Cosio v. State
353 S.W.3d 766
| Tex. Crim. App. | 2011Background
- Cosio was charged by indictment with four counts involving sexual offenses against a former girlfriend’s daughter, C.P.
- Counts 2 and 4 included multiple alternative paragraphs and the State elected to proceed under specific paragraphs for Counts 2 and 4.
- The jury was instructed that verdicts must be unanimous after each charge, but the charges could permit non-unanimous verdicts as to the specific incidents of conduct.
- The Corpus Christi Court of Appeals held the evidence supported overturning one indecency conviction and held the verdicts could be non-unanimous; it reversed on unanimity and charge-error grounds.
- The Texas Court of Criminal Appeals granted discretionary review to address unanimity and charge-error reasoning, and ultimately reversed part of the court of appeals’ judgment.
- The Court concluded the charges were erroneous in permitting non-unanimous verdicts but held Cosio was not egregiously harmed and remanded for further proceedings on remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court's charges permit non-unanimous verdicts? | Cosio | Cosio | Yes, charges allowed non-unanimous verdicts |
| Was the failure to elect a problem that validly preserves error? | Cosio raises charge-error | State argues forfeiture under Ngo and related cases | Election not strictly required to preserve unanimity issue; however, harm governs proper relief |
| Was there egregious harm warranting reversal? | Cosio | State | No egregious harm; not a due-process denial under Almanza |
| What is the proper remedy given erroneous charges but lack of egregious harm? | Cosio | State | Reverse and remand for proceedings consistent with opinion; three other convictions remain intact |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (unanimity requirement and election guidance; jury must unanimously agree on a single act)
- Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) (multiple acts of indecency require unanimous agreement on a single act)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm standard for trial errors not preserved by objection)
- Bates v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957) (require election when more than one act is shown)
- Crawford v. State, 696 S.W.2d 903 (Tex. Crim. App. 1985) (election required when several distinct acts occur)
- O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (reaffirmed election requirement upon defense request)
- Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (four reasons to seek election; court must still ensure unanimity)
- Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008) (relevance to unanimity and jury instructions)