Fleming told the police that he did not know she was underage. Nevertheless, Fleming was charged with aggravated sexual assault under Texas Penal Code 22.021(a)(i)(B)(iii). Fleming motioned to quash the indictment by arguing that the Texas Penal Code’s aggravated sexual assault section is unconstitutional because it does not require proof that he knew the victim was a minor and does not recognize an affirmative defense regarding the defendant’s reasonable belief that the victim is 17 or older.During trial, Fleming testified that he believed the girl was 22 because the girl and her friend had told him so.

United States v. Madrid, No. 14-1259 (published) The Tenth holds that Mr. Madrid's prior conviction for statutory rape in violation of Tex. Penal Code sec. 22.021(a)(1)(B)(i) and (a)(2)(B) (2004) was not a crime of violence for purposes of the career offender guideline, USSG sec. 4B1.1. The Court stated that the offense does not have any element of use of force or coercion.

Because Appellant only raised the second situation on appeal, the Court addressed that issue first.In applying the “eighth-grade grammar” test to Tex. Penal Code § 22.021(a)(1)(A)(i), the Court found that the statute does not differentiate which type of object a defendant uses to cause penetration, rather, the statute addresses “penetration” perpetrated “by any means.” Thus, whether Appellant caused penetration with his finger or penis simply provides alternative means of violating the same statute.