Pena, Fernando

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).

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 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
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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
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Grand Total $3.34
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Transaction Amount $3.34
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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

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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
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