The charge is assault on a peace officer.” In questioning a prospective juror, the trial court asked, “Can you consider the maximum punishment in a case where someone has been found guilty of assault on [sic] peace officer?” Later, the trial court prefaced a question about being able to consider the full range of punishment with the statement, “[I]f a person is found guilty of assault on a peace officer under the allegations in this case, the minimum would be two years in prison and the maximum would be 20 years in prison and an optional fine up to $10,000.” Appellant did not object to any of these “peace officer” references.

After voir dire was completed, the jury was sworn, and the trial court made additional remarks. The prosecutor read the first count of the indictment to the jury, and Appellant pled “not guilty” to it.

Then, objecting to the indictment for the first time, defense counsel said, “Your Honor, I'm going to make an objection to the indictment read by the District Attorney.” When asked to state his objection, defense counsel responded:

Basically, it's styled as an assault on a peace officer, yet in the body of the indictment itself, it says that he's a public servant, and there is a distinction between assault on a peace officer, which is a second-degree felony, versus assault on a public servant, which is a third-degree felony, and takes into consideration the different punishment ranges.

The trial court deferred ruling on the objection until later in the trial.

At two later points during the trial, before the jury charge conference, the trial court asked defense counsel to expand on his objections. The first time, defense counsel suggested that there was “an apparent conflict in the indictment” but that the more specific statute—the peace-officer offense—controlled over the more general statute—the public-servant offense and made the offense a third-degree felony. In so saying, defense counsel seemed to have articulated part of his objection backwards, though he at least seemed to be suggesting that his client was entitled to the third-degree punishment range. The second time, defense counsel demurred, because he wanted a chance to research authority to present to the trial court. Both times, the trial court continued to defer his ruling.

At the jury charge conference, the trial court ruled against Appellant:

That—I've been carrying along the Defendant's objection about the—the charging instrument whether this—whether their indictment alleged is sufficient to make it a second-degree felony concerning the—the assault of a public servant, namely a peace officer, or whether it was insufficient and only alleged a third-degree felony. So I find that the State's indictment is—is sufficient to meet the standard of—and the notice clearly even at the top, it shows that it was a second-degree felony range. The Defendant's been put on notice of that. I even gave the instructions to the jury as to the range of punishment, without objection, at the beginning of the case as a second-degree and so I find that there is sufficient allegations in the indictment for the second-degree felony.3

Afterwards, the trial court permitted defense counsel to expand on his objection. Defense counsel said:

Judge, we are going to object to the characterization of this being an assault on a police officer charge. The title to the indictment that was handed down by the grand jury does, in fact, state assault on a peace officer, but, as we all know, title is not controlling nor is it indicative of anything. The body is the substance of the indictment. That is the crux of the charge that's levied against the Defendant, and that is what he's put on notice for. Not once in the body of that indictment is the word peace officer, those two words said. It doesn't invoke the punishment range for 22.01(b) dash 2. It invokes it for 22.01(b)(1). It's a public servant. There is an inference that's being drawn that because the words Menard County Sheriff's Deputy is articulated that that infers it's a peace officer and that is an inference that we are not capable of making. That is an inference saying that all Menard County Sheriff's Deputies are certified peace officers. That evidence is not in the record. That evidence has not been presented before the Court, nor has it been argued. This is an assault on a public servant charge, a third-degree felony. That's what we geared up for. That's what we believed it to be.4

At the beginning of the guilt-stage jury charge, the trial court instructed the jury, “The defendant, Shawn Edward Crawford, is accused of Assault of a Public Servant, to-wit: a peace officer.” Later, in stating the “accusation,” the jury charge quoted from the indictment, consistent with the language quoted earlier in this opinion.

Included in the jury charge's recitation of the abstract elements of the offense were:

3. the complainant was a public servant, to-wit: a Menard County Sheriff's Deputy; and

4. the defendant knew that the complainant was a public servant, to-wit: a Menard County Sheriff's Deputy.

Corresponding elements in the jury charge's application section were:

3. Burl Hagler was a public servant, to-wit: a Menard County Sheriff's Deputy; and

4. the defendant knew Burl Hagler was a public servant, to-wit: a Menard County Sheriff's Deputy.

The jury charge contained the definition of public servant found in the Penal Code ⁵ and contained a definition of “peace officer” derived from the Penal Code and the Code of Criminal Procedure.⁶ In accordance with the Code of Criminal Procedure, the peace-officer definition defined a peace officer to include, among other things, a deputy sheriff.⁷ The jury also received a verdict form, which included the options of finding Appellant “not guilty” or “guilty.” The “guilty” option stated: “We, the jury, find the defendant, Shawn Edward Crawford, guilty of Assault of a Public Servant, to wit: A Menard County Sheriff's Deputy, as charged in the indictment.”

After hearing testimony at the punishment stage and being given a punishment-stage jury charge, the jury assessed a sentence of twelve years in prison and a $10,000 fine. The trial court pronounced sentence in accordance with the jury's verdict. The twelve-year sentence was in the range of punishment for the second-degree felony of assault on a peace officer but not within the range of punishment for the third-degree felony of assault on a public servant.⁸

B. Appeal

On appeal, Appellant challenged the indictment, the jury charge, and his sentence. First, he claimed that the indictment alleged only the offense of assault on a public servant, a third-degree felony, not the second-degree felony of assault on a peace officer.⁹ The court of appeals agreed.¹⁰ Setting out the indictment, the court of appeals said that it “does not state that [Appellant] was charged with assaulting a peace officer.”¹¹ Instead, the court of appeals found that the indictment alleged that Appellant “assaulted a public servant who was working as a deputy sheriff at the time, ‘namely attempting to arrest [Appellant].’ ”¹² The appellate court said that “public servant” is not a layman's synonym for “peace officer.”¹³ The court further stated that it “cannot accept that ‘assault on a public servant’ and ‘assault on a peace officer’ will be used interchangeably, depending on the facts of the case.”¹⁴

And finding no defect in the indictment, the court of appeals rejected the State's reliance on cases that required a defendant to object to a defect in the indictment before trial.¹⁵ The court also rejected the State's contention that Appellant forfeited error by not objecting to references to “assault on a peace officer” in voir dire.¹⁶ The court concluded that “if the indictment is facially complete for a third-degree felony, the State cannot simply elect for it to be read as a second-degree felony by announcing it at voir dire.”¹⁷ Ultimately, the court of appeals concluded that the indictment was “facially complete for assault on a public servant.”¹⁸

Appellant challenged the jury charge on grounds that the indictment alleged only the offense of assault on a public servant.¹⁹ He claimed that the essential parts of the jury charge and the jury verdict form, patterned after the indictment, authorized conviction only for assault on a public servant.²⁰ The court of appeals agreed that the verdict form authorized a conviction only for assault on a public servant.²¹

Appellant's third claim was that his twelve-year sentence exceeded the two-to-ten-year range of punishment for the third-degree offense of assault on a public servant.²² The court of appeals agreed and remanded the case for a new trial on punishment.²³

II. ANALYSIS

A. The body of the indictment contains everything the State needed to prove.

In Delarosa v. State, the issue was whether the indictment in that case alleged the offense of non-consensual sexual assault, the offense of sexual assault of a child, or both.²⁴ The body of the indictment “completely alleged non-consensual sexual assault, omitting no element.”²⁵ As a consequence, the indictment body was “facially complete.”²⁶ By contrast, the body of the indictment did not allege the “child under 17” element needed to establish sexual assault of a child.²⁷ Although the caption of the indictment contained the phrase “sexual assault of a child” and cited the Penal Code provision for sexual assault of a child, the Court held that this information in the caption did not constitute an “allegation” for purposes of alleging an offense.²⁸ Consequently, the Court held that the indictment alleged only non-consensual sexual assault and did not allege sexual assault of a child.²⁹

But in the present case, the body of the indictment does allege a fact that establishes the “peace officer” element of assault on a peace officer—the victim being a “deputy sheriff.” Under the applicable Penal Code definition, “peace officer” is someone elected, employed, or appointed under Article 2.12 (now Article 2A.001) of Code of Criminal Procedure or other law.³⁰ Under Article 2.12, a deputy sheriff is defined as being a “peace officer.”³¹

It is true that the indictment does not contain the words “peace officer.” But a deputy sheriff is one of the definitions of peace officer, so all one has to do is look at the applicable statutes. Even when the State does not have to plead a definition of an element in the indictment, it can choose to do so.³² The fact that the definition appears without the term defined is immaterial. If the State had merely alleged that Appellant caused bodily injury to a deputy sheriff, without including “peace officer” or “public servant” language, there is little doubt that such an indictment would be construed as alleging an assault on a peace officer.

One can think of it this way: Did the grand jurors who assented to this indictment find every fact needed to establish the offense of assault on a peace officer? The answer, obviously, is that they did, because every fact needed for that offense can be found in the body of the indictment—including the allegation that the victim was a deputy sheriff, which, if proven, would establish that the victim was a peace officer.³³ Although the body of the indictment facially alleges assault on a public servant, with that public servant being more specifically described as a “deputy sheriff,” it is nevertheless true that the body of the indictment also includes every fact needed to convict of assault on a peace officer.³⁴

B. Descriptive averments count in tallying the elements of an offense.

Even as a mere description of the term “public servant,” the “deputy sheriff” allegation necessarily implicates the peace-officer offense. As we shall soon discuss, this is true because “descriptive averments” count for the purpose of tallying the elements of an offense.³⁵ This can be seen by reviewing how descriptive averments are treated in determining what lesser-included offenses are available.

In evaluating whether an offense qualifies as a “lesser-included offense” for the purpose of determining whether a party is entitled to its submission, this Court employs the “cognate-pleadings” approach.³⁶ Under the cognate-pleadings approach, a lesser offense is included if the charging instrument:

(1) alleges all of the elements of the lesser-included offense, or

(2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.37

The second method of identifying a lesser-included offense is instructive, because even mere descriptive averments can provide a basis for finding an offense to be included in a charging instrument. And that is true even though the descriptive averments are not statutory and are pled just to provide notice. And in determining whether an element of a requested lesser offense falls within a descriptive averment in a charging instrument, this Court applies a “functional-equivalence” test.³⁸ Under the functional-equivalence test, “[a]n element of the lesser-included offense is functionally equivalent to an allegation in the charged greater offense if the statutory elements of the lesser offense can be deduced from the elements and descriptive averments in the indictment.”³⁹

Even if the “deputy sheriff” allegation is a “descriptive averment,” it still counts in identifying lesser-included offenses. If, for example, there were an offense that would be a lesser-included offense of assault on a public servant, except for requiring that the victim be a deputy sheriff, then the offense would qualify as lesser-included under Appellant's indictment. And because of functional equivalence, if that hypothetical lesser offense had a more general element of “peace officer,” it would still be a lesser-included offense because “peace officer” could be deduced from the “deputy sheriff” allegation.

The idea that descriptive averments count applies logically to any offense that the State seeks to pursue under the charging instrument, regardless of whether we would want to label such an offense as “lesser.” The cognate-pleadings approach makes the charging instrument, not just the supposed penal statute at issue, the basis for tallying elements of the offense. The whole point of deciding whether an offense qualifies as “lesser included” under the cognate-pleadings approach is to decide whether it is included in the charging instrument. And anything that is included in the charging instrument is fair game for the State to pursue. In Grey v. State, we emphasized, “It is the State, not the defendant, that chooses what offense is to be charged.”⁴⁰ As part of that power, “the State can abandon an element of the charged offense without prior notice and proceed to prosecute a lesser-included offense.”⁴¹ And given that power, we further reasoned, “there is no logical reason why the State could not abandon its unqualified pursuit of the charged offense in favor of a qualified pursuit that includes the prosecution of a lesser-included offense in the alternative.”⁴² Because Grey recognizes the State's authority to pursue any allegations supported by the charging instrument, the conclusion is obvious: the State can pursue any offense that the allegations in the body of the charging instrument would support, and it can pursue such an offense alone or in the alternative as a lesser-included offense.⁴³ The body of Appellant's indictment contains allegations that would support a prosecution for assault on a peace officer, so the State had the option to pursue that offense, and it did.⁴⁴ The court of appeals was wrong to conclude otherwise.

C. When the offense the State wants to try is supported by the charging instrument, forcing the State to trial on a different offense is not an available remedy.

What is left is the idea that Appellant might have been misled because some language in the body of the indictment might support the notion that the State intended to charge the third-degree felony of assault on a public servant. But even if there is a residual notice problem in that regard, there remains the question of the appropriate remedy.

Because the indictment supported the peace-officer offense, the trial court could not force the State to pursue a different offense at trial. As we explained in Grey, it is the State, not the defendant, that gets to choose what offense to pursue under the charging instrument.⁴⁵ Even when an indictment improperly contains multiple offenses within a single count, the State is nevertheless “entitled to prosecute all of them.”⁴⁶ Although only one conviction is allowed per count, the trial court must structure any remedy to allow the jury to pass on any indictment-supported offenses the State wishes to pursue.⁴⁷ Requiring the State to abandon a supported-by-the-indictment offense that it wishes to pursue would effectively amend the indictment,⁴⁸ and the State cannot be forced to accede to such an amendment.⁴⁹ The only way to force the State to change an indictment is to quash it.⁵⁰

So, even if what occurred in the present case created some sort of notice problem for the defendant, the trial court could not have imposed the remedy of forcing the State to pursue the offense of assault on a public servant instead of the offense of assault on a peace officer. The trial court did not have the authority to force the State to submit to the jury an offense other than the peace-officer offense the State wished to pursue.

D. Other possible remedies were forfeited.

The thrust of Appellant's claim at trial and on appeal has been that he was entitled to be tried for the offense of assault on a public servant under the wording of his indictment. We have concluded that he was not in fact entitled to that remedy. But even if we construed Appellant's claim more liberally to include other possible remedies, his claim would still fail because these other remedies were not preserved.

To the extent Appellant's “objection to the indictment” could have been interpreted as an effort to have it quashed, the objection was untimely. To preserve error on a complaint that the indictment must be quashed, a defendant must object before the day trial begins.⁵¹ Appellant's objection after trial had begun was too late.

Another conceivable remedy would be a mistrial based on the idea that the defense was misled by language in the indictment.⁵² But to preserve error, a party must “let the trial judge know what he wants” as well as giving a reason for being entitled to relief.⁵³ Appellant never requested a mistrial. Moreover, preserving error requires that a party obtain a ruling or object to a refusal to rule.⁵⁴ When the trial court finally ruled on Appellant's objection, it ruled that the question before it was whether the indictment was sufficient to allege the second-degree felony of assault on a peace officer or was sufficient to allege only the third-degree felony of assault on a public servant. The trial court's ruling appears to have embraced only which offense the trial court and the jury would proceed on, not whether the trial would continue at all.

Moreover, it is at least arguable that a “misleading” indictment claim in this case would still be subject to the rule that an objection to an indictment must be raised prior to trial. After all, not only does the body of the indictment support a prosecution for assault on a peace officer, but the indictment's caption explicitly titles the offense as assault on a peace officer and cites the Penal Code subsection for assault on a peace officer. The caption would seem to seriously undercut any notion that the State was intending to charge assault on a public servant rather than assault on a peace officer. Our prior decisions in Jenkins and Kirkpatrick warned that the caption could be used in some situations to construe a charging instrument.⁵⁵ Although Delarosa held that the caption could not be used to import allegations into a charging instrument when the body of the charging instrument alleged a facially complete offense, it is at least arguable that the caption could be used to clarify the State's intent for the purpose of conveying notice. Even if the caption cannot add content, it arguably might be able to clarify what the State intended by the content that is already present in the body of the charging instrument. If so, that clarification could arguably show an “irregularity” in the indictment that Appellant needed to object to.⁵⁶

But assuming for the sake of argument that the caption did not place Appellant on notice that the State would construe the indictment the way it ultimately did, Appellant was placed on notice of the State's construction during voir dire. Between the State and the trial court, there were four references to the offense being assault on a peace officer, but counsel did not object to any of them. And two of those references involved the trial court questioning prospective jurors on the higher range of punishment. But counsel did not say, “Objection, two-to-twenty is not the proper range of punishment for the offense of assault on a public servant. The proper range of punishment is two-to-ten because assault on a public servant is a third-degree felony.”⁵⁷ If counsel had really been confused about what offense was at issue, he would have wanted the jury to be questioned on the correct range of punishment. But immediately after Appellant pled guilty to the indictment, counsel raised his objection. Not only was the objection late, but its lateness appeared to be purposeful.

For an objection to preserve a complaint, it must be “timely.”⁵⁸ To be timely, a complaint must be made as soon as the ground for complaint is, or should be, apparent.⁵⁹ Moreover, an objection should be made “at a time when the judge is in the proper position to do something about it.”⁶⁰ And timeliness is also concerned with giving “the opposing party an opportunity to correct the error.”⁶¹ There are restrictions on the ability to amend an indictment after the trial commences.⁶² And the attachment of jeopardy restricts the ability of the trial court to grant a mistrial.⁶³ Appellant's complaint was not made when grounds for complaint became apparent during voir dire. And because he waited until jeopardy had attached, he made granting a remedy for his complaint more complicated. If and to the extent it embraced the notion of a mistrial, appellant's complaint was, by any reasonable measure, untimely.

Another conceivable remedy would have been a continuance. But Appellant never requested a continuance, much less do so in writing in accordance with statutory requirements.⁶⁴

E. The jury charge and verdict form sufficiently supported a conviction for assault on a peace officer.

As we explained in the background section of the opinion, one of Appellant's claims to the court of appeals was that the jury charge and verdict forms authorized a conviction only on the offense of assault on a public servant. We could conceivably remand this case to the court of appeals to reconsider that claim in light of our opinion today, but there is no need to do so because the answer is obvious.⁶⁵ As we explained earlier, the abstract-elements list in the jury charge, the application section of the jury charge, and the jury verdict form all included the words “Menard County Sheriff's Deputy” along with the “public servant” language. So, in conformity with the indictment, the jury was always explicitly required to find that the victim was a deputy sheriff and that Appellant knew that fact. While the better practice, even with this indictment, would have been for the jury charge to explicitly track the language of the “peace officer” provision in the assault statute, the language actually used still required the jury to find facts that necessarily satisfied all the elements of the offense of assault on a peace officer.

We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

There is nothing wrong with the indictment in this case. As Appellant argued below, and the court of appeals agreed, the indictment in this case alleges the offense of assault on a public servant, not assault on a peace officer.¹ The word “peace officer” does not appear in the body of the indictment. The operative element listed in the indictment is “public servant” with a factual description of that element being a “deputy sheriff.”² While not all public servants are peace officers, all peace officers are public servants.³ The factual description of public servant in this case as a deputy sheriff does not create a notice issue.

And while there is some reference to the second-degree felony offense of assault on a peace officer in the caption at the top of the indictment, the statute setting out what constitutes an indictment makes no reference to a “caption.”⁴ As the court of appeals correctly noted, this indictment is the grand jury's indictment.⁵ It makes no sense to refer to a clerical designation that may or may not have been included by an entity other than the grand jury to discern what charge the grand jury intended to approve. We got it right when we limited consideration of the offense charged to the body of the indictment in Delarosa v. State.⁶

Which is the most concerning aspect of the Court's opinion in this case. The Court's holding is in conflict with our recent holding in Delarosa. There we rejected the State's call to consider information in the caption of the indictment because the body of the indictment completely alleged an offense.⁷ “It was not defective. It was facially complete.”⁸ The same is true in this in this case. The body of the indictment alleged a facially complete offense. There was no failure to include one or more allegations necessary to give notice of the statutory offense with which the defendant was charged.⁹ The indictment alleged assault on a public servant and described a type of public servant. Contrary to the State's suggestion, there was no notice issue because the indictment contained sufficient allegations of the offense of assault on a public servant.

The State has broad discretion when deciding who to charge and for what crime.¹⁰ The defendant has the ability to point out procedural and substantive defects when the indictment is insufficient. But saying that there is a substantive defect in the indictment because the State really wanted to charge a greater offense places a defense attorney in the position of having to tell the State how to prosecute his or her own client. That can't be right. That's why I would hold under Delarosa that the indictment in this case charged the third-degree offense of assault on a public servant. I would affirm the court of appeals. Because the Court does not, I dissent.

DISSENTING OPINION

In Delarosa, we held that when the body of an indictment charges a facially complete offense, the body dictates what offense has been alleged despite any contradictory information elsewhere on the document such as the caption, despite any contrary intent by the attorney for the State to prosecute a different offense, and despite the evidence introduced at trial pursuant to that intent. Delarosa v. State, 677 S.W.3d 668, 677–79 (Tex. Crim. App. 2023). The indictment in Delarosa alleged sexual assault without the other person's consent, but the caption indicated that the State had intended to, and did, try the defendant for sexual assault of a child. Id. at 671. Because the State presented evidence that the victim was a child, instead of evidence that the victim did not consent to sexual contact, the defendant's conviction was not supported by legally sufficient evidence. Id. at 680.

In this case, Appellant Shawn Edward Crawford was charged by indictment of two counts of intentionally, knowingly, and recklessly causing bodily injury to two complainants, and each count alleged that he “knew that the complainant was a public servant[.]” However, the indictment averred that the “public servant[s]” were each, “to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty, namely attempting to arrest Shawn Crawford.” Additionally, the caption or heading indicated that the charges were for second degree felony assault of a peace officer or judge.

Nevertheless, because the body of the indictment completely alleged assault of a public servant, the explicit statutory language used by the indictment should control over the caption's information that assault of a peace officer was being charged, the description of the public servant (“Menard County Deputy Sheriff”), and the description of the official duty being discharged (“attempting to arrest”). None of those items override the statutory element alleged in the indictment that the complainant was a “public servant,” not a peace officer. The indictment charged Appellant with assault of a public servant, a third degree felony, and his twelve-year sentence is beyond the statutory range.

The majority of this Court instead concludes that, regardless of the explicit statutory language employed by the indictment (“public servant”), the fact that the “public servant” is described as, “to wit: Menard County Deputy Sheriff” is enough to disregard the indictment's literal text and judicially rewrite the indictment's language. Focusing on only the factual averment that the complainant was, “to wit: a ․ Deputy Sheriff,” the majority declares that all “deputies” are “peace officers,” even though reserve deputies exist which may or may not be peace officers. And the majority takes the next step to conclude that the “public servant” indictment was really a “peace officer” indictment, despite the fact that “peace officer” is literally not in the indictment's language.

To me, the indictment says what it says—Appellant “knew that the complainant was a public servant.” We should affirm the judgment of the court of appeals, and we should remand the case to the trial court for a new punishment proceeding. Because this Court does not, I respectfully dissent.

I — The Assault

Menard County Deputy Sheriff William Burl Hagler and Reserve Deputy Sheriff Michael Smith responded to a residential 911 call. Upon entering the home, they saw Appellant sitting on the floor in a corner. He appeared to be intoxicated and was rocking back and forth. The deputies, who were in uniform, announced that they were going to arrest him on outstanding warrants. Appellant became agitated and yelled that the warrants were fraudulent, that the charges had been dismissed, and that the FBI would arrest the deputies and the judge.

Undeterred, Deputy Hagler approached Appellant and attempted to handcuff him as he continued to argue about the warrants. After Deputy Hagler grabbed Appellant's arm and got one handcuff on, Appellant stood up and pushed Deputy Hagler across the room, causing the deputy to land on his back. Deputy Smith used his taser on Appellant, but the taser had no effect. Appellant then ran to the back of the house, chased by the deputies. Deputy Smith used his taser on Appellant again, but it still had no effect. Appellant threw a step ladder at Deputy Smith, which hit the deputy on the shoulder. Appellant ran outside through the back door. Deputy Hagler fired his own taser at Appellant's back, but it did not stop him.

Appellant ran around to the front of the house where his pickup truck was parked. Deputy Hagler followed, while Deputy Smith came out the front door of the house. They intercepted Appellant at his truck as he jumped in and tried to start it. The deputies tried to pull Appellant out, but he grabbed onto the steering wheel and kicked Deputy Hagler several times, including in the chest and groin. Deputy Hagler caught Appellant's foot and pulled him out of the truck. The deputies jumped on Appellant to hold him down, and Deputy Smith called for backup.

Backup came in the form of Reserve Deputy Michael Bubba Smith (Deputy Michael Smith's father) and Sheriff Buck Miller. Finding Appellant to be “exceptionally strong,” to the extent that “something was not right,” Deputy Hagler could not get Appellant's arms close enough together to get both in handcuffs. Sheriff Miller tried talking to Appellant, but Appellant insisted to the sheriff that the warrants were fraudulent. Appellant would not allow himself to be arrested. It took all four of Deputy Hagler, Deputy Smith, Deputy Michael Bubba Smith, and Sheriff Miller to get Appellant handcuffed and in leg shackles.

II — The Indictment

Appellant was charged with two counts of assault for causing bodily injury to Deputy Hagler and Deputy Smith. The heading area of the indictment noted:

The two counts alleged:

COUNT ONE

․ SHAWN EDWARD CRAWFORD, hereafter styled the Defendant, heretofore on or about April 10, 2021, did then and there intentionally, knowingly, and recklessly cause bodily injury to Burl Hagler, hereafter styled the complainant, by shoving Burl Hagler, by kicking Burl Hagler in the chest, or by kicking Burl Hagler in the groin, and the defendant knew that the complainant was a public servant, to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty, namely attempting to arrest Shawn Crawford.

COUNT TWO

․ SHAWN EDWARD CRAWFORD, hereafter styled the Defendant, heretofore on or about April 10, 2021, did then and there intentionally, knowingly, and recklessly cause bodily injury to Burl Hagler [sic], hereafter styled the complainant, by throwing a ladder at Michael Smith, and the defendant knew that the complainant was a public servant, to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty, namely attempting to arrest Shawn Crawford.

III — Trial and Appeal

On the day of trial, the trial court granted the State's motion to dismiss Count Two, and the trial began with the trial court informing the jury panel, at the start of voir dire, that Appellant was charged “with the alleged offense of assault on a peace officer, an alleged second-degree felony.” The State repeated this during voir dire (“The charge is assault on a peace officer.”), and the trial court asked one of the prospective jurors whether she could consider the maximum punishment in a case of “assault on peace officer.” Additionally, the State asked several members of the jury panel whether they could consider the full range of punishment, with that range being two to twenty years—the range for second degree felonies. See Tex. Penal Code Ann. 12.33(a).

After the jury was selected, the State read Count One of the indictment to the jury, but not any of the information in the heading or caption. Appellant pleaded not guilty, and then he objected to the characterization of the indictment as charging assault of a peace officer. Appellant's trial counsel noted the discrepancy between the language in the caption of the indictment (“peace officer”) versus the language of the body of the indictment (“public servant”). The trial court replied that “the caption at the top is not what governs. It's the verbiage in the indictment, and that's what I will focus on[.]” The trial court carried forward Appellant's objection for a later ruling.

The next morning, the trial court heard arguments from the parties. Appellant argued that the indictment alleged assault of a public servant and did not specifically allege that the complainant was a peace officer. The State responded that the indictment said the complainant was a deputy and was attempting to arrest Appellant. The trial court took the issue under advisement and continued the trial. At the charge conference, the trial court concluded that the indictment provided notice of second degree felony assault of a peace officer. However, the trial court followed by stating, “if there's a verdict of guilt in this case, it would be assault of a public servant, namely a Menard County Sheriff's Deputy which would be a peace officer.” The trial court denied Appellant's earlier objection but wanted to hear if Appellant had further objections to the charge. Appellant's defense counsel reasserted their objection:

to the characterization of this being an assault on a police officer charge. The title to the indictment that was handed down by the grand jury does, in fact, state assault on a peace officer, but, as we all know, title is not controlling nor is it indicative of anything. The body is the substance of the indictment. That is the crux of the charge that's levied against the Defendant, and that is what he's put on notice for. Not once in the body of that indictment is the word peace officer, those two words said. It doesn't invoke the punishment range for 22.01(b) dash 2. It invokes it for 22.01(b)(1). It's a public servant.

There is an inference that's being drawn that because the words Menard County Sheriff's Deputy is articulated that that infers it's a peace officer and that is an inference that we are not capable of making. That is an inference saying that all Menard County Sheriff's Deputies are certified peace officers. That evidence is not in the record. That evidence has not been presented before the Court, nor has it been argued.

This is an assault on a public servant charge, a third-degree felony. That's what we geared up for. That's what we believed it to be.

Deputy Hagler may very well be a certified peace officer, but this statute was chosen between the two, public servant or peace officer. It shows public servant. Both are contained within 22.01․

Those two sections when read together show that you have to possibly choose or you can only choose one, and unless you say peace officer, you're stuck with public servant, a ․ third-degree felony, two to 10.

The State responded that a peace officer is a public servant, and the indictment alleged that Hagler was a Menard County Deputy Sheriff attempting to arrest Appellant. Additionally, the State argued that Appellant had “waived” the issue by bringing up the problem (the “defect”) after the jury was sworn, instead of filing a motion to quash the indictment before trial.

Although the arguments did not sway the trial court to change its ruling, the trial court made changes to the jury charge by adding the words “peace officer” to the first sentence on the first page (“The defendant, Shawn Edward Crawford, is accused of Assault of a Public Servant, to-wit: a peace officer.”). The trial court also added one of the definitions of peace officer into the charge's Definitions section (“ ‘Peace officer’ means ․ a peace officer under Article 2.12, Code of Criminal Procedure, which includes Sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license as required by law.”). See Tex. Code Crim. Proc. Ann. art. 2.12(1). The charge's application paragraph told the jury that it had to find, among other elements, whether:

3. Burl Hagler was a public servant, to-wit: a Menard County Sheriff's Deputy; and

4. the defendant knew Burl Hagler was a public servant, to-wit: a Menard County Sheriff's Deputy[.]

The jury convicted Appellant on a jury verdict form stating that Appellant was “guilty of Assault of a Public Servant, to-wit: a Menard County Sheriff's Deputy, as charged in the indictment.” After the case proceeded to punishment, the trial court's charge to the jury stated in the application paragraph:

You have found the defendant, Shawn Edward Crawford, guilty of Assault of a Public Servant, to-wit: a Menard County Sheriff's Deputy.

․

This offense is punishable by—

1. a term of imprisonment for no less than two years and no more than twenty years, or

2. a term of imprisonment for no less than two years and no more than twenty years and a fine of no more than $10,000.

The jury assessed a twelve-year sentence and a fine of $10,000 on a verdict form stating that Appellant was found guilty “of Assault of a Public Servant.” In pronouncing the sentence, the trial court stated that “the offense is that of assault of a public servant, namely a Menard County Sheriff's Deputy who was a peace officer, and, accordingly, this is a second-degree felony.”

On appeal, Appellant argued in two of his issues that the twelve-year sentence was illegal because the indictment charged him with assault of a public servant, a third degree felony punishable by a term of two to ten years.¹ Crawford v. State, 683 S.W.3d 793, 797 (Tex. App.—San Antonio 2023). The court of appeals agreed, reversed the sentence, and remanded to the trial court for a new punishment hearing. Id. at 801, 803.

We granted the State's petition for discretionary review, the first ground of which asked:

When determining what felony offense was charged, must everything on the face of the charging instrument the grand jury had before it be considered?

IV — Delarosa: The Body of the Indictment Controls Over the Caption

The State's first ground for review essentially asks what parts of the indictment are to be considered in determining what offense has been charged. After the State's petition was granted and before oral arguments in this case, we answered that question in Delarosa v. State.

In that case, the body of the indictment charged Delarosa with three counts of sexual assault for non-consensual contact between his sexual organ and that of the pseudonymous complainant. Delarosa, 677 S.W.3d at 671. The indictment's caption, however, called the counts sexual assault of a child, and the State proceeded to try the case under that theory. Id. The State presented evidence showing that Delarosa and the complainant had sex almost weekly when she was between fourteen and seventeen years old. Id. at 672. Although she had written in a statement that “I am aware that I am a minor and unable to give consent,” she testified that she thought she was in love with Delarosa during their relationship. Id. No one asked whether she had consented to the sexual contact. Id. Instead, her testimony suggested she willingly participated in sexual contact with Delarosa. Id. at 676. On a jury charge that authorized convictions for sexual assault of a child, and on jury verdict forms listing sexual assault of a child, Delarosa was found guilty. Id. at 672. “The judgment likewise stated that he was convicted of sexual assault of a child.” Id. at 672–73.

On Delarosa's petition for discretionary review, we concluded that the evidence was insufficient to support his conviction. Id. at 676. The hypothetically correct jury charge, by which the sufficiency of the evidence must be measured, is that which is authorized by the indictment. Id. at 673 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

The indictment authorized a conviction for non-consensual sexual assault, despite the indication in the caption that the State had intended to charge Delarosa with sexual assault of a child. Id. at 677. Because the indictment charged non-consensual sexual assault, the State was bound to prove it though that was not the felony the State intended to charge. Id. The State failed in that regard, because it proved sexual assault of a child instead.² Id. at 676.

Delarosa answers the State's first ground for review: when determining what offense is charged by a charging instrument, it is the accusatory language in the body of the charging instrument that must be considered. “Where an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that offense.” Id. at 677 (quoting Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994)).

Here, the indictment alleged that Appellant “intentionally, knowingly, and recklessly cause[d] bodily injury to Burl Hagler, hereinafter styled the complainant, ․ and that [Appellant] knew that the complainant was a public servant, to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty.” The assault of a public servant statute specifically states:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

․

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

Tex. Penal Code § 22.01(a)(1), (b)(1) (emphasis added). The indictment charged Appellant with a facially complete offense of assault of a public servant. The indictment did not allege that Appellant knew that the complainant was a “peace officer.”

V — The Public Servant Is Described, “to-wit: Menard County Deputy Sheriff”

But there is a distinction between this case and Delarosa. The indictment in Delarosa never said in the actual charging language that the complainant was a child. The language of the indictment in Delarosa did not imply a sexual assault of a child case.³ That information had to be found in the indictment's caption.

In this case, aside from the caption, information implicating assault of a peace officer is found within the factual averments of the indictment's charging language. Count One describes the public servant as “Menard County Deputy Sheriff.” Is the factual averment—that the public servant was a sheriff's deputy—enough to say that the indictment really alleged assault of a peace officer, despite its explicit use of the statutory element “public servant” instead of “peace officer”? The majority answers that question, “Yes.” This is a mistake, for the following reasons.

First, the indictment's charging language itself does not explain that a “Menard County Deputy Sheriff” is a peace officer. To the contrary, it only alleges that a “Menard County Deputy Sheriff” is a public servant. But if one were to go outside of the formal allegations of the indictment, one might perceive “Menard County Deputy Sheriff” to be a peace officer. Indeed, under the definition of “peace officer” in effect at the time of Appellant's offense, “ ‘Peace officer’ [meant] a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure[.]” Tex. Penal Code § 1.07(a)(36) (West 2020). That statute, in turn, provided that peace officers include “sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code[.]” Tex. Code Crim. Proc. art. 2.12(1) (West 2020) (emphasis added). Because peace officers include “deputies,” the majority is satisfied that “public servant, to wit: ․ deputy” actually means “peace officer, to wit: ․ deputy.”

But the Code of Criminal Procedure's definition of “peace officers” itself tells us that not all deputies are peace officers. The inclusion of “reserve deputies who hold a permanent peace officer license,” rather than “reserve deputies” without such qualification, means: (1) there are reserve deputies that do not hold permanent peace officer licenses; and (2) those reserve deputies who do not hold permanent peace officer licenses are not peace officers.

The proposition that there are reserve deputies who are not peace officers is confirmed by the reserve deputy statute, subsection (b) of which stated at the time of the offense:

(b) A reserve deputy serves at the discretion of the sheriff and may be called into service if the sheriff considers it necessary to have additional officers to preserve the peace and enforce the law. The sheriff may authorize a reserve deputy who is a peace officer as described by Article 2.12, Code of Criminal Procedure, to carry a weapon or act as a peace officer at all times, regardless of whether the reserve deputy is engaged in the actual discharge of official duties, or may limit the authority of the reserve deputy to carry a weapon or act as a peace officer to only those times during which the reserve deputy is engaged in the actual discharge of official duties. A reserve deputy who is not a peace officer as described by Article 2.12, Code of Criminal Procedure, may act as a peace officer only during the actual discharge of official duties. A reserve deputy, regardless of whether the reserve deputy is a peace officer as described by Article 2.12, Code of Criminal Procedure, is not:

(1) eligible for participation in any program provided by the county that is normally considered a financial benefit of full-time employment or for any pension fund created by statute for the benefit of full-time paid peace officers; or

(2) exempt from Chapter 1702, Occupations Code.

Tex. Loc. Gov’T Code § 85.004(b) (emphasis added) (West 2020). The statute provides different rules for reserve deputies who are peace officers and reserve deputies who are not peace officers. Plainly, then, reserve deputies are not necessarily peace officers. A “public servant, to wit: Menard County Deputy Sheriff” could potentially be a reserve deputy, and in turn could potentially not be a peace officer. There is no such question as to whether a “public servant, to wit: Menard County Deputy Sheriff” is a public servant.

The majority sets aside the existence of reserve deputies in a footnote because the indictment alleged “deputy,” not “reserve deputy.”⁴ But Count Two, which was dismissed at the start of trial, alleged that Appellant “[threw] a ladder at Michael Smith, and the defendant knew that the complainant [Michael Smith] was a public servant, to wit: Menard County Deputy Sheriff[.]” While Count Two did not use the word “reserve,” the evidence showed that Michael Smith was a reserve deputy.⁵ The grand jury at least in this case handed down an indictment alleging “deputy,” when “reserve deputy” could have been used.

Furthermore, and most ironically, the majority uses the absence of the statutory term “reserve” to close off the possibility that the “deputy” could be a “reserve deputy.” Yet at the same time, the majority ignores the absence of the statutory term “peace officer” to close off the possibility that the “deputy” is a “public servant.”

And what of a prosecutor's discretion to choose which offense to charge? If the circumstances of the particular case warrant it, the prosecutor might decide to charge third degree assault of a public servant instead of a second degree felony, even though the public servant may be a peace officer. Must the prosecutor find an alternative job description for the complainant to avoid charging a higher offense than he finds appropriate for the case? But that question gives us the answer. The description of the public servant as a “Menard County Deputy Sheriff” is simply that: a description of the public servant.

Although the evidence at trial may later show that the public servant described as a deputy sheriff is also a peace officer, I would not hold that any indictment that explicitly alleges assault of a public servant that further describes the public servant as a “deputy sheriff” or “sheriff's deputy” has converted itself into an indictment alleging assault of a peace officer.

It may be a different case where the body of the indictment is ambiguous about which offense is being charged because it alleges both assault of a public servant and assault of a peace officer in a single count (i.e., “the defendant knew that complainant was a public servant and a peace officer, to wit: Menard County Deputy Sheriff”). Or the indictment fails to explicitly single out either statutory offense (i.e., “the defendant knew that the complainant was a Menard County Deputy Sheriff”). Where the indictment is facially defective and fails to allege a complete offense, the State may be correct that the entirety of the indictment, including the caption, should be considered to resolve any doubt as to which offense is being charged. But that question should wait for a case that raises it. That problem is not present here: Appellant's indictment alleged a facially complete offense of assault of a public servant.

VI — Appellant's Sentence Is Outside the Range

“A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Assault of a public servant is a third degree felony. Tex. Penal Code Ann. § 22.01(b)(1). Third degree felonies are punishable by a term of two to ten years, and a fine not to exceed $10,000. Id. § 12.34.

Appellant was sentenced to twelve years and assessed a fine of $10,000. Although the $10,000 fine is authorized for third degree felonies, his twelve-year sentence was not. The prison term of Appellant's sentence is outside the range of punishment, is unauthorized by law, and is therefore illegal. Mizell, 119 S.W.3d at 806.

VII — Conclusion

The result of this case is dictated by Delarosa—when the body of the indictment alleges a facially complete offense, the body of the indictment dictates which offense has been charged, despite any contrary information found elsewhere such as in the caption or header and despite any intention to try the case as something else. In this case, the indictment explicitly used the statutory language “public servant,” and it completely alleged that Appellant committed assault of a public servant, a third degree felony. The indictment's descriptions—that the public servant was a sheriff's deputy and that the official duty being discharged was attempting an arrest—are factual averments and not elements of the offense being charged.

Because Appellant's sentence was outside the range of punishment for third degree felonies, the court of appeals properly found Appellant's twelve-year sentence to be illegal. The judgment of the court of appeals should be affirmed, and the matter should be remanded to the trial court for a new punishment proceeding.

Because this Court chooses otherwise, I respectfully dissent.

FOOTNOTES

1.   Emphasis added. The second count alleged that Appellant caused “bodily injury” to “Burl Hagler, hereinafter styled the complainant” by “throwing a ladder at Michael Smith” and also alleged that “the complainant” was a “public servant, to wit: Menard County Deputy Sheriff” (emphasis added). The State did not pursue the second count at trial. Judge Walker's dissent places a [sic] by Hagler's name in its quotation of the second count, and during a later discussion, the dissent places Smith's name in brackets beside the word “complainant.” The dissent seems to imply that the appearance of Hagler's name in the second count is a typo. But the actual language of count two makes Hagler the complainant, consequently identifying him as the deputy sheriff. The dissent's suggestion to the contrary is inaccurate.

2.   Capitalization converted to lower case for ease of reading. The Penal Code provision cited was Tex. Penal Code § 22.01(b-2).

3.   Emphasis added.

4.   Defense counsel also suggested that the “public servant” and “peace officer” provisions were mutually exclusive.

5.   See Tex. Penal Code § 1.07(41) (West 2020).

6.   See infra at nn.30-31.

7.   See infra at n.31.

8.   See Tex. Penal Code §§ 12.33(a) (second-degree punishment range of two to twenty years), 12.34(a) (third-degree punishment range of two to ten years); 22.01(b) (third-degree felony for assault on a public servant); 22.01(b-2) (second-degree felony for assault on a peace officer) (West 2020).

9.   See Crawford v. State, 683 S.W.3d 793, 797-98 (Tex. App.—San Antonio 2023).

10.   Id. at 801.

11.   Id. at 800.

12.   Id.

13.   Id.

14.   Id.

15.   Id. at 801.

16.   Id.

17.   Id.

18.   Id.

19.   See id.

20.   See id.

21.   Id. at 802. The court of appeals also perceived that Appellant was complaining of jury charge error by claiming that the “peace officer” references were erroneous. Id. Because it agreed that the jury convicted Appellant of assault against a public servant, it concluded that the “peace officer” references did not cause any harm. Id. However, our review of Appellant's brief before the court of appeals convinces us that Appellant did not advance an actual claim of error with respect to the “peace officer” references. Instead, he merely mentioned the references as being erroneous in passing and argued that they did not affect the character of the jury charge and the verdict form as authorizing a conviction only of assault on a public servant.

22.   See id.

23.   Id. Appellant's prayer in his brief to the court of appeals requested a new trial and, in the alternative, requested that the conviction be reformed to assault on a public servant and the case be remanded for a new punishment hearing. However, all of the argumentation in Appellant's brief supported the latter remedy and not the former.

24.   677 S.W.3d 668, 677 (Tex. Crim. App. 2023).

25.   Id.

26.   Id.

27.   Id. at 678.

28.   Id.

29.   Id. at 677-78. Distinguishing the situation in which an indictment's body facially alleges only a misdemeanor that does not adequately invoke the jurisdiction of the district court, the Court observed that the facially complete offense in the body of the indictment before it was a felony and so adequately invoked the district court's jurisdiction. Id. at 678.

30.   Tex. Penal Code § 1.07(36) (West 2020). See also id. § 1.07(36) (current) (referring to Tex. Code Crim. Proc. art. 2A.001 instead of former art. 2.12).

31.   Tex. Code Crim. Proc. art.2.12(1) (West 2020) (“The following are peace officers: (1) sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code.”). See also id. art. 2A.001(1) (current) (“The following are peace officers: (1) a sheriff, a sheriff's deputy, or a reserve deputy sheriff who holds a permanent peace officer license issued under Chapter 1701, Occupations Code.”).

32.   See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011). Pleading a definition might require the State to prove it. See id. We need not address that question here.

33.   “Reserve deputies” are only “peace officers” if licensed. See supra at n.31. Article 2.12 lists “deputies” and “reserve deputies” separately in the same series with “sheriff,” so that the statute reads: “sheriffs, their deputies, and those reserve deputies ․” See id. So “reserve deputies” is a separate category from, not a subset of, “deputies.” Here, the indictment alleged the victim to be a “deputy sheriff” not a “reserve deputy sheriff.”Judge Walker's dissent suggests that the indictment language of “deputy sheriff” could have been intended by the State in this case to encompass a reserve deputy sheriff. As support, the dissent points to the second count and suggests that it labeled Michael Smith as a deputy sheriff, when in fact he was a reserve deputy sheriff. As a factual matter, the dissent is mistaken. Michael Smith was not named as the deputy-sheriff victim in count two; Burl Hagler was. See supra at n.1. The structure of count two could be a use of the “transferred intent” doctrine: an allegation that Appellant intended to injure Smith by throwing a chair at him but actually injured Hagler. See Tex. Penal Code § 6.04(b)(2) (“A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that ․ a different person or property was injured, harmed, or otherwise affected.”). Or, as the dissent implies, Hagler's name in count two could be a typo, but then we do not know how far the typo goes. Perhaps Hagler's name in count two is the reason that count refers to a “deputy sheriff” instead of a “reserve deputy sheriff.” In any event, the State's dismissal of count two might be recognition that count two was problematic in some way. And regardless, the prosecutor's actual intent in drafting the indictment language is irrelevant. As a legal matter, “deputy sheriff” does not include “reserve deputy sheriff,” and that might have implications for the State's ability to prove the offense of assault on a peace officer, as pled. See supra at n.32.Judge Walker's dissent finds it ironic that this Court uses the absence of the term “reserve” to close off the possibility that a “deputy” could be a “reserve” deputy but does not do the same for the terms “peace officer” and “public servant.” But the two comparisons are not analogous because a peace officer is also a public servant, and a deputy sheriff is both.

34.   And contrary to the conclusion in Judge Newell's dissent, that is precisely what makes this case different from Delarosa. In discussing the caption, the dissent expresses a concern about relying upon a fact found by “an entity other than the grand jury,” but the grand jury in this case found every fact needed to convict of assault on a peace officer. And, as we explore infra, the “deputy sheriff” allegation—even as a mere description of “public servant”—is part of the cognate-pleadings analysis for determining what offenses are included in the indictment.

35.   Nevertheless, if a descriptive averment constitutes a non-statutory allegation for the offense for which a sufficiency review is being conducted, then, in a sufficiency review, any variance in the evidence with respect to the descriptive averment would be analyzed under the law of material variances. See Johnson v. State, 364 S.W.3d 292, 298-99 (Tex. Crim. App. 2012).

36.   McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010).

37.   Safian v. State, 543 S.W.3d 216, 220 (Tex. Crim. App. 2018) (quoting Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g)).

38.   Id.

39.   Id.

40.   298 S.W.3d 644, 650 (Tex. Crim. App. 2009).

41.   Id. (emphasis added).

42.   Id.

43.   Judge Walker's dissent complains that our holding infringes on the prosecutor's discretion to choose which offense to charge, and that particular circumstances might warrant charging the third-degree public-servant offense instead of the second-degree peace-officer offense. But nothing in our holding today prevents a prosecutor under a peace-officer indictment from pursuing the lesser-included public-servant offense. And Grey explicitly permits it. See supra at nn.41-42.

44.   What counts as a lesser-included offense might not always be intuitive. An offense can still be “lesser included” if it has the same elements as the charged offense. Safian, 543 S.W.3d at 220 (Functional-equivalence test is met if the elements are “functionally the same or less than those required to prove the charged offense.”); Tex. Code Crim. Proc. art. 37.09(1) (“An offense is a lesser included offense if ․ it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.”). And, “the range of punishment is irrelevant in deciding whether an offense is a lesser-included offense under Article 37.09.” Hicks v. State, 372 S.W.3d 649, 650 (Tex. Crim. App. 2012) (emphasis added) (upholding submission of reckless aggravated assault as lesser-included offense of intentional or knowing aggravated assault even though it had the same punishment range). In fact, assault on a peace officer literally, though counterintuitively, satisfies the requirements for a lesser-included offense under Appellant's indictment under the cognate-pleadings approach because (1) the “deputy sheriff” descriptive averment counts, (2) the “peace officer” element can be deduced from the “deputy sheriff” averment, (3) with “peace officer” as a deduced element, the offense of assault on a peace officer has the same elements as the offense in the indictment, and (4) having a greater punishment range does not exempt assault on a peace officer from being a lesser-included offense. The answer to the cognitive dissonance produced by such a counterintuitive conclusion is to recognize that any offense that satisfies the requirements of being included in the charging instrument under the cognate-pleadings approach qualifies as either the charged offense or one that is otherwise included. See supra, opinion body, this paragraph.

45.   See supra at n.40.

46.   Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007).

47.   Id. In a multiplicity situation, the trial court has an obligation to ensure jury unanimity with regard to separate offenses and, if unanimity is ensured through the submission of multiple verdict forms, to retain the offense that most benefits the State. Id. Under law that predated Martinez, the remedy for an indictment that was improperly duplicitous for alleging more than one offense was to quash the indictment or to require the State to elect which offense it wishes to pursue. Villalva v. State, 142 Tex. Crim. 120, 124, 151 S.W.2d 222 (1941); Melley v. State, 93 Tex. Crim. 522, 523-24, 248 S.W. 367 (1922).

48.   See supra at nn.46-47.

49.   See Ex parte Perry, 483 S.W.3d 884, 916 (Tex. Crim. App. 2016) (“Concluding that quashing Count II would be premature, the trial court ordered the State to amend Count II of Governor Perry's indictment. But a trial court has no authority to order the State to amend an indictment; the State has the right to stand on its indictment and appeal any dismissal that might result from refusing to amend. The trial court's order that the State amend the indictment was, in practical terms, a threat to quash Count II if it were not amended.”) (footnote omitted).

50.   Id.

51.   See Tex. Code Crim. Proc. art. 1.14(b) (“If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.”); Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990).

52.   We express no opinion on whether such a remedy would be available if preserved.

53.   Ex parte Nuncio, 662 S.W.3d 903, 914 (Tex. Crim. App. 2022) (quoting Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)); see also Tex. R. App. P. 33.1(a)(1)(A) (referring to a “request, objection, or motion” stating “the grounds for the ruling that the complaining party sought”).

54.   Tex. R. App. P. 33.1(a)(2).

55.   See Jenkins v. State, 592 S.W.3d 894, 899-902 (Tex. Crim. App. 2018) (caption used to establish identity of the defendant); Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (caption used to clarify State's intent to charge an offense within the district court's jurisdiction).

56.   See supra at n.51. We would note that, when counsel first objected, he objected to the indictment, which makes no sense if the claim is that, due to its facial completeness, there is no error in the indictment that he needed to object to.

57.   See Tex. Penal Code §§ 12.33(a) (second-degree punishment range of two to twenty years), 12.34(a) (third-degree punishment range of two to ten years).

58.   Tex. R. App. P. 33.1(a)(1).

59.   Nuncio, 662 S.W.3d at 914.

60.   Id. (quoting Pena, 285 S.W.3d at 464).

61.   Id. (quoting Pena, supra).

62.   See Tex. Code Crim. Proc. art. 28.10.

63.   See Illinois v. Somerville, 410 U.S. 458, 468, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (“Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by ‘manifest necessity’ or the ‘ends of public justice.’ ”).

64.   See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex. Crim. App. 2009) (holding that statutes require motion for continuance to be written and sworn); Tex. Code Crim. Proc. arts. 29.03, 29.08.

65.   See Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013) (“[W]hen the proper resolution of the remaining issue is clear, we will sometimes dispose of the case in the name of judicial economy.”).

1.   Crawford v. State, 683 S.W.3d 793, 800 (Tex. App. – San Antonio, 2023, pet. granted).

2.   See Tex. Penal Code Ann. § 22.01(b)(1) (assault on a public servant).

3.   Compare, Tex. Penal Code Ann. § 1.07(a)(36) (defining “peace officer”) with, Tex. Penal Code Ann. § 1.07(a)(41) (defining “public servant”). I agree with the court of appeals’ conclusion that we “cannot conclude that every indictment invoking ‘public servant’ language with a peace officer victim since September 1, 2017 [when assault on a peace officer became a second-degree felony], is in fact a charge for assault on a peace officer.” Crawford, 683 S.W.3d at 799. During oral argument, SPA conceded as much when it acknowledged that it was not arguing the State should prevail on the contents of the body alone because of the 2017 change and that the body “does perfectly satisfy” a charge of assault on a public servant. Oral Argument at 3:25-3:45, Crawford v. State, PD-0243-23, Texas Court of Criminal Appeals Oral Arguments - 12/06/2023.

4.   Tex. Code Crim. Proc. Ann. art. 21.02 (requisites of an indictment).

5.   Crawford, 683 S.W.3d at 799.

6.   Delarosa v. State, 677 S.W.3d 668, 67-78 (Tex. Crim. App. 2023) (recognizing that where the body of the indictment was facially complete, the indictment was not defective, the State was bound to prove the offense alleged, and that “[t]he real anomaly would be to mix and match the caption and the body of the indictment ․”).

7.   Id.

8.   Id. at 677.

9.   See, e.g., Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997) (“The instant cause does not involve a charging instrument which is even arguably defective on account of its failure to include one or more allegations necessary to give notice of the statutory offense with which the defendant was charged.”).

10.   Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“In our system, so long as the prosecutor has probable cause to believe that an accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”).

1.   Appellant's other issue on appeal was that the jury charge was erroneous. Crawford, 683 S.W.3d at 801.

2.   We further held in Delarosa that the evidence showing the complainant was a child could not itself prove a lack of consent. First, lack of consent is not shown solely by proof that the complainant was a child. Id. at 679–80. Second, although lack of consent could be shown by evidence showing mental defect, mental defect is not shown by proof that the complainant was a child. Id. at 680.

3.   The indictment in Delarosa alleged the complainant's identity using pseudonymous initials. Delarosa, 677 S.W.3d at 671. While this is a common practice in cases involving child complainants, it is not limited to such cases. Adult complainants can be alleged by initials, as well. See, e.g., Reed v. State, 680 S.W.3d 620, 624 (Tex. Crim. App. 2023) (defendant indicted for sexual assault of adult complainant, “M.K.”); see also Tex. Code Crim. Proc. Ann. arts. 58.102(a), 58.101(a)(1) (victim of a reportable offense may elect to use a pseudonym by completing a prescribed pseudonym form). The fact that initials are alleged does not raise the “child case” flag.

4.   Majority op. at 9 n.33.

5.   The evidence also showed that not only was Deputy Michael Smith a reserve deputy, he was also a “certified peace officer,” as was his father, Reserve Deputy Michael Bubba Smith.

Parker, J., delivered the opinion of the Court in which Schenck, P.J., and Yeary, Keel, and Finley, JJ., joined.

Newell, J., filed a dissenting opinion in which Richardson, Walker, and McClure, JJ., joined. Walker, J., filed a dissenting opinion in which Newell, J., joined.