      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00203-CR
                                       NO. 03-04-00270-CR




                               Craig Jonathan Warner, Appellant

                                                  v.

                                   The State of Texas, Appellee




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
         NOS. 7410 & 7411, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Craig Jonathan Warner appeals from two judgments after conviction by a jury of the

offenses of aggravated sexual assault of a child under 14. See Tex. Pen. Code Ann. § 22.021(a)

(West Supp. 2004-05). These causes involving alleged acts on the same day against two separate

children were tried together by agreement of the parties. The jury assessed punishment at 99 years

in prison and a $10,000 fine, the sentences to run concurrently. In a single issue on appeal, appellant

challenges the charge to the jury on the ground that it permitted the jury to convict on less than a

unanimous verdict. Because appellant failed to seek an election and otherwise failed to preserve

error and there was no egregious harm so as to deprive appellant of a fair and impartial trial, we

affirm the judgments of conviction.
                       FACTUAL AND PROCEDURAL BACKGROUND

                Appellant and Stephanie Warner were married in 1999 and lived in Kempner in

Lampasas County with an eight-year-old daughter, M.J., and a son, both of whom were born of a

prior relationship of Mrs. Warner’s, and a daughter born of this marriage. On the evening of March

22, 2003, Y.R., the daughter of Mrs. Warner’s cousin, came to spend the night with M.J. at the

Warner home.1 After the family had cooked dinner outdoors, the two girls asked Mrs. Warner if

appellant “could sleep with them in the playroom” where they were spending the night. Although

Mrs. Warner thought it was an unusual request, she agreed to it. Appellant went to the playroom

with the girls to watch television and the rest of the family went to their respective rooms. Mrs.

Warner sewed in her room until she went to sleep. She was awakened at midnight by laughter from

the playroom and went to check on the girls. She found the door locked. Upon unlocking the door

and viewing appellant and the girls laying next to one another, Mrs. Warner questioned why the door

was locked. Although she recalled some unease because the three were playing and Y.R. appeared

to be spanking appellant, she returned to her room and fell asleep.

                Later that day, as Mrs. Warner helped M.J. get dressed, she observed an unusual dark

smudge on M.J.’s pajamas. When asked about the stain, M.J. responded that it was “from pushing

Daddy.” Mrs. Warner then asked whether appellant was tickling or wrestling with her. M.J.

responded, “No, I was pushing Daddy off of [Y.R.].” Mrs. Warner then testified that M.J. got “really

quiet on me, and she looked away,” and worried that Mrs. Warner was going to get mad at her.

When Mrs. Warner assured her that she would not, M.J. told her that appellant touched Y.R. “down

there,” and pointed “down.”


       1
           At the time of trial in January 2004, both girls were nine years old.

                                                   2
               Mrs. Warner alerted Y.R.’s mother and took both children to Metroplex Hospital

where she and the children were referred to Scott & White Hospital for a full medical and sexual

assault examination conducted by Dr. Pamela Green, a physician in obstetrics and gynecology at

Scott & White. At trial, Dr. Green opined that there had been penetration at least of the female

sexual organ “past the outer lips,” if not of the vagina, of both girls. She testified concerning the

physical evidence as well as the information provided by the girls reflecting the sexual acts

committed on the girls.

               On April 17, 2003, the State indicted appellant in two separate indictments for the

offenses of aggravated sexual assault of a child under 14. The jury returned a general verdict of

guilty in both causes.


                                            ANALYSIS

               In appellant’s sole issue presented, he contends that the trial court erred by submitting

a charge that permitted the jury to convict on less than a unanimous verdict. Tex. Const. art. V, § 13;

Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2004-05). He argues that the trial court

allowed the jury’s general verdict to be based on multiple, distinct offenses thus inviting the jury to

convict on any one of the three offenses in the charging paragraphs. See Francis v. State, 36 S.W.3d

121, 125 (Tex. Crim. App. 2000); Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999);

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 958 (1992).

               The indictments were identical as to both children and, in a single count charging

aggravated sexual assault, contained three paragraphs alleging that appellant, on or about March 23,

2003,



                                                  3
       did then and there intentionally or knowingly cause the penetration of the female
       sexual organ of [named child], a child younger than 14 years of age who was not the
       spouse of said defendant by inserting defendant’s finger,

       Paragraph Two: did then and there intentionally or knowingly cause the sexual organ
       of [named child] a child younger than 14 years of age who was not the spouse of said
       defendant to contact the mouth of defendant,

       Paragraph Three: did then and there intentionally or knowingly cause the anus of
       [named child], a child younger than 14 years of age who was not the spouse of said
       defendant to contact the sexual organ of the defendant.


               Appellant pleaded not guilty in both causes. The parties agreed to try the causes

together. At trial, the State presented testimony from the following witnesses: Stephanie Warner,

appellant’s wife who observed appellant and the children in the playroom and received the first

outcry; Sandra Riley, Y.R.’s mother; Dr. Pamela Green, the doctor who performed the medical and

sexual assault examination at Scott & White; Amy Penny, a forensic interviewer with the Hill

County Children’s Advocacy Center in Burnet who conducted the videotaped interviews of the girls;

David Whitis, a sergeant investigator with the Lampasas Sheriff’s Office, who investigated the

sexual assault allegations; Brent Watson, a criminalist for the Texas Department of Public Safety

crime laboratory in Waco, who examined the evidence recovered from the girls, and testified, among

other things, to finding semen in a sample obtained from Y.R.; Blake Goertz, the DNA section

supervisor with the DPS Waco crime lab; and the two girls, Y.R. and M.J.

               The defense presented the testimony of three witnesses: Stephanie Warner, who

testified about M.J.’s testimony that the abuse had occurred since M.J. was in kindergarten and

whether appellant was in fact abroad in the military at the time that episode of abuse was alleged to

have occurred; appellant’s ex-wife who testified that appellant had been alone with young girls when

they were married and no one had ever complained; and a family physician, who had conducted a

                                                 4
semen analysis on appellant and testified that the seminal fluid found in Y.R. was inconsistent with

appellant’s.

               Appellant did not object to the charge nor did he submit a proposed instruction. At

the charge conference, appellant’s trial counsel stated he had no objection to the charge. In response

to the court’s inquiry whether counsel had taken a “look” at the charge, the State responded, “I think

[appellant’s counsel] wants the failure to testify in there.” The charge included instructions

concerning reasonable doubt and a unanimous verdict which are not separately challenged on appeal.

               The trial court’s charge to the jury read, in pertinent part


               Our law provides that a person commits the offense of aggravated sexual
       assault of a child if he intentionally or knowingly causes penetration of the female
       sexual organ by any means or causes the anus of a child under 14 years of age to
       contact the sexual organ of another person; or causes the sexual organ of a child
       under 14 years of age to contact the mouth of another person, including the actor and
       the child is not the spouse of the person committing the offense.

               ....

               Now if you find from the evidence beyond a reasonable doubt that on or about
       the 23rd day of March, 2003 in Lampasas County, Texas the defendant, Craig
       Jonathan Warner, did then and there intentionally or knowingly cause the penetration
       of the female sexual organ of [Y.R.], a child younger than 14 years of age, who was
       not the spouse of said defendant by inserting defendant’s finger or cause the sexual
       organ of [Y.R.] to contact the defendant’s mouth, or did then and there intentionally
       or knowingly cause the anus of [Y.R.] who was not the spouse of the defendant to
       contact the sexual organ of the defendant, then you will find the defendant guilty of
       aggravated sexual assault and so say by your verdict, but if you do not so believe, or
       if you have a reasonable doubt thereof, you will acquit the defendant of the offense
       of aggravated sexual assault and say by your verdict “Not Guilty” of said offense.


An identical paragraph was included with respect to the other cause and M.J.

               Two separate verdict forms relating to victims Y.R. and M.J. referenced the single

offense of aggravated assault. The jury returned a verdict finding appellant guilty in both causes.

                                                  5
                Our disposition of this point is controlled by Ngo v. State, No. PD-0504-04, 2005

Tex. Crim. App. LEXIS 457, at *11-13 (Tex. Crim. App. March 16, 2005); Francis, 36 S.W.3d at

125 and Vick, 991 S.W.2d at 833. We are initially guided in our analysis by the court’s opinion in

Francis. In Francis, the defendant was charged with a single count of indecency with a child. Id.

at 122. The State introduced evidence of four acts of indecency, but elected to proceed on only two

of those acts. “Throughout the trial, appellant asked the trial court to require the State to elect

between the two different acts of indecency, but the trial court denied these requests.” Id. At the

close of the State’s evidence, appellant again requested that the trial court require the State to elect

between the two acts. Appellant argued that if the State was not limited to one act, the jury could

come to a non-unanimous verdict, with some jurors believing he committed one act while other

believed he committed the second act. The trial court overruled appellant’s objections. Id. The trial

court also denied appellant’s requested charge that would have required the State to prove that

appellant committed both alleged acts of indecency. Id.

                On appeal, the court of criminal appeals granted appellant’s petition for discretionary

review to consider whether “the court of appeals erred in holding that the charge submitted to the

jury allowing a conviction on less than a unanimous verdict was not error.” Id. The court first

considered whether error had been preserved:


        Considering appellant’s objection to the charge, his repeated attempts to require the
        State to elect, and the unique nature of the indictment and the incidents alleged in this
        case, appellant’s objection to the jury charge was sufficient to apprise the trial judge
        of the potential charge error.


Id. at 123. The court held that appellant properly preserved the error for appellate review and that

error existed in the jury charge. The court then remanded the cause for a harm analysis. Id. at 125.

                                                   6
                Likewise, here the State charged three different violations of the same offense in a

single count containing three paragraphs. Because the State affirmatively decided to seek only one

conviction, the jury charge contained error. See Tex. Pen. Code Ann. § 22.021(a);2 Vick, 991 S.W.2d

at 834. Finding error, we must analyze that error for harm.

                Even if we assume there was error, we must determine whether any error was harmful

enough to require reversal. See Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).

When defense counsel does not object to a jury charge, error, if any, does not require reversal unless

it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The degree of harm required for reversal turns on



       2
         The penal code provides that a person commits aggravated sexual assault when, among
other ways, the person

           (a)(1)(B) intentionally or knowingly:

                      (i) causes the penetration of the anus or sexual organ of a child by any means;

                      (ii) causes the penetration of the mouth of a child by the sexual organ of the
                           actor;

                      (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus,
                            or sexual organ of another person, including the actor;

                      (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of
                           another person, including the actor; or

                      (v) causes the mouth of a child to contact the anus or sexual organ of another
                          person, including the actor; and

                (2)   if:

                      (B) the victim is younger than 14 years of age . . . .

Tex. Pen. Code Ann. § 22.021(a) (West Supp. 2004-2005).

                                                   7
whether appellant preserved error in the trial court. Abdnor, 871 S.W.2d at 732. An appellant who

timely objects to the charge preserves error for review, and reversal is required only on the finding

of “some harm.” Id.

               Here, appellant agreed to try the causes together in a single trial. Appellant made no

objection to the court’s charge nor did he submit a charge or any requested language. Nor did

appellant ever move for or otherwise seek an election requiring the State to elect which act it would

rely on for conviction. Thus, appellant failed to preserve error. Francis, 36 S.W.3d at 124; O’Neal

v. State, 746 S.W.2d 769, 771 n.3 (Tex. Crim. App. 1988).

               There is a split of authority among our sister courts regarding the harm analysis to be

used in evaluating jury charge error implicating jury unanimity issues. Compare Phillips v. State,

130 S.W.3d 343, 352 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) with Cates v. State, 72

S.W.3d 681, 696-97 (Tex. App.—Tyler 2001, no pet.) and Wilson v. State, 3 S.W.3d 223, 226 (Tex.

App.—Waco 1999, pet. ref’d). Until this issue is resolved by the court of criminal appeals, we are

guided by the court’s opinion in Ngo observing that jury unanimity is one of the purposes of

requiring the State to make an election and is required by the Texas Constitution in felony cases.

2005 Tex. Crim. App. LEXIS 457, at *14, *23. We therefore apply the constitutional error standard

of review.   If there is a reasonable likelihood that the error materially affected the jury’s

deliberations, then, the error is not harmless beyond a reasonable doubt. Wesbrook v. State, 29

S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). While the most

significant concern must be the error and its effects, the presence of overwhelming evidence

supporting the finding in question can be a factor in the evaluation of harmless error. Id.

                                                 8
               To assess the degree of harm, we examine the entire jury charge, the state of the

evidence, including the contested issues and weight of the probative evidence, the arguments of

counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza,

686 S.W.2d at 171. We examine the relevant portions of the entire record to determine whether

appellant suffered any actual, rather than theoretical, harm as a result of the error. Arline v. State,

721 S.W.2d 348, 352 (Tex. Crim. App. 1986). Errors that result in egregious harm are those that

affect “the very basis of the case,” “deprive the defendant of a valuable right,” or “vitally affect a

defensive theory.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza,

686 S.W.2d at 172). It is the appellant’s burden to prove that he suffered some actual, rather than

merely theoretical, harm from the error. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App.

1999) (citing Arline, 721 S.W.2d at 351).

               Examining these factors, we conclude that appellant has not carried his burden to

prove that he suffered actual, rather than theoretical, harm from the error. As an initial matter, we

may not second-guess appellant’s strategy in trying these causes together and in declining to seek

an election by the State. Perhaps he recognized that the repeated commission of the same offense

or violations of multiple subsections of section 22.021(a) may be tried in a single criminal action and

punished by consecutive sentences. See, e.g., Patterson v. State, 152 S.W.3d 88, 91 (Tex. Crim.

App. 2004). The State’s failure to make an election also enhances an accused’s double jeopardy

protections. If the State does not make an election, it is barred from prosecuting in the future any

offense within the scope of the indictment and for which evidence was introduced at trial. See

Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003); Ex parte Goodbread, 967 S.W.2d

                                                  9
859, 860-61 (Tex. Crim. App. 1998). The error therefore benefitted appellant by protecting him

against future prosecutions. See Campbell v. State, 149 S.W.3d 149, 156-157 (Tex. Crim. App.

2004) (Keller, J., concurring) (explaining interplay between double jeopardy and election). In the

present case, appellant was exposed to a single count in both causes rather than multiple counts and

consecutive sentences. That appellant’s counsel understood this benefit is reflected by the fact that

he filed a motion to quash a second count in the indictments that charged indecency with a child.

He argued that it was the same criminal conduct charged in two different counts and was a violation

of the double jeopardy clause. The motion was deferred until trial and the count was abandoned by

the State at the close of its case. Citing Patterson, the State agreed the indecency with a child

offense was subsumed within the charge of aggravated sexual assault. See Patterson, 152 S.W.3d

at 91.

               This is not a case in which appellant complains of the trial court’s denial of a motion

to elect.3 See, e.g., Wilson v. State, No. 11-03-00282-CR, 2005 Tex. App. LEXIS 5623, at *11 (Tex.

App.—Eastland July 21, 2005, no pet.); Dixon v. State, No. 14-03-01259-CR, 2005 Tex. App.

LEXIS 5609, at * 5 (Tex. App.—Houston [14th Dist.] July 21, 2005, no pet.); Farr v. State, 140

S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2004, pet. granted); Phillips, 130 S.W.3d at 349;

Gutierrez v. State, 8 S.W.3d 739, 748 (Tex. App.—Austin 1999, no pet.); Wilson, 3 S.W.3d at 225;

see also Francis, 36 S.W.3d at 122. The State may present evidence of the acts charged or that the

charged acts occurred on multiple occasions. See Worley v. State, 870 S.W.2d 620, 622 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d). Upon the timely motion by the defendant, the State is


         3
         Our analysis of the election requirement is controlled by O’Neal v. State, 746 S.W.2d 769,
771-73 (Tex. Crim. App. 1988).

                                                 10
required to make an election of those acts upon which it will rely to pursue a conviction. O’Neal,

746 S.W.2d at 771 n.3. Absent such a motion by the defendant, the State is not required to make an

election. Id.; Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985). The record reflects

that appellant’s counsel considered and then rejected a request for an election.

               Here, appellant failed to alert the trial court to his unanimous jury verdict claim. He

did not request a severance of any charges; he does not dispute the State’s assertion that he sought

to try the two causes together. He failed to object to any statements by the prosecution and the trial

court during voir dire or opening argument that might relate to his claim now. Nor did he object to

the closing argument of the State following the reading of the court’s charge in which the prosecutor

urged


        Paragraph one tells you that this assault, this type of assault can be committed in
        three different ways, and they’re listed there. And they are co-joined by a disjunctive
        word “or” which means that you may find from the evidence beyond a reasonable
        doubt that one of those ways was proved to your satisfaction beyond a reasonable
        doubt. You may find that two of them, two of the three, you may find that all three
        were substantiated by the testimony and/or medical evidence and the work-up by the
        lab. You may find all three of them there, but you only need to find one in order to
        find the defendant guilty of the offense of aggravated sexual assault of a child.


               Importantly, the State introduced evidence supporting the three paragraphs and

appellant does not challenge the sufficiency of that evidence. See Kitchens, 823 S.W.2d at 259.

M.J., appellant’s stepdaughter, and Y.R. both testified at trial. M.J. testified over no objection that

appellant had touched her “in a bad way” from the time she was in kindergarten, when she was five

or six-years-old. She testified that on the late night of March 22, appellant “raped” the two girls in

the playroom. She acknowledged on cross examination that she had learned the word from her


                                                  11
mother and that to her it meant that he touched her “in very bad spots.” That night, he touched her

“pee-pee” with his “private part”; earlier in the evening he had touched her with his “private,” finger,

and tongue.

                Y.R. also testified that while they were in the playroom overnight appellant put his

“virgina,” which she also referred to as his private part, “in mine” and “in my bottom” as she was

laying on his stomach. Earlier that evening he touched her “virgina” with his mouth which she also

observed him do on M.J. She testified that later that morning he pushed his “private part” into her

“virgina.” Both girls were also videotaped by the forensic interviewer and the videotapes were

introduced into evidence.

                Dr. Green examined the two girls and testified concerning the physical evidence she

observed during the medical and sexual assault examination. She opined that there had been

penetration at least of the female sexual organ “past the outer lips,” if not of the vagina, of both girls.

Dr. Green also testified that as part of her medical history, M.J. told her that appellant had done bad

things to her since kindergarten, including “putting his finger in her pee-pee” and his tongue in her

mouth. At the hospital, M.J. told Dr. Green: “He did it with us, me first. His wiener touched my

pee-pee and my butt. His mouth touched my pee-pee.” Y.R. told Dr. Green, and Green recorded

in her forensic examination report, that appellant’s penis touched her “virgina” and also M.J.’s, that

appellant touched her “boobies” with his hands, and that he “French kissed my mouth and my

vagina.” Green then recorded that Y.R. told her: “He put his penis in my butt. I told him to stop

but he said it was too hard for him to stop. He did it again in the morning. . . . He told us to lick it

or kiss it (his penis). Me & [M.J.] said ‘no.’” None of the defense witnesses testified as to the

events that transpired—or that they did not—with the girls.

                                                    12
                   In his closing argument, appellant’s counsel argued that the inconsistencies in the

girls’ statements, the videotaped statements, and testimony could not be reconciled and that “it never

happened.” Viewing the indictment, evidence, and charge in its entirety, it is evident that the jury

simply did not believe the defense case. Had the jury credited the defense witnesses or disbelieved

the young girls, it would have acquitted him. With young children who struggle even with the

vocabulary of what has transpired, the defendant has not suffered actual harm when he fails to

challenge that from which he may arguably have sought benefit.

                   Based on the state of the record, appellant has not carried his burden to show that he

suffered actual and not theoretical harm from any error. The harm espoused by appellant is merely

theoretical and not supported by the record. We conclude that appellant was not “egregiously

harmed” by any error in the charge because the jury could have given effect to appellant’s defense

theory and acquitted him under the instructions given, and the evidence is sufficient to support the

allegations. Cf. Gonzalez v. State, 8 S.W.3d 640, 641 (Tex. Crim. App. 2000) (general substantive

constitutional rule is that “a general verdict [is] valid so long as it [is] legally supportable on one of

the submitted grounds—even though that [gives] no assurance that a valid ground, rather than an

invalid one, [is] actually the basis for the jury’s action.”).

                   Given the nature of the allegations in the indictment, the proof at trial, and the charge

and jury argument about the charge, we conclude that appellant was not deprived of a fair and

impartial trial.




                                                      13
                                          CONCLUSION

               Accordingly, we conclude that any error did not rise to the level of egregious harm

so as to deprive appellant of a fair and impartial trial. Overruling appellant’s sole issue presented,

we affirm the judgments of conviction.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: September 22, 2005

Do Not Publish




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