                             NO. PD-0840-15

                                 IN THE

                       COURT OF CRIMINAL APPEALS

                               OF TEXAS

___________________________________________________________________

                            FERNANDO PENA

                                Petitioner

                                    v.

                          THE STATE OF TEXAS


                Petition in Cause No. B19587-1401 from the
           242nd Judicial District Court of Hale County, Texas and
      Case No. 07-14-00163-CR in the Court of Appeals for the Seventh
                      Supreme Judicial District of Texas

___________________________________________________________________


              PETITION FOR DISCRETIONARY REVIEW

                                  JAMES B. JOHNSTON
                                  EASTERWOOD, BOYD & SIMMONS, PC
                                  P. O. Box 273
                                  Hereford, Texas 79045
                                  (806) 364-6801
                                  (806) 364-2526 - telefax
     August 11, 2015              State Bar No: 10838200
                                  ATTORNEY FOR PETITIONER,
                                  FERNANDO PENA
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... 2
INDEX OF AUTHORITIES ...................................................................................... 3
STATEMENT REGARDING ORAL ARGUMENT ................................................ 5
STATEMENT OF THE CASE .................................................................................. 5
STATEMENT OF PROCEDURAL HISTORY ........................................................ 6
GROUNDS FOR REVIEW ....................................................................................... 7

         1. When the trial court errs by omitting a unanimity
            instruction to the jury pursuant to an indictment
            charging one indecency offense and the evidence at trial
            identifies two separate and distinct incidences, the
            Almanza egregious harm standard is an improper bases
            for analysis even if the defendant did not object to the
            charge.

         2. Issues involving the omission of a unanimity instruction
            in an indecency case should not be analyzed under the
            traditional Almanza egregious harm standard.

         3. The Seventh Court of Appeals improperly applied the
            Almanza egregious harm analysis in this case.

ARGUMENT ............................................................................................................. 7
PRAYER FOR RELIEF ........................................................................................... 11
CERTIFICATE OF COMPLIANCE ....................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 13
APPENDIX .............................................................................................................. 14




                                                            2
                                     INDEX OF AUTHORITIES

                                                    CASES

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) .......................... 5, 8, 9, 10
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) ............................................. 8
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) ............................ 5, 8, 9, 10
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ..................................... 5, 7, 9
Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014) ........................... 5, 9
Bell v. State, 2015 Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015) ................. 5, 9




                                                 STATUTES

Tex. Code Crim. Proc. Ann. Article 36 ...................................................................... 7
Tex. Code Crim. Proc. Ann. Article 37 ...................................................................... 7
Tex. Code Crim. Proc. Ann. Article 45 ...................................................................... 7
Tex. Const. Art. V, Section 13 ................................................................................... 7




                                                         3
                              NO. PD-0840-15

                                   IN THE

                     COURT OF CRIMINAL APPEALS

                                 OF TEXAS

___________________________________________________________________

                            FERNANDO PENA

                                  Petitioner

                                      v.

                          THE STATE OF TEXAS


                 Petition in Cause No. B19587-1401 from the
            242nd Judicial District Court of Hale County, Texas and
       Case No. 07-14-00163-CR in the Court of Appeals for the Seventh
                       Supreme Judicial District of Texas


___________________________________________________________________



               PETITION FOR DISCRETIONARY REVIEW

            TO THE HONORABLE JUDGES OF THE COURT OF
                   CRIMINAL APPEALS OF TEXAS:

     FERNANDO PENA petitions the Court to review the judgment affirming his

conviction for the second degree felony offense of indecency with a child, and


                                      4
punishment assessed at eight (8) years confinement in the Institutional Division of the

Texas Department of Criminal Justice and a fine of $5,000, and the judgment of the

Seventh Court of Appeals affirming that conviction.

               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would be helpful to the Court for the purpose of discussing

whether it is proper to analyze a trial court’s error in omitting a unanimity charge to the

jury under the standard of review set forth in Almanza and Gelinas. There exists a

direct conflict among the decisions of the appellate courts of this state regarding the

application of the egregious harm standard as set forth in those cases and the cases of

Digman v. State, 455 S.W.3d 207 (Tex. App. – Amarillo 2014), Bell v. State, 2015

Tex. App. LEXIS 3572 (Tex. App. – Dallas 2015), and Ngo v. State, 175 S.W.3d 738

(Tex. Crim. App. 2005).

                           STATEMENT OF THE CASE

      The Seventh Court of Appeals in its opinion in this case acknowledged that the

trial court abused its discretion by omitting a required instruction on jury unanimity

{Court of Appeals Opinion, p. 7]. The court concluded, however, that the error, which

was not objected to at trial, was not egregious and therefore did not require reversal of

the conviction under the Almanza standard.




                                            5
      The Court of Appeals held that Appellant did not demonstrate actual, rather than

theoretical, harm. The appellate court stated that “From the entirety of the charge and

the arguments of counsel, we find little to support a conclusion appellant suffered

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.”

                  STATEMENT OF PROCEDURAL HISTORY

      Petitioner pleaded not guilty [RR p. 122] to the offense of indecency with a child

as charged in the indictment [CR p. 5]. The indictment charged only one specific

incident, but the charge to the jury allowed them to make a finding of guilt based on

two separate incidents testified to by the victim [CR pp. 49-50, paragraphs 7 and 8].

The case was tried to a jury, which found Petitioner guilty as charged in the indictment

[RR p. 262]. The jury sentenced Petitioner to a term of eight (8) years TDCJ-

Institutional Division and a fine of $5,000 [RR pp. 292-293]. Petitioner filed a timely

motion for new trial [CR pp. 124-126] and timely notice of appeal [CR p. 85]. The

Seventh Court of Appeals affirmed Petitioner’s conviction on June 4, 2015. Pena v.

State, 2015 Tex. App. LEXIS 5733 (Tex. App. Amarillo June 4, 2015). Petitioner

requested an extension of the time to file a petition for discretionary to August 5, 2015,

which request was granted.


                                            6
                            GROUNDS FOR REVIEW

          When the trial court errs by omitting a unanimity
          instruction to the jury pursuant to an indictment
          charging one indecency offense and the evidence at trial
          identifies two separate and distinct incidences, the
          Almanza egregious harm standard is an improper bases
          for analysis even if the defendant did not object to the
          charge.

          Issues involving the omission of a unanimity instruction
          in an indecency case should not be analyzed under the
          traditional Almanza egregious harm standard.

          The Seventh Court of Appeals improperly applied the
          Almanza egregious harm analysis in this case.

                                    ARGUMENT

      Under Tex. Const. art. V, § 13, jury unanimity is required in felony cases, and,

under Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-45.036,

unanimity is required in all criminal cases. The unanimity requirement is a complement

to and helps in effectuating the “beyond a reasonable doubt” standard of proof. The

unanimity rule requires jurors to be in substantial agreement as to just what a defendant

did as a step preliminary to determining whether the defendant is guilty of the crime

charged. Requiring the vote of twelve jurors to convict a defendant does little to insure

that his right to a unanimous verdict is protected unless this prerequisite of jury

consensus as to the defendant’s course of action is also required. Ngo v. State, 175

S.W.3d 738, 745 (Tex. Crim. App. 2005). This language should be a clear indication

                                           7
that the right to jury unanimity is a valuable right, one of the protections expressly

delineated by this Court in Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.

2011). Note that this language, which originated with Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985), is in the disjunctive, not the conjunctive. An

Appellant need not show all three of the effects of harm in order to obtain a finding of

egregious harm. Unfortunately, as appellate precedence on this issue has developed,

appellate courts have appeared to require all three of the effects: “affected the very

basis of the case, deprived the defendant of a valuable right, or vitally affected a

defensive theory”. Cosio, at *777.

      If the right to jury unanimity is a valuable right protected by both constitutional

and statutory provisions, that right should be protected by precedence which would

either: (1) find that omission of a proper unanimity instruction is per se egregious

harm, or (2) analyze the error under a “some harm” standard as opposed to an

egregious harm standard. As Justices Meyers, Price and Johnson pointed out in their

dissenting opinion in Gelinas v. State, 398 S.W.3d 703, 713 (Tex. Crim. App. 2013),

“Appellate courts have clearly had difficulty judging how to weigh the Almanza

factors, but the worst feature of the Almanza egregious harm standard is that it is so

unfair to defendants . . .” As proposed by those Justices, “ . . . it would be more

equitable to do away with the enigma of Almanza and treat all jury charge error under


                                           8
the same ‘some harm’ standard.” The omission of a unanimity instruction is a different

animal than the omission of other statutorily-based instructions, and a different

standard of review should apply. The unfairness of the current analysis is illustrated by

the seemingly conflicting application of that standard in cases such as Digman v. State,

455 S.W.3d 207, 214 (Tex. App. – Amarillo 2014) [“The charge’s application

paragraph improperly permitted jurors to convict appellant of either of two separate

offenses without requiring them to be unanimous as to the offense committed.”]; Bell

v. State, 2015 Tex. App. LEXIS 3572 at *12-13 (Tex. App. – Dallas 2015)

[“Regardless of how often a generic unanimity requirement was mentioned, however,

the instructions failed to apprise the jurors that they had to be unanimous on which

incident of criminal conduct they believed constituted each count in the indictment. As

a result, the entire jury charge in this case weighs in favor of a finding of egregious

harm.”]; Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005) [“We therefore

agree that appellant’s constitutional and statutory right to a unanimous jury verdict was

violated and this violation caused egregious harm to his right to a fair and impartial

trial.”]; and the application in Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App.

2013) [“After conducting an Almanza analysis in the instant case, we find the

erroneous article 38.23 instruction did not egregiously harm Gelinas.”]. As stated by

the dissent in Gelinas, “The conflicting decisions of the court of appeals and the


                                           9
plurality in this case exhibit the conundrum created by Almanza in trying to determine

harm vs. egregious harm. Analysis under Almanza has resulted in uneven rulings

because the factors used to distinguish between harm and egregious harm are difficult

to decipher.” Gelinas, at 713.

      The particular problem in employing the Almanza standard is illustrated in

Petitioner’s case, where the Seventh Court of Appeals specifically stated “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.” [Court of Appeals Opinion, at p.

9]. The Seventh Court of Appeals went on to find “no reason a juror who did not

accept that testimony (as to one of the two incidents testified to by the victim) would

have believed appellant committed the offense only at the birthday party.” [Court of

Appeals Opinion, at p. 11]. This can amount to only conjecture, a problem which

would have been ameliorated by the proper unanimity instruction. As to the analysis of

the “entirety of the record” prong of the egregious harm analysis, the appellate Court

simply reiterated the requirement of “actual harm,” without discussing the force of

Petitioner’s evidence concerning his absence from the birthday party, the lack of

medical evidence, and the improper bolstering of the victim’s testimony by the State’s

witnesses. [Court of Appeals Opinion, at p. 12]. Finally, the Seventh Court of Appeals

determined that the argument of the prosecutor, wherein he stated “If you believe this


                                          10
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 Brianna was alive, which

all the evidence shows.” [RR p. 247, lines 22-25] did not weigh for or against a finding

of actual harm. [Court of Appeals Opinion, at p. 11]. Petitioner disagrees, asserting that

such an argument was a clear invitation to the jury to convict on either of the two

distinct incidents offered by the State.

      For the foregoing reasons, Petitioner requests this Court to find that (1) the

egregious harm standard of Analysis is inappropriate in a case where the trial court

omitted a unanimity instruction to the jury; and/or (2) the Seventh Court of Appeals

improperly applied the egregious harm standard in this case. Therefore, the judgment

of the Seventh Court of Appeals should be reversed.

                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this petition, and upon reviewing the judgment entered by the Seventh Court of

Appeals, reverse the judgment of the Court of Appeals with instructions to that court to

remand the case to the trial court for a new trial. In the alternative, in the event this

Court determines that the court of appeals improperly applied the egregious harm

analysis in this case, the Court of Criminal Appeals should reverse the judgment of the

Seventh Court of Appeals and remand the case for a more thorough harm analysis.


                                           11
                                       Respectfully submitted,

                                       Easterwood, Boyd & Simmons, PC
                                       623 N. Main Street, P.O. Box 273
                                       Hereford, TX 79045
                                       Tel: (806) 364-6801
                                       Fax: (806) 364-2526


                                   By: /s/ James B. Johnston
                                      James B. Johnston
                                      State Bar No. 10838200
                                      Email: bryan@ebs-law.net
                                      Attorney for Fernando Pena



                       CERTIFICATE OF COMPLIANCE

      This is to certify that the number of words in this document according to the
word count of the program used to prepare the document is 2308.


                                       /s/ James B. Johnston
                                       James B. Johnston




                                         12
                               Certificate of Service

      I hereby certify that a true copy of the foregoing instrument was provided to all
counsel of record in this matter on the 5th day of August, 2015, in accordance with the
Texas Rules of Appellate Procedure.

      State Prosecuting Attorney
      P. O. Box 12405
      Austin, Texas 78711

      Wally Hatch
      Hale County District Attorney
      225 Broadway, Suite 1
      Plainview, Texas 79072

                                               /s/ James B. Johnston
                                               James B. Johnston




                                          13
             APPENDIX

Opinion of the Seventh Court of Appeals




                  14
                                            Pena v. State
                        Court of Appeals of Texas, Seventh District, Amarillo
                                         June 4, 2015, Decided
                                          No. 07-14-00163-CR

Reporter
2015 Tex. App. LEXIS 5733
FERNANDO PENA, APPELLANT v. THE                        HN1 The verdict of a jury must be unanimous
STATE OF TEXAS, APPELLEE                               about the specific crime the defendant committed.
                                                       The jury must agree upon a single and discrete
Notice: PLEASE CONSULT THE TEXAS                       incident that would constitute the commission of
RULES OF APPELLATE PROCEDURE FOR                       the offense alleged. Non-unanimity may occur
CITATION OF UNPUBLISHED OPINIONS.                      when the State charges one offense and presents
                                                       evidence that the defendant committed the charged
Prior History: [*1] On Appeal from the 242nd           offense on multiple but separate occasions. Each
District Court, Hale County, Texas. Trial Court        occurrence of the charged offense constitutes a
No. B19587-1401, Honorable Edward Lee Self,            different offense or unit of prosecution. In such
Presiding.                                             cases, it is the trial court’s obligation to submit a
                                                       charge instructing the jury that its verdict must be
Case Summary                                           unanimous as to a single offense or unit of
                                                       prosecution among those presented. This duty is
                                                       not discharged through a boilerplate instruction
Overview
                                                       informing the jury that its verdict must be
                                                       unanimous because the jury might understand the
HOLDINGS: [1]-While the court abused its
                                                       direction to mean it must be unanimous about the
discretion by omitting the unanimity instruction,
                                                       offense in general and not a specific occurrence
the error was not fundamental because defendant
                                                       constituting the charged offense. Rather, the jury
did not suffer egregious harm from the error since
                                                       must be instructed that it must unanimously agree
the omission of an unanimity instruction did not
                                                       on one incident of criminal conduct (or unit of
affect the very basis of the case, deprive defendant
                                                       prosecution), based on the evidence, that meets all
of the valuable right of an unanimous verdict or
                                                       of the essential elements of the single charged
vitally affect his defensive theory so as to deprive
                                                       offense beyond a reasonable doubt. Such an
him of a fair trial.
                                                       instruction should not refer to any specific
                                                       evidence in the case and should permit the jury to
Outcome
                                                       return a general verdict.
Judgment affirmed.
                                                         Criminal Law & Procedure > ... > Jury
                                                         Instructions > Particular Instructions > Unanimity
LexisNexis® Headnotes
                                                         Criminal Law & Procedure > Trials > Verdicts >
                                                         Unanimity
  Criminal Law & Procedure > Trials > Verdicts >
  Unanimity                                            HN2 Avoiding a unanimity problem when one
  Criminal Law & Procedure > ... > Jury                offense is charged but the evidence shows the
  Instructions > Particular Instructions > Unanimity   defendant committed the offense on multiple,
                                               2015 Tex. App. LEXIS 5733, *1



separate occasions is ultimately the responsibility           such a determination must be borne out by the
of the trial court. An unanimous verdict is ensured           trial record. Actual harm is shown if the error in
in this situation by instructing the jury in the              the charge affected the very basis of the case,
charge that its verdict must be unanimous as to a             deprived the defendant of a valuable right, or
single offense or unit of prosecution among those             vitally affected a defensive theory. The appellate
presented. Conversely, the defendant is not                   court’s analysis takes into account the entire jury
compelled to request an election. Indeed, for a
                                                              charge, the state of the evidence, including the
strategic purpose a defendant may choose not to
                                                              contested issues and weight of probative evidence,
request an election.
                                                              the argument of counsel and any other relevant
    Criminal Law & Procedure > ... > Jury                     information revealed by the trial record as a
    Instructions > Particular Instructions > Unanimity        whole.
    Criminal Law & Procedure > ... > Standards of
                                                                Criminal Law & Procedure > Appeals > Reversible
    Review > Abuse of Discretion > General Overview
                                                                Error > General Overview
HN3 When evidence of more than one instance of
a criminal act constituting the charged offense is HN5 Under the egregious harm standard, reversal
presented at trial, an instruction on juror unanimity is possible only if the record shows actual rather
as to the specific instance is required. Its omission than theoretical harm.
is an abuse of discretion.
                                                      Judges: Before QUINN, C.J., and CAMPBELL
   Criminal Law & Procedure > ... > Reviewability > and PIRTLE, JJ.
    Preservation for Review > Exceptions to Failure to
    Object                                                    Opinion by: James T. Campbell
    Criminal Law & Procedure > ... > Reviewability >
    Preservation for Review > Jury Instructions               Opinion
    Criminal Law & Procedure > Appeals > Reversible
    Error > Jury Instructions                                 MEMORANDUM OPINION

HN4 A party must generally make a proper                      A jury convicted appellant Fernando Pena of one
objection in the trial court to preserve the error for        count of indecency with a child by sexual contact1
appeal. Tex. R. App. P. 33.1(a). However, in                  and assessed punishment at eight years’
criminal cases courts may take notice of a                    confinement in prison and a $5,000 fine. He was
fundamental error affecting a substantial right,              sentenced accordingly. Through three issues,
even if the claim of error was not properly                   appellant complains the trial court abused its
preserved. Tex. R. Evid. 103(e). Fundamental                  discretion by failing to include in the jury charge
error includes jury charge errors resulting in                a unanimity instruction. Appellant further contends
egregious harm. Reversal then on a claim of                   he was egregiously harmed by the error. We find
egregious harm is possible only if the error was              the trial court erred in failing to submit a unanimity
fundamental in the sense that it was so egregious             instruction, but appellant was not egregiously
and created such harm that the defendant was                  harmed. We will therefore affirm the judgment of
deprived of a fair and impartial trial. The harm              the trial court.
must be actual rather than theoretical. Egregious
harm is a high and difficult standard to meet, and            Background
1
    TEX. PENAL CODE ANN. § 21.11(a)(1) (WEST 2011).

                                                         Page 2 of 8
                                                   2015 Tex. App. LEXIS 5733, *1



The single-count indictment alleged ″on or about                       trial but she was not treated as an outcry witness
the 1st day of June, 2013, . . . [appellant] did then                  and did not testify to B.G.’s statements to her.
and there with the intent to arouse or gratify the                     B.G. did not receive a medical examination and
sexual desire of said [appellant], intentionally or                    no medical evidence was presented at trial.
knowingly engage in sexual contact with B.G. by
touching the genitals of B.G., a child younger                         Appellant, approximately 60 years old, is related
than 17 years and not the spouse of [appellant].″                      by marriage to A.A., the wife of B.G.’s uncle.
                                                                       B.G.’s uncle and his wife, A.A., each testified for
    [*2] At trial, nine-year-old B.G. testified that                   the defense, and were the only defense witnesses.
while visiting her uncle’s home, she and appellant                     Their testimony indicated they frequently hosted
sat on a living-room couch watching television.                        family gatherings. The uncle was emphatic that at
Appellant touched her ″private spot,″ what she                         no time were B.G. and appellant alone while
called her ″nana,″ with his hands, under her                           visiting at his house. Without equivocation, he
pajamas and underwear. It is not disputed that the                     further testified that appellant was not present at
child’s reference to her ″private spot″ and ″nana″                     B.G.’s birthday party. When asked on
referred to her genitals. B.G. could not recall the                    cross-examination why he did not believe B.G.,
exact date of this occurrence. B.G. told no one at                     the uncle explained he had known appellant for
the time.                                                              sixteen or seventeen years and ″you start to [*4]
B.G. testified of another visit to her uncle’s home.                   know people, and I honestly believe that he didn’t
The occasion was a party celebrating her ninth                         do it.″ Nine photographs were admitted for the
birthday in July 2013. During the visit, she was                       defense through A.A. Seven depicted B.G.’s
seated in a room by the back door watching                             birthday party. Appellant did not appear in any of
television. The room was furnished with brown                          these photographs but A.A. indicated that not all
chairs. Appellant joined her in the room and                           birthday-party guests appeared in the photographs.
touched her ″nana″ over her clothing with his                          Like her husband, A.A. was certain appellant was
hands. B.G. again told no one of the occurrence.                       not present at B.G.’s birthday party. On
                                                                       cross-examination, A.A. testified she was ″certain″
On her own initiative, B.G. later made an audio                        also that only once were B.G. and appellant both
recording on an electronic video game device.                          present at her house. That occasion, she said, was
During her trial testimony she agreed with the                         a September football party. A.A. also said the
prosecutor that in the recording she ″sa[id] what                      conduct B.G. alleged ″didn’t happen.″
Freddie had done.″2 B.G.’s stepfather testified he
later overheard the recording and told her mother In the jury charge, the application paragraph
what he heard. Police were contacted.               asked whether appellant engaged in the conduct
                                                    alleged ″on or about June 1, 2013.″ An instruction
When B.G. was asked at trial if ″Freddie″ ever
                                                    informed the jury about the date of the offense:
made her touch him, she answered he once
″grabbed [her] hands (sic) and put it in his pants″
                                                        The State is not bound by the specific date
touching his skin. She could not say if this
                                                        which the offense, if any, is alleged in the
conduct occurred the ″first time″ appellant touched
                                                        indictment to have been committed. A
her or later on her birthday.
                                                        conviction may be had upon proof beyond a
A worker at the Children’s Advocacy Center              reasonable doubt that the offense, if any, was
(CAC) interviewed B.G. The worker testified at          committed at any time prior to the filing of the
2
     It is not disputed that ″Freddie,″ as used by B.G. in [*3] her trial testimony, meant appellant.

                                                                Page 3 of 8
                                                2015 Tex. App. LEXIS 5733, *4



     indictment which is within the period of                          If you believe he did it, and I would submit to
     limitations. The date of the filing of the                        you the evidence doesn’t show anything else,
     indictment in this case was January 31, 2014.                     then he has to be found guilty. I mean, in fact,
      [*5] There is no limitation period applicable                    look at Defendant’s 8. There’s that brown
     to the offense of indecency with a child by                       chair by the TV in the side room by the
     sexual contact.                                                   kitchen that she described for you. Ladies and
                                                                       gentlemen, she’s not making this up.
Although B.G. testified appellant unlawfully
touched her on two occasions the jury was not            Appellant was convicted and sentenced as
specifically instructed in the charge that it had to     noted.
agree unanimously on a single, discrete occurrence
constituting the commission of the charged Analysis
offense.3 Rather, the only mention of unanimity in
                                                     Appellant argues the trial court abused its
the charge at the guilt-innocence phase was the
                                                     discretion by failing to submit a charge containing
following general instruction:
                                                     a specific unanimity instruction. Because this
    After you retire to the jury room, you should complaint was not made at trial, appellant further
    elect one of your members as your Presiding asserts that he was egregiously harmed by the
    Juror. It is the duty of the Presiding Juror to error. Necessity of a Specific Unanimity
    preside at your deliberations, to vote, and, if Instruction
    you unanimously agree upon a verdict, to
                                                     HN1 The verdict of a jury must be unanimous
    certify your verdict by completing and signing
                                                     about the specific crime the defendant committed.
    the verdict form.
                                                     Cosio, 353 S.W.3d at 771 (citing Landrian v.
    Neither side objected to the absence of a State, 268 S.W.3d 532, 535 (Tex. Crim. App.
    specific unanimity instruction.                  2008)). ″[T]he jury must ’agree upon a single and
    In closing argument, the prosecutor stated:      discrete incident that would constitute the
                                                     commission of the offense alleged.’″ Cosio, 353
    If you believe it happened, and you believe it
                                                     S.W.3d at 771 (quoting Stuhler v. State, 218
    happened anytime between January 31, 2014,
                                                     S.W.3d 706, 717 (Tex. Crim. App. 2007)).
    back through eternity. I guess it would be back ″[N]on-unanimity may occur when the State
    through [B.G.’s] birth day, the actual day she charges one offense and presents evidence that the
    was born. If you believe it happened during [*7] defendant committed the charged offense on
    that time period, then on or about June 1, 2013 multiple but separate occasions.″ Cosio, 353
    is sufficient.                                   S.W.3d at 772. Each occurrence of the charged
                                                     offense constitutes a different offense or unit of
Later in the argument he added:
                                                     prosecution. Id. In such cases, it is the trial court’s
    If you [*6] believe this happened, and there’s obligation to submit a charge instructing the jury
    no reason to not believe this other than you ″that its verdict must be unanimous as to a single
    just don’t want to, and you believe it happened offense or unit of prosecution among those
    before January 31, 2014, while [B.G.] was presented.″ Id. at 772, 776 (stating even when the
    alive, which all the evidence shows.             State is not put to an election, the trial judge must
                                                     prepare a charge ensuring a unanimous verdict
Still later he argued:                               based on the specific evidence presented). This
3
    Cosio v. State, 353 S.W.3d 766, 771, 772 (Tex. Crim. App. 2011).

                                                            Page 4 of 8
                                       2015 Tex. App. LEXIS 5733, *7



duty is not discharged through a ″boilerplate″         bound to, request the State to elect which specific
instruction informing the jury that its verdict must   act it relies on for conviction); id. at 747 n.34; id.
be unanimous because the jury might understand         at 748 (″A request for an election, however, is not
the direction to mean it must be unanimous about       a prerequisite for implementing Texas’
the offense in general and not a specific occurrence   constitutional and statutory requirement of jury
constituting the charged offense. Cosio, 353           unanimity″). Indeed, for a strategic purpose a
S.W.3d at 773-74 (citing Ngo v. State, 175 S.W.3d      defendant may choose not to request an election.
738, 745 (Tex. Crim. App. 2005)). Rather, ″the         See Cosio, 353 S.W.3d at 775 (″A defendant may
jury must be instructed that it must unanimously       choose not to elect so that the State is
agree on one incident of criminal conduct (or unit     jeopardy-barred from prosecuting on any of the
of prosecution), based on the evidence, that meets     offenses that were in evidence″).
all of the essential elements of the single charged
offense beyond a reasonable doubt.″ Id. at 776.       HN3 Because evidence of more than one instance
″Such an instruction should not refer to any          of a criminal act constituting the charged offense
specific evidence in the case and should permit       was presented at trial, an instruction on juror
the jury to [*8] return a general verdict.″ Id.       unanimity as to the specific instance was required.
                                                      Cosio, 353 S.W.3d at 772. Its omission was an
The State argues a unanimity instruction was not abuse of discretion.
required because appellant was charged with only
one offense, indecency with a child by touching Egregious Harm Analysis
the genitals. When, it continues, the evidence
presents multiple occurrences of the conduct Appellant did not object to the absence of a
alleged by the indictment the defendant may unanimity instruction in the charge but contends
require the State to elect which of the charged acts as a result his trial was fundamentally unfair. HN4
it will rely on for conviction. But here appellant A party must generally make a proper objection in
did not request an election.                          the trial court to preserve the error for appeal. See
                                                      TEX. R. APP. P. 33.1(a). However, in criminal cases
HN2 Avoiding a unanimity problem when one courts may ″take notice of a fundamental error
offense is charged but the evidence shows the affecting a substantial right, even if the claim of
defendant committed the offense on multiple, error was not properly preserved.″ TEX. R. EVID.
separate occasions is ultimately the responsibility 103(e). [*10] Fundamental error includes jury
of the trial court. See Cosio, 353 S.W.3d at 776 charge errors resulting in egregious harm. Baker v.
(″guaranteeing unanimity is ultimately the State, No. 02-14-00157-CR, 2015 Tex. App.
responsibility of the trial judge because the judge LEXIS 846, at *4-5 (Tex. App.—Fort Worth Jan.
must instruct the jury on the law applicable to the 29, 2015, no pet.) (per curiam, mem. op. on reh’g,
case″). A unanimous verdict is ensured in this not designated for publication) (citing Saldano v.
situation by instructing the jury in the charge ″that State, 70 S.W.3d 873, 887-89 (Tex. Crim. App.
its verdict must be unanimous as to a single 2002)). Reversal then on a claim of egregious
offense or unit of prosecution among those harm is possible ″only if the error was fundamental
presented.″ Id. at 772. Conversely, the defendant in the sense that it was so egregious and created
is not compelled to request an election. See Ngo, such harm that the defendant was deprived of a
175 S.W.3d at 747-48 (noting that when, among fair and impartial trial.″ Villarreal v. State, 453
other scenarios, the State presents evidence of the S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza
perpetration of the same criminal act on different v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App.
  [*9] occasions the defendant may, but is not 1985) (op. on reh’g).

                                                 Page 5 of 8
                                                  2015 Tex. App. LEXIS 5733, *10



The harm must be actual rather than theoretical.                      unanimity requirement, we conclude that this
Villarreal, 453 S.W.3d at 433 (citing Cosio, 353                      factor weighs in favor of finding egregious harm″).
S.W.3d at 777). ″Egregious harm is a ’high and                        On the other hand, the court’s error was the
difficult standard’ to meet, and such a                               omission of an instruction rather than the inclusion
determination must be ’borne out by the trial                         of an erroneous instruction. See Taylor v. State,
record.’″ Villarreal, 453 S.W.3d at 433 (quoting                      332 S.W.3d 483, 493 (Tex. Crim. App. 2011)
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.                      (contrasting omission of instruction with charge
App. 2013)). Actual harm is shown if the error in                     in another case which mis-instructed the jury).4
the charge affected ’″the very basis of the case,’                    Though perhaps inclining toward a finding of
’deprive[d] the defendant of a valuable right,’ or                    egregious harm in this case, we assign [*12] little
’vitally affect[ed] a defensive theory.’″ Arrington                   weight to the entirety of the charge in our analysis.
v. State, 451 S.W.3d 834, 840 (Tex. Crim. App.                        See Cosio, 353 S.W.3d at 777 (noting merely that
2015) (quoting Cosio, 353 S.W.3d at 777). Our
                                                                      charge ″permitted″ non-unanimous verdicts, and
analysis takes into account the entire jury charge,
                                                                      that ″nothing in charges themselves militates
the state of the evidence, including the contested
                                                                      against″ an egregious harm determination).
issues and weight of probative evidence, the
argument of counsel and any other relevant
                                                                      State of the Evidence
information revealed by the trial record as a
whole. Villarreal, 453 S.W.3d at 433.                                 The State’s case was made through the brief
                                                                      testimony of B.G. The jury did not hear medical
Entirety of the Jury Charge                                           evidence, the substance of B.G.’s statements at
                                                                      the CAC interview, or the words of her
In conjunction with selection of the presiding
                                                                      electronically-recorded outcry. Through the
juror, and that person’s duties, the charge
                                                                      testimony of his two witnesses, appellant presented
instructed, ″if you unanimously [*11] agree upon
                                                                      the defense that he was not guilty of the conduct
a verdict″ the presiding juror must certify the
                                                                      charged, on either occasion to which B.G. testified,
verdict. But here such general language ensures
                                                                      and he was definitely not present on her birthday.
only that the jurors agreed appellant engaged in
                                                                      Because appellant’s indecent conduct was
the charged conduct at some point in time. See
                                                                      described in the evidence only by B.G.’s
Ngo, 175 S.W.3d at 745 (commenting, as to
                                                                      testimony, the jury could not have convicted
substantively identical ″boilerplate″ instruction,
                                                                      appellant without accepting her testimony. And
″the jury could well have believed that they need
                                                                      there was little difference in her descriptions of
only be unanimous about their ’verdict’ of guilty
                                                                      appellant’s actions on the two occasions to which
or not guilty of the general offense [charged]″).
                                                                      she testified. On both occasions, she was seated
Some jurors might have believed appellant touched
                                                                      watching television at her uncle’s house when
B.G. only on the first occurrence to which she
                                                                       [*13] appellant touched her.5 It is obvious also
testified while others might have been convinced
                                                                      that the jury did not accept the defense witnesses’
he committed the offense at her birthday party.
                                                                      assertions of appellant’s innocence.
Therefore analysis of the entire charge in this case
might incline toward a finding of egregious harm. To an extent, appellant’s defense focused on his
See Arrington, 451 S.W.3d at 841 (″Because the witnesses’ insistence that appellant did not attend
entire charge did not apprise the jury of the proper the birthday party, and thus could not have
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.
5
    B.G. testified appellant touched her under her clothing on the first occasion and over her clothing at the birthday party.

                                                                Page 6 of 8
                                       2015 Tex. App. LEXIS 5733, *13



committed indecency on that occasion. To that           unanimity on particular conduct). Thus we do not
extent, the state of the evidence differs from that     find the argument of counsel weighs for or against
in cases like Ruiz v. State, 272 S.W.3d 819 (Tex.       a finding of actual harm.
App.—Austin 2008, no pet.), in which the
defendant’s theory left the jury with an                Entirety of the Record
″all-or-nothing decision.″ Id. at 826; see Arrington,
451 S.W.3d at 842 (discussing Ruiz); Jourdan v.         At oral argument, appellant argued that the
State, 428 S.W.3d 86 (Tex. Crim. App. 2014).            simplicity of the charge and the evidence in this
Nonetheless, the evidence does not present a            case heightens the risk of a non-unanimous verdict.
likelihood that jurors voted for conviction but did     As appellant noted, [*15] the case involves only a
not agree appellant committed indecency on one          single count alleging indecency but two distinct
specific occasion. A juror who accepted the             occasions of conduct. Because the jury was not
testimony appellant did not attend the birthday         made to understand that to find appellant guilty
party must have found he committed the offense          they must agree unanimously that he committed
on the first occasion B.G. described. And we see        the offense on both or only one occasion, he
in the evidence no reason a juror who did not           argued, the jury was never required to consider
accept that testimony would have believed               the impact of the defensive evidence he was not
appellant committed the offense only at the             present on one of the two occasions alleged. As
birthday party. As we have noted, B.G.’s                appellant sees it, the straight-forward case
descriptions of the two occasions were very             presented by this record carries an even greater
similar. We think a juror who [*14] believed her        risk of non-unanimity than cases like Arrington,
testimony that appellant touched her during her         451 S.W.3d at 837-39, which involved seven
birthday party, over the strong defensive assertions    counts and evidence of multiple acts of indecent
he was not then present, almost certainly also          and assaultive conduct.
believed appellant committed indecency on the
                                                        HN5 Under the egregious harm standard, reversal
first occasion. See Taylor, 332 S.W.3d at 493 (″It
                                                        is possible only if the record shows actual rather
is unlikely that the jury believed that [Taylor]
                                                        than theoretical harm. Bell v. State, No.
sexually assaulted the victim before he turned 17
                                                        05-13-01616-CR, 2015 Tex. App. LEXIS 3572, at
years old but not after″).
                                                        *15-16 (Tex. App.—Dallas Apr. 10, 2015, no pet.)
Argument                                                (citing Nava v. State, 415 S.W.3d 289, 298 (Tex.
                                                        Crim. App. 2013)). From the entirety of the
As noted from its quoted excerpts, the prosecutor’s     charge and the arguments of counsel, we find little
argument at times used singular pronouns when           to support a conclusion appellant suffered actual
referring to the occurrence. But it would be an         harm. We find the state of the evidence militates
unwarranted conclusion that such expressions            against a finding of actual harm. And we find
moved the jury toward reaching a non-unanimous          appellant’s contention based on the entirety of the
verdict. Neither the State nor the defense told the     record unpersuasive as indicative of actual harm.
jurors they must be unanimous as to the appellant’s     The omission of a unanimity instruction did not
guilt on a single incident, but neither told the jury   affect the very basis of [*16] the case, deprive
they could convict without unanimity. Cf. Ngo,          appellant of the valuable right of a unanimous
175 S.W.3d at 750; Digman v. State, 455 S.W.3d          verdict or vitally affect his defensive theory so as
207, 210-11 (Tex. App.—Amarillo 2015, pet.              to deprive him of a fair trial.
ref’d) (in both cases, prosecutors’ argument
emphasized jury’s ability to convict without Conclusion

                                                  Page 7 of 8
                                  2015 Tex. App. LEXIS 5733, *16



The trial court abused its discretion by omitting James T. Campbell
the unanimity instruction, but appellant did not
suffer egregious harm from the error, so it was not Justice
fundamental. We overrule appellant’s issues
asserting egregious harm, and affirm the judgment Do not publish.
of the trial court.




                                            Page 8 of 8
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  Case # PD-0840-15
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             08/05/2015 11:44:15 PM
   Case Number                            PD-0840-15
   Case Description
   Assigned to Judge
   Attorney                               James Johnston
   Firm Name                              Easterwood, Boyd & Simmons, P.C.
   Filed By                               James Johnston
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.09
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   Grand Total                            $3.34
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   Petition for Discretionary Review
   Filing Type                                            EFileAndServe
   Filing Code                                            Petition for Discretionary Review
   Filing Description                                     Petition for Discretionary Review
   Reference Number                                       14-100149
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   Status                                                 Rejected
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   Attachments                            Pena v. State_ 2015 Tex. App. LEXIS 5733.pdf                                          [Original]
   Lead Document                          PDR.pdf                                                                               [Original]


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   Name/Email                Firm                                   Service Type               Status        Served        Date/Time Opened
                             Hale County
   Christina McIntee                                                                                                       08/07/2015
                             District Attorney's                    EServe                     Sent          Yes
   cmcintee@outlook.com                                                                                                    09:39:53 AM
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   Lisa McMinn               State Prosecuting                      EServe                     Sent          Yes           Not Opened
   information@spa.texas.gov Attorney
   Lisa C. McMinn            State Prosecuting                                                                             08/10/2015
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   lisa.mcminn@spa.texas.gov Attorney's Office                                                                             07:58:35 AM




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