*1 support issue). ny child victim is sufficient to that Theus factors of I believe critical conviction). strongly aggravated sexual assault weigh less five therefore four and hearing shows that after a convictions The record admitting prior the in of favor the court ruled jury’s presence, the majority. outside by the than stated pled as enhance- prior the two convictions notes, addition, the determi- as Theus In inquired in the indictment could be ments value of probative the nation of whether Míreles during guilt-innocence. When into outweighs prej- its challenged evidence the initially testifying, his own counsel began merely a matter of effect is not udicial convictions. On cross- prior raised the factors. Id. at 881-82. tallying up the five examination, briefly in- prosecutor the that the low im- majority The concludes The drug into the two convictions. quired crimes and prior value of the peachment convic- prior did not refer to Míreles’ their 10-year lapse weigh against time the de- during closing arguments, its tions admission, but finds no error because in his counsel did refer to them fense in favor of admission other three factors I believe the tri- closing argument. While these two factors. I believe the outweigh admitting al court abused its discretion 10-year value of Míreles’ old impeachment convictions, Mí- prior the evidence of drug very slight given convictions that he was reles has failed to demonstrate drug convictions are not crimes possession by the error. I therefore concur harmed have minimal deception of or violence and judg- of trial court’s in the affirmance credibility apart relevance to a defendant’s ment. Sim- merely showing from bad character. Theus, im- ilar I believe the minimal value, sig- with the
peachment combined lapse prior
nificant of time between the offense,
convictions and the instant over- in favor ad-
rides the other three factors of (four the five factors
mission. See id. of admission, favored but the court concluded ARRINGTON, Appellant Charles value overrode impeachment the lack of factors). the rec- the other four Because v. value of probative ord shows that the weak Texas, Appellee. STATE “outweigh” convictions failed to prior No. 04-12-00430-CR. effect, I would hold that prejudicial their in ad-
the trial court abused its discretion Texas, Appeals Court under Rule mitting prior convictions San Antonio. 609(a). 14, 2013. Aug. hold, however, also view would whole, particularly of the record as a complainant’s
child detailed consistent sup- which alone is sufficient to conviction, admitting the error in
port not affect Míreles’ prior convictions did therefore was rights
substantial and was 44.2(b); Tex.R.App.
harmless. see See P. 38.07(a) also Crim. Proc. Ann. art. Tex.Code (West (uncorroborated testimo- Supp.2012) *3 Aristotelidis, Mott, De
Jorge G. Armendariz, San McChesney, Curtright & Antonio, TX, Appellant. for TX, Vela, Jr., Antonio, for Ricardo San Appellee. MARION, BRYAN
Sitting: SANDEE BARNARD, Justice, Justice, MARIALYN CHAPA, D. Justice. ELENA LUZ she, OPINION er’s residence. H.A. appel- testified lant, and her brother were all in appel- BRYAN Opinion by: SANDEE lant’s room his bed. She testified that MARION, Justice. while her brother playing Xbox at the Lavoy Arring- A convicted Charles bed, edge of the appellant “stuck his hands ton, aggravated of five appellant, counts pants.” down [her] H.A. stated he sexual assault of a child and one count her “vagina “rubbed” and [her] butt.” indecency with child sexual contact. mother, H.A. did not tell her but testified sixty sentenced she told her friends at school. years’ aggra- confinement on each count of *4 H.A. testified the sfecond sexual assault of a child and to twen- incident of vated ty years’ abuse occurred over spring confinement on the one count of break while child, indecency with a all sentences run- H.A. was in the third grade.’’ H:A. and her ning concurrently. younger brother went stay to with their girlfriend, father and his Tracey. H.A. Appellant appeal: asserts five issues on testified to three separate incidents of sex- (1) the trial court committed ual abuse that occurred at appellant and by failing give error to a unanimity in- first, Tracey’s testified, house. The she separate struction as to each inci- criminal occurred in the shower Tracey after had trial, alleged charged dent as in each left for work after and her brother fell indictment; separate count/offense asleep. H.A. testified appellant told her to (2) trial jury charge egre- the court’s error go get in the shower. While H.A. was in (3) him; giously alternatively, harmed shower, appellant turned the light off trial jury charge court’s error rendered got and the shower with her. H.A. unfair, fundamentally his trial in violation oral-penile penetration, testified to oral- of the Due Process Clause of the Four- contact, vaginal and sexual contact when teenth Amendment of the United States appellant breasts, touched her vagina, and (4) Constitution; his trial counsel rendered “butt,” her appellant and when made her ineffective assistance of by failing counsel touch him inappropriately. This is re- object to expert to State’s elicitation of to ferred as the “first shower.” testimony witness about the truthfulness of the complainant’s sexual misconduct ac- The third incident was the “second (5) cusations; and his trial counsel ren- shower,” which H.A. testified occurred the dered ineffective assistance of counsel day after the first shower incident. Dur- failing object to the State’s elicitation of shower, ing the second H.A. testified to lay witness about the truthful- penile-vaginal penetration,- penile-anal pen- ness the complainant’s allegations. We etration, penile-oral penetration, digital- reverse and remand. penetration, anal and digital-vaginal touch- ing/penetration.
BACKGROUND complainant in this case appel- The fourth incident about which H.A. H.A., daughter, years lant’s who was nine day testified occurred the after the second alleged she, brother, old at the time of the Ap- abuse. shower incident while her pellant separated. and H.A.’s mother were appellant and were on a mattress separation, appellant After the went living to live room. H.A. testified when her at his alleged mother’s house. H.A. brother fell asleep appellant moved him to first incident of abuse occurred while engaged she a couch and then in sexual contact visiting her father at appellant’s moth- with her. H.A. testified that penile-oral single a and discrete “agree upon must touching, sexu- digital-vaginal
penetration, the commis incident that would constitute touched her when al contact “butt,” alleged.” (quoting Id. sion of the offense digital-anal her breasts, and vagina, (Tex. 706, 717 and Stuhler v. penetration, penetration, penile-anal “[N]on-unanimity may during Crim.App.2007)). occurred penetration penile-vaginal charges one offense occur when this incident. that the defendant presents evidence friends about she told her H.A. stated multiple charged offense on spring over that occurred the incidents at 772. separate occasions.” Id. at her ele- rumors circulated After break. multiple of the incidents would When each school, approached a counselor mentary offense, individually establish a different oc- told her what had H.A. H.A. and . “charge, that the requires the situation charged with sev- Appellant curred.2 to instruct unanimity, would need ensure aggravated sexual assault: en counts of must be unani its verdict Penetration), (Penile-Vaginal Count single offense or unit of mous as to (Penile-Anal Penetration), Count II Count among those Id. prosecution presented.” Contact), IV (Oral-Vaginal III *5 ultimately “[Guaranteeing unanimity is Penetration), (Penile-Oral (Digi- V Count be responsibility judge of the trial Penetration), VII and Count tal-Vaginal jury on judge cause the must instruct Penetration). He was also (Digital-Anal to the case.” Id. at 776. applicable the law VI, indecency with a with charged Count obligated to judge “The trial is therefore contact. III was by child sexual not allow for the charge submit a that does trial court after the subsequently dropped possibility of a non-unanimous verdict.” that count. The a mistrial on declared Id. no instruction tell- jury charge contained on they had to be unanimous ing jury facts to the very In a case with similar they case, Cosío, act believed separate which criminal was instant defendant specific aggra- offense of constituted the charged aggravated with two counts of assault. indecency vated sexual sexual assault and two counts
with a Id. at 770. Evidence was child. CHARGE ERROR JURY sup- of more than .one instance presented and there was no una- porting the lack of a each count Appellant argues jury that nimity instructing instruction unanimity jury instruction in the which in- that it had to be unanimous about was error. The State concedes error the commission of the and the stance constituted occurred. The Texas Constitution indi- purposes for of each of the require Procedure offenses Texas' Code of Criminal vidual counts. Id. The Court of Criminal jury felony that a verdict in cases be unan 13; error and V, Appeals § concluded there was imous. Tex. art. Tex.Code Const. 2006). 36.29(a) (West allowed for the charges held the in Cosío Proc. Ann. art. Crim. non- jury that rendered possibility A reach a unanimous verdict must at 774. The unanimous verdicts. Id. that the defendant specific about crime noted, State, jury could have relied 353 Court “[t]he committed. v. S.W.3d Cosio conduct, 766, of criminal separate The oh incidents (Tex.Crim.App.2011). joke and her made her do it. The approached H.A. friends 2. The school counselor time, circulating were at twice about rumors that H.A. told the counselor about second elementary pregnant. that she was her school the sexual abuse. time, a told the counselor was The first H.A.
HI sep- given. which constituted different offenses or pattern This same occurred on arate all prosecution, by units of committed counts: him ... guilty
Cosío to find counts.” (penile-anal Count II penetration) —al- (citation omitted); Id. see v. Francis leged appellant that aggra- committed 121, (Tex.Crim.App.2000) vated sexual by assault penetrating (concluding failing there was error penis H.A.’s anus with his on or about unanimity noting, include instruction and 26, March 2010. Evidence of two differ- “it is possible six members of the supported ent incidents this offense— appellant convicted on the breast-touching the second shower and the day next on a (while offense the other six believed he living mattress in the room. breast-touching) was innocent of the Count III (oral-vaginal contact) alleged— appellant six members convicted on the aggravated committed (while genital-touching offense the other sexual assault causing vagina six he genital- believed was innocent of the to contact his-mouth on or about March touching)”). 26, 2010. Evidence of one incident Likewise, here, presented presented the State trial —the first tes- show- incidents, er.3 timony separate occurring days,
different as evidence of the counts as (penile-oral Count IV penetration) —al- charged. jury charge in appellant’s leged that appellant aggra- ease did not contain a instruc- vated sexual assault by penetrating tion and presented evidence was of multi- H.A.’s mouth with penis his on or about instance, ple offenses for each count. For March 2010. Evidence of three dif- *6 the application paragraph for Count supported ferent incidents this offense— (penile-vaginal penetration) stated: shower, shower, the first the second and
Now, you mattress/living if from room find the evidence be- incident. yond a reasonable doubt that on or (digital-vaginal Count V penetration)— March, 2010, Day about the 26th of alleged appellant aggra- committed defendant, County, Bexar Charles by vated sexual assault penetrating Arrington, intentionally knowing- did or H.A.’s vagina finger with his on or about ly cause the penetration of the female 26, March 2010. Evidence of two differ- [H.A.], sexual of organ a child who was ent incidents supported this offense— younger years, than 14 by Ar- Charles the second shower and the mattress/liv- rington’s male organ, you sexual then ing room incident.
will find the guilty aggra- defendant of (indecency Count VI with a by child vated sexual assault of a child as sexual contact) alleged that appellant — charged Count I of the indictment. indecency committed with a by child testimony presented evidence of two by sexual contact causing H.A. to touch separate criminal acts that genitals. could constitute his Evidence multiple of inci- this offense—the offense, second shower supported incident dents some of day and the next on a mattress in the may which have been into the subsumed living unanimity room—and no instruction aggravated sexual assault offenses.4 State, 138, 3. The was unable to reach a verdict on 4. See Evans v. 299 S.W.3d 143 contact) (oral-vaginal (Tex.Crim.App.2009) (holding indecency Count III and the with trial by a child contact was a lesser included of- court declared a mistrial on that count. aggravated fense of sexual assault when both act). predicated are offenses on the same 112 vitally affects a defen right, a valuable or penetration) (digital-anal VII —al- State, 274 aggra- theory.” Fulcher v. S.W.3d sive
leged that
2008,
713,
by penetrating
pet.
Antonio
(Tex.App.-San
assault
716
vated sexual
d).
finger on or about
with his
“An
harm determination
egregious
H.A.’s anus
ref'
26,
of two differ-
2010. Evidence
actual rather
finding
March
be based on a
must
Cosio,
this offense—
supported
incidents
353 S.W.3d
ent
than theoretical harm.”
However,
and the
require
shower
“we do not
di
the second
at 777.
mattressfiiv-
ing
egre
room incident.
rect evidence of harm to establish
State,
harm.” Hutch v.
922 S.W.2d
gious
multiple instances
evidence of
Because
166, 171 (Tex.Crim.App.1996).
constituting the offenses
acts
of criminal
trial,
on
an instruction
at
presented
following
fac
We consider
to the incidents was
juror unanimity as
(1)
the entire
evaluating
tors in
harm:
Cosio,
at 772.
required.
(2)
evidence, in
the state of the
charge;
conclude,
Therefore,
and the State con-
we
cluding
weight
contested issues and the
cedes,
include an in-
it was error not to
(3)
evidence;
argu
probative
parties’
instructing
paragraph
struction
(4)
trial;
and at
all
ments
voir dire
that constituted the
unanimity of the acts
relevant
information in the record.
other
offenses.
Almanza,
Appellant’s trial counsel did the unanim object to the failure to include There was no instruction. a defendant does ity instruction. When “unanimous” mention of the word object, jury-charge a constitutional is not following in the entire 776; preserved. Phillips is not Id. at sue selection “boilerplate” language regarding *7 (Tex. State, 904, v. 193 S.W.3d 913-14 of the foreman: However, “charge error Crim.App.2006). you your jury After have retired to by never a defendant’s failure forfeitable room, your you should select one of Cosio, object to at trial.” 353 S.W.3d at your It is his “foreperson.” members as Instead, object a failure to controls 776. your duty preside or her to delibera- analysis that will be only type of harm and, tions, you have you vote with when a defendant does not applied. Id. When verdict, unanimously agreed upon a error, his convictions object to the certify your signing verdict only if he subject appeal are to reversal on “foreperson.” as same harm.” Almanza “egregious has suffered (Tex.Crim. thus, State, 157, non-unani- charge, “permitted 171 v. 686 S.W.2d pre- on the evidence harm is established mous verdicts based App.1984). Egregious Cosio, 353 S.W.3d at appellant if the record that the has sented case.” shows 777. The error did not affect one suffered “such harm that trial was not [his] count, Id.; Cosio, upon but instead affected all counts impartial.” fair or see Therefore, egre error is which was convicted. Charge S.W.3d at 776-77. finding egre- in weighs “the this factor favor of giously very harmful when it affects case, harm. deprives gious of the the defendant of basis
H3 the Evidence B. The State of concedes that McGinnis answered direct questions on credibility and truth 1. Lack of medical evidence Appellant fulness. asserts McGinnis was There was no medical evidence witness,” portrayed “outcry/expert as an H.A. the incidents of case. testified sexual and, such, opinion as her on truthfulness abuse occurred late March and the was not agree. Expert admissible. We SANE exam was not conducted on her particular that a witness is Therefore, May. until late there was no truthful is inadmissible under Rule 702. any DNA evidence or other forensic evi- (Tex. Yount v. per- dence at the time the exam was stand, Crim.App.1993). When taking per- formed. The SANE medical exam questioned her qualifi about her on H.A. formed revealed no evidence of cations: sexual abuse consistent with H.A.’s testi- Q: long you And so how have worked However, mony. the SANE nurse who aas school counselor? conducted the exam testified there often is no evidence after a certain A: amount of time I’ve been a school counselor for 11 passed years. has and the lack of evidence does necessarily story. not contradict H.A.’s In Q: long And how have you worked in case, any the lack of medical evidence re- school administration. said, essentially sulted in a “he she said” A: Twenty-one years. appellant. between H.A. and Q: Now, what age groups have you any 2. Evidence that H.A. denied sex- worked with? ual misconduct when first confronted A: Mostly elementary school but the McGinnis, counselor, Lisa the school tes- years last two I worked with middle
tified she first confronted H.A. after ru- anywhere schools from five to 15. mors pregnant. circulated that H.A. was Now, Q: what kind of you education do Initially, any H.A. did not indicate miscon- have? by appellant saying duct instead it was all A: I have a early [sic] childhood edu- a misunderstanding just and “she was talk- degree, cation a bachelor’s. I have a about, ing basically, where babies come in counseling master’s and then a Ph.D. from and her friends had misunderstood in counseling supervision and I’m a days her.” Two day later on the last professional licensed counselor outside school, approached McGinnis again H.A. my counseling school certification. when rumors to circulate. continued *8 McGinnis testified that now the rumor was The State then asked her about H.A.’s not that H.A. was pregnant, but that credibility: thought she it might baby. be her father’s Q: you What did—what details did McGinnis called H.A. back to her office credibility story see that lent to her at that and time H.A. “became tearful and you that made know that she. was she told that her father [McGinnis] had you telling the truth? touched her inappropriately.” A: I felt that telling she was me the “expert 3. State’s elicitation of testi- truth based on the fact that she had mony” on H.A.’s truthfulness details, example, for what they movie
The State asked the school coun were watching; .that her brother was selor, McGinnis, opinion her on the truth playing PlayStation when happened fulness of nine; H.A.’s accusations and the State when very she was that she could she, Q: changed I guess, of what And has from herself situation put
much exactly talking at her initial reaction of about what that time. going on happened? me things that made were Those really, A: You mean—not no. You the truth. telling she was feel like mean, personality? like Now, you what told that Q: Okay. mean, Q: is she still fearful and Yes. important factors?
those were when talks it? embarrassed she about my experience that I’ve Based on A: really A: No we don’t talk about it students, my other based on had with questions her all that much but I ask were the experience. Those educational very with her and she’s honest answer on. I fell back things that and she’s not —she doesn’t hide the you for were trained to look Q: So the truth. answers. tells She signs? these counselor, yes. A: As a Q: think this could happen You didn’t testimony essentially We believe this your to daughter? opinion H.A.’s expert to an amounted A: Yes. was the against accusation Q: about you Did talk to the fact [H.A.] truth, inadmissible had the which is police be going were to involved “bolstering” testimony. effect of H.A.’s going and she was to have to— Yount, Appellant’s See 711. A: Yes. object not trial counsel did to McGinnis’s testimony.5 Q: through with that? —follow A: Yes. elicitation
4. State’s about from H.A.’s mother H.A.’s truth- you Q: [H.A.] Did ask if she telling fulness the truth? A: Yes.
The State also asked H.A.’s mother you? say Q: questions H.A.’s And what did she about truthfulness. may credibility supported of witness be yes cry- A: and she She said started by opinion, evidence in the form but the ing. may only evidence refer character for Appellant’s object.6 counsel did not truthfulness and evidence truthful char- impeachment 5. State’s of H.A. only after character
acter is admissible of the for has been testified that the first time she witness truthfulness McGinnis approached ar- rumors Appellant attacked. Tex.R. Evid. 608. H.A. about she was gues pregnant her it was a “open he did not door” attack- H.A. told misunder- ing standing credibility, any H.A.’s so as to allow H.A.’s and denied sexual abuse had opinion argued her on HA.’s occurred. im- provide Appellant mother to peached testimony, discrediting truthfulness. The State asked H.A.’s her. McGinnis following: mother testified: *9 appellant’s appellant’s 5. This is the basis for issue. 6. This the basis for fifth issue. fourth He trial counsel rendered ineffec- He trial counsel rendered ineffec- asserts his asserts his by failing object by failing object tive counsel tive of counsel assistance of assistance expert to the to the State's elicitation of witness State’s elicitation of from testimony about the the com- about the truthfulness of the truthfulness of mother plainant’s complainant’s sexual misconduct accusations. sexual misconduct accusations.
H5 Q: Okay. you your So called her into opinions Given that the on H.A.’s truth- what happened? objection office and fulness went without in a case where it essentially was appellant’s word I to her. I told her that spoke A: we H,A.’s (there against were no witnesses had heard this rumor. I asked her evidence), and no we believe DNA/medical said, no, it. about She it was a misun- the state of the evidence weighs factor that derstanding just talking she was slightly in favor of finding egregious harm about, basically, where babies come from when, here, as there was no unanimity and her Mends had misunderstood her instruction and the question of whether point and at that I her. believed any of the acts is H.A. also testified: obviously the contested issue at trial. Q: person Was the first [McGinnis] you happened? that told about what Arguments C. Parties’ A: First —whenever first talked to Neither the defense nor the State men- her, why telling she asked me I was unanimity any tioned during time voir everyone that I pregnant. was closing dire or arguments. Appellant ar- Q: Uh-huh. gues following that the statement from the just A: And I told her that it was a a “misled the believing into that it joke all up. and was made convict, could even if it was not unani- Q: Okay. you So told Ms. McGinnis mous:” you just were joking around? He didn’t have to be thinking about that A: Yeah. before she came over for that visit. He H.A. also told her mother the rumors could have developed that the first time “joke”: were a he had her that bed or the first time Q: youDo know if talked to [McGinnis] he had her in that shower. It could your parents? have into popped his brain and he could my A: She had told parents that I had have acted on it. It impulse could be an telling been rumors that I pregnant. long as as he did it and he intended to do it he did it and it satisfies this Q: mom, Okay. you And you did talk to charge. Jenny? just
A: No. She why asked me and I intent, This statement referred to not una- just just joke said it was that my nimity. In the immediately preceding friend made me do. paragraph the State discussed the intent Q: Now, Okay. why element of the you would lie to offenses and argued “[fin- your mom at that point? spontaneous” tent can be and does not premeditated. Therefore, have to be we A: I was like super scared that some- do not believe the above statement had one can hurt me and come find me. anything with unanimity. to do H.A. testified that she lied to McGinnis and her mother because she was scared In Ngo v. the Court of Criminal her dad could hurt if anyone. her she told Appeals egregious found harm when the H.A. also testified that she told her jury charge mother did not contain a joke rumors were a and her friends instruction and the repeatedly it, made her do but stated she said that told it need not return a unanimous ver “super because she was scared that some- dict. 175 S.W.3d 752 (Tex.Crim.App. 2005). one can hurt stated, me and come find me.” The Court “this is an in *10 116 III jury failed to reach a verdict. Count original jury charge the in which
stance in aggravated or ameliorated alleged appellant corrected was not error instead, it charge; by causing of the his mouth to portion sexual assault another misleading by the one trial, compounded was At H.A. testi- vagina. contact H.A.’s unanimity that was concerning statement occurred once: fied this well as charge, as jury in the set out Q: your he ever touch his mouth to Did of both the trial statements the affirmative your girl parts your vagi- or or middle jury prosecutor judge and the na? verdict.” a non-unanimous could return Yes. argu instant case the Although in the Id. the error as “compound” not ments did he that? When did do at was no mention Ngo, in there they did In the shower the first time. unanimity requirement. There all of In the shower the first time? fore, charge error was not although the <© it was not “corrected or “compounded,” > Yes. Id.; see Ruiz v. either. ameliorated” III alleged, Of all the counts Count was 819, State, (Tex.App.-Aus 825 272 S.W.3d only only count on which evidence of (finding egregious no pet.) no tin con- presented one incident was that would to include harm when failure the offense—the first shower. stitute ameliorated when State was instruction Coincidentally, III Count all said, not have to find jury “The does jury count the was unable to reach ver- in the first ways [alleged four of these The record demonstrates the fol- dict on. guilty. defendant But it to find the count] jury lowing occurred when the entered its you agree of that one or if all sufficient verdict: proved.”); been ways have more of these Foreman, Mr. I have Q: right. All 254, 260, S.W.3d 262
Martinez v. your note. Aside from Count gotten 2006, pet. (Tex.App.-Houston [1st Dist.] III, you are the verdicts that Number ref'd) harm when (finding egregious no have arrived at unanimous? was “ameliorated” unanimity charge error when the State told during voir dire Yes, ma’am, they are. A: deciding which act must be unanimous Q: right. your All So based on note offense). However, be constituted at a verdict on you cannot arrive there was no affirmative statement cause efforts, III, despite very diligent error, charge fac “compounding” the in, have then I’m you put know that finding weigh not in favor of tor does III going to declare a mistrial on Count Cosio, egregious harm. See the verdicts on the balance and receive parties nor the trial (noting neither of the counts. by telling jury error court added therefore, to read the unanimous, proceeded The trial court it did not have to be remaining all finding jury’s guilty verdict of weigh this factor did not favor harm). this information in the counts. We believe egregious weighs in favor of
record is relevant D. Other Relevant Information harm because the finding egregious Record of all counts on appellant guilty found multiple instances con- which evidence Here, appellant guilty found counts, stituting presented, exception of Count III offense all with the reach a verdict on the one the was unable to on which a mistrial was declared after
H7
and,
only
constituting
that
mother
even more damaging,
one instance
when
count
presented.
was
the
portrayed
the offense
State
McGinnis as an expert
and
expert
elicited an inadmissible
opinion
Analysis
E. Conclusion on Harm
from her on H.A.’s truthfulness.
Cosio, the
Court of
Corpus
In
Christi
the Cosio Court noted that the
egregious
concluded there was
Appeals
ThirdJ
...
“jury
generally
charges
instructed the
appellant’s
and reversed
convictions
harm
jury, at
end
charge,
the
each
that its
jury charge
the
did
contain a
when
not
of
be
verdicts must
unanimous.” Id. at 770
unanimity
of sev-
instruction and evidence
added). Here,
(emphasis
as mentioned
constituting
eral instances
the offenses al-
above,
only
there was
one
in
paragraph
the
presented
were
at trial. Cosio v.
leged
jury
entire
that had
do
anything to
(Tex.App.-Corpus
Second, in this two inci- appellant guilty case there were not find of all counts like Cosio, of inadmissible of H.A.’s “bolstering” dents did in instead was unable when the elicited on the only reach a verdict count that —once opinions constituting on H.A.’s from her evidence of one incident truthfulness *12 court, abuse in the details of the sexual trial to re-live alleged. The the offense was the Regrettably, because a courtroom. mistrial and en- a accordingly, declared to ensure the State failed trial court and by jury” on acquittal of “judgment a tered right to a constitutional the defendant’s therefore, record, we this III. On Count honored, the child was unanimous verdict from Cosío as distinguishable find the facts yet again. through process the must suffer jury’s the verdicts likely” “highly it is not in fact jury the was unanimous where were on the appeal The outcome of this turns reach a unable to and was not unanimous V, Article Section 13 guaranteed by right, III) (Count that count on the one verdict Constitution, jury’s that the of the Texas act constitut- only one criminal evidence of felony in a case be unanimous. verdict the alleged. Because was ing the offense primary responsi- the The trial court bears guilty on find jury could not that jury the understands bility to ensure act, only one criminal III on based Count inci- upon single, a discrete agree it must likely jury was the it we cannot conclude of the that constitutes commission dent the other counts unanimous on case, was alleged offense. In this believe criminal acts. We alleged multiple however, offenses; charged separate seven “actual harm.” this demonstrates that the defendant presented evidence (except each of those offenses III) multiple, separate for on Count CONCLUSION required The trial court was to occasions. entitled, under defendant is A criminal charge instructing submit a and the Texas Texas Constitution both the guilty it in order to find the defendant to a unani Procedure of Criminal Code unanimously on one incident of agree must felony cases. jury verdict mous Tex. met all the essential elements conduct that 13; V, § Const. art. Proc. Tex.Code Crim. charged of the offense. Cosío, 36.29(a); at 771. In art. example, For the child testified the de- case, a concedes the lack of the State penis in her put fendant forced her to his jury charge unanimity instruction course mouth on three occasions over the record, we Based on this con was error. days physical two different loca- of two a fair trial deprived appellant, clude while tions—twice in the shower and once by the trial court’s failure to include jury was a mattress. In IV the thus, and, egre instruction defendant asked to find whether Accordingly, we reverse giously harmed.7 organ penetrate caused his sexual judgment the trial court’s conviction from the apparent child’s mouth. It proceedings. the case for further remand ju- the twelve jury’s verdict that each of doubt beyond rors believed a reasonable by: ELENA Concurring Opinion LUZ However, the offense. that he committed CHAPA, D. Justice. reached a non-unani- could have Justice, CHAPA, ELENA D. LUZ count because the mous verdict on this concurring. that in trial court did not instruct jurors all twelve júry beyond guilty, believed a reasonable order to find him specif- agree nine- would have to that one doubt that the defendant abused his That then ic of the conduct occurred. year-old daughter, required who was instances R.App. remaining appellant's 7. We peal. Tex P. 47.1 decliné address they dispositive ap- as are not to this issues
H9 is, jurors may tionally some of the have believed obtained. County The Bexar tax- alleged happened the offense in Count IV payers, jury, the members of the and the shower, only in the first while the remain- child victim all suffer aas result.
ing jurors happened only believed it on the
mattress. by majority,
As noted when the properly unanimity,
is not instructed on compelled judg-
this court is to reverse the logical-
ment unless the record allows us to was,
ly jury’s conclude the verdict in fact case, unanimous. In this this court is un- Bobby MORENO, Appellant only able to so conclude. Not did the v. point State fail to out the error in the court, explain to the trial it did not Texas, Appellee. The STATE of unanimity requirement to the in No. 04-12-00456-CR. argument. significantly, jury’s its And inability agreement Texas, to reach unanimous on Court of Appeals of (the III supported by count San Antonio. incident) of only suggests evidence one Aug. 2013. that at jurors least one of the did not believe at least some of the child’s testimo-
ny respect with to that count. The record provide
thus does not us a basis for con-
cluding that highly likely
unanimously agreed that the defendant separate
committed all of the instances of
criminal conduct that support could
guilty verdicts the other six counts. reluctantly agree
therefore we have
no choice but judgment to reverse the
remand this case for a new trial. To do would
otherwise violate the defendant’s right
constitutional to a unanimous verdict.
I applaud the members of the jury for diligent
their fulfilling efforts and for their duty.
civic It is evident from the record
they followed the trial court’s instructions given
as and took their seriously role in
weighing the evidence and witness testi- However,
mony presented. the trial court obligation
failed its a charge to submit
that does not allow for possibility of a
non-unanimous verdict. the State And primary duty,
failed its which is not to
convict, justice, by failing to do
assure that the convictions were constitu-