                              NUMBER 13-08-00189-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

JESUS E. COSIO,                                                                  Appellant,

                                              v.

THE STATE OF TEXAS,                                                               Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                 DISSENTING/CONCURRING OPINION
                         Before the Court En Banc
              Dissenting/Concurring Opinion by Justice Garza
       I concur in part and dissent in part from the majority’s opinion today because I

believe that: (1) there was no error in the jury charge; (2) even if there was error, that error

was not preserved for our review; and (3) even if Cosio was not required to preserve his

error in order to obtain an egregious harm review, he did not suffer egregious harm.

       I concur with Part I of the majority’s opinion because I agree the testimony

pertaining to Count 3 was insufficient. The victim testified that, when she was about nine

or ten years of age, Cosio showed her pornographic movies in her mother’s room. She

testified that he touched her breasts and put his penis in her. Cosio was charged with
touching part of the genitals of the victim for the events on this date. However, there was

no testimony to support this charge. Accordingly, I concur with this part of the judgment.

        I dissent from Part II of the majority’s opinion for several reasons. First, I do not

believe that there was any error in the jury charge. The child victim in this case testified

to four separate, distinct instances of sexual abuse. These four instances correspond to

the four counts included in the jury charge. The majority notes correctly that “there was

evidence of more than one specific act of Cosio penetrating the complainant’s mouth with

his penis and evidence of more than one specific act of Cosio penetrating the

complainant’s vagina with his penis.” The majority concludes that, therefore, the jury might

not have been unanimous about each specific criminal act charged. However, the majority

fails to note that the jury charges in this case differentiated among the various acts testified

to by the victim by specifying when those acts were alleged to have occurred. Specifically,

the jury charge: (1) with respect to the first count, inquired whether Cosio caused his

sexual organ to penetrate the mouth of the victim on or about July 31, 20041; (2) with

respect to the second count, inquired whether Cosio caused his sexual organ to penetrate

the victim’s sexual organ on or about July 31, 2003; (3) with respect to the third count,

inquired whether Cosio touched part of the victim’s genitals on or about July 31, 2004; and

(4) with respect to the fourth count, inquired whether Cosio touched part of the victim’s

genitals on or about July 31, 2003. The victim’s testimony with respect to three of the four

criminal acts committed by Cosio included estimates as to when those acts occurred.

Specifically, the victim testified that: (1) when she was seven or eight years old, while in

her mother’s room, Cosio “made me suck his penis” and “put his penis in my vagina”; (2)



          1
            The jury charge specified that the acts described in counts 2 and 4 occurred on or about July 31,
2003, and the acts described in counts 1 and 3 occurred on or about July 31, 2004. The m ajority determ ines
that the events in question occurred during the years 1999-2001 and 2001-2003, rather than 2003 and 2004
as charged. H owever, “the State m ay prove that an offense was com m itted before, on, or after the date
alleged in the [indictm ent], so long as the date is anterior to the presentm ent of the inform ation and not barred
by lim itation.” Mireles v. State, 901 S.W .2d 458, 459 (Tex. Crim . App. 1995).


                                                         2
when she was seven or eight years old, while she was in the shower in her mother’s house,

Cosio “touched [her] breast, [her] private part, mostly everywhere”; and (3) when she was

nine or ten years old, Cosio showed her pornographic movies, touched her breasts and put

his penis in her vagina. I believe that, when viewed in light of the victim’s testimony, the

jury charge was specific enough with respect to the various allegations as to allow the jury

to arrive at a unanimous verdict.          2


        Even if error is found in the jury charge, I do not believe that Cosio successfully

preserved that error, because he did not request that the State elect which particular

instance of each criminal act it would rely upon for conviction. It is well-established that if

one act of sexual assault is alleged in the indictment but more than one act is shown by

the evidence presented at trial, “the State must elect the act upon which it would rely for

conviction.” O’Neal v. State, 746 S.W.2d 769, 770 (Tex. Crim. App. 1988); see Pedersen

v. State, 237 S.W.3d 882, 884 (Tex. App.–Texarkana 2007, pet. ref’d); see also Molina v.

State, No. 05-05-05199-CR, 2006 Tex. App. LEXIS 9670, at *2 (Tex. App.–Dallas Nov. 8,

2006, pet. ref’d) (not designated for publication). However, it is equally well-established

that if a defendant does not request that the State make this election, then the issue of jury

unanimity is not preserved for appellate review. See O’Neal, 746 S.W.2d at 770 n.3

(“[A]ppellant preserved error by his motion to require election. Absent such a motion by

the defendant, the State is not required to make an election.”); Pedersen, 237 S.W.3d at

884 (“Pedersen contends the trial court erred by failing to require the State to make an



        2
            The m ajority suggests, but does not state explicitly, that the real problem with the jury charge was
that it did not instruct the jury that it m ust be “unanim ous as to a specific crim inal act.” I disagree that the
om ission of this precise instruction rendered the jury charge defective. The charge in this case was subm itted
to the jury in four parts, each separately styled and entitled “CHARGE OF THE COURT” and each referencing
exactly one count against Cosio. Each of the four docum ents stated that “[i]n order to return a verdict, each
juror m ust agree thereto,” and that “[y]our verdict m ust be unanim ous.” Because these instructions were given
four tim es, in each of the charge docum ents, I believe that the jury was sufficiently instructed as to the
unanim ity requirem ent. See Kitchens v. State, 823 S.W .2d 256, 258 n.2 (Tex. Crim . App. 1991) (finding sam e
language to be sufficient to satisfy unanim ity requirem ent in Texas Code of Crim inal Procedure article 36.29);
see also Rodriguez v. State, No. 13-05-522-CR, 2006 Tex. App. LEXIS 7253, at *7 (Tex. App.–Corpus Christi
Aug. 17, 2006, no pet.) (m em . op., not designated for publication) (finding instruction stating, for each count,
that “[y]our verdict m ust be unanim ous,” to be sufficient to preserve appellant’s right to unanim ous verdict).

                                                        3
election among the various criminal incidents suggested by the evidence as the basis for

submitting the charges to the jury. . . . In this case, Pedersen did not ask the State to

make such an election. Therefore, Pedersen did not preserve for appellate review the

issue of whether the trial court erred by not directing the State to make an election in this

case.”); see also Molina, 2006 Tex. App. LEXIS 9670, at *2-3 (“[A]ppellant contends the

trial court erred in failing to require the State to elect the specific act on which it was relying

for conviction in this multiple transaction case. Appellant also argues the trial court’s failure

to require such an election abridged his right to a unanimous jury verdict. . . . In the

present case, appellant did not request the State to make an election and we find no

authority suggesting the trial court should have ordered one on its own motion. Therefore,

appellant has failed to preserve his complaint regarding the trial court’s failure to order the

State to make an election and any resulting abridgment of his right to jury unanimity.”); see

also Lopez v. State, No. 13-05-759-CR, 2006 Tex. App. LEXIS 7510, at *6-7 (Tex.

App.–Corpus Christi Aug. 24, 2006, no pet.) (mem. op., not designated for publication);

Lee v. State, No. 2-01-433-CR, 2003 Tex. App. LEXIS 4043, at *4-5 (Tex. App.–Fort Worth

May 8, 2003, no pet.) (mem. op., not designated for publication). Here, Cosio did not

request that the State elect which specific instance of sexual assault or indecent contact

would be relied upon for conviction with respect to any of the four counts. Accordingly, I

would find that this alleged error has not been preserved for our review.

       The majority relies on Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005), in

concluding that Cosio’s issue should be treated as one of charge error, where an egregious

harm analysis is required without regard to preservation of error. See id.; Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). While I do not disagree with the

standard articulated by Ngo, I question its applicability to this case. Ngo involved one

charge arising from three separate statutorily defined varieties of credit card abuse. See

175 S.W.3d at 742 & n.5. I would be more inclined to follow, and certainly would not


                                                4
ignore, O’Neal and its lengthy progeny of cases which involve multiple instances of the

same act of sexual abuse. See O’Neal, 746 S.W.2d at 770 n.3; Pedersen, 237 S.W.3d at

884; Molina, 2006 Tex. App. LEXIS 9670, at *2. It is noteworthy that, subsequent to Ngo,

the Texas Court of Criminal Appeals explicitly upheld O’Neal in the sexual assault context.

Phillips v. State, 193 S.W.3d 904, 909-10 (Tex. Crim. App. 2006) (“The State has asked

us to review the continuing vitality of O’Neal to determine when the State is required to

elect which transaction it will rely upon for conviction, and we have taken this opportunity

to do so.”). In Phillips, the court of criminal appeals refused to alter O’Neal, stating:

       In reexamining O’Neal, we find no reason to deviate from our holding that a
       trial court errs by failing to have the State elect at the close of its evidence
       when properly requested by the defense. Requiring the State to elect at the
       close of its evidence forces it to formally differentiate the specific evidence
       upon which it will rely as proof of the charged offense from evidence of other
       offenses or misconduct it offers only in an evidentiary capacity. This allows
       the trial judge to distinguish the evidence which the State is relying on to
       prove the particular act charged in the indictment from the evidence that the
       State has introduced for other relevant purposes. Thus, the trial court can
       instruct the jury on the proper use and weight to accord each type of
       evidence. Moreover, the election requirement protects fundamental rights
       such as notice and unanimity, insuring both that the defendant is aware of
       precisely which act he must defend himself against, and that the jurors know
       precisely which act they must all agree he is guilty of in order to convict him.
       Because of the multitude of compelling systemic reasons for requiring an
       election, we decline to alter our decision in O’Neal.

Id. at 910 (emphasis added).

       The majority attempts to distinguish the O’Neal line of cases by claiming that the

instant case “involve[s] charge error” whereas O’Neal and its progeny do not. However,

the issue we are presented with is identical to those faced by the O’Neal, Pedersen, and

Molina courts—that is, whether or not a complaint alleging a possible lack of jury unanimity

may be waived by failing to object at the trial court. Moreover, although Cosio frames his

issue as involving “jury charge error,” that does not compel us to treat his issue under the

more stringent standard of review prescribed for such errors. Instead, we look to the

substance of his issue to determine how it will be analyzed. See, e.g., Lomax v. State, 233

S.W.3d 302, 314 (Tex. Crim. App. 2007); Caldwell v. State, 58 S.W.3d 127, 130 (Tex.

                                              5
Crim. App. 2000). Cosio’s first issue, at its core, complains of the trial court’s failure to

require the State to elect the specific criminal acts that it would rely upon for conviction.

Of course, this failure did manifest itself in the jury charge; but the effect of the trial court’s

decision upon the jury charge was only secondary to the initial decision not to require the

State to make an additional election. Reviewing all complaints regarding jury unanimity as

charge error, as the majority does here, would overly inflate the applicability of the Almanza

standard and would contradict the O’Neal line of cases, which the court of criminal appeals

has explicitly affirmed. It is my hope that the court of criminal appeals will review what I

perceive to be a conflict in this area of the law. In any case, I certainly would not overrule

this Court’s precedent until we have clear guidance from the court of criminal appeals.

       Finally, even if we were to apply the harm analysis elucidated in Almanza, 686

S.W.2d at 171, I do not believe that Cosio suffered “egregious harm” here. The fact that

four—and only four—instances of sexual abuse were testified to was made clear by

Cosio’s attorney and by the prosecutor during each case-in-chief and in closing arguments.

Given that, I think it highly unlikely that the jury was confused as to which counts

corresponded to which evidence. In examining the jury charge, the state of the evidence,

the arguments of counsel and all the relevant information as a whole, I do not believe that

egregious harm was suffered in this case. See id.

       I note that, although unanimity is required in criminal cases, a jury need not be

unanimous about everything in order to arrive at a verdict. “Different jurors may be

persuaded by different pieces of evidence, even when they agree upon the bottom line.

Plainly there is no general requirement that the jury reach agreement on the preliminary

factual issues which underlie the verdict.” Ngo, 175 S.W.3d at 746 (quoting Schad v.

Arizona, 501 U.S. 624, 631-32 (1991)). Here, Cosio was informed of which specific

offenses he was accused of committing; the State elected which specific criminal offense

they would rely upon for each count; and the jury was instructed that they must be


                                                6
unanimous as to their verdict on each count. Put simply, the trial court did everything the

law requires to protect Cosio’s right to a unanimous verdict. I am concerned that, under

the majority’s opinion today, the prosecution of ongoing sex crimes involving children may

become prohibitively difficult.

       For the foregoing reasons, I concur in Part I of the opinion and respectfully dissent

from the remainder.




                                                 DORI CONTRERAS GARZA
                                                 Justice

Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
23rd day of August, 2010.




                                             7
