Gudino, Luis
PD-0275-15
Tex. App.Mar 13, 2015Background
- Appellant Luis Gudino was convicted by a jury of four counts of aggravated sexual assault of a child and sentenced to 25 years’ imprisonment and a fine. Appeals followed; the Fourth Court of Appeals affirmed (delivered Feb. 11, 2015).
- Charges alleged penetration on or about four separate dates (Dec. 10, 2006; Dec. 10, 2007; Dec. 10, 2008; Apr. 10, 2009).
- Complainant A.G. gave a detailed account of a first incident when she was nine and then testified generally that the same sexual acts recurred once or twice a week (or every other day) while she was ten and eleven at various locations.
- Defense sought (1) a unanimity instruction (arguing that multiple distinguishable incidents required election or a jury unanimity instruction), (2) inclusion of a Penal Code § 8.07(b) age-waiver instruction, and (3) to elicit A.G.’s reputation for truthfulness. No objections to the charge were made at trial; appellate review therefore required showing egregious harm.
- The Fourth Court (Martinez, J.) held: (a) unanimity/election error was not established because A.G. did not describe separate discrete incidents as in Cosio and the record did not clearly support the possibility of a non‑unanimous verdict, (b) exclusion/limitation of the reputation question was not an abuse of discretion, and (c) no § 8.07(b) instruction was required because the record lacked evidence that Gudino was under 17 when the first alleged offense occurred.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gudino) | Held |
|---|---|---|---|
| Jury unanimity / election when multiple similar incidents alleged | No explicit contention that jury need not be unanimous as to a single incident; evidence tied acts to indicted timeframes so no clear risk of non‑unanimity | Where repeated similar misconduct is sufficiently distinguishable, defendant was entitled to an election or, absent election, a unanimity instruction because State gave detailed account of one incident plus general testimony of repeated acts | Court of Appeals: No error — A.G. did not describe multiple discrete incidents like Cosio; record did not clearly support possibility of non‑unanimous verdict; even if error, no egregious harm shown |
| Admission of complainant’s testimony about her reputation for truthfulness | Objection at trial: witness cannot reliably know her own community reputation; question was improper/repetitive | Trial counsel argued entitlement under Rules 404/607/608/609 to question A.G. about reputation for truthfulness | Court: No abuse of discretion — judge allowed rephrasing, record shows defense chose an alternative approach; appellant did not preserve a distinct evidentiary‑rule complaint |
| Penal Code § 8.07(b) instruction (juvenile waiver) | Not applicable because no evidence showed Gudino was under 17 at the alleged time; State did not concede age issue | Because detective testimony suggested Gudino was 19 in May 2009, Gudino argued he could have been under 17 in Dec. 2006, so § 8.07(b) instruction should have been included sua sponte | Court: No error — no evidence in record to support a rational inference that Gudino was under 17 for the charged 2006 incident, so § 8.07(b) was not applicable |
Key Cases Cited
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (unanimity requirement; jury must agree on a single and discrete incident when State presents multiple occasions)
- Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011) (standard for egregious harm review when no contemporaneous charge objection)
- Sanchez v. State, 376 S.W.3d 767 (Tex. Crim. App. 2012) (overlapping discussion on considering weight of evidence in charge‑error harm analysis)
- Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003) (testimony recounting repeated deliveries justified an election request; State could elect one instance)
- O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (election/unanimity principles in cases with multiple incidents)
- Bates v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957) (early election authority)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (discussion of jury unanimity as to a single unit of prosecution)