                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-15-00099-CR


PETRIT DIKO                                                         APPELLANT

                                             V.

THE STATE OF TEXAS                                                        STATE


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         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0431-C

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                                     OPINION

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                                  I. INTRODUCTION

      Appellant Petrit Diko was convicted by a jury for the murder of his wife,

Mimoza Diko. See Tex. Penal Code Ann. § 19.02(b), (c) (West 2011). The jury

assessed his punishment at ninety-nine years’ confinement, and the trial court

sentenced him accordingly. In one issue, Diko argues that the trial court erred in

its charge to the jury. We will affirm.
                           II. FACTUAL BACKGROUND

      On December 7, 2011, Diko called 911 and told the dispatcher that he had

killed his wife.1 He also told the dispatcher that he needed an ambulance and

police sent to his apartment complex. Officer Matthew Harmuth of the Denton

Police Department was dispatched to the scene.2 When Officer Harmuth arrived,

Diko approached him and stated that he had killed his wife.        Diko then told

Officer Harmuth that his wife needed help and pointed toward his upstairs

apartment. Officer Harmuth went up to the apartment, opened the door, and

found Mimoza—still alive—lying on the ground in a large pool of blood. He saw

puncture wounds to her face, head, and hands, and observed that she was

gasping for air. Officer Harmuth then secured Diko and asked for paramedics to

come to the scene.     Mimoza was eventually transported to the hospital by

helicopter. She was pronounced dead on arrival.

      Other officers, including Detective Jeffrey Laughlin, arrived on the scene.

Detective Laughlin testified that when he arrived at the apartment he noticed that

Diko had blood on his hands and what appeared to be small cuts on his face and

mouth.    Donna Krouskup, a crime scene technician for the Denton Police

Department, was tasked with gathering evidence from the crime scene.



      We note that English is not Diko’s first language. Diko, Mimoza, and their
      1

two sons immigrated to the United States from Albania in 2007.

      Before the police arrived, Diko’s neighbor, Jennifer Uribes, saw Diko
      2

moving a blood-stained mattress outside his apartment.


                                        2
Krouskup recovered blood-stained pieces of wood that were part of a bed frame,

a knife that had blood on its hilt, and a screwdriver and screwdriver bit that were

stained with blood and hair.

      Dr. Sheila Spotswood performed Mimoza’s autopsy.            Dr. Spotswood

testified that Mimoza had “a large number of injuries” to her head, neck, trunk,

chest, abdomen, back, and extremities.        She also testified that Mimoza had

thirty-nine stab and laceration wounds and that Mimoza’s “head had some large

gaping blunt force injuries.” Dr. Spotswood testified that Mimoza’s most severe

head injuries were caused by something that was blunt and heavy and that such

injuries were consistent with someone being hit over the head with a piece of

wood or a bed rail. She observed that some of Mimoza’s stab wounds were

consistent with being caused by “something like a knife” and that other stab or

puncture wounds were consistent with being caused by a screwdriver.            Dr.

Spotswood determined that Mimoza’s cause of death was homicide caused by

blunt and sharp force injuries.

                                  III. JURY UNANIMITY

      In his sole issue, Diko contends that the trial court gave a defective charge

because the charge failed to require the jury to return a unanimous verdict.

                   A. Diko’s Complaint regarding Unanimity

      Diko asserts that he was charged with two separate criminal acts—murder

under penal code section 19.02(b)(1) (intentionally or knowingly causing death)

and murder under penal code section 19.02(b)(2) (committing an act clearly


                                          3
dangerous to human life with the intent to cause serious bodily injury)—and that

the trial court violated the unanimity requirement by allowing the jury to find him

guilty of murder without requiring the jury to agree on which specific murder

offense he committed.3 See Tex. Penal Code Ann. § 19.02(b)(1), (2). Diko

points to the following statements made during closing argument to support his

contention that the unanimity requirement was violated:

             [Prosecutor]: And there’s only a couple of things I want to
      point out to you as you’re kind of working your way through this
      charge. And I’ll take you back through voir dire and when we talked
      about the two different ways that a murder could be committed:
      Either intentionally or knowingly causing the death of an individual,
      or, with the intent to cause serious bodily injury, commit an act
      clearly dangerous to human life that causes the death of an
      individual.

             And the reason I bring you back to that is because it is an
      either/or proposition, meaning six of you could think he intentionally

      3
       The portion of the charge Diko complains of reads:

             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 7th day of December, 2011, in Denton County,
      Texas, the defendant, PETRIT DIKO, did then and there intentionally
      or knowingly cause the death of an individual, namely, Mimoza Diko,
      by striking or cutting or stabbing Mimoza Diko with a screwdriver or a
      knife or scissors or a metal bed frame or a piece of wood or an
      object unknown to the Grand Jury;
                                        -OR-
             If you find from the evidence beyond a reasonable doubt that
      on or about the 7th day of December, 2011, in Denton County,
      Texas, the defendant, PETRIT DIKO, did then and there, with intent
      to cause serious bodily injury to an individual, namely, Mimoza Diko,
      commit an act clearly dangerous to human life that caused the death
      of said Mimoza Diko, by striking or cutting or stabbing Mimoza Diko
      with a screwdriver or a knife or scissors or a metal bed frame or a
      piece of wood or an object unknown to the Grand Jury, then you will
      find the defendant, guilty of murder as charged in the indictment.

                                        4
      or knowingly caused the death of Mimoza Diko and six of you could
      think that he committed an act clearly dangerous to human life and
      caused the death of Mimoza Diko. You don’t have to be unanimous
      on which way. I submit to you that we proved beyond a reasonable
      doubt that he intentionally or knowingly caused the death of Mimoza
      Diko and we really don’t need to go any further than that.

                             B. Standard of Review

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id.

                       C. The Law regarding Unanimity

      Jury unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d

738, 745 (Tex. Crim. App. 2005). Simply put, every juror must agree that “the

defendant committed the same, single, specific criminal act.”            Id.   Jurors,

however, need not be unanimous about the specific manner and means of how

an offense was committed. Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.

App. 2011); see Schad v. Arizona, 501 U.S. 624, 630, 111 S. Ct. 2491, 2496

(1991) (holding that when the actus reus was “murder,” all twelve jurors had to

agree that the defendant committed the act of murder but did not need to be

unanimous on whether the defendant committed murder “with premeditation or in

the course of committing a robbery”).

      This court, on three previous occasions, has rejected the argument

advanced by Diko—that sections 19.02(b)(1) and 19.02(b)(2) constitute two



                                         5
separate offenses and that a trial court violates the unanimity requirement by

allowing the jury to find a defendant guilty without requiring the jury to agree on

which offense the defendant committed.4 See Lozano v. State, 359 S.W.3d 790,

821–22 (Tex. App.—Fort Worth 2012, pet. ref’d); Bundy v. State, 280 S.W.3d

425, 431–33 (Tex. App.—Fort Worth 2009, pet. ref’d); Davis v. State, 268 S.W.3d

683, 710–12 (Tex. App.—Fort Worth 2008, pet. ref’d).5 As we stated in Lozano,

“penal code sections 19.02(b)(1) and 19.02(b)(2) do not describe different

offenses; rather, they set forth alternative methods of committing the same

offense.” 359 S.W.3d at 821 (citing Bundy, 280 S.W.3d at 431–33). Thus, “[t]he

jury unanimity requirement is not violated when, as here, the defendant was

indicted under a statute providing alternate means of committing the same

offense.” Lozano, 359 S.W.3d at 821 (citing Bundy, 280 S.W.3d at 433; Davis,

268 S.W.3d at 712).

      Our sister courts have similarly resolved this issue. See Smith v. State,

436 S.W.3d 353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Both


      4
       Diko candidly acknowledges this binding precedent, but urges us to
overturn our prior opinions regarding this issue.
      5
         We note that the prosecutor in Davis made similar statements during
closing argument as the statements made by the prosecutor here. In Davis, the
prosecutor told the jury: “And if six of you say, well, I believe it was an intentional
killing and six of you said that it’s an act clearly dangerous to human life, you can
find him guilty of murder.” 268 S.W.3d at 711. We held in Davis that the trial
court did not err by overruling Davis’s objection to the statements made by the
prosecutor. Id. at 712.




                                          6
the indictment and the jury charge indicate that the only offense involved in this

case was murder by any of the three methods set forth in the Penal

Code . . . . The jury returned a unanimous verdict that appellant committed

murder. The jury was not required to agree unanimously as to the manner and

means by which appellant did so.”); London v. State, 325 S.W.3d 197, 207 (Tex.

App.—Dallas 2008, pet. ref’d) (“We reject appellant’s argument that the jury

charge alleged two separate statutory offenses of murder, allowing the jury to

return a non-unanimous verdict of guilty.”); Garcia v. State, 246 S.W.3d 121, 141

(Tex. App.—San Antonio 2007, pet. ref’d) (“[W]hether the jury determined that

Garcia intentionally or knowingly caused the death of Lesa Garcia, or that he

caused her death by committing an act clearly dangerous to human life with the

intent to cause serious bodily injury, there was only one single crime of murder.

As a result, the instant case does not present the possibility of a less than

unanimous conviction due to the alleged commission of multiple crimes or acts.”

(citation omitted)); Yost v. State, 222 S.W.3d 865, 877–78 (Tex. App.—Houston

[14th Dist.] 2007, pet ref’d) (“Here, [section 19.02] does not describe different

offenses, but merely sets forth different methods of committing the same offense.

Although sections 19.02(b)(1) and (b)(2) differ in their descriptions of the mental

state required for culpability, jurors are not required to agree on the defendant’s

specific mental state . . . .” (citation omitted)); Barfield v. State, 202 S.W.3d 912,

916 (Tex. App.—Texarkana 2006, pet. ref’d) (“The charge appropriately

submitted alternative ways of violating the applicable statute. The jury’s verdict


                                          7
represents the necessary unanimous finding that Barfield murdered Burns under

Section 19.02 of the Texas Penal Code.”).

                    D. Application of the Law to the Facts

      Here, the jury was authorized in the charge to find Diko guilty of murder if

he intentionally or knowingly caused Mimoza’s death or if he, with intent to cause

serious bodily injury to Mimoza, committed an act clearly dangerous to human

life that caused Mimoza’s death. The jury returned a general verdict finding Diko

guilty of the offense of murder.       Based on this court’s binding precedent

interpreting the murder statute, we hold that the trial court did not err in

submitting its charge to the jury.6 See Lozano, 359 S.W.3d at 821–22; Bundy,

280 S.W.3d at 431–33; Davis, 268 S.W.3d at 710–12.

      We overrule Diko’s sole issue.

                                 IV. CONCLUSION

      Having overruled Diko’s sole issue, we affirm the trial court’s judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: April 14, 2016

      6
        Diko’s reliance on Ngo is misplaced. See Lozano, 359 S.W.3d at 822
(distinguishing Ngo); Davis, 268 S.W.3d at 712 (same).


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