      REVERSES REMANI) and AFFIRM; Opinion I tied Iebruary 12. 2013




                                                In The
                                           uurt uf Aqicat
                                   3Fifth ittict nf    xa at JaUa
                                                   No. 05-1 l-0148-CR

                                      RICARDO JOURDAN, Appellant
                                                           V.
                                     THE STATE OF TEXAS, Appellee

                                On Appeal from the 195th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F11-00498-N

                                                     OPINION
                                    Before Justices Bridges, O’Neill, and Murphy
                                             Opinion by Justice O’Neill
              A jury convicted appellant Ricardo Jourdan of aggravated sexual assault and
                                                                                          sentenced
     him to thirty-five years’ imprisonment. On appeal, he argues the trial court
                                                                                  erred by refusing to
     include the lesser-included offenses of aggravated assault causing serious
                                                                                bodily injury and
    assault by threat of serious bodily injury. He also contends the trial court
                                                                                 erred by failing to
    require a unanimous verdict. We affirm in part and reverse and remand in part.

                                                   Factual Background

             In the early morning hours of September 23, 2010, Crystal Kemp’ was
                                                                                 finishing her
    morning janitorial duties at a library in Pleasant Grove. When she went to
                                                                               her car to leave, she
    realized she had locked her keys inside the car. She called her sister, Alma
                                                                                 Giron, and asked her


‘This is a pseudonym for the victim’s real name.
  to bring her a spare key. Alma was unable to help Crystal, hut appella
                                                                         nt approached her and
  offered to help. Crystal did not speak English so she handed the
                                                                   phone to appellant to talk to
  Alma. Alma then told Crystal appellant said he could help.

         Appellant tried to pry the car wiidow open hu was unsuccessful.
                                                                         He then asked Crystal
 to get him more “paper.” which might help him.

         She went hack into the library, and he followed her.          He asked if he could use the
 restroom hut she indicated no. She thought he went hack outside, but
                                                                      he did not. When Crystal
 went to the   restroom   to get paper towels, appellant followed her inside. He threw Crysta
                                                                                              l to the
 floor and repeatedly punched her in the face. “1-Ic got bored using
                                                                     his fist” and started kicking
 her neck, face, and forehead. When she asked appellant why he was
                                                                   hurting her, he only hit and
 kicked her harder.

        Appellant then removed his and Crystal’s pants and underwear.
                                                                      He got on top of her and
 tried to rape her, hut his penis was not fully erect. He masturbated
                                                                      to make himself harder and
then penetrated her vagina.       She lost consciousness, hut remembered seeing him rummaging

through her purse. Appellant took the one dollar she had in her purse
                                                                      before running away.
        When she regained consciousness, she called her sister and 9-1-1.
                                                                                       Officers and
paramedics arrived. Paramedics transported her to Baylor hospita
                                                                 l for treatment. She was later
moved to Parkland, where she received a sexual assault examination.

       During the course of the investigation, officers released surveillance
                                                                              pictures of appellant,
which led to his identification. When officers executed a search warran
                                                                        t at his home, they found
blood-stained clothes matching Crystal’s description.        Fingerprints lifted from Crystal’s car
matched appellant. Crystal’s shirt and perineum tested positive
                                                                for appellant’s seminal fluid.
However, sperm cells were not detected from the vaginal smears
                                                               obtained during the sexual
assault examination. Appellant was arrested and charged with aggrav
                                                                    ated sexual assault.
          During trial, appellant testified in his own defense. He admitted
                                                                            he brutally heat Crystal,
  hut he denied any sexual contact with her. He told the jury
                                                              a completely different version ol
  events, which included Alma pimping out” Crystal to give appella
                                                                   nt a blow job in return for
  fifty dollars and helping to unlock Crystal’s car. He claimed the
                                                                    two went to a small shed beside
  the library, but he did not sexually assault her. He testified he
                                                                    ejaculated on her shirt before she
 ever had a chance to give him a blow job.

         When she went inside the library bathroom to clean her shirt,
                                                                       he followed and wanted his
 fifty dollars back because she did not perfonn oral sex. When
                                                               he grabbed part of the money
 from her, he clainicd Crystal swung at him. He then “lost it” and
                                                                   viciously heat her.
         The jury convicted him of aggravated sexual assault. This appeal
                                                                          followed.
                     Jury Charge Instructions on Lesser-Included Offenses

         In his first issue, appellant argues the trial court abused its
                                                                         discretion by refusing to
 charge the jury on the lesser-included offense of aggravated assault
                                                                      . The State responds that
 aggravated assault is not a lesser-included offense of aggravated
                                                                   sexual assault, and the record
does not support a finding that if appellant was guilty of anything,
                                                                     it was only aggravated assault.
        Before submitting a lesser-included offense charge. the trial court
                                                                            must conclude both (1)
that the requested charge is for a lesser-included offense of the
                                                                  charged offense: and (2) that
there is some evidence that, if the defendant is guilty, he is guilty
                                                                      only of the lesser offense. Hall
v. Stare, 225 S.W.3d 524, 535—36 (Tex. Crim. App. 2007).
                                                                   An offense is a lesser-included
offense if: (1) it is established by the proof of the same or less
                                                                   than all the facts required to
establish the commission of the offense charged; (2) it differs
                                                                from the offense charged only in
the respect that a less serious injury or risk of injury to the
                                                                same person, property, or public
interest suffices to establish its commission; (3) it differs from
                                                                   the offense charged only in the
respect that a less culpable mental state suffices to establish
                                                                its commission; or (4) it consists of
 an attempt to commit the offense charged or an otherwise included offense, TEx. CoDE CRIM.

 PROC. ANN. art. 37.09 (West 2006).

          The first part of the Hall test is a question of law that does     fbi.   depend on the evjdence

 presented at trial. Hall, 225 S.W.3d at 535. The      court   looks to the facts and elements “as alleged

 in   the charging instrument, and not just the statutory elements of the offense, to determine

 whether there exists a lesserincluded offense of the greater charged offense.” Id. at 535—36.

          Here, the indictment alleged that appellant intentionally and knowingly contacted and

 penetrated Crystal’s sexual organ with his sexual     organ    and his fingers. without her consent, and

by acts and words placed her in fear that death and serious bodily injury would be imminently

inflicted on her and further by his acts and words did threaten to cause her death or serious

bodily injury. See    Tux, PENAL CODE ANN.     22.021(a) (West Supp. 2012).

         The elements of aggravated assault are as follows: (1) a person: (2) intentionally.

knowingly, or recklessly: (3) causes bodily injury to another including the person’s spouse; (4)

threatens another with imminent bodily injury, including the person’s spouse; or (5) causes

physical contact with another when the person kiows or should reasonably believe that the other

will regard the contact as offensive or provocative; and (6) causes serious bodily injury to

another, including the person’s spouse. Id. § 22.01; 22.02(a)(l).

         Appellant   argues   the elements of aggravated assault may be deduced from the indicted

aggravated sexual assault offense because the indictment alleges that “by his acts and words,” he

placed Crystal in fear of imminent death and serious bodily injury.             We do not agree.     The
elements required to prove aggravated assault    are   not the same as, or less than, those required to

prove an aggravated sexual assault. Aggravated assault requires proof that appellant “caused

serious bodily injury,” whereas the aggravated sexual assault charge does not require such proof.

See Mack v. State, 05-09-01240-CR, 2011 WL 1170415, at *4 (Tex. App.—Dallas Mar. 31,

2011, pet. ref’d) (mem. op., not designated for publication) (holding aggravated assault was not a
 lesscrincluded offense ol aggravated sexual assault and indictment contained similar “acts and

 words” language); Trejo v. State, 242 SW3d 48, 52 (Tex. App—Houston [14th DisLi 2007,

 pet grailtc(1), acated on of her grounds, 280 SW 3d 258 (Tex, Crim. App. 2009). Therefore,

 appellant’s requested instruction does not satisfy the first prong of the tin/i test. His Cirst issue
                                                                                                       is
 overruled.

         In his second issue, appellant argues the trial court erred by failing to instruct the jury on

 the lesser otfense of assault by threatening to cause serious bodily injury. The State responds

because appellant did not object at trial to the omitted instruction and the trial court does
                                                                                              not
have a duty to sun sponte instruct the jury on lesserinc1uded offenses, there is no charge error
                                                                                                 to
which an Aimanza harm analysis applies, ft further contends the evidence does not support
                                                                                          that
if appellant was guilty, he was only guilty of assault by threatening serious bodily injury.

        We begin by addressing whether appellant objected to the charge and requested an

instruction on the offense of assault by threatening to cause serious bodily injury. During the

charge conference, appellant specifically requested the lesser-included offense of aggravated

assault. After   argument   by both appellant and the State, the following exchange occurred:

                 The Court: The request—the defense requests we include a
                 different related charge of assault as opposed to sexual assault; in
                 other words, a non-sexual assault. Thats denied.

                 IDefense Counselj: Well, actually it’s the request for   -   -




                 The Court: I’m not doing what you’re asking. This charge stays the
                 way it is.

                 IDefense Counsel]: If I could just clarify, Judge. What we’re
                 asking for is assault-   -




                 The Court: You want a straight aggravated assault with serious
                 bodily injury. And that’s denied.

       Appellant made it clear in his request he wanted an instruction on “aggravated assault

with serious bodily injury.” He never mentioned assault by threat of causing serious
                                                                                     bodily
  injury. When the trial court clearly ruled against his request lou “straight aggravated
                                                                                          assault with
 senous bodily injury,” counsel made no further argument or indicated he wanted
                                                                                an instruction
 on assault by threat. Thus, we conclude appellant failed to request an instruction
                                                                                    for the oftense
 of assault by threat.

              Appellant suggests that if we conclude error is not properly preserved, the
                                                                                          matter may
 still he raised for the lirst time on appeal, and the failure to include the
                                                                              instruction was so
 harmful he was denied a fair trial. As discussed below, we do not agree the trial
                                                                                   court had a duty
 to   Siul   sponte include such an instruction or that an   Aimana   harm analysis applies to this case.

             Jury charge error is reviewed under the standard set Out in Al,nanza      i’.   5tale, 686 S.W.2d

 157, 171 (Tex. Crim. App. 1984) (en bane). Under the standard, we first determ
                                                                                ine whether
 there was charge error. Id. at 174. When the appellant does not object, we reverse
                                                                                    only if the
 error was “fundamental” and so “egregious” that the appellant was denied a
                                                                            fair and impartial
trial. Id.

             The purpose of the jury charge is to inform the jury of the applicable law and
                                                                                            guide the
jurors in applying the law to the facts of the case. Hutch          i’.   State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996). A judge’s duty to properly charge the jury exists even when defens
                                                                                     e counsel
fails to object to inclusions or exclusions in the charge, and thus, the judge
                                                                               may be required to
sua    sponte instruct the jury on the law applicable to the case. Taylor v. State, 332
                                                                                        S.W.3d 483,
486 (Tex. Crim. App. 2011). However, the           sua sponte   duty of the trial judge to instruct the jury

on the law applicable to the case does not necessarily extend to all potenti
                                                                             al defensive issues,
lesser-included offenses, or evidentiary issues. Delgado v. State, 235 S.W.3d
                                                                              244, 249—50 (Tex.
Crim. App. 2007); Winslow v. State, 05-10-00883-CR, 2011 WL 5223126, at *3
                                                                           (Tex. App.—
Dallas Nov. 3, 2011, no pet.) (not designated for publication). “[Ljesser-incl
                                                                               uded instructions
are like defensive issues and a trial court is not statutorily required to sua sponte
                                                                                      instruct the jury
  on lesser-i icluded oflenses because these issues Irequ
                                                          ently depend upon trial strategy and
  tactics.”’ To/bert v, Siate. 306 S.W.3d 776, 780 (Tex, Crim.
                                                               App. 2010).
           As we held in Winslow, a lesser—included otlense is
                                                               not generally considered to be “law
  applicable to the case,” even if raised by the evidence
                                                          .       Winslow, 2011 WL 5223126, at *3
  Thus, a party s failure to request its inclusion in the jury
                                                               charge is not considered charge error.
  but rallier waives the party’s ability to raise the issue
                                                            on appeal. Id.: see also Thihert, 306
  S.W.3d at 78() (concluding trial court is not required
                                                         to     511(1   sponle   provide an instruction the
 record clearly reflects appellant did not want: therefore.
                                                            there was no charge “error” to which
 Alrnana ‘s   egregious harm analysis would apply).

           We conclude the trial court had no duty to sua spon
                                                               te instruct the jury on the lesser-

 included offense of assault by threat of causing serious
                                                          bodily injury and that a lesser-included
 offense instruction was not “applicable to the case” absent
                                                             a request by the defense for its
 inclusion in the charge. See Tolhert, 306 S.W.3d at 782;
                                                          Winslow, 2011 WL 5223126, at *3
 Accordingly, there was no charge error to which
                                                 Alrnanza ‘s harm analysis would apply.
 Winslow, 2011 WL 5223126, at *3; see a/so Posev v. State
                                                          , 966 S.W.2d 57, 61 (Tex. Crim. App.
 1998) (stating Ahnanza does not apply unless the appe
                                                       llate court first finds error in the          jury

charge).

        Moreover, even if we concluded appellant properly prese
                                                                rved error, the trial Court did not
err in failing to submit the instruction. To be entit
                                                      led to a lesser-included offense instruction, the
record must contain evidence that would permit a jury to
                                                         rationally find that if appellant is guilty,
he is guilty only of the lesser-included offense of assau
                                                          lt by threat of causing serious bodily
injury. Hall, 225 S.W.3d at 536. Such is not the case
                                                      on the record before us.
       Appellant did not merely threaten to cause serious bodi
                                                               ly injury, but admitted he “lost it”
and viciously beat Crystal. She testified appellant punc
                                                         hed and kicked her face to the point she
needed treatment at Baylor and Parkiand hospitals. The
                                                       treating physician testified, “She came
   in with multiple bruises all over her body and a significa
                                                              nt laceration on her forehead, which had
  to he sutured together with stitches” She also required
                                                            morphine for pain management. The jury
  also saw numerous pictures ol the extensive bruis
                                                        ing and injuries to her face and neck. in
  addition to the physical injuries, DNA testing detec
                                                          ted appellant’s seminal fluid on Crystal’s
  shirt and her perineum. Accordingly, there is no evid
                                                         ence to raise the issue that if appellant was
  guilty, he was guilty only of assault by threat. Appellan
                                                            t’s second issue is overruled.

                                  Unanimous Verdict Requirement

          In his final issue, appellant argues the trial court erred
                                                                     by not requiring unanimity in the
 jury’s verdict.   Specifically, the charge authorized the jury to conv
                                                                        ict him if it believed he
  contacted and penetrated the sexual organ of complain
                                                               ant or if it believed he caused digital
  penetration of her sexual organ, He contends the ques
                                                           tion is whether the indictment alleged one
  offense with two “manner and means” or two diffe
                                                       rent offenses. If two different offenses were
  alleged, he claims the unanimity rule requires the jury
                                                            to agree on a single and discrete incident
 that would constitute the commission of the offen
                                                       se. The State first replies the issue is not
 preserved because appellant’s trial objection does
                                                      not comport with his objection on appeal. It
 further argues that no charge error exists because
                                                         the indictment charged two “manner and
 means” of committing the same offense.

        We first address the State’s waiver argument. App
                                                          ellant objected at trial that the charge
 included “information regarding penetration by a finge
                                                             r” and the evidence did not support the
 allegation. On appeal, he argues the charge violated
                                                          his right to a unanimous verdict. While we
 agree with the State that appellant’s trial objection
                                                            does not comport with his argument on
appeal, we must nonetheless address his issue. In
                                                         the area of jury charge error, the failure to
object at trial does not waive error, but rather affects
                                                          the harm analysis utilized if error is found.
Jenkins v. State, 05-04-01386-CR, 2005 WL 3471468,
                                                              at *4 n.4 (Tex. App.—Dallas Dec. 20,
2005, no pet.) (not designated for publication) (citin
                                                       g A&nanza, 686 S.W.2d at 171).
              When anal vzing a jury charge issue, we must first decide whether error exists.
                                                                                              Middictoit
 r. State. 125 S.W,3d 450. 453 (Tex. Crim. App. 2003). If so. we analyz that
                                                                       e     error ftr harm. Id.
 The degree of harm necessary depends upon whether the error was preserved by objecti
                                                                                      on. If the
 defendant properly’ objected to the charge, some harm requires reversal. Ainiana, 686
                                                                                       S.W.2d at
 1 71   .   If the defendant did not object to the charge. reversal is not required unless the
                                                                                               record
 shows egregious harm. Id.

             Egregious harm requires more than mere theoretical harm. Errors that result in egregio
                                                                                                    us
harm        are those that affect the very basis of a case, deprive a defendant of a valuable right,
                                                                                                     or
vitally affect a defensive theory. Alga v.State, 175 S.W.3d 738, 750 (Tex. Crirn.
                                                                                  App. 2005).
             Texas law requires a unanimous jury verdict in felony criminal cases. TEX. CODE
                                                                                             CRIM.

PROC. ANN.         art. 36.29(a) (West Supp. 2012): Hendrix     i.   State, 150 S.W.3d 839. 845 (Tex.

App.—Houston 114th Distj 2004, pet. ref’d).            Generally, instructing the jury on alternative

theories, or manner and means, of committing the same offense does not violate the
                                                                                   unanimity
requirement. Hendrix, 150 S.W.3d at 845. Charging on alternative theories, howev
                                                                                 er, differs
from charging on separate offenses involving separate incidents. id. The latter runs
                                                                                     afoul of the
unanimity requirement.

            Section 22.021, the aggravated sexual assault statute, describes conduct-oriented
                                                                                              offenses
in which the legislature crirninalized very specific conduct of several different
                                                                                  types.       Vick v.
State, 991 S.W.3d 830. 832 (Tex. Crim. App. 1999). Each separately described act
                                                                                 constitutes a
separate statutory offense. Id. at 833.

            The State indicted appellant as follows:

                   On or about the 23rd day of September A.D., 2010 in the County
                   of Dallas and said State, did

                   Unlawfully then and there intentionally and knowingly cause
                   contact and penetration of the female sexual organ of CRYSTAL
                   KEMP, hereinafter called the complainant, without the consent of
                   the complainant, by means of an object, to-wit: the sexual organ of
                said defendant, and by acts and words, said defendant did place the
                complainant in fear that death and serious bodily injury would be
                imminently inflicted on CRYSTAL KEMP, and further said
                defendant, by acts and words occurring in the presence of the
                complainant, did threaten to cause the death and serious bodily
                injury of CRYSTAL KEMP.

                And further defendant did unlawfully then and there intentionally
                and knowingly cause the penetration of the female sexual organ of
                CRYSTAL KEMP, hereinafter called the complainant, without the
                consent of the complainant, by means of an object, towit: the
                finger of said defendant, and by acts and words, said defendant did
                place the complainant in fear that death and serious bodily injury
                would be imminently inflicted on CRYSTAL KEMP, and further,
                said defendant, by acts and words occurring in the presence of the
                complainant, did threaten to cause the death and serious bodily
                injury of CRYSTAL KEMP.

         While the State boldly asserts “Appellant was prosecuted under § 22.02 1(a)( 1 )(A)(i)

which prohibits nonconsensual penetration of the female sexual organ by any means,” we do not

agree.   The first paragraph of the indictment alleges appellant contacted and penetrated the

female sexual organ with his sexual organ, which clearly falls under Texas Penal Codes section

22.021(a)(l)(A)(iii).   See TEx. PENAL CODE ANN, § 22.021(a)(l)(A)(iii) (West Supp. 2012)

(intentionally or knowingly causing the sexual organ of another person, without that person’s

consent, to contact or penetrate the sexual organ of another person). The second paragraph of the

indictment, which alleges digital penetration, falls under section 22.021(a)(1)(A)(i). See TEx.

PENAL CoDE ANN. § 22.021(a)(1)(A)(i) (West Supp. 2012) (intentionally or knowingly causing

the penetration of the sexual organ by any means, without the person’s consent). Thus, each

paragraph of the indictment describes an act constituting a separate statutory offense.

         The cases cited by appellant support our conclusion. In Hendrix, the trial court submitted

three offenses in the disjunctive: (1) penetrating the female sexual organ with defendant’s sexual

organ; (2) penetrating the female sexual organ with defendant’s finger; or (3) causing the sexual

organ of complainant to contact defendant’s sexual organ. Hendrix, 150 S.W.3d at 848. The

court concluded that it was possible some jurors found appellant guilty of digital penetration
 while others found him guilty of penetrating or contacting her sexual organ. Id. By submitting

 the ollenses in the disjunctive, the trial court erred and deprived appellant of his right to a

 unanimous verdict, hi. at 849.

         Similarly, in Clear v. State, 76 S.W.3d 622, 623 (Tex. App.—Corpus Christi 2002. no

 pet.) the indictment alleged the defendant penetrated the female sexual organ of a child with his

 linger. penetrated the female sexual organ ol a child with his sexual organ. and penetrated the

 child’s mouth with his sexual organ. The trial court erroneously instructed the jury it could find

the defendant guilty of aggravated sexual assault if it found that he either penetrated the child’s

female sexual organ with his finger or penetrated or contacted it with his sexual organ. Id. The

State confessed that the trial court erred by charging in the disjunctive, and the court agreed and

proceeded to conduct a harm analysis. Id.

        The Facts here mirror those in both Hendrix and C’lear. Appellant was indicted of two

separate offenses under section 22,021,      The trial court instructed the jury in the disjunctive

allowing it to find appellant guilty if they believed he either penetrated her sexual organ with his

sexual organ or if he penetrated her sexual organ with his finger. Thus, it is possible that some

of the jurors found him guilty of digital penetration while others found him guilty of contacting

or penetrating her sexual organ with his sexual organ. This violated appellant’s valuable right to

a unanimous verdict. Accordingly, the trial court erred in submitting the disjunctive jury charge.

        In reaching this conclusion, we conclude the State’s reliance on C’ook v. State, 192

S.W.3d 115 (Tex. App.—Houston 114th Dist.1 2006, no pet.) is inapplicable. In that case, the

jury was instructed it could find the defendant guilty of aggravated sexual assault if it believed he

penetrated the female sexual organ of the complainant by placing his finger in the complainant’s

female sexual organ or if it believed he penetrated her sexual organ by placing an unknown

object in her female sexual organ. Id. at 117. The appellate court distinguished the facts from

Hendrix because “the trial court’s charge clearly instructed the jury disjunctively on different
  mamier and means of committing a single of tense, not differe
                                                                nt offenses:’ Id. at 118—19. The
  court specifically noted “the conduct charged—penetration
                                                            by finger or unknown object—
  implicates only one subsection of section 22.021   .“   it]. at I W. However, as previotisly stated. the
  indictment here does not implicate one section of 22.021,
                                                            despite the State’s argument to the
  contrary. Therefore, we are not persuaded by the holding in
                                                              Cook.
         Having found error in the trial court’s charge, we must deter
                                                                       mine whether sufficient harm
 resulted from the error to require reversal. Because appe
                                                           llant did not specifically object       iii   the
 trial court on the grounds of juror unanimity, we may only reve
                                                                 rse for egregious error. Al,nmia,
 686 S.W.2d at 171.

         The Texas Constitution and the Texas Code of Criminal
                                                               Procedure both require a
 defendant who is charged with a felony to be convicted by
                                                           a unanimous jury: therefore, courts
 have repeatedly found egregious harm under similar circu
                                                          mstances. See Hendrix, 150 S.W.3d at
 850 (“Because erroneous charge made it possible for the
                                                         jury to return a less than unanimous
 guilty verdict, we find the charge error was harmful.”); Clea
                                                               r, 76 S.W.3d at 624 (concluding

 error in the charge was egregious because it deprived the defe
                                                                ndant of his right to a unanimous
 verdict). Moreover, during closing argument the State com
                                                           pounded the error by emphasizing the
jury did not have to agree as to which offense appellant was
                                                             guilty of by arguing:

               So I just wanted to make it clear to you. Everybody could
                                                                           say, you
               know what, I think the State proved it because the penis cont
                                                                              acted
               the sexual organ. Another four of you could say, I think
                                                                          the penis
               penetrated the sexual organ of this victim. Another four could
                                                                                say,
               I know it was the fingers that penetrated the complainant’s organ.

       While the State argues appellant cannot demonstrate he suffe
                                                                    red egregious harm because
“[gliven the reliability of the sperm evidence, surely all
                                                           the jurors would have agreed on the
penile penetration allegation alone,” we cannot reach such conc
                                                          a     lusion. A similar argument was
made and rejected in Clear v. State. In that case, the State argu
                                                                  ed the jury charge error was not
egregious because the evidence of defendant’s guilt was over
                                                             whelming, and the record showed
  the jury found the vic1ims testimony to he credible.        C/cur. 76 SW.3df at 624. The court
 concluded the record did not support the Siate’s claims, and
                                                              one could not determine what the

 jury believed as to the oil enses charged. Id. The court further
                                                                  held:

                For this court to determine that the harm was not egregious,
                because the jury would surely have found Clear guilty of all
                                                                                 the
                ollenses if it had been given the opportunity, would put us
                                                                              in the
                place ol the jurors and would deprive Clear of his right to a guilty
                tmding by a unanimous jury.

 Similarly, the State is asking this Court to put itself in the place
                                                                      of the jurors and that we cannot
 do,   Accordingly, appellant has established he was egregiously harmed
                                                                        by the trial court’s
 erroneous jury charge. We sustain appellant’s third issue.

                                             Conclusion

        Having considered appellant’s arguments. we affirm as to issues
                                                                        one and two regarding
 omission of the lesserincluded offense instructions.




        We sustain appellant’s third issue, in which the trial court denied
                                                                            him his right to a
unanimous verdict, and reverse and remand this cause for a new trial.




                                                    MICHAEL J. O’NEILL
                                                    JUSTICE
DO NOT PUBLISH
TEx. R. APP. P. 47

11 1488F.U05
                                                 0
                                    Qtiurt 01 Apprat
                             iftI! Jitrict 01 icxai al
                                                  JUDGMENT

 RICARDO             JOURDAN,               Appellant         On Appeal from the 195th Judicial District
                                                                                                          Court,
                                                              Dallas                County.
No.   05-I l-0l488CR                                                                                       Texas
                                                   V.         Trial Court Cause No. Fl 1-00498-N,
                                                              Opinion delivered by Justice O’Neill,
THE STATE OF [EXAS, Appellee                                                                             Justices
                                                              Bridges and Murphy participating.



         Based on the Court’s opinion of this daie,
                                                     the judgment of the trial court is REV
                                                                                                   ERSED and
REMANDED for a new trial because the trial
                                            courts jury instruction violated appellant
                                                                                       ’s right to a unanimous
verdict,

        In all other respects, the judgment of the trial
                                                         court is AFFIRMED,


Judgment entered this     th
                          12
                               (lay of Febmary, 2013.


                                                           MICHAEL J. O’NEILL
                                                           JUSTICE
