Arrington, Charles, 2015 Tex. Crim. App. LEXIS 15

Background

Complainant H.A., appellant Charles Arrington’s daughter, testified to four separate incidents of sexual abuse during a 2010 visit (various acts including oral, vaginal, anal penetration, and digital penetration). No physical/medical evidence was found; a SANE nurse testified the delay could explain that.
Arrington testified and presented witnesses denying abuse; jury convicted him on six of seven counts (five aggravated sexual-assault counts and one indecency count); the jury hung on count three (oral contact) and a mistrial was declared on that count.
The trial court’s charge failed to instruct jurors they must be unanimous as to which specific incident supported each count; neither party objected at trial. The State conceded the instruction was erroneous on appeal.
The Fourth Court of Appeals reversed all six convictions, holding the non-unanimity error caused egregious harm because evidence was weak and the hung jury on the single-incident count indicated reliance on multiple incidents for other counts.
The Court of Criminal Appeals granted review and reversed the court of appeals, holding the lower court erred by basing its egregious-harm finding on theoretical rather than actual harm and by failing to consider the entire record (including that the jury rejected Arrington’s all-or-nothing defense and admitted witness testimony bearing on H.A.’s credibility).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Arrington)	Held
Whether omission of a unanimity instruction required reversal	Error conceded; but any harm was not egregious because the entire record supports verdicts	Jury-charge omission caused egregious harm because multiple incidents supported each count and jurors weren’t instructed to be unanimous as to incidents	Charge error existed but did not cause egregious (actual) harm; convictions reinstated and case remanded for other issues
Whether the hung jury on a single-incident count indicates non-unanimity on other counts	Hung count does not prove juror non-unanimity on other counts; other explanations (weak detail) exist	Hung count shows jurors relied on different incidents for convictions on other counts, demonstrating non-unanimous verdicts	Hung count insufficient to prove egregious harm absent consideration of whole record; court rejects lower court’s inference
Proper scope of Almanza egregious-harm analysis	Almanza requires actual, case-specific harm; courts must review entire charge, evidence, arguments, and record	Failure to give unanimity instruction vitally affected defense and verdicts	Court reiterates Almanza factors and requires actual (not theoretical) harm; applied here to deny reversal
Use of witness statements about complainant’s truthfulness at trial	Such testimony was admitted without objection and is part of the record to weigh for purposes of harm analysis	Trial evidence that opined on credibility was inadmissible bolstering and should not be weighed	Statements were admitted for all purposes at trial and properly considered; appellate court erred in disregarding them

Key Cases Cited

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (unanimity instruction principles and egregious-harm framework)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (Almanza standard applied to unobjected-to charge error)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (actual vs. theoretical harm standard for charge error)
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) (Almanza is fact-specific and case-by-case)
Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (evidence admitted without limiting instruction may be considered for all purposes)
Ruiz v. State, 272 S.W.3d 819 (Tex. App.—Austin 2008) (defendant’s all-or-nothing defense can weigh against finding egregious harm)
Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) (expert testimony on witness truthfulness generally inadmissible)