Digman, Robert Emmanuel, PD-0226-15

Robert Emmanuel Digman was convicted by a jury of two counts of indecency with a child by exposure and sentenced to consecutive five-year prison terms and fines. He appealed both judgments.
Count One (appellate Cause No. 07-14-00428-CR) was challenged but ultimately affirmed. Count Two (appellate Cause No. 07-13-00114-CR) alleged either that Digman exposed his own genitals knowing a child was present or that he caused the child to expose his genitals.
During voir dire the prosecutor told jurors that, because the indictment pleaded alternative paragraphs, jury unanimity was not required as to which paragraph (i.e., which act) supported conviction. The prosecutor repeated similar language in closing argument.
The jury charge for Count Two used a single, disjunctive application paragraph and a single verdict form that allowed conviction if jurors unanimously found either exposure of Digman’s genitals or that Digman caused the child to expose his genitals, without requiring unanimity on which act occurred.
Digman did not object to the jury charge at trial. On appeal the State conceded charge error caused egregious harm as to Count Two; the Court of Appeals reversed Count Two and remanded for a new trial, and affirmed Count One.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Digman)	Held
Whether the jury charge allowed non-unanimous verdicts by submitting alternative theories in one application paragraph for Count Two	Charge properly described statutory alternatives (exposing one’s own genitals vs. causing the child to expose genitals)	Charge permitted conviction without jury unanimity as to which statutory subsection was violated	The two statutory alternatives are separate offenses; the charge error allowed non-unanimous verdicts and thus was error
Whether unobjected-to jury-charge error requires reversal	Even unobjected error requires reversal if it caused egregious harm	Error deprived defendant of unanimous-verdict right and caused egregious harm	Because defendant did not object, reversal is required only if egregious harm is shown; court found egregious harm and reversed Count Two
Whether the record shows egregious harm from the jury-charge error	Voir dire and closing comments expressly invited non-unanimous verdicts, increasing prejudice	Failure to require unanimity infected the verdict and deprived a valuable right	Court concluded the voir dire and argument heightened the risk of a non-unanimous verdict; harm was egregious
Whether Count One must also be reversed/severed	N/A — State conceded error only as to Count Two	Argues that the defect infected the whole trial	Court severed the appeals, reversed Count Two and remanded for new trial; affirmed Count One

Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) (statutory grammar can show that alternative conducts are separate offenses rather than mere alternative means)
Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013) (indecency statutes focus on nature of conduct; different proscribed acts may be separate offenses)
Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (analytical approach to nature-of-conduct crimes and unit-of-prosecution)
Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. 2011) (allowable unit of prosecution for indecency by exposure is the act of exposure)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for harm review when no timely objection to jury charge; reversal only for egregious harm)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (jury unanimity required under Texas law; courts must identify which elements require juror agreement)
Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014) (contextual comparison: similar voir dire/argument language did not necessarily produce egregious harm on the particular facts of that case)