In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00057-CR
___________________________
JUAN ANTONIO RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 59,484-C
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
A jury found Appellant Juan Antonio Rodriguez guilty of two counts of
aggravated sexual assault of a child under fourteen years of age and of one count of
sexual assault of a child. See Tex. Penal Code Ann. §§ 22.011(a)(2)(A),
22.021(a)(1)(B)(i), (a)(2)(B). The jury assessed Rodriguez’s punishment at life
imprisonment and a $10,000 fine for each count of aggravated sexual assault of a child
and at twenty years’ confinement and a $10,000 fine for the single count of sexual
assault of a child. The trial court sentenced Rodriguez in accordance with the jury’s
recommendations and ordered the three sentences to run consecutively. In a single
point, Rodriguez challenges only his convictions for aggravated sexual assault of a
child, 1 arguing that the trial court erred by failing to require the State to make an
election between the two counts. Because we hold that the trial court did not err by
failing to require the State to make an election between the two counts and because
we hold that the erroneous unanimity instruction in the jury charge did not cause
Rodriguez egregious harm, we affirm.
1
During his opening statement and in his closing argument, Rodriguez’s
counsel specifically stated that Rodriguez was not contesting the evidence showing
that he was guilty of the single count of sexual assault of a child.
2
II. Brief Background 2
Rodriguez began sexually assaulting his niece, Vicky, 3 when she was in the
second or third grade and lived at her grandparents’ house (Rodriguez’s parents’
house where Rodriguez also lived off and on). After the first incident, Vicky made an
outcry to her grandmother, but “it just went in one ear and out the other.” Rodriguez
continued to sexually assault Vicky “every day.” When Vicky was in junior high, she
told her father that his brother—Rodriguez—came into her room every night and had
sex with her, but even after her father yelled at Rodriguez, the sexual assaults did not
stop. Vicky further testified that her grandmother told her aunt that Rodriguez was
sexually abusing her but that no one reported the abuse to the police. Rodriguez
continued to sexually assault Vicky—with the exception of when she was in fourth
grade through sixth grade and lived with her parents—until she was fifteen years old
and became pregnant with his daughter. Vicky made her outcry when she was
twenty-one years old. At the time of the trial, Vicky was twenty-four years old, and
her daughter was eight years old.
2
Because Rodriguez has not raised a sufficiency challenge, we set forth only a
brief factual background here and will set forth additional facts as necessary and
relevant for disposition of this appeal within our analyses. See Tex. R. App. P. 47.1.
3
We use a pseudonym to refer to the complainant. See Tex. R. App. P.
9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
3
III. Election Between Counts Was Not Required
In his sole point, Rodriguez argues that the trial court erred by failing to require
the State to make an election between counts 1 and 2, thereby allowing both counts to
be submitted to the jury.
When the State wishes to charge multiple offenses in a single indictment, it is
required by statute to set out each separate offense in a separate “count.” See Tex.
Code Crim. Proc. Ann. art. 21.24(a). In such cases, the State is not required to elect
between counts. See Owens v. State, 96 S.W.3d 668, 672 (Tex. App.—Austin 2003, no
pet.); see also Halliday v. State, No. 05-17-00233-CR, 2018 WL 2749644, at *2 (Tex.
App.—Dallas May 31, 2018, no pet.) (mem. op., not designated for publication).
Instead, each count may be submitted to the jury because those who commit multiple
discrete assaults against the same victim are liable for separate prosecution and
punishment for every instance of such criminal misconduct. See Owens, 96 S.W.3d at
672; see also Halliday, 2018 WL 2749644, at *2.
Conversely, when one particular act of sexual assault is alleged in the
indictment and more than one incident of that same act of sexual assault is shown by
the evidence, “the State must elect the act upon which it would rely for conviction.”
See Owings v. State, 541 S.W.3d 144, 150 (Tex. Crim. App. 2017). Once the State rests
its case in chief, upon a timely request by the defense, the trial court must order the
State to make its election. Id.
4
The indictment in this case clearly enumerated two separate counts of
aggravated sexual assault of a child; the only difference in the two counts was the date
of the alleged offenses.4 During the charge conference, Rodriguez objected to the
trial court’s proposed charge that submitted two separate counts of aggravated sexual
assault of a child to the jury, arguing that “there was only one detailed explanation of
one incident and [that] the rest were just general explanations.” Rodriguez further
argued that because no particular dates or times had been proven, “I think that . . .
creates a double jeopardy problem[,] . . . and I think the State should be on election
4
Counts 1 and 2 from the indictment are as follows:
[COUNT 1]
The Grand Jury of Wichita County, State of Texas, duly organized at the
JULY term, A.D. 2017, of the 30th District Court of said county, in said
court at said term, does present that JUAN ANTONIO RODRIGUEZ,
hereinafter called defendant, on or about the 01st day of October, A.D.
2004, in said county and state did then and there intentionally or
knowingly cause the penetration of the sexual organ of Pseudonym 14-
110192, a child who was then and there younger than 14 years of age, by
defendant’s sexual organ.
COUNT 2
The Grand Jury of Wichita County, State of Texas, duly organized
at the JULY term, A.D. 2017, of the 30th District Court of said county,
in said court at said term, does present that JUAN ANTONIO
RODRIGUEZ, hereinafter called defendant, on or about the 01st day of
April, A.D. 2005, in said county and state did then and there
intentionally or knowingly cause the penetration of the sexual organ of
Pseudonym 14-110192, a child who was then and there younger than 14
years of age, by defendant’s sexual organ.
5
and have to elect to which count they can proceed on.” [Emphasis added.] The State
responded,
Your Honor, the victim testified that her uncle had sex with her at least
20 times and that was sexual intercourse, his sexual organ penetrated her
sexual organ. And she described that as happening almost every single
day. And so the State is entitled to allege separate offenses for each time
he had sexual intercourse with her, each one is a separate one.
The trial court overruled Rodriguez’s objection.
Here, Rodriguez did not request the State to elect a particular act for each
count of aggravated sexual assault of a child but instead requested the State to elect
between the two counts. Because the indictment pleaded two separate counts, the
State was not required to elect between counts. See Owens, 96 S.W.3d at 673 (holding
that trial court did not err by authorizing appellant’s conviction on two discrete
offenses of aggravated sexual assault); see also Halliday, 2018 WL 2749644, at *2
(“[T]he State is not required to elect between counts[,] and each count may be
submitted to the jury). See generally Tex. Code Crim. Proc. Ann. art. 21.24(a).
Rodriguez’s appellate complaint is thus without merit.5
5
In his brief, Rodriguez relies on three cases to support his argument. Those
three cases are inapposite because they do not address an election between counts,
which is the objection he made in the trial court and the argument he makes on
appeal. See O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988) (stating
general rule that where one act of intercourse is alleged in the indictment and more
than one act of intercourse is shown by the evidence in a sexual assault trial, the State
must elect the act upon which it would rely for conviction); Farr v. State, 140 S.W.3d
895, 898–900 (Tex. App.—Houston [14th Dist.] 2004) (same), aff’d sub nom. Phillips v.
State, 193 S.W.3d 904 (Tex. Crim. App. 2006); Phillips v. State, 130 S.W.3d 343, 349
6
IV. Erroneous Unanimity Instruction Did Not Cause Egregious Harm
Although not raised by Rodriguez, the State notes in its brief that the jury
charge contains an insufficient unanimity instruction. We proceed to analyze this
issue because we must review all alleged jury-charge error, even if—as here—it is not
preserved because the trial court has an absolute sua sponte duty to prepare a jury
charge that accurately sets forth the law. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012); see also Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006)
(permitting appellate court to review unassigned fundamental jury-charge error). As
explained below in more detail, the charge contained only a general unanimity
instruction that failed to alert the jurors that they needed to be unanimous about
which incident formed the basis of each of the counts of aggravated sexual assault of
a child. Based on the general unanimity instruction and the evidence showing that
there were multiple instances of aggravated sexual assault occurring on unspecified
dates, there was the possibility of nonunanimous verdicts. However, because the
evidence reflected that there was a first incident (which Vicky testified about in detail)
and almost-daily incidents thereafter (for which Vicky did not provide much detail or
distinguish between), there is “no remotely significant risk” of a nonunanimous
verdict. See Owings, 541 S.W.3d at 153. Moreover, after analyzing the Almanza factors,
(Tex. App.—Houston [14th Dist.] 2004) (op. on reh’g) (same), aff’d, 193 S.W.3d 904
(Tex. Crim. App. 2006).
7
we conclude that the charge error did not cause Rodriguez egregious harm. See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
A. Standard of Review
In reviewing a jury charge, we first determine whether error occurred; if not,
our analysis ends. Kirsch, 357 S.W.3d at 649.
Unpreserved charge error warrants reversal only when the error resulted in
egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza,
686 S.W.2d at 171; see Tex. Code Crim. Proc. Ann. art. 36.19. The appropriate inquiry
for egregious harm is fact- and case-specific. Gelinas v. State, 398 S.W.3d 703, 710
(Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious-harm determination, we must consider “the actual
degree of harm . . . in light of the entire jury charge[;] the state of the evidence,
including the contested issues and weight of probative evidence[;] the argument of
counsel[;] and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–10
(applying Almanza). Errors that result in egregious harm are those “that affect the
very basis of the case, deprive the defendant of a valuable right, vitally affect the
defensive theory, or make a case for conviction clearly and significantly more
persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The
purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza, 686 S.W.2d at 174.
8
B. Law on Unanimity Instructions
The trial court has a responsibility to instruct the jury on the law applicable to
the case and to submit a charge that does not allow for the possibility of a
nonunanimous verdict even when the State is not required to make an election. See
Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011). Nonunanimity may occur
when the State charges a defendant with one offense and presents evidence that he
committed the charged offense on multiple but separate occasions. Id. at 772. To
ensure unanimity in this context, the jury must be instructed that it must unanimously
agree on one incident of criminal conduct (or unit of prosecution), based on the
evidence, that meets all of the essential elements of the single charged offense beyond
a reasonable doubt. Id.
C. The Jury Charge
The jury charge sets forth the offenses at issue as follows:
Count 1
Now bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt, that the defendant, JUAN
ANTONIO RODRIGUEZ, on or about the 1st day of October, 2004,
in the County of Wichita and State of Texas, did then and there
intentionally or knowingly cause the penetration of the sexual organ of
Pseudonym 14-110192, a child who was then and there younger than 14
years of age, by defendant’s sexual organ, then you will find the
defendant guilty of the offense of Aggravated Sexual Assault of a Child
(Count 1) as alleged in the indictment.
But if you do not so believe, or if you have a reasonable doubt
thereof, then you will acquit the defendant and say by your verdict “Not
Guilty.”
9
....
Count 2
Now bearing in mind the foregoing instructions, if you believe
from the evidence beyond a reasonable doubt, that the defendant, JUAN
ANTONIO RODRIGUEZ, on or about the 1st day of April, 2005, in
the County of Wichita and State of Texas, did then and there,
intentionally or knowingly cause the penetration of the sexual organ of
Pseudonym 14-110192, a child who was then and there younger than 14
years of age, by defendant’s sexual organ, then you will find the
defendant guilty of the offense of Aggravated Sexual Assault of a Child
(Count 2) as alleged in the indictment.
But if you do not so believe, or if you have a reasonable doubt
thereof, then you will acquit the defendant and say by your verdict “Not
Guilty.”
The jury charge here contained only a generic unanimity instruction: “Your
verdict must be unanimous[.]” The jury charge on guilt-innocence did not contain an
extraneous-offense instruction.
D. Error Analysis
The record demonstrates that the first incident occurred in the laundry room at
Vicky’s grandparents’ house when she was seven or eight years old and in the second
or third grade.6 Vicky testified that she was sleeping in her room at her grandparents’
house when she heard the door open and felt Rodriguez’s hands touching her.
Rodriguez told her to be quiet and to follow him. Vicky followed Rodriguez to the
laundry room where he turned on the light, pulled out a white sheet, laid it on the
ground, and told her to “lay there.” Vicky complied. Rodriguez removed her panties,
6
No date or time of year was specified as to this incident.
10
and he pulled down his basketball shorts and underwear. Rodriguez warned Vicky
that “this is going to hurt, just don’t scream” and put his sexual organ inside her
sexual organ. Afterwards, Rodriguez helped Vicky to her feet, and she turned around
to grab her panties and noticed blood. Vicky testified that she went to her bedroom
and cried because she thought she was dying. The next morning, Vicky made an
outcry to her grandmother, but “it just went in one ear and out the other.”
Vicky said that after the first incident, Rodriguez continued to sexually assault
her every day or that “[i]t felt like every day. And it probably was every day” with the
exception of when she was in the fourth through sixth grades and lived with her
parents. She testified that Rodriguez put his sexual organ inside her sexual organ
more than twenty times and that he sometimes sexually assaulted her twice in one
night. She said that the incidents took place either in the laundry room or in her
bedroom. Vicky testified that Rodriguez continued to sexually assault her when she
was in junior high and that it progressed to Rodriguez performing oral sex on her and
Rodriguez having her perform oral sex on him. Vicky said that twice Rodriguez
attempted anal intercourse on her against her will.
During its rebuttal, the State focused its argument on Counts 1 and 2 and
emphasized the first incident by summarizing Vicky’s testimony set forth above and
stating, “[I]t’s a vivid memory because it was the first time. It was painful. She cried.
And so there’s blood, pain[,] and tears.” The State did not, however, explain to the
11
jury that Count 1 corresponded to the first time that Rodriguez sexually assaulted
Vicky, nor did the State point the jury to a specific incident to support Count 2.
Based on the evidence presented of multiple instances of aggravated sexual
assault of a child occurring on different, unspecified dates, the omission of specific
unanimity instructions for Count 1 and Count 2 allowed for the possibility of
nonunanimous verdicts. See Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App.
2015) (noting that even several generic requirements of unanimity cannot ensure a
unanimous verdict when there is evidence of multiple incidents). Accordingly, we
hold that the omission of unanimity instructions for both counts was erroneous7 and
proceed to a harm analysis. See id.
E. Harm Analysis
1. Entirety of the Charge
As stated above, the jury charge permitted nonunanimous verdicts based on the
evidence presented in the case regarding multiple instances of sexual abuse. Nothing
in the charge mitigated this conclusion. Accordingly, we conclude that this factor
weighs in favor of finding egregious harm. See id. (concluding that entirety of charge
weighed in favor of egregious harm because “charge did not apprise the jury of the
proper unanimity requirement”); Ashton v. State, 526 S.W.3d 490, 501 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d) (same).
7
The State concedes that the general unanimity instruction given at the end of
the jury charge was not sufficient to ensure unanimity for a particular criminal act
encompassed within Count 2 of the indictment.
12
2. The State of the Evidence
As summarized above, Vicky testified about the many times she was sexually
assaulted by Rodriguez, providing detailed testimony about the first incident and
consolidated testimony about the continuous, recurring sexual abuse. She also
testified that she told her grandmother and her father about the abuse, that her
grandmother told her aunt, that her family members did not report the abuse to the
police, and that the abuse continued until she became pregnant at fifteen years old
with Rodriguez’s daughter—a single act of sexual abuse that he conceded at trial.
Vicky testified that she wanted to kill herself because nobody cared but that the
thought of her daughter is what stopped her.
The Chief Program Director of Clinical Services from Dallas Children’s
Advocacy Center (DCAC), who had not interviewed Vicky but testified generally
about child victims, explained that it is common for child victims not to outcry “for
some time.” She further explained that it is not uncommon for child victims to
vividly remember the first instance of sexual abuse and to have less specific memories
of later instances if the abuse continued for a period of time. She testified that forty
percent of the children that have come to DCAC have had suicidal thoughts, trying to
escape the abuse.
The police officer who investigated Vicky’s outcry testified that Vicky reported
being sexually assaulted by Rodriguez from the time that she was in the second or
third grade until she was fifteen years old, with the exception of when she was in
13
fourth grade through sixth grade. The police officer said that she attempted to speak
with Vicky’s aunt, who would not talk if a recorder was on; Vicky’s aunt was angry,
defended Rodriguez, and spoke badly of Vicky’s character. When the police officer
spoke with Vicky’s father, he also attacked Vicky’s character and was more concerned
about Rodriguez having to go to jail.
Vicky’s father admitted that Vicky had told him when she was a teenager that
Rodriguez came in her room at night, but Vicky’s father said that she did not tell him
that she had been raped. 8 The State asked Vicky’s father why he had screamed at
Rodriguez and had wanted to hurt him if he thought that Rodriguez was merely going
in Vicky’s room. Vicky’s father claimed that he did not know what Rodriguez was
doing to her and just thought it was not right for Rodriguez to be in her room.
Vicky’s father testified that when he confronted Rodriguez about going into her
room, Rodriguez put his head down and started crying.
Vicky’s father said that he did not know that Vicky had told her grandmother
about Rodriguez sexually abusing her when she was under fourteen years old until
two years after Vicky gave birth to her daughter. Vicky’s father testified that he did
not report Rodriguez to the police at that time because his sister told him that she had
a video showing that Vicky was at fault, despite the fact that children under fourteen
years of age cannot legally consent to sex. See May v. State, 919 S.W.2d 422, 424 (Tex.
8
Vicky’s father testified that his memory was hazy due to using illegal drugs.
14
Crim. App. 1996) (“[I]t is true that a child under fourteen cannot legally consent to
sex[.]”).
Vicky’s father said that his sister had recently sent him text messages telling him
that he had better make sure and testify to help Rodriguez. The State admitted into
evidence text messages showing that after the first day of trial, Vicky’s father had
received text messages from his sister stating that Vicky had lied on the stand because
Rodriguez “never had sex with her when she was little . . . it wasn’t till she was around
13 or so . . . so I’m going up there to see if I can testify against her on what she lied
about.”
When questioned about the text messages, Vicky’s aunt testified that she had
gained her information about Vicky’s trial testimony from the newspaper but admitted
that it did not mention the information in her text. Vicky’s aunt stated that her text
should have said that Vicky was fifteen years old when Rodriguez had sex with her.
Vicky’s aunt testified that when Vicky was fifteen years old, she told her that she was
pregnant and that Rodriguez might be the father. Vicky’s aunt said that when she
questioned Rodriguez regarding how Vicky was pregnant with his child, Rodriguez
admitted having sex with Vicky. Vicky’s aunt testified that she never knew that
Rodriguez was having sex with Vicky when she was under the age of fourteen; Vicky’s
aunt contended that she knew only that Rodriguez had touched Vicky when she was
younger. Vicky’s aunt testified that her mother (Vicky’s grandmother) never told her
that Rodriguez had sexually abused Vicky when she was seven or eight years old.
15
With regard to the two charges of aggravated sexual assault of a child,
Rodriguez’s defensive theory at trial was that “to believe [Vicky] is [to] believe that
everybody in her family failed her” because they did not report the abuse after she
told them about it. Rodriguez further argued that because family members claimed to
have no knowledge of Rodriguez’s sexually assaulting Vicky prior to when she was
fifteen years old, he was therefore not guilty of aggravated sexual assault of a child.
Although Vicky’s family members claimed not to know that Rodriguez had
sexually assaulted Vicky on numerous occasions when she was under fourteen years
of age, their alleged lack of knowledge of those incidents did not impeach Vicky’s
testimony that Rodriguez had sexually assaulted her every day during the time that she
lived at her grandparents’ house. Other than the first incident, all of the other
incidents of sexual abuse were presented with equal specificity—i.e., they occurred in
either the laundry room or Vicky’s bedroom—and none of those incidents were
distinguished in any manner from one another.
Because the jury charge included two counts of aggravated sexual assault of a
child, the jury was free to conclude that one count pertained to the first incident
(which was described in detail and which Vicky reported to her grandmother the
morning after) and that the second count pertained to the consolidated account of the
sexual assaults that occurred every day after the first incident. In deciding to convict
Rodriguez on all three counts, the jury necessarily found Vicky credible in testifying
about the sexual abuse that occurred when she was under fourteen years of age, as
16
well as when she was fifteen; the jury was not persuaded that Rodriguez had sexually
assaulted Vicky only when she was fifteen years old. Cf. Arrington, 451 S.W.3d at 844
(“The jury in this case, after hearing all the evidence clearly credited [the
complainant’s] story and did not believe appellant’s categorical denial of all
accusations.”). There was no danger here that some jurors would find that Rodriguez
sexually assaulted Vicky on or about the two dates alleged in the charge, while others
would have found that he committed that same offense on two other unspecified
dates. See Owings, 541 S.W.3d at 152 (“[T]here was no danger here that some jurors
might have believed that one incident occurred and another or others did not.”);
Owens v. State, Nos. 01-16-00826-CR, 01-16-00827-CR, 2018 WL 4128029, at *6 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op., not designated for
publication). It is thus highly likely that the jury’s verdicts were, in fact, unanimous.
See Cosio, 353 S.W.3d at 778 (“On this record, it is logical to suppose that the jury
unanimously agreed that Cosio committed all of the separate instances of criminal
conduct during each of the four incidents.”).
After reviewing the evidence from Rodriguez’s trial, we conclude that this
factor does not weigh in favor of finding egregious harm.
3. The Parties’ Arguments
Neither the State nor Rodriguez told the jurors that they must be unanimous
about which criminal episode constituted each offense, nor were they told that they
17
need not be unanimous. This factor therefore weighs neither for nor against finding
egregious harm. See Arrington, 451 S.W.3d at 844.
4. Other Relevant Information
As to the final factor, we review the record for any other relevant information
requiring consideration. During voir dire, the trial court stated that the jury’s verdict
in a criminal trial must be unanimous—that all members must agree—but did not
explain the specific unanimity required for each offense as to the particular act
forming the basis of the offense. The State mentioned that it must prove the date of
the offense and that it could be any date before the date the indictment was returned,
which is a true statement of law. Defense counsel stated that “there may be evidence
that goes to all three counts, each count you have to make an individual verdict for
that count.” Defense counsel’s statements are true; the jury could consider evidence,
such as testimony regarding Vicky’s age and the county of offense, for each of the
three offenses. Neither the State’s nor defense counsel’s statements during voir dire
clarified or exacerbated the charge issue.
Other relevant evidence that we may consider is whether the jury rejected one
of multiple counts or sent requests for clarification during deliberations. See Smith v.
State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). The
jury did not reject any of the counts that were submitted in the charge. Moreover, the
18
jury’s sole note did not show that the jury sought any clarification regarding
unanimity.9
Thus, the final factor does not weigh in favor of or against finding egregious
harm. See id.
5. No Showing of Egregious Harm
Only one of the four factors—the entirety of the charge—weighs in favor of a
finding of egregious harm. In light of our analysis of these four factors and after
reviewing the appellate record, we cannot conclude that the charge error affected the
very basis of the case, deprived Rodriguez of a valuable right, vitally affected the
defensive theory, or made a case for conviction clearly and significantly more
persuasive. Accordingly, we hold that Rodriguez was not egregiously harmed by the
erroneous charge. See Arrington, 451 S.W.3d at 839–40 (holding appellant was not
egregiously harmed by charge that omitted unanimity instruction when entirety of
charge was the only factor weighing in favor of egregious harm); Cosio, 353 S.W.3d at
777–78 (same); Ashton, 526 S.W.3d at 503 (same); see also French v. State, No. PD-0038-
18, 2018 WL 6626501, at *8 (Tex. Crim. App. Dec. 19, 2018) (concluding, after
considering charge error in light of the Almanza factors, that “the risk that a rational
juror would have convicted Appellant on the basis that he contacted and/or
9
The record includes one jury note asking to see a copy of Vicky’s testimony.
The trial court responded, “You have to state there is a disagreement and what the
disagreement is and to whose testimony.” No other jury notes are referenced in the
record.
19
penetrated J.F.’s sexual organ with his own—and not also on the basis that he
contacted and/or penetrated her anus—is not ‘remotely significant,’ and is, in fact, so
‘highly unlikely’ as to be ‘almost infinitesimal’”); Owens, 2018 WL 4128029, at *6
(concluding that, to the extent a nonunanimous verdict was a theoretical possibility
due to evidence that appellant performed oral sex on the complainant on multiple but
separate occasions that were not distinguished in any manner from one another, there
was no egregious harm).
V. Conclusion
Having determined that the State was not required to elect between two
separate counts of aggravated sexual assault of a child and that the erroneous
omission of unanimity instructions on both counts did not cause Rodriguez egregious
harm, we overrule his sole point and affirm the trial court’s judgments on each of his
three convictions.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 31, 2019
20