                      IN THE COURT OF CRIMINAL APPEALS
                                  OF TEXAS

                                      NO. PD-0038-18



                          CODY DARUS FRENCH, Appellant

                                              v.

                                 THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE ELEVENTH COURT OF APPEALS
                            TAYLOR COUNTY

       Y EARY, J., delivered the opinion for a unanimous Court.

                                       OPINION

       The Eleventh Court of Appeals reversed Appellant’s conviction for aggravated sexual

assault of a child. French v. State, 534 S.W.3d 693 (Tex. App.—Eastland 2017). The court

of appeals held that the trial court erred in not giving a unanimity instruction to the jury as

to which orifice Appellant penetrated with his sexual organ. Id. at 697. The court of appeals

concluded that Appellant properly objected to the instruction, and it applied a “some harm”

analysis under Almanza. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
                                                                                      FRENCH — 2


(op. on reh’g) (construing Article 36.19 of the Code of Criminal Procedure to provide that

objected-to jury charge error should be evaluated for “some” harm, while unpreserved jury

charge error will be reversible only if it causes “egregious” harm); T EX. C ODE C RIM. P ROC.

art. 36.19. We granted the State’s petition for discretionary review to address two issues: (1)

whether Appellant failed to preserve error by not leveling an appropriate objection to the jury

charge at trial; and (2) whether Appellant suffered any level of harm—either “some” or

“egregious”—as a result of the trial court’s jury charge. We reverse the judgment of the court

of appeals and remand the case for further proceedings.

                                       I. BACKGROUND

                                        A. The Indictment

        Appellant was charged by indictment with the aggravated sexual assault of his five-

year-old daughter, J.F.1 The State’s original indictment contained a single count alleging

aggravated sexual assault of a child. It read in pertinent part as follows:

        “On or about the 7th Day of March, 2013 . . . CODY DARUS FRENCH did
        then and there intentionally and knowingly cause the penetration of the anus
        of [J.F.], a child who was then and there younger than six (6) years of age, by
        the male sexual organ of CODY DARUS FRENCH.

Roughly one month before trial, the indictment was amended to add the following language

in the same paragraph and same count: “and cause contact with and penetration of the female



       1
         The court of appeals used the abbreviation “J.F.” to protect the victim’s identity, and we will
do the same. T EX. C ODE C RIM. P ROC. art. 57.01.
                                                                               FRENCH — 3


sexual organ of [J.F.], a child who was younger than (6) years of age, by the male sexual

organ of CODY DARUS FRENCH.” In its amendment, the State also added contact with the

anus to the existing charge of penetration of the anus. The State’s amended indictment thus

presented the jury with four options for a conviction: (1) Appellant contacted J.F.’s anus with

his sexual organ; (2) Appellant penetrated J.F.’s anus with his sexual organ; (3) Appellant

contacted J.F.’s sexual organ with his sexual organ; and (4) Appellant penetrated J.F.’s

sexual organ with his sexual organ. Any one of these acts would constitute a first degree

felony offense. T EX. P ENAL C ODE § 22.021(e).

                                 B. The Evidence at Trial

       While babysitting J.F. and J.F.’s older brother, J.F.’s maternal grandmother, Catherine

Bishop, found J.F. “doing sexual stuff” with her brother. Bishop informed J.F.’s mother,

who then confronted J.F. about this behavior. J.F. told her mother that she learned the

behavior from her father, Appellant. Specifically, J.F. recounted that Appellant “humped

her,” which she said meant that Appellant was “sexing her.” As a result of these allegations,

J.F. was taken to the Child Advocacy Center (CAC) and to a hospital, where she eventually

detailed numerous instances in which Appellant penetrated her anus with his sexual organ

in various locations in the family’s home.

       The State presented a significant amount of evidence that Appellant penetrated J.F.’s

anus with his sexual organ. But the record contains comparatively little evidence that

Appellant contacted—much less penetrated—J.F.’s sexual organ as alleged in the amended
                                                                                     FRENCH — 4


indictment. The State admitted the testimony of a CAC forensic interviewer who questioned

J.F. after her outcry, as well as the testimony of a Sexual Assault Nurse Examiner (SANE)

who examined J.F. These witnesses detailed the sexual-assault allegations J.F. made during

her CAC interview and SANE exam, respectively.

       Collectively, the State’s witnesses established that the multiple assaults occurred in

three distinct locations in the family’s home: the bathroom, the living room, and Appellant’s

bedroom. In the bathroom, Appellant inserted his sexual organ into J.F.’s anus while she was

on the sink. In the living room, Appellant pulled his pants down and made J.F. sit naked on

top of his sexual organ. In the bedroom, Appellant forced J.F. to lie on her stomach, and

penetrated J.F.’s anus with his sexual organ.

       J.F. testified that, in at least two of the three locations where the sexual assaults

occurred, Appellant penetrated, not merely contacted, her anus with his sexual organ. But she

denied that Appellant ever penetrated her sexual organ in any of the three incidents. When

asked on direct examination whether Appellant inserted his sexual organ into her “middle

part,”2 which was one of the terms she used for her female sexual organ, J.F. explicitly

testified that Appellant penetrated her anus, but never her sexual organ.

       The physical evidence presented at trial likewise did not suggest that Appellant ever

penetrated J.F.’s sexual organ. According to the SANE, the penetration of a five-year-old’s


       2
          J.F. had three names for her female sexual organ that she used throughout various interviews
and at trial: her “pee-pee” and her “middle spot” or “middle part.” She referred to her anus as her
“butt” or “bottom.”
                                                                                 FRENCH — 5


sexual organ would result in “horrible damage,” but there was no such damage present when

the nurse examined J.F. And while there was also no evidence of any injury or damage to

J.F.’s anus, this, according to the nurse, is not unusual in cases of sexual assault of a child’s

anus because the tissue around a five-year-old’s anus “is a lot more elastic, a lot more

forgiving, and can accommodate things much more easily than a five-year-old’s vagina.”

When asked if it would be possible to have penetration of a five-year-old’s anus with no

evidence of trauma, the SANE responded: “It is possible, yes. . . [I]t depends on the force,

on the extent of the penetration. . . But it’s certainly possible not to have injury.”

       The only evidence—that we have observed—of contact or possible contact between

Appellant and J.F.’s sexual organ came in the form of a statement that J.F. immediately

recanted, evidence that, after sexually assaulting J.F., Appellant cleaned both her anus and

her sexual organ with a “wipey,” and evidence that J.F. was made to sit on Appellant’s lap

while both she and Appellant were naked. J.F. stated during the CAC forensic interview that

Appellant’s sexual organ penetrated her “pee-pee.” But she immediately self-corrected,

insisting that, in fact, Appellant’s sexual organ never entered her sexual organ, it only entered

her “bottom.” J.F. told the CAC interviewer that, after assaulting J.F. in the living room,

Appellant “got wipeys and wiped her pee-pee and her butt and wiped his private[.]”

Additionally, J.F. stated that Appellant forced her to sit naked on Appellant’s naked lap while

Appellant penetrated her anus with his sexual organ. This evidence at least raises the

possibility that, in the course of penetrating J.F.’s anus, Appellant contacted and/or
                                                                                FRENCH — 6


penetrated J.F.’s sexual organ with his own sexual organ.

                                    C. The Jury Charge

       In the jury charge, the trial court authorized the jury to convict Appellant based on any

one of the four theories alleged in the amended single-count indictment: (1) contact-anus, (2)

penetration-anus, (3) contact-sexual organ, and (4) penetration-sexual organ. In the

application paragraph, the trial court set out what it characterized as the two “elements” of

the offense, as follows:

       1.     The defendant, in Taylor County, Texas, on or about March 7, 2013,
              intentionally or knowingly caused the contact with or penetration of the
              anus of J.F. with his male sexual organ or the defendant caused contact
              with or penetration of the female sexual organ of J.F. with his male
              sexual organ; and

       2.     J.F. was at the time a child younger than fourteen (14) years of age.

(Emphasis added.) Next, addressing the issue of jury unanimity, the trial court explicitly

instructed the jury regarding these two “elements”:

       You must all agree on elements 1 and 2 listed above. With regard to element
       1, you need not all agree on the manner in which the sexual assault was
       committed.

Thus, the jury was authorized to convict Appellant without agreeing as to (among other

things) which orifice he had contacted or penetrated.

       When asked whether he had any objection to the jury charge, Appellant’s trial counsel

responded:

       [DEFENSE COUNSEL]: On page 5 of the charge, under application of law to
                                                                               FRENCH — 7


       facts, the third–or actual, I guess it’s the second paragraph, which says, “You
       must all agree on elements one and two listed above, but with regard to
       element one you need not all agree on the manner in which the sexual assault
       was committed,” we would object to that charge–that part of the charge and
       request that the charge be changed, to read, “With regard to element one, you
       must all agree on the manner in which the sexual assault was committed.”

The State responded that the jury need not be unanimous in its determination of the “manner

and means” by which Appellant committed the offense; instead, the jury need only be

unanimous as to whether Appellant actually committed the charged offense, regardless of the

particular manner or means. The trial court overruled Appellant’s objection. The jury

returned a verdict finding Appellant guilty of aggravated sexual assault of a child. And then

the trial court assessed a sixty-year sentence.

                                       D. On Appeal

       On appeal, Appellant argued that the jury charge ran afoul of the juror unanimity

requirement because it did not require the jury to agree as to which orifice Appellant

contacted and/or penetrated. This, according to Appellant, was not a “manner and means”

issue but rather a case of distinct and separate offenses, each of which demanded juror

unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred

in failing to submit a proper instruction in that regard. French, 534 S.W.3d at 697. Further,

the court of appeals found Appellant’s objection to the erroneous jury charge sufficient to

invoke the “some harm” standard of review under Almanza. Id.; Almanza, 686 S.W.2d at

171. Finding that there was, indeed, some harm under the Almanza factors, the court of
                                                                              FRENCH — 8


appeals reversed Appellant’s conviction, and did not reach Appellant’s only other point of

error. French, 534 S.W.3d at 697–701.

       In its petition for discretionary review, the State contends that the court of appeals

erred to hold that Appellant’s trial objection preserved error so as to invoke Almanza’s “some

harm,” rather than the “egregious harm,” standard. The State also argues that any error in the

jury charge as to the unanimity requirement did not result in harm to Appellant. We conclude

that Appellant’s objection was sufficient to trigger the “some harm” standard, but we sustain

the State’s second argument. Accordingly, we reverse the court of appeals’ judgment.

                                 II. JURY UNANIMITY

       A defendant in a criminal trial in Texas has the right to a unanimous jury verdict on

each element of the charged offense. T EX. C ONST. art. V § 13; Jourdon v. State, 428 S.W.3d

86, 94 (Tex. Crim. App. 2014) (citing Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App.

2007)); see also T EX. C ODE C RIM. P ROC. art. 26.29(a) (“Not less than twelve jurors can

render and return a verdict in a felony case. It must be concurred in by each juror and signed

by the foreman.”); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (“Under our

state constitution, jury unanimity is required in felony cases, and, under our state statutes,

unanimity is required in all criminal cases.”); Cosio v. State, 353 S.W.3d 766, 771 (Tex.

Crim. App. 2011) (“Texas law requires that a jury reach a unanimous verdict about the

specific crime that the defendant committed. This means that the jury must ‘agree upon a

single and discrete incident that would constitute the commission of the offense alleged.’”)
                                                                                FRENCH — 9


(quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). It is error to

authorize a jury to render a guilty verdict without reaching a unanimous decision as to each

element of the charged offense. Cosio, 353 S.W.3d at 771.

       Under pertinent subsections of Section 22.021(a)(1)(B) of the Texas Penal Code, a

person commits the offense of aggravated sexual assault of a child if the person, among other

things, intentionally or knowingly:

       (i) causes the penetration of the anus or sexual organ of a child by any means;

                                             ***

       (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus,
       or sexual organ of another person, including the actor; [or]

       (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of
       another person, including the actor[.]

T EX. P EN. C ODE § 22.021(a)(1)(B)(i), (iii) & (iv). The amended indictment in this case

alleged that Appellant committed the offense in four ways: two ways that are embraced by

Section 22.021(a)(1)(B)(i) (both penetration of the anus and penetration of the sexual organ);

a third way that is embraced by Section 22.021(a)(1)(B)(iii) (causes a child’s sexual organ

to contact the actor’s sexual organ); and a fourth way embraced by Section

22.021(a)(1)(B)(iv) (causes the child’s anus to contact the actor’s sexual organ). But the trial

court’s charge to the jury in this case did not explicitly require the jury to unanimously agree

upon which of these Appellant was convicted.

       We have explained, in the context of double jeopardy claims, that each of these ways
                                                                               FRENCH — 10


of committing aggravated sexual assault constitutes a separate offense. See Gonzales v. State,

304 S.W.3d 838, 849 (Tex. Crim. App. 2010) (“The Legislature intended that penetration of

a child’s anus should be regarded as a distinct offense from penetration of her sexual organ

even if they occur during the course of the same incident or transaction.”); Vick v. State, 991

S.W.2d 830, 833 (Tex. Crim. App. 1999) (holding that the different subsections of Section

22.021(a)(1)(B) constitute separately actionable offenses for double jeopardy purposes). Our

double-jeopardy jurisprudence, we have also said, is “closely intertwined” with our jury-

unanimity jurisprudence. See Gonzales, 304 S.W.3d at 848 (noting that “double-jeopardy and

jury-unanimity issues constitute ‘closely intertwined strands of our jurisprudence’”) (quoting

Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008)). Accordingly, when we have

construed these different provisions to carve out separate offenses for double jeopardy

purposes, we have essentially held that they are separate offenses for jury unanimity purposes

as well. The court of appeals was therefore correct to hold that the trial court erred by failing

to require the jury to attain unanimity with respect to which of the two orifices alleged in the

amended indictment that the Appellant contacted and/or penetrated before finding him guilty.

French, 534 S.W.3d at 697.

    III. PRESERVATION: “SOME” HARM VERSUS “EGREGIOUS” HARM

       Indeed, the State does not vigorously contest the court of appeals’ conclusion that the
                                                                                      FRENCH — 11


jury charge was erroneous.3 Instead, it argues that Appellant did not adequately apprise the

trial court of the nature of the error so as to invoke Almanza’s “some harm” standard, and

that, in any event, the error was harmless under either of Almanza’s harm standards.

Therefore, the first issue we must address is whether the court of appeals correctly held that

Appellant’s objection was sufficient to put the trial court on notice that Appellant was

making a jury unanimity objection with respect to which orifice Appellant penetrated.

        With respect to jury unanimity, the trial court referred the jury back to what it

characterized as “element 1” in the application paragraph.4 It then instructed the jurors that

they need not “all agree on the manner in which the sexual assault was committed.” In so

instructing the jury, the trial court effectively authorized it to convict Appellant without

agreeing with respect to which of J.F.’s orifices he contacted and/or penetrated. Appellant

objected: “[W]e would object to that charge–that part of the charge and request that the

charge be changed, to read, ‘With regard to element one, you must all agree on the manner

in which the sexual assault was committed.’” Thus, he clearly identified for the trial court




       3
          The State did not even make a substantial argument in its reply brief on direct appeal that the
jury charge was not erroneous. While asserting in the caption to its response to Appellant’s first point
of error that “[t]he jury charge was not erroneous,” State’s Brief on Appeal at 7, the only substantive
arguments the State made for rejecting this point of error were, as here, that (1) Appellant failed to
preserve his jury-unanimity complaint, and (2) that any jury charge error was harmless.
       4
         In what it deemed “element 1,” the trial court instructed the jury that it must find that
Appellant “caused the contact with or penetration of the anus of J.F. with his male sexual organ or
[Appellant] caused contact with or penetration of the female sexual organ of J.F. with his male sexual
organ.”
                                                                                       FRENCH — 12


what he found objectionable. But did he clearly identify why it was objectionable? 5

        The State contends that, in articulating why he thought the trial court’s unanimity

instruction was objectionable, Appellant actually misled the trial court with respect to the

nature of the error he was asserting. State’s Brief on Discretionary Review at 12–13. As it

did at trial, the State contends that Appellant’s objection was a misstatement of the law

because it urged the trial court to instruct the jury that it must reach agreement with respect

to mere “manners and means” of committing the offense. The State argues that whether

Appellant contacted J.F.’s orifices and whether he penetrated them simply constitutes

different “manners and means” for jury-unanimity purposes. The State further argues that,

by requesting an instruction that the jurors must agree as to the “manner” in which Appellant

committed the offense, Appellant sought an instruction that would have erroneously required

the jury to agree whether Appellant contacted versus penetrated J.F.’s various

orifices—which, the State contends, are nothing more than mere “manner and means” of

committing aggravated sexual assault.

        We disagree. When both contact and penetration occur in a single sexual act,

involving a single orifice, contact is subsumed by penetration. See Jourdan, 428 S.W.3d at

98 (“We have already discounted the possibility of egregious harm with respect to penile



       5
          See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“As regards specificity,
all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what
he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand
him at the time when the trial court is in a proper position to do something about it.”).
                                                                               FRENCH — 13


contact versus penile penetration because contact is subsumed by penetration, and every juror

would have, of necessity, at least found contact.”). But that is not what Appellant objected

to with regard to the trial court’s proposed unanimity instruction. We read Appellant’s

objection to raise the issue of whether the jury had to be unanimous in its determination

about which of J.F.’s orifices was contacted and/or penetrated, forming the basis for

Appellant’s conviction. This is an elemental determination because the contact and/or

penetration of multiple orifices always constitutes more than one offense, regardless of

whether the contact and/or penetration occurs in the same sexual encounter. Gonzales, 304

S.W.3d at 849.

       Moreover, because he was specifically objecting to the trial court’s own proposed

erroneous unanimity instruction, Appellant’s objection was at least specific enough to alert

the trial court that the instruction contained an error of some kind with respect to that issue.

Indeed, it was specific enough to alert the trial court that its particular unanimity instruction

was improper because it allowed the jury to be non-unanimous concerning an elemental way

in which the offense was committed—including the specific error of failing to require jury

agreement with respect to which orifice Appellant contacted and/or penetrated. The trial

court can only have understood Appellant’s objection in this way. This Court has held that

an objection to an erroneous jury charge need not constitute a paragon of clarity and

specificity in order to trigger a “some” harm analysis for purposes of Almanza. See Francis

v. State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000) (citing Stone v. State, 703 S.W.2d 652,
                                                                                  FRENCH — 14


655 (Tex. Crim. App. 1986), for the proposition that an objection raising jury-unanimity error

in the jury charge need only be sufficient to alert the trial court to the problem, and

remanding for an Almanza harm analysis). We agree with the court of appeals that the

objection lodged in this case was sufficient to invoke Almanza’s “some” harm analysis.

                           IV. WAS THERE “SOME” HARM?

       While we agree that the “some” harm analysis under Almanza was the proper standard

of review for the court of appeals to undertake, we disagree with its conclusion that the error

actually resulted in some harm to Appellant. As the court of appeals itself acknowledged,

even the less exacting standard of “some” harm still requires that the record reveal “actual,”

and not merely “theoretical” harm. French, 534 S.W.3d at 698 (citing Elizondo v. State, 487

S.W.3d 155, 205 (Tex. Crim. App. 2016)). In assessing “some” harm under Almanza, an

appellate court should consider the error in light of four factors: (1) the entire jury charge,

(2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information

as revealed by the record as a whole. 686 S.W.2d at 171. In its analysis, the court of appeals

found three of the Almanza factors—factors one, three, and four—to be essentially

unrevealing, but the remaining factor—the second factor, namely, the state of the

evidence—to be determinative.

                     A. Factor One: The Entirety of the Jury Charge

       In considering the first factor—the entire jury charge—the court of appeals simply

reiterated its conclusion that the trial court erred in failing to instruct the jury that it must be
                                                                             FRENCH — 15


unanimous with respect to the orifice affected. French, 534 S.W.3d at 698. It did not ask

whether anything in the balance of the jury charge either exacerbated or ameliorated this

error. We have examined the entire jury charge, and we conclude that nothing, other than the

erroneous instruction itself, either exacerbates or ameliorates the error.

                         B. Factor Three: The Jury Arguments

       In considering factor three—the jury arguments—the court of appeals ultimately

concluded that nothing in the arguments of the parties explicitly encouraged the jurors to be

non-unanimous with regard to which orifice Appellant contacted and/or penetrated. Id. at

699. We agree. The court of appeals did observe that the State made a jury argument that

was “ambiguous” in its scope. Id. at 699. The prosecutor informed the jury that, pursuant to

the erroneous unanimity instruction given by the trial court, it need not agree whether

Appellant contacted or penetrated before it could convict him, regardless of which orifice

was involved. Unfortunately, she expressed this concept in such a way that the jury might

have been confused whether she also meant to indicate that it need not be unanimous with

respect to which orifice was involved. Id. Ultimately, however, the court of appeals

concluded—and we agree—that the prosecutor never explicitly invited the jury to convict

Appellant without agreeing as to which orifice was involved. Id.

                   C. Factor Four: Any Other Relevant Information

       In considering the fourth factor—any other relevant information as revealed by the

record as a whole—the court of appeals examined the complete record, including the voir
                                                                              FRENCH — 16


dire and the opening statements. The court of appeals closely examined, and detailed, the

discussions engaged in, and comments made by, the prosecutor in front of the jury. We have

also examined those parts of the record and, like the court of appeals, we have discerned

nothing else that particularly militates in favor of a finding of harm. Id. at 699–700.

                       D. Factor Two: The State of the Evidence

       In concluding that “some” harm was shown, then, the court of appeals essentially

relied only upon the second Almanza factor—the state of the evidence. As summarized by

the court of appeals, that evidence was as follows:

       Although the State primarily presented evidence of a sexual assault of J.F.’s
       anus by Appellant with his penis, Beard [the CAC forensic interviewer] said
       that J.F. reported that, after Appellant had finished assaulting her, he would
       clean her “pee-pee” with “wipeys.” Beard also testified that there were one or
       two instances where “[J.F.] said that it was his private in her pee-pee, but she
       self-corrected” to “butt.” The jury could have inferred from J.F. that Appellant
       wiped her “pee-pee” and “butt” after he had assaulted her sexual organ and
       anus.

Id. at 700. Thus, the court of appeals identified what it viewed as some evidence in the record

from which the jury might have rationally concluded that Appellant penetrated both J.F.’s

anus and her sexual organ with his own sexual organ. Presumably the court of appeals

believed that, confronted with at least some evidence to support either theory, the jury would

have regarded itself as authorized to convict without reaching any agreement as to which was

supported to a level of confidence beyond a reasonable doubt.

       The CAC forensic interviewer did indeed testify that J.F. told her that, after sexually
                                                                              FRENCH — 17


assaulting her in the living room by penetrating her anus, Appellant wiped both J.F.’s anus

and her sexual organ with a “wipey.” It is possible that the jury could have inferred from this

testimony that Appellant may have been cleaning up after himself after he had contacted or

penetrated not just her anus, but also her sexual organ, with his own sexual organ. This

evidence—that Appellant cleaned not only J.F.’s anus, but also her sexual organ, with a

“wipey” after sexually assaulting her—might have taken on particular significance to jurors

in light of J.F.’s statements to the CAC that Appellant penetrated her “pee-pee.” But the

evidence also demonstrated that, after each such claim by J.F., she consistently and expressly

recanted it, denying that Appellant penetrated her “pee-pee” with his sexual organ.

       The jury was also presented with testimony—from both the CAC and from J.F.

herself—that Appellant caused J.F. to sit on his lap while the two were both naked. J.F.

stated that Appellant forced her to sit naked on his lap in the living room while he penetrated

her anus with his sexual organ. But even in light of all of this evidence, we still cannot say

that Appellant suffered some harm, as a result, after our consideration of all four of the

Almanza factors.

         E. Considering the Degree of Harm in Light of the Almanza Factors

       Whether jury charge error is preserved or not, the degree of harm resulting from the

error must be measured in light of all four factors identified in Almanza. See 686 S.W.2d at

171 (“In both situations the actual degree of harm must be assayed in light of” the Almanza

factors). And when, as in this case, it has been determined that the jury charge error was
                                                                               FRENCH — 18


preserved, courts must remain cognizant that the goal is to discern whether the error was

“calculated to injure the rights of [the] defendant.” Id. This means, we have said, that courts

must ask whether the defendant has suffered “some actual, rather than [merely] theoretical

harm from the error.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

       It is true that the court’s charge to the jury in this case erroneously permitted the jury

to find Appellant guilty without being unanimous about whether Appellant contacted and/or

penetrated J.F.’s anus or her sexual organ. That is the error upon which we are focused. It is

also true that the record contains some evidence that could have led a juror to conclude that

Appellant contacted and/or penetrated J.F.’sexual organ with his own sexual organ (i.e., in

the form of J.F.’s recanted statements, evidence that Appellant used a “wipey” to clean J.F.’s

sexual organ in addition to her anus, and evidence suggesting that appellant forced J.F. to sit

on his lap while they were both naked in the midst of a sexual assault). But after considering

the charge error in this case in light of all of the Almanza factors, we conclude that the risk

that a rational juror would have convicted Appellant on the basis that he contacted and/or

penetrated J.F.’s sexual organ with his own—and not also on the basis that he contacted

and/or penetrated her anus—is not “remotely significant,” 6 and is, in fact, so “highly

unlikely” as to be “almost infinitesimal.” 7

       There was overwhelming evidence presented at trial that Appellant contacted and


       6
           Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).
       7
           Owings v. State, 541 S.W.3d 144, 152–53 (Tex. Crim. App. 2017).
                                                                                FRENCH — 19


penetrated J.F.’s anus with his sexual organ—on multiple occasions, in several different

locations. J.F. detailed at least three separate incidents in which Appellant penetrated her

anus with his sexual organ. The SANE’s testimony further suggested to the jury that, if J.F.’s

sexual organ had been penetrated by Appellant’s penis, her sexual organ would have been

“horribly damaged,” and yet the physical evidence observed during her examination revealed

no such damage. The State’s final arguments also focused the jury’s attention on the evidence

that Appellant penetrated J.F.’s anus—not her sexual organ. The State said nothing during

its final argument to encourage the jury to convict Appellant of genital-to-genital contact

and/or penetration. And for his part, Appellant offered no defense specifically tailored to

suggest that he only contacted and/or penetrated J.F.’s sexual organ and not her anus.

Appellant’s defense was that he did not sexually assault J.F. at all. See Cosio, 353 S.W.3d

at 777 (“Cosio’s defense was that he did not commit any of the offenses and that there was

reasonable doubt as to each of the four incidents because the C.P. was not credible and the

practical circumstances surrounding the incidents of criminal conduct did not corroborate

C.P’s testimony.”). All of this suggests to us that the erroneous jury instruction in this case

was not “calculated to injure the rights of the defendant,” T EX. C ODE C RIM. P ROC. art. 36.19,

and that any harm resulting from the error is purely theoretical, not actual.

       This reasoning is analogous to what we have said in previous opinions dealing with

error in the failure to require the State to elect which of multiple incidents of sexual assault

it intended to rely upon for conviction. In Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App.
                                                                                  FRENCH — 20


2006), the defendant was convicted of aggravated sexual assault of a child. The child-victim

testified that Dixon sexually assaulted her one-hundred times. Id. at 732. All but one of these

sexual assaults, she testified, occurred at night time. At the end of trial, “defense counsel

requested that the state be required to elect which instance of sexual assault it would rely

upon for conviction.” Id. The trial court denied defense counsel’s request for an election. Id.

at 732–33. We agreed that this was error, but we concluded that the error was harmless

because “[t]he only distinguishable detail among the one hundred offenses is that one

occurred during the day, while the others happened at night.” Id. at 735. We reasoned that

a jury that believed the victim’s allegations at all would believe that the sexual assaults

occurred at night—the nighttime sexual assaults accounted for ninety-nine percent of the

assaults described at trial. Id. Thus, we concluded, there was “no remotely significant risk

. . . that a jury would convict [Dixon] without believing he committed an offense at night.”

Id. at 736.

       Similarly, in Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017), the defendant

was convicted of aggravated sexual assault of a child based on the child victim’s testimony

that Owings sexually assaulted her multiple times in Owings’s bedroom, at least once in

“Grammy’s room[,]” at least once in “Uncle Ty’s room[,]” and at least once at Owings’s

father’s house. Id. at 148. We held that any error in the trial court’s failure to require the state

to elect which instance of sexual assault Owings was guilty of, was harmless. Id. at 149.

Specifically, we held that even if, theoretically, the jurors could have convicted Owings
                                                                               FRENCH — 21


without coming to a unanimous agreement—i.e. some jurors convicted based on the Uncle

Ty’s room incident, while others convicted on the basis of the Grammy’s room

incident—“the likelihood of that [was] almost infinitesimal.” Id. at 152. This was true

because the State’s case depended entirely on the credibility of K.M., and Owings’s

defense—like Appellant’s defense—was that he did not commit any sexual assault against

the victim whatsoever. Id. at 153. Thus, we concluded, “it [was] highly unlikely that any

juror voted to convict Appellant because they believed that one of those acts occurred” while

the others did not. Id.

       In our view, where a record reveals a risk of harm that is so small that it may properly

be characterized as not “remotely significant,”8 or where the risk of harm is “almost

infinitesimal,9 any harm resulting from the error is only theoretical harm. After considering

the error in this case in light of all of the Almanza factors, we conclude that the risk was not

“remotely significant” that Appellant was harmed. In fact, we deem the risk that he was

harmed so “highly unlikely” as to be “almost infinitesimal.”As a result, we hold that the

record fails to support the court of appeals’ conclusion that Appellant suffered “some”

harm—that is to say, actual, not just theoretical harm—from the trial court’s failure to

instruct the jury that it must be unanimous with respect to which of J.F.’s orifices was

penetrated.


       8
           Dixon, 201 S.W.3d at 731.
       9
           Owings, 541 S.W.3d at 144, 152–53.
                                                                           FRENCH — 22


                                   V. CONCLUSION

       Accordingly, we reverse the judgment of the court of appeals. We remand the case

to the court of appeals to resolve Appellant’s remaining point of error.




DELIVERED:           December 19, 2018
PUBLISH
