Charles Arrington v. State
2013 Tex. App. LEXIS 10096
| Tex. App. | 2013Background
- Defendant Charles Lavoy Arrington was convicted by a jury of six counts: five counts of aggravated sexual assault of a child and one count of indecency with a child; concurrent long-term sentences were imposed.
- Victim H.A., Arrington’s daughter, was nine at the time; she testified to multiple separate sexual assaults occurring over a multi-day visit (two separate shower incidents and a mattress/living-room incident), with different acts alleged across counts.
- The indictment charged specific acts (penile-vaginal, penile-anal, oral-vaginal, penile-oral, digital-vaginal, digital-anal penetration) with dates; one count (oral-vaginal contact) resulted in a mistrial because the jury could not reach a verdict.
- The jury charge contained no unanimity instruction requiring jurors to agree on a single discrete incident for each charged count, despite evidence of multiple separate incidents that could each support the same count. The State conceded the omission was error.
- Additional trial issues: no medical/DNA corroboration (SANE exam was delayed and showed no findings); impeachment evidence that H.A. initially denied abuse to the school counselor; the State elicited inadmissible opinion testimony on H.A.’s truthfulness from a counselor (expert-like) and from H.A.’s mother, and defense counsel did not object to these questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by failing to give a unanimity instruction for each count when multiple separate incidents could support the same charged offense | State concedes omission was error but did not argue harm was shown | Arrington argued omission required reversal because jury could convict non-unanimously by relying on different incidents | Court: omission was error and, under the record, resulted in egregious harm requiring reversal and remand |
| Whether the omission caused egregious harm (Almanza standard) given no objection at trial | State argued no egregious harm; defense said lack of unanimity undermined fairness | Arrington stressed conflicting jury verdicts (mistrial on the one single-incident count) and bolstering/improper credibility opinion evidence | Court: applying Almanza factors, found egregious harm and that defendant was deprived of a fair trial |
| Admissibility of expert-like testimony from the school counselor about the complainant’s truthfulness | State elicited counselor’s credibility opinion based on training/experience | Arrington argued such testimony impermissibly bolstered the complainant (inadmissible under Rule 702) | Court: such opinion testimony amounted to inadmissible expert opinion on witness truthfulness and was improper (contributed to harm analysis) |
| Admissibility of lay testimony from complainant’s mother about complainant’s truthfulness | State elicited mother’s view that child was honest | Arrington argued Rule 608 limits this and defense had not opened the door | Court: mother’s opinion testimony improperly bolstered credibility and factored into egregious-harm conclusion |
Key Cases Cited
- Cosío v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (jury must be unanimous as to the single discrete incident constituting the charged offense when multiple incidents could each support the count)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for harm review when no timely objection to jury charge; reversal only if defendant suffered egregious harm)
- Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) (expert testimony that a particular witness is truthful is inadmissible)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (clarifies need for unanimity on a single incident to constitute the offense)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (failure to give unanimity instruction can be compounded to produce egregious harm where jury is told it need not be unanimous)