French v. State, 534 S.W.3d 693

Background

Defendant Cody Darus French was convicted by a jury of aggravated sexual assault of his five‑year‑old daughter; sentence: 60 years confinement. Appellant appealed raising unanimity and public‑trial claims.
The indictment/charge alleged two distinct theories: contact or penetration of the victim’s sexual organ OR contact or penetration of the victim’s anus with the defendant’s sexual organ.
The trial court’s application paragraph listed both alternatives but instructed: “with regard to element 1, you need not all agree on the manner in which the sexual assault was committed.” Defense requested a unanimity instruction; trial court denied it.
The State’s case relied primarily on the child’s testimony and supportive witness accounts (SANE nurse, CPS investigator, forensic interviewer); physical injury was not found.
Defense presented evidence of alleged prior false accusations by the grandmother and argued the allegations were fabricated; defendant testified and denied the assault.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury charge violated unanimity requirements by submitting disjunctive offenses (sexual‑organ vs. anus) without a unanimity instruction	State argued jury could convict on either disjunctive alternative and need not be unanimous on the manner/means	French argued the jury had to unanimously agree on which orifice was contacted/penetrated and preserved the complaint at trial	Court held the charge was erroneous for failing to instruct on jury unanimity as to which orifice and reversal was required (harm shown)
Whether defendant preserved the jury charge complaint for appeal	State argued objection insufficient; prosecution contended error not preserved	French argued counsel’s objection and requested remedial language preserved error	Court held the objection preserved the unanimity complaint (no magic words required)
Whether the unanimity error caused harm requiring reversal	State argued any error was harmless; evidence focused on anus assault	French argued some harm occurred because jury could have convicted non‑unanimously	Court concluded defendant suffered some actual harm under Almanza and reversed and remanded
Public‑trial claim	State not addressed further after unanimity ruling	French raised a public‑trial violation as second ground	Court did not reach the public‑trial issue because reversal on unanimity made it unnecessary

Key Cases Cited

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (unanimity requirement for disjunctive acts)
Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App.) (separate orifices are distinct units of prosecution under §22.021)
Vick v. State, 991 S.W.2d 830 (Tex. Crim. App.) (legislative intent to criminalize separately distinct conduct under §22.021)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App.) (jury must be unanimous when disjunctive language alleges different criminal acts)
Francis v. State, 36 S.W.3d 121 (Tex. Crim. App.) (preservation of jury charge error when counsel alerts court to non‑unanimity risk)
Martinez v. State, 190 S.W.3d 254 (Tex. App.) (contact with sexual organ differs from contact with anus)
Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App.) (unanimity instruction required for multiple alleged acts)
Williams v. State, 474 S.W.3d 850 (Tex. App.) (harm from erroneous instruction that jury need not be unanimous about which body part was assaulted)
Clear v. State, 76 S.W.3d 622 (Tex. App.) (harm where jury heard evidence of distinct offenses and prosecution argued no unanimity necessary)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.) (harm standard for preserved/unpreserved jury charge error)
Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App.) (factors for Almanza harm analysis)
Elizondo v. State, 487 S.W.3d 185 (Tex. Crim. App.) (appellate court reviews record to determine actual harm)
Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App.) (error requiring reversal if calculated to injure defendant’s rights)