Kenneth Shed v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00256-CR

KENNETH SHED, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. DC-2023-CR-1018, Honorable Douglas H. Freitag, Presiding

September 24, 2025
MEMORANDUM OPINION
Before PARKER, and DOSS, and YARBROUGH, JJ.

Appellant, Kenneth Shed, appeals from three convictions for aggravated sexual

assault of a child, for which he received three concurrent life sentences. 1 By a single

issue, Appellant argues the trial court committed reversible error by refusing to give a

lesser-included offense instruction on the three counts for aggravated sexual assault of

a child. We affirm.

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (iv). Appellant was convicted on seven total
sexual offenses against a child, all of which resulted in a life sentence. Appellant does not appeal the
remaining convictions or sentences.
Background

A grand jury indicted Appellant on three counts of aggravated sexual assault of a

child younger than fourteen years old. Two counts alleged that Appellant knowingly

caused the anus of the child to contact his sexual organ, and one count alleged he

knowingly caused the child’s sexual organ to contact his sexual organ. The case

proceeded to a jury trial.

During the charge conference, Appellant requested a lesser-included instruction

of indecency with a child by contact for each of the aggravated sexual assault counts.

Appellant argued that multiple witnesses had described the complainant child as

developmentally delayed, and that the child had referred to vaginal sex as oral sex

during a forensic interview, suggesting she could not consistently differentiate between

“concepts of inside and outside.” Appellant also pointed to his statements to a Child

Protective Services worker, Darnisha Jones, who testified that Appellant denied being

sexually active because he is too old and cannot maintain an erection. Additionally,

Appellant cited his age, height, and weight, along with testimony that he had not

engaged in intercourse with the child’s mother for at least forty-seven days prior to their

breakup. The trial court denied Appellant’s request for the lesser-included offense

instruction.

Analysis

The trial court’s denial for a lesser-included offense instruction is reviewed for

abused discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023).

Depending on the specific details of the alleged crime, indecency with a child can be a

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lesser-included offense of aggravated sexual assault of a child. See, e.g., Evans v.

State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009).

Determining whether Appellant was entitled to a lesser-included offense

instruction in this case follows a two-step process: first we determine whether the

offense requested is a lesser-included offense of the charged offense, and second, we

determine whether there is evidence from which a rational juror could find the defendant

guilty of only the lesser offense. Green v. State, 713 S.W.3d 865, 875 (Tex. Crim. App.

2025). 2

In this case, Appellant’s argument runs afoul of the second element of the test.

Appellant was charged with aggravated sexual assault by causing his sexual organ to

contact the complainant’s sexual organ and anus. If the alleged contact is proven true,

the allegations would support aggravated sexual assault without regard to whether the

contact involved penetration. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (iv).

By comparison, the offense of indecency with a child can involve sexual contact,

defined as touching the child’s genitals or touching the child’s body with the defendant’s

genitals, with intent to arouse sexual desire. See Id. § 21.11(c). Therefore, both

offenses can be satisfied by the same conduct in some instances. Genital-to-genital or

genital-to-anus contact could, for example, satisfy both the charged aggravated sexual

assault and the offense of indecency. Id.

However, this similarity of proof does not entitle Appellant to a lesser-included

offense instruction. As the Court of Criminal Appeals explained in Green, evidence

2 The threshold for evidence is a mere scintilla, but it must relate directly to the lesser offense and

present the lesser offense as a reasonable alternative to the greater charge. Chavez, 666 S.W.3d at 777
(internal citations omitted). Evidence suggesting the Appellant committed no offense at all does not give
rise to a lesser-included offense instruction. Id.

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must exist permitting a juror to rationally find Appellant is guilty of only the indecency

claim. 713 S.W.3d at 875. Appellant was required to point to evidence that he

committed only touching that would satisfy indecency but not aggravated sexual

assault. See Green, 713 S.W.3d at 875–76 (“An affirmative answer to the guilty-only

question requires evidence excluding guilt of the greater offense and demonstrating that

the defendant is guilty exclusively of the lesser. The evidence must negate an element

of the greater offense.” (internal citations omitted)).

None of the evidence meets this standard. Appellant’s cited evidence of a lack of

sexual interest and inability to maintain an erection do not present a lesser offense

scenario. Sexual desire and physical arousal are not elements of aggravated sexual

assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (iv); Jimenez v.

State, 419 S.W.3d 706, 714 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). These

statements constitute an effort to deny committing an offense, but they do not entitle

Appellant to a lesser-included instruction. See Aguilar v. State, 682 S.W.2d 556, 558

(Tex. Crim. App. 1985).

Evidence about the child’s developmental delay or confusion likewise fails to

present a meaningful distinction. Although the child apparently confused oral and

vaginal sex during an interview, such evidence is not relevant for obtaining a lesser

included offense instruction because the offense was satisfied with evidence of contact,

not penetration. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii). Appellant’s argument

about differentiating “inside” versus “outside” therefore fails to advance his position.

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Finally, any evidence about Appellant’s forty-seven-day period without sexual

intercourse with the child’s mother fails to negate any element of aggravated sexual

assault of a child offense or suggest that indecency with the child occurred instead.

Because there is no evidence that Appellant committed only the offense of

indecency with a child by contact, we hold the trial court did not err by denying

Appellant’s request for a lesser-included offense. Appellant’s sole issue is overruled.

Conclusion

We affirm the trial court’s judgment.

Lawrence M. Doss
Justice

Do not publish.

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