Affirmed and Memorandum Opinion filed October 4, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00453-CR

                    ELIAS SEGUNDO GOMEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                      Trial Court Cause No. 78939-CR

                 MEMORANDUM OPINION

      A jury found appellant guilty of four counts of indecency with a child and
one count of aggravated sexual assault of a child. The jury assessed punishment at
twenty years’ confinement for each indecency verdict and seventy-five years’
confinement for the assault verdict, along with a $10,000 fine for each verdict.
Appellant contends that the trial court erred by submitting a jury charge that
allowed for a non-unanimous verdict on each count because “the evidence at trial
detailed multiple acts supportive of the charges” in each count. We hold that
appellant has not suffered egregious harm. Accordingly, we affirm.

                                I.    BACKGROUND

A.    Evidence

      Appellant was the complainant’s great uncle. The complainant was
seventeen years old at the time of trial. She testified that when she was four or five
years old, appellant began touching her breasts and vagina and would kiss her all
over her body, including her vagina. She testified that this conduct occurred a lot—
too many times to remember—until she was about twelve years old when she was
old enough to be able to push him away. The abuse always happened at the
complainant’s grandmother’s three-bedroom house, where the complainant would
spend a lot of time. When the complainant was fifteen years old, she confided in
her mother about appellant’s conduct.

      Shortly thereafter, the complainant’s mother and grandmother organized a
meeting with appellant, appellant’s wife, his daughter, and his son-in-law. Each of
these witnesses, except for appellant’s wife, testified at trial. The complainant’s
mother testified that she did not speak Spanish and that appellant did not speak
English well, so the complainant’s grandmother translated. The mother testified
that she asked if appellant had been “touching my daughter and sexually abusing
my daughter since she was a young girl.” Appellant said, “Yes.”

      The grandmother testified similarly that appellant admitted to touching and
abusing the complainant since she was a little girl. She testified that appellant’s
wife asked him again, and he again said, “Yes.” Then appellant’s daughter asked
him, and he again said, “Yes, I did; but I haven’t done that since a long time ago.”
The grandmother testified, “He—he said three times, yes, he did that. He did it.”


                                          2
Appellant’s daughter and son-in-law also testified that appellant admitted to
touching or molesting the complainant.

      A Lake Jackson Police Department officer testified that he interviewed
appellant after the family confrontation. Appellant told the officer that he admitted
to the allegations during the confrontation only because the family was pressuring
him. A special agent with the Texas Department of Public Safety testified that he
also interviewed appellant, and appellant admitted to touching the complainant’s
breasts on two occasions and to touching the complainant’s vagina on two
occasions on different days. Appellant told the agent that the complainant was
thirteen or fourteen years old when he touched her vagina.

B.    Jury Instructions

      The jury instructions included a general instruction that the jurors were
required to render a verdict of either “guilty” or “not guilty,” and that they could
“return a verdict only if all twelve of you agree on this verdict.” The instructions
included application paragraphs regarding two counts of indecency with a child by
touching the complainant’s genitals, two counts of indecency with a child by
touching the complainant’s breast, and one count of aggravated sexual assault by
causing the complainant’s sexual organ to contact the defendant’s mouth. The jury
filled out a separate verdict form for each count.

                                 II.    UNANIMITY

      Appellant contends that he suffered egregious harm by the trial court’s
failure to instruct the jury that for each count included in the charge, the jury “must
unanimously agree on one incident of criminal conduct, based on the evidence, that
meets all of the essential elements of the single charged offense beyond a
reasonable doubt.” He contends that the jury charge permitted a non-unanimous


                                           3
verdict because the complainant testified that the sexual abuse occurred “all the
time” or “many times.”

      Assuming without deciding that the instructions permitted a non-unanimous
verdict, appellant has not suffered egregious harm.

A.    Legal Principles

      “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.
(quotation omitted). “[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.” Id. at 772. “Each of the multiple incidents
individually establishes a different offense or unit of prosecution.” Id. (footnote
omitted). To ensure unanimity, the jury charge would need to “instruct the jury that
its verdict must be unanimous as to a single offense or unit of prosecution among
those presented.” Id.

      To reverse for jury charge error to which, as here, there was no objection,
the error must have caused actual egregious harm—not merely theoretical harm.
See Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Actual
egregious harm occurs if the jury charge affected the very basis of the case,
deprived the defendant of a valuable right, or vitally affected a defensive theory.
Id. This analysis is fact-specific and is done on a case-by-case basis. Id. An
appellate court will “inquire about the likelihood that the jury would in fact have
reached a non-unanimous verdict on the facts of the particular case.” Jourdan v.
State, 428 S.W.3d 86, 98 (Tex. Crim. App. 2014).


                                         4
      When assessing harm based on the particular facts of the case, we consider
(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. Arrington, 451 S.W.3d at 840.

B.    Analysis

      In this case, the only factor that weighs in favor of finding egregious harm is
that the instructions did not require the jury to agree upon which incidents of
indecency and aggravated sexual assault that appellant committed, from among the
many that the jury could have selected from the evidence, to support each of the
five verdicts of guilt. See id. at 841, 845.

      The state of the evidence and contested issues show that appellant’s defense
was “essentially of the same character and strength across the board.” See Cosio,
353 S.W.3d at 777. Appellant argued to the jury that (1) appellant was pressured
and harassed into confessing to family members; (2) appellant had not begun living
in the area until a year after the complainant said the abuse started; and (3)
appellant did not have access to the complainant, as the abuse occurred in a small
three-bedroom house with other family members nearby. The jury was not
persuaded by appellant’s defensive arguments, which amounted to a “categorical
denial of all accusations.” See Arrington, 451 S.W.3d at 844; see also Cosio, 353
S.W.3d at 777–78 (no egregious harm when the defendant’s defense to all four
incidents of criminal conduct was that he did not commit the offenses because the
complainant was not credible and the practical circumstances surrounding the
incidents did not corroborate the complainant’s testimony). The jury necessarily
disbelieved appellant’s defensive evidence; had the jury believed it, the jury would
have acquitted him. See Arrington, 451 S.W.3d at 842–44; see also Cosio, 353
S.W.3d at 777–78.

                                               5
      The complainant’s testimony about multiple instances of conduct was
general and not differentiated by specific dates or significant details. She testified
that the offenses occurred so many times that she could not count them. And,
according to the special agent, appellant confessed to two instances of touching the
complainant’s breast and two instances of touching the complainant’s sexual
organ, thus supporting the four convictions for indecency with a child. Based on
the totality of the evidence, it is highly unlikely that the jury could have found
appellant guilty of different instances of each offense occurring at different times
under the verdicts in this case. See Smith v. State, 515 S.W.3d 423, 430 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d) (reasoning that it was highly unlikely
the jury reached a non-unanimous verdict when the complainant’s testimony did
not provide any evidence from which the jury could differentiate the multiple
incidents of each offense occurring at different times).

      The parties did not make arguments to the jury concerning unanimity, so this
factor is neutral. See Arrington, 451 S.W.3d at 844. No other relevant information
in the record weighs in favor or against a finding of egregious harm. See Smith,
515 S.W.3d at 431.

      Considering the evidence in this case, coupled with the all-or-nothing
defensive theories, we cannot conclude that appellant suffered actual egregious
harm. See Arrington, 451 S.W.3d at 845; Cosio, 353 S.W.3d at 777–78.




                                          6
                               III.   CONCLUSION

      Appellant’s issue is overruled. The trial court’s judgment is affirmed.




                                      /s/       Ken Wise
                                                Justice


Panel consists of Justices Jamison, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                            7
