French, Cody Darus
563 S.W.3d 228
| Tex. Crim. App. | 2018Background
- Appellant Cody French was indicted and convicted for aggravated sexual assault of his 5‑year‑old daughter; indictment amended shortly before trial to allege four theories (contact/penetration of anus; contact/penetration of sexual organ).
- Trial evidence strongly supported repeated anal penetration by appellant in multiple locations; very limited and equivocal evidence suggested any genital (vagina) contact or penetration (recanted statements, wiping, sitting on lap).
- The jury charge grouped the alternative theories into a single “element 1” and instructed jurors they need not agree on the manner in which the offense was committed, permitting non‑unanimity as to which orifice was involved.
- Defense counsel objected at trial, requesting the jury be instructed that they must all agree on the manner of the sexual assault; the trial court overruled and the jury convicted; appellant appealed arguing lack of unanimity.
- The court of appeals reversed under Almanza’s “some harm” standard; the Court of Criminal Appeals granted review to decide preservation and whether any harm resulted from the unanimity error.
Issues
| Issue | French's Argument | State's Argument | Held |
|---|---|---|---|
| Whether defense preserved unanimity error to invoke Almanza “some harm” review | Objection to instruction that jurors “need not all agree on the manner” preserved error and put court on notice | Objection was legally inaccurate (asked jurors to agree on mere “manner and means”) and thus failed to preserve; only egregious‑harm review should apply | Preserved: objection was specific enough to alert trial court and triggered Almanza “some harm” review |
| Whether trial charge violated unanimity requirement | Jury must be unanimous as to each element — including which orifice was contacted/penetrated; unambiguous alternatives are distinct offenses | The alternatives are mere manners/means; jurors need only agree defendant committed the offense | Error: failure to require unanimity as to orifice was legally erroneous; different orifices implicate distinct offenses |
| Whether the unanimity error caused "some" (actual) harm | Error likely harmed defendant because some evidence supported vaginal contact/penetration, so non‑unanimous verdict was possible | Even if error occurred, the evidence overwhelmingly supported anal penetration; risk jurors convicted solely on sexual‑organ theory was negligible | No "some" harm: after Almanza factors, the risk of conviction based solely on sexual‑organ theory was virtually infinitesimal; error produced only theoretical harm |
| Remedy / disposition | Vacate conviction and remand | Affirm conviction | Court reverses court of appeals, reinstates conviction, and remands to court of appeals to address remaining issue(s) |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (establishes preservation‑based "some harm" vs. unpreserved "egregious harm" standards for jury‑charge error)
- Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (different orifices/alternative subsections of §22.021 are distinct offenses for double‑jeopardy and unanimity purposes)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (jury must agree on the specific incident or discrete act constituting the offense)
- Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (failure to require state election among many similar incidents was harmless where nearly all allegations were indistinguishable)
- Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017) (election/unanimity error harmless where conviction depended entirely on victim credibility and defense was denial of all acts)