Jourdan, Ricardo
2014 Tex. Crim. App. LEXIS 438
Tex. Crim. App.2014Background
- Defendant Ricardo Jourdan was convicted by a jury of aggravated sexual assault and sentenced to 35 years; the Dallas Court of Appeals reversed for egregious jury-charge error regarding unanimity between two alleged theories.
- Indictment alleged, in two paragraphs within a single count, alternative theories: (1) contact or penetration of victim’s sexual organ by defendant’s sexual organ (and contact), and (2) penetration of victim’s sexual organ by defendant’s finger.
- At voir dire and closing, the prosecutor told the venire/jury unanimity as to specific theory was not required and explained the charge as offering alternative ways to prove the single offense.
- The written guilt-phase application paragraph combined both paragraphs in the disjunctive into a single instruction; defense did not object to lack of unanimity at trial (only objected as to sufficiency of evidence for the finger theory).
- Evidence: victim testified to penile contact and penetration and that defendant masturbated and re-engaged; medical notes and interpreter suggested possible digital penetration; semen was found on victim’s perineum and matched defendant; defendant admitted the beating but denied sexual assault.
Issues
| Issue | State's Argument | Jourdan's Argument | Held |
|---|---|---|---|
| Whether penile penetration and digital penetration (finger) alleged the same offense such that no jury unanimity was required | Both paragraphs allege penetration of the sexual organ under the same statute subsection; means (penis vs finger) are non-elemental and Legislature indifferent to means | The two paragraphs allege discrete statutory offenses requiring jury unanimity | Held they are the same statutorily defined offense under §22.021(a)(1)(A)(i); jury unanimity as to penis vs finger not required |
| Whether contact (penile contact) vs penetration (penile) are separate offenses requiring unanimity | Means/phrasing indicate penetration is the gravamen; contact is subsumed by penetration | Argued first paragraph charged contact (a different subsection) creating a unanimity problem | Held contact is subsumed by penetration in this transaction; any unanimity error would not be egregious because penetration necessarily includes contact |
| Whether contact (penile) vs digital penetration (finger) require unanimity and caused egregious harm | Even if separate, the record shows no reasonable chance of non-unanimity given the evidence and arguments | Argued jury could disagree as to penile contact vs digital penetration and conviction thus non-unanimous; alleged egregious harm | Held the theories stem from different subsections but, on these facts, any unanimity error was not egregious — no reasonable likelihood defendant was deprived of unanimous verdict |
| Whether prosecutor’s voir dire/closing statements that unanimity was unnecessary required reversal | Prosecutor’s statements are relevant but must be considered with whole record; state argued overall record shows no actual harm | Jourdan emphasized prosecutor’s repeated statements undermined unanimity and prejudiced his right to unanimous verdict | Held prosecutor’s statements were a factor but, viewing the whole record (evidence, defense theory), they did not produce egregious harm sufficient to reverse |
Key Cases Cited
- Vick v. State, 991 S.W.2d 830 (Tex. Crim. App.) (different statutory subsections that separately criminalize conduct can create discrete offenses)
- Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App.) (framework for determining whether jury unanimity is required by identifying gravamen/elements)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.) (standard for assessing egregious harm from unobjected-to jury-charge error)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.) (harm analysis for unpreserved jury-charge error)