On March 30, 2021, I obtained a jury verdict of not guilty in a trial involving a charge of continuous sexual assault of a minor in Collin County, Texas. The case was State of Texas v. Gilberto Martinez-Garcia, No. 380-81370-2020, in the 380th Judicial District Court of Dallas County, Texas. If convicted, my client would have spent a minimum of 25 years in prison, without the possibility of parole. Now, he is a free man.

A couple of years ago, after another acquittal in a jury trial in a continuous sexual assault case, I wrote a blog on defending these types of cases. In that blog, I emphasized the importance of jury selection and of reminding the jury, at every possible opportunity, from jury selection through closing argument, that the State’s burden of proof is “beyond a reasonable doubt.” I also emphasized that the defense lawyer must explain why that is the burden of proof, what it means in practice for the particular case, and why the jury should be confident that holding the State to that burden is the right thing to do. I also highlighted the need for meticulous preparation and knowledge of all the factual details.

Those strategies are still crucial, of course, but after more successful trial results involving continuous sexual assault of a minor charges, I have some additional thoughts about trying these cases. First, it is important to begin preparing the defendant to testify well in advance. Whether the defendant will actually testify is a crucial decision that cannot be made once and for all until the last possible moment. This is because you have to see how the evidence comes in during the trial before you make a final decision. However, preparing the defendant to testify must begin early. Some lawyers neglect this and focus on cross-examining the State’s witnesses, because that will be the first thing the lawyer does in trial. This is a mistake. Every meeting with the client is an opportunity to practice questions and answers and to get the defendant familiar with how testifying feels. Many defendants need a lot of practice, and trying to cram practice in at the last minute may overwhelm the defendant and create even more anxiety. Just asking the defendant a few questions as if it was during trial during visits can help tremendously.

Second, proper introduction and use of the alleged victim’s prior inconsistent statements is critical. A prior inconsistent statement is something the alleged victim has said in the past that is inconsistent with the alleged victim’s testimony in court. Under Rule 613 of the Texas Rules of evidence, before you can introduce evidence of the alleged victim’s prior inconsistent statements, whether through the forensic interview video or through another witness, you must ask the alleged victim about the statement during cross-examination. You must give the alleged victim the contents of the statement, the time and place it was made, and the person(s) to whom the statement was made. You must then give the alleged victim the opportunity to explain or deny the statement during cross-examination. You can only introduce proof that the alleged victim made the statement if the alleged victim does not unequivocally admit having made the statement. If you do not follow this procedure, you will not be allowed to introduce the statement at all, even if it is completely inconsistent with the alleged victim’s testimony. Unfortunately, many lawyers do not do this when cross-examining the alleged victim, and when they later try to prove the statement, they cannot do so.

Third, it is important to use the court’s jury charge in closing argument. The court’s charge is the set of written instructions to the jury about the law that applies to the case. The judge will read these instructions to the jury before the lawyers make their closing argument. Most courtrooms will have an Elmo projector that can be used to display paper documents on the large screens that the juries view. When a defense lawyer receives the final version of the charge, the lawyer should highlight the important instructions, such as the instructions about proof beyond a reasonable doubt, and should put those pages on the Elmo projector and discuss them with the jury during closing argument. This allows the jury to see the language in the court’s instructions while the lawyer is discussing it. Most people will remember language much better if they can read it, in addition to hearing it read to them. Showing the jury the actual words also proves that the lawyer has described them accurately. For the important legal instructions in the court’s charge, displaying them with the Elmo projector can make a big difference. This is especially true in continuous sexual assault of a minor cases, because emphasizing the State’s burden of proving the defendant guilty beyond a reasonable doubt takes on even greater importance if the evidence comes down to whether the alleged victim should be believed.

Ultimately, though, each case is unique. No two cases will have the same facts and witnesses. A lawyer defending a person accused of continuous sexual assault of a minor cannot just try to rely on a formula for how to try these cases. It is never that simple. The defense lawyer must tailor their trial strategy to the particular case. This includes what witnesses, if any, to call, and how to cross-examine the alleged victim.

I believe it is a terrible mistake to hire any lawyer who claims to have a one-size-fits-all approach to these cases. The best lawyers adapt to the facts and the witnesses. They are also willing and able to change their approach, if necessary. For example, if a witness decides to change his or her testimony, or if the lawyer learns facts that undercut the lawyer’s initial strategy, the lawyer must be able to adapt and formulate a new strategy. This requires a high degree of skill and judgment on the lawyer’s part.

If you are, or a loved one is, charged with continuous sexual assault of a minor, the stakes could not be higher. A conviction in Texas means a minimum of twenty-five years in prison without the possibility of parole, and up to life in prison. Don’t take a chance on a lawyer who talks a good game, but who does not know how to win these cases. Consult with an experienced lawyer with a track record of winning them.