DA Faces Tough Decision in Child Sex Case

A 29-year-old San Angelo man accused of sexually assaulting a toddler was sentenced to 10 years deferred adjudication probation on Tuesday morning, following a plea deal with the state. 

Thomas Boden was indicted in April this year on one count of aggravated sexual assault of a child and one count of indecency with a child sexual contact. His victim, the indictment alleged, was under 6 years old. 

At Tuesday's plea hearing, Assistant District Attorney Jason Ferguson offered a deal that would drop both charges in the indictment in exchange for a guilty plea on another first-degree felony, injury to a child with serious bodily injury. The decision wasn't easy, he said, but was ultimately made out of concern for the consequences and possible outcome of going to trial.

“In this case, we were dealing with a child who was 2 years old at the time of the offense, no adult witnesses, but serious injuries," Ferguson said in an email. "When we were looking at our options, my primary concern was for the best interest of the child, including considering what going through the rigors of trial preparation and testimony in front of a jury would be like for a toddler. In addition, I had to consider the very real possibility that if the child was unable to testify, the defendant would simply go home with no consequences.

"One thing that was clear is that this child was injured," Ferguson continued. "While not ideal, this plea allowed us to secure an admission of guilt from the defendant, keep him from contacting with victim or her family, remove any chance of a not guilty, and allowed us to keep an extremely young child from having to tell her story to a group of strangers and be subject to cross examination from a skilled defense attorney."

Th original complaint filed with the case alleged that Boden had been drinking on Jan. 1 when he got into an argument with a woman and the police were called. While the police were dealing with Boden, the woman changed the girl's diaper, where she discovered a large amount of blood. A sexual assault nurse examiner evaluated the injuries, and doctors discovered a laceration  “consistent with a recent penetrative trauma...” that they deemed was “…not an accidental injury or one the child would have caused to herself,” the complaint states.

Boden was arrested for aggravated sexual assault of a child on Feb. 19 and indicted in April on the two charges. He was set for trial in October; however, on Tuesday morning, he entered the courtroom with retained defense counsel John Young and pled guilty to a lesser first-degree felony charge of injury to a child with serious bodily injury. 

"It was a very difficult decision," Ferguson said. 

John Young, speaking on behalf of his client, echoed the same sentiment. "It was a difficult decision for Tom to accept a plea offer in the case; but under the circumstances, we came to the conclusion that it would be in his best interest to accept the agreement," Young said.

Injury to a child is a "3G" offense, Ferguson explained, and has a punishment range of up to 99 years incarceration. "...if the Defendant is unable to complete his probation, he faces up to 99 years in prison with the harsher parole rules of 3g offenses,” Ferguson said. 

Update: Friday, Aug. 28, 12 p.m.

Amidst a social media frenzy surrounding the case, prosecuting attorney Jason Ferguson added further clarification on the reasoning behind the decision he made and explained some of the legal aspects of trying a case like the one of Thomas Boden.

In order for a child to be allowed to testify at a trial in Texas, the Judge must be convinced that the child is able to (1) intelligently observe the events, (2) accurately remember the events, (3) adequately tell the jury about the events, and (4) understand the moral obligation of telling the truth.

The only witnesses to this offense were both toddlers – one was 2 and one was 4. The possibility of one or both of these children being unable to testify was extremely high, if not a certainty. If that were to happen, we faced the very real possibility that the Defendant would be found not guilty and simply go home with no consequences. That was something we could not risk.

I have worked hard with law enforcement to keep our community safe from violent criminals, prosecuting defendants in trials for murder, shootings, stabbings, and robberies. I do not want to see any violent criminal on the street. I understand the concern in the community about this case. When we considered what we would legally be able to present to a jury, the risk of this man being found not guilty and going free was simply too great.

This plea allowed us to secure an admission of guilt from the Defendant, keep him from contacting the victim or her family, remove any chance of him being found not guilty, and allowed us to keep an extremely young child from having to tell her story to a group of strangers, if allowed to testify at all, and be subject to cross examination from a skilled defense attorney.

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Correction - We originally reported that ADA Jason Ferguson was with the 51st District. That was an error. Ferguson was prosecuting for the 119th District Court.