Cosio v. State
358 S.W.3d 762
| Tex. App. | 2012Background
- Cosio was convicted by a jury of aggravated sexual assault of a child and indecency with a child by contact; sentences include two counts of aggravated sexual assault at 15 and 25 years, and two counts of indecency with a child by contact at 10 years with fines, all running concurrently.
- The indecency with a child by contact sentence for one count was suspended, Cosio placed on 10 years of community supervision with fines as a condition.
- This is a remand in banc proceeding following an earlier disposition that sustained some issues and reversed others regarding jury unanimity and charge error.
- Cosio challenged, among others, (i) non-unanimous verdict concerns, (ii) ineffective assistance of counsel on extraneous-offense instructions and punishment prep, (iii) sufficiency of the evidence for indecency with a child by contact, and (iv) a claimed juror-witness contact at the new-trial stage.
- The court reviews issues on remand, addressing jury unanimity, ineffective assistance claims related to extraneous-offense instructions, the reading-back of testimony, and alleged jury misconduct in the new-trial context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity of verdict on charged offenses | Cosio asserts non-unanimous verdict due to charge error. | State contends no reversible harm given record and impeachment posture. | Issue overruled; no reversible error found on unanimity. |
| Ineffective assistance re extraneous-offense instructions | Cosio asserts trial counsel failed to request extraneous-offense instructions and related preparation. | State contends acts evidence was admissible and not extraneous offenses; no prejudice shown. | Issue overruled; no prejudice shown; counsel's conduct not shown to change outcome. |
| Reading back testimony; potential error | Cosio claims counsel should have objected to reading back testimony with no shown disagreement. | State did not demonstrate a formal disagreement; objection unnecessary. | Issue overruled; any error harmless given overwhelming evidence; no reversal for counsel's failure to object. |
| Punishment hearing preparation | Cosio argues ineffective assistance for not preparing punishment evidence. | State contends lack of specific proposed evidence and record shows no prejudice. | Issue overruled; no showing that different punishment evidence would have changed outcome. |
| Juror misconduct due to witness conversation | Cosio argues juror conversations with attorneys violated Art. 36.22 warranting new trial. | State disputes the existence of improper discussion or harm. | Issue overruled; no improper discussions shown; at most misreading under harmless-error analysis given overwhelming evidence. |
Key Cases Cited
- Quinn v. State, 958 S.W.2d 395 (Tex.Crim.App. 1997) (presumption of harm arises only from juror unauthorized-person discussions)
- Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995) (presumption of injury arises from juror-not-authorized communication)
- Gamboa v. State, 296 S.W.3d 574 (Tex.Crim.App. 2009) (clarifies when presumption of harm attaches)
- Hughes v. State, 24 S.W.3d 833 (Tex.Crim.App.2000) (juror-contact harm presumptions refined)
- Howell v. State, 175 S.W.3d 786 (Tex.Crim.App.2005) (interprets Article 36.28 regarding reading back testimony)
- DeGraff v. State, 944 S.W.2d 504 (Tex.App.-Houston [14th Dist.] 1997) (harmless-error framework for jury-reading-back scenario)
- Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (standard for reviewing motions for new trial on jury misconduct)
- Rodriguez v. State, 577 S.W.2d 491 (Tex.Crim.App.1979) (probative value of threats; limitation on exclusionary reasoning)
- Peoples v. State, 874 S.W.2d 804 (Tex.App.-Fort Worth 1994) (threats as probative of guilt; limited relevance for limiting instruction)