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NO. PD-0840-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________________________ FERNANDO PENA Petitioner v. THE STATE OF TEXAS Petition in Cause No. B19587-1401 from the 242nd Judicial District Court of Hale County, Texas and Case No. 07-14-00163-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas ___________________________________________________________________ PETITION FOR DISCRETIONARY REVIEW JAMES B. JOHNSTON EASTERWOOD, BOYD & SIMMONS, PC P. O. Box 273 Hereford, Texas 79045 (806) 364-6801 (806) 364-2526 - telefax August 11, 2015 State Bar No: 10838200 ATTORNEY FOR PETITIONER, FERNANDO PENA TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... 2 INDEX OF AUTHORITIES ...................................................................................... 3 STATEMENT REGARDING ORAL ARGUMENT ................................................ 5 STATEMENT OF THE CASE .................................................................................. 5 STATEMENT OF PROCEDURAL HISTORY ........................................................ 6 GROUNDS FOR REVIEW ....................................................................................... 7 1. When the trial court errs by omitting a unanimity instruction to the jury pursuant to an indictment charging one indecency offense and the evidence at trial identifies two separate and distinct incidences, the Almanza egregious harm standard is an improper bases for analysis even if the defendant did not object to the charge. 2. Issues involving the omission of a unanimity instruction in an indecency case should not be analyzed under the traditional Almanza egregious harm standard. 3. The Seventh Court of Appeals improperly applied the Almanza egregious harm analysis in this case. ARGUMENT ............................................................................................................. 7 PRAYER FOR RELIEF ........................................................................................... 11 CERTIFICATE OF COMPLIANCE ....................................................................... 12 CERTIFICATE OF SERVICE ................................................................................ 13 APPENDIX .............................................................................................................. 14 2 INDEX OF AUTHORITIES CASES Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) .......................... 5, 8, 9, 10 Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) ............................................. 8 Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) ............................ 5, 8, 9, 10 Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ..................................... 5, 7, 9 Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014) ........................... 5, 9 Bell v. State, 2015 Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015) ................. 5, 9 STATUTES Tex. Code Crim. Proc. Ann. Article 36 ...................................................................... 7 Tex. Code Crim. Proc. Ann. Article 37 ...................................................................... 7 Tex. Code Crim. Proc. Ann. Article 45 ...................................................................... 7 Tex. Const. Art. V, Section 13 ................................................................................... 7 3 NO. PD-0840-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________________________ FERNANDO PENA Petitioner v. THE STATE OF TEXAS Petition in Cause No. B19587-1401 from the 242nd Judicial District Court of Hale County, Texas and Case No. 07-14-00163-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas ___________________________________________________________________ PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS: FERNANDO PENA petitions the Court to review the judgment affirming his conviction for the second degree felony offense of indecency with a child, and 4 punishment assessed at eight (8) years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000, and the judgment of the Seventh Court of Appeals affirming that conviction. STATEMENT REGARDING ORAL ARGUMENT Oral argument would be helpful to the Court for the purpose of discussing whether it is proper to analyze a trial court’s error in omitting a unanimity charge to the jury under the standard of review set forth in Almanza and Gelinas. There exists a direct conflict among the decisions of the appellate courts of this state regarding the application of the egregious harm standard as set forth in those cases and the cases of Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014), Bell v. State, 2015 Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015), and Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005). STATEMENT OF THE CASE The Seventh Court of Appeals in its opinion in this case acknowledged that the trial court abused its discretion by omitting a required instruction on jury unanimity {Court of Appeals Opinion, p. 7]. The court concluded, however, that the error, which was not objected to at trial, was not egregious and therefore did not require reversal of the conviction under the Almanza standard. 5 The Court of Appeals held that Appellant did not demonstrate actual, rather than theoretical, harm. The appellate court stated that “From the entirety of the charge and the arguments of counsel, we find little to support a conclusion appellant suffered actual harm . . . . The omission of a unanimity instruction did not affect the very basis of the case, deprive appellant of the valuable right of a unanimous verdict or vitally affect his defensive theory so as to deprive him of a fair trial.” STATEMENT OF PROCEDURAL HISTORY Petitioner pleaded not guilty [RR p. 122] to the offense of indecency with a child as charged in the indictment [CR p. 5]. The indictment charged only one specific incident, but the charge to the jury allowed them to make a finding of guilt based on two separate incidents testified to by the victim [CR pp. 49-50, paragraphs 7 and 8]. The case was tried to a jury, which found Petitioner guilty as charged in the indictment [RR p. 262]. The jury sentenced Petitioner to a term of eight (8) years TDCJ- Institutional Division and a fine of $5,000 [RR pp. 292-293]. Petitioner filed a timely motion for new trial [CR pp. 124-126] and timely notice of appeal [CR p. 85]. The Seventh Court of Appeals affirmed Petitioner’s conviction on June 4, 2015. Pena v. State, 2015 Tex. App. LEXIS 5733 (Tex. App. Amarillo June 4, 2015). Petitioner requested an extension of the time to file a petition for discretionary to August 5, 2015, which request was granted. 6 GROUNDS FOR REVIEW When the trial court errs by omitting a unanimity instruction to the jury pursuant to an indictment charging one indecency offense and the evidence at trial identifies two separate and distinct incidences, the Almanza egregious harm standard is an improper bases for analysis even if the defendant did not object to the charge. Issues involving the omission of a unanimity instruction in an indecency case should not be analyzed under the traditional Almanza egregious harm standard. The Seventh Court of Appeals improperly applied the Almanza egregious harm analysis in this case. ARGUMENT Under Tex. Const. art. V, § 13, jury unanimity is required in felony cases, and, under Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-45.036, unanimity is required in all criminal cases. The unanimity requirement is a complement to and helps in effectuating the “beyond a reasonable doubt” standard of proof. The unanimity rule requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant’s course of action is also required. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). This language should be a clear indication 7 that the right to jury unanimity is a valuable right, one of the protections expressly delineated by this Court in Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Note that this language, which originated with Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), is in the disjunctive, not the conjunctive. An Appellant need not show all three of the effects of harm in order to obtain a finding of egregious harm. Unfortunately, as appellate precedence on this issue has developed, appellate courts have appeared to require all three of the effects: “affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory”. Cosio, at *777. If the right to jury unanimity is a valuable right protected by both constitutional and statutory provisions, that right should be protected by precedence which would either: (1) find that omission of a proper unanimity instruction is per se egregious harm, or (2) analyze the error under a “some harm” standard as opposed to an egregious harm standard. As Justices Meyers, Price and Johnson pointed out in their dissenting opinion in Gelinas v. State, 398 S.W.3d 703, 713 (Tex. Crim. App. 2013), “Appellate courts have clearly had difficulty judging how to weigh the Almanza factors, but the worst feature of the Almanza egregious harm standard is that it is so unfair to defendants . . .” As proposed by those Justices, “ . . . it would be more equitable to do away with the enigma of Almanza and treat all jury charge error under 8 the same ‘some harm’ standard.” The omission of a unanimity instruction is a different animal than the omission of other statutorily-based instructions, and a different standard of review should apply. The unfairness of the current analysis is illustrated by the seemingly conflicting application of that standard in cases such as Digman v. State, 455 S.W.3d 207, 214 (Tex. App. – Amarillo 2014) [“The charge’s application paragraph improperly permitted jurors to convict appellant of either of two separate offenses without requiring them to be unanimous as to the offense committed.”]; Bell v. State, 2015 Tex. App. LEXIS 3572 at *12-13 (Tex. App. – Dallas 2015) [“Regardless of how often a generic unanimity requirement was mentioned, however, the instructions failed to apprise the jurors that they had to be unanimous on which incident of criminal conduct they believed constituted each count in the indictment. As a result, the entire jury charge in this case weighs in favor of a finding of egregious harm.”]; Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005) [“We therefore agree that appellant’s constitutional and statutory right to a unanimous jury verdict was violated and this violation caused egregious harm to his right to a fair and impartial trial.”]; and the application in Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013) [“After conducting an Almanza analysis in the instant case, we find the erroneous article 38.23 instruction did not egregiously harm Gelinas.”]. As stated by the dissent in Gelinas, “The conflicting decisions of the court of appeals and the 9 plurality in this case exhibit the conundrum created by Almanza in trying to determine harm vs. egregious harm. Analysis under Almanza has resulted in uneven rulings because the factors used to distinguish between harm and egregious harm are difficult to decipher.” Gelinas, at 713. The particular problem in employing the Almanza standard is illustrated in Petitioner’s case, where the Seventh Court of Appeals specifically stated “Though perhaps inclining toward a finding of egregious harm in this case, we assign little weight to the entirety of the charge in our analysis.” [Court of Appeals Opinion, at p. 9]. The Seventh Court of Appeals went on to find “no reason a juror who did not accept that testimony (as to one of the two incidents testified to by the victim) would have believed appellant committed the offense only at the birthday party.” [Court of Appeals Opinion, at p. 11]. This can amount to only conjecture, a problem which would have been ameliorated by the proper unanimity instruction. As to the analysis of the “entirety of the record” prong of the egregious harm analysis, the appellate Court simply reiterated the requirement of “actual harm,” without discussing the force of Petitioner’s evidence concerning his absence from the birthday party, the lack of medical evidence, and the improper bolstering of the victim’s testimony by the State’s witnesses. [Court of Appeals Opinion, at p. 12]. Finally, the Seventh Court of Appeals determined that the argument of the prosecutor, wherein he stated “If you believe this 10 happened, and there's no reason to not believe this other than you just don't want to, and you believe it happened before January 31, 2014, while Brianna was alive, which all the evidence shows.” [RR p. 247, lines 22-25] did not weigh for or against a finding of actual harm. [Court of Appeals Opinion, at p. 11]. Petitioner disagrees, asserting that such an argument was a clear invitation to the jury to convict on either of the two distinct incidents offered by the State. For the foregoing reasons, Petitioner requests this Court to find that (1) the egregious harm standard of Analysis is inappropriate in a case where the trial court omitted a unanimity instruction to the jury; and/or (2) the Seventh Court of Appeals improperly applied the egregious harm standard in this case. Therefore, the judgment of the Seventh Court of Appeals should be reversed. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court grant this petition, and upon reviewing the judgment entered by the Seventh Court of Appeals, reverse the judgment of the Court of Appeals with instructions to that court to remand the case to the trial court for a new trial. In the alternative, in the event this Court determines that the court of appeals improperly applied the egregious harm analysis in this case, the Court of Criminal Appeals should reverse the judgment of the Seventh Court of Appeals and remand the case for a more thorough harm analysis. 11 Respectfully submitted, Easterwood, Boyd & Simmons, PC 623 N. Main Street, P.O. Box 273 Hereford, TX 79045 Tel: (806) 364-6801 Fax: (806) 364-2526 By: /s/ James B. Johnston James B. Johnston State Bar No. 10838200 Email: bryan@ebs-law.net Attorney for Fernando Pena CERTIFICATE OF COMPLIANCE This is to certify that the number of words in this document according to the word count of the program used to prepare the document is 2308. /s/ James B. Johnston James B. Johnston 12 Certificate of Service I hereby certify that a true copy of the foregoing instrument was provided to all counsel of record in this matter on the 5th day of August, 2015, in accordance with the Texas Rules of Appellate Procedure. State Prosecuting Attorney P. O. Box 12405 Austin, Texas 78711 Wally Hatch Hale County District Attorney 225 Broadway, Suite 1 Plainview, Texas 79072 /s/ James B. Johnston James B. Johnston 13 APPENDIX Opinion of the Seventh Court of Appeals 14 Pena v. State Court of Appeals of Texas, Seventh District, Amarillo June 4, 2015, Decided No. 07-14-00163-CR Reporter 2015 Tex. App. LEXIS 5733 FERNANDO PENA, APPELLANT v. THE HN1 The verdict of a jury must be unanimous STATE OF TEXAS, APPELLEE about the specific crime the defendant committed. The jury must agree upon a single and discrete Notice: PLEASE CONSULT THE TEXAS incident that would constitute the commission of RULES OF APPELLATE PROCEDURE FOR the offense alleged. Non-unanimity may occur CITATION OF UNPUBLISHED OPINIONS. when the State charges one offense and presents evidence that the defendant committed the charged Prior History: [*1] On Appeal from the 242nd offense on multiple but separate occasions. Each District Court, Hale County, Texas. Trial Court occurrence of the charged offense constitutes a No. B19587-1401, Honorable Edward Lee Self, different offense or unit of prosecution. In such Presiding. cases, it is the trial court’s obligation to submit a charge instructing the jury that its verdict must be Case Summary unanimous as to a single offense or unit of prosecution among those presented. This duty is not discharged through a boilerplate instruction Overview informing the jury that its verdict must be unanimous because the jury might understand the HOLDINGS: [1]-While the court abused its direction to mean it must be unanimous about the discretion by omitting the unanimity instruction, offense in general and not a specific occurrence the error was not fundamental because defendant constituting the charged offense. Rather, the jury did not suffer egregious harm from the error since must be instructed that it must unanimously agree the omission of an unanimity instruction did not on one incident of criminal conduct (or unit of affect the very basis of the case, deprive defendant prosecution), based on the evidence, that meets all of the valuable right of an unanimous verdict or of the essential elements of the single charged vitally affect his defensive theory so as to deprive offense beyond a reasonable doubt. Such an him of a fair trial. instruction should not refer to any specific evidence in the case and should permit the jury to Outcome return a general verdict. Judgment affirmed. Criminal Law & Procedure > ... > Jury Instructions > Particular Instructions > Unanimity LexisNexis® Headnotes Criminal Law & Procedure > Trials > Verdicts > Unanimity Criminal Law & Procedure > Trials > Verdicts > Unanimity HN2 Avoiding a unanimity problem when one Criminal Law & Procedure > ... > Jury offense is charged but the evidence shows the Instructions > Particular Instructions > Unanimity defendant committed the offense on multiple, 2015 Tex. App. LEXIS 5733, *1 separate occasions is ultimately the responsibility such a determination must be borne out by the of the trial court. An unanimous verdict is ensured trial record. Actual harm is shown if the error in in this situation by instructing the jury in the the charge affected the very basis of the case, charge that its verdict must be unanimous as to a deprived the defendant of a valuable right, or single offense or unit of prosecution among those vitally affected a defensive theory. The appellate presented. Conversely, the defendant is not court’s analysis takes into account the entire jury compelled to request an election. Indeed, for a charge, the state of the evidence, including the strategic purpose a defendant may choose not to contested issues and weight of probative evidence, request an election. the argument of counsel and any other relevant Criminal Law & Procedure > ... > Jury information revealed by the trial record as a Instructions > Particular Instructions > Unanimity whole. Criminal Law & Procedure > ... > Standards of Criminal Law & Procedure > Appeals > Reversible Review > Abuse of Discretion > General Overview Error > General Overview HN3 When evidence of more than one instance of a criminal act constituting the charged offense is HN5 Under the egregious harm standard, reversal presented at trial, an instruction on juror unanimity is possible only if the record shows actual rather as to the specific instance is required. Its omission than theoretical harm. is an abuse of discretion. Judges: Before QUINN, C.J., and CAMPBELL Criminal Law & Procedure > ... > Reviewability > and PIRTLE, JJ. Preservation for Review > Exceptions to Failure to Object Opinion by: James T. Campbell Criminal Law & Procedure > ... > Reviewability > Preservation for Review > Jury Instructions Opinion Criminal Law & Procedure > Appeals > Reversible Error > Jury Instructions MEMORANDUM OPINION HN4 A party must generally make a proper A jury convicted appellant Fernando Pena of one objection in the trial court to preserve the error for count of indecency with a child by sexual contact1 appeal. Tex. R. App. P. 33.1(a). However, in and assessed punishment at eight years’ criminal cases courts may take notice of a confinement in prison and a $5,000 fine. He was fundamental error affecting a substantial right, sentenced accordingly. Through three issues, even if the claim of error was not properly appellant complains the trial court abused its preserved. Tex. R. Evid. 103(e). Fundamental discretion by failing to include in the jury charge error includes jury charge errors resulting in a unanimity instruction. Appellant further contends egregious harm. Reversal then on a claim of he was egregiously harmed by the error. We find egregious harm is possible only if the error was the trial court erred in failing to submit a unanimity fundamental in the sense that it was so egregious instruction, but appellant was not egregiously and created such harm that the defendant was harmed. We will therefore affirm the judgment of deprived of a fair and impartial trial. The harm the trial court. must be actual rather than theoretical. Egregious harm is a high and difficult standard to meet, and Background 1 TEX. PENAL CODE ANN. § 21.11(a)(1) (WEST 2011). Page 2 of 8 2015 Tex. App. LEXIS 5733, *1 The single-count indictment alleged ″on or about trial but she was not treated as an outcry witness the 1st day of June, 2013, . . . [appellant] did then and did not testify to B.G.’s statements to her. and there with the intent to arouse or gratify the B.G. did not receive a medical examination and sexual desire of said [appellant], intentionally or no medical evidence was presented at trial. knowingly engage in sexual contact with B.G. by touching the genitals of B.G., a child younger Appellant, approximately 60 years old, is related than 17 years and not the spouse of [appellant].″ by marriage to A.A., the wife of B.G.’s uncle. B.G.’s uncle and his wife, A.A., each testified for [*2] At trial, nine-year-old B.G. testified that the defense, and were the only defense witnesses. while visiting her uncle’s home, she and appellant Their testimony indicated they frequently hosted sat on a living-room couch watching television. family gatherings. The uncle was emphatic that at Appellant touched her ″private spot,″ what she no time were B.G. and appellant alone while called her ″nana,″ with his hands, under her visiting at his house. Without equivocation, he pajamas and underwear. It is not disputed that the further testified that appellant was not present at child’s reference to her ″private spot″ and ″nana″ B.G.’s birthday party. When asked on referred to her genitals. B.G. could not recall the cross-examination why he did not believe B.G., exact date of this occurrence. B.G. told no one at the uncle explained he had known appellant for the time. sixteen or seventeen years and ″you start to [*4] B.G. testified of another visit to her uncle’s home. know people, and I honestly believe that he didn’t The occasion was a party celebrating her ninth do it.″ Nine photographs were admitted for the birthday in July 2013. During the visit, she was defense through A.A. Seven depicted B.G.’s seated in a room by the back door watching birthday party. Appellant did not appear in any of television. The room was furnished with brown these photographs but A.A. indicated that not all chairs. Appellant joined her in the room and birthday-party guests appeared in the photographs. touched her ″nana″ over her clothing with his Like her husband, A.A. was certain appellant was hands. B.G. again told no one of the occurrence. not present at B.G.’s birthday party. On cross-examination, A.A. testified she was ″certain″ On her own initiative, B.G. later made an audio also that only once were B.G. and appellant both recording on an electronic video game device. present at her house. That occasion, she said, was During her trial testimony she agreed with the a September football party. A.A. also said the prosecutor that in the recording she ″sa[id] what conduct B.G. alleged ″didn’t happen.″ Freddie had done.″2 B.G.’s stepfather testified he later overheard the recording and told her mother In the jury charge, the application paragraph what he heard. Police were contacted. asked whether appellant engaged in the conduct alleged ″on or about June 1, 2013.″ An instruction When B.G. was asked at trial if ″Freddie″ ever informed the jury about the date of the offense: made her touch him, she answered he once ″grabbed [her] hands (sic) and put it in his pants″ The State is not bound by the specific date touching his skin. She could not say if this which the offense, if any, is alleged in the conduct occurred the ″first time″ appellant touched indictment to have been committed. A her or later on her birthday. conviction may be had upon proof beyond a A worker at the Children’s Advocacy Center reasonable doubt that the offense, if any, was (CAC) interviewed B.G. The worker testified at committed at any time prior to the filing of the 2 It is not disputed that ″Freddie,″ as used by B.G. in [*3] her trial testimony, meant appellant. Page 3 of 8 2015 Tex. App. LEXIS 5733, *4 indictment which is within the period of If you believe he did it, and I would submit to limitations. The date of the filing of the you the evidence doesn’t show anything else, indictment in this case was January 31, 2014. then he has to be found guilty. I mean, in fact, [*5] There is no limitation period applicable look at Defendant’s 8. There’s that brown to the offense of indecency with a child by chair by the TV in the side room by the sexual contact. kitchen that she described for you. Ladies and gentlemen, she’s not making this up. Although B.G. testified appellant unlawfully touched her on two occasions the jury was not Appellant was convicted and sentenced as specifically instructed in the charge that it had to noted. agree unanimously on a single, discrete occurrence constituting the commission of the charged Analysis offense.3 Rather, the only mention of unanimity in Appellant argues the trial court abused its the charge at the guilt-innocence phase was the discretion by failing to submit a charge containing following general instruction: a specific unanimity instruction. Because this After you retire to the jury room, you should complaint was not made at trial, appellant further elect one of your members as your Presiding asserts that he was egregiously harmed by the Juror. It is the duty of the Presiding Juror to error. Necessity of a Specific Unanimity preside at your deliberations, to vote, and, if Instruction you unanimously agree upon a verdict, to HN1 The verdict of a jury must be unanimous certify your verdict by completing and signing about the specific crime the defendant committed. the verdict form. Cosio, 353 S.W.3d at 771 (citing Landrian v. Neither side objected to the absence of a State, 268 S.W.3d 532, 535 (Tex. Crim. App. specific unanimity instruction. 2008)). ″[T]he jury must ’agree upon a single and In closing argument, the prosecutor stated: discrete incident that would constitute the commission of the offense alleged.’″ Cosio, 353 If you believe it happened, and you believe it S.W.3d at 771 (quoting Stuhler v. State, 218 happened anytime between January 31, 2014, S.W.3d 706, 717 (Tex. Crim. App. 2007)). back through eternity. I guess it would be back ″[N]on-unanimity may occur when the State through [B.G.’s] birth day, the actual day she charges one offense and presents evidence that the was born. If you believe it happened during [*7] defendant committed the charged offense on that time period, then on or about June 1, 2013 multiple but separate occasions.″ Cosio, 353 is sufficient. S.W.3d at 772. Each occurrence of the charged offense constitutes a different offense or unit of Later in the argument he added: prosecution. Id. In such cases, it is the trial court’s If you [*6] believe this happened, and there’s obligation to submit a charge instructing the jury no reason to not believe this other than you ″that its verdict must be unanimous as to a single just don’t want to, and you believe it happened offense or unit of prosecution among those before January 31, 2014, while [B.G.] was presented.″ Id. at 772, 776 (stating even when the alive, which all the evidence shows. State is not put to an election, the trial judge must prepare a charge ensuring a unanimous verdict Still later he argued: based on the specific evidence presented). This 3 Cosio v. State, 353 S.W.3d 766, 771, 772 (Tex. Crim. App. 2011). Page 4 of 8 2015 Tex. App. LEXIS 5733, *7 duty is not discharged through a ″boilerplate″ bound to, request the State to elect which specific instruction informing the jury that its verdict must act it relies on for conviction); id. at 747 n.34; id. be unanimous because the jury might understand at 748 (″A request for an election, however, is not the direction to mean it must be unanimous about a prerequisite for implementing Texas’ the offense in general and not a specific occurrence constitutional and statutory requirement of jury constituting the charged offense. Cosio, 353 unanimity″). Indeed, for a strategic purpose a S.W.3d at 773-74 (citing Ngo v. State, 175 S.W.3d defendant may choose not to request an election. 738, 745 (Tex. Crim. App. 2005)). Rather, ″the See Cosio, 353 S.W.3d at 775 (″A defendant may jury must be instructed that it must unanimously choose not to elect so that the State is agree on one incident of criminal conduct (or unit jeopardy-barred from prosecuting on any of the of prosecution), based on the evidence, that meets offenses that were in evidence″). all of the essential elements of the single charged offense beyond a reasonable doubt.″ Id. at 776. HN3 Because evidence of more than one instance ″Such an instruction should not refer to any of a criminal act constituting the charged offense specific evidence in the case and should permit was presented at trial, an instruction on juror the jury to [*8] return a general verdict.″ Id. unanimity as to the specific instance was required. Cosio, 353 S.W.3d at 772. Its omission was an The State argues a unanimity instruction was not abuse of discretion. required because appellant was charged with only one offense, indecency with a child by touching Egregious Harm Analysis the genitals. When, it continues, the evidence presents multiple occurrences of the conduct Appellant did not object to the absence of a alleged by the indictment the defendant may unanimity instruction in the charge but contends require the State to elect which of the charged acts as a result his trial was fundamentally unfair. HN4 it will rely on for conviction. But here appellant A party must generally make a proper objection in did not request an election. the trial court to preserve the error for appeal. See TEX. R. APP. P. 33.1(a). However, in criminal cases HN2 Avoiding a unanimity problem when one courts may ″take notice of a fundamental error offense is charged but the evidence shows the affecting a substantial right, even if the claim of defendant committed the offense on multiple, error was not properly preserved.″ TEX. R. EVID. separate occasions is ultimately the responsibility 103(e). [*10] Fundamental error includes jury of the trial court. See Cosio, 353 S.W.3d at 776 charge errors resulting in egregious harm. Baker v. (″guaranteeing unanimity is ultimately the State, No. 02-14-00157-CR, 2015 Tex. App. responsibility of the trial judge because the judge LEXIS 846, at *4-5 (Tex. App.—Fort Worth Jan. must instruct the jury on the law applicable to the 29, 2015, no pet.) (per curiam, mem. op. on reh’g, case″). A unanimous verdict is ensured in this not designated for publication) (citing Saldano v. situation by instructing the jury in the charge ″that State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. its verdict must be unanimous as to a single 2002)). Reversal then on a claim of egregious offense or unit of prosecution among those harm is possible ″only if the error was fundamental presented.″ Id. at 772. Conversely, the defendant in the sense that it was so egregious and created is not compelled to request an election. See Ngo, such harm that the defendant was deprived of a 175 S.W.3d at 747-48 (noting that when, among fair and impartial trial.″ Villarreal v. State, 453 other scenarios, the State presents evidence of the S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza perpetration of the same criminal act on different v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. [*9] occasions the defendant may, but is not 1985) (op. on reh’g). Page 5 of 8 2015 Tex. App. LEXIS 5733, *10 The harm must be actual rather than theoretical. unanimity requirement, we conclude that this Villarreal, 453 S.W.3d at 433 (citing Cosio, 353 factor weighs in favor of finding egregious harm″). S.W.3d at 777). ″Egregious harm is a ’high and On the other hand, the court’s error was the difficult standard’ to meet, and such a omission of an instruction rather than the inclusion determination must be ’borne out by the trial of an erroneous instruction. See Taylor v. State, record.’″ Villarreal, 453 S.W.3d at 433 (quoting 332 S.W.3d 483, 493 (Tex. Crim. App. 2011) Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. (contrasting omission of instruction with charge App. 2013)). Actual harm is shown if the error in in another case which mis-instructed the jury).4 the charge affected ’″the very basis of the case,’ Though perhaps inclining toward a finding of ’deprive[d] the defendant of a valuable right,’ or egregious harm in this case, we assign [*12] little ’vitally affect[ed] a defensive theory.’″ Arrington weight to the entirety of the charge in our analysis. v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. See Cosio, 353 S.W.3d at 777 (noting merely that 2015) (quoting Cosio, 353 S.W.3d at 777). Our charge ″permitted″ non-unanimous verdicts, and analysis takes into account the entire jury charge, that ″nothing in charges themselves militates the state of the evidence, including the contested against″ an egregious harm determination). issues and weight of probative evidence, the argument of counsel and any other relevant State of the Evidence information revealed by the trial record as a whole. Villarreal, 453 S.W.3d at 433. The State’s case was made through the brief testimony of B.G. The jury did not hear medical Entirety of the Jury Charge evidence, the substance of B.G.’s statements at the CAC interview, or the words of her In conjunction with selection of the presiding electronically-recorded outcry. Through the juror, and that person’s duties, the charge testimony of his two witnesses, appellant presented instructed, ″if you unanimously [*11] agree upon the defense that he was not guilty of the conduct a verdict″ the presiding juror must certify the charged, on either occasion to which B.G. testified, verdict. But here such general language ensures and he was definitely not present on her birthday. only that the jurors agreed appellant engaged in Because appellant’s indecent conduct was the charged conduct at some point in time. See described in the evidence only by B.G.’s Ngo, 175 S.W.3d at 745 (commenting, as to testimony, the jury could not have convicted substantively identical ″boilerplate″ instruction, appellant without accepting her testimony. And ″the jury could well have believed that they need there was little difference in her descriptions of only be unanimous about their ’verdict’ of guilty appellant’s actions on the two occasions to which or not guilty of the general offense [charged]″). she testified. On both occasions, she was seated Some jurors might have believed appellant touched watching television at her uncle’s house when B.G. only on the first occurrence to which she [*13] appellant touched her.5 It is obvious also testified while others might have been convinced that the jury did not accept the defense witnesses’ he committed the offense at her birthday party. assertions of appellant’s innocence. Therefore analysis of the entire charge in this case might incline toward a finding of egregious harm. To an extent, appellant’s defense focused on his See Arrington, 451 S.W.3d at 841 (″Because the witnesses’ insistence that appellant did not attend entire charge did not apprise the jury of the proper the birthday party, and thus could not have 4 The other case referred to in Taylor, 332 S.W.3d at 493, was Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996), in which the court found egregious harm from an instruction that ″was 180 degrees opposite of what it should have been.″ Hutch, 922 S.W.2d at 172. 5 B.G. testified appellant touched her under her clothing on the first occasion and over her clothing at the birthday party. Page 6 of 8 2015 Tex. App. LEXIS 5733, *13 committed indecency on that occasion. To that unanimity on particular conduct). Thus we do not extent, the state of the evidence differs from that find the argument of counsel weighs for or against in cases like Ruiz v. State, 272 S.W.3d 819 (Tex. a finding of actual harm. App.—Austin 2008, no pet.), in which the defendant’s theory left the jury with an Entirety of the Record ″all-or-nothing decision.″ Id. at 826; see Arrington, 451 S.W.3d at 842 (discussing Ruiz); Jourdan v. At oral argument, appellant argued that the State, 428 S.W.3d 86 (Tex. Crim. App. 2014). simplicity of the charge and the evidence in this Nonetheless, the evidence does not present a case heightens the risk of a non-unanimous verdict. likelihood that jurors voted for conviction but did As appellant noted, [*15] the case involves only a not agree appellant committed indecency on one single count alleging indecency but two distinct specific occasion. A juror who accepted the occasions of conduct. Because the jury was not testimony appellant did not attend the birthday made to understand that to find appellant guilty party must have found he committed the offense they must agree unanimously that he committed on the first occasion B.G. described. And we see the offense on both or only one occasion, he in the evidence no reason a juror who did not argued, the jury was never required to consider accept that testimony would have believed the impact of the defensive evidence he was not appellant committed the offense only at the present on one of the two occasions alleged. As birthday party. As we have noted, B.G.’s appellant sees it, the straight-forward case descriptions of the two occasions were very presented by this record carries an even greater similar. We think a juror who [*14] believed her risk of non-unanimity than cases like Arrington, testimony that appellant touched her during her 451 S.W.3d at 837-39, which involved seven birthday party, over the strong defensive assertions counts and evidence of multiple acts of indecent he was not then present, almost certainly also and assaultive conduct. believed appellant committed indecency on the HN5 Under the egregious harm standard, reversal first occasion. See Taylor, 332 S.W.3d at 493 (″It is possible only if the record shows actual rather is unlikely that the jury believed that [Taylor] than theoretical harm. Bell v. State, No. sexually assaulted the victim before he turned 17 05-13-01616-CR, 2015 Tex. App. LEXIS 3572, at years old but not after″). *15-16 (Tex. App.—Dallas Apr. 10, 2015, no pet.) Argument (citing Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013)). From the entirety of the As noted from its quoted excerpts, the prosecutor’s charge and the arguments of counsel, we find little argument at times used singular pronouns when to support a conclusion appellant suffered actual referring to the occurrence. But it would be an harm. We find the state of the evidence militates unwarranted conclusion that such expressions against a finding of actual harm. And we find moved the jury toward reaching a non-unanimous appellant’s contention based on the entirety of the verdict. Neither the State nor the defense told the record unpersuasive as indicative of actual harm. jurors they must be unanimous as to the appellant’s The omission of a unanimity instruction did not guilt on a single incident, but neither told the jury affect the very basis of [*16] the case, deprive they could convict without unanimity. Cf. Ngo, appellant of the valuable right of a unanimous 175 S.W.3d at 750; Digman v. State, 455 S.W.3d verdict or vitally affect his defensive theory so as 207, 210-11 (Tex. App.—Amarillo 2015, pet. to deprive him of a fair trial. ref’d) (in both cases, prosecutors’ argument emphasized jury’s ability to convict without Conclusion Page 7 of 8 2015 Tex. App. LEXIS 5733, *16 The trial court abused its discretion by omitting James T. Campbell the unanimity instruction, but appellant did not suffer egregious harm from the error, so it was not Justice fundamental. We overrule appellant’s issues asserting egregious harm, and affirm the judgment Do not publish. of the trial court. Page 8 of 8 Envelope Details Print this page Case # PD-0840-15 Case Information Location Court Of Criminal Appeals Date Filed 08/05/2015 11:44:15 PM Case Number PD-0840-15 Case Description Assigned to Judge Attorney James Johnston Firm Name Easterwood, Boyd & Simmons, P.C. Filed By James Johnston Filer Type Not Applicable Fees Convenience Fee $0.09 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $3.00 Total Provider Tax Fees $0.25 Grand Total $3.34 Payment Account Name Easterwood, Boyd & Simmons, P.C. Transaction Amount $3.34 Transaction Response Transaction ID 10454328 Order # 006377440-0 Petition for Discretionary Review Filing Type EFileAndServe Filing Code Petition for Discretionary Review Filing Description Petition for Discretionary Review Reference Number 14-100149 Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason The petition for discretionary review does not contain the identity of Judge, Parties 08/11/2015 and Counsel [Rule 68.4(a)]. In the future please combine the separate parts of your https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=51b714b6-1eb6-4ffe-b69d-f4963af6de98[8/11/2015 11:25:37 AM] Envelope Details Other 11:23:55 petition into one contiguous file; do not electronically file a petition and the Court of AM Appeals opinion(s) or other appendices as separate documents. [Rule 9.4(j)(4)] You have ten days to tender a corrected petition for discretionary review. Documents Attachments Pena v. State_ 2015 Tex. App. LEXIS 5733.pdf [Original] Lead Document PDR.pdf [Original] eService Details Name/Email Firm Service Type Status Served Date/Time Opened Hale County Christina McIntee 08/07/2015 District Attorney's EServe Sent Yes cmcintee@outlook.com 09:39:53 AM Office Lisa McMinn State Prosecuting EServe Sent Yes Not Opened information@spa.texas.gov Attorney Lisa C. McMinn State Prosecuting 08/10/2015 EServe Sent Yes lisa.mcminn@spa.texas.gov Attorney's Office 07:58:35 AM https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=51b714b6-1eb6-4ffe-b69d-f4963af6de98[8/11/2015 11:25:37 AM]