Pena, Fernando

PD-0840-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/13/2015 10:56:27 AM
Accepted 8/17/2015 1:42:40 PM
ABEL ACOSTA
NO. PD-0840-15 CLERK

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
Email: bryan@ebs-law.net
State Bar No: 10838200
August 17, 2015
ATTORNEY FOR PETITIONER,
FERNANDO PENA

1
 NAME OF ALL PARTIES TO THE
TRIAL COURT’S FINAL JUDGMENT

Below is a complete list of the identity of the judge and all parties to the trial
court’s judgment, and all trial and appellate counsel:

1. Hon. Edward Lee Self, Trial Court Judge
242nd Judicial District Court
225 Broadway, Suite 3
Plainview, Texas 79072

2. Appellant, FERNANDO PENA
408 W 11th, Apt. A
Plainview, Texas 79072

3. Petitioner’s Trial Counsel
Jesse Mendez
Attorney at Law
2833 74th St.
Lubbock, Texas 79423

4. Petitioner’s Appellate Counsel
James B. Johnston
EASTERWOOD, BOYD & SIMMONS, PC
P.O. Box 273
Hereford, Texas 79045

5. Trial and Appellate Counsel for the State of Texas
Wally Hatch/Chris Brown (trial)
Meredith Bridges/Wally Hatch (appeal)
Hale County District Attorney
225 Broadway, Suite 1
Plainview, Texas 79072

2
 TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL .............................................. 2
TABLE OF CONTENTS ........................................................................................... 3
INDEX OF AUTHORITIES ...................................................................................... 4
STATEMENT REGARDING ORAL ARGUMENT ................................................ 6
STATEMENT OF THE CASE .................................................................................. 6
STATEMENT OF PROCEDURAL HISTORY ........................................................ 7
GROUNDS FOR REVIEW ....................................................................................... 8

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. [Clerk’s Record pp. 49-52]

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 ............................................................................................................. 8
PRAYER FOR RELIEF ........................................................................................... 12
CERTIFICATE OF COMPLIANCE ....................................................................... 13
CERTIFICATE OF SERVICE ................................................................................ 14
APPENDIX .............................................................................................................. 15

3
 INDEX OF AUTHORITIES

CASES

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).................. 6, 8, 9, 10, 11
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011)........................................... 9
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) ........................ 6, 9, 10, 11
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ................................... 6, 9, 10
Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014) ......................... 6, 10
Bell v. State, 2015 Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015) ............... 6, 10

STATUTES

Tex. Code Crim. Proc. Ann. Article 36 ...................................................................... 8
Tex. Code Crim. Proc. Ann. Article 37 ...................................................................... 8
Tex. Code Crim. Proc. Ann. Article 45 ...................................................................... 8
Tex. Const. Art. V, Section 13 ................................................................................... 8

4
 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

5
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

Petitioner was convicted by a jury of indecency with a child. 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.

6
 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). No motion for

rehearing was filed. Petitioner requested an extension of the time to file a petition for

discretionary to August 5, 2015, which request was granted.

7
 GROUNDS FOR REVIEW

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. [Clerk’s Record pp. 49-
52]

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

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

8
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

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

9
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

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

10
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

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

11
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

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

12
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.

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 2473.

/s/ James B. Johnston
James B. Johnston

13
 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 13th 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

14
 APPENDIX

Opinion of the Seventh Court of Appeals

15
 In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-14-00163-CR

FERNANDO PENA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B19587-1401, Honorable Edward Lee Self, Presiding

June 4, 2015

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

A jury convicted appellant Fernando Pena of one count of indecency with a child

by sexual contact1 and assessed punishment at eight years’ confinement in prison and

a $5,000 fine. He was sentenced accordingly. Through three issues, appellant

complains the trial court abused its discretion by failing to include in the jury charge a

unanimity instruction. Appellant further contends he was egregiously harmed by the

error. We find the trial court erred in failing to submit a unanimity instruction, but

1
TEX. PENAL CODE ANN. § 21.11(a)(1) (W EST 2011).
appellant was not egregiously harmed. We will therefore affirm the judgment of the trial

court.

Background

The single-count indictment alleged “on or about the 1st day of June, 2013, . . .

[appellant] did then and there with the intent to arouse or gratify the sexual desire of

said [appellant], intentionally or knowingly engage in sexual contact with B.G. by

touching the genitals of B.G., a child younger than 17 years and not the spouse of

[appellant].”

At trial, nine-year-old B.G. testified that while visiting her uncle’s home, she and

appellant sat on a living-room couch watching television. Appellant touched her “private

spot,” what she called her “nana,” with his hands, under her pajamas and underwear.

It is not disputed that the child’s reference to her “private spot” and “nana” referred to

her genitals. B.G. could not recall the exact date of this occurrence. B.G. told no one at

the time.

B.G. testified of another visit to her uncle’s home. The occasion was a party

celebrating her ninth birthday in July 2013. During the visit, she was seated in a room

by the back door watching television. The room was furnished with brown chairs.

Appellant joined her in the room and touched her “nana” over her clothing with his

hands. B.G. again told no one of the occurrence.

On her own initiative, B.G. later made an audio recording on an electronic video

game device. During her trial testimony she agreed with the prosecutor that in the

2
recording she “sa[id] what Freddie had done.”2 B.G.’s stepfather testified he later

overheard the recording and told her mother what he heard. Police were contacted.

When B.G. was asked at trial if “Freddie” ever made her touch him, she

answered he once “grabbed [her] hands (sic) and put it in his pants” touching his skin.

She could not say if this conduct occurred the “first time” appellant touched her or later

on her birthday.

A worker at the Children’s Advocacy Center (CAC) interviewed B.G. The worker

testified at trial but she was not treated as an outcry witness and did not testify to B.G.’s

statements to her. B.G. did not receive a medical examination and no medical evidence

was presented at trial.

Appellant, approximately 60 years old, is related by marriage to A.A., the wife of

B.G.’s uncle. B.G.’s uncle and his wife, A.A., each testified for the defense, and were

the only defense witnesses. Their testimony indicated they frequently hosted family

gatherings. The uncle was emphatic that at no time were B.G. and appellant alone

while visiting at his house. Without equivocation, he further testified that appellant was

not present at B.G.’s birthday party. When asked on cross-examination why he did not

believe B.G., the uncle explained he had known appellant for sixteen or seventeen

years and “you start to know people, and I honestly believe that he didn’t do it.” Nine

photographs were admitted for the defense through A.A. Seven depicted B.G.’s

birthday party. Appellant did not appear in any of these photographs but A.A. indicated

that not all birthday-party guests appeared in the photographs. Like her husband, A.A.

2
It is not disputed that “Freddie,” as used by B.G. in her trial testimony, meant appellant.

3
was certain appellant was not present at B.G.’s birthday party. On cross-examination,

A.A. testified she was “certain” also that only once were B.G. and appellant both present

at her house. That occasion, she said, was a September football party. A.A. also said

the conduct B.G. alleged “didn’t happen.”

In the jury charge, the application paragraph asked whether appellant engaged in

the conduct alleged “on or about June 1, 2013.” An instruction informed the jury about

the date of the offense:

The State is not bound by the specific date which the offense, if any, is
alleged in the indictment to have been committed. A conviction may be
had upon proof beyond a reasonable doubt that the offense, if any, was
committed at any time prior to the filing of the indictment which is within
the period of limitations. The date of the filing of the indictment in this
case was January 31, 2014. There is no limitation period applicable to the
offense of indecency with a child by sexual contact.

Although B.G. testified appellant unlawfully touched her on two occasions the

jury was not specifically instructed in the charge that it had to agree unanimously on a

single, discrete occurrence constituting the commission of the charged offense.3

Rather, the only mention of unanimity in the charge at the guilt-innocence phase was

the following general instruction:

After you retire to the jury room, you should elect one of your members as
your Presiding Juror. It is the duty of the Presiding Juror to preside at your
deliberations, to vote, and, if you unanimously agree upon a verdict, to
certify your verdict by completing and signing the verdict form.

Neither side objected to the absence of a specific unanimity instruction.

In closing argument, the prosecutor stated:

3
Cosio v. State, 353 S.W.3d 766, 771, 772 (Tex. Crim. App. 2011).

4
 If you believe it happened, and you believe it happened anytime between
January 31, 2014, back through eternity. I guess it would be back through
[B.G.’s] birth day, the actual day she was born. If you believe it happened
during that time period, then on or about June 1, 2013 is sufficient.

Later in the argument he added:

If you believe this 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 [B.G.] was alive, which all the evidence shows.

Still later he argued:

If you believe he did it, and I would submit to you the evidence doesn’t
show anything else, then he has to be found guilty. I mean, in fact, look at
Defendant’s 8. There’s that brown chair by the TV in the side room by the
kitchen that she described for you. Ladies and gentlemen, she’s not
making this up.
Appellant was convicted and sentenced as noted.

Analysis

Appellant argues the trial court abused its discretion by failing to submit a charge

containing a specific unanimity instruction. Because this complaint was not made at

trial, appellant further asserts that he was egregiously harmed by the error.

Necessity of a Specific Unanimity Instruction

The verdict of a jury must be unanimous about the specific crime the defendant

committed. Cosio, 353 S.W.3d at 771 (citing Landrian v. State, 268 S.W.3d 532, 535

(Tex. Crim. App. 2008)). “[T]he jury must ‘agree upon a single and discrete incident that

would constitute the commission of the offense alleged.’” Cosio, 353 S.W.3d at 771

(quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). “[N]on-

unanimity may occur when the State charges one offense and presents evidence that

the defendant committed the charged offense on multiple but separate occasions.”

5
Cosio, 353 S.W.3d at 772. Each occurrence of the charged offense constitutes a

different offense or unit of prosecution. Id. In such cases, it is the trial court’s obligation

to submit a charge instructing the jury “that its verdict must be unanimous as to a single

offense or unit of prosecution among those presented.” Id. at 772, 776 (stating even

when the State is not put to an election, the trial judge must prepare a charge ensuring

a unanimous verdict based on the specific evidence presented). This duty is not

discharged through a “boilerplate” instruction informing the jury that its verdict must be

unanimous because the jury might understand the direction to mean it must be

unanimous about the offense in general and not a specific occurrence constituting the

charged offense. Cosio, 353 S.W.3d at 773-74 (citing Ngo v. State, 175 S.W.3d 738,

745 (Tex. Crim. App. 2005)). Rather, “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. at 776. “Such an instruction should not refer to any

specific evidence in the case and should permit the jury to return a general verdict.” Id.

The State argues a unanimity instruction was not required because appellant

was charged with only one offense, indecency with a child by touching the genitals.

When, it continues, the evidence presents multiple occurrences of the conduct alleged

by the indictment the defendant may require the State to elect which of the charged acts

it will rely on for conviction. But here appellant did not request an election.

Avoiding a unanimity problem when one offense is charged but the evidence

shows the defendant committed the offense on multiple, separate occasions is

ultimately the responsibility of the trial court. See Cosio, 353 S.W.3d at 776

6
(“guaranteeing unanimity is ultimately the responsibility of the trial judge because the

judge must instruct the jury on the law applicable to the case”). A unanimous verdict is

ensured in this situation by instructing the jury in the charge “that its verdict must be

unanimous as to a single offense or unit of prosecution among those presented.” Id. at

772. Conversely, the defendant is not compelled to request an election. See Ngo, 175

S.W.3d at 747-48 (noting that when, among other scenarios, the State presents

evidence of the perpetration of the same criminal act on different occasions the

defendant may, but is not bound to, request the State to elect which specific act it relies

on for conviction); id. at 747 n.34; id. at 748 (“A request for an election, however, is not

a prerequisite for implementing Texas’ constitutional and statutory requirement of jury

unanimity”). Indeed, for a strategic purpose a defendant may choose not to request an

election. See Cosio, 353 S.W.3d at 775 (“A defendant may choose not to elect so that

the State is jeopardy-barred from prosecuting on any of the offenses that were in

evidence”).

Because evidence of more than one instance of a criminal act constituting the

charged offense was presented at trial, an instruction on juror unanimity as to the

specific instance was required. Cosio, 353 S.W.3d at 772. Its omission was an abuse

of discretion.

Egregious Harm Analysis

Appellant did not object to the absence of a unanimity instruction in the charge

but contends as a result his trial was fundamentally unfair. A party must generally make

a proper objection in the trial court to preserve the error for appeal. See TEX. R. APP. P.

7
33.1(a). However, in criminal cases courts may “take notice of a fundamental error

affecting a substantial right, even if the claim of error was not properly preserved.” TEX.

R. EVID. 103(e). Fundamental error includes jury charge errors resulting in egregious

harm. Baker v. State, No. 02-14-00157-CR, 2015 Tex. App. LEXIS 846, at *4-5 (Tex.

App.—Fort Worth Jan. 29, 2015, no pet.) (per curiam, mem. op. on reh’g, not

designated for publication) (citing Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim.

App. 2002)). Reversal then on a claim of egregious harm is possible “only if the error

was fundamental in the sense that it was so egregious and created such harm that the

defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429,

433 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim.

App. 1985) (op. on reh’g).

The harm must be actual rather than theoretical. Villarreal, 453 S.W.3d at 433

(citing Cosio, 353 S.W.3d at 777). “Egregious harm is a ‘high and difficult standard’ to

meet, and such a determination must be ‘borne out by the trial record.’” Villarreal, 453

S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)).

Actual harm is shown if the error in the charge affected ‘“the very basis of the case,’

‘deprive[d] the defendant of a valuable right,’ or ‘vitally affect[ed] a defensive theory.’”

Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio, 353

S.W.3d at 777). Our analysis takes into account 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 trial record as a

whole. Villarreal, 453 S.W.3d at 433.

8
 Entirety of the Jury Charge

In conjunction with selection of the presiding juror, and that person’s duties, the

charge instructed, “if you unanimously agree upon a verdict” the presiding juror must

certify the verdict. But here such general language ensures only that the jurors agreed

appellant engaged in the charged conduct at some point in time. See Ngo, 175 S.W.3d

at 745 (commenting, as to substantively identical “boilerplate” instruction, “the jury could

well have believed that they need only be unanimous about their ‘verdict’ of guilty or not

guilty of the general offense [charged]”). Some jurors might have believed appellant

touched B.G. only on the first occurrence to which she testified while others might have

been convinced he committed the offense at her birthday party. Therefore analysis of

the entire charge in this case might incline toward a finding of egregious harm. See

Arrington, 451 S.W.3d at 841 (“Because the entire charge did not apprise the jury of the

proper unanimity requirement, we conclude that this factor weighs in favor of finding

egregious harm”). On the other hand, the court’s error was the omission of an

instruction rather than the inclusion of an erroneous instruction. See Taylor v. State,

332 S.W.3d 483, 493 (Tex. Crim. App. 2011) (contrasting omission of instruction with

charge in another case which mis-instructed the jury).4 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. See Cosio, 353 S.W.3d at 777 (noting merely that charge

“permitted” non-unanimous verdicts, and that “nothing in charges themselves militates

against” an egregious harm determination).

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.

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 State of the Evidence

The State’s case was made through the brief testimony of B.G. The jury did not

hear medical evidence, the substance of B.G.’s statements at the CAC interview, or the

words of her electronically-recorded outcry. Through the testimony of his two

witnesses, appellant presented the defense that he was not guilty of the conduct

charged, on either occasion to which B.G. testified, and he was definitely not present on

her birthday. Because appellant’s indecent conduct was described in the evidence only

by B.G.’s testimony, the jury could not have convicted appellant without accepting her

testimony. And there was little difference in her descriptions of appellant’s actions on

the two occasions to which she testified. On both occasions, she was seated watching

television at her uncle’s house when appellant touched her.5 It is obvious also that the

jury did not accept the defense witnesses’ assertions of appellant’s innocence.

To an extent, appellant’s defense focused on his witnesses’ insistence that

appellant did not attend the birthday party, and thus could not have committed

indecency on that occasion. To that extent, the state of the evidence differs from that in

cases like Ruiz v. State, 272 S.W.3d 819 (Tex. App.—Austin 2008, no pet.), in which

the defendant’s theory left the jury with an “all-or-nothing decision.” Id. at 826; see

Arrington, 451 S.W.3d at 842 (discussing Ruiz); Jourdan v. State, 428 S.W.3d 86 (Tex.

Crim. App. 2014). Nonetheless, the evidence does not present a likelihood that jurors

voted for conviction but did not agree appellant committed indecency on one specific

occasion. A juror who accepted the testimony appellant did not attend the birthday

5
B.G. testified appellant touched her under her clothing on the first occasion and over her
clothing at the birthday party.

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party must have found he committed the offense on the first occasion B.G. described.

And we see in the evidence no reason a juror who did not accept that testimony would

have believed appellant committed the offense only at the birthday party. As we have

noted, B.G.’s descriptions of the two occasions were very similar. We think a juror who

believed her testimony that appellant touched her during her birthday party, over the

strong defensive assertions he was not then present, almost certainly also believed

appellant committed indecency on the first occasion. See Taylor, 332 S.W.3d at 493 (“It

is unlikely that the jury believed that [Taylor] sexually assaulted the victim before he

turned 17 years old but not after”).

Argument

As noted from its quoted excerpts, the prosecutor’s argument at times used

singular pronouns when referring to the occurrence. But it would be an unwarranted

conclusion that such expressions moved the jury toward reaching a non-unanimous

verdict. Neither the State nor the defense told the jurors they must be unanimous as to

the appellant’s guilt on a single incident, but neither told the jury they could convict

without unanimity. Cf. Ngo, 175 S.W.3d at 750; Digman v. State, 455 S.W.3d 207, 210-

11 (Tex. App.—Amarillo 2015, pet. ref’d) (in both cases, prosecutors’ argument

emphasized jury’s ability to convict without unanimity on particular conduct). Thus we

do not find the argument of counsel weighs for or against a finding of actual harm.

Entirety of the Record

At oral argument, appellant argued that the simplicity of the charge and the

evidence in this case heightens the risk of a non-unanimous verdict. As appellant

11
noted, the case involves only a single count alleging indecency but two distinct

occasions of conduct. Because the jury was not made to understand that to find

appellant guilty they must agree unanimously that he committed the offense on both or

only one occasion, he argued, the jury was never required to consider the impact of the

defensive evidence he was not present on one of the two occasions alleged. As

appellant sees it, the straight-forward case presented by this record carries an even

greater risk of non-unanimity than cases like Arrington, 451 S.W.3d at 837-39, which

involved seven counts and evidence of multiple acts of indecent and assaultive conduct.

Under the egregious harm standard, reversal is possible only if the record shows

actual rather than theoretical harm. Bell v. State, No. 05-13-01616-CR, 2015 Tex. App.

LEXIS 3572, at *15-16 (Tex. App.—Dallas Apr. 10, 2015, no pet.) (citing Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013)). From the entirety of the charge and the

arguments of counsel, we find little to support a conclusion appellant suffered actual

harm. We find the state of the evidence militates against a finding of actual harm. And

we find appellant’s contention based on the entirety of the record unpersuasive as

indicative of 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.

Conclusion

The trial court abused its discretion by omitting the unanimity instruction, but

appellant did not suffer egregious harm from the error, so it was not fundamental. We

12
overrule appellant’s issues asserting egregious harm, and affirm the judgment of the

trial court.

James T. Campbell
Justice

Do not publish.

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