*1 $19,440 $32,440 from damages actual judgment as modified.6 and affirm the SOTO, Appellant,
Manuel GONZALEZ Texas, Appellee.
The STATE of
No. 13-06-00202-CR. Texas, Appeals
Court Christi-Edinburg.
Corpus
July Sept.
Rehearing Overruled dam- portion the actual what damages much less of actual 6. The total award on the any, pre-judgment interest damages ages, if judgment exceeded of the total 50% Additionally, damages. in Kro- may disfigurement jury. The trial court assessed brief, prays “judgment merely ger’s it pre-judgment because interest have included be, damages disfigurement awarding past post-judgment interest separately awarded Accord- However, things, and rendered.” reversed judgment does not all and costs. re- judgment ingly, modified damages we have why awarded are the actual reflect $13,- damages actual the award of damages as- duce greater of the total than 50% disfigurement 000-representing judgment 50% jury. Specifically, by the sessed interest, jury. damages assessed pre-judgment mention does not *3 Harkrider, Edinburg, ap- for M. Derek pellant. Guerra, (2)
Rene A. Atty., error; Criminal Dist. remand, on the evidence is Hake, Theodore C. Asst. Crim. Atty., Dist. legally support insufficient to paragraph Edinburg, appellee. three of Count 1—that appellant digitally penetrated the organ. victim’s sexual aAs YÁÑEZ, RODRIGUEZ, Before Justices result of the non-unanimous verdict error and VELA. Counts and we cannot determine whether erroneously relied on OPINION conduct subsumed within offenses Opinion by Justice YÁÑEZ. Counts and 2 in convicting appellant in *4 juryA Count appellant’s 3. We reverse appellant, convicted convic- Manuel Gon- Soto, tions aggravated zalez on all three counts and remand the assault of (Count 1), a child1 cause for a new trial. (Count 2), contact2 and indecency with (Count 3). a exposure3 The Background I. punishment assessed ninety-nine at years’ A.R., Appellant is the uncle of the ten- imprisonment on Count twenty years on year-old female victim.4 A.R. testified that Count years and ten on Count to be the offenses at issue occurred at her home concurrently. issues, served By six appel- McAllen, where she lives with her moth- (1) lant contends the trial court erred in er, brother, older and older sister.5 At the admitting evidence, certain objec- over his incident, time of the AR.’s mother inwas (issues (2) three); tions through hospital. grandmoth- A.R.’s maternal evidence is legally factually and insuffi- er, who appellant lived with in Reynosa, support cient to his convictions for Count Mexico, Appellant was the house. and three, paragraph 2, para- and Count several other relatives came to the house (issue (3) graphs four); one аnd two for a short visit.
jury charge erroneously permitted the jury to him convict on less than a unani- A.R. testified that she when came out of (issue mous verdict on Counts 1 and bedroom, bathroom her mother’s (4) five); and the trial court in in- erred appellant inwas the bedroom. He forced structing jury regarding eligibility his her to rub penis, put penis his his in her (issue six). for parole mouth, and touched her “chest.” When he appellant’s issue,
We sustain fifth stopped, room, and A.R. went to her but appel- (1) hold that jury charge erroneously lant followed a few minutes later. In permitted a conviction bedroom, on a less-than-unan- A.R.’s appellant again put his imous verdict on the para- alternative penis in her mouth. She testified that graphs Counts 1 chest, through clothing, her he touched her appellant butt, egregiously was harmed part” and “middle with his hand.6 22.021(a) (Ver- § 1. See Tex. Penal Code approximately twenty- A.R.'s brother was Ann. Supp.2007). trial; non years three old at the time of A.R.’s twenty years sister was old. 21.11(a)(1), (c) (Vernon 2003). § 2. See id. drawing 6. A.R. identified Exhibit which is a 21.11(a)(2)(A)(Vernon 2003). § 3. See id. body. of frontal and views rear of the female Appellant is the brother of drawing A.R.’s mother. A.R. stated she drew "Xs” on the Appellant approximately forty-seven was places appellant show the touched her. On years view, old at the time of the offense. "A.R.” is the frontal A.R. drew an "X” on the left breast, pseudonym "chest,” protect identity. the victim’s which is identified as and on been also and advised him he had accused She stated touched butt exposed de- penis. Appellant sexual assault. agreed allegations to come nied A.R.’s testified she mother that when Appel- police questioning. station for no- hospital, returned home from she provided lant was Mirandized7 changes in ticed adverse A.R.’s behavior: thereafter, Shortly statement. frequent crying, inability sleep, and arrested. In the course of Officer nightmares. mother A.R. to A.R.’s took he also interviewed investigation, Buitron’s Unidas, Mujeres a center for victims mother, grandmother, and brother. A.R.’s violence, family A.R.’s counseling. present mother was when A.R. told the Sufficiency Legal the Evidence II. counselor coun- happened. what had Depart- selor the McAllen notified Police contends, issue, appellant In his fourth accompanied ment and A.R. and her moth- legally insuffi- part, the evidence er to the At the A.R. hospital. hospital, (1) support cient to his convictions for *5 by was Officer interviewed Eliezer Saldana (that 1, paragraph Count threе he commit- Guerrero, by and examined Lorenza a sex- by digital ted sexual assault ual assault nurse examiner. (2) of penetration organ); A.R.’s sexual (that 2, one commit- paragraph Count Orta, investigator
Sandra
an
for Child
by
by
ted
a child
contact
with
Services,
couple
Protective
testified that a
(3)
touching
genitals);
A.R.’s
and
Count
incident,
of months after the
A.R. was
(that
two
inde-
paragraph
he committed
by
interviewed
a forensic
at
interviewer
touching
a
cency
by
by
contact
Advocacy
the Children’s
Center. Ms. Orta
breast).
A.R.’s
We address this
interview,
observed the
video-
which was
first
appellant’s fourth issue
because
taped.
afford him
relief.8
could
the most
Buitrón,
Officer
investigating
Jose
an
case,
police
assigned
officer
to the
testified
A.
Review
Standard of
and
that he
present
was
when
inter-
A.R. was
Applicable Law
at
Advocacy
viewed
the Children’s
Center.
mother,
if,
He also
is legally
interviewed A.R.’s
who
Evidence
insufficient when
provided
regarding
fight
additional information
viewed
a
most favorable to
verdict,
appellant.
provided
jury
A.R.’s mother
could
have
Officer
a rational
not
beyond
Buitrón with
a
photographs
appellant,
found each element of the offense
vehicle,
description
jury
of his
and infоrmation
a reasonable
The
is the ex-
doubt.9
monthly trips
Reyno-
judge
credibility
about
he made from
clusive
of the
of witnesses
post
to the
in Hidalgo,
given testimony,
sa
office
Texas.
In
of the
to be
weight
and
December,
early
province
Officer Buitrón encoun-
and it is also
exclusive
appellant
tered
Hidalgo post
office
to reconcile conflicts
the evidence.10
area,
genital
Swearingen
which is identified as "mid-
95
part.”
dle
The rear view shows an "X” on
Crim.App.2003).
the buttocks.
307, 319,
Virginia,
U.S.
99
9. Jackson
443
Arizona,
7. See Miranda v.
384 U.S.
469-
(1979);
Jones v.
S.Ct.
L.Ed.2d
(1966).
S.Ct.
L.Ed.2d 694
(Tex.Crim.App.
1996).
legal
we
If
reverse a criminal case for
insuf
ficiency,
judgment
vacate the
conviction
we
Jones,
judgment
acquittal. See
at 647.
and order a
Thus,
performing
when
a legal-sufficiency express herself at the same level of so-
review, may
phistication
we
weight
re-evaluate the
as an adult.17 There is no
credibility
requirement
that the
testimony
the evidence and
victim’s
be
substi-
by
physical
tute our
corroborated
medical or
judgment
for that
evi-
of the fact
requisite specific
dence.18 The
finder.11
intent for
We must resolve
inconsisten-
indecency with a child by contact can be
cies in
testimony
in favor of the ver-
inferred from the defendant’s conduct and
dict.12
surrounding
remarks and all the
circum-
legal sufficiency
The
of the evi
stances.19
dence
against
is measured
the elements of
appellant’s
To establish
guilt as to Count
the offense
by
hypothetically
as defined
1, paragraph
(aggravated
three
sexual as-
correct
charge for the case.13 Such a
by digital
sault
penetration), the State was
charge would be
accurately
one that
sets
(1)
required
prove
that appellant
inten-
law,
out the
is authorized
the indict
(2)
tionally
knowingly
fin-
caused his
ment, does not unnecessarily restrict
ger to penetrate A.R.’s
organ,
State’s theories of liability,
adequately
(3) A.R. was a
years
child under fourteen
particular
describes the
offense for which
(inde-
old.20
paragraph
As to Count
the defendant was tried.14
cency
contact),
the State
testimony
of a child sexual
(1)
required
prove
abuse victim alone is sufficient to
support
engaged
sexual contact
with A.R.
*6
conviction
indecency
for
awith
child or
(2)
touching
genitals
A.R.’s
with the intent
aggravated sexual assault.15
give
Courts
gratify appellant’s
to arouse or
sexual de-
wide latitude to testimony given by
(3)
sire,
younger
and A.R. was a child
than
victims of sexual abuse.16 The victim’s
years
seventeen
old and not appellant’s
description of what happened
2,
to her need
spouse.21 As to
paragraph
Count
two
precise,
not be
and she is not expected
(indecency
contact),
to
by
State,
735,
(Tex.
Dewberry
v.
4 S.W.3d
740
17. See id.
Crim.App.1999).
State,
452,
(Tex.
18. See Lee v.
176 S.W.3d
458
State,
772,
(Tex.
Clayton
v.
235 S.W.3d
778
2004),
App.-Houston
affd,
[1st
206
Dist.]
State,
Crim.App.2007); Curry v.
30 S.W.3d
(Tex.2006) (holding
S.W.3d 620
lack of
“[t]he
394,
(Tex.Crim.App.2000).
406
physical or forensic evidence is a factor for
State,
234,
(Tex.
weighing
13. Malik v.
to consider in
953 S.W.2d
240
the evi
Crim.App.1997).
dence.”)
State,
243,
(Tex.
14. Gollihar v.
46 S.W.3d
State,
734,
19. Gottlich v.
822 S.W.2d
Malik,
Crim.App.2001);
B. Discussion Guerrero, assault nurse examiner a sexual brief, “candidly In its the State acknowl- A.R., told that A.R. that examined testified in this edge[s] that the evidence case does geni- in the appellant her had touched her that support allegation Appellant penis rubbed his on tal area and had penetrated organ had the victim’s sexual “vaginal area.” finger alleged Paragraph with his [as] to the that regard With evidence Three of Count One indictment genitals, appellant of A.R.’s part touched this case.” We con- agree. We therefore Exhibit 3 is complains drawing that the on legally clude evidence is insufficient “imprecise,” thus show with does not that finger establish caused appellant ac- specificity “what the child was organ penetrate A.R.’s sexual tually cоmplains He touched.” also paragraph Count three the indict- clarify A.R. what she meant did not portion appel- ment.23 We sustain that “middle and that Nurse Guerrero part,” fourth legal lant’s issue as it relates clarify by “genital did not what she meant sufficiency paragraph three. Count area.” to the evidence that he touched As regard appellant’s With chal breast, A.R.’s cites Nelson lenge legal sufficiency to the evi argument of his support State25 dence that he committed awith *7 on testimony child’s that she was touched by touching genitals child A.R.’s an support is insufficient to “chest” breast, 2, alleged as in paragraph Count a vic- allegation an accused touched one, 2, paragraph respec Count two tim’s “breasts.”26 tively, A.R. appellant testified that touched appellant’s arguments. with disagree We part” her “middle his hand. also with She Texas have found evidence suffi- courts drawing testified that “Xs” on a placed she indecency cient to a conviction for young support a body female demonstrate appellant regardless unsophisti- with a where touched her.24 On the child A.R.’s drawing, placed language frontal view of A.R. an cated that the child uses.27 drawing Ex- 22. See id. 24. The was submitted as State’s hibit 3. acquittal not 23. We do order an on Count 1 however, assault), (aggravated sexual because 551, State, 505 25. Nelson v. S.W.2d appellant challenge sufficiency does not Crim.App.1974). the evidence that he committed the offense as alleged paragraphs in one and two Count 26. See id. S.W.3d 1. See Stuhler v. (Tex.Crim.App.2007) (noting ap- that court of 887, 889 27. See Clark v. peals acquittal on for did not order conviction (Tex.Crim.App.1977) (holding evidence suffi- injury a did child because evidence complain- where cient to show sexual contact injury support to a child on a conviction for "front appellant ant testified touched jury theory to the in the different submitted butt”); disjunctive). Williams v. testimony and identification of Exhibit 3 unanimously as that it agree must as to reflecting places by she was touched paragraphs alleged alternative in appellant were sufficient to establish the 1 (aggravated Count sexual assault of a touching element of both child) offenses 2 (indecency and Count awith alleged as Count paragraphs one and contact). The State concedes that the reject appellant’s two. We also reliance on trial court in submitting separate erred Nelson, Nelson. Unlike A.R. identified disjunc- offenses Counts 1 and 2 in the Exhibit an “X” over the female tive, without a requiring unanimous ver- breast, reflecting as where appellant dict, appellant but contends that was not touched her. egregiously harmed the error. We The jury could infer from totality agree with the State that the trial court appellant’s touching conduct that erred, A.R.’s but appellant conclude that suffered breast genital area was done with the egregious harm from the error. intent gratify arouse and his sexual Viewing desire. light the evidence in the A. Standard of Review verdict,
most jury’s favorable to the we An appellate duty” court’s “first upon find that there was evidence which a analyzing jury charge rational trier of fact issue is “to could have found the essential elements of decide whether error If with a exists.”30 error is child, found, alleged as paragraphs degree necessary Count of harm two, beyond one and depends reasonable doubt.28 reversal on whether the We overrule appellant’s fourth preserved by objection.31 issue as it the error If the relates to legal sufficiency of the evidence defendant properly objected to the errone support paragraphs Count one ous charge, required reversal is if we two.29 find “some harm” to the defendant’s However, rights.32 if the defendant did
III. Non-unanimous Verdict
object
objec
or stated that he had no
By
issue, appellant
his fifth
jury charge,
may only
contends the
tion to the
we
re
trial court
failing
erred
to instruct
if
verse
the record
egregious
shows
(Tex.App.-San
pet.)
supporting
Antonio
the evidence
the offenses of inde-
(holding complainant
sufficiently
cency
children
paragraphs
in Count
*8
two,
touching
communicated that
occurred to
and
we need not address these issues
body
of
covered
using
statute
terms
prevailing
because
on these issues would af-
"dick,” "penis,"
"private part”);
such as
greater
ford
no
relief than is other-
State,
see also Alexander v.
No. 12-02-00050-
provided by
disposition
wise
our
of his fifth
CR,
22724639, *3,
Tex.App.
2003 WL
2003
State,
459,
issue. See Gearhart v.
122 S.W.3d
9932,
19,
(Tex.App.-Tyler
LEXIS
at *7
Nov.
(Tex.Crim.App.2003) (noting
467
when case
2003,
ref’d) (mem.
pet.
op.,
designated
sufficiency,
reversed for factual
remand for
publication) (holding
legally
evidence
suffi-
appropriate).
new trial is
nine-year-old
ap-
cient where
victim testified
pellant put
fingers
"private” part
in her
State,
738,
(Tex.
Ngo
30.
v.
175 S.W.3d
743
vaginal
and drew a circle around
area on
noted,
Crim.App.2005). As
the State con
drawing
appel-
of female child to show where
jury charge
the
cedes
as to Counts 1 and 2
her).
lant touched
was erroneous.
Jackson,
319,
28. See
335 statutory committing same methods harm.33 offense.39 To a defen determine whether an in charges the State When egregious harm from has sustained dant acts, re criminal with different dividual object, an instruction to which did not they constitute viola of whether gardless (2) (1) charge; consider the entire we statutory or different tions of same evidence, including contested state of must be instructed provisions, (3) (4) issues; counsel; arguments unless guilty cannot a verdict that it return any “Errors other relevant information.34 unanimously upon the commis agrees it egregious that result harm are those criminal acts.40 one of these sion case,’ very that affect ‘the basis of the that “Unanimity this context means right,’ a ‘deprive of valuable defendant every the de juror agrees each ”35 ‘vitally theory.’ or affect a defensive same, specif single, committed the fendant a Egregious harm is difficult standard question act.”41 “The of what ic criminal case- meet and must be determined on a be unanimous about is deter jury must analy by-case basis.36 An harm Almanza appli intent of the legislative mined placing any is without bur sis conducted “[C]harging jury dis- statute.”42 cable proof persuasion den of or on either involving junctively separate on offenses or State.37 defendant unanim separate incidents does violate the ity requirement.”43 Applicable
B. Law State, court criminal In Vick v. multiple If the allege appeals State wishes concluded indictment, assault, statutory single in a defined section offenses 22.021(a)(1)(B) code, in a a con- separate penal should set out each offense sep- separate a sin- that criminalizes Paragraphs count.38 within duct-oriented offense count acts of commission.44 gle allege should be used different arate distinct Olivas, 21.24(b) 144; Ngo, S.W.3d at 175 See Tex.Code Crim. Proc. Ann. art. 202 33. 39. Martinez, (Vernon 1989); S.W.3d at 743-44. 225 at 554. State, (Tex. Warner v. 245 S.W.3d 34. Ngo, at 744. 175 S.W.3d 40. State, Crim.App.2008); Hutch v. 922 S.W.2d 1996); (Tex.Crim.App. v. Almanza Id. at 745. State, (Tex.Crim.App. 686 S.W.2d 1985). (Tex. v. 247 S.W.3d 42. Santee Warner, (citing Warner (citing App.-Houston pet.) Dist.] [1st al., No. 2005 WL 03-04-00203-CR et (Tex.Crim. Valdez Tex.App. LEXIS 7790 App.2007)). 22, 2005) (not Sept. designated App.-Austin *9 Hutch, publication) (citing at 922 S.W.2d State, (Tex. v. 43. Cook 171)). (cit pet.) App.-Houston Dist.] [14th State, ing 129 S.W.3d v. Martinez Hutch, at 171. 36. 922 S.W.2d (Tex. App.2004)). Crim. Almanza, Warner, 464; at 245 S.W.3d 37. S.W.2d at 171. (Tex. Stаte, Vick v. 991 S.W.2d 833-34 44. 1999); Crim.App. see Tex Penal Code Ann. 21.24(a) 38. See Tex.Code Ann. art. Crim. Proc. (Vernon 22.021(a)(1)(B) Supp.2007). § (Vernon 1989); 225 S.W.3d Martinez (Tex.Crim.App.2007). explained The court offense is ... intentionally knowingly defendant or “[a]n when a complete person any commits organ his sexual the to contact cause[d] Thus, proscribed victim], of the acts.”45 the court of ... inten- [the mouth or ... concluded that “each separately described or tionally knowingly his sexual cause[d] separate statutory conduct constitutes a penetrate of organ [the the mouth offense.”46 victim], ... ... intentionally or or know-
Similarly, in ingly finger penetrate Pizzo v. the court the cause[d] organ victim], criminal of appeals recently of held that sexual ... then [the by you the offense of a find the of guilty with will defendant the contact is a offense. of conduct-oriented offense sexual assault criminalizes “Sexual contact” ... three in the indictment. charged types of separate touching the conduct— two, indecency As to count anus, breast, touching the touching contact, jury sexual the was charged: genitals with requisite the the mental Now, you if find from the be- evidence Therefore, state. each act a constitutes yond .'.. a reasonablе doubt that the juror different criminal offense and una- ... contact engaged defendant in sexual nimity required is as to the commission touching with ... ... [the victim] of one of these acts.47 genitals ... part victim] of the of or [the touching ... the breasts of [the victim] Analysis C. touch ... or ... causefd] [the victim] Charge
1. The genitals ... you of his then will find Having the concluded that court’s guilty the defendant of the offense of erroneous, charge was we turn to whether indecency with a in the child as error, egregious harm resulted the from indictment. require
sufficient reversal. We first charge only The contained in- general a jury the charge evaluate as a whole. informing struction the that its ver- application portion charge the vote; be dict must unanimous there separate paragraphs. into divided As separate unanimity was no instruction one, aggravated to count assault of sexual Following application paragraphs. child, charge jury:48 a instructed application reading paragraphs,
Now,
you
if
find
instructing
from the evidence be-
after
on the defen-
a
yond
reasonable doubt that
...
not to
right
testify,
dant’s
the definition
Vick,
(2)
body
any touching
any part
45.
Do not let bias or may proceed. You your in part deliberations. whole, the charge the misled Read as Your must unanimous. verdict be only ultimate believing that its jury into must you means all of Unanimous be “guilty” of need unanimous.49 verdict vote, unan- you have reached a after verdict, presiding juror the will imous Argument 2. Prosecutor’s certify by signing appropri- thereto the Here, not ex prosecutor this the did charge. ate form attached to the did jury, judge tell as trial pressly the form of And each of the counts has a need Ngo that it not return regards the verdict. to Count With However, prose the unanimous verdict.50 We, have: the you Form verdict. you the “all of don’t have jury, cutor told defendant, jury, find the Gonza- Manuel these agree happened”; that one of Soto, to indecen- guilty lez of the offense of so, erroneously doing suggested she or, We, child; find cy jury, with a the agree to on their Soto, jurors only the needed defendant, the Manuel Gonzalez than “guilty,” verdict of rather ultimate guilty, signed presiding juror. spe the unanimously on one of agree to Count the form of regards With charge. criminal set out in the cific acts We, jury, the verdict: the find the de- argument, During closing prosecutor the fendant, Soto, guilty Manuel Gonzalez of jury: told the the offense of with a child as indictment, charged signed pre- in the basically brought this what’s And We, juror; or, the siding jury, the find Septem- or up here Count On about defendant, Soto, not Manuel Gonzalez defendant, 15th, the Manu- ber the signed juror. guilty, presiding Soto, County, in Hidalgo el Gonzalez Texas, 1, We, jury, intentionally knowingly regard With to Count the defendant, organ find the Manuel caused contact Gonzalez victim, Soto, intentionally or guilty of the offense of mouth of ... charged organ his sexual knowingly sexual assault as in the indict- or caused ment, We, juror; or, of or signed presiding the mouth the victim penetrate Ngo, ways alleged Ngo, at There’s three that the offense 49. See In noted, prove, appeals The State must court of criminal can be committed. "[t]he satisfaction, of long your one of number disjunctively, could be as it them; however, proof, also that it in the course of must be unanimous informed acts) (or deciding appel- may prove to the criminal act the State one which of satisfaction card, stealing part jury, lant the credit re- another one to the satisfac- committed— card, others, fraudulently ceiving a stolen credit or tion the third to the satisfac- origi- you presenting (emphasis jury, it.” Id. n. 43 but if tion another Warner, nal); at 464 guilty, you see also must be- found the defendant charge (stating be- proved that "the is incorrect three has one of the lieve State jury had not make clear that the entirety. cause does paragraphs in its statutory unanimously on at to find least one crim- (emphasis original). The cоurt of Id. 749). offense”) (citing Ngo, 175 S.W.3d at appeals inal found that violation jury verdict right to a unanimous defendant's right a fair Ngo, Ngo, egregious harm to his In caused 50. See 750-51. erroneously jurors: impartial Id. at 752. judge trial. the trial told the *11 intentionally knowingly or caused his happened, of these but you one if of finger sexual—his penetrate to the sexu- was, have a question as to which one it al organ victim, younger long these, as as it was you either one of years than 14 age. of will find him guilty of indecency with a child. mind, Keep in gentlemen, ladies and
that either one say you of these —let’s We conclude that the “boilerplate” una- find that there was contact that his sex- nimity instruction in charge organ, penis, ual his contacted the insufficient mitigate the harm caused mouth of the victim. enough That’s prosecutor’s confusing and erroneous aggravated sexual assault. There is argument.
three different manner and means. You 3. The Evidence
don’t have to agree you don’t —all of have agree that one hap- these A.R. appellant testified that encountered of pened, long as you agree all that bedroom; her in her mother’s he touched either one these happened. Okay. “chest,”51 out, on her penis took his of judge you told that it has to be and forced her to rub it put it in her unanimous, meaning you that all 12 mouth. A.R. then went to her room and have to guilty decide or not guilty. later, closed the A door. few moments appellant again entered her room and put means,
And as far as manner and penis his appellant her mouth. Well, When person say, will you know what? I room, heard a open nearby door in a believe the evidence showed that his zipped up pants his and left. A.R. testified sexual organ contacted the mouth of appellant chest, touched her on her somebody Well, you else. say, You butt, part” and “middle with her clothes know what? I think that only on.52 She appellant also testified touched put contacted but he penis his in her her butt exposed penis. with his Well, mouth. enough ag- that’s for an gravated sexual regard. assault in that Saldana, Officer the investigating police
officer, testified that he interviewed A.R. According Saldana, to Officer A.R. said ... you So if find Count 2 he appellant forced her to rub penis. his A.R. part touched part—that he her — also him appellant told up rubbed part made her genitals, touch of his then against her from behind and rubbed his you will also find him guilty penis butt; occurred, on her when this child, with a or that he touched her they both had their clothes on. brеasts or that any part she touched genitals, his either one these. Orta, the investigator for Child Protec- Well, If you says, one of you Services, know tive testified that she observed what? I think the evidence shows that being A.R. interviewed at the Children’s breasts, he touched her Advocacy but there was no According Center.53 to Ms. Orta, evidence that he touched of her A.R. stated that forced her genitals and the evidence shows that all put penis into her mouth. noted, 51. As testimony A.R.'s as to her 53. Ms. Orta viewed the interview via closed- "chest” was clarified her reference Ex- circuit television. hibit 3.
52. State’s part” Exhibit 3 identifies "middle genital as the female area.
339 con- organ to his sexual caused Guerrero, appellant nurse ex- assault the sexual one) and (paragraph tact A.R.’s mouth A.R., that testified aminer who examined penetrate A.R.’s organ to his sexual in her caused touched her appellant A.R. said two). (paragraph in her mouth penis his put area genital appellant rubbed A.R. also said mouth. where one recognize that We area,” and forced “vaginal to her penis his 22.021 is neces section alleged act under penis. to rub his her act, by another sarily subsumed Buitrón, investigating police Officer there is pеnetration, contact and such as case, that testified assigned to the officer that each rule general to the exception an and told appellant he interviewed when constitutes 22.021 under section allegation allegations, appellant denied him of A.R.’s however, Here, A.R. offense.54 separate lying and allegations and said A.R. was inci separate there were two testified that he had “get at him” because trying to back penis appellant caused in which dents caught smoking. in her moth her mouth—one penetrate in her and a second incident er’s bedroom testify at trial. The
Appellant did not that because more conclude bedroom. We establish, by testimo- attempted to defense (and con penetration than one incident members, appel- that family other ny from tact) occurred, inapplicab exception at A.R.’s home for present lant was not le.55 for the incidents length of time sufficient alleged. as
to have occurred found the Moreover, although we have in- legally digital penetration evidence of D. Discussion that sufficient, found the evidence we have le- genitals to be touched A.R.’s that already have determined We trial, out- At the close sup gally sufficient. legally insufficient to the evidence is jury, the defense finger presence side the allegation appellant’s that port the verdict on several an instructed organ, alleged moved for penetrated A.R.’s sexual no evi- including that there was grounds, three of 1. The re paragraph Count prosecu- penetration. digital dence of allege of Count maining paragraphs ref’d) State, pet. (Tex.App-Fort Worth 728- 54. See Santee v. S.W.3d penal no code in (Tex.App-Houston (analyzing [1st Dist.] 22.011 of section deprived pet.) (holding appellant not of unani- concluding that "the differ- light of Vick jury’s finding mous verdict because described in section types of conduct ent contact) (cit- necessarily penetration included 22.011(a)(2) separate even offenses constitute State, 839, 848 ing v. 150 S.W.3d Hendrix occur in types of conduct if the different charge (holding disjunctive jury of contact except in which in cases same transaction penetration by was not that was subsumed necessarily he subsumed the acts would deprive appellant of it “did not error because another, being as contact subsumed such jurors verdict because all of a unanimous ”) (emphasis Santee added penetration penetration necessari- there was who believed Court)). had ly that antecedent contact also believed occurred, verdict was and a non-unanimous See Martinez possible”); Valdez ref’d) (re- pet. (Tex.App.-Austin 418-19 pet.) (Tex.App-Eastland argument of con- that offense jecting State’s danger jury not (stating was no that there penetration, in offense of subsumed tact was contact returning unanimous verdict because might mer- argument have noting State’s organ by appellant’s sexual anus with child’s only a evidence of which there is it in case in appel- allegation that within was subsumed act, pen- single act involves single and that his sex- penetrated child’s anus with lant had etration). organ); Tyson v. ual *13 responded tor that the “proved two, State had respect With to count contact, each manner and means alleged already as in all we have testimony, counts of determined that A.R.’s the indictment.” com- The trial court bined with Exhibit showing places 3 as the denied the motion for instructed verdict. her, appellant touched legally suffi- We conclude that we cannot be certain cient to appellant establish that touched jurors that none of the relied on allega- the breast, area, her on her genital and but- digital penetration tion of in finding appel- tocks. guilty. lant State, In Clear factually similar State,56 In Stuhler v. the defendant was case, this already Court has determined injury convicted of to a child.57 The court disjunctive that an jury charge erroneous (as of criminal appeals held had the court egregious Recently, caused harm.60 of appeals) that the defendant was denied State,61 Nelson v. the El Paso Court of right to a jury unanimous verdict be- Appeals followed this holding Court’s application cause the paragraph of the Clear, and declined to follow the First charge authorized conviction if jury the State,62 holding Court’s Martinez v. found that she had caused either serious which the distinguished First Court our bodily injury or injury serious mental holding Clear.63 Because the Nelson
the child.58 The appeals court of criminal succinctly court contrasts this Court’s found that require the failure to a unani- opinion in with Clear the First Court’s mous jury verdict on the type injury Martinez, opinion in quote we the Nelson harm, resulted in egregious in part be- court at length: cause “the harm exacerbated [was] State, In Clear v. indictment fact that there was no evidence support penetrated that Clear the female sexual Thus, bodily injury.”59 serious we find that organ of a child finger, pen- with his insufficiency of the evidence for one of etrated the organ female sexual the offenses in count one (digital pen- same child with organ, his sexual etration) only exacerbated the harm penetrated also that he her mouth with caused jury charge. the erroneous his sexual organ. jury charge in- State, (Tex. 56. Stuhler v. charge permitting 218 S.W.3d jury a non-unanimous ver Crim.App.2007). aggravated dict in assault case caused some harm, based on unbalanced state of the evi dence, Stuhler, 22.04(a) (Ver- as in § 57. See Tex. the trial court’s and Code Ann. Penal error, prosecutor’s emphasis Supp.2007). ap non confusion). parent jury Stuhler, 58. 714-16. State, 60. See Clear v. (Tex.App.-Corpus pet.). Christi 59. Id. at 720. The Stuhler court noted that in argument, heavily final the State relied as on 08-06-00154-CR, 61. Nelson v. No. bodily injury injury. as the mental Id. Tex.App. LEXIS at *15-20 jury argument The court noted that Feb.21, 2008) (mem. App.-El op., Paso only already "could have increased the sub designated publication). for jury stantial risk that the would not find it necessary agree type injury as to which Id.; inflicted.” see also Landri Martinez 01-05-00697-CR, (Tex.App.-Houston pet. an v. [1st Dist.] No. 2007 Tex. ref’d). App. (Tex.App-Hous LEXIS at *26-27 9, 2007, Aug. pet. granted) [1st ton Dist.] Nelson, (designated publication) (finding jury Tex.App. LEXIS at *20. The State rea- guilty ble and unassailable. structed the find Clear assault, that, believed ac- soned the offense sexual vagina that he the victim’s penetrated penetrated if it found either cused fin- also be- penis, presumably his his organ child’s female with finger. ger penetrated or it with her with penetrated or contacted lieved *14 that, result argu- also as a of organ. During closing sexual The State noted ment, in refer- in the case was sub- prosecutor argued the manner which the mitted, only options jury to the that the had the received one ence accused two, pen- to the of instead of which would regard allegations conviction finger pen- the him convicted by etration or contact or should he be benefit penis the the child’s sexu- upcoming etration of another case. organ that:
al rejected reasoning court this The Clear go egre- You can back there and deliberate that suffered and found he had you can all have decide that we that harm. stated gious The court every you. proven jury those to of the be- could not determine what you go can You can decide that. Or that regarding thе offenses were lieved there, decide, four you such, back of could As to find that the harm charged. know, finger ‘You’ve you the proven egregious, jury the was not because I’m about penetration. surely guilty not convinced have found Clear of would organ.” the contact the male sexual if given opportunity, the offenses the all of put place the court in the the would you say, you Another four of could of his jurors deprive and would Clear know, proven everything.” ‘You’ve by a right guilty finding to a unanimous remaining you And the could four of The cause reversed and re- jury. was “Well, know, say, you I the believe for new manded trial. that proved penile was State there penetration. I wasn’t about convinced However, in Martinez Martinez v. finger penetration.” of was convicted as- para- application of a child. The sault long as we each proven As have jury graph charge read: every you one of at least one manners, these we are entitled to Now, you if find from evidence guilty verdict. all have to You don’t beyond a reasonable doubt that on or agree proven on which manner we’ve 14th day September, about the you, long as proven it to we’ve a[sie] Martinez, then ... Jоse R. did one of these. intentionally unlawfully, there or organ knowingly cause the sexual only you have So we to convince the sexu- [complainant] ... to contact one, ways there’s but three different defendant; you if or organ al you guilty, that can man find this ... Jose R. did then find Martinez Okay? intentionally or unlawfully, and there ], case ad- [Nelson As this State anus of knowingly [com- cause the error, charge that mitted but contested ... the sexual plainant] to contact harm The egregious had occurred. defendant, you then organ of will was not argued State the error as guilty find the defendant was egregious, because the evidence in the indictment. overwhelming guilty, appeals found court of held that trial the record showed that the upon allowing credi- erred in a conviction testimony victim’s entire to be court disjunctive finding Martinez, between sepa- two we are inclined to follow rate offenses. The court then had to Here, holding Clear. analysis conduct an to determine wheth- during was told they voir dire that were er Martinez had egregious suffered offenses, to find separate three op- prosecutor harm. The stated during the posed finding to a of guilt on each examination, voir dire judge after the Further, charge. were, effect, they had read the indictment that: told prosecutor, prior to delibera- judge
[NJotice how the
read two para-
tion, that their verdict did not need to be
graphs.
says
What the laws
[sic]
unanimous.
that Appellant
We find
suf-
all I
prove
have to
is one of those.
In
harm,
egregious
fered
and we sustain
fact, it’s a little bit different in that six
Issue One.64
*15
may
think he contacted the
/all
We conclude that Clear was decided cor-
anus and
may
six of
think he
/all
rectly and see no
depart
reason to
from
contacted the
organ,
female sexual
precedent
our
in
Accordingly,
that case.
long
you
as the 12 of
agree one of
we hold appellant
egregious
suffered
happened,
you
those
then
can convict. harm,
judgment
reverse the
of the trial
why
That’s
pleadings....
it’s the two
court, and remand for a new trial. We
I
prove
[A]ll have to
is one of them.
appellant’s
sustain
fifth issue.
The court noted that Martinez’s defen-
Because of our disposition
appellant’s
posture
sive
was that he did not commit
issue,
fifth
unnecessary
for us to
any offense, and he did not attack the
address his remaining issues insofar as
vaginal penetration
evidence of
and the
those issues complаin
relating
of matters
evidence of anal
differently.
contact
1
to Counts
and 2.65
Further,
jury
the
was twice
in
instructed
charge
that the State had the bur-
Indecency
IV. Count III:
den of proving
every
each and
element
by Exposure
a Child
Further,
charged.
the offense
comment
the prosecutor was brief
3,
In
Count
convict
was
repeated.
and was not
The court held
indecency
ed of
with a
exposing
that Martinez had not
egre-
suffered
genitals
of his
to A.R. Because the
gious harm.
jury charge
only
in Count 3
a
],
In the present
single offense,
case
charge
[Nelson while the
does not raise a
nature
Appellant’s
defensive posture
non-unanimous verdict
respect
issue with
was
in
conclude,
somewhat
line with the
however,
situation
to Count 3.66We
(citations omitted);
op.,
Id. at *15-20
designated
publication) (finding
see Ma
for
State,
59,
thonican v.
194 S.W.3d
67
charge violating unanimity require
erroneous
2006,
App.-Texarkana
pet.) (finding
no
erro
harm);
egregious
ment did not result in
Mar
jury charge enabling jury
potentially
neous
State,
411,
(Tex.App.
212 S.W.3d
421
tinez
a
return non-unanimous verdict caused defen
2006,
ref'd) (same).
pet.
Austin
harm);
egregious
Hisey
dant
649,
(Tex.App.-Houston
[1st
65. See
P. 47.1.
Tex.R.App.
2004,
dism’d) (same);
pet.
Dist.]
Hendrix v.
839,
(Tex.App.-Hous
jury charge
66. The
for Count 3 stated:
ref'd) (same);
pеt.
[14th Dist.]
ton
In re
Now,
M.P.,
you
beyond
if
find from the evidence
(Tex.App.-San
An
(same,
Sep-
pet.)
reasonable doubt that on or about
finding
tonio
no
some
harm);
see,
defendant,
but
tember
...
...
Villarreal v.
No. 03-05-
00846-CR,
Tex.App.
intentionally,
gra-
LEXIS
at *13
with intent to arouse and
5, 2007,
defendant,
(mem.
(Tex.App.-Austin
pet.)
tify
Dec.
the sexual desire of said
ex-
not show
other occasion
because of the non-unanimous verdict er-
record does
ror in
and we cannot be certain
exposure
separate
Counts
when
was a
offense.
jury erroneously
appel-
whether the
based
Appellant’s
for
sexu-
conviction
lant’s conviction
3 on conduct that
Count
supported by
al
the evidence of
assault is
within offenses
was subsumed
incidents of oral
As
his
sex.
Counts 1 and
contact
indecency by
conviction
however,
could have
Count
or exposure
Sexual
contact
him on the
of the evidence
convicted
basis
that occurs
the course of an act of
genitals
touched AR.’s
penetration
sexual
is subsumed
the com
—or
touched her breast —or caused
pleted
A
act.67
conviction for both the
If
jury’s
touch
decision
genitals.
penetration
act of
completed
for the
two,
on either of the first
based
сontact or
incident
exposure
to the
by exposure that occurred in
penetration
jeopardy.68
constitutes double
However,
separate
even when two acts are
commit A.R.’s bedroom is
offense and
temporal proximity,
ted in close
the acts
If,
supports
the conviction in Count 3.
may
separate
still
be
and distinct acts for
however,
conviction in
based its
*16
jeopardy purposes.69
double
allegation
appellant
Count 2 on the
that
his
genitals,
caused A.R. to touch
inde-
case,
present
In the
there were two
cency by exposure offense is subsumed
separate
appellant
incidents in which
ex-
appellant
within
for which
was
the conduct
posed
genitals
penis
his
his
and forced
into
2,
mouth,
jeopardy-
in
convicted in Count
and is
A.R.’s
once
her mother’s bed-
room and once
AR.’s bedroom. The
barred.70
assault),
posed part
genitals, knowing
indecency by exposure
of
was
his
a
[A.R.],
assault,
younger
years
age
a child
aggravated
than 17
of
offense
lesser-included
spouse,
present....
jeopardy-barred,
and not his
was
both
and
where
viola
was
conduct);
tions
from same
see also Gu
arose
State,
88,
(Tex.
67. Patterson v.
152 S.W.3d
92
State,
11-06-00042-CR,
No.
2007
v.
tierrez
State,
Crim.App.2004);
v.
sеe Barnes
165
2128947, n 2,
LEXIS,
Tex.App.
WL
2007
%3
75,
2005,
(Tex.App.-Austin
S.W.3d
88
no
26, 2007,
July
pet.)
(Tex.App.-Eastland
no
pet.).
(holding
jeopardy
no double
violation where
appellant
aggravated
convicted
sexual
was
Barnes,
(convictions
68. See
165
at 88
S.W.3d
contact,
assault, indecency
by
with a child
by penetration
by geni
assault
and
for sexual
indecency
by exposure,
with
child
but
tal-to-genital
single
on
contact based
act of
showed at least three occasions in
evidence
penetration
jeopardy);
constituted double
exposed
while
appellant
which
himself
com
State,
427,
v.
Patterson
96 S.W.3d
432-33
penis);
complainant
his
pelling
to suck on
2002),
(Tex.App.-Austin
aff'd, 152 S.W.3d at
State,
761,
764
Cabral v.
(convictions
by pen
92
for sexual assault
2005,
ref’d)
pet.
(finding
App.-Fort Worth
indecency by
contact
on
etration
based
appellant's
jeopardy violation where
double
penetration
single act of
constituted double
aggravated
sexual assault and
convictions
jeopardy).
by exposure
indecency with a child
were
abuse,
separate
based
two
incidents of
on
State,
349,
v.
358
Bottenfield
occurring
day);
both
on same
Underwood v.
ref'd),
(Tex.App.-Fort
pet.
cert.
Worth
11-02-00254-CR,
No.
2004 WL
denied,
U.S.
S.Ct.
123
156
2962, (Tex.
Tex.App. LEXIS
(2003).
L.Ed.2d
26, 2004,
ref’d) (hold
App.-Eastland July
pet.
ing
jeopardy
where inde
no double
violation
70. Hutchins
ref’d,
cency
by exposure
was based on
(Tex.App.-Austin
pet.
untimely
filed) (holding
separate from conduct incidental to
appellant was
conduct
because
convict
penetrations);
by exposure
two
No. 03-00-
a child
ed of
with
Ruiz
n 00525-CR,
penetration
WL
(aggravated
2001 Tex.
the course of
trial,
At
it,
there was no evidence of
“exposure
before
was incident
occasion when
exposed
geni-
his
and subsumed
the aggravated sexual
tals, except for the two
instances which assault.”73 The court stated:
penis
he forced his
into A.R.’s mouth.
In
case,
essentially
In this
there were two
closing argument,
prosecutor
told the
assaults, separated by
identical
a short
jury:
period
occasions, ap-
of time. On both
Now, the last one is Count 3 and
pellant exposed
genitals
his
pen-
that’s
indecency by exposure.
And
etrated the complainant’s anus. The as-
what that states is that the defendant—
I,
two,
sault
count
paragraph
was
we
happened,
know where it
we
know
aggravated
as
sexual assault of
was at [A.R.’s
the in-
residence]—with
by causing
child
contact
ap-
between
sexually
tent to
gratify the sexual desire
pellant’s genitals
complainant’s
exposed part
defendant
of his
anus. The assault in count I was al-
genitals, knowing the victim was a child
leged
aggravated
younger
years
than 17
sexual assault of a
age
and was
So,
spouse.
course,
not his
by penetration
we know
complainant’s
that if
penis,
exposed
he took out his
he
anus
appellant’s genitals,
sep-
with a
it,
himself. We know that she touched
paragraph alleging indecency
arate
if
penis,
she touched his
there
by touching
a child
contact
the com-
was—there was sexual contact. We
plainant’s anus with appellant’s genitals.
know that
if
put
penis
appeals
The court of
affirmed the two
mouth there
penetration.
So I’m
convictions for
sexual as-
*17
going
you
you
ask
that
come back and
sault,
correctly
then
found that pen-
you
him guilty
every
find
on each and
required
etration
contact and reversed
count.
that conviction. The state does not
present
The facts in the
case are similar
challenge
ruling.
in
The record
to those in Patterson v. State.71 In Patter
this case does not show an occasion dur-
son,
appeals
court of criminal
ad
ing
exposure
the assaults when the
was
indecency
by
dressed whether
a sеparate offense. Under the facts of
exposure is subsumed within sexual as
incidents,
these
exposure was incident
indecency
sault or
a child by
with
cont
to and
by
subsumed
sex-
Although
act.72
the Patterson court noted
ual assault.74
that “indecency by exposure may may
or
in
recently,
paite Carpenter,75
More
Ex
not be a
of a sexual assault or inde
contact,
a
cency by
corpus petitioner argued
habeas
that his
depending on the facts of
case,”
indecency
found that under the facts
conviction for
awith
App.
App
Aug.
Although
at *8
LEXIS
.-Austin
74. Id.
the State in Patterson charac-
30, 2001,
pet.) (holding
jeopardy
no
no double
appeal
"question
terized
its
of double
indecency by exposure
violation and that
jeopardy,”
appeals
the court of criminal
indecency by
not included within
contact of
unnecessary
found it
to address the constitu-
separate
supported sepa
fense where
events
issue,
tional
the case
resolved
"on
convictions).
rate
statutory
Id.
basis of
construction.”
at 90.
Patterson,
71.
one, therefore violation and is double guarantee against
constitutional Thus, of criminal the court jeopardy.”78 by Justice VELA. Dissenting Opinion petitioner entitled appeals found Justice, VELA, dissenting. ROSE
relief, for inde his conviction and set aside by exposure.79 cency with a child convictions majority reverses Soto’s a double Generally, preserve erroneously charge that the the bases on claim, object at a defendant must jeopardy less-than- on a permitted a conviction submitted charge the time the is or before para- the alternative verdict on unanimous An is excused jury.80 to the (aggravated in Count graphs alleged requirement, howev preservation from the (in- child) and Count sexual assault of (1) er, undisputed facts show when contact) and that a child decency with clearly appar jeopardy violation double by the er- harmed egregiously “was Soto (2) of the record and ent on the face non-unani- a result of the ror” and “[a]s procedural of usual rules of enforcement we verdict error Counts mous intere legitimate state default serves jury errone- whether the cannot determine sts.81 within ously on conduct subsumed relied 2 in 1 and case, Counts offenses recognize present that in the
We I Because convicting Count 3.” jury’s [Soto] basis for the decision Count *18 egre- not suffer that Soto did of the would hold “clearly apparent not on the face is the record does However, harm and because gious the erro- as a result of record.” erroneously relied jury that the not show charge permitted which a non-unani- neous within offenses 2, subsumed 1 can on conduct verdict in Counts and we mous convicting 1 2 in in Counts as to the evidence that only speculate 3, from the I must dissent in Count convicting appellant Soto jury relied on majority’s opinion. interest of Accordingly, Count 3. Gonzalez, 643). 974763, *1, (citing 8 S.W.3d 81. Id. WL 2008 Tex.Crim.
76. Id. at 2008
App. LEXIS 282 at *1.
9,
Davis,
12
parte
957 S.W.2d
82.
Ex
See
77. Id.
general, dou
(noting that in
Crim.App.1997)
prevent the State from
jeopardy does not
ble
974763, *1,
WL
2008 Tex.Crim.
78. Id. at 2008
getting
retrying
who succeeds
a defendant
App.
*1-2.
LEXIS
aside because of some
first conviction set
974763, *1,
WL
2008 Tex.Crim.
79. Id. 2008
leading
proceedings
to convic
in the
error
282 at n 2.
App.
LEXIS
tion).
Cabral,
(citing
I. Harm the trial court in submitting erred charge disjunctive in the form. See id. five, By argues issue Soto the trial court by failing jurors they erred to instruct the Analysis 2. Harm must reach unanimous verdict with re- spect paragraphs When, to the alternative case, inas this an accused fails to (aggravated Count 1 sexual assault of a object to charge, appellate an court child) 2 (indecency and Count reverse, will unless the error was so contact). When we review a charge for harm, egregious, and created such that the error, (1) we determine whether accused has not had a fair trial. Almanza (2) charge existed, error actually (Tex.Crim. State, v. 686 S.W.2d any resulting whether harm requires re- App.1985). egre Under the Almanza State, versal. Castaneda v. 28 S.W.3d standard, gious-harm the record must (Tex.App.-Corpus Christi actual, show that a defendant has suffered pet.). theoretical, merely rather than harm from jury-instruction error. Id. at 174. Requirement of Unanimous Verdict Egregious harm consists of errors affect unanimity required felony
Verdict ing very basis the case or Const, V, 13; § criminаl cases. art. deprive right, the defendant of a valuable Tex. 36.29(a) Tex.Code CRiM. PROC. Ann. art. vitally theory, affect a defensive or make (Vernon Supp.2007). A jury unanimous for punishment case conviction or jury agrees verdict “ensures that the on clearly and significantly persuasive. more the factual elements underlying State, an of v. Saunders 817 S.W.2d fense,” requiring than agree “more mere (Tex.Crim.App.1991). Egregious harm is ment on a violation of a statute.” Francis a difficult prove standard to and must be (Tex.Crim. case-by-case determined on a basis. Elli App.2000). (Tex.Crim. son App.2002). To determine whether de Here, the court instructed the dis- egregious fendant has harm sustained junctively on Counts and 2. The an from instruction to which he did not separate, general guilty returned a verdict (1) object, appellate an court considers: separate, general guilty Count and a (2) charge; the entire the state of the pro- verdict for Count 2. Because each act (3) evidence, issues; including contested by penal scribed code 22.021 (ag- sections (4) counsel; arguments of other child) gravated sexual assault of a *19 relevant information. Hutch v. contact) (indecency 21.11 166, 171(Tex.Crim.App.1996). S.W.2d offense, separate statutory constitutes a disjunctive prevent- the court’s submission (i) Charge The jury unanimity ed Counts and 2. See (Tex. Pizzo v. The the on the court instructed require- Crim.App.2007); proof1 Vick v. 991 S.W.2d State’s burden of and the (Tex.Crim.App.1999). 832-33 There- ment of a unanimous verdict.2 jury: jury: prose- 1. The court instructed the 2. The the "Your verdict "The court instructed proving means all 12 cution has the burden of the defen- must be unanimous. Unanimous vote, you guilty by proving you dant and it after have reached must do so each must verdict, juror every presiding will element of the offense be- a unanimous the doubt, signing appropriate yond certify thereto the reasonable if it fails to do so, charge.” you acquit must the defendant.” form attached to this ... with private part his (ii) her hold and Contested have the Evidence State of Thus, evidence showed the Issues hand.” part to touch the child victim Soto caused respect to Count With 1— genitals. of his evidence assault of a child—the sexual the child victim’s penetrated showed Soto the that Soto touched testified Guerrero organ and that he with his sexual mouth area. She genital the “[t]o child victim organ sexual to contact caused his geni- in her had been touched told me she put- acts of victim’s mouth. Sotos’s child that “he would stated tal area.” Guerrero child victim’s ting organ into the his sexual the female’s private part to rubbing be his necessarily resulted contact be- mouth area, the vaginal “like the organs” sexual and Soto’s the child victim’s mouth tween Thus, showed that the evidence front.” There is no evidence of organ. sexual of the child victim’s touched Soto other act or acts of contact between to show There is no evidence genitals. fin- organ victim’s sexual and Soto’s victim’s touched the child that Soto Thus, certainly, jurors unani- ger. breasts.3 mously guilty penetrat- found Soto both victim’s mouth with his sexual ing the child sug- record to nothing There is causing her mouth to contact organ and Soto was juror that a would believe gest organ. his sexual geni- child victim’s touching guilty respect to Count With tals, doubt con- harbor a reasonable but 2— a child contact—the child -victim her to he ever caused cerning whether made her rub his sexual testified Soto genitals. his touch witness, outcry Salda- organ. The Officer na, him that the child victim told testified (iii) Arguments Counsel organ] up “made her rub [his Soto closing argument4 During the State’s testified and down.” Lorenza Guerrero prosecutor stage, guilt-innocence told her that Soto “would the the child victim manner and There is three different victim Soto had touchеd sault. 3. The child testified However, testimony agree you this is insuffi have her chest. means. You don’t —all cient he touched her breasts. In hap- to show agree of these that one don’t have Nelson v. long you agree that either pened, as all Crim.App.1974), question the court before Okay. Judge happened. these one of appeals the victim’s of criminal was whether unanimous, you be mean- told that it has to my testimony that "he rubbed chest” was guilty ing you have to decide that all 12 of allegation in the in sufficient to sustain guilty. or not "place did dictment that defendant means, one far as manner and And as against the breasts” of the victim. The hand Well, you I say, know what? person will the evidence insufficient because court found evidence that his sexual believe the showed patently broader the definition of "chest” somebody organ the mouth of contacted of “breast” and "includes than the definition Well, say, you I you what? else. know body larger than that encom area of put only but he think that it not contacted Nelson, passed by 505 S.W.2d at the latter.” *20 Well, enough penis in her mouth. that’s his in that aggravated assault for an sexual regard. prosecutor Regarding Counts 1 and stated: her touch you Count 2 he made So if find in mind, gentlemen, Keep that in ladies you find genitals, then will also part of his you say find that one of these—let's either child, indecency with a or that guilty of him organ, sexual his there was contact that his that she touched her breasts or he touched of the victim. penis, contacted the mouth these. any genitals, either one of part of his as- enough for an That’s mentioned the three statutory egregious alternative harm to I Soto. would overrule offenses submitted under 1 and 2. Counts issue five.
However, prosecutor did not tell the jury they that need not follow the trial Jury Erroneously II. Whether Relied court’s unanimous-verdict instruction. on Conduct Subsumed within Offenses Moreover, statutory the alternative of Charged Counts 1 and in Convict- fenses jury submitted to the under Counts ing Soto Count 3 mutually and were not exclusive. See object Soto did not to the submission of Ngo 751-52 jury, 3 to the Count and he did not raise Crim.App.2005) (holding that defendant this issue on appeal. indecency Count 3— could not be guilty stealing of both credit with a exposure separate a—is receiving card and stolen credit card from offense from aggravated sexual assault of thief). (Count 1) indecency a child or with a child (Count 2). by contact See Tex. Penal Code (iv) Other Relevant Information (Vernon 2003). 21.11(a)(2)(A) § Ann. exposed evidence showed genitals Soto Soto’s strategy defensive was to under- to the child victim. The trial court submit- credibility by mine the child victim’s ad- jury in single para- ted Count 3 to the ducing that evidence she and her mother graph. Accordingly, reached a words, were liars. In other Soto’s defen- unanimous guilty verdict on Count 3. The theory sive that was the State had failed to record does not that show errone- prove beyond a reasonable doubt that he ously relied on conduct subsumed within guilty of any alleged of the offenses offenses in Counts 1 and 2 in against jury obviously him. The resolved convicting Soto of credibility issue the child victim’s reasons, by exposure. For these I re- favor. spectfully dissent. disjunctive I conclude the trial court’s judg- I would affirm the trial court’s submission did not constitute error affect- ments. ing very basis of the case or error
deprived right, vitally Soto of a valuable theory,
affected a defensive or made the punishment clearly
case for conviction or significantly persuasive. more See
Saunders,
I
hold, therefore, disjunctive sub-
mission statutory three distinct of-
fenses Counts and without
requiring unanimity concerning the dis- offenses,
tinct statutory did not result Well, you says, you question you If one of know what? but if one of have a as to was, I think the evidence shows that he touched long which one it as it was either breasts, but there was no evidence that these, guilty you find him one of will genitals he touched of her and the indecency with a child. happened, evidence shows that all of these