Robert Emmanuel Digman v. State
455 S.W.3d 207
| Tex. App. | 2014Background
- Digman was convicted of two counts of indecency with a child by exposure; each count carried five years’ prison and a $2,500 fine, to be served consecutively.
- Two-indictment structure: Count One alleged exposure to a child; Count Two alleged exposure by Digman or causing the child to expose, with the same intent.
- Judgments issued separately for each count; appellate numbers 07-13-00114-CR (Count Two) and 07-14-00428-CR (Count One).
- State concedes charge error on Count Two and that the error caused egregious harm; the court agrees to reverse Count Two and remand for new trial, while Count One is affirmed.
- During voir dire and closing, the prosecutor instructed that unanimity was not required for Count Two’s paragraphs, creating a unified charge that encompassed two distinct acts.
- Trial proceeded with a single application paragraph that did not require unanimity as to the specific statute paragraph violated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Count Two jury charge required unanimity. | Digman argues non-unanimous instruction allowed conviction without unanimity. | State concedes error but argues egregious harm relied on record. | Charge error; egregious harm; Count Two reversed and remanded for new trial. |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (unanimity required on essential offense elements; not always on means)
- Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) (unanimity for separate offenses; multiple acts in same statute may be separate offenses)
- Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013) (conduct-based offenses; separate elements may require unanimity)
- Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (conduct-type offenses; separate offenses for different acts of conduct)
- Aekins v. State, No. PD-1712-13, 2014 Tex. Crim. App. LEXIS 1718 (Tex. Crim. App. Oct. 22, 2014) (two indecency-by-exposure subsections define separate offenses, not mere means)
- Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014) (unanimity not always required; contextual review of harm factors)