Rubio v. State, 534 S.W.3d 20

Defendant Rudy Rubio was convicted by a jury of one count of aggravated sexual assault (penetration of the victim’s anus) and sentenced to life imprisonment.
Victim K.H. testified to multiple sexual assaults during a single encounter at the defendant’s business on Sept. 28, 2013, describing repeated vaginal and anal penetrations, ingestion/administration of drugs, and a rectal tear found by a SANE.
Physical/DNA evidence: sperm present in vaginal swab but appellant excluded from major component; appellant’s DNA found on victim’s panties and on two artificial phalluses seized at the scene.
Defendant gave a recorded interview admitting sexual activity but asserted the acts were consensual.
The indictment alleged ten counts (State later abandoned three; seven sent to jury). Jury acquitted on six counts and convicted on count four (anal penetration). The jury charge lacked a unanimity instruction specifying which discrete act the jurors had to unanimously agree on.
Defense also argued the State failed to timely disclose a 911 call (Brady claim); the trial court declined to admit the 911 tape and defense did not request a continuance or pursue a contemporaneous Brady objection.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Rubio)	Held
Jury unanimity/non-unanimity where multiple similar acts were testified to	State: the penetrations were part of one continuous criminal transaction/continuous acts of force so no unanimity/election instruction was required	Rubio: multiple discrete acts were alleged; without an instruction jurors could convict without unanimous agreement on the same incident (Cosio)	Court: No error — victim’s testimony showed repeated penetrations in same place/time as a continuous course of conduct; unanimity instruction not required.
Brady — late disclosure of victim’s mother’s 911 tape	State: tape was not admitted and counsel agreed tape was inadmissible; no duty to disclose inadmissible evidence; tape was disclosed during trial	Rubio: late disclosure of 911 tape was favorable and potentially material; prejudiced defense	Court: Error not preserved — defense did not object or request continuance when tape was disclosed; court also noted tape was inadmissible and trial counsel had objected, so no Brady violation is reviewable.

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) (non-unanimity risk where State presents multiple distinct incidents for a single-count offense)
O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988) (State must elect which act to rely on when single count and multiple acts shown; exception for continuous act of force)
Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (continuous-act exception applies when multiple acts are part of same criminal transaction by continuous force/threat)
Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (no non-unanimity harm where distinguishing details among multiple incidents were immaterial to guilt)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecutor’s duty to disclose material favorable evidence)
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) (no Brady duty to disclose evidence that would be inadmissible at trial)
Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993) (same principle regarding inadmissible evidence and Brady)