Opinion issued July 12, 2016




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-15-00179-CR
                         ———————————
                       MIGUEL GOMEZ, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 174th District Court
                          Harris County, Texas
                      Trial Court Case No. 1358720


                                  OPINION

     A jury convicted Miguel Gomez of aggravated sexual assault of a child

under 14 years of age. See TEX. PENAL CODE § 22.021. The court assessed

punishment at 25 years in prison. Among other issues on appeal, Gomez asserts
constitutional error in the trial court’s failure to instruct the jury that it must

unanimously agree on the occurrence of a single incident of conduct.

      We conclude that the State’s argument misinformed the jury about the

requirement that it unanimously agree on a single incident of criminal conduct, and

the trial court’s erroneous failure to instruct the jury on this issue caused egregious

harm. Accordingly, we reverse and remand for a new trial.

                                    Background

      When the complainant was 7 years old, her parents were divorced, and

appellant Miguel Gomez was dating her mother. The complainant lived with her

father, but she and her brother would visit her mother every other weekend, and at

times Gomez would be the only adult watching her.

      One day, the complainant called her mother at work and accused Gomez of

touching her inappropriately. The mother responded by talking with both the

complainant and Gomez on their front patio. Gomez responded to the allegations

by saying that he did not know what the complainant was talking about.

      The mother spoke to a friend, Crystal Rocha German, and she eventually

decided to take the complainant to a hospital for a rape exam. A nurse performed a

nonacute sexual assault exam and did not find any trauma. In response to the

complainant’s statement that Gomez had touched her vagina, the nurse referred her

to the Children’s Assessment Center.



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      The assessment center conducted forensic interviews with the complainant,

her mother, and Gomez. The complainant told an interviewer that Gomez had

touched her several times, but she discussed three separate incidents specifically.

The first incident occurred after Gomez and the children returned home from a

pool. Gomez washed the complainant with his hands, then laid a towel on the bed

and put baby oil on her body. Gomez then put his finger inside “her middle.”

      The second incident occurred while the complainant was asleep on her

mother’s bed. Gomez picked her up to move her away from the bed, and the

complainant said “she felt a hand go up her pants and a fingernail went into her

middle.” The complainant’s mother later testified that she remembered this specific

incident. She was present at the time, did not see Gomez touch the complainant

inappropriately, and believed that this accusation was false.

      The third incident that the complainant described to the interviewer occurred

during a game. The complainant said that while both of them were clothed, she and

Gomez wrestled, and he spread her legs and their pelvises touched repeatedly. The

interviewer admitted on cross-examination that this may not have been a sexual

act. The interviewer noted that when discussing all three incidents, the complainant

was “kind of mashing them together” and talking about them as if they were

happening concurrently, rather than discussing each in isolation.




                                          3
      The complainant later described a fourth incident that occurred when taking

a shower with her sister, who was two years old at the time. The complainant again

described Gomez washing her “middle part” with his hand and touching the inside

of her vagina. The complainant did not describe this incident to the forensic

interviewer, but she did recount it at trial.

      Gomez was indicted on one count of aggravated sexual assault of a child. At

trial, the State elicited testimony from the complainant’s mother, the nurse who

performed the initial nonacute exam, the assessment center interviewer, the

complainant’s therapist, the complainant’s father, the complainant herself (who

was then 12 years old), and an assessment center psychologist who served as an

expert. The expert specifically testified about the effect of trauma on a child

victim’s memories, and the potential resulting partial disclosure and issues with

retelling incidents. The therapist testified that the complainant was consistent in

accusing Gomez of assaulting her.

      Gomez rested without presenting evidence in his case-in-chief, and he did

not testify during the guilt–innocence phase of trial. He did not ask the State to

make an election as to which incident it wished to prosecute.

      During closing argument, Gomez’s counsel argued that the complainant’s

accusations were a “fantasy” that was brought about because of instability in her

home and as a result of her dysfunctional family. Defense counsel focused on each



                                            4
particular incident in turn, specifically mentioning the mother’s testimony that the

incident on the bed did not occur, and that complainant had answered on cross-

examination that she did not remember several details about the other incidents. He

made no argument relating to jury unanimity.

      The State’s closing argument focused on retelling the several incidents that

the complainant described and emphasizing that she had no motive for falsity. The

prosecutor also made this statement:

                    When you go back and you read through the jury charge,
             one of the things that the defense wants you to get confused on
             is they want you to think that we’re limited to one of these
             instances, and to try to hang you up there. If four of you think
             that oil incident is beyond a reasonable doubt and four of you
             think that bed incident is beyond a reasonable doubt and the
             other four think that some other incident was beyond a
             reasonable doubt, then we have proved our case.

                   Because what is important is that all 12 of you believe
             that Miguel Gomez penetrated that seven-year-old girl’s vagina,
             and he did so with his finger. And if all 12 of you believe that,
             then we have proved our case beyond a reasonable doubt.

Gomez’s counsel did not object to this statement. The prosecutor additionally

referred to the expert’s testimony regarding a young child victim’s tendency to

“mix dates . . . and mix instances.”

      The court’s instruction to the jury included the following paragraph on jury

procedure:

                   As you retire to the jury room, you should select one of
             your members as your Foreman. It is his or her duty to preside


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             at your deliberations, vote with you, and when you have
             unanimously agreed upon a verdict, to certify to your verdict by
             using the appropriate form attached hereto and signing the same
             as “Foreman.”

There were no other instructions relating to jury unanimity in the charge. The court

also instructed the jury that it could not consider evidence of “other crimes,

wrongs, or acts against the child who is the victim of the alleged offense” unless

they bore “on relevant matters, including: (1) the state of mind of the defendant

and the child; and (2) the previous and subsequent relationship between the

defendant and child, and for no other purpose.” The instructions stated that the

State was not bound by the specific date alleged in the indictment, so long as “the

offense, if any, was committed at any time within the period of limitations.”

Neither the defense nor the State objected to the jury instructions.

      During deliberation, the jury sent this request for clarification: “Is it our

charge to determine that one or more of the specific instances related by [the

complainant] did occur on or about the date mentioned in the indictment, or just

that one or more of these instances did occur as testified to?” The court responded

that the jury should refer to the court’s charge.

      The jury convicted Gomez of aggravated assault of a child under the age of

14. Gomez elected to have punishment assessed by the court, which assessed

punishment at 25 years in prison. Gomez appealed.




                                           6
                                      Analysis

      In his first three issues, Gomez asserts that the trial court erred by failing to

instruct the jury that it must unanimously find that a single incident of the charged

offense was proven beyond a reasonable doubt. Gomez argues that because of this,

he was denied his constitutional and statutory rights to a unanimous verdict. The

State responds that the lack of instruction did not cause Gomez egregious harm and

that any other argument was not preserved due to the lack of objection at trial.

      A jury must reach a unanimous verdict about a specific felony that the

defendant committed. See Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App.

2011). This requires the jury to “agree upon a single and discrete incident that

would constitute the commission of the offense alleged.” Id. (quoting Stuhler v.

State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)).

      A non-unanimous verdict can occur when the State presents evidence that

the same criminal conduct was repeated on several occasions but the results of the

conduct differed, when the State charges one offense and presents evidence that the

defendant committed that offense on multiple separate occasions, or when the State

charges one offense and presents evidence of an offense that was committed at a

different time but violated another provision of the same statute. Id. at 771–72. If

the State presents evidence that the defendant committed the charged offense on

multiple occasions, the judge’s charge can ensure unanimity by instructing the jury



                                          7
that its verdict must be unanimous as to a single offense among those presented. Id.

at 772. The instruction should not refer to any specific evidence in the case and

should permit the jury to return a general verdict. Id. at 776.

      A defendant may choose to require the State to elect a specific criminal act

that it relies upon for conviction. See id. at 775; O’Neal v. State, 746 S.W.2d 769,

772 (Tex. Crim. App. 1988). This choice is strategic and may be waived or

forfeited. Cosio, 353 S.W.3d at 775. One reason that a defendant may refuse to

elect is that the State will be jeopardy-barred from prosecuting the other offenses

that were in evidence. See id.; Ex parte Pruitt, 233 S.W.3d 338, 346 (Tex. Crim.

App. 2007). Even if the defendant does not require an election, the trial judge bears

the ultimate responsibility to ensure unanimity through the instructions in the jury

charge. See Cosio, 353 S.W.3d at 776.

      A constitutional unanimity violation is subject to the constitutional harm

standard when properly preserved by a timely and specific objection at trial. Id. at

776; see TEX. R. APP. P. 44.2(a). Gomez did not preserve the constitutional or

statutory issues through such a timely objection. See TEX. R. APP. P. 33.1(a).

However, under the standard set forth in Almanza v. State, 686 S.W.2d 157 (Tex.

Crim. App. 1984), charge error may never be waived by a defendant’s failure to

object at trial. See id. at 171. When, as in this case, the constitutional and statutory




                                           8
issues have not been properly preserved, we analyze whether there is charge error

and whether that caused egregious harm. See Cosio, 353 S.W.3d at 776.

      When analyzing potential jury-charge error, our first duty is to decide

whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If

we determine that error exists, we analyze that error for harm. Id. When a

defendant fails to object to the charge, we will not reverse for jury-charge error

unless the record shows “egregious harm” to the defendant. Id. at 743–44; see also

Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). For egregious harm to

be established, the charge error must have affected “the very basis of the case,”

“deprive[d] the accused of a valuable right,” or “vitally affect[ed] his defensive

theory.” Almanza, 686 S.W.2d at 172. To assess whether egregious harm occurred

we look to the particular facts of the case, and consider: (1) the charge; (2) the state

of the evidence; (3) the parties’ arguments; and (4) all other relevant information in

the record. Cosio, 353 S.W.3d at 777; Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996). The Almanza analysis is fact-specific and done on a case-by-

case basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013).

      In Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011), the defendant

was charged with four felony counts of aggravated sexual assault of a child. See id.

at 769. The charge in the case generally instructed the jury that the verdict needed

to be unanimous, and the defendant did not object to the charge. See id. at 770. The



                                           9
Court of Criminal Appeals stated that the charge impermissibly allowed the jury to

rely on separate instances and render non-unanimous verdicts, and the standard

unanimity instruction did not rectify the charge error. See id. at 774.

       After concluding that the defendant’s failure to object had waived error on

all issues but harm in the jury charge, the Court analyzed the facts of the case for

egregious harm. See id. at 777–78. The Court concluded that although the charge

permitted non-unanimous verdicts, neither party nor the judge had added to the

charge errors by telling the jury it did not have to be unanimous about the specific

instance of criminal conduct. See id. at 777; compare Ngo, 175 S.W.3d at 750–51

(prosecution and trial judge both misstated law regarding unanimous verdicts).

Additionally, the Court determined that based on the state of the evidence, the

defendant’s case “was essentially of the same character and strength across the

board” and that had “the jury believed otherwise, they would have acquitted Cosio

on all counts.” Cosio, 353 S.W.3d at 777–78. The Court held that because neither

the arguments of the parties nor the state of the evidence showed actual harm, the

defendant had not been egregiously harmed, and reversed the court of appeals. See

id. at 778.

       The Court of Criminal Appeals similarly reversed for lack of egregious harm

in Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. 2015). As in Cosio, the

defendant in Arrington was charged with several different sexual offenses. See id.



                                          10
at 837–38. The charge did not require the jurors to be unanimous as to which

separate criminal act constituted each count, but instead included only a generic

unanimity instruction. Id. at 838. The Court noted that the court of appeals had

failed to “consider the entire record” when looking to the state of the evidence in

the case and had erred by disregarding evidence that had been admitted for all

purposes at trial. Id. at 842–43. Concluding that the only factor that weighed in

favor of finding egregious harm was the jury instructions themselves, the Court

reversed. See id. at 845.

      In this case, as in Cosio and Arrington, the trial court failed to instruct the

jury in the jury charge that it needed to unanimously base its verdict on a single

offense among those presented. See Arrington, 451 S.W.3d at 841–42; Cosio, 353

S.W.3d at 772, 774. Therefore, we must analyze whether the charge error caused

Gomez egregious harm.

I.    Jury charge

      The charge in this case permitted non-unanimous verdicts based on the

evidence presented in the case. The State asserts that the remainder of the charge

was correct, and it included language regarding unanimity. The State also argues

that because it only brought one charge of aggravated sexual assault and the jury

instructions specifically excluded extraneous offenses, this factor should weigh

against egregious harm. We disagree.



                                         11
      As the Court of Criminal Appeals has repeatedly held, generic language

regarding unanimity in the overall verdict is insufficient to ensure a unanimous

verdict on a single incident. See Arrington, 451 S.W.3d at 841 (noting that even

several generic requirements of unanimity cannot ensure a unanimous verdict

when there is evidence of multiple incidents). A limiting instruction regarding

extraneous acts is similarly inadequate to instruct the jury that it must unanimously

agree on a single incident of criminal conduct that supports the charge. See Cosio,

353 S.W.3d at 773–74. The extraneous act instruction given in this case would

prevent the jury from considering crimes not charged in the indictment for

irrelevant purposes, but it would not require the jury to find unanimously in favor

of a single transaction that supports the indictment.

      Despite bringing only one count of sexual assault against Gomez, the State

presented evidence of at least three distinct criminal offenses. Nothing in the jury

charge required the jury to agree unanimously that the State had proven a particular

offense beyond a reasonable doubt. See id. at 772. Therefore, we find that this

factor weighs in favor of egregious harm. See Arrington, 451 S.W.3d at 841.

II.   State of the evidence

      The evidence of the offense in this case came nearly exclusively from oral

testimony from those involved. In addition to the complainant’s own testimony,

several family members testified about events surrounding her outcry, and both the



                                          12
interviewer who initially spoke to the complainant and an expert from the

Children’s Assessment Center discussed what the complainant said in her

statement and the psychological implications of her testimony. The therapist also

testified about her consistency in naming Gomez and describing the alleged

assaults.

       As in Arrington, there was no medical or DNA evidence in this case that

could corroborate the complainant’s claims. See id. The result in this case was that

the sole evidence of the assault came from the complainant and those who had

heard her talk about the incidents. However, unlike in Arrington, the defendant did

not testify or put on any witnesses in this case, but instead he required the State to

prove its burden. Cf. id. at 842. While in Arrington the jury faced a decision

between two opposing narratives, and the defendant’s version was a full denial of

the complainant’s story, in this case the jury could believe the complainant’s story

entirely, in part, or not at all. Cf. id.

       The complainant testified to four separate instances of possible sexual

assault: once when Gomez took her away from bed, once in the shower, once when

he applied baby oil to her, and once when they wrestled. The defense effectively

controverted the bed incident through the testimony of the complainant’s mother,

who stated that she had witnessed the event and did not believe the complainant

was telling the truth. Gomez also cast doubt on the nature of the wrestling incident,



                                            13
as the forensic interviewer admitted on cross-examination that this may not have

been sexual conduct. For the remaining incidents, trial counsel largely cross-

examined the complainant and focused on the incomplete nature of her

recollections. Therefore, unlike in Cosio, the defense was not “essentially of the

same character and strength across the board.” 353 S.W.3d at 777.

       However, the evidence ultimately persuaded the members of the jury to find

that Gomez did commit the offense beyond a reasonable doubt on at least one

occasion, or they would have acquitted him. See id. While the issues at trial were

contested, we nonetheless conclude that the state of the evidence weighs slightly

against a finding of egregious harm. See Cosio, 353 S.W.3d at 778; Arrington, 451

S.W.3d at 844.

III.   The parties’ arguments

       The defense’s overall theory was espoused during closing arguments, when

trial counsel argued that the complainant’s version of events was a “fantasy”

caused by stress associated with her dysfunctional family. Given the verdict in the

case, the jury apparently rejected this theory and believed the complainant at least

in part, or it would not have convicted Gomez. See Cosio, 353 S.W.3d at 777–78.

However, defense counsel did not make any argument regarding unanimity.

       The only direct reference to unanimity during Gomez’s trial came from the

prosecutor in his closing argument:



                                        14
                    When you go back and you read through the jury charge,
             one of the things that the defense wants you to get confused on
             is they want you to think that we’re limited to one of these
             instances, and to try to hang you up there. If four of you think
             that oil incident is beyond a reasonable doubt and four of you
             think that bed incident is beyond a reasonable doubt and the
             other four think that some other incident was beyond a
             reasonable doubt, then we have proved our case.

                   Because what is important is that all 12 of you believe
             that Miguel Gomez penetrated that seven-year-old girl’s vagina,
             and he did so with his finger. And if all 12 of you believe that,
             then we have proved our case beyond a reasonable doubt.

(Emphasis supplied.) The prosecutor’s argument was a clear misstatement of the

law, one that capitalized on the jury charge’s failure to instruct the jury regarding

unanimity, and instructing them the opposite of what the law required. See Ngo,

175 S.W.3d at 750 (prosecutor’s statement that the jury could “mix and match”

offenses was misstatement of the law and major factor in finding egregious harm).

This argument occurred shortly before the jury deliberated, and it was not

corrected or ameliorated in any way—to a reasonable jury member, it could have

appeared to be the law.

      The only time the jury received any instruction regarding the necessity of

unanimously finding a single incident of conduct, it was affirmatively told it did

not need to do so. See id. at 751. We therefore conclude that this factor weighs

strongly in favor of a finding of egregious harm. See id. at 750–52; cf. Cosio, 353

S.W.3d at 777 (when neither of the parties nor the trial judge added to the charge



                                         15
error by telling the jury it did not have to be unanimous, factor was not in favor of

egregious harm).

IV.   Other relevant information in the record

      Gomez argues that the jury’s request for clarification is additional

information that weighs in favor of egregious harm. The jury sent a request for

clarification during deliberation asking: “Is it our charge to determine that one or

more of the specific instances related by [the complainant] did occur on or about

the date mentioned in the indictment, or just that one or more of these instances did

occur as testified to?” The court responded that the jury should refer to the court’s

charge. Gomez claims that the “one or more” language was a reference to whether

the jury had to agree on a single incident because it had heard evidence of multiple

acts. The State contends that this was only a question about whether the date in the

indictment was a necessary element of the charge.

      We agree with the State’s evaluation of the jury’s question. The jury did not

appear to be asking for clarification as to which instance it was intended to find.

Instead, it was asking for clarification as to whether it had to find that the incident

used for conviction occurred on the date mentioned in the indictment. We conclude

that this factor does not weigh either for or against egregious harm. See Cosio, 353

S.W.3d at 777.

                                    *     *      *



                                          16
      When examining all four factors to determine egregious harm, two of them

weigh heavily in favor of finding reversible error in this case. While the state of the

evidence is slightly against reversal, the charge error combined with the State’s

misstatement of the law enabled the jury to find Gomez guilty of some

combination of the various incidents presented at trial, rather than a single incident

of conduct. See Ngo, 175 S.W.3d at 752.

      Accordingly, we conclude that the charge error caused Gomez egregious

harm by depriving him of his valuable right to a unanimous jury verdict. See id.

Because egregious harm demands reversal, we need not reach Gomez’s remaining

issues.

                                     Conclusion

      We reverse and remand for a new trial.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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