dissenting.
This case raises grave issues, but because the majority neither addresses them nor abates to allow additional briefing, I am compelled to dissent.
Appellant was charged in a ten-count indictment with indecency with a child, sexual performance by a child, and sexual assault of a child. The jury acquitted him of sexual assault but found him guilty of two counts of sexual performance by a child and either two or four counts of indecency with a child. (The jury also convicted on count six, another count of sexual performance by a child, but both the State and Appellant agree that the conviction should not stand on that count. This dissent therefore does not address that count.)
Nonunanimous Verdicts
The jury charge did not require a unanimous verdict on any of the following counts: counts two, three, seven, and eight. A jury instruction is erroneous when it fails to require juror unanimity on at least one of the disjunctively submitted offenses.1 The right to a unanimous jury verdict in a criminal case is protected by both constitution and statute.2
In Francis v. State,3 the Texas Court of Criminal Appeals noted,
In United States v. Holley, the defendant was charged with two counts of perjury, and each count alleged multiple statements. At trial, the defendant objected to the jury instructions because the court failed to instruct the jury that it must be unanimous as to one particular statement in each count to find the *622defendant guilty. His objection was overruled.
The Fifth Circuit first examined the importance of an unanimous jury verdict. An unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense — it is more than mere agreement on a violation of a statute. The unanimity requirement is undercut when a jury risks convicting the defendant on different acts, instead of agreeing on the same act for a conviction.4
Yet, in the case now before this court, the jury was instructed to convict under counts two and three if they found either beyond a reasonable doubt and to convict under either count seven or eight if they found either beyond a reasonable doubt. The jury charge also provided in pertinent part:
We, the Jury, find the Defendant, DAVID LAWSON FRANKLIN, guilty of the offense of Indecency with a Child as charged in Counts Two or Three of the indictment.
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We, the Jury, find the Defendant, DAVID LAWSON FRANKLIN, guilty of the offense of Indecency with a Child as charged in Counts Seven or Eight of the indictment. [Emphasis added.]
The jury returned a guilty verdict in both instances. It cannot be determined whether the jury found Appellant guilty of indecency as charged in count two or count three or count seven or count eight or all four counts or any combination thereof. Moreover, it cannot be determined how many jurors voted guilty as to each of these four counts. Nevertheless, the judgments in this case recite that Appellant was convicted of counts two and three and seven and eight. No verdict supports these judgments.
Problems With Sexual Performance Statute
The sexual performance statute itself, as drafted by our legislature, also presents grave issues. Although “sexual performance” would appear to require a performance, under the statute, a performance is not required.5 Section 43.25(b) of the Texas Penal Code provides,
A person commits an offense (sexual performance by a child) if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.6
Sexual conduct is defined as
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.7
In addition to count ten, which was waived, counts one and nine, the counts for which he was acquitted, and count six, Appellant was charged with two counts of sexual performance by a child on the “sexual conduct” prong — by authorizing actual or simulated sexual intercourse or genital-to-genital contact between the complainant and himself (count four) and by authorizing actual or simulated sexual intercourse between the complainant and S.T. (count five). Appellant was also charged with four counts of indecency with a child — by *623touching the complainant’s genitals (count two), by causing her genitals to touch him (count three), as a party, by causing D.S. to touch the complainant’s genitals (count seven); and, without a party allegation, by causing the complainant to touch the genitals of D.S. (count eight).
The prosecution of this case equated “authorize” with “cause,” allowing conviction under multiple statutes for the same act. The indecency statute, sexual assault statute, and sexual performance by a child statute all permit a conviction for the act of sexual assault of a child in this case because the act of sexual assault of a child, perforce, requires genital-to-genital contact.8 Whether the actor is charged as a party or individually, he violates more than one statute for the same sexual conduct. The bizarre result in this case is that Appellant was acquitted of “causing” the complainant’s sexual organ to contact his but convicted for “authorizing” actual or simulated sexual intercourse between them and for “authorizing” her sexual organ to contact his.
None of these issues was raised on appeal or in the trial court. Yet, in the interest of justice, they must be addressed. As our sister court in San Antonio has noted,
Texas courts of appeals may entertain unassigned error. See Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990); Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App.1986); Carter v. State, 656 S.W.2d 468, 468-70 (Tex.Crim.App.1983). “A constitutional grant of power of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the laws and facts, as exhibited in the record.’ ” Carter, 656 S.W.2d at 468.... “Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute.” [Id.] at 469. After jurisdiction attaches to a particular cause, a broad scope of review and revision has been asserted by the appellate courts of this state — one that is still recognized, acknowledged and confirmed by the Legislature. Id.; see also Tex.Code Crim. Proc. Ann. art. 44.25 (Vernon Supp. 20[ ]05). In accord with Carter are Lopez v. State, 708 S.W.2d 446, 448-49 (Tex.Crim.App.1986); Barney v. State, 698 S.W.2d 114, 123 (Tex.Crim.App.1985); Hall v. State, 86 S.W.3d 235, 239 (Tex.App.-Austin 2002, pet. ref'd); Frost v. State, 25 S.W.3d 395, 399 (Tex.App.Austin 2000, no pet.); Rodriguez v. State, 939 S.W.2d 211, 219-20 (Tex.App.Austin 1997, no pet.); State v. Lara, 924 S.W.2d 198, 201 n. 3 (Tex.App.-Corpus Christi 1996, no pet.); and Garza v. State, 676 S.W.2d 185, 187 (Tex.App.Corpus Christi 1984, pet. ref'd) (holding that the authority of a court of appeals to consider unassigned error in criminal cases is not open to question).9
I would abate the appeal and ask both the State and Appellant to brief these issues. Alternatively, I would address the unassigned error. Because the majority does not, I must respectfully dissent.
. Ngo v. State, 175 S.W.3d 738, 748-49 (Tex.Crim.App.2005).
. Tex. Const. art. V, § 13; Tex.Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp.2005).
. 36 S.W.3d 121 (Tex.Crim.App.2000).
. Id. at 125 (citations omitted).
. See Tex. Penal Code Ann. § 43.25(b) (Vernon Supp.2005).
. Id. (emphasis added).
. Id. § 43.25(a)(2).
. See id. §§ 21.11, 22.011, 43.25 (Vernon 2003 & Supp.2005).
. Sanchez v. State, 182 S.W.3d 34, 58 (Tex.App.-San Antonio 2005, pet. filed).