CODY DARUS FRENCH, Appellant v. THE STATE OF TEXAS
NO. PD-0038-18
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
December 19, 2018
ON STATE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS TAYLOR COUNTY
O P I N I O N
The Eleventh Court of Appeals reversed Appellant‘s conviction for aggravated sexual assault of a child. French v. State, 534 S.W.3d 693 (Tex. App.—Eastland 2017). The court of appeals held that the trial court erred in not giving a unanimity instruction to the jury as to which orifice Appellant penetrated with his sexual organ. Id. at 697. The court of appeals concluded that Appellant properly objected to the instruction, and it applied a “some harm” analysis under Almanza. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
I. BACKGROUND
A. The Indictment
Appellant was charged by indictment with the aggravated sexual assault of his five-year-old daughter, J.F.1 The State‘s original indictment contained a single count alleging aggravated sexual assault of a child. It read in pertinent part as follows:
“On or about the 7th Day of March, 2013 . . . CODY DARUS FRENCH did then and there intentionally and knowingly cause the penetration of the anus of [J.F.], a child who was then and there younger than six (6) years of age, by the male sexual organ of CODY DARUS FRENCH.
Roughly one month before trial, the indictment was amended to add the following language in the same paragraph and same count: “and cause contact with and penetration of the female
B. The Evidence at Trial
While babysitting J.F. and J.F.‘s older brother, J.F.‘s maternal grandmother, Catherine Bishop, found J.F. “doing sexual stuff” with her brother. Bishop informed J.F.‘s mother, who then confronted J.F. about this behavior. J.F. told her mother that she learned the behavior from her father, Appellant. Specifically, J.F. recounted that Appellant “humped her,” which she said meant that Appellant was “sexing her.” As a result of these allegations, J.F. was taken to the Child Advocacy Center (CAC) and to a hospital, where she eventually detailed numerous instances in which Appellant penetrated her anus with his sexual organ in various locations in the family‘s home.
The State presented a significant amount of evidence that Appellant penetrated J.F.‘s anus with his sexual organ. But the record contains comparatively little evidence that Appellant contacted—much less penetrated—J.F.‘s sexual organ as alleged in the amended
Collectively, the State‘s witnesses established that the multiple assaults occurred in three distinct locations in the family‘s home: the bathroom, the living room, and Appellant‘s bedroom. In the bathroom, Appellant inserted his sexual organ into J.F.‘s anus while she was on the sink. In the living room, Appellant pulled his pants down and made J.F. sit naked on top of his sexual organ. In the bedroom, Appellant forced J.F. to lie on her stomach, and penetrated J.F.‘s anus with his sexual organ.
J.F. testified that, in at least two of the three locations where the sexual assaults occurred, Appellant penetrated, not merely contacted, her anus with his sexual organ. But she denied that Appellant ever penetrated her sexual organ in any of the three incidents. When asked on direct examination whether Appellant inserted his sexual organ into her “middle part,” which was one of the terms she used for her female sexual organ,2 J.F. explicitly testified that Appellant penetrated her anus, but never her sexual organ.
The physical evidence presented at trial likewise did not suggest that Appellant ever penetrated J.F.‘s sexual organ. According to the SANE, the penetration of a five-year-old‘s
The only evidence—that we have observed—of contact or possible contact between Appellant and J.F.‘s sexual organ came in the form of a statement that J.F. immediately recanted, evidence that, after sexually assaulting J.F., Appellant cleaned both her anus and her sexual organ with a “wipey,” and evidence that J.F. was made to sit on Appellant‘s lap while both she and Appellant were naked. J.F. stated during the CAC forensic interview that Appellant‘s sexual organ penetrated her “pee-pee.” But she immediately self-corrected, insisting that, in fact, Appellant‘s sexual organ never entered her sexual organ, it only entered her “bottom.” J.F. told the CAC interviewer that, after assaulting J.F. in the living room, Appellant “got wipeys and wiped her pee-pee and her butt and wiped his private[.]” Additionally, J.F. stated that Appellant forced her to sit naked on Appellant‘s naked lap while Appellant penetrated her anus with his sexual organ. This evidence at least raises the possibility that, in the course of penetrating J.F.‘s anus, Appellant contacted and/or
C. The Jury Charge
In the jury charge, the trial court authorized the jury to convict Appellant based on any one of the four theories alleged in the amended single-count indictment: (1) contact-anus, (2) penetration-anus, (3) contact-sexual organ, and (4) penetration-sexual organ. In the application paragraph, the trial court set out what it characterized as the two “elements” of the offense, as follows:
- The defendant, in Taylor County, Texas, on or about March 7, 2013, intentionally or knowingly caused the contact with or penetration of the anus of J.F. with his male sexual organ or the defendant caused contact with or penetration of the female sexual organ of J.F. with his male sexual organ; and
- J.F. was at the time a child younger than fourteen (14) years of age.
(Emphasis added.) Next, addressing the issue of jury unanimity, the trial court explicitly instructed the jury regarding these two “elements“:
You must all agree on elements 1 and 2 listed above. With regard to element 1, you need not all agree on the manner in which the sexual assault was committed.
Thus, the jury was authorized to convict Appellant without agreeing as to (among other things) which orifice he had contacted or penetrated.
When asked whether he had any objection to the jury charge, Appellant‘s trial counsel responded:
[DEFENSE COUNSEL]: On page 5 of the charge, under application of law to
facts, the third—or actual, I guess it‘s the second paragraph, which says, “You must all agree on elements one and two listed above, but with regard to element one you need not all agree on the manner in which the sexual assault was committed,” we would object to that charge—that part of the charge and request that the charge be changed, to read, “With regard to element one, you must all agree on the manner in which the sexual assault was committed.”
The State responded that the jury need not be unanimous in its determination of the “manner and means” by which Appellant committed the offense; instead, the jury need only be unanimous as to whether Appellant actually committed the charged offense, regardless of the particular manner or means. The trial court overruled Appellant‘s objection. The jury returned a verdict finding Appellant guilty of aggravated sexual assault of a child. And then the trial court assessed a sixty-year sentence.
D. On Appeal
On appeal, Appellant argued that the jury charge ran afoul of the juror unanimity requirement because it did not require the jury to agree as to which orifice Appellant contacted and/or penetrated. This, according to Appellant, was not a “manner and means” issue but rather a case of distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred in failing to submit a proper instruction in that regard. French, 534 S.W.3d at 697. Further, the court of appeals found Appellant‘s objection to the erroneous jury charge sufficient to invoke the “some harm” standard of review under Almanza. Id.; Almanza, 686 S.W.2d at 171. Finding that there was, indeed, some harm under the Almanza factors, the court of
In its petition for discretionary review, the State contends that the court of appeals erred to hold that Appellant‘s trial objection preserved error so as to invoke Almanza‘s “some harm,” rather than the “egregious harm,” standard. The State also argues that any error in the jury charge as to the unanimity requirement did not result in harm to Appellant. We conclude that Appellant‘s objection was sufficient to trigger the “some harm” standard, but we sustain the State‘s second argument. Accordingly, we reverse the court of appeals’ judgment.
II. JURY UNANIMITY
A defendant in a criminal trial in Texas has the right to a unanimous jury verdict on each element of the charged offense.
Under pertinent subsections of
(i) causes the penetration of the anus or sexual organ of a child by any means;
* * *
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; [or]
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor[.]
We have explained, in the context of double jeopardy claims, that each of these ways
III. PRESERVATION: “SOME” HARM VERSUS “EGREGIOUS” HARM
Indeed, the State does not vigorously contest the court of appeals’ conclusion that the
With respect to jury unanimity, the trial court referred the jury back to what it characterized as “element 1” in the application paragraph.4 It then instructed the jurors that they need not “all agree on the manner in which the sexual assault was committed.” In so instructing the jury, the trial court effectively authorized it to convict Appellant without agreeing with respect to which of J.F.‘s orifices he contacted and/or penetrated. Appellant objected: “[W]e would object to that charge—that part of the charge and request that the charge be changed, to read, ‘With regard to element one, you must all agree on the manner in which the sexual assault was committed.‘” Thus, he clearly identified for the trial court
The State contends that, in articulating why he thought the trial court‘s unanimity instruction was objectionable, Appellant actually misled the trial court with respect to the nature of the error he was asserting. State‘s Brief on Discretionary Review at 12-13. As it did at trial, the State contends that Appellant‘s objection was a misstatement of the law because it urged the trial court to instruct the jury that it must reach agreement with respect to mere “manners and means” of committing the offense. The State argues that whether Appellant contacted J.F.‘s orifices and whether he penetrated them simply constitutes different “manners and means” for jury-unanimity purposes. The State further argues that, by requesting an instruction that the jurors must agree as to the “manner” in which Appellant committed the offense, Appellant sought an instruction that would have erroneously required the jury to agree whether Appellant contacted versus penetrated J.F.‘s various orifices—which, the State contends, are nothing more than mere “manner and means” of committing aggravated sexual assault.
We disagree. When both contact and penetration occur in a single sexual act, involving a single orifice, contact is subsumed by penetration. See Jourdon, 428 S.W.3d at 98 (“We have already discounted the possibility of egregious harm with respect to penile
Moreover, because he was specifically objecting to the trial court‘s own proposed erroneous unanimity instruction, Appellant‘s objection was at least specific enough to alert the trial court that the instruction contained an error of some kind with respect to that issue. Indeed, it was specific enough to alert the trial court that its particular unanimity instruction was improper because it allowed the jury to be non-unanimous concerning an elemental way in which the offense was committed—including the specific error of failing to require jury agreement with respect to which orifice Appellant contacted and/or penetrated. The trial court can only have understood Appellant‘s objection in this way. This Court has held that an objection to an erroneous jury charge need not constitute a paragon of clarity and specificity in order to trigger a “some” harm analysis for purposes of Almanza. See Francis v. State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000) (citing Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986), for the proposition that an objection raising jury-unanimity error in the jury charge need only be sufficient to alert the trial court to the problem, and remanding for an Almanza harm analysis). We agree with the court of appeals that the objection lodged in this case was sufficient to invoke Almanza‘s “some” harm analysis.
IV. WAS THERE “SOME” HARM?
While we agree that the “some” harm analysis under Almanza was the proper standard of review for the court of appeals to undertake, we disagree with its conclusion that the error actually resulted in some harm to Appellant. As the court of appeals itself acknowledged, even the less exacting standard of “some” harm still requires that the record reveal “actual,” and not merely “theoretical” harm. French, 534 S.W.3d at 698 (citing Elizondo v. State, 487 S.W.3d 155, 205 (Tex. Crim. App. 2016)). In assessing “some” harm under Almanza, an appellate court should consider the error in light of four factors: (1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole. 686 S.W.2d at 171. In its analysis, the court of appeals found three of the Almanza factors—factors one, three, and four—to be essentially unrevealing, but the remaining factor—the second factor, namely, the state of the evidence—to be determinative.
A. Factor One: The Entirety of the Jury Charge
In considering the first factor—the entire jury charge—the court of appeals simply reiterated its conclusion that the trial court erred in failing to instruct the jury that it must be
B. Factor Three: The Jury Arguments
In considering factor three—the jury arguments—the court of appeals ultimately concluded that nothing in the arguments of the parties explicitly encouraged the jurors to be non-unanimous with regard to which orifice Appellant contacted and/or penetrated. Id. at 699. We agree. The court of appeals did observe that the State made a jury argument that was “ambiguous” in its scope. Id. at 699. The prosecutor informed the jury that, pursuant to the erroneous unanimity instruction given by the trial court, it need not agree whether Appellant contacted or penetrated before it could convict him, regardless of which orifice was involved. Unfortunately, she expressed this concept in such a way that the jury might have been confused whether she also meant to indicate that it need not be unanimous with respect to which orifice was involved. Id. Ultimately, however, the court of appeals concluded—and we agree—that the prosecutor never explicitly invited the jury to convict Appellant without agreeing as to which orifice was involved. Id.
C. Factor Four: Any Other Relevant Information
In considering the fourth factor—any other relevant information as revealed by the record as a whole—the court of appeals examined the complete record, including the voir
D. Factor Two: The State of the Evidence
In concluding that “some” harm was shown, then, the court of appeals essentially relied only upon the second Almanza factor—the state of the evidence. As summarized by the court of appeals, that evidence was as follows:
Although the State primarily presented evidence of a sexual assault of J.F.‘s anus by Appellant with his penis, Beard [the CAC forensic interviewer] said that J.F. reported that, after Appellant had finished assaulting her, he would clean her “pee-pee” with “wipeys.” Beard also testified that there were one or two instances where “[J.F.] said that it was his private in her pee-pee, but she self-corrected” to “butt.” The jury could have inferred from J.F. that Appellant wiped her “pee-pee” and “butt” after he had assaulted her sexual organ and anus.
Id. at 700. Thus, the court of appeals identified what it viewed as some evidence in the record from which the jury might have rationally concluded that Appellant penetrated both J.F.‘s anus and her sexual organ with his own sexual organ. Presumably the court of appeals believed that, confronted with at least some evidence to support either theory, the jury would have regarded itself as authorized to convict without reaching any agreement as to which was supported to a level of confidence beyond a reasonable doubt.
The CAC forensic interviewer did indeed testify that J.F. told her that, after sexually
The jury was also presented with testimony—from both the CAC and from J.F. herself—that Appellant caused J.F. to sit on his lap while the two were both naked. J.F. stated that Appellant forced her to sit naked on his lap in the living room while he penetrated her anus with his sexual organ. But even in light of all of this evidence, we still cannot say that Appellant suffered some harm, as a result, after our consideration of all four of the Almanza factors.
E. Considering the Degree of Harm in Light of the Almanza Factors
Whether jury charge error is preserved or not, the degree of harm resulting from the error must be measured in light of all four factors identified in Almanza. See 686 S.W.2d at 171 (“In both situations the actual degree of harm must be assayed in light of” the Almanza factors). And when, as in this case, it has been determined that the jury charge error was
It is true that the court‘s charge to the jury in this case erroneously permitted the jury to find Appellant guilty without being unanimous about whether Appellant contacted and/or penetrated J.F.‘s anus or her sexual organ. That is the error upon which we are focused. It is also true that the record contains some evidence that could have led a juror to conclude that Appellant contacted and/or penetrated J.F.‘s sexual organ with his own sexual organ (i.e., in the form of J.F.‘s recanted statements, evidence that Appellant used a “wipey” to clean J.F.‘s sexual organ in addition to her anus, and evidence suggesting that appellant forced J.F. to sit on his lap while they were both naked in the midst of a sexual assault). But after considering the charge error in this case in light of all of the Almanza factors, we conclude that the risk that a rational juror would have convicted Appellant on the basis that he contacted and/or penetrated J.F.‘s sexual organ with his own—and not also on the basis that he contacted and/or penetrated her anus—is not “remotely significant,”6 and is, in fact, so “highly unlikely” as to be “almost infinitesimal.”7
There was overwhelming evidence presented at trial that Appellant contacted and
This reasoning is analogous to what we have said in previous opinions dealing with error in the failure to require the State to elect which of multiple incidents of sexual assault it intended to rely upon for conviction. In Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), the defendant was convicted of aggravated sexual assault of a child. The child-victim testified that Dixon sexually assaulted her one-hundred times. Id. at 732. All but one of these sexual assaults, she testified, occurred at night time. At the end of trial, “defense counsel requested that the state be required to elect which instance of sexual assault it would rely upon for conviction.” Id. The trial court denied defense counsel‘s request for an election. Id. at 732-33. We agreed that this was error, but we concluded that the error was harmless because “[t]he only distinguishable detail among the one hundred offenses is that one occurred during the day, while the others happened at night.” Id. at 735. We reasoned that a jury that believed the victim‘s allegations at all would believe that the sexual assaults occurred at night—the nighttime sexual assaults accounted for ninety-nine percent of the assaults described at trial. Id. Thus, we concluded, there was “no remotely significant risk . . . that a jury would convict [Dixon] without believing he committed an offense at night.” Id. at 736.
Similarly, in Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017), the defendant was convicted of aggravated sexual assault of a child based on the child victim‘s testimony that Owings sexually assaulted her multiple times in Owings‘s bedroom, at least once in “Grammy‘s room[,]” at least once in “Uncle Ty‘s room[,]” and at least once at Owings‘s father‘s house. Id. at 148. We held that any error in the trial court‘s failure to require the state to elect which instance of sexual assault Owings was guilty of, was harmless. Id. at 149. Specifically, we held that even if, theoretically, the jurors could have convicted Owings
In our view, where a record reveals a risk of harm that is so small that it may properly be characterized as not “remotely significant,”8 or where the risk of harm is “almost infinitesimal,”9 any harm resulting from the error is only theoretical harm. After considering the error in this case in light of all of the Almanza factors, we conclude that the risk was not “remotely significant” that Appellant was harmed. In fact, we deem the risk that he was harmed so “highly unlikely” as to be “almost infinitesimal.” As a result, we hold that the record fails to support the court of appeals’ conclusion that Appellant suffered “some” harm—that is to say, actual, not just theoretical harm—from the trial court‘s failure to instruct the jury that it must be unanimous with respect to which of J.F.‘s orifices was penetrated.
Accordingly, we reverse the judgment of the court of appeals. We remand the case to the court of appeals to resolve Appellant‘s remaining point of error.
DELIVERED: December 19, 2018
PUBLISH