Donald Nolan Lehman v. the State of Texas

Affirmed and Opinion Filed June 15, 2022.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01367-CR

DONALD NOLAN LEHMAN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1876726-Y

MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
Appellant Donald Nolan Lehman appeals his conviction on one count of

aggravated sexual assault of a child younger than fourteen years of age. In two

appellate issues, Lehman contends the conviction should be reversed and a judgment

of acquittal rendered because the evidence was insufficient to support the conviction

and charge error caused him egregious harm. Alternatively, he seeks reversal and

remand for a new trial. We overrule his appellate issues and affirm the judgment.

PROCEDURAL HISTORY

The grand jury indicted Lehman on a charge of aggravated sexual assault of a

child under the age of fourteen. See TEX. PENAL CODE § 22.021(a)(2)(B). The
indictment alleged that on or about July 4, 2017, Lehman intentionally and

knowingly caused the contact of L.D.’s female sexual organ by his sexual organ, and

L.D.1 was younger than fourteen at the time of the offense. Lehman pleaded not

guilty, and the case proceeded to trial. A jury found Lehman guilty of the charged

offense and sentenced him to twenty-five years’ imprisonment. Lehman filed a

motion for new trial, which was overruled by operation of law. This appeal followed.

Because both appellate issues pertain to Lehman’s conviction for aggravated sexual

assault of a child, we limit our discussion of the facts and the evidence accordingly.

BACKGROUND

L.D. was born August 26, 2005. In July 2018, when L.D. was twelve years

old, she attended a church camp near Austin, Texas,. Molly Wilson, a youth minister

at Lake Pointe Church in Rockwall, Texas, was serving as a minister at the camp.

L.D. approached Wilson after a breakout session in which the ministers and

counselors educated the female campers about sexual abuse. Wilson testified that

L.D. seemed “very upset, almost terrified.” According to Wilson, L.D. told her that

L.D. and her family “were threatened if she were to say anything about what

happened.” Wilson testified that she believed L.D. was crying and felt threatened

“[b]ecause someone had sexually abused her, potentially raped her, and she was

1
To protect the identity of the minor complainant and any child witnesses, we use initials or pronouns
to identify L.D., each child involved in these proceedings, and defense witnesses other than Lehman. See
TEX. R. APP. P. 9.8(b)(2).

–2–
terrified to tell anyone because she thought harm would come to her, harm would

come to family if she told anyone.” As a mandatory reporter, Wilson believed that

L.D. disclosed enough information to require Wilson to make a report with the State.

She filed a report on-line with the Texas Department of Family and Protective

Services.

On July 17, 2018, Jessica Parada2, a forensic interviewer with the Dallas

Children’s Advocacy Center (DCAC), interviewed L.D. During that interview, L.D.

reported two incidents of abuse by Lehman and told Parada that Lehman was her

father’s friend. At trial, L.D.’s mother testified that Lehman had been “a close

friend” of her and her husband, and their children considered Lehman “as their

uncle.”

L.D. told Parada the first incident happened when she was ten years old and

the second happened when she was twelve years old. When the first incident

occurred, Lehman was living with L.D. and her family. L.D. told Parada that Lehman

took L.D. into his room, showed L.D. “his private part,” and pulled down her pants.

L.D. explained that by “private part” she meant “the part where a man pees from”

and she described what it looked like. Parada concluded that L.D. “was talking about

the penis.”

2
After an outcry hearing, the trial court designated Parada as the outcry witness. Lehman does not
appeal that ruling.
–3–
 L.D. disclosed that Lehman took his shirt off, put her on the bed, pulled down

her shorts, and then was “putting it in me,” meaning his penis. L.D explained that

“in her” meant that his private part “was going in the middle part… [that she] used

to pee.” Parada understood L.D. to mean in her vagina. L.D. described how it felt

when the penis was in her vagina. She described it as “nasty weird” and “she said

her middle part could feel like something was inside.” According to Parada, L.D.

said the first incident occurred when she was ten years old, which Parada believed

was “probably around 2016.” L.D.’s mother confirmed in her testimony that Lehman

and his son, C.L., lived with L.D. and her family in either 2015 or 2016. L.D. turned

ten on August 26, 2015.

L.D.’s second outcry concerned an incident that occurred during a visit to

Lehman’s home with her sisters. During that visit, Lehman asked L.D. if she wanted

to go to Walmart with him, and she said yes. L.D.’s sister asked to go too, but

Lehman said no. L.D. reported that Lehman drove her to Walmart, they bought some

things, and then Lehman drove her to the mechanic’s shop where he worked.

Lehman put away the dogs that live at the shop “so they didn’t bite her,” and then

he got a blanket and put it on the tailgate of a truck in the shop. L.D. told Parada that

Lehman then “put me on top of the blanket and then he did the same thing like when

I was 10.”

According to Parada, L.D. talked about it hurting when Lehman put his penis

in her vagina. L.D. also said that Lehman “took his hand and opened her vagina with

–4–
his fingers” and also he was “putting his tongue on her vagina.” L.D. used the term

“middle part” throughout the interview rather than vagina. Parada again clarified

with L.D. what she meant by “middle part,” and Parada understood L.D. to mean her

vagina. L.D. told Parada that she “could see a cigarette in his mouth, and he burned

a piece of my hair, and then he put out the cigarette,” and she “could smell my hair

burning and it stinked.” L.D. also talked about a blanket that she could see,

describing it as “hard” and the kind you use for moving. L.D. provided additional

sensory details, including that she was on her back, Lehman’s body was over her,

his hands were on the truck, and “she talked about their bodies moving.” L.D.

reported that Lehman stopped when he had to go to the bathroom, and she saw him

urinate between two trucks. L.D. told Parada that after both incidents, Lehman told

L.D. not to tell anyone. L.D. also said she was twelve years old when this incident

occurred. Parada estimated that the second incident occurred in 2018. However, L.D.

turned twelve on August 26, 2017, and both Lehman and his fiancée, B.B., testified

that Lehman and L.D. went to Walmart together in August 2017 when L.D. and her

sisters were visiting Lehman’s home.

Parada testified that L.D. was crying during the interview and said “I just want

to forget it and never see him again.” Parada also testified that, although L.D. has

developmental delays, Parada felt L.D. “understood her questions correctly.” She

also saw no red flags during the interview to alert her that L.D. might not have been

truthful.

–5–
 In her testimony at trial, L.D. told the jury about five incidents of abuse by

Lehman. She testified that Lehman touched her “boob” under her clothes on three

different occasions. She also testified that when she was twelve years old, she and

her sisters were swimming at Lehman’s house and Lehman came up behind her in

the pool and touched her “private part” under her clothes with his hand. L.D. had not

disclosed those incidents to Parada during the forensic interview.

The fifth incident, however, described the incident at the mechanic’s shop that

comprised L.D.’s second outcry statement. Specifically, L.D. testified that she went

with Lehman to Walmart and then to his shop so they could let the dogs out, go to

the bathroom, and feed the dogs. She was excited to go with him because she loves

animals. L.D. told the jury that, after she saw the animals, Lehman picked her up,

sat her on top of the tailgate of a truck, pulled her pants down and her underwear,

“and then he took his private part and put it in mine.” L.D. described his “private

part” as “what boys use to go pee.” L.D. said that when Lehman put his private part

inside her private part “It hurt. Like, it hurted me really bad.” She also testified that

she saw oil on the truck and “could smell oil, cigarettes, and him.” She could smell

cigarettes because “he just put out his cigarette” and did that “next to my hair and it

caught my hair on fire.” She told the jury “[m]y hair was just melting way.” L.D.

testified that when she said “Stop,” Lehman said “It’s okay, just let me do this.”

According to L.D., Lehman later stopped because he had to go to the bathroom.

Lehman also told L.D. not to tell anyone in her family “or he will hurt my family.”

–6–
L.D. first told the jury that she was twelve when this occurred, but then said she was

ten years old when it happened.

L.D.’s mother testified that L.D. “hates” that she smokes and does not like the

smell of cigarettes “because of the simple fact Don smokes cigarettes and Don put

his hands on her and everything.” She also testified that L.D. does not like their dogs

barking “because she remembers in the background of when she was being touched

[at Lehman’s shop] that there was a dog barking.”

According to L.D.’s therapist, Amy Bell3, L.D. suffers from post-traumatic

stress disorder (PTSD) as a result of the abuse. Bell testified that she began treating

L.D. in September 2018, and was still treating L.D. at the time of trial. According to

Bell, at the beginning of L.D.’s treatment, L.D. “was always super engaged in

therapy, willing to talk about things,” as long as they were not discussing topics

related to sexual abuse. Bell told the jury that L.D. had become more comfortable

sharing additional information about the abuse during their first year of therapy.

Parada and Bell explained that victims of abuse go through a process of disclosure

in which they disclose details about the traumatic event in stages. Suzanne Anderson,

DCAC’s Assistant Clinical Director, further explained that children wait to fully

disclose trauma until they feel that it is safe to tell. Anderson told the jury that full

3
The trial court designated Bell as an expert in child abuse without objection from Lehman.
–7–
disclosure sometimes takes months or even years because children give information

“little by little until they feel safe to tell all of the information.”

Although L.D. was fourteen years old at the time of trial, Bell testified that

L.D. was developmentally closer to that of a ten or eleven year old. Bell also

explained that when children recall traumatic experiences, their concept of time,

distance, and location are affected and the child’s recall is not always in

chronological order. Any developmental delays makes it more difficult to get an

organized and detailed disclosure. According to Bell, L.D. had been unable to give

her time frames, but she “specifically talked about different senses that she had when

the abuse was happening” such as what she was seeing, hearing, or smelling.

Lehman, his fiancée, his son, and his god daughter testified for the defense.

Lehman and his fiancée, B.B., testified that she, Lehman, and their son, C.L., lived

with L.D. and her family for about three months in 2012. Although B.B. recalled

that Lehman and L.D. went to Walmart together in August 2017, B.B. testified that

they were gone for only fifteen or twenty minutes. On cross-examination, she

conceded that there were several times when Lehman and L.D. were “by themselves

together.” Lehman’s twenty-one year old god daughter, H.G., testified that she had

known Lehman since she was four and he “never did anything inappropriate” with

her and was always “a real gentleman.” H.G. testified that she had not seen L.D.

since “she was a little kid,” when L.D. was “around ten.” But when L.D. was ten

years old, she saw L.D. “trying to peek on” Lehman when he was using the

–8–
bathroom, taking a shower, or changing clothes. H.G. also said that she saw L.D.

trying to pull Lehman’s pants down in the pool during a pool party at Lehman’s

home to celebrate C.L.’s birthday. B.B. and Lehman, however, did not recall L.D.

pulling Lehman’s pants down at the pool party. B.B. testified that she remembered

L.D. and her sisters swimming at her son’s birthday party on July 22, 2017, but she

did not notice anything unusual going on in the pool. Lehman remembered his

swimming trunks coming off when he “pushed off the side of the pool,” but he did

not remember L.D. trying to pull his pants down in the pool. C.L.4 testified that he

remembered his dad’s pants slipping off in the pool at his birthday party, and he saw

his dad “goose” L.D. when they were getting out of the pool.

At trial, Lehman denied sexually assaulting L.D. “or any other minor” and

testified that he never inappropriately touched L.D. He provided his own account of

the incident at the shop. Lehman recalled L.D. going to Walmart and then the

mechanic’s shop with him once when she was twelve years old. Lehman testified

that this occurred in August 2017 after L.D. and her sisters had spent the night at his

home. Lehman told the jury that he was uncomfortable agreeing to let L.D. go to

Walmart with him because of an incident that occurred previously when he, L.D.,

her father, and B.B. were in the living room talking. According to Lehman, L.D. was

sitting on his left leg “[a]nd when I went to get up and remove her, she had to be

4
C.L. was born in July 2006 and was thirteen years old at the time of trial. C.L. would have been turning
eleven years old at the time of the July 2017 pool party.
–9–
pried off of me, being yelled at by her father and B.B.” So when L.D. asked to go to

Walmart with him, Lehman had L.D. ask B.B. for permission.

Lehman testified that he and L.D. spent just a few minutes in Walmart, then

filled his truck up with gas, bought ice cream and drinks at the gas station, and then

drove to the shop to feed the dogs. Lehman told the jury that this happened in August,

and he told L.D. to stay in his truck because he would be quick at the shop. But

Lehman said L.D. came into the shop anyway and “acted like she wanted to play

chase or tag.” He testified that he gave her a hug and at one point, she said “I love

you,” and then she kissed him on the lips. After that, Lehman said that L.D. went to

the restroom while he fed his second dog outside. Then they left and drove back to

his home.

ANALYSIS

Lehman brings two issues on appeal. First, he maintains the evidence was

legally insufficient to support the conviction. Second, he asserts the trial court erred

by failing to instruct the jury that its verdict had to be unanimous. We will address

each in turn.

I. Sufficiency of the Evidence

In his first issue, Lehman asserts the evidence was legally insufficient to

support the conviction. We review the sufficiency of the evidence supporting

Lehman’s conviction under the Jackson v. Virginia standard. Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (referencing Jackson v. Virginia, 443 U.S.

–10–
307 (1979)). Under this standard, reviewing courts “ ‘consider all the evidence in

the light most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.’ ” Alfaro-Jimenez v. State, 577

S.W.3d 240, 243–44 (Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007)); Jackson, 443 U.S. at 319. “[T]he jury is the ‘sole

judge’ of witnesses’ credibility and the weight to be given testimony.” Hammack v.

State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (quoting Garcia v. State, 367

S.W.3d 683, 687 (Tex. Crim. App. 2012)). As the reviewing court, we defer to the

jury in undertaking their responsibility to “ ‘fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.’ ” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting

Hooper, 214 S.W.3d at 13). The Court balances this deference to the jury with our

duty to ensure the evidence “actually supports a conclusion that the defendant

committed the crime that was charged.” Williams, 235 S.W.3d at 750. We resolve

evidentiary inconsistencies in favor of the verdict. Curry v. State, 30 S.W.3d 394,

406 (Tex. Crim. App. 2000).

To measure the sufficiency of the evidence, we compare the evidence

produced at trial to “the elements of the offense as defined by the hypothetically

correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). The hypothetically correct jury charge “accurately sets out the law, is

–11–
authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.” Id. The law

authorized by the indictment consists of the offense’s statutory elements as modified

by the indictment. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011).

As applicable here, a person commits the charged offense if the person intentionally

or knowingly causes the sexual organ of a child under the age of fourteen to contact

the sexual organ of another person, including the actor. See TEX. PENAL CODE.

§ 22.021(a)(1)(B)(iii), (a)(2)(B). It is undisputed here that L.D. was younger than

fourteen years of age when each of the offenses alleged at trial occurred. That

element is, therefore, not at issue on appeal.

The State presented evidence of two instances of genital-to-genital contact

during which Lehman intentionally or knowingly caused his sexual organ to contact

L.D.’s sexual organ. L.D. testified to only one of the incidents—the sexual assault

on the truck’s tailgate at Lehman’s shop. Parada, however, testified that L.D.

reported two such incidents during her outcry; the incident at the shop as well as a

prior incident at her home. L.D.’s testimony alone was sufficient to support a

conviction. See Santamaria v. State, No. 05-20-00051-CR, 2022 WL 1564704, at *2

(Tex. App.—Dallas May 17, 2022, no pet. h.) (mem. op., not designated for

publication) (first citing TEX. CODE CRIM. PROC. art. 38.07(a), (b)(1); and then citing

Lee v. State, 186 S.W.3d 649, 656 (Tex. App.—Dallas 2006, pet. ref’d)). Parada’s

–12–
outcry-witness testimony was also sufficient to support the conviction. See Martinez

v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (outcry witness may recite

child’s out-of-court statements concerning offense, and testimony is considered

substantive evidence of a crime); see also Edwards v. State, No. 05-12-01398-CR,

2014 WL 2568489, at *7 (Tex. App.—Dallas June 9, 2014, no pet.) (mem. op., not

designated for publication) (first citing Rodriguez v. State, 819 S.W.2d 871, 873

(Tex. Crim. App. 1991); then citing Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—

Dallas 2002, pet. ref’d)).

Lehman acknowledges that a child victim’s testimony can support a verdict

on its own. He urges this Court, however, to find that L.D.’s testimony was

insufficient to support the conviction because she was not a credible witness.

According to Lehman, L.D.’s testimony was not credible because she testified to

four alleged incidents that she did not disclose to Parada, and testified to only one,

not two, alleged incidents of genital-to-genital contact reported to Parada. Lehman

also contends that L.D.’s testimony concerning the incident at Lehman’s shop was

inconsistent at trial and in conflict with her outcry statements. Lehman specifically

takes issue with L.D.’s inconsistent testimony concerning her age at the time of the

incident at Lehman’s shop and her provision of additional details at trial concerning

the incident. Lehman maintains that these perceived insistencies, along with an

alleged lack of corroborating evidence and lack of DNA or medical evidence, show

that L.D. was not telling the truth. Lehman also argues that L.D. lacked credibility

–13–
because she could not remember her sisters’ ages, C.L.’s age, or that Lehman lived

with her family at some point in the past. We disagree.

Lehman cites no authority and provides no argument explaining how his

challenges to L.D.’s credibility affect the sufficiency of the evidence to support his

conviction for aggravated sexual assault of a child younger than fourteen. Indeed,

his arguments are contrary to Texas law. See Santamaria, 2022 WL 1564704, at *2.

L.D.’s expanded trial testimony, any inconsistencies within her testimony, and any

inconsistencies or conflicts between her outcry and her trial testimony are issues of

weight and credibility resolved by the jury. See Foster v. State, No. 05-14-01186-

CR, 2015 WL 8039901, at *2 (Tex. App.—Dallas Dec. 7, 2015, no pet.) (mem. op.,

not designated for publication) (“The significance of E.G.’s silence about the abuse

until she was asked, the lack of eyewitness corroboration, and any inconsistencies in

the testimony, are issues of weight and credibility resolved by the jury.”) (citing

Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)). Indeed, the alleged

inconsistencies in L.D.’s outcry and trial testimony amount to little more than

questions of when the offenses occurred and what additional sensory details she was

able to explain at trial. Bell explained, however, that any confusion on timeframes,

was a symptom of the trauma suffered by L.D., part of the process of sexual abuse

disclosure, and expected due to L.D.’s age and developmental delays. Moreover,

those timeframes were immaterial here because there is no dispute that the offenses

occurred when L.D. was younger than fourteen.

–14–
 Further, corroborating testimony or physical evidence of the aggravated

sexual assault was not required here because L.D. was a minor. See TEX. CODE CRIM.

PROC. art. 38.07(b); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App.

[Panel Op.] 1978); Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). Nonetheless, the record includes evidence corroborating L.D.’s

testimony. L.D. described the assault at the shop to Parada during her forensic

interview. L.D.’s trial testimony concerning the incident at Lehman’s shop,

including the sensory details she provided, was consistent with her outcry statement.

For example, at trial and during her outcry statement, L.D. consistently said that (1)

the assault occurred on the tailgate of a truck parked in the shop where Lehman

worked, (2) Lehman took her to the shop after taking her to Walmart, (3) Lehman

put his penis inside of her vagina while on the tailgate, (4) it hurt her when he put

his penis inside of her vagina, (5) she smelled cigarettes during the assault, (5)

Lehman burned her hair with his cigarette, and (6) Lehman stopped the assault when

he had to go to the bathroom. Lehman, his fiancée, and his son confirmed that

Lehman and L.D. went to Walmart together sometime in the summer of 2017. We

“give wide latitude to testimony given by child victims of sexual abuse.” Gonzalez

Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi–Edinburg 2008, no

pet.). The child complainant’s description of the abuse need not be precise. Id. This

rule “reflect[s] the important public policy that we cannot expect the child victims

of violent crimes to testify with the same clarity and ability as is expected of mature

–15–
and capable adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

Here, the jury could reasonably weigh the evidence and conclude that L.D. told the

truth and was sexually assaulted by Lehman at the shop.

Lehman also contends that we should render a judgment of acquittal because

he and his witnesses were more credible than L.D. The factfinder is tasked with

resolving conflicts in the testimony, weighing the evidence, and drawing reasonable

inferences from basic facts. Tucker v. State, No. 05-19-01515-CR, 2022 WL

1564554, at *5 (Tex. App.—Dallas May 18, 2022, no pet. h.) (mem. op., not

designated for publication) (citing Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim.

App. 2015)). The jury, as the sole judge of the credibility of the witness, is free to

believe or disbelieve all or part of a witness’s testimony. Arnold v. State, No. 05-15-

00482-CR, 2016 WL 2733080, at *1 (Tex. App.—Dallas May 11, 2016, no pet.)

(mem. op., not designated for publication) (citing Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011)). Here, the jury evaluated the weight and credibility of

the witnesses and concluded that Lehman was guilty of aggravated sexual assault of

a child under the age of fourteen beyond a reasonable doubt. Lehman’s arguments

challenging the credibility of L.D.’s testimony are not persuasive.

After reviewing the entire record, based on the cumulative force of all the

evidence when viewed in the light most favorable to the verdict, considering the

reasonable inferences to be drawn from that evidence, and deferring to the jury’s

determination of the credibility of the witnesses and the weight to be given their

–16–
testimony, we conclude that a rational trier of fact could have found the essential

elements of the offense of aggravated sexual assault of a child beyond a reasonable

doubt. We overrule Lehman’s first issue.

II. Charge error
In his second issue, Lehman contends the judgment should be reversed

because the trial court failed to instruct the jury that a unanimous verdict is required

to convict a defendant of aggravated sexual assault of a child. He argues that the

charge violated his constitutional right to a unanimous verdict.

Jury charge error requires reversal when the defendant has properly objected

to the charge, and we find “some harm” to his rights. Ngo v. State, 175 S.W.3d 738,

743–44 (Tex. Crim. App. 2005) (internal citations omitted). Thus, we review alleged

charge error by considering two questions: (1) whether error existed in the charge;

and (2) whether sufficient harm resulted from the error to compel reversal. Id. When

the defendant fails to object or states that he has no objection to the charge, however,

we will not reverse for jury-charge error unless the record shows “egregious harm”

to the defendant. Id. Here, Lehman did not object to the jury charge on this basis at

trial. As such, if we conclude charge error occurred, then we review that error for

egregious harm.

A. Existence of error

In Texas, a criminal defendant “has the right to a unanimous jury verdict on

each element of the charged offense.” French v. State, 563 S.W.3d 228, 233 (Tex.

–17–
Crim. App. 2018); Ngo, 175 S.W.3d at 745 (“Under our state constitution, jury

unanimity is required in felony cases, and, under our state statutes, unanimity is

required in all criminal cases.”). “Texas law requires that a jury reach a unanimous

verdict about the specific crime that the defendant committed.” Cosio v. State, 353

S.W.3d 766, 771 (Tex. Crim. App. 2011). “This means that the jury must ‘agree

upon a single and discrete incident that would constitute the commission of the

offense alleged.’ ” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim.

App. 2007)); see also TEX. CODE CRIM. PROC. art. 26.29(a) (“Not less than twelve

jurors can render and return a verdict in a felony case. It must be concurred in by

each juror and signed by the foreman.”). It is error to authorize a jury to render a

guilty verdict without reaching a unanimous decision as to each element of the

charged offense. Cosio, 353 S.W.3d at 771.

The court of criminal appeals has recognized three variations that may result

in non-unanimous verdicts as to a particular incident of criminal conduct that

comprises the charged offense. Cosio, 353 S.W.at 772 (citing Ngo, 175 S.W.3d at

747–48). Under this precedent, non-unanimity may occur when the State does any

of the following:

1. Presents evidence demonstrating the repetition of the same
criminal conduct, but the actual results of the conduct differed;

2. Charges one offense and presents evidence that the defendant
committed the charged offense on multiple but separate
occasions. Each of the multiple incidents individually establishes
a different offense or unit of prosecution.

–18–
 3. Charges one offense and presents evidence of an offense,
committed at a different time, that violated a different provision
of the same criminal statute.

Cosio, 353 S.W.at 772–73 (internal citations omitted). Non-unanimity may result in

each of these situations when the jury charge fails to properly instruct the jury, based

on the indicted offense(s) and specific evidence in the case, that its verdict must be

unanimous as to a “single and discrete incident that would constitute the commission

of the offense alleged.” Id. For example, in Cosio, the jury charge erroneously

allowed for a non-unanimous verdict when there was evidence of multiple instances

of misconduct supporting each count of aggravated sexual assault and indecency

with a child. See id. at 770, 774. The “standard, perfunctory unanimity instruction,”

did not rectify the error because, although the jury could have believed it had to be

unanimous about the offenses, the jury could have believed it did not have to be

unanimous about the criminal conduct constituting the offenses. See id. at 774.

Here, the trial court’s jury charge included two instructions regarding the

requirement of unanimity. First, the concluding instructions noted the requirement

of unanimity:

After you retire to the jury room, you will select one of your members
as your presiding juror. It is the presiding juror's duty to preside. at
your deliberations, vote with you, and when you have unanimously
agreed upon a verdict, to certify to your verdict by using the
appropriate form attached hereto and signing the same as presiding
juror

(emphasis added). The final instruction before the judge’s signature stated that the

jury should use the jury call button to summon a bailiff “[a]fter you have reached a
–19–
unanimous verdict or if you desire to communicate with the Court . . . .” The charge

then provided a single verdict form with signature lines for only the presiding juror;

there was no option for the jury to record a non-unanimous vote. Although the charge

mentioned unanimity and provided no option for a non-unanimous verdict, the

charge failed to instruct the jury that “the jury must agree upon a single and discrete

incident that would constitute the commission of the offense alleged.” See Cosio,

353 S.W.3d at 771.

The charge was similarly erroneous here. Although there was evidence that

Lehman intentionally or knowingly caused his sexual organ to touch L.D.’s sexual

organ on two occasions, the charge did not require unanimity regarding which of the

sexual contacts the jury believed Lehman committed. We, therefore, conclude the

charge was erroneous. See Sullivan v. State, No. 05-16-01138-CR, 2017 WL

6505861, at *3 (Tex. App.—Dallas Dec. 20, 2017, pet. dism’d) (charge erroneous

where evidence showed multiple instances of sexual contact but charge “did not

require unanimity regarding which of the sexual contact the jury believed appellant

committed.”).

B. Egregious harm
Having found charge error, we next analyze whether that error caused Lehman

to suffer egregious harm. “An egregious harm determination must be based on a

finding of actual rather than theoretical harm.” Cosio, 353 S.W.3d at 777. Actual

harm is established when the erroneous jury instruction affected “the very basis of

–20–
the case,” “deprive[d] the defendant of a valuable right,” or “vitally affect[ed] a

defensive theory.” Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984) (op. on reh’g)).

“An appellate court should examine four factors to determine whether an

appellant was egregiously harmed by an erroneous jury instruction.” Arrington v.

State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Those factors are (1) the entire

jury charge; (2) the state of the evidence, including contested issues and the weight

of the probative evidence; (3) the parties’ arguments; and (4) all other relevant

information in the record. Id. This analysis is fact specific and is done on a “case-

by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013).

Examining those factors, we conclude Lehman was not egregiously harmed.

1. The entire jury charge

We first consider the entire jury charge. The charge’s general references to

unanimity failed to alert the jurors that they needed to unanimously find that Lehman

committed a single, incident of contact between Lehman’s sexual organ and L.D.’s

sexual organ; thus, the general reference to unanimity in the charge did not cure the

error. See Cosio, 353 S.W.3d at 773; Smith v. State, 515 S.W.3d 423, 430 (Tex.

App.—Houston [14th Dist.] 2017, pet. ref’d). Under this record, we conclude the

first factor favors finding egregious harm.

–21–
 2. The state of the evidence

Next, we consider the state of the evidence. Under this prong, we determine

whether the evidence made it more or less likely that the jury charge caused appellant

actual harm. Flores v. State, 513 S.W.3d 146, 159 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d). We must determine “the likelihood that the jury would in fact have

reached a non-unanimous verdict on the facts of [this] particular case.” Jourdan v.

State, 428 S.W.3d 86, 98 (Tex. Crim. App. 2014). Lehman argues that this factor

favors a finding of egregious harm because the evidence included allegations of

different types of contact that could establish the elements of proof to convict for

aggravated sexual assault of a child. Specifically, Lehman references L.D.’s

testimony of five alleged incidents of assault, only one of which alleged genital-to-

genital contact. We disagree.

The application paragraph of the jury charge specifies that to find Lehman

guilty of aggravated sexual assault of a child, the jury was required to find beyond a

reasonable doubt that Lehman intentionally or knowingly caused the contact of

L.D.’s sexual organ by his sexual organ. The State presented evidence of two,

alleged incidents of genital-to-genital contact. L.D. testified to one of those

incidents. Lehman’s own testimony and that of his defense witnesses confirmed

many of the details of L.D.’s testimony and outcry, including that Lehman took L.D.

to Walmart and his shop when she was twelve years old. The defense witnesses’

remaining testimony consisted primarily of character testimony to boost Lehman’s

–22–
credibility and testimony attempting to show that L.D., at the age of ten or twelve,

was the sexual aggressor. Viewing the state of the evidence, we conclude it is

unlikely that the evidence of other alleged offenses resulted in a non-unanimous

verdict as to the offense charged in the indictment.

Further, Lehman did not argue that he was guilty of only one of the

allegations. Instead, his trial strategy left the jury with an all or nothing decision—

either he was guilty or he was not. In finding him guilty the jury necessarily found

L.D. credible and disbelieved Lehman’s defensive evidence. See Arrington, 451

S.W.3d at 842 (“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.”). If the jury had believed Lehman, it would have acquitted him. See

Hinojosa v. State, No. 13-18-00601-CR, 2020 WL 582155, at *4 (Tex. App.—

Corpus Christi–Edinburg Feb. 6, 2020, no pet.) (mem. op., not designated for

publication). We conclude that the state of the evidence made it less likely that the

jury charge caused appellant actual harm. See Cosio, 353 S.W.3d at 778; see also

Sullivan, 2017 WL 6505861, at *4. This factor, therefore, weighs against finding

egregious harm. See Bell v. State, No. 05-13-01616-CR, 2015 WL 1648001, at *4

(Tex. App.—Dallas Apr. 10, 2015, pet. ref’d) (mem. op., not designated for

publication) (citing Arrington, 451 S.W.3d at 842, 844); Ruiz v. State, 272 S.W.3d

819, 826–27 (Tex. App.—Austin 2008, no pet.) (concluding that the state of the

evidence weighed against finding egregious harm when defendant did not argue that

–23–
he was guilty of only some of the allegations of abuse, but instead argued that he

had not committed any of the alleged conduct, leaving the jury with a “all-or-

nothing” decision).

3. The parties’ arguments
Turning to the parties’ arguments, we look to whether any statements made

by the State, appellant, or the trial court during the trial exacerbated or ameliorated

error in the charge. See Arrington, 451 S.W.3d at 844. Here, neither the State nor

defense counsel made any reference to a unanimity requirement. Similarly, neither

side told the jury that they need not be unanimous. As such, this factor does not

weigh for or against an egregious-harm finding. See Smith v. State, 515 S.W.3d 423,

431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing Arrington, 451

S.W.3d at 844; then citing Cosio, 353 S.W.3d at 777).

4. Other relevant information
Finally, we review the record for other relevant information that may require

consideration, such as whether the jury rejected one of multiple counts or sent

requests for clarification during deliberations. See Smith, 515 S.W.3d at 431. The

record reveals no jury notes or any other indication that the jury sought any

clarification regarding unanimity. The final factor, therefore, does not weigh in favor

of or against finding egregious harm. See id.

Lehman argues this factor supports a finding of egregious harm because the

State did not elect which specific incident it relied upon for conviction. This

–24–
argument is unpersuasive. First, we note that Lehman did not request below that the

State make an election, and he does not argue on appeal that the trial court erred by

not ordering the State to make an election. Instead, he contends the lack of an

election confused the jury and supports his contention that he suffered egregious

harm. The Texas Court of Criminal Appeals rejected this argument in the context of

a harmless error analysis in Owings v. State, 541 S.W.3d 144 (Tex. Crim. App.

2017). In Owings, the indictment alleged one offense describing one act of genital-

to-genital contact, but the complainant testified to more than one act of genital-to-

genital contact. Id. at 150. On appeal, the defendant complained that the trial court

committed harmful constitutional error when it failed to require the State to elect

which specific instance of sexual abuse it relied upon for conviction. Id. at 149. The

court of appeals agreed, but the court of criminal appeals did not. Although the

Owings court concluded that “the trial court erred by not requiring the State to elect

the act of genital-to-genital contact upon which it would rely for a conviction,” the

court found the error harmless. Id. at 150. One factor considered by the court in its

harm analysis was whether the error resulted in a non-unanimous verdict. Id. The

court concluded “we are confident that the State's failure to elect did not result in a

non-unanimous verdict.” Id. In its unanimity analysis, the court remarked on the

similarity of the incidents that the State could have relied upon for the conviction

and explained that the risk of a non-unanimous verdict was low:

–25–
 Although, theoretically, it could be said that some jurors could convict
based only on the one incident in Uncle Ty’s room, some jurors could
convict based only on the one incident in Appellant’s father's house,
and some jurors could convict based only on one of the multiple
incidents in Appellant’s bedroom, the likelihood of that is almost
infinitesimal. The prosecution’s case depended on the credibility of
K.M. Appellant’s defense was that the sexual abuse did not occur at all.
There is no basis anywhere in the record for the jury to believe that one
incident occurred and another did not. Either they all did or they all did
not. Thus ... there was no danger here that some jurors might have
believed that one incident occurred and another or others did not.
Id. The same analysis applies here.

The State presented evidence as to each element of the charged offense, the

two incidents were similar, and Lehman denied the allegations of any sexual contact.

Here, as in Owings, the record does not support the conclusion that the jury could

believe that one incident occurred but not the other. Nothing in the record indicates

that the verdict was not unanimous. Accordingly, this factor weighs against a finding

of egregious harm.

5. No egregious harm shown

The only factor that weighs in favor of finding egregious harm is the

consideration of the jury instructions. After considering and weighing all of the

relevant factors, we conclude that the lack of a proper unanimity instruction did not

cause actual harm to appellant See Cosio, 353 S.W.3d at 777–78 (no egregious harm

even though the jury instructions also weighed in favor of finding egregious harm);

see also Bell v. State, No. 05-13-01616-CR, 2015 WL 1648001, at *4–5 (Tex.

–26–
App.—Dallas Apr. 10, 2015, pet. ref’d) (citing Arrington, 451 S.W.3d at 845). We

overrule Lehman’s second issue.

CONCLUSION
Under this record, we conclude the evidence was sufficient to support the

conviction, and Lehman was not egregiously harmed by the trial court’s failure to

instruct the jury as to unanimity. Accordingly, we overrule Lehman’s appellate

issues and affirm the judgment.

/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
191367f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).

–27–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DONALD NOLAN LEHMAN, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1876726-Y.
No. 05-19-01367-CR V. Opinion delivered by Justice Partida-
Kipness. Justices Myers and
THE STATE OF TEXAS, Appellee Pedersen, III participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 15th day of June 2022.

–28–