                           NUMBER 13-03-00392-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


BARRY LOUIS PIZZO,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 12th District Court
                         of Grimes County, Texas.


                MEMORANDUM OPINION ON REMAND

    Before Chief Justice Valdez and Justices Yañez and Rodriguez
       Memorandum Opinion on Remand by Justice Rodriguez

      A jury found appellant, Barry Louis Pizzo, guilty of indecency with a child. It

sentenced him to nine years imprisonment and assessed a $7,000.00 fine. On original

submission, relying on Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en

banc), and finding that the jury instruction properly charged different methods of

commission disjunctively, this Court affirmed. See Pizzo v. State, No. 13-03-392-CR, 2005
Tex. App. LEXIS 5457, at *2-4 (Tex. App.–Corpus Christi July 14, 2005) (mem. op. not

designated for publication), rev'd, 235 S.W.3d 711 (Tex. Crim. App. 2007). The Texas

Court of Criminal Appeals granted review and found error. Pizzo v. State, 235 S.W.3d 711,

714, 719 (Tex. Crim. App. 2007). Concluding that "the jury instruction improperly charged

two separate offenses in the disjunctive and therefore permitted a conviction on less than

a unanimous verdict," it reversed our judgment and remanded this case for a harm

analysis. Id. On remand, because we find some harm, we reverse the judgment of the trial

court and remand for a new trial.

                                               I. Background

        The court of criminal appeals set out the background in this case as follows:

                Pizzo was charged with, among other things, indecency with a child
        by contact in violation of Section 21.11(a)(1) of the Penal Code.1 Counts II
        and III of the indictment alleged that Pizzo

                 on or about the 21st day of June, 2001 . . . did then and there,
                 with the intent to arouse and gratify the sexual desire of said
                 Defendant, intentionally and knowingly engage in sexual
                 contact by touching the GENITALS AND BREASTS, of [A.S.],
                 a child younger than 17 years of age and not the spouse of the
                 Defendant.

        The evidence presented at trial showed that on two separate
        occasions—one in A.S.'s house and one in Pizzo's trailer—Pizzo touched
        both the breasts and genitals of A.S. At the charge conference, asserting his
        right to a unanimous jury verdict, Pizzo objected to the proposed charge
        because the application paragraphs as to Counts II and III set out the form
        of sexual contact in the disjunctive. Pizzo stated:

                 the words 'breast' or 'genitals' in each, are charged obviously
                 in the disjunctive. I'm requesting that they be charged in the
                 conjunctive with an 'and' because otherwise, you don't know if
                 six jurors decided 'genitals' and six decided 'breasts,' and the
                 possibility of a non-unanimous verdict because it's charged in
                 the same paragraph.


        1
        T EX . P EN AL C OD E A N N . § 21.11(a)(1) (Vernon Supp. 2000); id. § 21.01(2) (Vernon Supp. 1989), Acts,
1979, 66th Leg., ch. 168, § 1, eff. Aug. 27, 1979. (Footnote in original.)
                                                        2
       The trial judge overruled the objection and the charge submitted to the jury
       on Counts II and III read, in part, as follows:

              if you find from the evidence, beyond a reasonable doubt, that
              on or about the 21st day of June, 2001 in Grimes County,
              Texas the defendant, BARRY LOUIS PIZZO, did then and
              there intentionally or knowingly engage in sexual contact with
              [A.S.] by touching the genitals or breasts of [A.S.], and [A.S.]
              was then and there under the age of seventeen years and not
              the spouse of the defendant, and that said act, if any, was
              committed with the intent on the part of the defendant to
              arouse or gratify the sexual desire of himself, then you will find
              the defendant guilty . . . .

       As to Count II, the jury found Pizzo guilty and sentenced him to nine years'
       imprisonment and assessed a $ 7,000 fine. And, as to Count III, the jury
       found Pizzo not guilty.

Pizzo, 235 S.W.3d at 712-13 (remaining footnotes omitted). Finally, as to Count I, the jury

found Pizzo not guilty of sexual assault of a child—an act of oral sex that allegedly

occurred on June 21, 2001.

       Pizzo appealed his conviction under Count II, asserting in his sole point of error that

the trial judge erred "by overruling his objection to the court's charge requesting that the

terms 'breast or genitals' be charged in the conjunctive rather than in the disjunctive." Id.

at 713. Relying on Kitchens, we concluded that because the touching of the breasts and

genitals occurred during the same encounter, they were not separate offenses but were

only different means of committing the offense of indecency with a child by contact; thus,

there was no error. Pizzo, 2005 Tex. App. LEXIS 5457 at *3-4 (citing Kitchens, 823

S.W.2d at 258).

       The court of criminal appeals granted Pizzo's petition for discretionary review.

Pizzo, 235 S.W.3d at 714. In its opinion, after extensively analyzing sections 22.11 and

22.01 of the penal code, the court concluded that the offense of indecency with a child was


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a conduct-oriented offense. See id. at 714-19 (citing Stuhler v. State, 218 S.W.3d 706,

718-19 (Tex. Crim. App. 2007); Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App.

1999)). The court explained that,

         "[s]exual contact" . . . criminalizes three separate types of conduct—touching
         the anus, touching the breast, and touching the genitals with the requisite
         mental state.2 Therefore, each act constitutes a different criminal offense
         and juror unanimity is required as to the commission of any one of these
         acts. Because the indictment charged Pizzo with touching the breasts and
         genitals of A.S. in the conjunctive, Pizzo's right to a unanimous verdict was
         possibly violated by the trial judge's jury instruction charging breasts and
         genitals in the disjunctive. . . . [T]he instruction here allowed the jury to
         convict Pizzo without reaching a unanimous verdict on the same act. It is
         possible that six jurors convicted Pizzo for touching the breasts of A.S. while
         six others convicted Pizzo for touching the genitals of A.S.

Id. at 719 (footnote added). Because the trial judge's jury instruction permitted a conviction

on less than a unanimous verdict, the court of criminal appeals concluded we erred in

holding otherwise and reversed the judgment of the trial court and remanded the case to

this Court for a harm analysis under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984) (en banc). Id.

                                              II. Applicable Law

         "Under our state constitution, jury unanimity is required in felony cases, and, under

our state statutes, unanimity is required in all criminal cases." Id. (quoting Ngo v. State,

175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (en banc)). "The unanimity requirement is

undercut when a jury risks convicting the defendant on different acts, instead of agreeing



         2
          Section 21.11 provides the following: "(a) A person com m its an offense if, with a child younger than
17 years and not his spouse, whether the child is of the sam e or opposite sex, he: (1) engages in sexual
contact with the child; . . . ." T EX . P EN AL C OD E A N N . § 21.11(a)(1) (Vernon 2003). The definition of "sexual
contact" in effect when Pizzo com m itted the offense was "any touching of the anus, breast, or any part of the
genitals of another person with intent to arouse or gratify the sexual desire of any person." Id. § 21.01 (2)
(currently codified at T EX . P EN AL C OD E A N N . § 22.11(c) (Vernon 2003), Acts 77th Leg., ch. 739 § 2, eff. Sept.
1, 2001).



                                                          4
on the same act for a conviction." Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App.

2000). Error having been found in this case, we must now evaluate whether sufficient

harm resulted to require reversal. See Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.

Crim. App. 1994) (en banc).

       Pizzo properly objected to the improper charge; therefore, reversal is required if the

error is "calculated to injure the rights of defendant," which means no more than that there

must be some harm to the accused from the error. Almanza, 686 S.W.2d at 171; see TEX .

CODE CRIM . PROC . ANN . art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at 731-32.

In other words, an error, properly preserved, will call for reversal as long as the error is not

harmless. Almanza, 686 S.W.2d at 171. The actual degree of harm must be assayed in

light of 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 record of the trial as a whole. Id.; compare Landrian v. State, No. 01-05-

00697-CR, 2007 Tex. App. LEXIS 6290, *20-27 (Tex. App.–Houston [1st Dist.] August 9,

2007, pet. granted) (designated for publication) (analyzing four Almanza factors and finding

some harm in a less-than-unanimous-verdict aggravated assault case) and Giesberg v.

State, 945 S.W.2d 120, 130-31 (Tex. App.–Houston [1st Dist.] 1997) (supplemental opinion

on motion for rehr'g) aff'd, 984 S.W.2d 245 (Tex. Crim. App. 1998) (analyzing four Almanza

factors and finding no harm in a less-than-unanimous-verdict murder case) with In re M.P.,

126 S.W.3d 228, 232 (Tex. App. San Antonio 2003, no. pet.) (concluding M.P. clearly

suffered at minimum some harm from this jury charge since it is unclear whether the jury

was unanimous in finding M.P. guilty of any of the offenses listed in the charge, without

analyzing the four Almanza factors in a juvenile matter) and Francis v. State, 53 S.W.3d




                                               5
685, 687 (Tex. App.–Fort Worth 2001, pet. ref'd) (holding that some harm was shown

because the jury was capable of returning a less than unanimous verdict, without analyzing

the four Almanza factors in an indecency-with-a-child case).

                                          III. Harm

                                 A. The Entire Jury Charge

       The jury instruction regarding Count II indecency with a child charged two separate

offenses in the disjunctive, allowing for the possibility of six jurors convicting Pizzo for

touching the breasts of A.S. and six others convicting Pizzo for touching the genitals of

A.S., as the court of criminal appeals concluded in finding error. This possibility is enough

for a determination of error in the unanimity of a charge. See Pizzo, 235 S.W.3d at 719.

       Our review of the entire jury charge also reveals that the charge contained a second

application paragraph—Count III indecency with a child—that used language identical to

that used in the application paragraph for Count II. It, too, charged that the jury was to find

Pizzo guilty if it concluded that he "engage[d] in sexual contact with [A.S.] by touching the

genitals or breasts of [A.S.] . . . and that said act, if any, was committed with the intent on

the part of the defendant to arouse or gratify the sexual desire of himself . . . ." With this

application paragraph the jury was charged to consider two separate offenses—touching

the genitals of A.S. or touching the breasts of A.S. on a second occasion. Pizzo was found

guilty of Count II and was acquitted of Count III. He was also acquitted of Count I, the

sexual assault charge.

       Based on our review of the trial record, we cannot determine of which act or acts

Pizzo was acquitted in Count III. Perhaps the jury found appellant not guilty of the

touchings that allegedly occurred at A.S.'s house because it also acquitted Pizzo of sexual

assault, an act that allegedly happened during the same episode. Or, perhaps the jury


                                              6
acquitted Pizzo for the alleged touchings that occurred at the trailer because it determined

that the counts were set out chronologically and Count II referred to the episode at A.S.'s

house and Count III to the episode that happened later at Pizzo's trailer. We can only

speculate as to which offense the jury found Pizzo guilty and which offense it found him

not guilty and as to whether this affected the unanimity of the verdict.

       In addition, the application paragraph submitted to the jury on Count II did not

instruct the jury that it must be unanimous in deciding which one (or more) of the submitted

offenses it found Pizzo committed. As the court of criminal appeals expressed in Ngo,

while we acknowledge that the words "unanimous" or "unanimously" are not required in a

jury charge, because Texas law explicitly requires a jury's verdict to be unanimous, the

addition of the word before the description of each distinct criminal act in an application

paragraph would "merely be one way to implement that legal requirement." 175 S.W.3d

at 749 n.44. Moreover, while the charge generally referred to a unanimous verdict, it did

so only when the jury was instructed with regard to its deliberations—"when you have

unanimously agreed upon a verdict" and "[a]fter you have reached a unanimous verdict."

And, there was not a separate general unanimity instruction in the application paragraphs.

                                      B. The Evidence

       The court of criminal appeals found the evidence showed that Pizzo touched both

the breasts and genitals of A.S. on two separate occasions—at the house and in the trailer.

See Pizzo, 235 S.W.3d at 712-13. This evidence, however, was contested by testimony

provided by Pizzo, who denied committing any of the offenses. Additionally, at trial, after

a day of cross-examination, A.S. admitted that she was not "completely honest" the

previous day. Pizzo, likewise, presented trial testimony that conflicted, as all parties agree,

with portions of a statement he had given in this case. With one guilty verdict and two not



                                              7
guilty verdicts, the jury possibly questioned the credibility of both witnesses. Moreover, as

often happens in an indecency-with-a-child case, there were no eyewitnesses.

                                  C. Argument of Counsel

       The State did not address juror unanimity in its closing argument, either generally

or specifically as to each count. During the charge conference outside the presence of the

jury, following Pizzo's objection that there was a possibility of a non-unanimous verdict

because the offenses were charged in the disjunctive, the State responded that "[t]he law

exists that you can plead manner and means in the conjunctive and prove in the

disjunctive." As determined by the court of criminal appeals in this case, this is an incorrect

statement of law. See Pizzo, 235 S.W.3d at 714-19. However, our review of the record,

specifically voir dire and closing argument, reveals no occasion where the State made

misstatements of law to the jury regarding the requirement of a unanimous verdict, and

Pizzo raises no such contention.

                              D. Other Relevant Information

       During voir dire the trial court correctly informed the jury that "in a criminal case the

verdict must be unanimous."        However, a note from the jury to the court during

deliberations suggests some confusion regarding unanimity. The note read as follows:

"Do the counts in the charge have to be tied to each of the specific instances we have

heard evidence about?" The trial court's response was "yes."

                             E. Determination of Some Harm

       The charge did not require the jury to decide unanimously whether appellant

touched the breasts of A.S. or to decide unanimously whether appellant touched the

genitals of A.S.—two separate offenses for which a unanimous verdict is required. This

error was further compounded by the inclusion of a second application paragraph using



                                               8
identical language for a second indecency-with-a-child count. There is no reference in the

charge or in the record as a whole to which episode each application paragraph applied.

Additionally, the jury appeared concerned about how the counts were to be "tied" to "each

of the specific instances" about which evidence was heard. These charge-related matters

favor a finding of some harm.

        Regarding the state of the evidence, there was conflicting testimony provided by the

victim and Pizzo, both of whom had their credibility attacked. Concluding that every

member of the jury unanimously believed A.S. with regard to either the touching of the

breast or the touching of the genitals as charged in Count II, or with regard to both, would

be mere speculation. Therefore, we conclude that the status of the evidence supports a

finding of some harm.

        Finally, from our review of the record, including voir dire and the State's argument,

we have identified no other instances that would impact our determination of harm in this

case.

        Based on the above, we conclude some harm has been shown to Pizzo from the

error. See Almanza, 686 S.W.2d at 171. We sustain Pizzo's sole issue.

                                      IV. Conclusion

        We reverse the trial court's judgment and remand this case to the trial court for a

new trial.



                                                         NELDA V. RODRIGUEZ
                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion on Remand delivered
and filed this 17th day of July, 2008.


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