Opinion issued April 6, 2017.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00004-CR
NO. 01-16-00005-CR
———————————
TRENTON AVERY ASHTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case Nos. 13CR3370 and 13CR3371
OPINION
A jury found appellant, Trenton Avery Ashton, guilty of two charges of
aggravated sexual assault of a child younger than fourteen years of age,1 and the jury
1
TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i)-(ii), (a)(2)(B) (West Supp. 2016).
assessed his punishment in both cases at thirty-eight years’ incarceration, with
sentences to run consecutively. In three issues, appellant argues that: (1) the trial
judge erred by denying his motion for mistrial after it was revealed during trial that
two jurors knew the investigating detective; (2) the trial court erred by failing to
instruct the jury in cause number 13CR3370 that it must unanimously find that a
single incident of the charged offense was proven beyond a reasonable doubt; and
(3) the trial court erred by failing to instruct the jury in cause number 13CR3371 that
it must unanimously find that a single incident of the charged offense was proven
beyond a reasonable doubt. We affirm the trial court’s judgment.
Facts and Proceedings
A. Factual Background
In 2013, J.W. began babysitting seven-year old J.S. at J.W.’s home four nights
a week while the boy’s mother worked the night shift. J.W. shared her home with
her husband and nephew, as well as her son, appellant.
J.S.’s mother, the outcry witness, testified that, on November 18, 2013, J.S.
told her that appellant “stuck his wee-wee in my butt” and “white stuff came out.”
He also told her that appellant stuck his “wee-wee” in his mouth and asked him what
it tasted like. J.S. told her that he did not like what appellant had done to him because
it hurt and it made J.S. cry. J.S. also told her that the incident happened on the third
day of her work cycle, which would have been November 14, 2013.
2
J.S., who was nine years old and in the fourth grade at the time testified that
appellant’s mother babysat him when he was in second grade. According to J.S., his
mother would drop him off at appellant’s home in the afternoon, and then pick him
up early the next morning and take him home. When he stayed at appellant’s home,
J.S. slept on a mattress on the floor of appellant’s room. No one else slept in
appellant’s room.
J.S. testified that “sometimes” appellant would tell him to pull his pants down
and get on the ground. Appellant would then stick his “wee-wee” inside J.S.’s butt,
sometimes sticking it in “all the way,” which “felt like it was burning.” Appellant
would also tell J.S. to put his mouth on appellant’s “wee-wee,” and tell him to suck
it. J.S. testified that he saw “white stuff” come out of appellant’s “wee-wee” on one
occasion. J.S. testified that this happened “three or four times.” According to J.S.,
appellant told him that he would give J.S. a dollar if he did not tell anyone about the
assaults. Using a doll, J.S. also demonstrated the assault by anal penetration for the
jury. J.S. pulled the doll’s pants and underwear down and then placed the doll’s
hands and legs on the ground. Although J.S. acknowledged that his mother had
helped him remember a lot of the story, he also testified that he did not talk to anyone
about changing his story.
J.S. received a forensic sexual assault exam on November 19, 2013. The
sexual assault nurse examiner (SANE) who examined J.S. testified about the
3
examination and relied upon a four-page report that she had prepared documenting
the exam. The report stated in part:
When my baby-sitter isn’t around her son, [appellant], puts his wee wee
in my butt and then sometimes he makes me taste it. When he puts it all
the way in my butt it hurts and it makes me cry. He gives me a dollar
and tells me not to tell anybody. He did it to me on Thursday and then
again on Friday in the afternoon when I get there.
The SANE’s report noted that the sexual assaults occurred on November 14, 2013
and the afternoon of November 15, 2013. The SANE collected evidence, including
various swabs, combings, and the underwear J.S. was wearing during the
examination. She found that J.S. had no trauma or injury. The SANE testified,
however, that her findings were consistent with a sexual assault, the absence of an
injury to the anus is not determinative of whether an assault occurred, and she had
“no reason not to believe” what J.S. told her.
The SANE’s supervisor, the clinical director of forensic nursing services,
testified that she reviewed the SANE’s report. According to the director, penetration
of the anus by a male sexual organ does not always cause injury because the anus is
an elastic muscle, and something would have to stretch the anus past its capacity in
order to tear the tissue. She further testified that the more time that passes between
the assault and the examination, the lower the opportunity for the presentation of an
injury because of the healing properties of the body. She also testified that no
medical test existed that could conclusively prove that penetration had occurred.
4
A forensic interviewer with the Child Advocacy Center interviewed J.S. on
November 20, 2013. She testified that J.S. was “very descriptive” when he discussed
the assaults and that, although he was upset, J.S. answered all of her questions during
the interview. She also testified that when she asked J.S. about the position he was
in during the assaults, he demonstrated it. The forensic interviewer explained to the
jury that J.S. physically put himself in a dog-like position on the floor and then
moved back and forth.
Detective Earl Mendenhall with the Texas City Police Department was
assigned to appellant’s case. Detective Mendenhall testified that statements were
taken from J.S.’s mother, appellant, appellant’s mother, appellant’s aunt, and
appellant’s friend over the course of his investigation. He also arranged for J.S. to
be interviewed at the Children’s Advocacy Center by a specially trained forensic
interviewer. Detective Mendenhall testified that he subpoenaed a DNA sample from
appellant that was sent to a forensic crime lab. Nothing of evidentiary value,
however, was obtained after analysis.
Appellant gave a voluntary statement to Detective Mendenhall on November
25, 2013. A video of the interview was admitted into evidence and published to the
jury. During that interview, appellant repeatedly denied all allegations of sexual
misconduct or assault against J.S., telling the detective that he thought of J.S. as a
little brother.
5
During the interview, Detective Mendenhall told appellant that J.S. had been
specific about what appellant did to him. Appellant denied being naked with J.S.,
having J.S. bend over, ejaculating in front of J.S., putting his penis in J.S.’s mouth,
or asking J.S. to lick his semen off of his penis. When the detective asked appellant
if J.S. was lying, appellant responded, “Yes, sir.”
When Detective Mendenhall asked appellant if he wanted to tell him about
what had transpired with J.S. or to ask any questions, appellant offered his version
of events. Appellant explained that J.S.’s allegations might have been prompted by
a phone conversation appellant had with his friend on November 12th or 13th that
J.S. had overheard. According to appellant, his friend called him on the phone and
told him to watch a YouTube video. Appellant said the video dealt with the subject
of pedophilia and rape, but was meant to be comical. Appellant watched the video
in his bedroom, conversing with his friend while J.S. slept on the floor. Appellant
claimed that he initially believed that J.S. was asleep, but at one point, he saw J.S.
open one eye. Appellant told J.S. to go back to sleep or he would tell his mother, and
J.S. quickly put the cover over his head. Appellant told the detective that he
suspected that J.S. may have heard the audio from the YouTube video, as well as
appellant speaking to his friend about the video.
Appellant’s friend, however, told the detective that he never had any such
conversation with appellant. At trial, appellant’s friend testified that he did not have
6
any phone conversations with appellant in November 2013 and that he did not send
appellant any Internet links to pedophilia parodies or share any jokes with appellant
about men having sex with little boys. He further stated that he had never seen a
pedophilia parody and was unfamiliar with what it was.
After the State rested its case, appellant called three witnesses: his aunt, his
mother, and his stepfather. Appellant’s aunt testified that she had known J.S.’s
mother for almost twenty years, and had known J.S. since he was born. She claimed
that J.S. had a big imagination for his age. She testified that she had expressed
concern to J.S.’s mother about his previous babysitters because J.S.’s mother did not
know these babysitters personally. Appellant’s aunt testified that she did not think
that J.S. was safe with his prior babysitters because of some of the things J.S. had
complained about. Appellant’s aunt also testified that she never had any concern
with appellant being around her children.
Appellant’s mother, J.W., testified that she began babysitting J.S. after his
mother had experienced problems with another babysitter. She claimed that J.S.
would be asleep by the time appellant came home each night between 9:00 p.m. and
10:00 p.m. She further testified that she could “hear everything” that happened in
the apartment during the night, including when someone was walking around the
apartment and everything that occurred in appellant’s bedroom. Appellant’s mother
also claimed that she did not allow appellant to shut the door to his bedroom at night.
7
She further testified that she never had any concern about appellant being around
small children. She was shocked by the allegations against him, and did not believe
they were true.
Appellant’s stepfather also testified that he could hear what was going on
anywhere inside the apartment. Like appellant’s mother, appellant’s stepfather
testified that he never had any concern leaving appellant with a small child, and was
shocked by the allegations against his stepson.
B. Procedural Background
During voir dire, appellant’s counsel posed the following question to the
panel:
Is there anybody on this side and I ask you that your family works for
the police department or – I’m not talking about your brother’s sister’s
mother’s cousin. I’m talking about somebody you talk to.
Counsel later expanded the inquiry to also include close relatives who work in other
law enforcement agencies, such as the FBI.
Neither appellant’s counsel nor anyone else mentioned Detective Mendenhall
by name during voir dire. Approximately seventeen panel members responded to
defense counsel’s inquiry, including Juror No. 6. Juror No. 6 disclosed that his
cousin was a lieutenant at the Seabrook Police Department, but he did not mention
Detective Mendenhall.
8
During a break in Detective Mendenhall’s testimony, and outside the presence
of the jury, the trial judge informed the parties that he had just learned that the
detective knew two of the jurors. The trial judge stated that he understood that the
detective knew one juror “apparently fairly well on a personal basis” and the other
juror not as well. The trial judge questioned both jurors in the presence of counsel
about their relationships to Detective Mendenhall.
Juror No. 1 testified that he was employed as a maintenance manager at a local
convenience store and that Detective Mendenhall had worked security at the same
store on four or five occasions. According to the juror, Detective Mendenhall had
not worked at the store within the prior two months, and although they had
exchanged pleasantries, the two men never spoke at length. The juror testified that
his relationship with the detective would not influence his assessment of his
credibility and that he believed that he could be a fair and impartial juror in the case.
Juror No. 6 testified that he knew Detective Mendenhall pretty well and that
he met the detective through the detective’s wife’s sister. The juror also testified that
he did not see Detective Mendenhall on a regular basis, he had never been to the
detective’s home, and his relationship with the detective would not influence his
decision in the case. He further stated that he would not hold the detective in a higher
regard than other witnesses and he felt that he could still be a fair and impartial juror
in the case.
9
Appellant moved for a mistrial, but the trial judge denied the motion.
DEFENSE COUNSEL: Yes, Your Honor. The Defense moves for a
mistrial. The conflict here, even though these two people say they
wouldn’t change it in any way, they have a personal relationship
with the investigator here. Even though they say, “I won’t hold
him to more regard, it’s natural. It’s natural for someone to hold
someone in regard that they see and know. And I’m asking for a
– in the interest of justice to grant a mistrial.
THE COURT: Okay. The motion for mistrial is denied. Both sides have
an opportunity to ask questions and we’ve assessed these jurors
with statements and they said what they’re going to say and both
of them have made it clear that they’re not going to hold the
detective in a higher regard. They’re going to assess his
credibility the same as they would any other witness; and
therefore, I don’t see any grounds for a mistrial.
DEFENSE COUNSEL: Yes, Your Honor. We just reurge the mistrial;
and we’ll accept your ruling on it, but we don’t agree with it.
THE COURT: I can understand and appreciate that, [counsel], but
ruling stands.
DEFENSE COUNSEL: Thank you.
After the jury returned to the courtroom, the trial judge informed them that if they
personally knew a witness in the trial, they needed to notify the bailiff “at the first
possible break.”
C. Jury Charges and Deliberation
At the conclusion of the guilt/innocence phase, the trial court charged the jury
separately with respect to both counts of aggravated sexual assault of a child under
fourteen years of age at issue.
10
In trial court cause number 13CR3370, the charge’s application paragraph
instructed the jury to find appellant guilty of aggravated sexual assault of a child
under fourteen years of age if it found beyond a reasonable doubt that “on or about
the 14th day of November, A.D., 2013, in Galveston County, Texas, [appellant] did
then and there intentionally or knowingly cause penetration of the anus of [J.S.], a
child who was then and there younger than 14 years of age, by the sexual organ of
[appellant].”
In trial court cause number 13CR3371, the charge’s application paragraph
instructed the jury to find appellant guilty of aggravated sexual assault of a child
under fourteen years of age if it found beyond a reasonable doubt that “on or about
the 14th day of November, A.D., 2013, in Galveston County, Texas, [appellant] did
then and there intentionally or knowingly cause penetration of the mouth of [J.S.], a
child who was then and there younger than 14 years of age, by the sexual organ of
[appellant].”
Neither jury charge instructed the jury that its verdict must be unanimous.
During deliberations, the jury asked to review appellant’s videotaped interview and
the portions of J.S.’s testimony regarding oral penetration. The jury specified that
there was disagreement as to whether J.S. testified that any oral penetration had
occurred.
11
Motion for Mistrial
In his first issue, appellant argues that the trial court erred by denying his
motion for mistrial when it was revealed after the jury had been sworn that two jurors
knew the detective. Specifically, appellant contends that he was egregiously harmed
when information about the two jurors’ relationships to the State’s lead investigator,
Detective Mendenhall, was withheld from appellant until mid-trial, thus violating
appellant’s constitutional right to an impartial jury.
A. Standard of Review
The United States and Texas Constitutions guarantee a person the right to trial
by an impartial jury. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10. When a
person serves on a jury but is partial, biased, or prejudiced and that juror is selected
not through the fault or lack of diligence of defense counsel but based on inaccurate
answers in voir dire, a new trial can be obtained. Von January v. State, 576 S.W.2d
43, 45 (Tex. Crim. App. 1978); see Salazar v. State, 562 S.W.2d 480, 482 (Tex.
Crim. App. 1978). We review the denial of a mistrial for an abuse of discretion. See
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
“The voir dire process is designed to insure that an ‘intelligent, alert,
disinterested, impartial, and truthful jury will perform the duty assigned to it.’”
Brown v. State, 183 S.W.3d 728, 737 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d) (quoting Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995)).
12
When a juror withholds material information in the voir dire process, the parties are
denied the opportunity to exercise their challenges, thus hampering their selection
of a disinterested and impartial jury. Armstrong, 897 S.W.2d at 363. However,
defense counsel bears the burden to ask questions to determine a juror’s potential
bias. Id. at 363–64. Defense counsel must also ask specific questions, and cannot
rely on broad ones, to satisfy this due diligence obligation. Gonzales v. State, 3
S.W.3d 915, 917 (Tex. Crim. App. 1999) (citing Brandon v. State, 599 S.W.2d 567,
578 (Tex. Crim. App. 1979)). “Unless defense counsel asks [questions designed to
illicit information that might indicate a juror’s inability to be impartial and truthful],
the material information which a juror fails to disclose is not really ‘withheld.’”
Armstrong, 897 S.W.2d at 363–64 (quoting Jones v. State, 596 S.W.2d 134, 137
(Tex. Crim. App. [Panel Op.] 1980)).
B. Analysis
The State argues that the trial court did not err by denying appellant’s motion
for mistrial because: (1) appellant did not exercise due diligence because he never
asked the venire panel if they knew the detective during jury selection; and (2)
appellant did not show that the information was material.
Appellant argues that his counsel spent a significant amount of time
questioning the panel about their relationships with law enforcement and that at least
13
seventeen panel members responded. He further contends that, despite this line of
inquiry, neither juror disclosed his relationship to the detective.
The problem with appellant’s argument is that his questions were not designed
to elicit the information he now claims was withheld. All of the disclosures of the
jurors’ relationships with law enforcement were in response to defense counsel’s
inquiry whether anyone on the panel had a close family member who “work[ed] for
the police department.” Counsel later expanded the inquiry to also include close
relatives working in other law enforcement agencies, such as the FBI. Notably,
counsel never expanded her question to include non-familial relationships, like the
ones in this case. Moreover, neither she nor anyone else mentioned Detective
Mendenhall by name during voir dire.
After reviewing the record, we conclude that defense counsel did not ask
questions that were calculated to uncover the jurors’ non-familial relationships with
Detective Mendenhall. See Webb v. State, 232 S.W.3d 109, 113 (Tex. Crim. App.
2007) (noting that “it is incumbent upon counsel to specifically ask questions which
will determine whether they have a right to challenge the venire member”);
Armstrong, 897 S.W.2d at 363–64 (stating that “defense counsel has an obligation
to ask questions calculated to bring out that information which might be said to
indicate a juror’s inability to be impartial and truthful”). Accordingly, we hold that
the trial court did not err by denying appellant’s motion for mistrial because
14
appellant’s counsel did not make a further inquiry in her questioning of the venire,
and, therefore, Jurors Nos. 1 and 6 did not withhold information during voir dire.
See Armstrong, 897 S.W.2d at 363–64 (stating that when defense counsel does not
exercise due diligence, “the material information which a juror fails to disclose is
not really ‘withheld.’”)
Furthermore, even if appellant’s counsel had asked questions designed to
illicit the information that appellant argues was withheld in this case, the trial court
would not have erred by denying appellant’s motion for mistrial because the
information was not material. The record reflects that Detective Mendenhall’s wife’s
sister was a friend of Juror No. 6, and that the detective and juror had only seen each
other on occasion at social events. Juror No. 6 testified that he did not go to the
detective’s house, and did not otherwise have a close relationship with the detective.
The record also reflects that Detective Mendenhall worked security on four or five
occasions at the convenience store where Juror No. 1 was employed. Detective
Mendenhall and Juror No. 1 never spoke at length, and the detective had not worked
at the store within the prior two months. Both jurors testified that their relationships
with the detective would not influence their assessment of the detective’s credibility,
and that they believed that they could be fair and impartial jurors in the case. This
case is analogous to other cases involving distant relationships or connections that
have been deemed nonmaterial. See Decker v. State, 717 S.W.2d 903, 906–08 (Tex.
15
Crim. App. 1983) (holding information that juror and victim had been co-workers
for nine months, but had only met “seven, eight times” was not material); see also
Scott v. State, 419 S.W.3d 698, 701–02 (Tex. App.—Texarkana 2013, no pet.)
(holding information that juror and key prosecution witness were employed by same
employer in different departments was not material); Lopez v. State, 261 S.W.3d
103, 108 (Tex. App.—San Antonio 2008, pet. ref’d) (holding that withheld facts that
witness was friend of juror’s girlfriend’s stepfather and that juror had seen witness
at social gathering deemed immaterial when juror, after equivocating, stated he
would be fair; not material because facts failed to show potential for bias or
prejudice).
We overrule appellant’s first issue.
Charge Error
In his second and third issues, appellant argues that the trial court erred in both
cases (trial court cause numbers 13CR3370 and 13CR3371) by failing to instruct the
jury that it must unanimously find that a single incident of the charged offense was
proven beyond a reasonable doubt. Appellant acknowledges that because he did not
object to the charge in trial court cause numbers 13CR3370 and 13CR3371, the trial
court’s error is subject to egregious harm analysis. 2
2
The record also reflects that appellant did not move to have the State elect a specific
criminal act that it was relying upon for conviction. Cosio v. State, 353 S.W.3d 766,
775 (Tex. Crim. App. 2011). However, the trial court is responsible for ensuring
16
A. Standard of Review
We review a claim of jury charge error using a two-step process. Wooten v.
State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). First, we determine whether
error exists in the jury charge. Id. Second, if error exists, we determine whether
sufficient harm was caused by that error to require reversal. Id.; Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005).
B. Applicable Law
Texas law requires that a jury reach a unanimous verdict about the specific
crime 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. Non-unanimity may
result “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.” Id.
Specifically, a non-unanimous verdict can occur when the State charges one offense
and presents evidence that the defendant committed that offense on multiple separate
occasions. Id. at 771–72; Gomez v. State, 498 S.W.3d 691, 695 (Tex. App.—
Houston [1st Dist.] 2016, no pet.). A charge that allows for a non-unanimous verdict
in such cases contains error. See, e.g., Cosio, 353 S.W.3d at 774 (holding charge
unanimity in the jury charge, regardless of whether the defendant moves for an
election or objects to the charge. Id. at 776.
17
contained error when charge did not instruct jury that it must reach unanimous
verdict as to which specific criminal act defendant committed).
C. Analysis
Appellant was charged with two counts of aggravated sexual assault of a child
under fourteen years of age—one charge alleged anal penetration by appellant’s
sexual organ,3 and the second charge alleged oral penetration by appellant’s sexual
organ.4 At trial, the State presented evidence of multiple instances of both anal and
oral penetration, with each instance allegedly occurring on different dates. Neither
charge instructed the jury that its verdict must be unanimous, i.e., that it must agree
upon a single and discrete incident that would constitute the commission of the
offense alleged. In light of the evidence presented of multiple instances of both anal
and oral penetration allegedly occurring on different dates, the omission of
unanimity instructions in both charges allowed for the possibility of non-unanimous
verdicts. Accordingly, we hold that—as the State concedes—the omission of
unanimity instructions in both charges was erroneous. See, e.g., Cosio, 353 S.W.3d
at 774.
3
TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (a)(2)(B).
4
TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(ii), (a)(2)(B).
18
D. Harm
When, as in this case, a defendant does not object to an erroneous jury charge,
reversal is required if the error results in egregious harm. Villarreal v. State, 453
S.W.3d 429, 433 (Tex. Crim. App. 2015). “Egregious harm is a ‘high and difficult
standard’ to meet, and such a determination must be ‘borne out by the trial record.’”
Id. (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). An
egregious harm determination must be based on a finding of actual rather than
theoretical harm. See Cosio, 353 S.W.3d at 771. Actual harm is established when the
erroneous jury instruction affected “the very basis of 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)); see also Arrington
v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). The reviewing court’s
egregious harm analysis takes into account the entire jury charge, the state of the
evidence, including contested issues and the weight of the probative evidence, the
argument of counsel, and any other relevant information revealed by the trial record
as a whole. See Villarreal, 453 S.W.3d at 433.
The Court of Criminal Appeals opinion in Arrington is instructive with regard
to whether egregious harm occurs when a trial court fails to include a unanimity
instruction in a jury charge. Although the defendant in Arrington was charged with
several different sexual offenses, the charge did not require the jurors to be
19
unanimous as to which separate criminal act constituted each count. Id. at 837–38.
The Court concluded that the entirety of the charge weighed in favor of egregious
harm in that case because “the entire charge did not apprise the jury of the proper
unanimity requirement.” Id. at 841.
The Court also concluded that the state of the evidence weighed against a
finding of egregious harm, in part, because the jury’s findings of guilt turned upon
its evaluation of witness credibility. See id. at 844. As in this case, there was no
medical or DNA evidence corroborating the complainant’s claims in Arrington and
the only evidence of the offenses came from the testimony of the complainant, the
outcry witness, and the State’s other witnesses. See id. at 841. The defendant in
Arrington, like appellant, advanced an “all-or-nothing” defense at trial, categorically
denying all of the complainant’s accusations of abuse. Cf. id. at 842. Concluding that
the state of the evidence weighed against a finding of egregious harm, the Court
reasoned that, had the jury “believed [the defendant] rather than [the complainant],
it would have acquitted [the defendant] of all charges.” Id. at 844.
Relying upon Cosio and Ngo, the Arrington court concluded that the parties’
arguments did not weigh in favor of or against a finding of egregious harm when the
parties did not exacerbate or ameliorate the charge error by arguing to the jury that
unanimity was (or was not) required. See Arrington, 451 S.W.3d at 844 (citing
Cosio, 353 S.W.3d at 777; Ngo, 175 S.W.3d at 752). In Cosio, the Court of Criminal
20
Appeals concluded that the parties’ arguments did not weigh in favor of egregious
harm because neither the parties nor the trial court added to the charge error by
telling the jury it did not have to be unanimous. In contrast, the Ngo court determined
that this factor did weigh in favor of egregious harm because “the jury was
affirmatively told, on three occasions, twice by the prosecutor and once by the trial
judge, that it need not return a unanimous verdict.” Ngo, 175 S.W.3d at 752.
With respect to the final factor—other relevant information in the record—
the Arrington court concluded that this factor did not weigh in favor of egregious
harm because there was no indication in the record that “any of the jurors were less
than unanimous on all of the . . . incidents.” 451 S.W.3d at 845.
1. Entirety of the Charge
The first factor we consider when evaluating whether charge error resulted in
egregious harm is the jury charge itself. In this case, the State charged appellant with
two counts of aggravated sexual assault of a child under the age of fourteen years—
one charge alleged anal penetration by appellant’s sexual organ, and the second
charge alleged oral penetration by appellant’s sexual organ. Nothing in either charge
mitigated the risk of non-unanimous verdicts. Because the jury charges permitted
non-unanimous verdicts based on the evidence presented in the case regarding
multiple instances of abuse and nothing in the charges mitigated this conclusion, we
conclude that this factor weighs in favor of finding of egregious harm. See Arrington,
21
451 S.W.3d at 841 (concluding that entirety of charge weighed in favor of egregious
harm when “charge did not apprise the jury of the proper unanimity requirement”).
2. The State of the Evidence
The second factor we must consider is the state of the evidence. As in
Arrington, there was no medical or DNA evidence that corroborated J.S.’s
allegations of abuse. Thus, the sole evidence of the assaults came from J.S., his
mother (the outcry witness), the SANE who examined him, the SANE’s director
who explained the meaning of the SANE’s report and findings, and the forensic
interviewer who questioned J.S. about the assaults.
Specifically, J.S. testified that appellant sexually assaulted him three or four
times. He also graphically explained how appellant orally and anally assaulted him
and then he used a doll to demonstrate the anal sexual assault for the jury. J.S. did
not testify as to when each assault occurred. J.S.’s mother, the outcry witness,
testified that J.S. told her that appellant “stuck his wee-wee in [J.S.’s] butt” and
“white stuff came out,” and that appellant stuck his “wee-wee” in J.S.’s mouth. She
also testified that J.S. told her that this occurred on Thursday, November 14, 2013.
Although the SANE and the forensic interviewer corroborated J.S.’s testimony
regarding most of the details of the assaults, the SANE testified that J.S. told her that
appellant had anally penetrated him with his penis and that appellant “sometimes”
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made him taste his “wee-wee” and that this occurred on Thursday and Friday,
November 14th and 15th.
Although appellant did not testify, his explanation for J.S.’s allegations was
provided to the jury through the admission of appellant’s videotaped interview with
Detective Mendenhall. In that interview, appellant denied ever sexually assaulting
J.S. and claimed that J.S. was either confused or lying when he claimed otherwise.
Appellant also volunteered an alternate theory that J.S. had misunderstood a
pedophilia parody video that appellant had been watching and discussing with his
friend on his phone. However, this theory was directly refuted by appellant’s friend
at trial. Appellant also called three witnesses who challenged J.S.’s credibility. Two
of appellant’s witnesses also testified that if anything had occurred in the apartment
they shared with appellant, they would have heard it. Thus, appellant’s defensive
“trial strategy left the jury with an all-or-nothing decision when evaluating each
count in the charge . . . either he was guilty . . . or he was not.” Ruiz v. State, 272
S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.).
Appellant argues that the state of the evidence weighs in favor of egregious
harm because J.S. testified that there were multiple assaults and he was not specific
about the separate incidents. However, as in Arrington, the jury was presented with
two opposing narratives in this case—J.S.’s story, and appellant’s claim that he
never sexually assaulted J.S. Had the jury believed appellant’s version of events
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over J.S.’s testimony, the jury “would have acquitted [appellant] of all charges.”
Arrington, 451 S.W.3d at 844; see also Ruiz, 272 S.W.3d at 826 (holding that, in
light of defendant’s all-or-nothing defense, evidence did not weigh in favor of
egregious harm although complainant testified that defendant abused her for five
years and she described different instances of abuse).
Appellant further argues that the state of the evidence weighs in favor of
egregious harm because members of the jury disagreed during deliberations as to
whether J.S. testified about oral penetration, and there is conflicting testimony
regarding whether the assaults occurred on Thursday or Friday. The state of the
evidence can weigh against a finding of egregious harm, however, when the record
contains conflicting testimony or contested issues. See Gomez, 498 S.W.3d at 697.
Even if members of the jury had decided that J.S. did not testify about any instances
of oral penetration, there was testimony from the outcry witness regarding this
conduct. Cf. Eubanks v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (stating that uncorroborated testimony of outcry witness can be
sufficient evidence to support conviction). Furthermore, despite any earlier disputes
regarding whether J.S. testified that any oral penetration occurred, the “evidence
ultimately persuaded the members of the jury to find that [appellant] did commit the
offense beyond a reasonable doubt on at least one occasion, or they would have
acquitted him.” Gomez, 498 S.W.3d at 697.
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With regard to the conflicting testimony regarding whether the assaults
occurred on Thursday, November 14th, or Friday, November 15th, we note that the
application paragraphs in both charges authorized the jury to convict appellant if
they found that the charged offense occurred “on or about” Thursday, November 14,
2013. The charges also correctly instructed the jury that the phrase “on or about”
meant any time prior to the presentment of the indictment that is within the
applicable statute of limitations period. See Sledge v. State, 953 S.W.2d 253, 256
(Tex. Crim. App. 1997).
After reviewing the evidence from appellant’s trial, we conclude that the
second factor does not weigh in favor of a finding of egregious harm.
3. Arguments of Counsel
The third factor we must consider pertains to the arguments of counsel. During
closing arguments, the State explained to the jury that there were two charges in this
case because there were “two separate sexual assaults. I mean, it happened numerous
times; but he was orally sexual assaulted and he was anally sexually assaulted.”
Defense counsel suggested that J.S.’s allegations were the product of his mother’s
coaching and that the State had not met its burden of proof in light of the lack of
medical and DNA evidence. The State’s rebuttal argument focused on a “particular”
night when appellant told J.S. to pull his pants and underwear down and then he both
anally penetrated the boy until white stuff came out and made the boy put his penis
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in his mouth and suck it. Neither the State nor the defense, however, “told the jurors
that they must be unanimous about which criminal episode constituted each offense,
nor were they told that they need not be unanimous.” Arrington, 451 S.W.3d at 844.
After considering the arguments of the parties, we conclude that the parties did not
exacerbate or ameliorate the charge error by arguing to the jury that unanimity was
(or was not) required, and therefore, this factor is neutral with respect to a finding of
egregious harm. Id.
4. Other Relevant Information in the Record
With regard to the final factor—other relevant information in the record—
appellant contends that statements made by the State and the trial court during voir
dire compounded the error by suggesting that the State only had to prove “generally”
that appellant was guilty of the alleged offenses. The trial court’s comments that
appellant relies upon, however, do no more than list the elements of each charge.
Appellant also takes issue with the State’s comment that “What we have to prove is
that this happened sometime before we indicted the case, and that’s essentially kind
of where we’re at.” The record reflects, however, that the State’s comment was
regarding the statute of limitations. Neither of these statements, however, suggested
to the venire that it would not be required to unanimously base each of its verdicts
on a single offense.
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After reviewing the entirety of the record, including the statements identified
by appellant, we conclude that there is no additional relevant evidence that the jurors
were less than unanimous in their verdicts. Therefore, the fourth factor weighs
neither in favor of or against a finding of egregious harm.
5. Conclusion of Harm Analysis
Only one of the four factors—the entirety of the charge—weighs in favor of
a finding of egregious harm. One factor weighs against a finding of egregious harm,
and two factors are neutral. In light of our analysis of these four factors, and after
reviewing the appellate record in its entirety, we cannot say that appellant was
actually harmed by the charge errors because the instructions did not affect the basis
of appellant’s case or his defensive theories, or deprive appellant of a valuable right.
See Arrington, 451 S.W.3d at 839–40; Almanza, 686 S.W.2d at 171. Accordingly,
we hold that appellant was not egregiously harmed by the erroneous instructions.
See Arrington, 451 S.W.3d at 845 (holding defendant not egregiously harmed by
charge that omitted unanimity instruction when entirety of charge was only factor
weighing in favor of egregious harm); Cosio, 353 S.W.3d at 777–78 (same). We
overrule appellant’s second and third issues.
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Higley, and Lloyd.
Publish. TEX. R. APP. P. 47.2(b).
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