Pena, Fernando
PD-0840-15
| Tex. App. | Aug 17, 2015Background
- Petitioner Fernando Pena was convicted of indecency with a child by sexual contact; judgment and eight-year sentence affirmed on appeal.
- Indictment charged one offense, but trial evidence showed two separate incidents by the victim.
- Trial court did not give a specific unanimity instruction as to which incident sufficed for conviction.
- Seventh Court of Appeals acknowledged trial court error but held it did not cause egregious harm.
- Pena sought discretionary review arguing Almanza egregious harms standard improper for unanimity errors in this context.
- Court held: unanimity instruction omission was abuse of discretion, but no egregious harm; affirming trial court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity instruction required for multiple incidents | Pena argues omission violated Cosio and Ngo | State argues only one offense charged; no election required | Omission was error; not egregiously harmful |
| Whether Almanza egregious harm standard applies to unanimity omission | Algorithimic challenge to Almanza for unanimity cases | State relies on traditional Almanza framework | Almanza egregious harm not appropriate for this unanimity issue |
| Seventh Court of Appeals properly applied harm analysis | Appellate court erred in weighting harm factors | Court’s analysis consistent with record | Seventh Court erred in applying harm standard; but no egregious harm found; affirmed |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (established egregious-harm standard for jury-charge error)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (need for unanimity on a single incident; jury must be unanimous as to unit of prosecution)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (unanimity rights; guidance on perfection of unanimity instruction)
- Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) (discussed unanimity instruction and harm analysis; dissent cited in argument)
- Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014) (cases addressing unanimity and harm analysis; application to multiple acts)