Hodge v. State, 500 S.W.3d 612

Defendant Grady Leroy Hodge was tried jointly on two indictments (cause nos. 41288, 41289) charging multiple counts of aggravated sexual assault of a child and indecency with a child based on alleged abuse of his daughters A.H. and B.H. occurring principally in 2005–2006.
The district court denied Hodge’s pretrial motion to sever the two causes; both were tried together and the jury convicted on all counts and assessed major prison terms.
The daughters testified to multiple instances of similar sexual misconduct at Hodge’s workplace (the quarry: "tunnel" and "swimming hole") and to additional extraneous incidents at the family home and in Wyoming; some testimony described repeated but undated occurrences.
The State gave pretrial notice it would seek admission of extraneous-offense evidence under Tex. Code Crim. Proc. art. 38.37 and Tex. R. Evid. 404(b); police recovered corroborative items in Wyoming (sex device, Anal Ease tube).
Hodge argued on appeal that joinder of the two causes was prejudicial and that the jury charge lacked adequate unanimity instructions for counts supported by multiple instances; the trial court had inserted the word “unanimously” into each count at defense request but Hodge later contended more specific unit-of-prosecution instructions were required.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hodge)	Held
Motion to sever joined causes involving two child victims	Joinder permissible because offenses were same/ similar, part of a single criminal episode, and extraneous evidence would be admissible in separate trials under article 38.37/Rule 404(b)	Joinder was unfairly prejudicial because evidence concerning each daughter (and extraneous Wyoming/Lampasas acts) was distinct and inflamed the jury; severance would likely have changed outcome	Denial of severance affirmed: court found joinder within Penal Code §3.01 criminal-episode concept and Hodge failed to show unfair prejudice beyond that inherent in joined child-sexual-offense trials
Jury unanimity instruction for counts supported by multiple incidents	The charge (including the inserted word “unanimously” in each count and a general unanimity instruction) was sufficient; evidence and closing arguments focused jury on Burnet County incidents	The charge allowed non-unanimous verdicts because the State presented multiple separate occasions for the same count and the jury was not told to agree on a single discrete incident per count	No reversible error: even assuming some instructional deficiency, Hodge failed to preserve a specific unanimity objection and, under egregious-harm review, the record showed no actual harm; convictions affirmed

Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002) (definition and scope of a single "criminal episode")
Lopez v. State, 86 S.W.3d 228 (Tex. Crim. App. 2002) (standard for abuse of discretion review of severance rulings)
Mechler v. State, 153 S.W.3d 435 (Tex. Crim. App. 2005) (abuse-of-discretion and arbitrariness standards)
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (unanimity requirement and jury agreement on discrete incident)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (unanimity error analysis and need for jury to agree on specific criminal act)
Swearingen v. State, 270 S.W.3d 804 (Tex. Crim. App. 2008) (two-pronged jury-charge review framework)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm standards for preserved jury-charge error)
Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008) (egregious-harm standard for unpreserved jury-charge error)
Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) (non-unanimity where State proved different types of touching on different occasions)
Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015) (framework and factors for egregious-harm review)