                                       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.

                                                 9
       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.

                                                 10
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.




                                         13
