Travis County DA will not prosecute sexual assault case from August 2020

The Travis County District Attorney will not prosecute a sexual assault case from August 2020. DA Jose Garza said he believes the victims, but the case doesn’t meet the burden of proof.

The incident happened in August 2020. Court documents said two roommates went to a fraternity party. The women were tipsy, decided to leave, and walked home with two men.

Video from outside the apartment showed one of the women stumbling across the stairs from one handrail to the other.

One woman said while they were walking home, one of the men tried to kiss her, but she said she had a boyfriend, pushed him away, and told him no. She said once they got to her place, she was alone with one of the men and recalled him being aggressive, forceful, and not responding when she pushed him away or told him to stop. She said one of the men sexually assaulted her and then the other man did, too. She said she was afraid.

MORE: City of Austin publicly apologizes for APD mishandling of sexual assault cases

Court documents said the other woman remembered being sexually assaulted by one of the men. She said she felt trapped and continued to tell him to stop, but he didn’t. She said she was then "passed off" to another man. She said she was frozen in fear and felt like she couldn’t breathe.

An arrest affidavit said it stopped when one of the women was able to get out of the room, started screaming, and kicked the men out of the apartment. The other roommates heard the screaming and called 911.

Both women did a sexual assault forensic examination, and the samples were a "very strong" match to the men who were both charged with first degree aggravated sexual assault.

The men, who were 19-and 20-years old at the time, were indicted, which means a grand jury was presented with evidence and the same statute found there was probable cause. 

On Tuesday, Travis County District Attorney Jose Garza said there isn’t.

"It's not justice if you're just dismissing a case because you don't think you can prove it. I don't think that's your job. I think it's your job to see the justice," criminal defense attorney unaffiliated with the case, Gene Anthes, said.

In a statement, DA Garza said, "We believe the victims in these cases were sexually assaulted, and we believe what happened was wrong. Unfortunately, the law in Texas does not reflect our current understanding of sexual assault and creates a burden that is very difficult to meet. As a result, we are unable to move forward at this time."

"Nothing has changed about the sexual assault statute or the definition of consent, since 2020, so I don't know what the realization that suddenly there's only this case that previously was charged now can't be, because a lot of the law hasn't changed," former prosecutor Julie Germann said.

DA Garza said in a statement, "Working on this case has highlighted for our office the very real problems that the Texas Sex Assault Statute creates when trying to bring justice to victims. We are committed to working to change that."

When FOX 7 asked Garza for an interview to clarify how his office is working to change that, we didn’t receive a response.

"Some states do, in fact, have statutes where it's just sexual assault involves penetration without freely giving consent in word or action and so you wouldn't need to prove that additional element of force. So, I don't know if that might be what he's referring to," Germann said.

"I'm not sure what exactly his office is referring to, you know, quite frankly, I wonder if he's kind of trying to fade some heat from some past bad press that his office has gotten in the past for just dismissing these cases," Anthes said.

According to court documents, the sexual assault charges were dismissed because of insufficient evidence.